f^d s.K.-. an.ii.-..
IN THE CUSTODY OF THE
BOSTON PUBLIC LIBRARY.
SHELF N?
, A0AIH8
3:1.1
y
'E allow of the Printing and Publifliing of the
Book Intituled, y^ General Abridgment of Law
and Equity, Alphabetically digefted undef proper
Titles, &c. By Charles Finer, Efq;
. Fortefcue.
J. Willes,
E. Probyn.
F. Page.
Law. Carter.
J. Fortefcue A.
W. Chappie.
T. Parker.
M. Wright.
Ja. Reynolds.
Tho. Abney.
T. Burnett.
'j-ri . -y/^/z^^
A
General Abridgment
O F
LAW and EQUITY
Alphabetically digefted under proper TITLES
WITH
NOTES and REFERENCES
to the WHOLE.
By CHARLES VINER, m
Favente Deo,
ALDERSHOT m Hampfhire fiear Farnham in Surry ;
PRINTED for the Author, by Agreement with the Law-Patentees.
" 'ioAids^v.:^
^fii
TABLE
O F T H E
Several TITLES, with their Divifions and Subdivifions.
rr^
mu>
B
B. 2
B.5
C
C.2
What Things cannot be tried.
Things done beyond Sea. A
Agreements made here to be perform d
beyond Sea.
By Infpection.
Procefs and Proceedings thereupon.
How it ihall be made.
By Record.
Where by Record or per Pai.s.
Failcr. What, upon Nul tiel Record
pleaded. D
Delay of Certification. E
By Proof. E. 2
By \^'■ager of Law. See Ley-gager.
By the Court.
In what Cafes. F
In refpedi of the Pleadings. F. 2
By Officers of Courts, Attornies &c. F.5
By Mouth of the Recorder of London. G. 2
In what Cafes, and not per Pais. G
Cu rtoms of the City. H
By whom it fliall be. '
Exter.ders. I
Summoners, Pernors, Veiors,
See Difceit(G)
By wiiich of them. I. 2
In what Cales K
Ancient Ways of Trial
By Battle,
In Writ of Right, or other Civil
Cafes. K. 2
In Criminal Cafes. K. 5
Wiio may wage Battle, or againft whom
it may be wag'd. K.4.
Other ancient Ways of Trial. K. 5
By the Efchcator. L
By the Sheriff or Coroner. L. 2
By Examination.
By whom it may be. M
By Certificate, and not per Pais.
In what Cafes. N
By the Spiritual Law, and not per Pais, &
e contra.
In what Cafes. O
Where by Law Spiritual, and where
per Pais.
Baftardy. See (P) pi. 22. &c.
In what Cales the Writ fhall be
awarded to the Bifhop, and in what
to the Sheriff. Q_
To the Bifnop of what Diocefs. Q^;
Y
Z
K
U
X
A. a
B.a
C. a
a
a
D.
E.
By whom the Trial fhall be mads.
For a collateral Caufe.
Extraordinary.
By Guardi'an' of the Spiritualties.
See(R) pi. 7.
By Prefcription, or otherwife.
Per Pais, in what Cafes.
For collateral Refpeft.
In Refpeft of the Aftion plead-
ed. Or in Refpeftofthe Man-
ner of Pleading, whether to the
Writ or to the Attion.
In what by the Spiritual Law, and in
what per Pais.
For Collateral Refpeft.
Where the Ifiue is upon the Time
By whom it fliall be commanded to be
tried, when it is to be tried by Law
Spiritual.
Certificate
OfBifliop.
Made.
When.
How.
Good.
For Collateral Refpeft.
For whom faid to be made.
Iflues.
Good. Upon what being taken. And
Notes and Rules concerning them. E
Affirmative and Negative neceffary in
what Cafes, to make an IfTue. E.
Taken upon one Point only, where there
are feveral. E.
General or fpecial.
What are. E,
Gener.il IlTue.
Neceffary in what Cales. E a.
Good in what Cafes. E. a.
What Plea amounts to the General
IfTue, and fo not good. E. a
Iffues of themfclves, what Pleas are. E. a.
Of Joining Iflues, and Rules relating
thereto. E. a. i
Tender'd. In what Cafes an IfTue fliall
be tender'd which fhall not be tried. £. a. 11
Several IfTues. Allow 'din what Cafes. E.a. 12
Per Pais.
The Original.
What IfTues are triable per Pais.
By the firfl: Juror.s.
In what Cafes.
By Jury or other Proofs before other
Perlbr.s upon fiecial Word.s ; and how
a;:d when. In the Action. G. a
a By
. a. 2
a.
3.4.
.a. 5
7
6
9
10
E, a. 1 3
E.a. 14
F. a
A TABLE of the feveral TITLES,
By Inqueft of Office.
In what Cafes. See D.) mages. H. a
Local orti-anfitory. What Attionsare. H. a. 2.
Place. In what County the Action may
be brought, where there are feveial. H. a. 5
Venue.
Neceflary in what Cafes. H. a. 4
Want thereof. Aided by what. H. a. 5
Laid, What a fufficient Laying;. Ha. 6
Out of what Place it fhall come, where
it can't come out of the Place alleged.
Kext Hundred. I. a
Kext County. K. a
What a good Award out of the next
County or Hundred. L. a
County. O. a. 2.
Out of what County. .
According to the Iflue. M. a
Two Counties or more. N. a
In what Cafes. O. a
Where the Thing lies in 2 feveral
Counties.
W^here bed Conufance may be of
the Matter. P. a
Where the Counties can't join. P.a. 2
In what County the Trial fhall be ;
Where the Writ is brought, and
where not. Q- s
Out of what County the Vifne fhall
come ;
Where the Writ is brought. R. a
In other County than where the
Writ is brought. S. a
Ex affenfu Partium, S.a. 2
In what Cafes where the Land is,
being inforc'd with other Matter.
Where the Land is, and not
where the Writ is. T. a
Where the Land is, and where
not. U- a- Y.a
Where the Land is. X. a
Of Offences. Part being done in one
County, and Part in another. Y. a. 2
Chang'd.
In what Cafes. I . a. 3
By Privilege. Y.a. 4
At what Time. Y. a. 5
To what Place. _ Y. a. 6
Out of two or more Vills in the fame
County. Z.. a
In refped of the Iflue. A . b. B. b
Out of what Place in the fame County.
In refpeft of the Iffue. H. b
Where the Land is. H. b. 2
Where the Writ is brought.
In refpeft of the IsTuc. C. b
From the Body of the County.
In what Cales. • D. b
Out of what Place. E- b
From what Place it may come. F. b
Out of which Place it lliall come where
there are diverfe. G. b
Moft certain. See (G. b) pi. 6, Sec.
Trial.
In one Iffue where it fhall bind the fame
Party in other Iffue on the fame Mat-
ter. . ^^-^
Agabft one where it fhall be againft
others. K. b
Time of Trial. . L. b
Where diverfe Iffues are to be tried
which Ihall be tried firft. M. b. N .b
Where.
At Bar.
In what Cafes. N. b. 2
By a Jury of what County. N. b. 5
Of Things done at Sea, or Part at
Land, and how the Trial (hall be. N. b. 4
Of Offences committed in Parts beyond
the Seas. N. b. 5
Of Matters arifing in or concerning
Lands &c. in Wales, County Pala-
tine, Cinque Ports, or other Fran-
chifes. _ N. b.6
By Medietas Lingua:.
In what Cafes. N. b. 7
How. N. b. a
Granted. How, and when. >J. b. 9
Nifi Prius.
In what Aftion it lies. O. b
Who fliall have it. P. b
Granted.
Againft whom. Q^b
In what Cafes it fhall not be granted
For Collateral Refpedt. T. b
Taken or granted.
At what Time, and where. T b. 2
Pleaded at Nifi Prius, what may be. U.b. 3
Juflices of Nifi Prius.
What Things they may do. U.b
And Juftices of Affife, their Power
and Original. U. b. 2
Wit h Provilo.
Granted.
At what Time. R.b
In what Cafes, and how. R. b. z
Certification of VerdiCis, S. b
Jurors.
Iffues.
In what Cafe they lofe Iffues. X. b
Loft. How much. X. b. 2
Levied how, and of what. X. b. 5
Lands liable after Alienation or
Death. X.b4
Demanded.
Upon Pain. Y. b ■
In v.hat Cafes. A. c
Amerciament. Z. b
Exempted from ferving on Juries Who
are. AndBemedy, if rcturn'd. A. c. 3
By Charter.
In what Aftions &c. B. c
Exemption by Charter. Allow'd
In what Cafes, and how. B. c. 2
At what Time. C. c
How
Where, without Writ. D. c
Lifts of Perfons to lerve on Juries, rc-
turn'd andexhibited how, and how the
Pannel is to be made. D. c. 2
Challenge
To the Hundred.
What. E. c. 2
How many Hundredors are fufficient. E.c, 5
From what Place. E. c. 4
In what Cafes, and the feveral Sorts E. c. 5
What fhall be faid the Hundred. F. c. 5
At wiiat Time to be taken. F. c. 4
Hundredor.
Who is a fufficient Hundredor. F. c
At what Time a Man fhall be faid an
Hundredor. F. c. 2
Who
With their Divifions and Subdivilions.
To the Array. F. c. 5
Who may take it. E. c
In refpeft of the Perfon, viz. a Peer G. c
By whom for Confanguinity. H. c
For what Confanguinity. H. c. 2
At what Time. S. c
For Want of Medietas Linguce. P. c
For AfSnity.
To whom. I. c
At what Time. I. c. 2
For Favour. I. c. 3
For Denomination. K. c
For Malice. Actions &c. L. c
How, and in what Manner, to be taken
or fhcwn. M. c
Counterplea,
Good. O. c
And how to be pleaded. N. c
Before whom may be taken. Q; c
To any of the 4 Knights; taken and tried
before whom, and how. P. c. 2
To Jurors. H. d. 5
Before whom it may be. R. c
At wiiat Time. Sec (L. d)
Who may take it. U. c
The Court. T. c
Between wiiom the Iffuc being, aChal-
lenge may be
Where the King is Party. X.c
WhatPerlbns may be impannell'd
In refpect of their Quality or De-
gree. Y. c
What Perfons ought to be impanell'd. Z.c
Freehold neceffary or not, in what
Cafes.
Z.c. 2
For Infufficiency of Freehold.
In w hat Actions.
A.d
What is iulficient Freehold.
A. d.2
Peremptory.
In Criminal Cafes. How many.
A.d. 4
Upon Records.
B.d
Principal.
What is.
A.d. 5
Witliin the Diftrefs.
Of whom.
C.d
Who faid to be within the Di-
ftrefs of a Party.
D.d
For what Confanguinity,
E d
To whom.
E. d.2
For Affinity.
What Affinity.
F.d
To whom.
F.d. 2
For Favour.
Words fpokc by a Juror as to
the
Caufe.
Id
Juror a Party &c.
G.d
Arbitrator, CommiiTioner.
G. d. 2
Where the King is Parry.
I. d.2
For Malice.
What Aaions.
H.d
By whom.
H.d.2
Not being free.
H.d. 3
Or Legales Homines.
H.d. 4
At what Time it may be taken.
L. d
How to be taken of a Record.
K.d
Caufe.
Shewn. At what Time it ought
to
be.
N. d
Immediately.
M.d
Jurors drawn in what Cafes. .
See
X. 6 4
Without iliewing Caufe of Chal-
lenge.
0 d
Upon what Inqueft it may be. P. d
In what Aftions. Q. d
To the Triors, in what Cafes. R. d
Trial of Challenges.
At what Time. Immediately. S. d
How to be made. Which tried firft. T. d
Where Challenge or Affirmance for
one ffiall fervc for others U. d
By whom Challenge of the principal
Pannel Ihall be tried X. d
By how many Perfons. See (X. d)
pi. 15.
Tales challeng'd, by whom to be tried. Y.d
Jurors challeng'd, by whom to be
tried. Y. d 2. Z. d
WhatChallenge they fliall try. Y.d. 5
Triors punifh'd for what, and how. Z. d. 2
Evidence. By whom, and how. A. e
Venire facias.
Award thereof.
Good. C. e
By what Court.
Chancery. C. e. 2
Mifawarded.
In refpeft of the
Perfon returning it. C. e. 5
Qiialification of the Jurors. C. e. 4
Between a Party and a Stranger. C. e. 5
Returnable at what Time. C. e. 6'
One or more. In what Cales. D. e
With Proviib,
Caufe to grant it. W^hat is good. See
(R.b) &c. _ B.e
Procefs with Provifo. B. e. 2
Special Jury. And of Juries ftruck by the
Mafter &c. D. e. 2
Procefs upon Iflues.
Directed to whom originally. E. e
Upon a Suggeftion. F. e
Upon Suggeftion of whom it fliill he
directed to others than it ought
De Jure. G. c
To the Coroners. For what
Caufes, upon Suggeftion. H. c
Not to the Coroners. What good Caufe
not to award it to the Coroners. I e
Taken from the Coroners,forwhatCaufes. K.c
To whom awarded.
For Default of Sheriff and Coroners.
Efliors. L.e
Tales.
WHiat it is, and how by Common Law
and Statute. L.e. 2
Granted.
In what
Cafes. M. e
And how. M. e. a
Aftions O. e
At what Time. O. e. 2
What Perfons may have it. N. e
What Tales fli:ill be granted. R. e
Tales after Tales. S. e
What fliill be done as to the Tales, when
the Yen. fac. &c. is quafli'd. P. e
With Provifo. P.e. 2
Chalierge to the Tales, and Exceptions
to the Return. P. e. 5
Procefs, ferv'd by whom. P.e. 4
What Perfon may be impannell'd upon
the Tale,s. P. e. 5
How many Jurors fhall be reiurn'd up-
on the Tales. , .Q. e
How the Tales are to be return'd wirh
the prir.cipal Jury. Q. e 2
Re!U:n
A TABLE of the feveral TITLES,
Return ot Procefs upon liTucs What good. T. e
Trial, Notice of, and Countermand, T. e. z
Put oiFor ftopt in what Cales. T. e. 5
Tho' the Jury are ready. T. e. 4
Enqueft.
VVhcfe it remains for Default of Jurors. U.c
Return'd.
How many Jurors ought to be re-
turn'd ; and by how many the Iffue
our^ht to be tried. X. e
Jurors.
Sworn, How. X. e. 2
Paid by whom, and in what Cafes. X. e. 3
Withdrawn in what Cafes ; and of a
new Dilhingas, and to what Per-
fons. X. e. 4
Difcharg'd. Y. e. 2
By other Iffue being pleaded, and fo
the former waiv'd. X. e. 5
Punifli'd for Mi.sbehaviour. X. e. 6
The Judge's Power on Difagreement of
the Jury. Y. e
Evidence Y e. 5
What Things ought to be prov'd in Evi-
dence. Z e
Proof, how to be made. A. f
Given in Evidence, whatThings fhall be,
C)r fliall be good Evidence. B. f
Upon
A fpecial Iffue C. f
The general Iflue. E. f
In what Cafes a fpecial Matter, may be
fiven in Evidence on a general
ffue. F. f
The Efteft of the Iffue. D. f
What Evidence the Jury ftall have with
them after Evidence given. I.f
Witneffes.
What Perfons may be H. f
Perfons interefted. G. f
Vcrdift.
Iffues on a collateral Thing tried in a fo-
reir'n County, by whom the Principal
fliall be tried, or Acccffory.\^'herc the
Damages fhall be tried by the fame
Jury. L f
What the Jury muft find. L f. 2
What Things the Jury may find. P. f
Not againft the Confeflion or Agree-
ment of the Parties. I\. f
In Refpeft of the
Time. K. f
County. M. f
Place. Within the fame County. N. f
Matters of
Eftoppel. O.f
Record. Q. f
How the Jury may find. T.f
Not by Argument. S. f
What (hall be intended. S. f Y. f
Uncertainly. U. f
Where good by Intendment, or void for
Uncertainty. Z. f
De bene Effe. In what Cafes it may be
taken De bene Effe. S. g. 3
For whom it fhall be faid to be found.
Variance between Verditt and Count. C. g
Finding
Part one Way, and Part another
Way. C. g. 2
Part only. C. g 3
Againft fome Defendants only. C g. 4
Found true in Subftance. D. g
Where the Iffue is upon a Traverfe
Modo & Forma. F. g 1
Special Verdift.
Good, or not. U. f. 2
In what Cafes and Aftions it may be
given- U. f. 5
Vv hat fhall be faid fuch, upon which
the Court may adjudge. X. f
What may be found fpecially. U. f. 4
Good by Intendment. Y. f. A. g
Special Conclufion of a fpecial Verdi(9:,
where it fhall aid the Imperfeftions of
a Verdict. B g
What fhall be faid an Inqueft of Office
only- _ B. g. 2
Surplufage in Vcrdic1:s,andthe Effeft. D. g. 2
Advantage of a Verdict, by whom taken.
Strangers. D. g. 5
Alter'd.
What Verdia may be. E. g
Falfified. E.g. 2
Sufficient Finding. What fhall be. E. g. 5
Findirg for Defendant, after Confeflion
of Part. E. g. 4
Private Verdidt. E. g. 5
Quafh'd for
111 Behaviour.
Eating and Drinking. G. g
Carrying with them or receiving
Papers &c. not given in Evi-
dence. G. g. 2
Calling Lots &c. to determine how
to give theirVerdid. G. g. 5
Speaking to the Jury. See (G. g) pi.
1;. 20.
Set afide for' what, and in what Cafes. G. g. 4
Judgment arreftcd.
V\ hat Plea good, in Arreft of Judg-
ment. I. g
When to be pleaded. H g
What fhall be intended after a Verdift,
to make the Judgment good. I- g- 2
For what Thipg. K. g
Variance between Verdict and Declara-
tion. K. g. 2
Venire facias de novo. K. g. 5
In what Cafes. K. g, 4
To the fame Jury. K. g. 5
Granted. By whom. L. g
New Trial.
The Antiquity thereof. M g
Granted
In what Cafes. N g
In refpedt of the Aftion O. g
Being Hard, or the Plcadifhcneft. P. g
Being Criminal. Q. g
After Defence. R. g
Againft one Defendant, where there
are more. S. g
For what Caufes.
Mifdcmeanors of, or Objections as to
the Jury. T. g
W^itneffes being abfent, or of ill
Fame. U. g
Judges not admitting Evidence. W. g
New Evidence, or Matter dilcover'd
after the former Trial. X. g
Damages being exceffive, or too
fmall. _ Y.g
Verdidt being againft Evidence.
And in what Cafes the Judge's
Certificate is neceffary. Z. g
Other Matters in general. A. h
At what Time. B. h
On what Terms. C. h
With their Divilions and Subdivilions.
A
B
C
D
E
H
. What it is. And Rules relating to Trufts
Amounts to it, What.
Conftiuftion.
What conftrued a Truft between Privies.
In Equity in general. How.
Rcfuking Trufts. What.
Advancement. What an Advancement, and
what a Truft.
Declarations of a Truft.
Sufficient, What.
Pcrform'd,
How.
Creditors.
Trufts for Payment of Debts favour'd.
Set afide.
In Favour of Creditors, and of the Par-
ties firft in the Truft, on Circura-
ftances.
Dctermin'd.
When.
Reviv'd. In what Cafes.
Bound by it. Who.
Truftee.
Who fhall be faid to be a Truftee.
Seifed as a Truftee. Who.
His Power.
Retainer. In what Cafes he may re-
tain.
Afts of him.
How far prejudicial to Cefty que
Truft.
Alienation by him. How it operates.
Afts of him, and Cefty que Truft and
Truftee, of what Efteft as to defeat-
ing the Truft, or deftroying the
Contingent Remainders.
Cefty que Truft.
Who is, and how confider'd.
His Power.
Forfeited by him, what, and where
barr'd.
Difputes &c.
Between Debtor and Creditor of Cefty
que Truft, and Cefty que Truft, and
Truftees.
Where a Truftee is to convey. How
he is to do it, and to whom.
Favour'd or indemnified.
Oblig'd, in what Cafes to join in Convey-
ance with, or to, Cefty que Truft.
Accountable. How far.
Where he fubftitutes an Attorney &c.
Breach of Truft.
What._
Reliev'd as to the Remainderman or
Reveifioner &c.
Decreed. Settlements decreed to be
broke in upon in what Cafes, and
Truftees to join.
Bound in his own Eftate. How far. I
Punifh'd, how far. K
Security. In what Cafes he fhall give Se-
curity. , L.
Difcharg'd or remov'd.
In what Cafes. M
Co-Truftees.
Chargeable. How far for the A£ls or
Receipts of the other.
Join. In what Cafes they muft all join
Surviving Truftee.
His Power. P. a
A. a
B. a
C. a
D. a
E. a
F.a
G. a
H.a
a
a
Mat at.
Made in what Cafes, and when.
WLalm,
Computed how. In Reference to Time.
By whom to be fet.
Pleadings.
Between the Count and the Specialty.
aiEiitJor anij tEcnOec,
Difputes between them.
Bill to carry Articles into Execution.
Relating to
The Title.
Warranties and Covenants.
The Particulars of the Eftate.
As to Accidents befalling the Eftate after
the Contradl.
Which of them is to do the firft Aft.
Difputes between
Vendor and Creditors of Vendee relating
to Purchafe money unpaid, and
what n-iall be faid Payment.
Vendee and Vendee.
aumttt Biufpccicnijo.
Awarded by whom, and in what Cafes.
Power thereof, and Right of being at it.
tElitto.
Lies.
In what Anions.
At Common Law
In what Writ or Aftion.
Of his Wrong.
Where other Thing is in Demand.
In what Cafes it lies not.
For Collateral RelpeiJt.
By taking Notice by Plea of the
Thing.
For the Certainty of the Thing
demanded.
In what Cafes.
In refpeifl of the Thing demanded.
Granted.
In what Cafes.
After a View.
At what Time.
Who (Viall have it.
The Party or Jurors.
What Thing (ball be put in View,
And how much.
How to be made.
At what Place.
By how many.
Puniftiment for not taking the View, and
how inquired.
A
B
C
N. a
O. a
B
C
E
F
G
D
H
A
A
B
D
E. z
G
H
I
K
L
Pleadings.
What Plea maybe pleaded after the View.
Judgment.
mil.
tailleiiu
By Conufance.
How.
To whom.
Power of the Lord over him.
What of his the Lord fliall have.
lu Prejudice of the 3d Petfon.
By what Means.
At what Time, by Claim or otherwife.
In what Capacity.
For what Eftate.
In what Nature.
M
N
O
P
CL
R
A
A
A. 1
A. 3
B
C
D
E
F
G
H
1
Infranchife-
A T A B L E of the fcveraf TT T L E S,
Infranchifeinent.
What Aft will be.
Aft in Law.
K
What Aft of the Lord
will
be
an In-
tranchifemeni in Law.
L
What will be an Infranchifeinent.
M
Aftions brought
By the Lord.
N
Againft the Lord.
N, I
Aft judicial. What.
o
Judpinent, what.
Q.
Seifcd.
At what Time he may be.
p
Pleadings &c.
iftror.
R
A
Mna $ eatietn f c»
One of the fame Perfon or Place.
Jatitertatntp.
In Grants &c.
Matters relating to Under-fheriffs.
Of Churches &c.
Good or not.
By whom.
How to be made.
In what Cafes, and the Confequences.
Pleadings.
:Emon of Cnglnnti auti ^totlanti.
A. i
B
C
D
A
TO THE HONOURABLE
MARTIN WRIGHT, FJq
ONE O F THE
Juftices of the Court of King's Bench
*~T^ HIS Book (being Fart of A General Ahridg-^
-*" ment of Law and E^tdtjy ^r.) is moft humbly
dedicated by
Tour moft Obligd
and Obedient Servant,
Charles \ iner.
TRIAD
(A) What Tljings caimo't be try'd. [Things done beyond Foi. 571.
"A
Sea. ] See Tit. Be
yond Sea.—
Trade and
Thing allea'd to be done beyond Sea CaimOt be ttp'O* 20 |^» ^^"''Sft'on,
6. II. 29 ^tff. II. mx'mST
2. 3 Cljiim allElTD ta be done in Bretagne beyond Sea CaitllOt I3C — Fugitives
trp'D by common laui, 41 <JJ» 3- 41- (A)pi 5.
3. Protelfion allC0'D tO bC in Normandy CanilOt U ttieH. 12 P*^ ,^"!f*
4- 10- 0* the Order of
St. John, has been tried here ; per Cutler, quod Frowike concefTit. Br Trials, pi. 55. cites 21 H. 7. 6.
If an Englifhman goes hitci France-, and theye becomes a jMoiik, yet he is capable of any Grant in Eng-
land, becaule fuch Pi-ofeition is not triable ; and alfo becaufe all Profeflion is took away by the Statute,
and by our Keligion now received, fuch Vows and Profcllion arc held void. And Roll faid, he had
heard that tliis was refolved accordingly by all the Juftices at Serjeant's-Inn in 44 £1. in one Ley's
Cafi-'. See Grants (C) pi. i .
There is no Method of trying whether a Man is a Monk profefs'd or not ; for the Trial at Common
Law is by the Certificate of the Bilhop ; but as the Law now ftands, no Biihop can certify aProfeffiot*
of being 11 J/onk. S;e 9 Mod 54. 56. Trip. 9 Geo. 2. before the Delegates, Sir Lawrence Anderton's
Cafe. See (O) pi. 12. {?) pi. 96.
4. 3if tljC 31irue be whether the Prior of B. be dative or removeable,
at the Will ot the Abbot of o. ot perpetual loljerc tbe abbep of ©*
ano tbe cljief l^rtorj? of 15, are over the Sea ; pet It map be tncu bere
tp tbc Slflije ; for It liciQi in tlje Conufance of tije Countrp uibctbec
tljcl^nor bas bete implcabeb, ano been implcabeo, annba$con=
tiniicB i)i0 laoflcffion fot \ii^ Life* 43 aiT. 4-
5. Jn taction of Debt upon Obligation in England, tObeteOf tbCCO^ See(B)
bition is to pay a certani ®tim in Ireland, tW nw be tnen in Cng=
iano* L5» 2. 3a» id, bp JBalmeflcp.
6. 3!n a HBttt of Error to reverie an Outlawry upon an Indictment of Cro C, gdj.
Murder, (f tlje Plaintiff affiBii^ fotCrror, tbatat tbeCime of tbe?! 'j^-^
£)UtlatUrp pVOnOUnceb, he was over the Sea, Icilicet, at l!triCli Itt tlje bu?fays"fhar
paits ot(;)ollanO, uncer tbeCommanb of Captain JobnCtomuiell i a ceraficate
anlJ upon tbllS 't is replied for the King, tliat he was then at C. in the under Seal
County of Middlefex, without that That i}e Um tljcn ObCt tbe €*ea °^/^^\°*"»
at atriclt aforefaio ; upon iubicb tbep Uieie at 3mte, anb t\w tneQ Z^rLf.
bp a Jurp at "Bat of Q^toniefer, tbat be mas at atticlt, ann Jiiiig^ dent, with-
tnent giben upon it, tbat tbe C>utUiiurp fljall be reberfeo. Cr. 10. out oathof
Cat, "B. E. ^"rge's Cafe. QSut It uws faiti b\> febecal, tbat tbc IlTue H" ^T^
tuas not toetl tai^en; but no Cjcception fallen to it, not uias it ob^ one'rworn"
Ux^m bp tbe court* for the ek.
pofitionofic
intoEnglifh, was not allow 'd ; but that a Witncfs upon Oath faid certainly, that he was there in the
Service at the Time of the Outlawry, and before; and thereupon the fury gave their Vcrditt accord-
ingly, and then he was inftantly arraigned upon the Indictment, and pleaded.
7. Debt upon an Obligatiort with Condition that if the Ship cf E.
Viith the Goods of the D'ejend-ti-ity does not come foje to any Fort in England^
B that
2 Trial.
that then &c. &nd faid, that the King of F. took it, abfqiie hoc, that it can:-
fafe into England &;c. And no Plea; tor it cannot be tried, and therefore
the Obligation is iingle. Br. Conditions, pi. 222. cites 21 E. 4. 17.
H. In divers Gafis Jurors pall take Coniijance of an Aff done in another
Cotirity, -AS of Jhipptng Merchandize to Venice. Br. Trialls, pi. 02 cites 7
H.7.8. Per HuUey Ch.J.
9. Or oi' freighting a foreign Ship toBotirdeatix againft the Statute. Br.
Tfiallsj pi. 93. cites 7 H. 7. 8. Per Huffey Ch. J.
fj P. Co. 2Q_ j„(i oi Alien born beyond Sea, thofe Things fhall be tried in Eno-- "
^'in Mlfe ^^"^- ^^- Trialls, pi. 93. cites 7 H. 7. 8. perHulIey Ch. J. "^
by -Bag".^ it was moved, tliat the Patent nuide to Bagot by H. 6. to be a Denizen by Name efj. Ba^ott
bom in ^ormajtd), was void, becaufe it wa.s alleged that he was born in France, &.non Allo'catur ; for
tl\e Eftcct is in as much as B. was:made Denizen ; ami alio it cavnot he tried whetlici- he was bom in
France or in Norma'idy, and fo not material. And the PlaincitF recover'd by AlTent of the [ufticsii of
both Benches. Br. l^atents, pi. 112. cites 9 E. 4. u.
As in Debt II. Brooke fays it feems, that if a Thing done beyond Sea be alleged at a
upon anObii- pj^^^ in England', it Ihall be tried here; quod nota. Br. Triails, pi. <?.
^^;««, the cireS2lH7 6 ' f JJ
faid, that it
is indor/ed for Performance of Covenanti caritaimd in an Indenture of Leafe of certain Obligations ; and [aiiy
that before any Day of Payment of Rent, the Pofe had refumed the Privilege, and Pardon there, fo that he
could not have any Prof t. Frowikc Ch. J. faid, this cannot be tried here; but counfellM him to plead
the Refumption by Writing proclaim'd and publifh'd at fuch a Place &c. Br. Trialls, pi. 55. cites
ii H.7.6.
So anObli^ation made beyond the Seas may be fucd here in England, in what Place the Plaintiff will ;
fo that if it bear Date at Bourdeaux in France, it may be alleged to be made in quodam loco vocat*.
Bourdeaux in France in IJlincjon in the County of Middlefex, and there it (liall be tried ; for whether
there be fuch a Place in Illington or no, is not traverfable in that Cafe. Co. Litt 261. b.
12. It fhall be tried by Jury whether a Man was out of the Realm at
the Time oiDiffeifin, and Defcent cajt See. Co. Litt. 261. b.
Sec CB) pi. 7. 13. Condition of a i^o«i^ was, that if B. /ho/ild pay toH.^ol. within
40 Days next after the Return of one Ruff el into England from the City of
Venice beyond the Seas, that then the Obligation to be void. And the
Defendant pleaded in Bar, that the liiid Ruffel was not in Venice ; upon
which the Plaintiff demurr'd. And adjudged by all the Jullices that it
was no good Plea ; tor in fuch Cafes, where Parcel is to be done within
the Realm, and Parcel out of the Realm, the Trial iLall be within the
Realm. Ow. 6. Trin. 19 Eliz. in C. B. Hale's Ca(e.
14. Some Englijhmen feWd 200 Load of Brajil Wood in Braftl ; for
which the Spanilh Ambalfador libell'd againft them in the Admiralty
here, and laid it to be done Infra Dominium Regis Hifpani^. But per
Coke Ch. J. that Court has no Jurifdi6lion to try the Facl; but it may
be laid to be done in any Place in England, and fo tried here. And per
tot. Cur. a Prohibition was granted. 2 Bulft. 322. Hill. 12 Jac. Don
Diego D'Acuna v. Buntilh & Points.
15. E. VV. brought Trefpafs, naming herfelf Widow. The Defendant
pleaded, that foe was Covert of Baron, viz. of one John Wilmot, who is itt
full Life at Lisbon in Portugal. But this Plea was difallovv'd tor the Im-
: poffibility of Trial. Mo. 851. pi. 1159. Trin. 14 Jac. B. R. Eliz,.
VVilmot's Cafe.
16. If a Man has twoWives, and was married to thefirjl in England, and
tothefevond beyend Sea, it feems that this cannot be tried, as it might
have been vice verfa. See Sid. 171. pi. 3. Mich. 15 Car. 2. in Cafe of
the King v
17. A Bond dated at Paris itt France, may be laid at Paris in France
in ijflington ; but where it is dated at Paris in France within the Kingdom
of France, it is not triable at all j Per Windham J. who faid that lb. it
had been held by good Opinion. 2 Keb. 315. pi. 26. Hill. 19 & 20
Car. 2. B.R. in Cafe of Freeman v. King.
i8.
Trial. 3
iS. In Debt herc/fi)- Rtut on Demife oj Lands in Ireland, the Detendanc S. C cired
f leads, that bejoreaay Rent due, the Duke olJ'ork was feifed in Fee, and entered ^ ^°^- '94-
aitdniifted the Defendant. To which zheVhx'mtViX replies.that the Duke was y^r^y y
not feifcd nicdo ci' fcrma, & hoc petit! quod mquinitur ccc. To which the Yally.
Delendiint demurs, and tor Caufe ilieus Noa bene conclulit. And Hale
Ch. |. conceived this mult be tried in Ireland j but no fpecial Caufe be-
ing ice down in the Paper- buck, judgment for the Plaintiff nili. 3 Keb.
15^0. pi. 18. Paich. 25 Car. 2. Holding v. H&ling.
19. If the principal Caufe be within the Jurifdiftion, and an IJfue dc- ^ MqJ ^^,,
pending on foreign Laws nnfes, it may be tried in the next County, and VVayv. Yal-
loreign Laws given in Evidence ; as where the Leilbr brought Debt for 'ey, S. C.
Rent agarnfi his LefTec^ on a Demi fc at London of Lands at Jamaica. 2*"*^^-
Salk. 651. pi. 31. Trin. 3 Ann. £. R. Way v. Yally.
(B) Trial per Pais. What Things cannot be tried. See (A) pi. 5,
[^^^ra';//c';/'/j made here to be performed bejond Sea. ]
i»lJf n Man, in ConfiDeratiOn of 100 I. promifcs in London to S. P. Per
I tranfport certain Commodities to Turkey, ill flit SlrtlOU UpOU tijC ''''"="''' ='"'*
Cafe for not tranfpartinir, t'm niai) be tcieD in LonliDn* 13). i 3a* 5° Trhit
15, Banning ^(ZiAZ. lS)eC CUriaUU pi,' 154. '
cites 1 1 H.
7.16. but Brian contra.
2. If a Man be bound to do a Thing beyond Sea, the Bond is good, and ■^••'^ pei*
the Condition void ; for it is not triable in England, and fo in Eftedl vf'^"', '^*
impolfible. Er. Obligation, pi. 70. cites 21 E. 4. 10. Per Brian. w",>2o/
■ to ■pay 10 /.
at Bo ' ■ "1 ■ . ,T , , . „ ., 7^ I r. . T , ^ ^ . . . _
Ibid.
ourdeaux^ tlie Plaintiff' may declare upon all the Deed. But if the. Defendant pleads Payment at Bctir-
X extra Rcgnum, the Plaintiff fiiall be barr'd, becaufe it is Parcel of the Count of the Plaintiff.
3. Retainer in England to ferve beyond Sea^ Ihall be tried in England."
Br. Trials, pi. 93. cites 7 H. 7. 8. Per Huifey Ch. J.
4. If an Mt be to be done all beyond Sea, it cannot be tried in England ; When Part
but where Part IS to be done in England, and Part beyond Sea, it may be "^^''^ ■|^'^»
tried in England. Br. Trials, pi. 154. cites 11 H. 7. 16. Per Vavifor. the^Origi
nal, is to be
done in England, and Part out of it, that Part, that is to be pcrfoi-mcd out of it, fliall be tried here bv
12 Men, if IlTuc be taken thereupon ; and thofe 12 Men fhall come out of the Place where the Writ
is brought. As where it was covenanted by Indenture by Charter-party, that :i Ship fvould fail from
DLuknc) Haven in Norfolk to Miittrel in Spain, and there remain by certain D-iys ; in an Action of Cove-
nant brought upon this Charter-party, the Indenture ivai allevfd to be made at T'hetford in the County of
Norfolk ; and upon plcadinj^ the Iflue was joined, whether the Ship remained at Atuttrel in Spain by the
faid certain Days. And it was adjudged that this Iflue iTiould be tried at Thetford, where the Aftion
was brought, becaufe thare the Contrati took its Original by makincj of the Charter-party ; and fo it has
been often adjudged in the like Cafe. Co. Litt. i6i. h. 4 In(l. 141. 142. Pafch. 2S £liz. S. C. hv
the Name of Gviic v Conllantine. 6 Rep. 48.3. S. C. cited as adjudged.- S. C. cited GodU
204. pi. 292. Per Coke Ch. J. as adjudged, that where the original Ao: was in England, and the fub-
ftquent Matter upon the Sci, the Trial fhall be where the original .\ft is done. Aad (o it wasai^reed
that the Trial' fliould be in tiic principal Cafe there. Mich, n Jac. C. B. Leighton v. Green and
Garret.
5. v-f J Obligation with Condition, that if the Obligor brings the Merchan-
dizes of the Obligee from Norway beyond Sea to Lynn in England, that then
&c. this m.ay be tried in England ; Per Vavifor and Fineux accordingly.
Br. Trials, pi. 154. cites 11 H. 7. 16.
6. A
^ Trial.
6. A Cuntraif made Part beyond Sea, and Part here, fhall be :ried here
in toto. Br. Trials, pi. 58. cites 21 H. 7. 33.
See (A) pi. ^_ jn Debt upon Eoiid, conditioned to pay 20 /. within 40 Days next
''■ after his Perfonal Oeing at Rome, and his Return into England, the iJefen-
dant pleaded that the Plaintiff never was at Rome. It was objetted, tnac
the Iliue Ihould be upon his Return into England ; for the other was not
triable. But to this it was replied, that if one was not triable, the other
inull not, becaufe the Condition was in the Copulative, but that had it
been in the Disjiintiive, it had been ocherwile. And thereupon the
Juftices doubted how the Law Ihould be in this Cafe. Mo. 178, pi.
316. Mich. 24 Eliz. Mullineux's Cafe.
4 Inft. 14.2. 8. Cafe upon an Aflumplit grounded upon a Policy made between Mer-
cap. 22. S_C. chants/or Affurance ot their Goods, whereby the Undertaker didalfume,
in B..R. that flic h a Ship Jboiild fail from Melcome Regis in the County of Dorfet unto
Jbvik in France fajely without Violence &c. And declared that the laid
Ship in failing towards Abvile, viz. in the River of Some, in the
Realm of France, was arrejied by the French King &c. Whereupon Ilfue
V/as taken, and tried where the Adion upon the Alfumpht was brought.
It was inlifted, that this Ilfue ariling merely from a Place out of the
Realm, cannot be tried ^ for whether the Ship was arrefted in the River
ot Some in France, or not, is merely and totally out of the Realm j and
therefore cannot be tried. But it was refolved, that this Ilfue Ihall be
tried where the A£lion is brought. And it was well agreed, that where
the Contrail and alfo the Perjormance thereof is wholly done, or to he done be-
yond Sea, and it fo appears to be, there wants Trial in our Law. But
here the Alfumpfit, which is the Ground of the Aftion, was at London i
and therefore mult necellarily be tried [where the A6lion is brought] or
Ihall not be tried at all. And the Arrejr, which is in Ilfue, is not the
Ground of the Affion, but the Aflumplit, and the Arreft is the Breach of
the A(fiimpfit, and fo mult necellarily be tried where the Aflumplit, which
is the Ground of the Aftion, was made. 6 Rep. 47. b. in ©OUHJillC's
Cafe, cites Mich. 30 & 31 Eliz.
9. Where an Agreement is at Land, and a Performance is at Sea, it fliall
be tried where the Agreement is made ; and faying in Partib' tranfmar'
infra Paroch' is idle. 12 Mod. 34. Hill. 4 VV. & M. 1692. Can v.
Gary.
See (F) pi.
I. 2.
^0 to revcrfe I.
a Judgment
(B, 1) . Trial fy JnfpeB'mi.
IiI3 UBrit of Error to reverfe a Judgment, if Nonage be allCgeli fOC
Crtor, it fljaU faetrien bp Infpcctioiu D» i. 2. ^a* 104 10.
B lft""'6 50 ^' 3- 6. Contra [Civ n cat. Od.ia* bettUCen Scawen and Arm-
Butts v.°Jen- dell. "^Zl CUtiam, UpOlt Common Recovery.
rings.
* 12 Rep. 2. <W^Z fame latU Itt WOX Of CttOCi to reverfe a Fine fOC BOttaffe*
121. S. C— j,^ ^^ 3 .79. 21 ec* 3- 24 b. 2iM» pUio. 22C»3.6. b, 17 ^flr»
f °" l^P: 1 7. ^* 1 7 3ia» in tbe ®tat=cl)ambec Anne * Hangate'^ Cafe i Uibici) fee
s.;c.I_A 05* E» I9et Curianu
verfed for Nonage by Infpeftion. The Infant fold the Land to B. on whom A. the firft Conufee en-
tered ; and B. brought a Writ of Entry againft A. and againft the Judgment by Inf'peftion B. gave in
Evidence an Exemplification oj If^ilnejfes in Chancery, p-oving full Jge ; which the Court thought of no
Force againft the Judgment by Infpection ; but FerdtB paffed with thofe WitnelTes, which was af-
firmed m Attaint. Upon which A. brought a Writ of P.ight, in which Battaile was^oinsd. D. 2or.
a. pi.
Trial 5*
;». pi. 63. Trin. 5 £liz. Clievin, alias, Cheney v. P.iramouie. — S. C. cited Vaugk. 14S. in Jjudiell's
Cafe.
3. Jt" Tenant by Rcfceic pleads tljilt i)Z IS vvichin Age, Jtlttl ^UH IjfsS
age, linn tije otljci* idiy^ tfjat i)t v4 or fail atge, it flj;iU De tiicD Ijp |ii=
ti3cmoju II {i)» 4. 15.
4. t)o if a SJ'^tin 10 vouched as within Ao;e, aUt! fO prays the Parol to Br Venire
demur, aiit! tijc jifttc is, U)|)CtIjcr Ijc Dc iuitijm ^Igc, oc of fall 115c, it f-^^'^s, pi.
iijau t£ txifo bv iiurpemojt, 1 7 ^« 3- 78- ii* 3° c% 3- 27- 29 an; 37. '°-^cites 21
21 (E ■? ?7. Ij 3'- 0» ■^' 5- 54-
5. So it t^ 'W'aZiZ thz JfTtlC i0 upon tlje iI5anaSC upon Aid Prayer.
17 (K*3- 66. h, 29 aiR S7-
6. 3t nit Appeal fi inausljt bv an iniant, tljc Sinfaiti:)) fljall hz tcieti
lip jm'pecttcn* 1 1 fi)» 4- 94- .^f* 31 €, 3- ^.E» i^ot* 18. aOjiitsgeo*
7. 3if All Infant bnnos Audita (.)uerela to avoid a Statute made by § p ,q
him, iictviufc \)z !S lusrout ^BC^ n ii)i5U Uc trjcn iuljetijcc Ijc be iDit!)tn Rep. 43 a.
age, oc not, bp Snipcttjon. 17 €. 3- 76. b* ib €♦ 3- 5- b» 29. b» ■" ^f*"-/ .
nD)u5B'cti. ^. 3 3a. 'id> Cbjppci'^ Cafe. ai3)ulin;cQ 20 e. 3. ann 13 £1^'""'°"'
€. 3- Sliitsttn Cli'.crcla 27 ^ 26. D* 7 €li?. 232. 9. aHjiiQijco pet
Curiam.
8. So m itBnt of Account, if tfjc Wiiz be, toljetftcr Ijc be of full ^ije,
or not, to have the Writ, It {Ijali be tticD bp 3iUlpC{tiCIl1. 18 c*
3- 55- b.
9- So fljal! it be, if tfjC Account be btOUJXljt againft an Infant, ailH be
pleab0 l)W Jinfancp, it iljall be trien bp 3]nrpection. 17 ^* 2. ac=
conipt 121.
10. In all Actions, ii^ the Parol be prayed to demur for Nonage of a
Party, and lll'ue is taken upon the Nonage, it fijall bC tUetS bp 3!n=
fprftiom 29311.37. i9(S. 2. 5ip 122.
11. J\( tlje Parol be prayed to demur lor the Nonage Of OUC |9attP,
and the Nonage is contcfs'd by the other ^SJaUtp, tlje ]3aC0l fljaU tZ 30=
juageo to oeiiuir, UJitijoitt SiiUpcctioit of tlje Iiufant* 29 m. 37- ati=
juogeti.
12 3111 Acconipt againlt a Man of full Age, if bC fays that he was
within'Age at the Time that he was Bailiff, tijiS fljall UOt be ttieO bp
Mpectton; for it cannot nolo be trieo bp 3infpecttan. 17 C 2. ac
conipt 121.
1 3. Nonage was anciently tried hy the Verdiif of 8 Alcn^ but now by In- * This is '
fpe£tion; and full Age by 12 Men. Trialls per Pais. 14. (12) cites mifprinted
Glanvil, lib. 13. capr * 18. torCap.15.
14. Silfife by an bifant againfi an Infant^ the Infant Defendant faidthat Br. Judo--
hc had alien d to the Plaintiff' imthin Jge, and entered. The Plaintifffaid ment, pi. 6-,.
that he -was of full Age at the 'lime of the Alien ati6n^ and fcand by Verditt '^^'^" ^- *^-
that of full jgc ; And became in Perfon, and the Court adjudged him
Avithin Age by Infpeclion ; and the Judgment by Infpection was giv^n,
and held Place, and not the Verdift ; Quod nota, and the Plaintitf took
nothing by his Writ. Br. Verdict, pi. 34. cites 25 Alf 2.
15. Error was biought of a Covumcn Recovery fi/jjered by aninfmt as Lev. 142.
Vouchee., he being now of Age. The Queltion was, if the Infant might 3Kib}' ij.
aifign this tor Error, he being now of Age ; fo as it cannot be done by In- fifdl j""'
fpefliion ' The Court, after Conlerence with the other Judges, it being car. 2. C B.
a Matter of great Concern, declared lor the Satisfaction of all, that this and adds,
Infancy, in lach Cale, cannot be a(iii;ned lor Error. But their judg- ^'"I '\^ ^^'
ment was not prayed, inafmuch as it concerned Honfes burnt down by ^^uj^V/^.g,!^
the Fire in London, and the Parties were agreed. Sid. 321. pi. 14- bf Opinion ""
Hill. 18 & 19 Gar. 2. B. R. Raby v. Robinfon. asaiml the
Plaiiiiffin
Error.. ■ Sid. ^22. fays a Diverfity was taken in this Cafe between the coming in of the Infant upon
Sin-^lc Voucher, which will bind him, becaufe he comes in upon the Warranty of his Anceftor, and his
coming in upon Double Voucher, which will not bind him, becaufe he comes in upon his own War-
.rantv ; Sed non allocatur.
C 16. Ideccy
Trial.
i6. Ideccy Ihall be tried by Infpeftion; for that may be difcerned, but
fo cannot Lunacy ; Per Ld. Nottingham C. Skin. 5. Mich. 33 Car. 2.
B. R. in Frazier's Cafe.
(B. 3) By Infpedion. Procefs and Proceedhigs thereupon;
I. TN Precipe quod reddat, if the T'^iiant vouches withiu ^ge^ and. prays
J[_ that the Parol demur ^ and xhe Demandatit fays that i). is of full
jige, Procefs pall ijfiie by Alias, Pluries ij) Sequatur ; and \^ he be adjudged
cffull jige at the Sequatur, Summons ad Warrant, pall ijjue againft him ;
Nota per Vampage there i quod non negatur ; for when he came for his
Age, he fhall not be compelled to an(wer to the Voucher. Br. Voucher,
pi. 24. cites 14 H.6. 2.
Yelv. S3. 2. An Infant acknowledged a Recognizance, and was infpe£ied, and
b''r*S^^^'^' ^"^j^dged within Age, and thereupon had a Sci.fa. againft the Conufee ;
favs it was ^^^ upon 2. Nihil returned, it wzs adjudged that the Recognizance ponld
aflign'd for be vacated, and he be diicharged. And now Error was brought, becaufe
Error, be- there ought to have been 2 bci. fa. where a Nihil is returned upon a Sci.
caufe there £- and a Sci. leci returned; and for that Caufe the judgment was re-
Js'ihils- and verfed. And now it was Ihewn, that in regard the Conulbr is now at
that it was full Age, and cannot have a new Writ of Aud. Quer. to be inlpefted,
adjudged, that he may have a new Writ comprehending thejirji Infpeffion, and the
that the Judgment thereupon, and the Caufe of Reverfal thereof, and upon all the
£e I^p^Hiti Matter prayed to be relieved. And the Court appointed that he might
M ofm Force, file a uew Writ accordingly. Cro. J. 59. pi. 5. Hill. 2 Jac. B. R. Ran-
Ittt in the dall V. Wale.
fame Court
where the InffeBion was, and does not conclude the Judges of B. R. but that they ought to have a Re-
infpedtion, which cannot be now in the principal Cafe, the Plaintiff being now of full Age ; and if in
this Cafe, upon the firft [udgment reverfed, the PlaintifFi being within Age, had brought a new Audita
Querela in C. B. he ought to he hj/peifed De wvo, becaule it is a wecy Original, and all the former Pro-
ceedings are diflblvcd by the Reverfal of the Judgment. — Noy 16. S, C. andP. and fays, that
another Error was alTign'd, hecaufe a Scire fac. was awarded where it Ihould have beena Ven. fac. and
that the Conufbr came to full Age pending the V\>it of Error.
(C) Trial by Inrpe6i:ion. Hoiid it fhall be roade.
*BrExami- i.T B t^Ht Of Error tO rdJCrfc a Fine fOt tljCWattCpOf tljCPilUUlff,
natioii, pi. A If a Protection be calt tor the Delendant, pet tlJC Infancy mav be
I'c^S P "'^^i immediately, ^m It [WaS fOj aDjUtlljeD ; fOt pCVtltlUCntUrC l)C
Br. Protec- ' uiill couic to fiiU ^gc bcfotc ti)t ^crtt, nno tljcn Ije cannot be nifpcct^
tion, pi. 70. eo ■ auo tijio pcefenc ^nal fljall not be anp ptejuoice to tfjc Dctcn^
cites£E^4 uant, for ije ftjall ijai^e au faueo to Ijtm tuijen tije 19acol iss ittiiUcD. *
s°p. Br.Dif- 21 e* 3- 24. b, 21. air. pu 10. aojiioQ; 0,
ceit, pi- 25-
cites 5 E. 4.40.— S.P. Co.R.on Fines 17. — UponError brought toreverfeaFine forNonage, the Infant was
infpected, and WitnclVes produced who proved the Infancy. And it was ruled, thattho' hedied afterwards
before his full Age, his Heir might leverfe tiie Fine. Mo 844. pi. 11 39. Pafch. 15 Jac. iSttcfetolclj'fif
Caff. But the Reporter fays, Quaere what .'\dtion he fhall have.- See Tit. Fines, (D. lo) pi. 5.
and the Notes there. — So in cafe of an Adjournment upon a Writ of Error. See Adjournment (A ) pi. 2.
r~v«A-/0 2. If upon Infpeftion the Court bC \\\ doubt of the Age Of \yi\\\ inljO
*^°i573- * titingis tlje UDrtt of €rcoc to reijecfe tije S^m, tljep map inform
^"i^^ry^J themfelves thereof by Proofs. Jo (£;, 3. 6.
3- ^{je
Trial. 7
3. '<E\)t COUtt may examine the Intanc upon a Voter dire, whether
he be within Age. 1 1 |)^ 4. 15. 21 C* 3- M- &♦ 21 ^fl"* pL 10. 25 C»
3- 44- b* . .
4 '2Dt)C Court may examine his Godfather and Mother. 2X C* 3»
24. ij» 21 air. pu 10/
5. JW a Precipe quod reddat, if tljCCeiWUt fay's, by Guardian, that Br Venire
he is within Age, and in by Defcent, and prays the Parol to demurr j ^'^^'P';^"*
aut tijC Demandant fays, that he is of full Age, and prays that he be B^Age p1
view'd bp tljc Court, it fljiiU bt commanDED to tlje «j5uarman tOzs^cfL'sc.
\)ci\}t tlje Infant at a ccrtam IDav, voitljoitt txrantins anj) mxit of
Venire lacias. 24C3. 28. ^OUltlffCO.
6. But If a ?0an be vouch'd Ullttjiu ^SC, and the IlTue is upon the S. P. And/,
Infincy, a Venire iacias fljall (ITaC tO OC UlClU'D. 24 (£♦ 3- 28. 19 (£♦ T" ^"'.
2. li)i-otcction I II. for it fljail be anjuugcD lip ijnfpeftlon* I'^iZ b"
Venire fa-
cias, pi. 20. cites S. C. Br. Age, pi. 15. cites S. C. If the Tenant in a Real ABion "vouches A. '
as Heir, zvithin Jge, or if the Tenant for Life be impleaded, and he -prays in Jid of A. in Rever-
fion w ithin Age, arid prays that the Parol tvay demurr &c. in the one Cafe, and in the other, if De-
rnandavt replies that he is of full Ac^e ; this fhall not be tried per Pais, by reafon of the great Delay to
the Demandant ; but a \\ rit fhall go to the Sheriff, Quod Vcnii-e facial tali Die pradift' A. ut per Con-
ipcftum Corporis fui conftare poflit prafatis Jufticiariis fi prxdi6tus A. fit plena jEtatis nee ne Sec. 9
Kcp. 30. b. 51. a. in the Calc of the Abbot oi'Str.:ta Marcella, cites 34 H. 6. 43.
7- 3lf an Infant appears by Attorney lit aU ^CttOU DtOUffljt againU It ^^^^ ^e
I)im, inuiljiflj Ije ou-jl^t to Ija^je appcar'o lip 0uar5iani ann aftcc ^"^^f^j7 ^''^
Judgment is given ag^inlt him, being within Age, aUH tljCn in a J©nt and"no7by
Of error He aliigns tnis for Error. ^1)10 fljall llOt bt ttlCD Dp :jnrpEC-' the Juftices;
tion, imt bpiaroofjS; for if l)c be noiu of full age, pet tijc luugment ''^^"'"^ the
fljall be re\3ci-retiv <^t. 39 CK Q5» E. betlucen 4)vy/'//n' and Ramie, 'Jj^^'^s^^^
aO)Ulin;cii m USrit of error, ann firft Ju»sment retierfeb. Attorne"y t
the Aa of
the Party, without Examir.ation of the Juftices, and yet the appearing by Attorney is recorded by the
Court ; and therefore if the Plaintiff m;d<es Attorney in Court, and the Defendant fays that the Plain-
tiff is dead, and one appears and fays that he is Plaintiff, which is denied by the other Party, the Juf-
tices lliall adjudge whether he who now appears be the fame Perfbn who made the Attorney in
Court.
8. [So] Jf an Infant brings J©rit Of Error by Guardian to reverfe a
Judgment giijcn agaiull Ijim, in uiljiclj fje appeareD bp attornep, anO
alfitjn^ for Crror, tijnt Ije ina^ uiitijm age at tbe ®ime of tlje jiuOff^
nient rtincn agauift ijim, fje appcaruw bp attornep i t\M fljall not be
trteH bp Jnfpcction, but per Pais. ^r» 1 1 Car* Q5» lEv» between
Scaweu and JnmJei, pet Curiam, (t C|9icl> Ciir* atijubOyet! accorD^
inglp, ann a common Recovery rePerfeC accorOinGlp tor tljigi Crroc
initljout Jufpection* "But it luag alfigncb for error, fcilicet, tijat
^e tua.s taitijm ^iiije, ann tlje Defendant being wam'd, made Detkuit ;
an5 for tlji«s Ci3atter, bp [Conftruction of] tlje tauj, [it] luajs con=
fcfsi'O bp Ijis Default. :Jntratur %x. n Car. Rot. 3 >5- .
9. In all Cafes where the Matter may be tried by Examination, or ^'■- Trial,
Difcretion of the Jullices, they may, if tljeP SrC \\\ OOUbt, tefUfC Jt, g' j"' "'"
ailD compel the Party to put it in Trial of the Country. 21 3|)» 7. 40. Trials per
bp all tlje Juftices* Pais 14 (iz)
S. P.
10. [As] jf Infincy bc to bc trieli, tljo' propcrlp it iss to be tricU bP And fo in
Infpection, pet tlje Court may reiuie to trp itj_ auo couipel tijepartp ,/P^",„
to trp it bp tlje Countrp. 13roohe, CCitic (itrpall, 60. in abrioijuio; And Brooke
tlje faiO 1500U of 21 fi). 7. 40. taitlj, it fecni.5 tijat it map* fays, th«
this feems
to be of Damages where the Defendant confiflcs, or is condemn**! by Default, or the like.
II. Uf an Infant brings ^rit Of Error to reverfe a Fine, and is in- Co. R. on.
fpeaed bp tlje Court, and found within Age, tljC Judgment may be re- lI^^z'sP
verfcd
8 Trial.
veried ilfter his full Age. 27 SIT. 53- P* 11 CiU* 13. 5R. faCtiOJeU
Dame Bartue and Bart lie. atjju5fic5, aiiB tlje Jfutc reiictfcD accoi'ti*
See Tir, Er- 12. 3jf 911 Infant fullers a common Recovery by Guardian, as Tenant
ioi-(M)j3l^ to tiie Precipe, and aftCr within Age brins^s UBllt Of Error to reverfe it
cro c>o- for his Infancy, ({iBmittint]; tljiU It 10 Erroneous) j)ct tl)e3infanc5.' (Ijali
pi. s. bv the not be tricD bp Sjnfpection. p* 9 Car* 13. E. bctiusren tlje Kari of
Name of Ncivport and the Duke of Buckingham. 9tl)U»JffeD PCL* CUtUim, tijflt
5''wnrf <^ue IBrit of CrrOC may be brought after his full Age 3 bj) lUljiCi) It IJS
b iir S'Tu inipiitli, ags it fccni^, tljat if it jjau been brougijt luitijin age, tlje
igiiomaV, 3iufaiu7 fijoullJ not be trieti bp Snrpectton, ajs in tlje Cafe of a fine.
iecms to be
S C but the Point of Infpeftion does not appear. Jo ;i8. pi. 4. S. C, but the Point of Infpec-
tion does not appear Hob. 196. pi. 249 S. C. bv the Nime of JBlOUtU'S taff ; but S P. does not
appear. Ket. 1 7 1. S C. in much tlie very fame Words of Hob 196. Ley. 82 S. C. in totidem
Verbis. Keb. S92 pi. 56. Pafch. 1 - Cur. 2. in Cafe of JSabj' >K KobtnfOll. which was on a Re-
covery fuffered by Infent as Vouchee, Twifden J. faid, that this Trial niay be by Infpeftion, or pe;;,,
Pais, as it mav be more or lefs dilatory. And Keeling faid, that the Difference taken by Twilien was
an excellent one, and will go a great wav, viz. that the Trial may be by Pais or Infpedtion, as m.iy
beft prevent Delay ; and faid it was fo agreed in Newport's Cafe, the' not reported by Cro. C. 50-.
9 Ren. qo. 13. 3!f an Infint brings 311 Audita Querela upon a Recognizance, or
Ihe"Abbot°^ Statute acknowledged by himi'elf, tO abOiU It fOC l)i03!nfanCp, 1)10 JH'
of Strata tiincv AjaU be ttico bp 3nrpectton. Co, i 31nftit«te0 673.
Marceiia —
S. P. 10 Rep. 45. a. in Mary Portington's Cafe.
14. If a Man prays his Age by Guardian^ and the Demandant fays that
he is of full Jge, pnlf ; by which Venire facias to he view' d ijfiics, and the
Jujlices adjudge him of full Age by In fpe if ton; this is not peremptory, but
a refpundias Oiijler i tor it is tried by view of the Juitices. Br. Peremp-
tory, pi. 69. cites 33 E. 3. and Fitzh. Ili'ue 14.
15. An Infant brought Writ oi^ Error to reverfe a Fine levied hy htr oi hex
Lands, rxihilji fhe was a Covert Baron ; and the Court was moved that flie
might have a Guardian affigned to profecute for her^ and that Ihe might
be infpeSted by the Court, and that thtlnfpe^ion might be recorded ; and
an Affidavit was made by one in Court., that he knew the Infant there pre-
fent, and the 'Time of her Birth and Baptifing.^ and fwore the 'Times precifely ;
the Church-book was alfo produced in Court, and proved by Oath, wherein
the Time of her Baptiling was entered, and that Ihe was the fime Perfon :
Upon which Ihe had, by her own Eleftion, an Attorney alfignedfor her
Guardian i and the Affidavits were ordered to be recorded, and the In-
Ipection to be entered, and a Scire facias awarded againll the Heir. Stile
456, 457. Trin. 1655 Sherlock's Cafe.
16. An Infant, who during Coverture joined with her Husband ih
levying a Fine of her Lands, was brought into Court, and infpeffed, and ad-
judged tvithin Age. Whereupon a Scire facias ilfued to the Tertenants,
who pleaded that pe was of full Age at the Time of the Fine levied. IJfue
was joined, and a Trial had at the Alhfes, and a Verditi for the Plaintiff'.^
who now came into Court, and prayed lor Judgment upon the Verdict i
But per Glyn Ch. Julh The Court is to judge of the Infancy, and not the
Jury., and therefore you have not proceeded duly, but the Proceedings
do no Hurt ■> lor we judge flie was within Age, therelore let the Fine be
reverfed, Nili &:c. Nota. Styl. 472. Mich. 1655. Vidian v. Fletcher.
17. In Error to reverfe a Fine for Infincy, it was moved that the Party,
being in Court, might be infpefted, and the Inlpe6\ion recorded i and a
Copy of the Regijler-bock was f worn to be true, and feveral Affidavits of het
Age. And the Court ordered the Infpe£lion to be recorded, and faid that
the IJ/ueot her Infancy may be tried at any Time hereafter, tho" foe comes of
Age. Vent. 69. Pafch, 22 Car. 2. B. R.. Coulins's Cale.
(C. 2) Trial
Trial.
9
(C. 2) Trial fy Rccorcl. Whether by Record or Pais.
i. A Matter of Record before the Juftices (Ijil'U llOt ftC pUt I'll CrWl S. P. Trials
jt\ per pats, luijctljEc it be fo, as^tije iaecora pioijcs, oi*not;p^'-p^'^i°-
&iit it fi)all be tnen bP tl)c EccacD itfeit; n t>, 0. 42. oj) all tije v^^ttt— .
3iiif!iccsj. ^o rp, 6. 10. b> ■ l^:':,i
ii brought
by BIiishaiidAtti^jnfe, after Ifflie joined, and before the Niji Prins, tie IFife dies-, tlieNifiPrius proceeds ;
the Pofen of tlie Xifi Prius recites, that at the Nifi Prius, the Husbar.d avd If'ij'e uppe.neii, (the Verdidt
bcirg found tor them.) They have Judgment. /Ti-cur is brought, and h iij]lg>ied in the Death of the ll'lfe
Lefcre the K?Ji Priits, and upon this an Kluc is joined, and found for the Pi.iintitf, in Error ; Yet Tud"--
iD(.nt was afhrmcd ; for the Error affigned was contrary to the Record. And in this Cite, the Recoi'd
niuft be believed, and not the Verditb ; for if an Averment (hall be received againft a Record, tliat ic
may be reverfed, by the lil;e Reafon an Averment fliould be received aguinft the Record of the Rever-
ftl, and lb produce an Iniinity. //'tlie Error had been affion'd, that the if-^ife dkdpe-ndiiig the Writ and
ithadbeenfo found, judgment had been reverfed. Jenk 99. pi. 92.
But upon a geveral Ifftie, a I erdiil which is contntry to another Record, fliall be allowed ; but not a Ver-
dict found agaifi/t the fame Record upon which the Verdict is given. Jenk. 99. pi. 92.
4 Rep. 71. b. Trin. 3; Eliz. C. B. in i'vnOCS'.s Cafe, rcfolved that Records import Verity in them-
iclvcs, and conclude all Perfons to deny any Thing appe.uing within the Record ; but an Averment
confident witli, and which does not impugn any Thing appearing in the Record, may be taken. ^
Co. Litt. II-. a. 216. b. S. P. Bui a Record may betried/>er Faij,in Cafe of Neajfuy. Lat. Sd. in Cafe
of i^fcte lU ©onnp, cites 14 H. 6. and ii H. 6.
2. 3if tIjC !J(rUC be upon an Indi£lment, or Acquittal thereupon^ it ''^- ^ T'^^'s
fijail 6c trien b}? tijcUecoiQ* 20 ip. 6. 10. b. p^^^^ ^'''- ''•
3. Jn Per quae Servkia, if 'Ceiiattt fiys that he did not hold of the S. P. Trials-
Conulbr the Day of the Note levied, tljljj fljall bC tnCD UtZ BUlS, 1 1 P^"" ^-"'s- 1^-
Ip»4-72. b. ^SJ
4- 3!f tlje Wlit be upon Allowance of a Protefllon in Bank, it fljall S. P. Trials
be trico b^ tlje iACCutti* 20 jp» 6. 10. b» pei- Pais. u.
(9)
5. Jlt I^ebt upon Recovery in other Court of Record, if Nul tiel S.P. Br. Re-
Record be pleaHcOj it fljail be'trieo bj? tijcKccoro, ano not pes mi^, ''°"^' p'^^-f-
19 w. 6. 80. .^ j,(,_
Br. Dette,
pi. 94. cites SC.. But per Littleton, if a Man recovers Damages in j^ncicnt Demcfnt, and brings
Debt, Nul tiel Record is a good Plea, and it fhall be tried per Pais ; and the Defendant fliall not
wage his Law. Br. Record, pi. 8. cites 54H.(). 49.
In Debt, of Recovery of loo A/arks Damat^es in a Court of ^indent Dcmefne, or other Court Baron, Nul
tiel Record is no Pica, but No fuch Recovery ; and it fhall be tried per Pais. (>jod nota ; for it is
only Matter in Fail ; quod nota ; and the Plaintift' (liall recover, notwithllanding the Rolls arc burnt.
Nota. Br. Trialfs, pi. 51. cites 9 E. 4. 4?,. S.P. For tho!e Courts are not Courts of Record.
Br. Court Baron, pi. \6. cites 9 E 4 42. S. C. Br. Failer de Record, pi. S. cites S. C. Sr.
Record, pi. 52. cites J>. C Br. Variance, pi. 52. cites S C.
The County Court, the Hundred Court, Court Baron, and fuch like, are no Courts of Record ; and
therefore the Proceedings therein may be denied, and tried by Jury Sec. Co. Lict. 117. b.
6. 3!lt Debt againft the Warden of the Fleet for an Efcape, if tljCjlfde s. P. Trial!*
toa0, whether he was imprifoned upon the Execution, or for other Ciule, per Pais. ir.
It njall be trieQ by tije iAecorti* 1 1 ii). 6. 49. b> 12 fx 6. 3. (9)
7. 3ifaSheritt>eturnsCepi Corpus, f qtlUD laUgUSDUd ef? (Ju 3113 s P Trial U
after fulters him to go at large; m ail Cimon aijamft tiK' <^'1)CI1(F IXiC pe-Pais. lo,
tIjIlSi, if he fays that he never was in his Ward, It (Ijilil bC tflfD til' tlJC i'^'i
HCCOtD. 12 0* 6. 3.
8. But if a eijcriff ttil'.e^ a c^an bp a Capias, ann returns no Wric,
or Non ell inventus, ;ind futters him to go at iarge, tijid Taking iTjall bv
trien per pai.si in an ^ftion asnina tije 5tl}crift» 12 ^x 6 3.
I o Trial.
S. p. TriaVis p. Jf Jl J^^^'" julliiics an Imprilonmenr, becaufe he is a Jultice of the
per Pais. u. Peace, tl)i0 ^attft fijaU fcc tucH fci' tljc Eccorn^ aiili iict per I3ai0.
<^) 12 I). 6. 3. b»
S. p. Tiialls ic. 3f a Challenge lie to a Juror by one Party, becaufe there is an
per Pais, ic, Action &c. depending between the |uror and him, aiil! tIjC other iays
^^' that it is brought by Covin, tljlg fljail be tUetl fcp tljC tlVlOrg ; fCf tljO'
tfje Scticn be ot'EecoiD, pet uyc €oWi i^ iict^ anti t'oc Co^iu onip
!j5 m £\iiefiictu 3B ip« 6. 6. 43 M, 46, nlijUcrieu*
S. P Tiialls 11- 3n ^4:ire lacias by the King, to have Execution of a Judgment in
perPais lo. Qjaurc Jinpedit, If Leicndant pleads that alter the Reco\ery the Kirg
*.S) pielented thereto, and lo Judgment executed j aUtJ tIjC Hfue is, whether
the Kingprelented by Caileot the Judgment, or by Caufeof aVoidance
after the ieath rl J. S. vvhov^as pielented by a Stranger alter the
"Voidance upon whicn the King had Judgment ^ tljlg' fljall be tnetl \\tt
pai0, anB not bv Hecorti, tW it usas Cam tljat tt isi of Eccorti ut
(Jiljaiicci"}) tur UJljiit it aule tfje m\^ prefcnten* 3 2 C* 3 £iuare 3:m^
pCDlt 2. at))UU[fC3.
S. p. Trials I2» I3U f*ebc upon an Efcape againlT: the Mayor of the Staple, for fuf-
perPaisii fcringJ.S. in Execution upon a Statute Staple, to go at large, if De-
cs')——* S""- tendant fays that he was not in Prilon upon the Execution, but upon a
iITckJs H'li^t there, tljis JiTtse fijalJ U tttcu pcr pat0 ; ISccaufe tije Defen^
c taut j^ to ceituptijc UecorU, if Ije fij.u! lie tricB b-) it, UMl) ijj not
rcaioiuibic lu ijis om\ CaiUc; Jfot ijeranUEntute m tuiii certifj? it
talteiy* 6 tp. 6. 20. * 1 1 i), 6. 49 b. 12 ir), 6. 2. b* aiijUDgeD.
S. P. Trialls 13. JftOC ^IVUC b? whether a fuppofed Statute Merchant be true or
per Pais, n forged. It lljaU ue truc bp tljc Eecorn teljere it iua0 aaaiotelctiser!,
if ttje 99avot * luijo tooU it be aliijc, tfjougl) be be out oi tlje Cffice
noiu i Jfor It i0 a x^atta* of KccorD. 17 (£► 3- 49- b*
14. So if the Mayor be dead ; fOt it COntinUC0 fl ECCOtU triable*
Contra 17 ^. 3 49- b»
Br. Air. pi. 15. Earl or not Earl (|)all be triCD b? HCCOtD, ailH ttOt pCt 1^110 ;
241 . cites s. '}5gcaitfc it i0 of Eccorn* 22 m. 24.
TrhT p? ^6- ^if f '3^ ^if^"^ ^^ whether J. S. be a Baron of Parliament, it OUgl)t
119 cites s. to be trieo bp EecorO.
C — s. p. 17. 30 It map be certified by Writ out of Chancery. 48 ^IT* 6. 48
Trialls per (|P^ 3. 30. b*
laHoVnor i^- ^'^'^ t^j^te it Uia0 eiiQuircti further by Triors, ^t fcem0 it tua0
Earl, Baron to make it clear.
or notBaron,
ihall not be tried per Pais, nor by the Juftices, but by Wnr of tlie King. 9 Rep. ;i. a. in Cafe of
the Abbot of Strata iijarrella,' cues '6 Kep. 55. a_ The Countefs of Rutland's Cafe,
But CctiTitefs Sec by AJ.trri.-^ge fliall be iried per Pais ; For their Dignity accrues to them by Matter
in Faft. 6 Rep. 55 in the Countefs of Rutland's Cafe. It was admitted by the Court, that Peer
or no Peer is triable only by Record ; L'lit tint is nvhere a Man is made a Peer by l{'''rit only., -which was
the ancient Method Ard in fuch (.::'.fe the Plea fhould be concluded, Prout patet per Recordum.
But in the principal Cafe the C'rcatiun was by Patent oj Record, v.hich was brought into Court, and proves
itfelf,(vi2.)by the Great Seal. Beiides, here are feveral Defce/its, which are Matters of Faft, and tri.iblc
only by the Country, fo that the Dettndani did not claim the Honour from the Crown immcdiatelv,
but only mediately, as Heir Male delcciidcd from him to whom the Honour was firft given, and there-
fore he has \vell concluded his Plea with a Hoc jiaratus eft -cerifcare ; But if the Defendant was //be
•very Perfoti ennobled either by Writ or P.ita.t, then there would be nothing to try but Matter of Record.
Adjudged. Carth 299. Hill. 5 W.& M. B. R. Ld. Banbury's Cafe. ■ -See 12 Mod. 56. to 65 S C.
,. Ld. Ravm. Rep. 14 S. C. accordingly, and Holt Ch J held, that the Plea of Prout patet per Re-
cordum would have been ill ; becaufe it cannot appear by the Record, if Nicholas was the Son of
"William or Charles the Son of Nicholas ; and the Books of 22 AlT. 24. Br. All. 240. ought to be «»-
derfloodoj Peerage created by I f''> It ; For there was no Baron created by Letters Patents till 11 R. 2.
And as to an Objeftion that the Defendant ought to have produced a If'rit out of Chancery &c. he an-
fwered that thefe are f.t^f/w.n^ Writs -^^d Writs of Privilege, and were not 0} Neceflty Liit j or Expe-
dition ; And fuppofing the Defendant might have had one, yet it is no Confcquence that the Omiifion of
it flioutd be a Determination of his Peerage ; And that in this Cafe the Defendant having pleaded
the Letters Patents of Creation to his ^i'ncef or, mude a Difterence between the principal Cafe and Prece-
dents cited on the other Side, where no Letters Patents were pleaded, fo that in thole C&fcs it could
not appear to the Court without fuch Writ that the Party was a P^er. And the Plea was held good
per tot Cur. 2 Salk. 510. S. C. accordingly.
J 9 Abbot
V.
Trial. 1 1
19, Abbot or Prior, or Not Abbot or Prior, fljall bJtdeQ UCC l3ai|Si Br. Trial, pi.
'Bamilc tljej) well \iz in tljc Comifaucc of tije Countci?* 22^'? "«*^-
•Sfl*24- Trench and
Claim.
zo. 'iI\)OllVl\) tlje Inrolment of Letters Patents, or OtIjCt (!0att0t Of ^"'^- ^^^
ECCOrlJ Ujalf ^ llOt I)ctncopct:i3ai0, pcttlje r Time when tfje 3iv ?! n^' p
rOhUent lUaSi niaOC of a jUeed inrolled according to the 27 H. 8. fljall Hi Lilt v
U ttieo per Paiij* Co. 4. Hifid^ 71. b, jfor Op tW tljc Kecoru 10 Hynd s c
acUnooiicDgcvi, aiiD tije <^um only ui Jfliic, — 2 Roii.
Rep. no.
Mich, i: Jac B R. (lllcrflfpb. ifiliSkcr. It was inflfted, that by the Statute 27 H. 8. the Time of
the Ini-olment w:is made Parcel of the Record and Inrolment, and cannot be tried by Jury, but the
Coui-t held contra, .ind font to die Inrolment Office to enquire the Ufage, as to the inferting the
Timeoftlic Inrolment; who certified, that hefore the itj Eliz, when tiie Inrolment Office was ereft-
ed, they never ufed to infert the Time, which now they do, and the Inrolment of the Bargain and
Sale in the principal Cafe was made in 5 lilii. whereupon the Court referred it to the Jury upon the
Evidence produced by the Plaintiff, wliether it was i'lrolled or not.
* S. P. bur bv Certificate of Record. Br. Trialls, pi. 5)4. cites 9 H. 7. 2.
t S. P. Trialls per Pais 11 (9).
21. [As] 33fit be pleauen, fm Bon w^ttm talc Kccortittm, pec
(lUOD iiqiicue poteft, toat E. 2. was icifcti Sn Snxc Cocone at tije
mn\t of tijc j^ateiit, ttjis fljall be trico pec ipm i ODCcaule it gocisi
to a ccr'uim ^nm. 9 i)' 7- 2.
pi. 74-
it was moved in Error on a Judgment in C. B. that whether R. S. was Sheriff fuch a Day
fliould be tried per Pai.s, and not bj the Record of the Patent , Sed non allocatur ; For it fliall not
he intended, unlefs it were fhewn to the Court by Pleading. Cro C. 421. pi, 12. Mich. 11 Car. B.
R. Smith V. Smith.
But where a Man fat in Reifijfeijln as Conner, and was rot Coroner, by which Writ of Error was
brought, and this al Ic^cd for Error, and IJiie taken if he was Coroner at the time Qpc or not, this per Cur.
fhall be tried per Pais, and not by Record ; For tlvitrrh Coroner be mads by M'''ril, yet many times the
Writ is not returned, and therefore fliall be tried per Pais. Br. Trialls, pi. 147. cites 32 H. 6. 2-
S.P. Jenk 92. pi 74.
23. SlnUttUiap bealfo trietl by Examinauon of the Sheriff him- S. P. Br Ex-
r^\^ amination,
pi. 2<i. cites
!> H. 4. 20 9 Rep. ;i. b. in Cafe of the S'bbOt Of S>trata SParfCUa, in a Nota of the Re-
porter, cites 10 H. 7.4. b.
C. 421.
S. C.
24. %\\ a wvx of error to rdjcrfc a Julsffmcnt in a f ormeuon, ci-o. c
if tlje laiaiutiff affliw.si fur error, tljat uioeie tIjc mmz facia0, p^- ''.. ,
luljiclj iLias rctuiuablc 15 a^artini, uiass returncn bu 3. S>. as %\)Z'- !!!!!l'"sel-
rittoftbc Ccuntp, tljat Ijc luasnot tljcn ©ijerlff, but 31. D* anD Tit. Error,
tije Dcfenoaut f-iitij tijat I.. %>. 'luaisi a'ljeruf lotij of Bo^eniber, (tlje (X) pi 4- s.
Eetiirn Da? S;xni&' tlje astlj Bo^jember) tuljicij uias 18 Dap0 before '^■
tlje Eetiirn, [ano 16] rcatij? to alicr bp tfec lettcris I5atent0 unnec
tlje ©rear S)ealcftl)cfame ©ate Ijcre fljciun fortlj> 'dio luijicijtlje
^plaintiff replies, tljat Ije was not Sheritt the loth Day of November,
tlji0 fljall be tcico bPtljc EecorO, anti not per |3atsi, ann tbe njetntna;
of tlje letters ^^atcuts tljcmfduesisa 50^0 Ke:OtD far <Ir(al tljere-
of, tuitljout a i^rit out of tlje Cljanccrp to ccrtifp \x, tijouglj tbe 3P
rue is upon tlje Ct^attec upon tlje Cinie ; ifor k ihaii he intended,
that he continued Sheriff till fomething be Ihewn to the contrary.
99iclj* II Car. 15* E. betuicen yw'/^ and Smith, aniuDgeH \\\ iBrit'of
error, auo tljc ftra Juosnient affirmeu accorrmigi^ 3Intratur*
99iclj. 10* Eot. 192. ^ ^ ^
25. But in tljefaitJ Cafe, if Ije tatl fain, that J. S. was Sherilfprout ^o. C 421.
per Recordum in Scaccario remanens plenius liquet, aUU JITUC 10 tflfeen bj'tS^P do^s
^ ui not appear.
1 2 Trial.
Nui tiei Record. €{jis cnniitt 0£ triiu iju njci'jinB' of tlje lcttei'53
patcntc unccr Seal, but it oms\}t ta ic ctitificti t.p Mittimus out of
Chanccrv. $?5. n Cai% 1% E* Itl t{jC fillD CillC Of ^w/?^ and Smithy
Br. Certi- 26. jf A Birth be alleged in a Place in Scotland, and that it i,^
ficate d'E- vvithin'"the Liteeance ot rhe King of England, tljlS fl/nUlje ttiCtl Im
"Vcite's s c Retorts i jfcr it 10 cnrcitcB U)!)iU place 10 toitfjiu tijc Ltesennce, ot
TheifTue [luijTttjcrJ nil S^cotlano [!0O 42 e* 3- 2. ti« 3-
vas, whe-
ther a Man born at Rofs in Scotland be alien or nor, and there Thorp J. faid, that he who wnjild
benefit himfelf in this Matter, ought to get a Certificate out of the Rolls and Records of the Kirg,
whether the Vill of Rofs be within that Part of Scotland which is Parcel of England or not. i.
P. Trialls per Phis II. (9)
27. 3if in 2 Writ of Right tt Fine upon Releafe be pleaded in Bar,
UlIjIC!) 10 DCniCn, ailt5 tljCrCOf tljC parties put tOemfcrOCS fuper Re-
cord um Curia^, It fljilll tiC tHCtl bv the Court, n J)» 3. l^Ot* 7. a^--
juuffcri*
Hob. 210. 28. Silt a Scire facias UpOU a EeCOgnBilUCe or Bail fot !3. iTtljC DC-'
Mich "'i fci^^ii^t: pleati.s, tljat aftec tljc aiuQBinciit, tljat 10 to fap, fuch a jjay
Tac^ S C ^^- ^- <^^"^^ '■'"^'^ Court, and render'd his Body to Prilbn in Execution,
and fays, that in Difcharge of tijC 15atl, and the Plaintilf rciufed to take him in Exe-
the Truth cution, anb tijc i^Iamtiif l!enie0 ti)at Ti* rciiDer'O Ijimfclf (tc* t\)\^
ys that A. Qijjyijf fQ 532 (fjf Q {,p j.|jg i^ccoru, [ancj net pec |9ai0 ; for uiijen {je
himSf but tcntier'O Ijmifclt in Qircljarirc of tijc Ooail, it ousijt to lie entcc 0 of
not any Re- ECCOrD* t)ODart'0 EepOtr0, 283. betluecn ty^^Il^J and Cunning.
cord was
made of it Mo. 888. pi. 124.9. Wolly v. Davenant and Canning, S. C. accordingly'. Trialls
per Pais 11. (9) leems mil\irinted, but to mean the S P.
In Scire facias againft the Bail tl-.ey plead, that the Principal render'd himfelf in DLOrharge. It was
iaid, that theEntrv of Reddidit le in Exonerationem &c. fhould conclude with Prout patet per Recor-
dum, and not with Hoc paratus eft verificare. Keeling faid, that ibo' Commiltituy he entered upon the
Record, yet the Party is mt e/iopped to fty that he is not in Prifon, and it fhall be tried by the Country ;
and the Record is only Evidence, and not concluiive. Sid. 216.pl. lo.Trin. i6Car. 2. B. R. in Cafe of
JSliddleton V. the Bailof Silvefter. Keb. 761. pi. 63. S. C. adiornatur. Ibid. Si 5. pi. 95. ISlid-
cileton V.Talbot, S. C. And the Court ag^-eed, that it ought to have been Prout patet per Recordumi
and Judgment for the Plaintiff, nifi. S;e Tit. Record (O) pi. 5. Alanlbn v. Butler.
Hob. 244- 29. Jn-Xrefpalss of Faife imprifonment, fot impnToitiiig f}im at
in tlddem ^ ^"**°^' tt' iOetcnDaut )tmine0 becaufc m\m iDljercof 29emorp $c.
verbis, ad- tljCtC Ija0 tceu a Court of Record at 13rilt0l every Monday beloie the
Tac. staf- counnantieri, arccften ijuu $c. itaijcrcupon dje plaintiit tool? niue,
■ford's C-afe, that ]. S. did not levy fuch a Plaint, prout &:c. '^i}10 OUgljt tO bC triCH
? ,S . '■"^- per pai0, ani3 not lip tlje Eecorn i becatife tlje Matter of Record is
cordincir- '"'^'^ ^^'^h AJatter in Fact, tO iDlt:, tCfjetljet tfje COUtt tUnS MXi, aUD
s c. cited tlje plaint lebicn accorBina; to tije Citaom anO libertie0 of tljeCitp,
Trialls per iDljiclj 10 a ^diUt Of jfact ttiaulc per ]dm* Mo tljc iebpinn; of a
i^ais, 10. (8) }3ijjint i0 nuc to tlje fiiina' out of an ©risinal, niljidj i0 not of Ee-
com till Eetutn tijcreaf ui Court, lpobatt'0Ecport05 3°i- bctUiecit
.J^eter and Stafford., aD)UllljelI.
30. ^Vhethcr an Abbot had Goods of Felons or not, is triable per Pais.
See 9 Rep. 29. in the Cafe of the Abbot of Strata Marcella, a Note by
Coke, where he cites 8 E. 3 xo. b. ii.
3 1. In Affife it was agreed, that it fhall not be tried by the Aflife How
long time the Land'-iXias in the Hands of the King by Ward i for this falls in
Record: But it may be tried per Patriani i:^^^' much Land was in the
Hands of the King, and How much Not. Note the Diverlity. Br.-
Trial]?, pi. 65. cites 10 Alii 2,
52, ^Yhcther
Trial.
13
^2. Whether it be •Ti},ic- of JVai- cr tiot^ is triable by Records, and N. B. I do
Judges of the Courts of Juftice, and not by a Jury. Molloy, cap. j/ipt find this
S. 9. cites in lM.irg. 14 E. 3. Tit. Scire f.icia.Sj 122. between Mortimer pit'^^h o" Bl-
and the E, of Lancailer. Tit. Scir-
f-«ia.i , nor
IS there any I'acli Year in the Year-Book.
33. Ont/a-jiry is Matter of Record ich'ich cannot le p-operly tried per Pai's
hy Indi[iy,n'ntj but ought to appear of Kecord. Er. Corone, pi. 87. cites
±2 Air 55.
34. If the Iirue be whether a Majwr l>e Amient I)(Piefm or mt, thisfhall Hob. 188.
be tried by Doomfday-Book. 9 Rep. 31. in the Abbot of Strata Mar- p!.- .^5°-
II J /- /■ • \ iV . . Tnn. i5Tac.
cellars Calc, cites 22 Ali. 45. Anon. Upon
ihewing
Doomrday Book, and no fiicli Manor appearing to be ancient Derrefnc in the fame County, tho' one of
a IiKe Name was there found in a ueighbouring County, the Plaintitt was barr'd.
35. But if it be whether certain Lands ^re Parcel or not, it Hull be
tried by the Country. 9 Rep. 31. in the Abbot of Strata Marcella's
Cafe, cites 22 Ail! 45.
36. The Trial of Ni/l tiel Record fliall be by Record, and not per Pais. S- P Br.
Quod nota. Br. Trialls, pi. 40. cites 19 H. 6. 52. Trialls, pi.
^^ 3 r -r ;' ^ loj. cites 5
E 4 5 He ^ho pleads Kiil tiel Record fhall conclude, Et hoc paratus eft verificare by the fame
Kecord ; and it fhiU be tried iy the Certificate of the Pacard. Bv. Record, pi. 51. cites 4 H. 7. 5.
It ihali be tried by itielf only, and not by VVitnefs, Jury, or other wife. Co. Litt. 117. b.
37. I[ Recovery ifi a Coftrt Baro/i 8zc. be removed hy Record are See the Br. Court-
Party may lay, that the Record is other by the Statute * i E. i. which Baron, pi-
lliall be tried per Pais. Br, Record, pi. 6. cites 34 H. 6. 42. s!^C and
yet it is
not properly a Record, but a Roll. * 1 E. 3. cap. 4.
33. In Attachment upon a Prohibition they were at Iflue, whether the
Suit tn Coiirt-Chrijlian was for Tithes^ or for Rent referved ; and it was tried
per Pais, and not by the Rolls of the Bilhopi lor they are not of Re-
cord. The i'ame Law of all other Courts, which are not cf Record. 9
Xep. 31a. in the Cafe of the Abbot of Strata Marcella, cites 34 H. 6.
49. a. 9 E. 4. 43. and with this accords 44 E. 3. 32. a.
39 if Atiton be brought agatnfi an '^Attorney of the Common Pleas, -y^normy or
Auditor of the Exchequer, or other Alimffer of Record, hy his Name of Office, ^ot,\sir\M<i^
k ihall be tried by the Record, and not where the Action is brought. J^^^ ^ ^'
Contra in Matters in Fail of Mifnofmer. Br. Trialls, pi. 6. cites 34 gieed per
H. 6. $^. tot. Cur. a
Ld. Raym.
Rep. 1173. Trin. 4 Ann. Scawen v. Garret.
40. Note per lieidon, in t Maintmancc S Dccies tantian. No fuch Re- + Jf I 4n«»
cord is a good Plea ; and in thefe Cafes, and in others, viz. ibunded ^^ '■''.' ^"'^
upon the Record, fuch IlFue fliall be tried by the Record, and not per t1t.s"fa"hat
tais. Br. Record, pi. 56. cites 5 E. 4. 3. r.n ih-it it
, net returii'd,
Aftion of Maintenance does not lie ; for it is not oF Record till the Writ be return *d. Per Danbv, tn
the Cafeftippafed, he jhall plead Null tiel Record generally, and it Ihali be tried by tlie Record. Br. Main-
tenance, pi. ;6. cites 10 £. 4 19.
41. Delt, per Brian J. where it comes inUre upon an Obligation made ^'^'P^^^oi
to an Alien Enciiiy of the King, if the League or Peace Icfjoeen the King cf^'^f" ^"'''^
this Alien an^l tie King of England "-juas broke or not, this ihall be tried by ijf.,.^^p^f;''i'ig
the Record 3 lor the League is by Matter of Record. Bur per Choke and Kiug end the
£ Littleton,
H
Trial.
Sovei-eipi cf Licck'con, ic ihall be tried per Pais ; for the breaking of the League or
iht Alttn Peace is Matter in Fait. Br. Trialls, pi. 151. cites 19 E. 4. 6.
bor>i, jiinll be ^ i ^ i
truihh hy the Re,oni ofChameyy ; for every League is of Record. 9 Rep. 5 1. a. in the Cafe of the Abbot
of Strata Marcella, cites 19 E. 4. 6. b. [Sec there pi. 6. per Brian ]
42. Whether the King any -Thing had at the Time of the making of the
Deed, Ihall be tried per P.^/j. Br. Trials, pi. 94. cites 9 H. 7. 2.
Bttt'-ii he 43. If a Man f leads Recovery cj 20 ylcres of Land in Precipe quod red-
^^r ^°j /"'"''' ^"^ "/ ^''"'^^ -Aires f of which the t-wo Jcres are Parcel ; and the Tenant fays ^
"ot co^r-rlze^ that A'ot piit in Fn-iU, and fo not compnzcd; thislhali be tried by the Ke-
this ihairbe' cord. Br. Trials, pi. 95. cites 12 H. 7. 5. Per Brian.
tried per
Pais; Per Brian. Note the Diverfity. Br. TrialLs, pi. 95. cites i; H. 7. 5.
44. A Bill of hitrufion was exhibited by the Queen in the Exchequer.
and upon Illue joined, the Matter was tried by the Records ; and there-
upon Judgmeut was given for the Queen. See4Le. 104. pi. 213. Pafch.
29 Eliz. The Queen v. Sir John Savill.
Goldbb. 6;. ^^, Debt by the Sheriff upon a Bond to appear at a Day certain in B. R.
P'- ll' J^^"^*^' the Defendant pleaded that he did appear at the Day : Upon which they
EUz '^xit '^^''^ '^'- ^^^"^ •■" ^^ "^^'^ '^y ^^^ Country. A Repleader was awarded,
ij. g>l)tp:; becaufe it was triable by the Record i for tho' the Sheriff doth not re-
ijtarD, S P. turn the Procels, yet the Defendant ought to come into Court at the
accordingly, Day, and there a fpecial Entry fliall be made of his Appearance. Owen
^ut Radf^i 53- ^lich. 29 & 30 Elii. Houfe and ElJcin v. Grindon.
Protliono
tary, faid the Trial was well enough ; for it might be, that he appeared, and yet no E.ecord was made
cf it. To which it was anlwered, that then it is no Appearance. To which Radford replied, iJup-
pofe there is not ar.y .Suit there, how then can it be recorded ; but the Rule of Court was as above, be-
caufe then the Obligation feems to be fingle. Le. 90. pi. 114. S. C. accordingly. And Anderfon
Ch. ) moved, that iV A. be bound to appear in B R. at fach a Day, and A. at the faid Day j^oes to
the Court, but there no Procefs is returned, then the Party may go to one of the Chief Clerks of the
Court, and pray him to take a Note of his Appearance. And by Nelfon, we have an ancient Form of
Entry of fuch Appearance in fuch Cafes, Ad hunc Diem vcnit J. S. & propter indemnitatem fuam 8c
JVlanucaptorum fuorum petit quod comparcntia fua in Curia hie recordetur, and cites ;8 H. 6. 17. And
afterwards the Lord Ander on, infpcifto Rotulo, e.v afl'enfu Sociorum, awarded a Repleader. And fo
by Nelfon it has been done oftentimes here before, and put in Ure. The fame Law io, where at the
Day of Appearance no Court is holc'en, or the Jnftices do rot come &c. he who was bound to appear,
ought to have un Appearance recorded in fuch Manner as it may be ; and if the other Party pleads Nul
tiei Record, the Defendant muft have the Record ready at his Peril ; for this Court cannot write to
the JulHccs of B. R for to certify a Record hither.
In Debt upon BoT^d conditioned, that O. pall ajfear at the Knxt Court in 7". to anfiver the Plaintiff &c.
the Defendant pleaded that the f.xid O . did appear fmb a Day at the next Court. The PlaintitF replied that
It did nit ; & de hoc poni: fe liiper Patriam ; and being found for the Plaintiff, it was objefted that in
-was a Mirtrial, becau.i; it ought to be tried by the Record, and not per Patriam ; for every Appearance
is on Record. But the Court held the Trial good ; for Non conftat that he appeared, and that his Ap-
pearance was entered upon Record ; but his Plea is, that he appeared fuch a Day in Court, which
might be, and yet his Appearance not be entered ; and yet thereby his Bond is faved, and he does not
conclude Piout apparet de Recordo. And Wray laid, that Appearance fuch a Day might be tried pee
Pais ; but Appearance generally fhall be tried by the Record. And Judgment NifiTor the Plaintiff Cro.
E. tgt. pi. 4, Pafch. 51 Eli?.. B.R Hoe v. Marfhal. Cro. t. 579. S.C. but not S. P. Mo.
469. pi 67Z S.C. but not S P. Goldsb. 166. PI.9S. S. C. but not S. P. 5 Kep 70. b. Hoe's
Cafe is S. C. but S. P. does not appear.
46. Second Deliverance upon a Diftrefs taken for an Amerciament in a
Court Leet, the Parties were at JJfuej if C. and D. were ylffeerors of the
Court ajcrefaid. Upon Exception taken, the Court were of Opinion that
it lliould be tried hy the Record^ becaufe a Leet is a Court of Record. Cro.
E. 860. Mich. 43 & 44 Eliz. C.B. Monnop v. Thomas.
47. li IJJiie be taken upon the Probate of a Tejlanicnt, or whether J}dmi~
nijiratton be coramitted (tho' they Ihew the Letters Teitimonial ot the Bi-
fhop) this Ihall be tried per Pais i and with this accords 13 Eliz. Dyer
294. b. 9 Rep. 31, a. in the Cale of the Abbot of Strata Marcella.
4S. Error
Trial. 1 5
4S. Error was brought of a Judgment given in ylbingdon Court, in an tJro. J.?9o-
Atiion upon the Cafe upon an AJftimp/it ; the Record certified was, that P^ I.''- ^^'^'''
the Court there had Power , by Ciijtoyn, from Time whereol &c. to hold jjuhigter b*
I'leas of all Actions, /ct* ^«jj' J'rtff/, or Damage ; that is good, and the jCcr, b. R.
Delendant's Averment that there is no fuch Cullom, is ill ; for ic is con- S. C. accord-
trary to the Record certified, and the Judgment given. Such Iffue is ^"S'J'-
triable by the Country in another Aftion, but not in this, for the Kea-
fon aforefaid. Judged and affirmed in Error. The Suit by the Writ of
Error admits it to be a Court j if it be not a Court, the Judgment is
null, £t coram non Judice, and Faiie Imprifonment lies. Jenk. 327.
pl-47-
49. In a Plea of Non profecuttis eft uV.iim Bi'eve, the Trial ihall be by
the Country ; Per Cur. Hut. 20. Alich. 16 Jac. in Stafford's Cafe.
50. C. recovered in Debt againit A. and had a Sci. fa. againfi E. the J°J.>^" P'*
Bail. B. pleads that A. brought "Error in the 'Exchequer Chamber; ^«<^cav b"r
fending the IWrit of Error A. rendred his Body in B. R. and dies ; Ec hoc s C. accord-
paratus ell verificare per Patriam. But the Averment was held ill, be- ingly.
cauie it ought to have been Prout patet per Recordum. Noy 82. Calf ^"E,*^- '^5j^
V. Bingley. donotob-
ferve this Point took Notice of by the Court. Lat. 149. 1 50. S, C. but S P. feems not took No-
tice of bv the Cour;, o'lly Jones faid to the Couafei (who had objedi^d that the Render fhould be
tried by the Record; and that therefore the Plei fhoiild have concluded with Hoc paratus eft verifi-
care per Recordum) that tho' the Render in the Plea is void for Want of the Averment by Record,
yet in this Cafe the Death is a Difcharge of the Bail. — • — 5 Bulft. 551. S. C. but I do not obfen'C
S. P.
51. Debt upon a Bondiofavehannlefs from all Payments to Sir M.S.
the Defendant pleaded .^iod confervavit indemnern. The Plaintiff rf/)//e^,
that Sir M. S. recovered a Judgment .^ and that it cofi him fo much &ic. and
fo he did not fave him harmlefs ; and concluded to the Country. And this
was tried per Pais. After a Verdift, it was objected, that this ought to
be tried by the Record ; but Curia contra, becaule this is only an Induce^
ment to the Ifue, which was. Whether he had faved him harmlefs ?
Palm. 524. Pafch. 4 Car. B. R. Rigg v. Wharton.
52. The Privileges and Liberties of Courts of Recorded tics, and Buroughs^
mull be tried by their Charters and Records. Trials per Pais. 15. Ob)
53. A Decree in Chancery fliall be tried by a Jury, and not by itfelf j
for it is not a Record, but a Decree recorded. The Chancery, as it is a
Court of Equity, is not a Court of Record ; but touching Things agi-
tated in the Petty-Bag Office^ it is a Court of Record. Trials per Pais
156. C207)
(D) Trial by Record. Nul tiel Pvecord. Upon Nul
tiel Record pleaded. What fliall be a ValUr of the
Record.
1. TI3 an ^rtiOn of Debt againft a Bailiff of a Liberty for an Efcape Hob. i-.n.
X &c. tutjcrc tlic Conmiitment was m a Conct iiJitfjm tfjeLi^W- ^ '"•"''.'-
bertp, if tlje DefeuBmit plcans jeul tiei Eccaru, aiin in the Record ^Ib';^;^^;^-
certified are diverfe Difierences in the Continuances and in the Procefs, (js.dLOix'it)*
VCtiftljB Plaint, Count, and Judgment certified, aeree with the De- -man b.
claration, tIjC PlaiUtifT fljaU fja^C lUtJlVniCtlt* 0ODai't'i£> UCpOlt0 '^M'txv,
•«4i. bettaCfU Co.uhmm and Halley fiUjUOgCO* bcri'v.''^''°
2- B
1 6 Trial.
Hob. 209. 2. 3U nu Intormation UpOU tIjC ^tattJtC fOt Non-relidence, if tljC
pi. z66. £>ffcntiant pleads another Intonriation III t|}e CrCijCQUCt, e,Cl)lbltCi3
^/^"^'^ tOerc2S April, mm 14- ftc t!)c fame Slbrence, aim mmipon J^ui
s c ciVcd ticl KccorD 10 pleaoeB, atiD tip tljc Kccoiti crrtifim it nppcarj?, tljat
j^ig! i.i Cafe lije jinfocnintion m tijc dcljequsc was exhibited 29 April m tlje
«<t ©anDcr* filH]j; j^Ciir i t\UXi t\\\ tljC Relidue oi the Recdrd, as to the Matter,
^[\^* agrees with the Record pleaded, ti)C 3itltJn;mcnt fijaU bC gtllCn fOC tl)2
SmSs ihis DCfCnnant* lpabnn'0 ECpCrtJ?. Cafe 283. mum Parry and Parry
Point, be- aU)uDge5*
caufe it was . ,
in the fame Term, which is but one Day in the Eye of the Law.Hard. 200. _
Where a Man is coivpelhii, in f leading a Reaid U jlcw the Date oj tie U'Vit, there, if it be certifed ia
he of another Date, then the Party has failed his Record. Br. Failer de Record, pi. i6. cites 4.8 E. -.
II. Per Finch.
• Bni if a Man fhads Record of Rcccvery in Trefpafs one Day, and the Record is certifed at another Day, he
has not failed of his Record; Per Pall:, for Trefpafs may be continued. Br. Failer de Record, pi. 1,%
cites 1$ H. 6. fitih. Tit. Record 5.
3. Ih AJfife^ the Defendant pleaded in Bar a Retraxit by the fame Plain-
tiff in another ylj/lfe, the 'Tenant J'aid that Nultiel Record, and failed ax. the
i)ay, and the Flatntifffeleafed his Datnages, and recovered. Bv. P'ailer
de Record, pi. 12. cites 15 E. 3. Fitih. Tit. Affife.
4. Tre/pafs of a Clofe broken, and Battery. The Defendant fciid the
Plaintiff at another Time by Bill had recovered Damages for the finte Tref-
fafs in the Marfoalfea; Judgment. And the Plaintiff fa id, that Nitl tiei
Record, and the Defendant brought in the Record ftib fede Sigilli, "which
made Mention of the Battery, and at another Day, and no Mention of the
•breaking of the Clofe ; and therefore the Plaintirt prayed Judgment, al-
leging that he had failed of his Record. Per Thorp, The Record
iproves that he is condemned for fuch a Trefpafs as you have counted ;
and therefore, if it was for another Trefpafs, you ought to have alleged
it when the Defendant vouched the Record ; and the Plaintiff was
barr'd as to the Battery, notwichflanding that the Count be at another
Day : And as to the breaking the Clofe, becaufe the Defendant had
failed his Record, Writ was awarded to inquire of the Damages. Br.'
Failer de Record, pi. 2. cites 38 E. 3. 17.
But where 5. In Trefpafs ; the Defendant pleaded Outlawry in the Plaintiff'; Judg"-
j. B. Knight ^q^^ jf he fliall be anlwered. And the Plaintiff faid that Niil tiel Re-
hrought Ac- ^^^^ ^rc. and the Record was read; and where the Defendant pleaded
^Defendant Outlawry at the Suit of J. the Record was at the Suit of IV. and yet the
^iiahled him Defendant did not fail of his Record ^ Quod nota i and the Defendant
byOuttawry, yj,gjjj jj^e j)ie, and the Plaintiff was taken, Br. Record, pi. i. cites
and be faid „ \j , ,
thatNultid 7 "• 4- ■'•
Record, and
the Record was certified, that A. Efquirt was outlawed ; and therefore he failed of his Record ; Quod
tiota. Brooke fays, ^uare, ij he had averr'd that he was made a Knight after &c. Br. Failer dc Record,
pi. II. cites 58 H. 6. I.
So in AJpfe, the Defendant ^/e^t/crf, that the Phintiffwas outlawed; the Plaintiff replied Nuf tiel Record,
and at the i)ay given for bringing in the Record, the Totor was brought in by Mittimus, by which it ap-
peared that there was a Variance between the Day of the Return of the Exigent in the Place, and where the
Outlawry was pronounced. And this was adjudged a Failure of the Record. Dyer 1 87. b. pi. 3. Mich. 2
& " Eliz. Anon, but feems to be a Nota of" a Cafe about 14 H. 4.
So where Leflbr for Years rendring a Rent, acknowledged a Statute, and the Reverfion was extend-
ed and the Conufce brought an Action of Debt for Rent Arrear^; and well. Per Cur. But the De-
fendant faid that the Plaintiff is outlawed, and Iflue is joined upon Niil tiel Record; and the Record was
certified, much varying from the Record of the Outlawry', as it was pleaded in Difabiljty. And awarded
ty the Court, that the Party had failed of the Record. And 7 H.4. i. was denied for Law by the
Court. Noy ;4- Anon.
6. Where a Man pleads Nul tie! Record, and the other brings ths-
itenor of the Record ; this is good. Br. Record, pi. 4. cites 34 H. 6. 2.
1. In
Trial.
17
7. Jn Dfl^t, the Plaintift' declared upon a Recognizance made before the Br, Dette,
Mayor of Hereford ; and the Defendant pleaded Nul tiel Record ^ upon ?'■ '^_^"'^^''
which they were at Ifae, and Day given to the Plaintiff to bring in the Verdift"?!!^*
Record ; and the Mayor certified the Recognizance upon a Condition tinder 103. cites
the Recognizance. And upon long Argument, if he hud failed of his Re- S. C.
cord, or nor, becaufe he had not declared upon the intire Record, viz. ?''■ Pl"d-
us well upon the Condition as upon the Recognizance, and yet becaufe ^."jIj*,^'^.''
he had declared offo much as is lor his Piirpofe, and the Condition is un- 6. 5. but is
der the Recognizance, and not in the Recognizance, and the Condition mifprinted
Hands with the Declaration of the Plaintifti for he has certified as much JP"" ^5'^) ^"'^
and more, and nothing v.- hich is contrary, therefore per Judicium, the f^^J^J^gji^
Plaintiff recovered his Debt^ Quod nota. Br. Failer de "Record, pi. 4. tions. -
cites 36 H. 6. 2. sc. cited
by Hobarr
Ch. y. Hob. 55. in Cafe of Fofter v. Jackfon. S. C. cited PI. C 14. b. in Cafe of Reniger v. Fo-
golL. y^nrf per Wangf. andPrifbt, Littleton, Necdham, and Aditon, where a Man declares upon
Ohlie^alion, vjitb Condition certain in the fame Obligation before the In cujtis ret fipc. •which Condition ^^iiei the
Plaintiff the Forfeiture of theObligation, there he ought to count of the Condition performed in his Declaration ;
lint ahere the Condition is upon the Back of the Obligation, or ivrote under, there he may declare Jimplicitert
■without making Mention of the Condition; Slx^A t\\evci'oi-e, tho' Recognizance be certified with Condition
as above, the Plaintift has not failed of his Record. Br. Failer dc Record, pi. 4. cites 56 H. 6. 2.
8. Per Wangford, if a Man pleads Recovery of an Acre of Land, and
the other fays tliac Nul tiel Record, and Record is certified of Recovery of
fso Acres, he has failed of his Record. Br. Failer de Record, pi. 4.
tices 36 H. 6. 2.
9. If a Man declares againji J. S. upon Recognizance, and he fays
that Nul tiel Record, and Recognizance is certified, by which J, S. and
W. N. ivcre obliged Et uterque eorum in toto, he has not failed of his Re-
cord. Br. Failer de Record, pi. 4. cites 36 H. 6. 2. PerWangf
10. If a Man vouches Recovery, by Name of J. Hafiings, and the Re-
cord certifies as J. Hajfinges, he has failed of the Record i Per Car. Br.
Failer de Record, pi. 8. cites 9 E. 4. 42.
11. Where a Man pleads the Ciifiotn of London of foreign Attachment^
that Judgmoit of it Jhallbe a good Bar, and they are at IJJiie, that no fuch
Cu/lom, and it is certified that the Cu/lom is, that "Judgment and Execution
Jhall be a good Bar ; there, Per Brian, Huliey, and Choke J. the Defen-
dant has tailed ol his Record. Br. Record, pi. 63. cites 22 E. 4. 30.
12. In Affile of Mortdanceltor, if the 'Tenant pleads that at another
7'ime the Demandant brought Mortdancejior oj the fame Land, and the Te-
nant pleads a Releafe in Bar, by which the Demandant was barr'd, if the
Demandant fays that Nul tiel Record, and the Record is certified that the
Tenant pleaded Bajlardy in the Demandant in Bar, and barr'd him, there he
has failed of his Record j for there is a Diverlity when Nul tiel Record
is certified, and when he certifies other Record than that which is plead-
ed. Br. Record, pi. 63. cites 22 E. 4. 30.
13. Where a Man pleads Record in Court of Piepowders in Banco,
that at fuch a Fair which is' held at B. fuch 3 Days, he recovered 3cc. he
jhall avoid it, to fay that the Fair was granted to be but 2 Days. Br. Re-
cord, pi. 63. cites 22 E. 4. 30.
14. In Debt on the Statute of Apparel, the Defendant pleaded thdt the And ;o. pi.
Plaintiff' was outlawed, who replied Nul tiel Record ; and before the Day ''• ?Sal*
in which the Defendant was to bring in the Record, it was removed by s'r *P*^^'
Writ of Error into B. R. and thereupon he brought in an Exemplification of the DefL-n-
\t under the Seal of B. R. without Writ or other Seal, but that of the dant v/as put
King's Bench. It feemed to fome, that this was a Failure of the Re- to anfwer.
cord, and that fo it had been if it had been reversed ; for by the Reverfal
ic is made no Record ab initio, tho' there was fuch a Record at the
Time of the Plea pleaded ■■, but they thought it not peremptory to the
Defendant, but that there Ihould be a Refpondeaa Oufter. Dyer 227,
F ■ pi. 45.
1 8 Trial.
_. . , — — ■ ■ ■ ■ I..- -■■ ■ I 11 I I... I - — j»
pi. 45. Hill. 6 EUz. dtp's Cafe. But tlie Reporter fays, QuiEre ta-
men hoc.
15. In a Formedon in Dcicendc'Vy aFine with Proc/auiations, levied ^/nw
30 H. 8. ivas pleaded ■, and upon an llf'ue of Nul tie! Record, the Te-
nant brought it in at the Day, but in the Prndamations r,iade tii 'Ti'inity
'Term the rear of the King was left out ; hut becaufe thofe which were
wade in JLafler-'Ierru lejcre^ and in Aiichaelmas Term after, ivere exprefsly
^iientiOfied to be in 30 H. 8. it necelFarily tollows, that it mull be intended
to be in 30 H. 8. and conlequcntiy in Subilance he has not failed of the
Record. Dyer 234. pi. 16. Mich. 6 & 7 Eliz. Anon.
£• Ld. Raym. 16. In Caje againji Defendant by a wrong Name, he pleaded in Abate-
lleiMoi4 nient ; whereupon zhe Plaintiff, ivitboiit proceeding farther, h'oitght a neis)
S C. accord- ylifjon againfi hin: by his right Name ; to which he pleaded ether Atiion
'"S y- pending. Et per Holt Ch. J. The Plaintiff fhould firit havedifconcinucd
the firit Aclioni it will be too late to do it now ; for the Dilcontinuance
will relate only to the Time of its being entered on Record: So that
upon Nul tiel Record it will be againit him; fot it was pending at the
\ ' Time of the Plea pleaded. And this diflers from a Reverlal of an Out-
lawry or Judgment by Writ of Error; for if Nul tiel Record be plead-
ed, and alter that, but before the Day given to bring in the Record, the
Judgment is reverfed on a Writ of Error, that Reverfal avoids the Re-
cord ab initio, and it is a Defecit de Recordo. Salk. 329. Hill. 2 Ann.
B. R. Knight's Cafe.
Rep. of 17. Original ..4'i^/w? brought in inferior Court againft Defendant, ly
Praft in C. tfj^ Name of Cnrphey, was removed by Habeas Corpus into C. B. and Bail
B. 82. S. C. pyj. jj^ jjy j.|^gj. ]s;ame. PlaintilfVfc/^rej againft Defendant by the Name of
h>M it^a'' Scnrphee, and recovers, and after Judgment brings an Aftion of Debt oit
matei-iiil Va- the Recognizance, and fets out a Recovery againj} Cnrphey ; to which De-
riance ; and fendant pleads Nul tiel Record. Plaintitf replies a Record of a Re-
Judgment covery againlt him by the Name of Scurphee. Judgment for Defendant;
dant "P°" ^'^^ "^^ Record. Barnes's Notes in C. B. 328. Hill. 6 Geo. z.
Eggleton V. Seneli^ Bail for Curphey.
Record. Failer. What iLall be faid Failer. [Delay
of Ceny}catiof2.'\
Hob.154.pl. i»IJf upon Bill tiel Eecorti p!ea5c9 inoaanfe, a Certiorari ifTues
i8i. s. c. J[ out of "Bmt to ceitifj) tijeni at a certain Dap, if no Certifi-
Tvhcre the ^^^te comes at the Day, pct It Ojail UOt U a Jf ailCC ; tJllt t!jC COUtt
co?vkHo°n ftnW aiuatii L9taccf^ till it corned* pll 14 %% ^* -P'^ ^'^^ Thnii^
ofRecu- aQHitJgeii. ^ ^ , „
lancv, before 2. As if a CettiOtaVi IITUCS from Bank to Juftices of the Peace to
the 'Juftice certify an Indidment and Conviftion of ECEUfaUCy, tl)e j0aiVCtCti&=
Hvety the' Ciitiou Of x\)z ^ufiiccjs i0 uo jfailer, m\' h 3^> ^» ^'^ '"■ ^^''^^
Plaintiff atlJUtlgCD*
pleaded Nul , _ .
tiel Record, and Day was given to the Defendant to bring it in, and he took a Cemoran to the [uilices
of Peace, and at the Day brought in Tenorem Recordi, certified by the Cuftos Rotulorum. _Tho' the
Certiorari to the lullices of Peace, and all was void ; yet it being the Award of the Court, it was not
made as Failer of 'the Record in the Delendjnc, tho" lie had it not at the Day , bat a Certiorari was
awarded De Novo to the Jultices of the Gdol Delivery.
CE.2)
Trial.
19
(E. 2) Trial hy Proof, f&^^^P'"
s.TB mxit of Dower t\)t Cn'al fljnU be bp praors* 17 €♦ 3*
.1 49- ii»
2. 3n UDrit of Dower, if tIjC Life of the Baron be pleaded in ano- In Dower
iher County, ailtl tljC Demandant fays that he is dead, \t fljall be tHCH T'n f^'
lip laroofj;, mm not pec }^m, 1 7 €* 3- 50. b. anjuDgeo, 'LttlZ'ed
in B<ir, </:>«*
//V Hiishai:d was liiing at C. Sc hoc paranis eft venficarc. The Woman replied, that her Husband rf/s.f
At R ^c. and uas buried there, 6c hoc parata eft vcnficare qaalitercunq; &c. Ideo conlideiatuni eft
rjuod prsd' Maigarcta doceat de morte, & diitus R. de Vita viri, & iuper hoc dies data eft ; at which
Day the //-'«?//?;; examined l-f iliiejfes in Court, and rhe Defendant examined none ; and (b Ihe had Jud"-
nicnt to recover her Dower. Mo. 14. pi- 3 J- Pafch. 2 Eiiz. Thorp v. Rolfe. And 20. pi.
42. S. C. fays, that the Demandant, to prove the Death of her Husband, produced 2 Witnefles who
vere examined, but did not lay any thing directly to prove the Death, but only by Arguments, whicli
Depofitions were inferted at large in the Record ; and the Tenant brought no Proof of the Husband's
being alive, nee aliter docet de Vita ejus. Whereupon the Court allowed of the Proof made by the
Demandant, as feemingly good, no Proof bein^ made to the contrary, and fo fhe had Judgment to re-
cover her Dower. Bendl. 86. pi. 131. S. C. and the Examinations of the 2 Witnefles are there
cnter'd at large. D. 1S5. pi. 65. S. C. and in this Cafe Qui Melius probat. Melius hibet.
3. So if tlje Life of the Karon be pleaded [generally,] aitll tlje "DZ- Br.Trialls,
manBant fap0 tljatije 10 ocao, it fljall be urn bpl^roaf^, ano not g';^*!^
bpjur^ 8 ip, 6. 23. cima. ^ReT^b.
in the Cafe
of the Abbot of Strata Marcella.' In Dower the Tenant pleaded, that the Demandant's Husband was
in Life ; and Ifl'ue thereupon. And it was tried in Court by WitnelTes ; and the Court faid, that wry
fyjiall E'iiidence 'ivoidd be J'uffuient in fuchCafe. Ld. Raym. Rep. 174. Hill. S & 9 Will. ;. Grace Faux
V. Barnes.
4. 'SCTje €!nal bp IpCOOfjj fhall not be in any other Cafe, but in WXit^ Br. Triall.^,
Of Dower. 8 i), 6. 23. CUtta* s'c'^'"
9 Rep. 50. b. in the Cafe of the Abbot of Strata Marcella, fays it is the fame in Jfpeal brought of the
Death of the Baron, or m JJfife brought by Feme, who was the Wife of B. if the Tenant or Defen-
dant pleads that the Baron is alive, the Trial ftiall not be by Jury, but by the Juftices upon Parols
[Proofs] made before them for the greater Expediiion ; and cites 6 E. 6. 39. 17 £.5. 50. ^j p^ff ,^.
ti H. 6. 23.3. 33 H. 6. 8. 9. 10. Diverfity of Courts, 119. 36 Aff 5. See pi. 10.
5. 3!n Affife againft Baron and Feme tW 115310, tf tljC TBatOn HOClS Br. Trialls,
ItOt come, but ttje Feme comes and alleges the Death of the Baron in a P'^5 cites
Foreign County, tf)e iUljlCtj CailUOt be ttlCD bD tf)C Affife, tl)t0 fljall llOt h iTfJd ''
be atsjounico into oaanU to be trieu, but uiap be tnen Dp \^xmU* that the'
39 Slf* 9- PJaintift-
pray'd the
Adife, and did not allege the Life in this County ; and therefore they were adjourn'd to Weftminfter
where it was awarded that it fliould be tried by Proofs, quod nota.
6. Jn Affife by A. S. UjIJO taa0 the Wife of J. S. if tIjC Tenant fays
that J. S. is in full Life, ready to prove by Prools, tl)i0 fljail tt ttiCH
bj) tlje !afli5e, anti not bp l^coofsi* 30 afl". 26. abjubBCQ.
7. But if tlje '2Dcttant lays, that J. S. is alive in another County, it ^f Tnails,
fljallbctrien by proofs i foctljeamfe cannot ti'i? it, nor fljaU it bePl'^Vc'""
nojournn foe tiji^ Caufe* 36 aiT* 6. Curia. I c. ' ^'
8. 3;f 3» %^ a Feme brings Affife, not fuppoling that ffie was the Wile Br. Trialis,
of T. S. if tlje Tenant fays that ffie is Covert ot J. S. who is alive inP'- i" '^""
another County, it fljall be ttietl bP tlje ^fllfC. 36 ^fl"* 6. f^ ^'
9. Un Affife, if tlje Tenant pleads in Bar the Deed of the A nceftor Br. Trialis,
of the Demandant, iJUU Demandant fays, that he whom he fuppofes his p'- 79, cites
Ancellor is alive in another County, or beyond Sea 3 tijid fljaU UOt bC "f .^^^ ^■
trim'
20
Trial .
ti'icn pec iMtj, but fljiiU nc aHjottrivn, or mm bv tbc airifc* 36
air. 6.
♦Br. Appeal, jq. Jjii flU Appeal by a Feme ot the Death ot her Baron, if t!)3 De-
pL 15; cites j-(,ndin: lavs that the Baron is alive in anoriier County, \t (Ijaii bC tl'teU
Ivs ouTre bu {3ro3f0. * 4 1 Siff* 5- atDUQijcu. CBiit tijcre 13 n Qu^rc uiOcrl)cc
of Trill by tije Dcfciinmit fijiitt be coaciuoeo uiitljout orljcc anfiucr, if it be
Proof, at yro'ueD (isjatiiH iM.ii, Cbiit bp t 43 CifT. -6. it is pcrcniptoi'P.)
this Day. —
Bf. Trialh, pi. 88. cites S C. and fays, that if the Defendant tails in his Proofs, he fhall be condemnM
•without other Anfwer.
± Br, Ap-,;ealj pi. i;;. cites S. C, and Day was criven to brinrr in the Proofs, wliich came; and there
va's Default in both their Proofs, by which the Defendant for the Daiif^er pleaded Not Guilty. Brooke
favs, from hence u fccms that the firll liTue found fhall be peremptory, and that he may waive it be-
fore Trial in favorem Vits. — Br Peremptory, pi. ;6, citesS. C. where Brooke mak-s3Qiiu;re whether it
be peremptory, if'it be adjud<;cd a<;ainll tlie Defendant.' ■ Br. Trialls, pi. 50. cites S. C. whcrs
Brooke fays, it feems that the Proof.s arc peremptory.
II. So if tljC DcfCnlsatlt ^ays that the Baron is alive, generally,
tDitljOllt (amnS m anOttJCr COimtp, nilO tijC Plaintiff fays that he IS
^;r7]Q^ dead, It lljaU U£ tl'tCO tip P^OarjD. 43 illL 26. fttljUQuctl^
pi. 1^7. cites
«j. C.-^ Br. Peremptory, pi. 31J. cites S C. Br. Trialls, pi. 90 cites S. C.
Pr. Trialls, 12. Sif tljC IffUG bC whether the Prior of B. be removeable at the
pl. 89. cites -Yyiii ot the Abbot ol O. or peipetual, aitti tIjC l^bbOt Of f). i0 beyond
RvlTokr fav! Sea, ant! fo i!5 tlje cijicf prior nr&. M tuts ^rial cannot be trico
it Veems bj ' bp tl)C M^, It lljatl bc trieo bp i9roof^. 43 M, 4-
the Reporter
that it fhall be tried by the .^fTife, and not by Proofs ; for it lies in Conuf^mce of the Countrv if the.
Priors have continually enjov'd the Land all their Lives, and have impleaded others, and have been
impleaded, and lealed their Pofleflions of the Manor, and other PotTefTions, for Term of Life &c. But
per Perl'ey, becaufe the Prior is u Prior Alien, and the chief Houfc is beyond Sea, it fliall be tried by '
Proofs. Qusre.
13. Jn a JlBrit of Annuity, if tljC Defendant fays that the PlaintilF rs
dead in Britanny, anU lifue iS tal^cn that he is alive, it fljflU \iZ ttlCl^
bplpcoofgi* 26 (£. 3 7°- pet Curiam*
S. P. But fo "14. iw a l©rit of Dower, if tl)e Tenant fays that the Baron is in full
fliall it not Life at a Place beyond Sea, (aS at patiSl) It fljall tZ tHCD bp J3COOf0.
\ 'Y7 s^ "^^ ^- Stinerc Ittcljfieio iaot» 12 b* aOjuOijeD.
rnW^ln. 15- "2n a '^uare non Admilic, if tljC Bilhop makes Title by Lapfe, attH
S9. b. tlje Wue 10 whether the lalt Incumbent died at a Place beyond Sea fuch
a Day, or was then in full Life^ tljiS (Ijall UOt bC tneH pet ^310, bUt
Ijp pioof0, for tDe Countrp cannot fenotn it 6 e, i. Kottuo pa-
tentlllUi ^CJUJ* 25- betiUeen tije ^^^^or of St. Mary lork and the Bijhop
of Norxuh, aniuoa'fi'*
1 6. IJJhe may be taken, // the Prayee in Aid be dead or alive ^ Per
Brown. Brooke fays, this leems fo be peremptory, becaufe it Ihall be
tried by Jury ; and makes a Quere if it Ihall be tried by Proofs. Br.
Counterple deAid, pi. 22. cites 32 H. 6 34.
17. Debt upon an Obligation with Condition, That if the Defendant
proves f "Xithin a Tear^ that it was the Will of J. S. that the Plaintiff [hoiild-
iu'eoff' the Defendant, that then &c. And he faid that J. S. made a
lYili at D. that the Plaintiff' Jhould infeoff the Defendant, -which Will is ift
Writing^ which the Defendant brought to the Plaintiff within a Tear^ and-
that he made no other Will. Qusere of the Proofs for it feems that the
pewing of the Writing is no Proof. And Quaere if it ought to be proved
by 12 Men fduorn within the Year, or if it may b; proved in this Aftion j
but by 3 Jullices he might have proved it by two Witneire^j and thea'
good. Br. Conditions, pi. 151. cites 10 E. 4, ii.
18. Debt upon Obligation, with Condition to pay to the Obligee 10 /.
within 3 Months next after his Arrival jroin Rome, the laid Obligee proving
the fame by tefiimomal or other Witnejis. The Defendant laid, that the
Piaintiif
Trial. 2 1
PJaintirt' had not made Proof that he was at Rome. The Plaintiff re-
plied, that fuch a Day atcer his Arrival he pew' d to the Defendant a Tef~
timonial under the Seals of feveral great Per fans living at Rome^ that he was
there. Anderfon faid, that the Proof might be by Witnelies or Tefti-
monial, and it is no Mifchief ^ lor if the Teftimonial be counterfeit, he
may take IlFue upon it, that it is not a true Teftimonial ; and of this
Opinion was the Court. Mo. i8o. pi. 322. Pafch. 26 Eiiz. Anon.
(F) By the Court, In what Cafes it fhall be made sec Damages
hy the Court. Tit^.'ioreiKti
i.TiI3 iTU Appeal of Maihem, tIjC COlltt map atljUtlffC ft upon the !^P Br.Per-
1 View a 99aiDem, or Bo $^ailjcm, upon tljc l?£a}?cc of x\)z£>t--T^^^^llf;
fciiDant* 28 m,s. 28 c* 3. 94- 41 ^ir» 27. H 7 ,5 —
Br. Trialls,
p'.. 5- . cites S. C. '9 Rep. 51.0. in Cafe of the Abbot of Strata Marcella, cites z8 Afl". 5. 21 H. 7
;;. b. n E. 4. 2.
2. And tl)Ii5 'STrial fljan ftC peremptory tO tljC PattiCS* 28 3^ 5. S.P. Br. Per.
emptory,
pi. 26. cites 21 H. ;. 53.- Br. Trialls, pi. 57. cites S. C
3. Jn an appeal of ^nfljem tljc Dcfennant put0 tt m jmie, anu p^^^*'""
prapS t&at tlje ^ailjcm be ejjamineD Op tlje court, anritl)e Court fh'L'iif the
Ciiiinot l^noiu to aoiunge it, becaufe tl)c @>trokc t5 nciu; a writ map Defendant
be fCUt to tljC Sherilt to caufe to come Medicos Chirurgicos de Melion- put it in If-
bus London ad Informandum DomiUUm ECgem ^ CUrlant He IjIISi ""Y ZY^'^^l'
QUse eigi tx, parte Domini Mm imimgetentur* * 28 m. $. ±^ e* ',;'/e Sd
3- 94- or not, and
4. 3ntl if upon tIjIlS the Surgeons fay that it is a Maihem, \)Z (Tjall be prays thatthe
attainten* 28 air. 4. part which
was hurt be
viewed by the Court, in order to have it adjudged on fuch View, whether there be any Mayhem or
rot, the Court may take a View of the Part, and on i'uch View determine the Matter; or if there re-
main a Doubt upon the View, may award a Writ to the Sheriff to return fome able Phyficians and Sur-
geons, for the better Information of the Court. But it fecms, that the Coan ainmt proceed to fuch a
Trial by their ( leiv, uvlefs the Defendant prays it; And in fuch Cafe it <eems, that they are not bound to
try it ia fuch manner, but way order alrial by a Jury ; at -vshich, it is faid, they may, if they think fit,
order that tie Jury pall have a Fiew of the U'ouiid. And becaufe the Court has fuch a difcretionary
tower, in relation to fuch View, it has been refolved, that the Plaintiff in the Appeal mult appear in
proper Perfon, and not by Attorney, becaufe that would put the View out of the Power of the Court ;
and it feems to be agreed, that an Adjudication made upon fuch View is peremptory and conclufive to
each Party. 2 Hawk. PI. C. 160. cap. 23. S. 27.
* Br. Trialls, pi. 135. cites S. C.
If Maihem be tried by Infpedtion of the Surgeons, it is peremptory ; per Cur. Bh Peremptory, pi.
2i6. cites 21 H. 7. 53. Br. Trialls, pi. 57. cites S. C.
5. Jn an action, if tlje Parties are at Iffue, and at Nifi Prius the Br. Trial',
Defendant fays, that the Plaintiff is dead after the laft Continuance; P'- J' °- '^''^'
ano upon tlji^ tijep are aujourn'H into Xank, ann at the Day in Bank ^ ^•
the Plaintiff appears in proper Perfon, and demands J udgment luf)etljec
tl)e Dcftnuant fljaU be receibcti to fap tijat Ije 10 Deab, tljis fl)aU be
tricti bi' tije Court; for at tlje Commencement of tfje l3Jlea, iu!jeu
tlje l^Iaintitf mane an attornep, tljiss attorney luas mauc bp RecorD
of ttie Court ; anr> tljerefore it fljali be tricD bp tije Court, if the fame
Perfon that now appears be the very Perfon who othcr'vife m.ade the At-
torney in the Court. 34 I), 6. 45. b* pet CUCiftin,
G 6. Jf
22
See Tit. 6
Convenient J7j'j>rf
Trial.
6. J;f a Q3an fdfcti of nnJ^ourc in ifec, fur life, or iiiCaii, anti
T- r(■^_ ^"•-^' inalUnO; W CtCCUtOr, anD liavi;,g Goods in the Houle at W
See"\Vf d1 Dcatlj, tije Executor fljali iyiVOt a reafonable Time to remove them ;
lo in the auti tijis tcafcnaiiic ^hnc fljall be anjuugeri b^ tlje Difcrction of tije
Kotes. 3:u3lcc0 before tyija ju t!jc Caufc UcpcnOeOv €0. litt> 56. b,
s p accord- 7- So ft lljaU Hz a5)UDi\cti In) tljC Court toljat fljall ht an unreafon-
ingiy le- able Fine and Service, iijjon tljc trite ^tatc Of tije Cafe ccpentiinn;
foivcd. 4 before tljcu! ; for tlje Reafoiiableiief^ in tijofc Cafed appertains to
piTfi'Mich toe Cauufancc of tlje laa Co* Litt, 56. D» 59- in CoppljolDer^js
42 Sc 45 ifuie*
Elii. B. R.
Hubbard V Hammond. Mo. 6;2. pi. 851. "JDaltOtt tl. JT^atnonD, S C. Tays it was agreed, that the
Court and tlie Jurors fliall be Judj^es of the Fine, without Suit in Chancery. 11 Rep. 44. a. Mich.
1 1 Jac refolved, that the Realoiiablenefs of the Fine fhall ^be adjudged bv the Juftices ; and cites 4
Rep. 27. b accordingly, and lays that it was fo adjudg'd, Patch. 9 Jac. in C. Q, in the Cafe of Stallion
V. Brady.
Jhvnys when Re.-fonalknefi is in queflion, the fame fliall be determined by the Cou*-t in which the
Aftion depcndcth, as rciibnabk ^iriie. 21 H. 6. ;o. 22 E, 4. 2". & 50. 29 H. 8. 32. 6cc. So if the
Dijlrefs be reafonable, and the like. 15 Rep. 3. in Willowe's Cafe.
Butparticii- 8. The A^ixims and the General Ctijloms of the 'Realm^ which is the
hrCtifioms Common Law, fliall be tried by the Jultiees. Br. Trials, pi. 143. cites
l^hall not be r^ j r
tried, but BundamcncumLegum.
only Ur Pa-
f-iam. Br. Trialls, pi. 14;. cites Fundamentum Legum.
Jnd by the 9, ^5*0 Espo/itions of Statutes ftall be tried by the Juftices. Br. Trialls.
Sflud^s pi. 143. cites 33 H: 8.
liave the Ci??77'-«ff/«w of tkeSt.Uutss likewife. Br. Trialls, pi. 143. cues Fundamentum Legum.
10. In JJ^fe of J rep Force in the Court of Oxford, it was pleaded, that
the Ctijiom of the Town was that if a Man had Pofftjion of Lands by 40
Weeks, he could not he put out by the King s Writ ; whereupon the other
would have taken Illue No luch Cuilom. But refolved, that this being
a Law of the City was not to be tried by Jury, but by the Judges, as a
Matter of Law, and fo indeed in Nature of a Demurrer ; Per Hobarc
Ch. J. in delivering the Opinion of the Court. Hob. 86. cites 21 E.
3. 46.
11. A. rf (Towrj againft B. in a Praecipe quod reddat by Default, and a
Writ of Difceit is brought. The Sheriif, in this Cafe, lor the Sum-
moners, returns C. and I), de Dale Ihmen, Summonitores. The Tenant
Ihall have an Averment againft this Return, that there are in Dale Yeo-
men zC.'s ^»^J).'j, and that C. and D. named in the Sheriff's Return to be
the Summoners, are the Elders and other C. and D. the Younger, by
which the Sheriif has return'd the faid falfe Summons to be made. This
Ifue, which of them was return'' d, and whether they be the Summoners
returned by the Sheriff or not, fhall not be tried by the Country, but by
the Examination of the Judges. As Infancy, upon a Writ of Error to
reverie a Fine levied by him during his Nonage, this Nonage fhalJ be
tried by Infpeflion, and the Examination of the Judges, and not other-
wile. Jenk. 122. pi. 46. cites 5 E. 4. 93.
Trials per 12. The Cufioms and Ufages of every Court fliall be tried by the Judges
Pais 12. {10) of the fame Court, it'they are pleaded in the flime Court. 9 Rep. 30. b.
S P. and fays ■ ^^ q^^^ ^^ ^^it Abbot of Strata Marcella, cites 11 E. 4. 2. b.
that many ^ '
are tried by the Judges, as the RenfonaUenefs of a Fine of an Offender, or *upi)n a Surrender of a Copyhold
EfiaH • and fo it is oi Cufioms, Services, and alio of the Time thixt the 'tenant at U'iU paU have to carry.
aieay his Gccds ; and thele Cafes come under the Rule which ni.ikes Matter of Law to be tried by the
Tudees ; Vide 'l Inft. f. 56. And in fome Cafes, Matter of Fait fhall be tried by the lud,:;es, as if the
Plaintiff' appear by Jttorney in Court; and then til D'Jemiirt pleads th.n tko Plair.t'ff is d:.!d. Triaji
Pais, 12. (10)
* Co. Litt. 59. b. 63. a, ^^
13. Of
Trial. 2!^
13. Oliuicicnt time upon Profcrc of Deeds, the Court on View judged The Jurors
them void it' there was Rcifiire or hitcrlnieation in Places material ■ Eut ^I'etotr) the
now it is kit to the jury to try whether it was done betore the De- the^fuds^
livery. Hawk. Co. Litt. 311. (225). ought tl
judge ac-
cording to the Law that arifes upon the Fad. Ex fafto Jus oritur Co. Lict. 226. a. b,
14. In Ejeftment by F. againfl: P. P. was cntlawed and now iLewed by
Way of Pica, that the Outlawry was erroneous in this, viz. Ad Com'
mctim tan' 30 Jan. 29 Eliz. whereas the faid Day was Dies Domtniciis ;
and fo there was no County Court. It was the Opinion of Windham
that this Mattter did well lie in Pleaj for it is apparent within the Re-
cord, as in the Cafeof 'BtOCliCt and Jfifij • Plovvd. Com. 266. Rhodes
and Periam were of a contray Opinion, and faid the Cafe cited is not
liice to the Cafe in Bar i For there it appears to the Court, as Judges,
when e\ery Term begins and ends ; but it is otherwife in our Cafe,
whether the 30 Day of January be dies Dominicus necne^ for it ftall
be tried by the Country, <:<:c. 4 Le 120. pi. 242. Hill. 29 Eliz. In
C. B. Fitz. V. Pierce.
15. B. a Reader of the Temple brought a ^tio Minus in the Chequer '^, ^- '^"^'^
againll P. for viatntaimng a fuit againft the Statute, &c. who pleads that ^''°; ^r'r'^'
he was admitted in the Inner Temple, and Si-udent for many Years of ^ant to*
there J that he was Conjilianus k3 in Lege ernditns^ &:c. and fo juftified. <J5ohnan.*
B. replied, dc Injuria fiia Propria abfque hoc quod in Lege entditiis. Sec. (Kc ^I'ch, 41 &
hoc petit, &c. &c defendens iimiliter. It was moved that the Defendant Qg^r" '" •
Ihould demur to the Replication. Exception was taken to the Traverfe was adjud^-'d
and Concluiion ; for it cannot be tried by a Jury^ for if Matters in upon De°
Law be to be tried by the Judges, a fortiori the Learning of the Law murrerto be
ought to be tried by them. But Manwood Ch. Baron, faid, it Jhall be '^^piU ^""^
tried by the Country. 3 Le. 237. pi. 326. Mich. 32 & 33 Eliz. Brough- cannmtry ir.-
ton V. Prince. But he aighe
to have flcad-
eti that he hnd been a Student in fuch an Inn of Court, avd called to he an Utter Banijler. S. C.
cited by Aiiderfon Ch. j. Ow. 128. in Cafe of ^ant to. CottOH, S. C, and fays, it was adjudged no
good Pica, and that he fliould have pleaded as above.
16. Whatever the Judges of Record do as Judges., fliall not be tried
by the Country. 9 Rep. 30 b. in the Cafe of the Abbot of Strata Mar-
cella.
17. The Contents and Sufficiencies of Deeds are not to be proved by the Nels. Chan,
Teltimony of Witnelfes i the Con£tru£fion of Deeds being the Office of Rep- i7-
the Court. 3 Ch, R. 92 Earl of Suffolk v. Greenvill. ^ ^qIL,
2 Freem
Rep. it!,6. pi, 191. S. C. accordingly.
18. If one appears, and fays he is the Plaintiff, Whether he is or not Trials per
flmll be tried by the Judges. 9 Rep. 30. b. cites 34 H. 6. 43. P-^'s 12 Cic)
(F. z) By the Court. In RefpsSi of the Pkad'nigs.
I. T N Debt upon an Obh'gation, the Defendant faid that it is in-
\^ dorfed, th-sx. ij the Defendant, or any for him, comes to Bri/low fuch
a Day, and there pews to the Plaintiff' or his Counfel, fnfficient Difcharge
cf an Jnnuity of ^o s. per Annum, which the Plaintiff ctaiins out if two
Meljtiages in D, that then &c. And faid that A. and B. by Allignment
of the Defendant, came the lame Day to B. and tendered to fsezv to N.
and
24
Trial.
and W. of Counlel with the Plaintifl' a fufficicnt Difcharge of the An-
nuity, and they refiiftii to fa it; Judgment fi Actio. And it was a-
warded no Plea by all the Jultices alter great Argument, becaufe he
{iid not Jhew •what Dtjcharge be tefiderd^ as Re/eafc, Unity of PcJftJ/Ion^
&c. For this lies in the Judgment oi the Court to adjudge it ; but if
they fay that he did not come there at the Day, this ilull be tried per
Pais. Br. Conditions, pi. 183. cites 22 E. 4. 40.
i-"at dt^' (F- 3) ^y O^wrj of Courts, Attornies, ^c.
Kecord (R).
S C refer- I- O -^-^ Thomas Seton, Jujlice^ fned Bill in the Exchequer againji J. S.
red to 9llep. v^ inafmuch as he called him Traitor in the Exchequer in the Prefence of
iz.-&.wQ,-i^e.the Treafiirer and Earon, to the Damage of 1000/. in Contempt of the
oftheAbbot j^lj^g.^ ^^^ jj^ Scandal of the Court, &c. and the lifue thereof was tried
Ma^^dla h' -Attornies of C. B. and of the Exchequer. Br. Trial, pi. 150. cites
30 All 19.
2. A. B. heat a Feme, and ihe brought Bill againft him in B. R. inaf-
much as lie beat her, as Jhe was ■piirfiung her Biijinefs in the King's Court i
and Pannel was made by the Marlhai, of People who had Stalls of Mer-
chandize in the Hall i and this by Command of the Jultices. Br. Bilie.
pi. 44. cites 43 Air. 18.
Br. Bille, 3. Diffeifin of an Office in Bank, or Rafiire of a Record.^ lliall be tried
jpl ;i cites ^y fi/jzer, and Attornies cf the fame Court. Br. Trialls, pi. 104. cites
Choke; and 1 1 ^- 4' 2-
that it fhall
not be tried by Serjeants. S P. Trialls per Pais ii. (loy
4. Nothing triable by an IfTue between the Parties can be direBed by
the Court to be tried by Reference. Per Ld. Ch. J. Comb. 3 Hill, i & 2
Jac. 2. B. R. Anon.
5. Irregularities in fulng out a Judgment are to be tried by Refe-
rence, &c. but other Matters fublcquent to the Judgment by Audita
Querela. Comb. 14. Pafch. 2 Jac. 2. B. R. Anon.
rv^A-xO^G) Trial hfy Mouth of the Recorder of Londofj. In what
Cafes it fhall be tried by the Recorder, and not per
Pais.
Br. Trial, i.rTp^J^e Cuftom of London fljall 1)0 CCtttftSl! ll? tIjC S^fl^Ot aitU
^Ie'^'T ^ aiBcrmcn, bp tlje S^outl) Of tlje Kecorijec* Co> litt. 74.
This Certi- iI3CU3 CntnClS, 'STltlC Debt. 144- €0.9- Abbas strata Marcella^ 31. |j.
ficatc is not 2 K* 3- 3- b. ©iHe X B» 3- 4- b*
to be made
in Writing, but the Recorder of London is to certify Ore tenus, by Word of Mouth ; for the Re-
corder is intended to be the bed Conufant of the Cuftom, and he is intended to be always in London ;
and therefore it is for the greater Dignity of this Court, that he attend in Perfon to give Satisfap.ion herein,
than to make a Certificate, which •will aljo require Jfltnejfes to prove it, and confequcntly more Trouble
and Delay in it. Tr. 15 Car, B. R. But not if the Cuftom do concern the Lord Mayor particularly ;
Per Roll Ch. J. L. P. R. 251. tit. Ceniiicate.
2. In
Trial.
25
2. 3:n ^«ctton tu'DUBijr, it Defent!ant}3iCiirig(,ThattheCicyotLon- ^Mo.b,!.
don has uled to have ol every Boat brouglit into Queenhithe, and there p '.''^9-
unloaded, lb much lor Wharfage i tO toiJIClj Plaincilf liiys, That every reiblved ^up-
Freeman has been ulM to be quit ot' Payment thereof, by the Cuftom of onlongDe-
theCitVi to iUljlCf) Deicndant rejoins. No fuch Cultoni as the Plaintiff bate and
has alleccd i tljlS ^ffliC fljall HOt U tXitH tJJ? tfjC HCCOrtier of lOimon, ^^'"'^f^
£)rc tcniis. iif. 12 3!a« Cit?. brciuccn £»^>' ^//^ 20;/;;^^, pet Cutiam c pi x'^ud
foutra. "But after, as 31 ijanc atn in aiiotljcc Eepott, loijcte it is cH)pi. 3.
mcntioiru tiiat it mm bctmmx * -Day a»^i savage, t>, 13 3ia. itioae
aD)itDi\fD per Curiam, tijat it (Ijall lie trieU per pai^i ann it teas fa
trico after accorDina;iD at 'Bar, ticcaufe it concem'd themfeives, rciU=
i:cr, t\)t Corporation iljall tie tlje lunge in tijeir ouin Caufe ^ ann i3e= t Hob. s,-.
CaUfC it is but in nature of a Prefcription, ttjeP fljall UOt ttg it tljCUV P'v,^'+
fcl^r^. * !J3obart'0Ecport0, 117. fame Cali\ ^^
^. 3'U an SlCtiOU of Debt tam pro Domino Rese quam pro feipfo Up^ Jo. 412- p'-
on tlje statute of s El- for uiing the Trade Of "s^al^ui0 aun ipeaOino; /:"^if'[5f^
of l^OintSi, not being bound to the Trade nd aU SpptCntlCe asjainlf ton S C
tlje Statute* 3ntl tije Defendant pleaded tljat tljeue IJj a Cultom in and' the '
London, that every Freeman of London, being free of any Art, ^p= whole Ccurt
fferp, or ©CCUpattOn, may ufe any other Arc, ^PftCtp, Ot ©CCUpa^ n?n'*Ta''''
tiOn, in the City, of which he is not free, nor has been as an Appren- "he"ceniS
tlce tljCretO for' 7 ^CarS ; lUljCrCUpOn IlTUC ijS jOinea, whether there cate was' '
be any fuch Cuftom Ul LOntlOn i CijiS OU^tjt tO bC ttlCD h]) tlje S^OUt!) go°d ; and
of tbe Kecoroer, tljo' it concerns tlje i^tng ag locll a0 tlje ©ulncct, J'^'^s""'<="^
nnti alfo tljo' it 10 not Ufee to tlje Ctiftoai of Mortmain, aun fact) an= pTaintTs —
cient Cuftom^ cuncernimt lant), ant! of Deuifeg tJjereof, iuljicfj cro. c. ^i^-
tia^c been ufcli to be trietJ hv tlje O^outO of tlje Eecomer, p. n pi. i-. s. c.
Car* 15* E* betuieen yippktajie and smigbton i tUU uia0 certificii bp ^'''" n'T
tlje c?5outlj of tijc Eecotoec ^afon, upon a iSDrit 5ircrtc5 to Ijmu bemion it"
3nti Ije certified tijat tljerc luag not anp fucb CtKrom in lontion ; was refohei
for Ije linO, tbat bj) tlje Cuftom, he that is free of one Manual Trade by all the
cannot ufe another Manual Trade of which he is not free, nor has been 9°"^' -^Y^
Apprentice thereto for 7 Years ; but tbat otherwife it is of other Trades \^.^^ o-ood
which are not Manual ; nUU \0 Certificate teCClbetl bVJ tlje Court Qe efpcaall/ as
bene cffe* OBut per Curiam nubitatur, iuljetljcr it ougOt to be tricU t^e piamtiff
bp Ijim i ann tljcreforc tw $|9attcc uja0 moben for Caufe in arreft ^^' ^'f"^" -
ofjubgment* Cr* loCar. 'B* E» Eot. 56. ClStit after niberfe S a ''
arn;ument0. it toas abnttigeli ^. 14 Car* tbat it ton.s taell ccrtifietJ cuftom, that
bp tlje S^outb of tlje Eecoruer ; ana :jutiQ;ment gibcn accotbtnglp '^ ^^n be
for tljc piainttft* iQote, it tuajJ aberreb, anb not oenieb bp tbc De= '^ ^^'^'^e'^'
ftnbant, tbat fucb Cuftomsi ougljt to be tricb by tbe i^outb of tlje fcndit his
Eccorbcr* anb note, tbat ^r* 10 car* 15. E* in an information confeis-a it,
tp * Fletcher asxalnft Bagjhaw^ tam pro Domino Ecgc quam pro '^ =>' f'^'^
feipfo, upon tbe faib ©tatute of 5 Cli?* tbc aimeimic belnir joineb, if,^'""".°^
tbe Eecorbcr Littleton certifieb bp W 93atitb, tbat tljere x&m not ask were""'
anv fucb Cuftom i anb after it tDa0 mobeb iw arrcft, anions otber by his con-
Caufe0, tljat it ougijt not to betrieb bptljc C^^outij of tlje Eecorber, J^"f. ^e
tbc iDbicb 10 m bcpenbins* J/j; ^^^
Trial, except againft it.' ♦ Cro. C. 561. S. C. and the Cuftom certified Ore tenus, ai is reported
above to have been certified by M^fon Recorder.
4. Note, per Eilinge, if 2. Record in London is pleaded in C B. and
the other fays that Nul tiel Record, in this Cafe the Recorder ihall cer-
tify it Ore tenus, be the Record before the Sheriff of London, or before
the Mayor. Br. Record, pi. 7. cites 34 H. 6. 42. — But it is fiid there that
it was held contra 29 H. 6. 32. where the Writ went to the SheriiT of
London onlv to certify the Record before them, and not to the Mayor. ^ r>. p .
And fee * Tit, Error 18. that upon Writ of Error lued of Error in London p] ,'g ^-|'°^*
H before 34 11. 6,41,
26 Trial. ,
before the Mayor, the Record Ihall be certified Ore ten us by the Re-
corder. Ibid.
5. In iZrefpafs cgah'fi the Mayor and Commonalty of London, they
jtijiifv it hy a Ciifom there, the riaintiif difcharges himfelf by another
Cultom there ; IJJiie is joined tipon a Ciijiom cf the Difcharge ; this ihall be
tried by the Country, and not by the JVlayor and Aldermen by the
JNIouth of the Recorder; for none can be Party and Judge in his own
Caufe. Jenk. 83. pi. 62.
6. A Man would fet up a 'Tavern in Birchin-Lane, and rhe Mayor and
Co7?w2onaky knowing that was not a fit Place for a Tavern, forbad hint;
but he erefting it agair.ll their Wills, they imprifoned him for his Uifo-
bedience. Upon a Habeas Corpus it was adjudged, that he fliould be
remanded 3 for the Mayor and Commonalty have an Authority over
him, and may appoint a Place where a Tavern might be erefted ; and.
the Recorder ccrrified the Cuftom, that the Mayor might appoint a
Place. Mar. 15. pi. 34. Pafch. 15 Car. Anon.
7 Debt upon a By-law, that every one ek^ied to the Li'jery of the Com-
pany, before he ivas IVardeu oj the 7~eoumnry, Jtocidd pay 2.$!. to the U/e of
the Society, and Ihewed that Defendant was eiefted Sic. The Defendant
pleaded the Ciijfom of the Ciry of London, that no Manpoiild be chofen of
the Lii'ery of any Company, iiho was not free oj the City ; and that he is no
Freeman. The Plainti_ifs deny the Citjiom, & hoc parati funt verificare.
The Defendant demurs, becauie the Plaintiffs fnould conclude to the
Country. But Curia contra j for the Cullom ought to be tried by a Cer-
tificate from the Mouth of the Recorder. 2 Jones 149. Pafch. 33 Car,
2. B. R. Leatherfellers Company v. Eeecon.
Fol. 580.
(G. z) Trial by the Recorder of London.
Br London, I. TB Debt, if tIjC Cuftom of London bC plCatseU, itltU JITtie taltCtt
pi. 24. cites I iip0„ tjjj; (j^uftoiji, it fija!! be tricQ bj? tlje RccorHcr bp iji0 Cct:=
thaTifthe tificatc from b{0 Q5oiitlj* ^i (S. 4. 16. b« tciig j (£♦ 4. 3°- Xrocit
Cuftom be in Ctial 96. iino '^itlc jLoution 17*
IfTue, and
the Party would have it certified T'ithout Jury, lie mud furmife that fuch IITae fliall be tried by the
Certificate of the Mavor and Aldermen, by the Mouth of the Recorder Ore tenus; becaufe otherwife
St iliall be tried per Pais. Co. Litt. 74. a.
2* 3in fl QjJo Warranto for certain Liberties claimed by Cuftom ill
lonnon bp tije ^ui'or nnD commonaitp, it fijall be certified bp ti)c
^outl) of tIjc Eccoinei** OSrooU* lonQou i?- iSClU-^te iuljnt %v
bcitp ijc intenns ; foe it feeuiis djntifit be of a Liberty ot Profit, tijcj?
cannot certifp it*
* It feem. 3* Ju BU SlCtlCn Of Debt upon an Obligation, If tijC DefenUailt pleads
milprinted a foreign Attachment in London, bp tljC CUffOUl Of tijC €\t^; tijilS HjaU
forcb) jjj. j^ijsQ jjp jjjj. ceitificate of tlje Eecarrser SDre tenu0. 2 i\, 3. 2.
* 6. 3. 22 c» 4. 30. b» £)iri Cntrifgi, Citle Debt 157- £>. 6. 7. e^ 6.
82, 72. b, 5 (£*4. 30.
4, Jin an aaiOn of Debt upon an Obligation, tIjC COntJStiOn lUljCtC-'
of 10 to perform the Covenants of an Indenture ot Apprenticelhip in
London, tljC DefCnDaUt pleads a Cultom in London, that the Indenture
ftall be void if it be not inrolled within a Year, and tljlgi CUSOUt is
traverfed, It fljiHl be xxxz'^ bi' tl)c B^ai'ot anOjlTomnicualtP, b}) tIjc
^outij of tijg Eecotoet* Cohe'^ entucs, '(i^itlc Debt 144-
5* 3if
Trial. 2 7
5* IfU Cullom llCillfCrtCt!, that every Man may devile Land in Lon-
-don, ana tljc Cuaoni i^DcntcD, rtdjaU be tricD lip tljc Certificate of
tljc -Wa^^qh $c. Up i^aiitlj of tije Ectorner* n lo. 7. 21, D, s, 9^
CI. 255, 3. 'iinjis CiUrom 10 annerco to t!je InitD*
6> 3|f itiJC alieiXtlS, t'jat by the Cmtom of London there is a Market Hob. S;. p!;
every Day of the VVeek, ailH tfjC Otljei* p!cat!0 (tC. autl tCa^CrffS UJItij- 'iti"^?'''
outtfjat tijat tljei-ew;!^ a ii5arkct cuerp Dap of tsje iiaceU, tijIgilS-"'
fl)a!i be tiicD per \?m^. anti not bp tije Certificate of tlje Eecornec. dres 1";.
p. i2:ja.'B* Ciji0 precenent [uiag] fijctuu to tbc Court in tIjeBiifo,d v.
-Cafe betiyeen Day a fid Savage, becaufe tlje Jffuc tOerc i^ not uoon tljc ^°^^-
Ctiftom, but ta!jctl)cr t^erc befucij ^arKct, or not* 'QCljiisi'prece^
Dent Uia0 bctiueen Biifordaud Lea. ^\t\), C57, 38 C!»
Eat* 414^ atijungel!* Ipcbart'^ Eepart^ 119* cites tljis^ ann
iigreey iu
7» Jf a Plaint be before the Mayor o^ London in A£lion of Debt, or „ .
before the SheriiF there in his Court, and a Ciiftom of London is pleaded NotaVmen
and denied. It fljall bc tticti bp t!jc $|9apor anrs saiDermen bp Q9outlj that this has
of tije KCCOCDer* 39 1)> 6» 34* b» " teen always
8* As m action Of Debt before tijc Q3apor of Lontson, if tlje De- ^"^-^y '"'%
fenHant wages his Law, and Plajntili^alleges a Cullom i!l lonnOUj that ti" Re-'^
if the Pfaintiif ihevvs any Bill or Muniment of the Defendant, fealed coidei- by
with his Seal, and delivered by him, witnefling the Contrail: i j'f tljtlS Parol Ore
Cuftom be oenien, it fljall be trieQ h^ tlje i^avcr* 39 JD* 6. 34. b* 'f""^ ^"'^
QDraofee,CitlelouBou,i7* ^ " ^m^L
ing Recorder there, had certified feveral Times; and that lie had claimed this Liberty for the City of
London in a Quo Warranto, when he was firft Recorder there.
(H) Cuftonis of London. Recorder.
I. T7|Tfi3<2cil!l a Record of the City is to be certified to tlje COUtt Of
W B. R. the Mayor &c. a tCnipOre $C. confueverunt habere
Quarentenam I'uam, fCtllCCt, refpCftUUl 40 DicrUUT ut ipfi interim con-
i'ultius & providius avifare fe poliint cujufmodi Recorda in conlimili ca-
fu fuerint lacienda fiuU tfjcte tljcp prap to ijabc Eefpcctum 40 Die=
ruuu libem aJic0batuss* $^. 2€*3' "B. K. Hot* 120. sec 34
t>. 6. 42. b* tljcp ban 40 2:>ap0 to certifp a Eccorn out * of ^>*
93avt!n'0, luljicb i^ to be cectifieO £>tt tmm bp tfje $^out!j of tijc
Eccovbct*
2. i©bett tbe plaintiff pleatijs a Cufiom of Lontion, which is to be Br. Trial,
certified bp tijcS^apor auQ laiaermeu bp tljc i'0ont\) of tlje Eecorbcr, f96- cites
tbe PiaUttiff ought to make a Surmife, that when the Cullom of tiie |'. .jrT~j
City is in Iliue, it has been ufed to be certified by the Mayor and Al- pi r^s*! ci'tes
dermen, bv the Mouth of the Recorder. jLOUn; 5 C* 4- 30. fo ConC, ii E.4. 16.
am fo 10 tlje afage at tljis Dap,
3. 3n Action of Trelpafs bp 3. npinU 15* for taking of certain Sty. i?--
Goods J if DcfcnBant pleads tbat tbere is a Cuiiom in London, Cimc 'Y 9 /'"'^
MjereOf^^CniOrp, fC* that if any carry Goods about London to iell, pj;;,,[''J^'^:^*
not having any Shop ill aup PlaCC within the City, iUljOUl tljCp Cali vikge, as
i)atefecr0, that then he Ihall torteir the Goods to the Mayor, Citizens, well as Point
and Commonalty Of LonbOn, auD tljat It fijOUlD bC laiL'lUl tO anp "^"^'"'^If^' '
ifrccuian of tHe Citp to feife ann beliuer mm at tije Cijarabcr of \"i,;,J;t '^'•
tljc CitP to tlje uk or tbe niin Si5apor, Citi?cn0, anb Comnionaltpi MUhiai.
anb becaufe tlje piamtiffcarrici) tljofe (£oods about tijc QLitiK mv- Bat the k?-
trary to tlje latb Cufioui, Ijc fcifeb tljcu], 5c* 'Wo luljicli ti)c psanv pv'-^ f^^vs k
tiff vcpiicu, ttn-tijerc ip \m anp tucij (iimm nntijin tije Citp. 'm^ ^'.rTe'^
2 8 Trial.
viKther the Culfaiii oiwijt ttct to lie tctcti 1)^ m ?iMvot anti aiccrmcii, bp tijc
tion or not ms,brtiyccn ^Av/Y/^ ^A'^//.wra/fe, aBiutigcriper Cunam,aftet: tijnt itiBass
and'dUHnft ttFt) lip tljt €utifitm gUIjz ^iWHt nm ^immzu tip S^autSj of
from the jj^j, j^^ccorDcr ; am nBjUBixen a C^iSrisi, ratn tijiU tijcre fljaiUj be a
riKr'°" iteplea-occ ann 'G^csai p^f l?aij3. ■smmt. '^u 23 cai% 05. E»
which cer- iROt* 1772-
tificd this
Cullom by the Mouth of the Recorder, and that this was the fole Doubt of the Cafe.
( I ) Trial. Bj> whom it fhall be.
JBr Trialls i.TiI5 ait AfTife, tf tljS WUC bC whether the Land was extended in an
pi.T 7 cites J Elegit &c. It lijail be men up tije Extenders )oin'n tuiti) tijc affife.
SC. 31 am 6.
See Diiceit ( I. z) Trial bv Summoners^ Permrs, Fetors. By which
^^^^"^ [of them.]
* Br. Trialls, I. "VT OT compriz'd upon a Recovery upon Grand Cape fljaH hC
pi 15 cites 1^^ jj-j^g tjj, (ijj penior^ m tfje <&ranti Capei for upon tde
itisfkid"' ©rauliCapetljelanDi^tcircQperViiumpcobocum ijominum. *48
thatitihlii €♦ 3- 12. 48 c(ff> I. Cima*
be tried by ,
the Summoners, Veiors, and Pernors. Br. AlTife, pi ;4. cites S. C. Br. Comprife, pi. 6. cites
S. C. Nient Comprife, pleaded aeatnjt a Recovery in Jjfife, was tried by the f.rfi Jury. Br. Trialls, pi.
15. Br. Record, pi. 14. cites 44 E. 5. 45. S. C.
If a Recovery or Pnccipe be pleaded, and tlie other fays Not compri/ed in the Record, it fhall be tried by
Summoners and Veiors, and not by the Juftices, nor per Pais Co. R. on Fines iS. 9 Rep. 52. a. ia
the Cafe of the Abbot of Strata Marcella, cites 10 H. 4. ;. and yet there is no Remedy if they fay
ialfely.
* Br.Trialls, 2. But OtIjetlUife It 1.6 UpOlt a ECCO^erP upon Petit Cape ; fOC tljl'lS
^QF ,"!? ^^^ "tit P" ^ ''"""^ ^c* * 48 €. 3- 12- 48 Sff» ^- S(Ot tljere ace not
5 (2
Bi-. Affife,
pi. 34. cites S. C. Br Comprife, pi, 6. cites S. C. 9 Rep. 52. a. in the Cafe of the Abbot of
Strata Marcella, cites S. C.
anp I^ernor^ in tijc l^ctit Cape
* Br.Trialls, 3. But tljC^rtal \\\ tljIlS fljall be bv the Summoners in the firft Writ,
,,1 ,c r,res ._j ^... ^. ^r .: ^, ... :...,.. tt.u.... .- -.• ^.r-r , , SummOHerS in
e» 3- 12. 48
^<?E -"'" and by the Veiors in the Habere facias Vifum, and the Summoners in
S q^'2LL. ' tbe Petit Cape, without mention of the Pernors. * 48
Br. Affife, ^IT* I*
pi. 34. cites
S. C. Br. Comprife, pi. 6. cites S. C.
4. 3!f ^'ot compriz'd \st pleaded to a Recovery in JtBtttOf Dower,
toijere tlje Recoberi) tnag upon a Petit Cape, it fijall be tneo bp tije
^ummoncr0, ttjo' tije firf! !©rit laas General ot her reaionabi'j
Dower, without mention of any certain Land ; fOC tljete OUgljt tO be tl
@)umutoncr in t\M JiBrit, ot otljcvU-ufc tIjc l^ecoi^etp i^ nat good*
48 s«r. I. 48 c^ 3' 12, an)utiQ;en»
5. m'^
Trial. 29
5. Affife of 4 Acres. The 'fefiant pleaded Recovery againjr the Plaintiff'
hiinfclf III Writ of Entry fur DtJTu/in of the Manor of D. cf which thofe
Laiids are and were Parcel^ and -j^ere put in View, Judgment it" Affife. 7'he
other faid, chat nut Pared f the Manor, nor ever ivere ftit in Vienu as Par-
cili and pray'd the Aliilc, and the others e contra. This IlFue fhall non
be taken without making Pyaefs agairiji the Veiors in the (irfi Atiion,
theretore Day ivas then given to the fiext Seffions ; and the PiaintifF was
order'd to alcertain the Court, that they were the Veiors in the firil Ac-
tion by th,e Record ; and Writ ifjlied out of Chancery to afcertam the Court
th.it they were the Veiors, which Record was fent out oi^ Chancery before
Thorp. AJ'ter which iffued Ventre facias to make them come, and the She-
riff return' d, that the one was warnd who came ; and as to the others^ that
Nrchil halent &<.c. by which Thorp awarded the Affife, and would not
adjourn it into Bank ; fo that Procefs might be made in the County of
N. where they hud AlFets, as the Tenant pray'd i and thtVeior was fent
to inform the Affife; who fat d that he knew nothing of the View ; by wliich
the Court dtfcharged the Affife of the View, and charged thcrn only if it was
Parcel of the Manor or not. Br. Trialls^ pi. 75. cites 29 All! 7.
6. In hSdonoi Deceit upon Recovery in Practpe quod reddat by Default,
the Deceit ihall be tried by Examination of the Summoners and Veiors,
and not per Pais. Br. Trialls, pi. 3. cites 33 H. 6. 8.
(K) /a; rjofjat Cafes it (hall be tried by them.
i.TJi5 fUCljCafeei where, by the Aftion tuIjl'Cl) i£i brought, the firft
X judgment ihall be deleated, tlJCtC tljC Ctlili Of t!)C Summons fljaU
hZ by Summoners $C. "BUt OtljCtUUfe C COtltta, i I?, 6. 5. lj»
2. As in Diiceit for falfe Summons in Precipe quod reddat, it fllilU Si-. Triall,
U by the Pernors and Veiors i IJCCaUfC It ISi tO DCftilt t^C fitft lim- g' ^'- ^"«
ment. i $^. 6. 5. U. '^S,:,'^,
, Difceit upon
Recovery by Deftiuit, fliall be tried by the fiift Veiors and Pernors, becaufe tine firft Judgment is to be
defeated. But upon fr.lfeStimmovi return' d in Scire facias upon KecogV!Z.ance, this maybe tried by othec
Jurors ; for it is not to defeat the firft Judgmeat, but is only to recover Damagej.
If in a Praecipe quod reddat ths Sherijf returns the Tenant' fummoned, ivhere ke 'xas not fummoned, hj
which the Defendant lofcs liis Land by Default at the Grand Cap; returned, the Tenant ftiall have
a Writ of Deccipt againft him who recovcr'd, and againft the Sheriff' for his falfe Re-urn ; and whe-
ther he were fummoned or not Jh all be tried by the Summoners, and Fieiuers, and Pernors, by examining-
of them. And in a Writ of Dilceipt the Procefs fhall be made againft them, to be evamined there-
upon &C. But if they are all dead, then the IVrit of Difceipt is loft ; hut a Writ of the Dilceipt lies, if
any of them are aliie ; for if they lay that they did not fummon him^ then the PhintifF in the Writ of
Difceit ftiall recover his Land, and ftiall be reftored &c. for it owrht to be done hi tzvo Summoners at the
leaft, and two Viewers &c. And if" any of them do not that which ii returned they ought to do, then
the Writ is not executed as it ought to be, by which the Plaintiff in the Writ of difceit out^ht then to
be reftored &c. F. N. B. 97. (Cj "
And therefore, if one of the Summoners fays that the Summons vias not made, and the other that it was
made, the Demandant ftiall recover. F N. B. 97. (C) in the new Notes there (c) cites S H 6. 2. 50
E. 5. 17. So if one makes the Garnipment, and the ether was on the Land at the fame Time for tiie
fame Purpofe, hut fays nothing, the Demandant Ihall recover. Ibid, cites 5 E. 3. 65. S E. 5. 6. 2 E,
3. 21.
that he is warn'd, by which the Plaintiff has Execution, if the Defendant brings Writ of Delceiti it
^all be tried by Sri'angers, becatrc :: ftiall r.oc defeat tti; firft Judgment, Jnd ihall recover o'.U Da-
I nia^as
c^o Trial.
niages for the Deceipt ; fo there is a gre;it Diverfity when a Man defeats the firft Judgment, and when
not &c. per June Cli. B. i H. 6. 5. b. pi. 51.
4. It Recovery in Writ of Dozvev tipon Default, after j^ppearance^ Is
fisad-ed in y^JJife, and the Plaintiff fays that Nient coiiiprtfe Si.c. this Ilfue
ihall be tried by the Summoncrs in the firft Writ, the Veiors in the Ha-
bere facias Vifum, and the Summoners in the Petit Cape. Br. Trialls,
pi. 123. cites 4 Air 19.
Br. Exami- ^ li Effoipi de Serv!tio Regis be call, yet the Summoners and Veiors
"2" ates^'' ^1'^^^ be examined i per Prilbt. Br. Difceit, pi. 6. cites 35 H. 6. 43.
S. C. that they fliall be examined De bene efle.
Br. Difceit, - 6. Land was feifed into the King's Hands after a Recovery by De-
pl 6. cites faulty yet the Summoners and Veiors Jhall be examined De Bene elfe.
Br. Examination, pi. 12. cites 35 H. 6. 43.
7. In a Writ of Difceit, if the Sheriff returns one Smnmoner dead^ yec
the other Summoner ihall be examined &;c. and if it be found chat he
did not fummon &c. the Party Ihail be reltored unto the Land. F. N. B.
98. CD)
(K. 2) \_Auctent U'^ays of Trial.] Trial hy Battk in
[Writ of] Right [and other C'wH Cajes.']
in Writ of i,Q(B€ tlje C^anner of it 1 1)* (>* 6* ij*
Right, the ^^
loin'd Battle upon the mere Right by the Body of^.C. ifGodpJve himScc. And the Demandant replied by the
Body of lis Ffi^"'"" J- P 'f f?"'^ ^*^- ^^'^ ^'-"^ ChampioK of the Tenant was commanded to put [/« hn] Gauntlet
lin each Fiuyer-fiall I d.'\ and after the Champion of the Demandant Jimiliter, and Day was given to them to
come in their ^rray ;upon which they came, and the one was put of the one Side of the Court within, and the
ether of the other Side within, bare headed, and kneeling on their Knees. And Babb. demanded of the Serjeants,
if they knew any thing to fay why the Battle fiould not be perform' d; who f aid that. No. PerCokain, fee that
they are Freemen ', and tlien the Ch. "J. received their Gauntlets, and fe arched if there were in each Gaunt-
let ') d or no. Jnd he jou?2d 'accordingly , viz. in each Fmger-Stall i Penny ; and frfi he gave the one
Gauntlet with the 5 d. to the Champion of the Demandant, and after the other to the Champion of the Tenant ; '
and demanded of the Champion of the Demandant, if he would perform the Battle ; who /aid that he would.
And demanded of the other the like; who f aid. Yes. And dem.jnded of the Serjeants, if they h.rd mi/pleaded
any thing or were mif-ruled by the Court, or had other thing to fay to retard the Duel ; who /aid that No.
Bv which he received the Gauntlets again, and awarded the Battle to be made./uch a Day &c. but at no Hour
certain ' and commanded one of the Champions to go to Paul's, to pray that God give him ViBory who has Right
to the Land ■ and likewi/e commanded the ether to go to If e/tminjler Church to pray, as above; ,jw<f commanded
that they po not together, nor come near the one to the other ; and each found Sureties by Pledges, to perform the
B.Mle, but upon%'0 Pain ; and the T'enant ftr/l fcund &c. And at the Day of Battle, the Dem.andant was
demanded who appeared hy Attorney; and Pafton for the Demandant, by^ the Commando} the Jtijl ices, re-
liearfed the Count, the Defence, and all the Continuance, and the Names of the Champions ; and prayed that
the Earl of Northumberland, now T'enant, jhould be demanded ; and the Demandant had his Champion ready
at the B.ir veiled in red Leather ; and it was commanded, that one fiould hold the red T'arget, and lis red
Baflion at the Back of the Champion ; And fo it was, but his Head was not jhaved, as the Head of an Ap-
prover or Appellor is, nor had his Bajlion any Knob at the End, as the Baftion of an Approver has. Buc
per Martin it ought to have a Knob ; and the Tenant was demanded folemnly to bring his Champion of the
Manor of T" in the County cf E. or he jhould to/e his Land from him and his Heirs for ever; and this was de-
jnanded " Times, and the T'enant made Default. Upon which Cokain, by the Advice of all the Juftices,
rehear/ed the Count, the Defence, and all the Continuances, and the Names of the Champious ; and awarded
that the Demandant recover the Manor of D. to him and his Heirs for ever, ^iiit again fi the Tenant and his
Heirs lor ever ; and that the Tenant be amerced. And bccaufe lie is a Peer of the Realm, that he fhould
be amerced bv his Peers, according to the Statute ; and therefore the Court would not put it in cer-
tain Ouod nota, and quxre to w'.iat Puipofe the Surety is ; for the Champion of the Tenant was not
demanded upon the Surety, as he who is kt to Mainprife is &c. Br. Droit de Refto, pi. 20. cites 1 H.
6.6.7.
2. Battle
Trial. 3 1
2. Battle was joined in ^tiod ei deforceat, becaufe it W2i.s founded upon
'jVrit of Right J and the Tenant maintained the Title of the tirft Writ by
.Battle. And {o it leems that Quod ei delorccat Ihall revive the firil
Suit. Br. Battaile, pi. 13. cites the Time of E. i. Fitzh. Qiiod ei de-
forceat 15.
3. Where Battle is waged, and Day given, the Demandant, or his So when the
Attorney, ought to come at the frji Day, "jDith his Champion, to the Bar, ^W''' i"'"'^*
and rehear fe the Words upon which the Battle was waged and offered him; 'f^' does not
and upon this the 'Tenant Jhall be demanded; and if they come they pall have''^^(^"'"'
Day over, and if not, the Demandant pall ba'-je Seijin of the Land at the
j\th Day, becaufe the Default Jhall be recorded at the ^h Day ; and if the
Demandant comes at the iji Day, and the Court fee him, and he does not offer
his Champion, and rehearfe the Words, and record it at the ^th Day, a Non~
fait pall be awarded. Br, Droit de R.e6lo, pi. 3. cites 42 E. 3. 14. Per
Finch i and agreed per tot. Cur.
4. In Writ of Right, the Battle was tendered by A. his Champion, by
Name of a free Man. And from hence ic feems, that it is a good Chal-
lenge to the Champion, that he is a Villein. Br. Battaile, pi. 8. cites
3 H. 6. 55-
5. Tne Battle fliall be made before the Con /fable and M.irfJoal, if a Man Br. Battaile,
call another Traitor, and not before the Jultices ; Per Prifot and Need- P'l,'^-,'^""
h.im. Br. Battaile, pi. 15. cites 37 H. 6. 20. Fitzh. Corone 23. cites s M r
ivhere it is
f!iid, that if Appeal of Murder he brought in B. R. and the Defendant joins Battle, it fial! be tried before the
jfiifiiccs of B. R. and not before the Conftable and Marfhal, £c concordat Braiton and Britton, that ic
ihall be before the Juftices.
6. The Battle was joined in .^itod pcrmittat f a Way. Br. Battaile, So in Quod
pi. 13. cites Fitzh. Tit. Quod permittat 10. permittatef
Efiovers of
Seifm of his Predecejfor, and counted in the Right. Quod nota. Br. Battaile, pi. 15. cites Fltih. Quod
jjermittat 9.
7. There never can be a Trial by Combat, where an Affife may not he ;
iior on the contrary. Dugd. Orig. Jurid. 74. cap. 27.
8. Writ of Right in Durham. The Tenant waged Battle, which
was accepted ; and at the Day to be performed, Berkeley J. there, exa-
iTiined the Champions of both Parties, whether they were not hired for
Money ? And they confefs'd they were. Which Confeffion he caufed
to be recorded, and gave further Day to be advifed. And by the
King's Direction, all the J uftices were required to deliver their Opi-
nions, whether this were Caufe to deraign the Battle by thele Cham-
pions ? And by Brampllon Ch. J. Damport Ch. Baron, Denham, Hut-
ton, Jones, mylell, and other Juftices, it was fubfcribed. That this
Exception, corning after the Battle g^^ged, and Champions allowed, and Sure-
ties given to perform it, ought not to be received. Cro. Car. 522. pi. 23,
Mich. 14 Car. B. R. Ciaxton v. Libourn.
(K. 3) Trial by Battle, hi Crlmhml Cafes.
X. TF a Man be taken at the Suit of the Party, and efcapes, and jiies, he
J_ iT^all not have the Battle j for this is a breaking of the Prilon of
the King. Br. Battaile, pi. 4. cites i Alf 6.
2. In Appeal cf Robbery before the Jultices at Newgate, the Defendant
tendered the Battle, and was oulled, becaufe he had the Manner in Pre-
fcncc.
32 Trial.
ience, & concordat 12 E. 2.. For Appeal is to two Eliects, that is, to ar-
raign tine Property oi tlie Chattels, and to attaint the Felon. Br. Bar-
taiie, pi. 5. cites 4 Aff i.
Br. Battaile, j. Jppeal in B. R. cj the Death of his Father, and Battle was waged
pK I. cites jn this Form: The Defeiulaht, wtth his left Hand, took the Plamtijf' by the
Fitzli'tit. Hand, and held his right Hand upon the Book, and faid, Man, whocalleji
Coione III. thyfelf A. by Name of Baptifm, that I, 'whocall myfelfj. by Baptifin, fuch
S. C. fays the a Day, Tear, and Place, did nvt kill your Father IV. by Name, as yon fv.r-
Dekndant ^if^^^ „or qj' //,/j Felony am guilty. So help me God, and ktfs'd the Book j
Hand took ^"^^ ^^'^ "^'^^ defend againji you by my Body, as the Court (hall aZJard. And
the Plaintirt' then the Plaintiff', "JJith his left hland, took J. by the Hand, and held his
by the left right Hand upon the Bock, and faid this. Hear you, Man, who by Baptifin ■
Hami.&c. nameji thyfelj J. that you felonionjly fach a Day, Tear, and Place, killed my
after the Father W. lyNavu. So help me God, and kifs'd the Book; and this -xiil
Plaintiff deraigu upon you by my Body, as the Court Jhall award; and 4 AlainpcrnorSy
with his left Body for Body, Kere taken of the Appellor, to appear the ^d Day, to make the-
Hand took £^f-t/^,^ .j^d the one and the other ihall be at their own Cojis. And it was
dant by the ^^'d, that always before now, there were not taken Alainpernors, but
right Hand, Pledges of the Battle, and the Defendant durlt not plead the Acquittal at
&c — - — the Stilt of the King, and yet had fe\eral Serjeants ; lor it was within the
But Ibid. Year, and after the PiaintiiF was nonfuited. Br. Battaile, pi. 6. cites
pl. I. Cites -Ir-
9H.4.3. 17 Air I.
In appeal of
Jiothery, the Defendant pleaded Mot guilty, and this he was ready to defend by his Body. Atid the
Plaintiff faid that he was ready to prove by his Body that he was guilty ; and the Jppelior liuis com-
mmidcA hy the Court to fah the Defendant by the richt Hand, •with his left Hand, and fay, '1 his hear you J;
by Name of Baptifm, whom I hold [by the Hand] that you fuch a Day, Year, and Place, robb'd me of
Cows ; and this I am ready to prwe by my Body, as lawful, upon yoar Body, as a Felon ; and that my
Appeal is true, fo help me God and his Saints. And upon this they disjoined their Hands, and the De-
fendant ly his right H^ivd took the left H.ind of the Plaintiff, in the fame AJanner ; and the Court bid him
fay, This hear you W. by thy Name of Baptifin, whom I hold by the Hand, that falfely upon me you
liave lied ; and for this you lie, that I the Day, Year, and Place aforcfaid, did not rob thee of the
Cows, as you have appealed me. And this I am ready to defend by my Body againft thy Body, that
my Defence is true 5 fo help me God Sec. Upon which the ^ppelhr found tm-o Pledges of the Battle, and
■went at large ; and certain Day -was given them at 'f. to perform the Battle, and the Appellee was commit-
ted to the KlarfTial ; and it was faid to the Appellor, that he iTiculd cone to the AJarpal the Nickt before
the Battle, fc that he fi oiild he arrayed and ready at the Rifug of the Sm;, atid his Head to be co'uered, and not
fiaved, and the Head of the Defendant to bejhaied.
4. 7'he Appellee in Battle was cajl to the Ground, and taken out by the
Court ; and it was demanded of him if he would fght any more^ who faid
that he would not. Et per Cur. If he will fght any more, he jhall be cafl
in this Difadvantage that he was before. Br. Battaile, pl. 15. cites 19
H. 6. 35.
5. In Appeal, if the Defendant he indited of the frme Aff, and the In-
diclmcnt thereof be in Court, the Defendant Ihall not wage Battle. Br.
Battaile, pl. ii. cites 14 E. 4. 7.
Br. Appeal, 6. In Appeal oi Robbery, the Tief^n^'int pleaded Not guilty, Prift by his
pl. 114. cites ^(5^,_ Lovel laid he is indittcd, as in this Court appears^ of the fame
■ Felony ; judgment if againft this Matter he Ihall wage Battle, and the
Indi£lment was read, which was Inquilitio capta 10 Die Maii Anno &c.
at R. which was Parcel of the Honour of B. coram J. U. Senefcallo,
which f.'.ys that W. S. according to the Appeal ; and becaufe it did not ap-
pear of whom he is Steward, nor in what Court the Indi£tment was
taken, it was held ill ; and where the hdtiimentis infufficient, the Defen-
dant may wage Battle. Contra againft a good Indiftment. So it is of In-
didment before the Coroner, and does not fay of what County ; and the Plain-
tiff'was not fuffered to imparl, becaufe the Defendant has pleaded Plea, by
which he has put his Life m Jeopardy. Lo\ el laid, we made frelh Suit,
and took him, and 20 d. of the Money oi which he did the Robbery,
in his Purfe. Judgment if againft this Matter helLall wage Law. Fair-
fax laid this is not Manner j ter one' Penny cannot be known tirom ano-
ther
Trial. , 33
ther. Hufiey fuid, it is a good Pica to fay that he was taken ivith the Man-
ner^ '■jsithotit fl:e-j:ing ■■j:hat the Manner was. And theretbre good Man-
ner, by the Opinion ot'the Court ; but Hufiey and Fairfax agrfeed, that
the taking with the Manner is not traverfable. Br. Bactaile, pi. 7. cites
Z2 E. 4. 19.
(K. 4) if^ho may i^age Battle^ or aga'injl ^whom it may be
waged.
I. TXTRit of Right was brought by the King of certain Tenements,
\ Y and he recovered by Default. But Brooke fays, it feems to
him, that in this Aftion none can wage Battle againjl the King. Br. Bat-
taile, pi. 2. cites 24 E. 3. 37.
2. It was faid, that an Infant may join the Mife in Writ of Right ^ and I/t'^e Plain*
try it by Battle ; for it jhall he made by Champion there^ contra tn Jfpeal;^}^^^ -wnh-
for there it ihall be in proper Perfon. Br. Battaile, pi. 9. cites 9 £. 4. Defendant'^
3 J'- cannot wage
Battle. Per
Hufley, quod non fuit Negatum. Br. Battaile, pi. 7. cites 22 E.4. 19.
3. If the Plaintiff be piaimed by the Defendant^ or by any other, f/^f Serjeant
Defendant cannot wage Battle. Br. Battaile, pi. 7. cites 22 E. 4. 19. per Hawkins
Hulfey, quod non fuit Negatum. ^^yf> '[ '^f™
. - ^ that the De-
fendant m an .appeal of Maihem inay in fome Cafes wage Battle ; but he fays he doj.s not find any In-
ftance in which Battle has been aftually waged in I'nch Appeal. 2 Hawk. Pi C. lOo. Cap. ;-. S. 28.
, 4. Dugd. Orig. Jarid. Cap. 28. fays, Tb^t Qergy wen, * Citizens of * S P.
London, Ferfons of f 60 J'ears ofjige, and Perfons Blind by Accident, aft& 2 Hawk Pj.
Ilftie iuin'd. were arw/e^ from Battle. C. 42;.Cap. j
-^ 45- S. 6.
Plaintiff be of the Age of 60 Years, the Defendant cannot wage Battle. Per Huffey, quod non fiiic
Negatum. Br. Battaile, pi. 7. cites 22 E, 4. 19.
5. If a Peer of the Realm, and much more if the King brings an Ap-
peal, the Defendant lliall not be admitted to wage Battle, by Reafon
of the Dignity of the Perfons. 2 Hawk. PI. C. 427. Cap. 45. S. 5.
Trial by Battle Hands repealed by Canon only, tho' fuliiciently ab-
rogated by Difufe. Petty'sConftic. 30.
For more of Trial by Battle, fee Selden de Duello. D. 301. pi. 40.
Lowe V. Paramour. Bendl. 199. S. C. 2 Hawk. PI. 426. cap. 45-. <
Dugd. Orig. Jurid. cap. 26 & 28. And fee there the lever»l Step'
and Proceedings therein.
K (K.5) Other
^4- Trial
(iC 5) Oth:r Am'icnt Jfays of Trial.
Spelm.Gloff 1. Y) Efore the Conqueft, there was a Trial, in Criminal Cafes called
Veibo Or- J^ Ordalutm, and in the Saxon Language Ortfiel, which is as inuch
tharOr f^s- ^^ '•'-' ^^y? ^^ expers criminisj lor (or) in the laid Language is privative,
nifics Mjg- and (del) is .Part, i. e, no Party, or Not guilty, and then the Defendant
hum, and beinfj arraign'd, and pleading Not guilty, might chufe whether he
(daei) alias ^qqIJ put himfelf upon God and the Country, which is upon the Ver-
fks'( ludic'r- ^^^^ ot^2 ^^" (^^ ^^^y ^^^ ^^^" ^° "-^'^ ^^y) °r "PO" God alone: And
um.)- ■ therefore it was called Judicium Dei, prefuming that God would deli-
Somner's yer the Innocent i that is to fay, it he was ot Iree Eltate, then per ig-
Glofiai-y, at uem, that is to lay to pals over Novem Vomer.es ignitos nudis pedibus ;
Dccenf" and if he efcaped illsfus, then he ihould be acquitted, and if not he
Sciiptores Ihculd be condemned : Et ii pars rea luit fervilis conditionis, then he
Anglicani, niight put himlclf upon the Trial of God, that is to fay, per Aquam ;
iays, that ,^^^ jj^jg jjj diverle Manners : Which all appear in Lambard Verbo Or-
S^^^nYan- dalium, with all the fupcrllitious Vanities belonging thereto. This
guageisa manner of Trial was called Vulgaris Purgatio, utterly prohibited by
Paricle of the Canons of the Church as Temptations ot God, and not lawtul
Privation, Tj-i^ls j and that they were invented Fabricante Diabolo : And in
°"'J^ o''^^*_ ^' Gioli^ dicitur. Vulgaris expurgatio Prohibetur, quia fabricante Diabolo
"ftances there- eA inventa, cum lit contra Prxceptum Domini, non tentabis Dominum
of, and t!iat Deum tuum. And after the laid Trial called Ordel, Videlicet, judici-
(Dale) figni- ^^ Ignit, & AquEB was oullcd by Parliament, and this appears Rotulo
aTon^foif- Patentium de Anno 3 H. 3. Membrana 5 . For the Record fays, Provi-
ference;) fum fuit per Regcm & Concilium, &c. And this was the true Man-
and that it is ner of the Trial of Ordel : And tho' this was firft prohibited by the
as much as Canons, yet it remain'd within this Realm in Ufe, till it was oufted by
to fay, Ju- Authority of Parliament. 9 Rep. 32. a. b. in the Abbot of Strata Mar-
jEquum, cella s Cale.
rliff rens neutri paftium plus judo favens fed Veritatcm oftendens. See Seldeti's Notes to Eadmer, pag.
^ignofH. 2. pag. 526.
Frum the Conijuefl till H- ; . Trials might be by God arti his CeHntiy, or the Uttcnder might chufe to be
tried "hy God alone, us in the Cafe of Trial by Fire and Water Ordeal, which was repealed by Act of Par-
liament inH.-. Time. Petty 's Conllir. 50.
Trial by the Petit fttry came infiead of the Ordeal, the Petit Jary of I a being after the Manner of the
Canonical Purgation G. Hift. C. B. 80. cap. 8.
2. There was, befides thefe, another Way of Examination, and finding
out Guilt and Innocency, in fome Criminal Caufes mention 'd by Lam-
bard in his GlolFary, by a Judicial, or Decretory Morfel, called by the
Saxons Corfned^ which according to his Interpretation, fignifies execrated
Bread. But Mr. Somner better derives it from the fame Cors, a Curie,
and Snged, or Snid, a Snidan, to cut ; {o that it lignifies an execrated
Particle, Morfel, or Piece. This is mention'd //; the Purgation of Regu-
lar and Secular Pnefis^ who, if accufed of any Crime, and had no Com-
purgators, no Con-facramentales, or Conjuratores, to fwear with them,
Gato Corfnsed, let him go the Trial of the Decretory, or execrated
,' Morfel. The Manner of giving this Barley-Bread, or Morfel of Cheefe,
Marculph delivers thus, After the Litanies and Omces for this Purpofe,
and the Barley-Bread or Cheefe fanftified, and exorcifed, and the accu-
fed Ptrfon had received the Communion, it was oliered with this, or
fuch like Form of Words, there mention'd. Ad adpolitam ei pro oftenti-
one veritatis, &c. That is, let his Jaws be Ihut againft the Creaturer
of Hallowed Bread or Cheefe, which is forced upon him, for the De-
monltration
Trial. 35
^monflration of Truth lee him be choaked, and in thy Name, let it be
call up again fooner than fwallowed ; but if he be innocent, and knows
nothing of the Theft, Murder, Adultery or Wickednefs, wherewith he
is charged, let him with Eafe and Health fwallow this Morfel, or piece
"of Bread or Cheefe llgn'd in thy Name. Brady's Compleac Hilt, of
England, 66. in the Notes there.
(L) Trial by the Efchentor. By whom it lliall be
made.
•I. T JI5 Affife, if t!jC Tenant fays that the King is feifed of the Land, * Br.Trials*
i ti)i0 fljall U tricti bv tl)e Cwmination of tlje Cfcljcator, if be p'- '-'• ^^'<^
t)c pmcut. 38 air* 16. 29 afl; ?• ^o- 4° ^ir* $■ 22 atn 5. * i ix 7. ^" pTt
m oftijemins, 32. '^ ffLrt
the Kinp; pencftng the VVrit, yet the Writ is good. Br. Aflifc, pi. 549. cites S. C. o Rep 2 1 b in
Ofe of the Abbot of Strata Marcella, cites 5S AlT. 16. & 9 H. 4, i. i*- J • •
2. But if he be not prefent, tl^ 3111(1(000 fljaU ItOt tntlttirC Of it* Br.THals, pi.
38 air* 16. i2i.citesS.C.
3. But it fljaU be triM by the Affife. 38 SIT* 1 6. i |)* 7. ^(0 He Bu'tBrooi'
Hop, 32. makes'^T^
4. In Appeal, if tl)C Exigent be awarded, and Plaintiff prays a Writ Quas'-eofthc
to inquire oi their Goods and Chatties, and to feife them, it niaj> bC ^"^' ^^ '^*
awarded to the Efcheator. 41 aiT* 13. ■'^'^'^■
5. Or to the Sheriff at tlje eieCtlOn Of tIjC COUtt* 41 aiT* 13.
6. Note that the Efcheator can't take Conufance of an Outlawry of Fekfir , J^''9''''»
h' Office thereof found, but by Record, quod nota ; but it ought to be certi- s c'^' ^"^.^"
Jj'ed by Writ of Record ; but he may fit and enquire of it by Office ; for he Br. Office
may find Matter in Faft by OfHce, bat not Matter of Record. Br. Ut- <i=*^ant, &c.
lagary, pi. 63. cites 2 H. 4, 5. S C !ij.*
Br. Office & Off pi. 51. cites S. C
(L. 2) Trials by Sheriff or Corotw.
i.T F an approver fays he commenced bis Appeal before the Coroner hy Dii- Br. Corone,
J_ refs, this fhall be tried by the Coroner, and if the Coroner denies pi. 7 5. cites
it,' he fhall be hang'd. 9 Rep. 3 1. b. in Cafe of the Abbot of Strata Mar. ^' ^-
cella, cites 12 Aff 19. 12 E. 3. tit. Corone 118.
2. If it be in Queltion Whether the Sheriff made fich Return, it fliall
be tried by the Sheriff. 9 Rep. 31. b. in Cafe of the Abbot of Strata
Marcella, cites 9 H. 4. i. a. b.
3. If Queflion be -whether fuch a one be Sheriff", it fhall be tried by Ex- S P. But
gmination of the Sheriff himfelf j and yet he is made by Letters Patents ^V?',"'^''
of Record, and therefore may alfo be tried by Record. 9 Rep. 31. b. in sher?ft'^niall
the Abbot of Strata Marcella's Cafe, cites 10 H. 4. 7. b. and 32 H. 6. be tried per
26. b. i'-i's Br.
Kxamina-
tion, pi. 26. cites. S H. 4. 20.-: -Br. OfEce & Off. pi. 9; cires S C — - — Br. Trialls, pi. u;.
cites S. C . .
4 if
36
Trial.
The Array ^. If a Return maiU by thcUndcr- Sheriff be licmai, it Ihall be tried by
impannclM, ^^ Undcr-Shcriff, and the Sheriff c.iiinot difavow it, if he contelles
W^he Un-"* him to be his Under-Sheriff. 9 Kep. 3 i. b. in the Abbot of Strata Mar-
dcr-Sheriff, cclk's Qifc, cites 10 H. 4. 7. b.
in Name oi . , . i
the Sheriff, (hall bind the Sheislt. And if the Under-Sheriff co.nfeffe'; that he is VTndcr-Shcrift, and
after denies the Array, his lirll Confeilion flvill bind him. Br. Office & Off pL 35. cites S H. 4. 20.
Co. Litr. ^. Trial by Certificate of the Sheriff^ upon Writ to him dire£led, in
H'^- caie of Privilege, {/ one he a Citizen or a Foreigner. 9 Rep. 31. b. iaCak
ot the Abbot of Strata Marcella, cites 10 H. 6. 10.
See (C. 2)
(f/pI.3.'4~ (^^) ^"^^^ fy Examh/atlofi. By whom it may be.
— (L)pi. I.
— (L. 2)
S. p. in a i.T N an Affife en Pais, it" tIjC Tenant fays Not attached by 15 Days,
>iota of the I jjjj, B,^ii^, {^j^.,{j {jj tr^iniineo -, foi; tljcp fljAll came before tlje JiiP-
ilTl^^ h. tm, tlje eijecuTs, nnO tljc Ooailic^* 3 ih 6- aff. 2. 26 rp. 6. gffije*
anCaleof 14. 27 JS), 6. 2;
the Abbot of
Strata Marcella. S. P. Jvd if it he found /r^ninfi him by Examinaiicn of the Bailiff, this is not per^
emptory. Br. Peremptory, pi. 66. cites 6 K. 2. and Fitzh. Affife, 462. Contrtt if it be found againff
him hy the Jfije. Br. Peremptory, pi. 66. cites 6 R. 2. and Fitih. Aff 462. and 22 Aff. ly. ac-
cordingly.
Not Attached in Jfffe fliall be tried by Examination of the Bailif, and not otherwife. Co. R. on Fines
iS. cites 8 H. 4. 7. a. S. P. Unlefs ex Affenlu Partiiim. Bl-. Trialls, pi. ;. cites 53 H. 6. 8. per
Danby.
s P. But the 2. But if the Baiiv be abfent, ft lijaU itot bc inqttircti bP tl]t QITi^e*
Tenant fhall jj g. aiT* 2. QLilXk.
aniwerover. •' ^* r- . ^, ,^
Br. Peremptory, pi. 66. cites 6. R. 2. ard Fitzh Affife, 462.- So where the Dcfer.iinvt m AfTifi
■pleaded Not Jttached hy 15 Days, and \hc Sheriff wasoppofcd, -who faid that he fcnt to his Bailiff who
made the Return ; and the Bailiff' vvas oppoled, v/ho /aid that his Bey made it ; and the Soy was demanded,
and didvot come , and becaufe the 5/;f ivf fciJ '■jcitneffed the Attachment, which fhall be intended according to
JLaw viz. by 1 5 Days, if the contrary cannot be proved, and it cannot be proved here, becaufe the
Eoy IS not prefent, and therefore VVilby awarded the Attachm.ent good, and the Defendant to apfwcr.
Quod nota, ahd this feems to be well, and that this is the UCage at this Day where the Officer is ab~
fent, and not tt) inquire it by the Aflize. Br. Attachment, pi. 6. cites 27 Afl'. 67.
But where the Tenant in Affife pleaded Not attach'd by i 5 Days, and the Plaintiff faid that his Servant
made the Jttachrjiejit, ivho vow ivas ahfetit, there a new .-/ttachment was awarded ; tor now the Servant
cannot be examined. But it w as faid there, that if the Bailiff Errant had made it, the Affife fhould in-
(uire thereof QiiKre inde ; for otherwife it is ufcd at this Day, and cites Tit. Affife in Fitzh. 461.
And ibid. Affife 2. T. 3 H. 6. that tlic Affife fhall not inquire it, where the Plea is to be tried in Pais;
otherwife where it is to be tried in Bank. Br Attachment, pi. i -. cites 26 H. 6.
Co. R. on Fines i S. fays, that if the Bailiff is ret pvefevt to be examined, the Tuftices fhall take the
Affife and the Affife (as it feems) tnult inquire if he was attached or not, cites 9 H. 4. 1.6. per Cur.
3. /// y^/I', the Defendant [aid that the Jurors have had the Vie'-M; this
fhkll be tried by Ei^amtnation of the Jurors Jingl]\ if they have had the
View, or know the Land ; fo that if the Plaintirf recover, they may put
him in Policlfion &:c. and fo it is ufual at this Day. But it it faid there
per Pilher, that at VVinchefter they tried by Triors, which is not ufual
iat this Day. Br. View, pi. 87. cites 22 Ali! I2.
S. P. admit- 4. If the Quellion be whether a Statute produced be a true Statute or nofy
ted; but ^Y\e Trial ihall be by Examination of the A<fayor and Clerk of the Statutes,
Ifllfewir ^ho took the Statute, and not per Pais. 9 Rep. 31. b. in Cafe of the
whether the Abbot ol Strata Marcella, cites 27 E. 3. 49.
Statute had
Z Seals or not, it itvas held to be well tried by Jury ; for the Statute's having 2 Seals is not recorded by
the Mayor, as the Statute itfelf is. Le 2iS. pi. ;io. P.ifch. :;3 Eliz. C. B. .Mcue v. Fuliamb.
Cro. £.'233. pi. 4. S.C, accordinj^lv ', fbr the having a Seal of 2 Pieces is a Matti-r of Pv.tt, and not a
M-ittcr of Record. S. C. cited Trials jxr Pais, 10. (S)
Trial.
V
5 It the Tenant iays, that he wa.^ Not fiimmon'd fee i(ndtfm Legem 'Ter~
rxj itjliall not be trad per Pais, but iy Ley Gager ; and Ley Gager coun-
tervails a Jury i lor the Tenant Ihall make his Law De Duodecima
bianu, that is to fay, ii belide himfell, (and this for avoiding of Law)
unlefs it be agiinft a Corporation, as Mayor and Commonalty; for then
it Ihall be tried per Pais f )r nccellity, becaufe they cannot wage Law. In
Writ ot Deceit upon Recovery by Delault, the Trial whether Judgment
was given upon the Petit Cape, Ihall be by the Summonersj if upon the
Grand Cape, by Summoners, Pernors, or Veiors, and not per Pais. 9
Rep. 31. b. 32 a. in the Cafe of the Abbot of Strata Marcella, cites 48
E. 3. I r. b.
6. At the Petit Cape, the Tenant faid that he was imprifoned 3 Days
Icjove the Default, and 3 Days after; this lliall be tried by the Examina-
tion of the Attorney. 9 Rep. 31. b. in Cafe of the Abbot of Strata
Marcella, cites 13 R. 2. Examination 22.
7. Exception was taken in Alfife that the Sheriff inas ultra Mare, and
had no Deputy m England ; this Ihall he tried by jury, and not by Exami-
fniaatioft j Per Galcoigne. Br. Error, pi. 50. cites n H. 4. j2,
65 92-
8 It lliall be tried by Examination of the Jiiflices, if the Parties who Br.Diiceir,
appear d in the Writ of Deceit, as Summoners and Veiors m the fir (I Recovery, P;^' ^""
^.re the fame Perfoiis who ferfi were returned or not. Br. Trialls, pi. 4. s'q !___.'
cites 33 H. 6. 16. S. C. cited
9 Rep. 31. a. in C:ifc of the Abbot of Strata Marcella.
9. In Debt by fevcral, where it is alleg'd that one of the Parties is
dead, this fliall be tried by Examination of the Attorney of this fame
Party in whom the Death is alleg'd. Br. Examination, pi, 35. cites 34
H. 6.45. .
10. Altho' a Man be found Ideot by Inquijition taken before the Ef- 9 Rep- 5^-
cheator, or before the Sheriff, and by their Examination &c. and that be ^ 5- ^- '"
returned into the Chancery j yet he, who is fo tound Idiot, may in Perlbn, Abbo° of ^
pr by his Friends, come into the Chancery before the Chancellor and the Strata Mar-
King's Council, and Ihew the Matter, and pray that he may be examined cella, cues
before the Chancellor, and the King's Council, whether he be Ideot or ^- ^- ^•
not; or he [his Friends] msLj f tie forth a Writ out of the Chancery to
certain Perfons, to bring him, who is fo found Ideot, before the King and
his Council to Jieflminjier, to be there exa^nined ; and if he be brought thi-
ther, and examined, and found to be no Ideot, then the Inquilition
found before the Eicheator or Sheriff, and alfo the Examination which
the Sheriff has made, and return'd thereupon, Ihall be of no Effect ; bur
the fame Office fliall be taken as void, without any other Traverfe, as it
feems. F, N. B. 233. (A)
11. If a Queftion arifes. Whether after the Jurors are gone together, to
conter of their Verdict, a Writing was fhewn by a furor to his Fellows,
which was not given in Evidence, and was in Favour of the Plaintiff, and
whereupon they found for him ; it was faid by Popham, that the Trial
hereof refts only in Examination, and it Ihall not be per Pais. Cro. E.
616. pi. I. Mich. 40 & 41 Eliz. B. R. Graves v. Short.
(N) Trial
q8
Trial.
( N ) Trial hy Certjjjcate^ or Pals. In what Cafes the
jji^li^^ Trial Ihall be by Certificate, and what not.
Seei^L. 2)
l.Tii3 an Aaion, if tI)C Defendant claims tiis Privilege, llCCilUre Ije I|S
1 n ^cljolar of tlje Hiul^ctfitj? of Oxiord, of fucfj College or Ipall,
anO tljC parties! ave at Jifflie whether he be of the faid College or
iJ:iii, t!)t6 fljall not be tticD Ijd tljc Certifitatc of tlje ©ice Cijancelloc
ann tijc l^ttncipal of tlje cotiesc or ipall, liut it fljall be trieD pec
3^ai0* 37 €!♦ 15* R* betmeen Mnnday and Vaiighan, aOuogetJ.
2. JU a Writ of Right of Ward, if it be pleaded that the Ancelfor
held certain Land in Ireland of tljC Ij^tiOr Of DllbUn by Priority $C» a
J©rit fljaU tie atUameD Julticiario Hi hernia, quod Scire laciat praedifto
Priori quod iit hie a die &c. & quod inquiratur Per qus Servitia, tljE
SinCeftOr of tlje prior (JC. qui returnavit &c. ^, 7d. 05, IBiQU
iz6, foDone*
tS. p. But j. Jfit be aHCgeS, in Avoidance of an Outlawry, that the Defen-
if he was in (j^fjj. ^^g [^ Prifon in Kourdeaux, in the Service of the King, under the
fhTicine by Mayor of Bourdeaux ; tW fljall be tricfl bp tlje Certificate of tlje
his Letters c^apot Of 13ourlieaur, * 4 ^*. 4- 1°- b. Co. Litt» 74- (l3ote tljat
Patents, at tljI0 lUaiS, when it was Parcel of the Dominions ot the King of England)
i'^i^^^'k^ 2 C* 4. 1. 13. t tnincr tlje Captain of Calais, tricn bp Ijis Certificate*
THaTftall 1 1 !>♦ 7- S Co. 9- ^I'bot Strata Manella 3 i.ij» aCCOrHinBl}?*
be by his
Letters Patents. Br Trial, pi. 151. cites n H. 7. 5,
♦ Br. Certificate d'Evefque, pi. 21. cites S, C. Br. Trialls, pi. I2(5. cites S. C.
If Imprifinment be alleged at the 'time of the 0:<tlaiiiry in the Prifon of th0 Bijhop of D. this fliall be tried
by Certificate ot the Billiop. Br. Trials, pi. 140. cites i J E. 5. and Fitzh. Utlawry 2.
Retainer in 4. ^if upOH Diftringas for Efcuage, tljC JfTlte be, whether the Te-
the War in ^^nt was in Scotland with the King by 40 Days «&:c. tlji0 fljall bC trieU
lTrZr\n bP the Certificate of the Manhai of the Hoft of the King, m f©ritins
England, by Under his Seal 5 tUljlClj fljall bC fCllt tO tljC JllftiCeSf* jLltt^g)* 102^
Certificate of CO* JLlttt 74-
the AlarJIml
cf the Hoji. Br. Trial], pi. 127. cites 21 E. 4, 10. Br. Conditions, pi. 222. cites 21 E. 4. 10
& 17.
Br. Traverfe 5. Ic was tried here, Jf J- W. ""^as Jlleji hont^ or horn in Gafcoignc'
de Office, pi. Brooke fays, it feems that this was tried by Certificate from Gafcoigne.
49.^cites gj. 'Tji^iis^ pi 1^2. cites 27 AfT. 48. _ _
6. In Attachment upon a Prohibition the Defendant pleaded Not
' gi'i^^Ji iirid the llfue accepted 5 Quod nota. jind after the Defendant
pleaded Excommunication in the Plaintiff after the lafl Continuance at the
Suit of the Defendant; and the Plaintitf'took Iffue with him, that this zvas
for the Caufe in the Prohibition j and the others econtra. And per Thir-
ning, this Ihall be tried per Pais, and not by Certificate of the Ordinary,
and then it is peremptory, and the Plaintifi' fliali recover his Damages j
which all the Jultices denied. But after IlFue was taken, and Nil! Prius
granted ; quod nota. And fo it feems clearly peremptory. Br. Attach-
ment fur Prohibition, pi. 6. cites 3 H. 4. 3.
7. Where a Jury fworn before Commilfioners in Surry find a Divorce in
Kent, the bell Opinion was, that Divorce ought to be tried by Certifi-
cate of the Bilhop, and not per Pais. Br. Deraignment, pi. 4. cites j?
H. 4. 2.
8. In 'Trcfpafs they were at Iffue ppon Bailardy ;;/ Bar cf ABion^ and ic
was certified bv Certificate Qi the Bilhop, as well as in Action real, and
ha
Trial.
"ha fljsU make Proclamation by the Statute bejore that he certifies i and fo he
did. Quud noca. Br. Certificate deEvelque, pi. 29. cites 3 E. 4. 11.
9. A. being robbed on the loth June 17 17. gave Initruftions to the
Curlitor lor an Original againll the Hundred, on 5th June 1718. hue
the VV^rit was not fealed till roth June 1718, which was after the Year,
but antedated oi the 5th June, being 'the Day that the Curlitor had his
Inftruftions. So a Quellion was, --whether an Original fealed loth June,
but antedated as of Sth June, according to the 'fime of the In/lr unions givett
to the Cmfitor, was good^ or nor, fo as to make it an Aftioii brought with-
in the Year, according to the Statutes of Winton, and 27 Eliz. Lord
C. Parker referred it to the Principals and Ajftfi ants of the Cur/itors Office
to certify zvbat has been the Ufage and Cuftom in fuch Cales, who certify-
ing it to be the conftant Practice of their Oifice to telle Original Writs
againll Hundreds, Corporations, Heirs, and in feveral other Cafes, on
the fame Day in which the Writs were befpoke ; and that they never
knew it otherwife, or that the Praftice was ever contelted before the
prefent Cafe, his Lordfliip decreed the Plaintiff to beat Liberty to pro-
ceed ; and that Defendants pay Colts of the Reference. Wms's Rep.
437. 438. Trin. 1718. Price v. Chewton Hundred in Somerfetlliire.
39
(O) Trial by the Law Spiritual. In (what Cafes the
Trial (hall be by th La^jj Splr'ttmly and not per Pais,
& e contra.
I. \ Ble, or Not able, fljatt be ttiCil in Quare Impedit IiJ) tIjC ^XtSi Co R. on
/\ narp, if tlje Clcrh rentfeti foe W Jl^onabilitp, be aiibCi for ri"f ,'^.r
Ijc 10 to be ei^ammeu. 40 e, 3- 25. b. * 39^* 3-2. D, 16 eUdina.7 re
327- b» fafoaClerk
2. But if the Clerk be dead, it fljaU be ttietl pCC l:i)a(<S ; foe !je for NonabU
cannot be ciramfneu* 40 €* 3- 25- b, 1 39 €♦ 3- 2. oDjuobcd D, 16 ^"y- ^"<^ .
Q~\ azT h. gives Nonce
K^U 327- y» to the Pa-
tron who
does not prefent another within f> Months ; whereupon the Bifhop collates, and the Patron brinsrs
Quare Impedit, and infifts that his Clerk was able ; it feems that if the Clerk be living, this Matter of
Able, or Not able, fliall be tried by the Metropolitan by Examination. See Br. Ciiiare Impedit pi.
102. cites S. C. S. P. But per Pais, if the Clerk be dead. Tnalls per Pais 21 .
But tho' it does not belong to the Courts of the King to determine Schifms or Herejles, yet the ori-
ginal Caufe of the Suit being Matter whereof the King's Court has Conul'ance, the Caule of the Schifin
or Herefy, for which the Prefentee is refufed, ought to be alleged certainly, to the Intent that the
King's Court may confult with Divines, to inform them if it be S-hifm, or not ; and if the Party be
dead, then to direft the Jury, who fliall try it. 5 Rep. 58. a. b. in *)4JfC0t's Cafe, Marg. there, cites
27 H. y. 14. a b. which is pi. 4. where it is faidto be agreed, that where one is indidted of Herefy be-
fore the Jaftices, that they fhall do nothing thereupon, -but fhall certify it to the Ordinary, and the
Indidment fhall be only Evidence againft the Inditlbee ; bu: I do not obferve any thing of a Diftindtioti
there, of the Party's being dead.
j- Br. Trial, pi. 51. cites 59 E. 9. i. S. C Ibid. pi. 148. cites i R. 5.4.
3» t©I)CtljeC tlje Church voided by Deprivation, fljall bC tlletl ftj) ^f^^'^-iw^./
tbe -Biajop. 7 ^* 6. 12. ijT/J''
Zi«/irfc, it fliall be tried per Pais ; and if void by Deprivation, Refignation, Creation, or otherwife it
ftiall be tried by the Ordinary; Per Jenny. Br. Trialls, pi. 4-. cites 1 5 E. 4. 25 Br. Quare
impedit, pL S 5. cites S. C.
4. Refignation fljall U tttCD b^ tljt £)l'tlinanV 3 l;)* 4. II. b« Co R. on
Fines iS. —
Scire facias ap;ai)jjl a Parfcii utoir an Jnnuity reccvered, the Defendant faid ilat Iffcyi- ihi' JJ'tit pirchflfed
viz at D. in auorher County, i\k Defevdavt refilled the Benefi:e into t!:e Hund.s of A- P.ifhop of
L. Ordi-
Trial.
, or
'cfore
Vjhop
lur v^iiiniiiiy ^'^ 1.H*- '^ .u>-w.^^ .. ..^. — J ...- J J -^ -.-^ . w — — — . ^ .,0 i_/e—
fendant pleaded, that before he took afecovd Benefice, [y'xT.-) on fuch a Day, and at fuch a Place refigna-vit
the /aid Reiiory in fernia Juris to H. the JJiJhop of London, the Ordinary there &c. which he accepted,
& hoc parntiis eft veriHcare. ThcPlaintitl'»-?/'/;c(< tionrefii^naijit Mode & Forma prout &c. & hoc pe-
tit quod inquiratur per Patriam. Tlie Defendant demurr'd generally ; and the Queftion v/as, wliethcf
this Refignation ihall be tried by a Jury, or by a Certificate of the Bifhop ? And they held, that it
fliall be tried by a lurv. Error was brought in B. R. upon this Judf^ment, and argued that the Repli-
cation was ill, by' its concluding to the Country. But the Reporter, who argued tlie lame, and lets
down his Argument at large, lays that the Caufe was compromifed ;and the Court gave no Opinion in it.
Sid. ^8;. pi. 24. Mich. 20 Car. 2. B. R. Watfon v. Baker. Raym. 175 S. C. but S. P. does not
appeaV-^ 2 Keb. 4.;6. pi. 12 EatlEr i). SllatlOll, S. C. in B. R. fays the Court inclined the Refigna-
tion fliould be tried per Pais, and not by Certificate ; but adjornatur.
* This was S- [JSut] Whether the Church voided by Refignation, fljjin l3E tri'Ct!
in a Quare p^j; ^3(0* II IX 4. 9. &♦ *D» 6 (£1. 228* 48. aitD 233* 12, aD)Ullff-
hmS't bv CO' uccaufc t\)z a\50iQiince is notonoti^ to ttje couutrp i ann tijc
Sir Henry Rcfigiintion, wijicij liS fpiritual, 10 onip ^niQciice tijcitto* Contca
Sydney v. 7 ^+ 6. 12.
the Bifhop
of Glouccfterand Reeve.
*Br.Triaiis, 6. Full, Of Not full, (ijaU It trictJ bj) spiritual inin, \\ttMz tljc
pi. -.^s (^jjiifcj) ij3 fuii bp 3nft!tiitiou, wljici) IS a ^^piritual act. ' 40 ^, 3.
SPPera 20.13. 22(^.4.24.0. Co. 6. BoJweU ^9, 49 C 3* 18. 22 (Jl;,
Jufiices, 3. 10.^ aUjllOSCtl X3.tl. 49afl'»7.
Koll.R 191.
in Cafe of Hitching v. Glover. Plemrty of Churches fliall be tried and certified by the Bifliop.
Co. R. on Fines it>.
r<-A.^O 7, But Void, or Not void, fijaJl \iZ triCU pCC 19ai.S. * 40 ^* 3« 2o»
i!!i/^^;&* 6e. 4. 3. tj* 49^. 3. 18. 22^. 3» i3*b« 49 30. 7* Coiitra
^-f'pj^^ 17 <!^* 3* 64. b. ati)iirieeii.
Juftices.
Roll.R. 191 in Cafe of Hitching v. Glover.
* Br. Trial Is, pi. 7. cites S C. And Brooke fays, Et fie vide, that the Trial in diverfe Cafes, ma7
alter the Pleadings; and fay.s, that it appears elfewhere, that where Birth is alleged Ultra Mare, the other
7nay fay that he uas born Jnjra Mare, without Traverie ; and that by Rcafon of the Trial.
Co. R. on 8. inftitution fljall lic ttieti bp ti)c 'Bifljop, * 2 jp, 4. 17. Curia ; foe
*bT Trials, it tjsrpiritual. 19 P* 6. is.
pi. i8. cites S. C. -Br. Trial, pi. 109. S. P. cites 55 H. 6. 24. Br. Trial, pi. 117. cues 22H.
6. Z-- S. P. unlefs the Sifliop be Party, and if io, then by the Metropolitan
*Br.Triai!s, 9. induaion fljaH fac trtcH pcr \*}m, * 2 ]|). 4. 17. iFor of tl)i0 Ba^
^i I'd. cites (jfj. |(p£j i,^ tij0 countrp. aomittcD n i^. 4- 9b. lo. t 12 rp. 4. u.
t's^pTiT ati)uticcr!.
28 'cites 12 H. 4. S. P. Br. Quare Impedit. pi. ';4. cites 12 H. 4. ti. Br. Trialls, pi. 109. S P.
cites -■^H.6. 24 S. P. And fo of Inftallation. Br. Trial, pi. 117. cites 22 H. 6. 27.
Br. Trials, 10. 31f tl)C MWZ bC UpOlt Inltitution and Induftion, it fljaU bC trtCU
pi. 18. cites «(.,. paj0 J1115 ft, tDe Common %m prefcrt'n. 2 ix 4- i?-
S. C. Brooke ^ J;
fays. And fo Vl-UCW*
Common Law has the Pre-eminence ; for Induftion fliall be tried per Pais.-— In %^re /»;/>^^/<, if
the Iffue be «/.»« the Jdmiffion, Inftttutiov, and hduciion ; this ftall be tried per Pais, by Kealon ot the*
Sndudtion, which is by the Archdeacon. Br. Trialls, pi. 44. cites 22 H. (5. 2".
Trial. 4 1
Sc of Inftitution avd Inft/tllaticn ; for the Inftallation is by the Archdeacon, which lies in Notice of
the Country. Br Trialls, pi. 44 .cites 22 H. 6. 27.
But where the Iflue is tipn jdmijfton and Irtfiitution oTily, this fliall be tried by the Bifhop, and be-
caufc the Bijhop was Party, therefore it was tried by the Metropolitan, and Writ made to him accordingly
to certify. Br. Trialls, pi. 44. cites 22 H. 6. 2;.
1 1- 31f tI)C JflltC 6e whether J. S. be Frere to fuch an SbbOt, or fuch
an Abbot, tl}l0 fljall Dc tmn b? tljc ©rHinat^* 22 c» 3- 2. b*
12. Profellion fljflll be tHCll bj? tljC Ol'tHnatJ?* 19 JP» 6. 17. I8.S.P- Orby
41 C. 3- 10- b, 21 e- 3. 39-59. b. 21 air. PU 20. GenlrarSr.
Nonabilitie, pi. 4. cites 41. E. 3. 10. Br. Ordinary, pi. 5. cites S. C. The Manner of Pro-
fefllon fhall be tried by the Biuiop, and certified by him. Co. R. on Fines iS. — Hard. 63. Arg. cites
9 H. 7. 2. S. P. but that if the Time of a Perfon's becoming profeft comes in Queftion, it is to be tried
by the Common Law. Sec (A) pi. 3. {?) pi. 36.
13. [But] If PrOfCfllOll be alleg'd in a Stranger to the Writ, it fSafl ^ P Hard.
be trien per ^m i becaute if it fljaU be trteo bj? tbe f)niinarp, it r';A''^p^"'*
ajall be pcremptocp to tt)e S)ttansei; perpetually, if it be fomn tijatfeflion!/<r'
Ije isi profefTeb. 4° <£> 3 • 3 7- b* Per/on that u
j _ dead comes
in Queftion, it fliall be tried per Pais, cites * 41 E. ;. 37. 11 H. 4. [* It fliould be (40) accord-
ing to Roll ; but I do not oblerverany Mention in the Cafe of the Profeflion of a Perfon dead.]
14. 3in Mordaneefter quia habitum Religionis afTumpfit, $C» tf)B
l^rofeffiott fljaU be trien bp tlje aflife. 40 e. 3- 38-
15- Uf an JlTuebe whether a Prior be removable at Will or Perpe- Br. Trialls,
tuai, it (ball be trieo bp tbe 'Bifljop. 2 ^, 4. 24. b> anjiibsen* s c^fa 'fu
Ihallbetriedby Certificate of the Ordinary. Sec (P) pi. 41.
i6. But if tbe JlflUe be Prior or not Prior, it fljall beti;iCll pet Pai0» Br. Trialls,
2 ^t 4. 24. pi. 19. cites
s. c.
17. 3!f Baftardy be allegCll in a Stranger to the Writ, it Iball be ttieU ^^^^- <^3-
per Pai0, becaufe tf it iball be trieb bp tbe flDrbinarp, it fljall be pe^^'i ^"«»
ccmptorp to tlje stranger perpetuallp, if it be certain tljat l)e iis 'Ba=ce«ifi^
ftarb* 40 ^* 3- 35- b» 42 C 3- §• b. COnt. 1 1 p. 4. 84. of BaSardy
or Mulierty
by the Bifhop is a Trial of the Iflue, and is peremptory to the Parties'; quod nota. Br. Iffues ioin'd, pi.
6j. cites4i Afl". 29. & 4 H. 6. 2!) Br. Peremptory, pi. 6 1. cites S. C.
But per Tirwhir J. if the BiJl;op certifies Bafiardy, this is an Efioppel to all to allege that he is Heir<
Br, Eftoppel, p!. 179 citjs n H. 4. S4.
But contra by him of Certification of Afulier ; for he may be Mulier by the Law of the Church, and
a Baftard by our Law ; and therefore this is no Eftoppel to a Stranger to the Record. Br. Eftoppel, pi.
1-9. cites II H. 4. 84. Br. Certificate de Evefque, pi. 4. cites 11 H. 4. Si. Brook fays Qusere inde
becaufe it feems to be all one.
18. But ifosaffarbp be aUeget in a Party, it fljafl be trieu bp tlje sp And ^
(OrHinarp* 40 e. 3- 39- b* 49 €. 3- 18. 30C3. 8. b> 38C. 3.'J;'!,.^y»''%
1, " Ordmaryof
^7- 0* the Dioccfs
where the
Land h, and not by the Ordinary of the Dioccfs where the Birth is alleged. Br. Trialls, pi. iiy.
cites 38 E. 3. 26. Baftardy and Excommunication muft be tried by the Ordinary himfelf, and TJot by
lis Commijfary ; for the Ordinary is the immediate Officer to the Court. Br. Ordinary, pi. 9. cites
II H. 4. 64.
19. [But] JfBaffarbP be allepUinone that is dead, it fljall be •5'" in Forme-
tricb per \pm, ann itot bp tbe £Drbinarp ; becaufe tlje 3!uOffment ^°"' ^^f"-
cannot be final. 42 €. 3. «• b. 18 ip. 6. 3 1- kgeTL'L
•who luas
mefne in the Conveyance, by which the Demandant claim'd, and becaufe he <uias Dead, and was not Party
to the Writ ; it was tried per Pais, and not by Certificate of the Bifliop. Br. Baftardy, pi. 3. cites 42 E.
3. §■ Br. Trialls, pi. 10. citesS.C.
So it the Iffue, iihichjhall he hajiardifcd, has Ijfue and dies, there the Baftardy fhall be tried />er Pais,
and not by the Bifticp, viz. of him who is dead. Br. Baftaidv, pi. 9. cites II H. 4.-78. ——Br. Trialls,
pi. ;6. cites S. C.
M 20. [Soj
42
Trial.
20. [SoJ 3n Aliile as Son and Heir, if.QSaffartip tie aUCgeO in him.
itnjaU bctnen pcrl^aigi, becniifc it goe^ unip in statement of tljc
HDrit. i9ii). 6. 18.
21. [SoJ Jf tljC JlTue be whether a. was enfeint by B. who married
her betore the Birth or by a Stranger, auD fO tlj? ConfCqilCnCC tUijCtOCC
Ije uia0 a 'Baffarti or not, it Ojall Ije tricn per ]pai0> 45 €♦ 3- 28.
22. [But] Jn a Mordantelter by an Intunt, if tlje Defendant fays that
he is a Baftard and not Heir, $C. tW fljall hZ ttlCn bp tljC Ml% ItOt
Dp tlje SDrHinarp.
23. ^iiare hnpedit agaiiiji the Bipop of E. and ancther where the Bipcp
alkgd that the Church ivas litigious, and the Title of the one •was found, hy
which he prcfentcd his Clerk; and the other faid that his Title -xas firfi
found, and he prefented^ and the Bijhop deferrd the Time, fo that the otbe;-
prefented, and fo diflurl'd him, ahfque hoc that the Title of the other ivas
found hy the Jure patronatus, and lo to IfFue, And this IfFue was tried
by Procefs made to the fame Bilhop, who was Party to the Writ, quod
mirum ! becaufe he was Party. And alfo it was fo in the Commiffioners,
if they certify the Title to be for fuch Party ; by which the Jury gave
no Vcrdift. But per Newton, there the Action lies againfl: the Commif-
fioners, for Writ to try it ilfued to the Bifhop i and alfo the Bifhop of
York has no Metropolitan above him to whom the Court may write ;
quod nota. Br. Trials, pi. 43. cites 21 H. 6. 43, & 22 H. 6. 25.
6r. Trialls, 24. It was faid for Law, that the Trial of the Appropriation of a
pi. 134. cites Church Ihall be by the Spiritual Court ; quod non negatur. Br. Trials,
3SH.6. 21. pj ^2. cites 38 H. 6. 20.
25. Where the Origi?ial belongs to the Spiritual Court, and a Thing which
is triable by the Common La'-ju comes in IJfue there, it Ihall be tried there ; as
where a Man claims a Legacy by Devife, and the ether pleads Gijt of the
fame Thing, this HkiU be tried there. Br. Trials, pi. 148, cites i R, 3. 4.
per Huffey Ch. J.
26. In a ^nare Lnpedit the Plaintiff made Title to him hy Survi'vorpip,
tinder a Grant made to him and others by J. H. who was feifed of the Ad-
vowfon of the 4th Part of the Church alorefaid, as inGrofs &c. and had
prefented W. W. and fo of feveral others feifed of the Advowfonof the
other Parrs &c. The Defendant pleaded, that theintire Advowfon was ap-
pendant to the Manor of W. the Moiety whtreof depended to him, ahfque hoc,
that IK. W. was admitted and infiitated on the Prefentation of H. This Iflue
ihall be tried by the Ordinary. D. 78. b. pi. 44. 45. Mich. 6 E. 6. Sir
John Prife v. Archbifhop of Canterbury, Ld. Windfor, and Row and
Plat.
27. Right of Tythes between Parfon and Parfon iliall be tried by the
Billiop, and certified by him. Co. R. on Fines, 18.
feeeBaftai-d (p) Jn what Cafcs. By the Spiritual Law, and m
what per rais.
See pi. 52. i.r^ Enerai Baftardy ifjaU itot 6c tn'eu lip tlje ©rtHuar?, t!nlcf0 tt
S. C. \J be upon a certain Ilfue join'd direftly upon Plea ot the Parties.
39 air, 14. bp all tlje 3ulttce!S,
♦ Bj- Certi- 2. As in Alfife againlt an Infant, if Baftardy be pleaded in the Infant,
ficate de tljc SHifaut iss tiot couipcllafale to tat^c imie upon it, bccaufc tljcu |3C
Evefque.pi. fljnij {ofc tlje ao^atitafic of tijc Jiiquivp of tljc Circuni(tanc£0, antH
s'c'ihat tljerefore fijaU be tnco bp tijc ^imre, ann not bp the ©rnnuirp, inaf^
tlie Aflife '^^^'^ '.)
Trial. 40
^IIUICI) as no IlFue is join'd upon ic. * 39 !3fl; 14. ]}» all tU 3itttttCe0» ^»'^ ^«
39 ^IV* 45- aOjUOtyCH. thereof
awarded at
large.
3 Cfjc Right of Efpoufiiis ijj altnai)^ ttiaMe bp tljcl^idjop* 49 €♦ co. r. on
?• iS. 39 (£, 3. 26. 33. 39 ^fl; pU 8. " Fines, 18.—
S. P. but the
Pollonion of the Marriage not Arg. Le. 55. in Cufe of Leigh v. Hanmers, cites 49 E. ;. 18.
4. As if tIjC JflllC be UJljCtljCr a jTemC be accoupled in lawful Ma- rv^/\-^n
triinony, * tijlg IS tXlMZ bp tljC QDllljOp, 49 €♦ 3- i8- ailtl HOt pet * ^°' 5^5-
}MiS. 7 ir>* 4-^5: b, t II l^). 4- 14- b. 19 IP* 6. 18. 39 C% 3. 26. 33. r^TXi^
so €, 3- 15- 49 3lU 7- al Evefquc,
pi. 7. cites
S C. accordinr^U'. S. P. Br Trialls, pi. 5;. cites 59 E. ;. 51. S. P. Arg. Hard. 69. cites 45 E
.3. iS. 6c 50 £. 5, 19. Vent. 77. Gifford v. Perkins. .2 Hawk. PI. C. cap. 25. S. 36. 62.
5. As if fUClj JfftlC he in \^'ric of Dower it fllHU bC tUCt! bP t^e ^61= ^i7?/« ''^^"{/?
fljOp. 49 €* 3- iS. 50 e* 3- 15- 39 ^» 3- 16. 49 M, 7- " "u ^n^""''^
the rlaintiff
made litle by Do-wer, and the Defendant pleaded Nc unques accouple in lawful Matrimony, which is
certtjy'd airahifl him ; and yet the AfTife was taken upon Seifin and DifTeifin, and is mi peremptory, viz.
tiie Certificate no more than the ConfcfiTion, or Kicnt dedirc of the Infant. Br. Peremptory, pi. 58.
'cites 23 All 52.
6. So in Appeal. 50 (£;♦ 3. 16. * 11 1^» 4. 14. b» * Br Brief
al Evefque,
pi. -. cites S.C. accordingly.- Br. Trial, pi. 74. S.P. cites 27 Aff. 3.
7. But whether tljC JfeUtC bC Feme Covert in PofTefTion or Sole, i£S Marriage ?»
allnaps iuciuirabtc bp tlje Countrp, 49 €. 3- is. 39 e, 3- 32. b, 39 S-fenVai
m. PU 8. atl)U03CO 49 air, 7- lays "^er-
/o?ml Things
a>:d Caiifes, efpecially where the Pofleflion cf the Wife is in queftion ; hit where the PoirelHon of the
J-fmkuid is in queftion, there Marriage ;» Right ou^hi to be ; and where Marriage in Pofleflion falls in
Averment, there it fhall not be tried by the Billiop, as in theCal'e of a Marri.ige of Right, where
Kever accoupled in loyal Matrimony is pleaded, but by the Country ; tor in Cafe of Wife in PotTeflion
Neter accoupled in Matrimony is no Plea ; but Net his ffife. Arg. Le. 53.pl. in Cafe of Leigh v,
Hanmers.
Js A. brought an Action of Trefpafs againft B. andC. — B. pleaded that C is Wife of the Plaintiff,
and demanded Judgment of the Writ. The Plaintiff by Replication fuid Never accoupled in lawful
LLitrimony, but it was not allowed ; but was driven to lay Not his Wife ; for if C. was the Wife of the
Plaintiff" in Pofleflion, or by Reputation, it is fufficient to abate the Writ. Arg. Le. 55. in Cafe of
Leigh V. Hanmers, cites 12 £. 3. Br. 4S1.
8. 3!f tlje JlTue be wife or Not his Wife, Efpoufed or Not efpoufed, S. P. Vent.
it ajflU be triea pec I3ai0, 7|)»4-25-b. TwiidTnj.
Pafch. 22 Car. 2. in Cafe of <3iS0V0 b.^tTfeJRS ; for if flie be Wife deFafto, it ferves upon thii
llfue.
9. As if Feme Sole brings AfFife with another as Feme Covert, if '^C-
nant i^v$ tijat flje is jfeme ©ole it fljaU be trien bv tijc Mi^c. 49 €.
3. is. 49 air* 7*
10. So if ije faP0 tljat flje is Feme Covert with another who is alive.
49 <£♦ 3- 18. 49^ff, 7.
11. Jf Feme and her Baron bring Trefpafs, Not his Feme iljnll bC Br. Briefs p!.
ti'ieD pet pais* 7 P* 4- 25- b, 91 cites ,0
12. So If Feme Covert brings Affife as Feme folCj if t!)C C-Cnant ulPS - '''
tbat flie is Feme Covert, it fljaU U tcieD bp tlje ZMt, 49 €, 3. iS*
49 3lt 7-
13. Jtt Cui in Vita, if tbe Wue be, whether the Alienor washer
Baron, it iijaU U ttieU pec ll5ais i foe tljc ^am iics if i)e was ijec
'Baton til fecto* 49 €. 3* i8» 50 C* 3* ^s* b* 19* b, 49 ^IT. 7*
4. Jn
,.44-
Trial.
Br. Tnal!s, 14. Ju Alfife by Baron and Feme, 'STcnant Tapgi tljat tl)e ifCUlC (JS t])Z
f]..i6. cites jjgjf,^ Q^-^ ^tl'iingCt: ; Demandant fays that the Marriage bettUCCU tijClU
49 E, 5;^iS. ^^^ vvichin the Age of Confent, and after at 20 Years of Age Ihe took
jfic-' him to Baron i and fb his Wife, SHS HOt tlje Wlk Of tijC 8)tCan5Ci: i
So'wJJpfe tW itjall lie triCtl pec Pai0» 49 €♦ 3» 17* b* IfabelGoodcheape 50 (£♦
./ J'/j Feme •' ■ •■
a^ainfi H.M- who l^iA that Divorce ivai taken between V. and A. hecaufe A. was not of the Age ofCon-
Jei.t at the Ttine cf the Efpcjff.-!^, r.nd after he, viz. H. A'l. married her ; and fo is pe our Feme, and not
your Feme ; and the others ccontia. And by Award, this Matter fliall be tried by the Aflire, viz. Per
Pais, and not by Certificate of the Bifhop, by Rcafon of this Conclufion, And fo Not his Fetne. Br.
Trialls, pi. 5^. cites :;9 E. 5. ;i. S. P.(Ar^. Le. 55. in Cafe of Leigh v. Hanmer, cites 49 E. 5.
jS -S. P. But if he liad demurr'd upon the Divorce, this had been tried by Certificate of the Or-
dtnary ; but the Conclufionof this Pica has waived the Premiffes; and therfefore it Ihall be tried by
Aflifc. ' Qiiod noca by Award. Br. Tnalls, pi. 84, cites 39 Aff S.
Br. Briefs, j^. Jn AfTifc !)[) fl |E)arfOn, Tenant fays that another is Parfon ; if tlje
j,i. 91 cites ^emaitDant fav0 tijat Ijc 10 Parfon in lafto t)^<>3inaitutton aim 31ttDuc=
50E. 5. 19. jipj^^ tho'not dejure; tljlsi fljall nial^taJn tijc mtit, anD fljali be
trieD per Bai0, anti not bp tljc latnjop* 49 €» 3* i s. b» 49 aff* 7*
* Br Certifi i6. Jit a Writ by W. C. and M. his Wile, if tljC JffUe be, whether
cate de fhe be the Wife of w. c. itt abatciviiit Of tlje Wtit, It fljall be ttieo
Evefque, pi. pj,; 13jjf0^ 39 e. 3, i6» * 39 ^ff* pl» 8. aDnitlgeD.
.6^cires ^ ^^ But if tljC 3ffUC Of Ne unques accouple in laUlfUl S^atnmOnp
WifeTTr be to be tried between Strangers, it fljaU be ttieD pet Pai0» 5° €♦ j*
Mot Wife, 15, 39 €♦ 3- 33.
is triable at „ . . , _ n i^ •
Common Law ; but whether Lawfully married, or Not, is triable by the Spiritual Court ;. Per Curiam.
Sti. 10. Pafch.23 Car. B. R. the 5th RefolutioninCafe of Betfworth v. Betfworth.
^>tII. 18. 3|n a©nt Of Coijenant to afliire certain Lantijs, toitljin 20
s c. reports, j5j,»jg j^ffj,. j-jjj; c^arriaffc folcmnijcii bctuiecna* anO Id* if tlje 3!ffue
that the De- ^ Vhether any fuch Marriage was folemnized, or not ; tljilS fl^all be
pkade"d trien per pai0, ano not bp tde £)ctiinarp» ^^4 3Ig» 'B. K» bettueen
Perform- Fletcher and Miiffet aOjllDSCD*
ih3L\.\e. was married according to x\\e. Covenant within ten Days after the Date of the Indenture. And
the Plaintiff faid that he was not married to his faid Wife within the ten Days ; and upon that they are
at IfTue which is found for the Plaintiff. And it was moved in Arreft of Judgment, that it ought to
be tried' by Certificate of the Ordinary, and not by the Country. And adjudged that the Iflue is well
tried • for the lime of the Marriage is made Part of the IJfne, and that was all triable by the Country.
Sec 49 E. 5. 12 H. 4. 9H. 6. 33. 9H. 7.2. And the Common Law ihajl be preferr'd i and cites
jSAffzp- Dyer3i3. See pi. 21. S.C.
s, P. And 19. 3in attacljmcnt upon prohibition, if tlje 3Iffite be, whether he
Thirn faid .^^^s excommunicated after the Prohibition for the Same Matter or Other,
tory ^o'th^^' tf)at 10 to fap, for Citlje0i tm fljaU not be trie& bp tfje ^iSifljop, but
Defendant ; pCt 10ai0* 3 ^* 4- 3- t*
■which all
the Juftices denied, and yet after the Iffue was taken, and Nifi Prius awarded. Quod nota. And
therefore it feems to be Peremptory clearly. Br. Trialls, pi. 20. cites S. C.
* Br. Certifi- 20. 3 Divorce fljaU be ttieti b? tlje 05111)0?, ann not pet pais. 7
Evefque, pi. ^^* 4- 23- &♦ 19 lP» 6. i8. 39 €♦ 3- 32. b, 39 aff* pU 8. aOnUttCO*
i6. cites S.C.^ S.P. Br. Trialls, pi. 55. cites 39 E. 5. 51.^ S. P. By the beft Opinion. Br.
Trialls. pi. 31. cites 5 H. 5. i.
cro.j. 102. 21. af a* coU£nant0 UJitlj IB, tljat if 'B. marries tuito tl)e ^mv;ly
l}. 55 ter of CL Eite $ icgitnnc fccimrium Lesc0 ecclcfiafticas, ije uiill af=
pynferVc f«re to 05* a coppijolD, ano 15, brings Coijenant, miD alleges tfjat
._ Isee l)e IjaO married tlje DaUgljter of a* Rite & Legitime, upon UlljICi) Jlf
fupra, pi. 18. fue i0 joineo -, tm fljaU b? trien per paiis^ ano not bp ttje oatfljop ;
t). C. jljj.
Trial.
45
for tl)c 9@arnagc ijs tljc eubttance, aiiD t!)e jLcfjitimation Qaesi not ^^^'"m
came ill dueftiaju i^^sja- IpccCunamt ' ^oKcon-
■^ ditioned to
^(5)' the Pbintift .It his Afje of ii Ye.ii-s, or Day of Alarrhge, which fhould firft happen. The Defen-
tliinl pleaded tliat the Plaintifi: is not yet 21 ; and that he was n:t lawfully married. The Plaintiff took
KFue that h-: was lawfully married, and had a Verdict. It was objeifl.'d in Arreft of Judgment, that
x\)e. Lawfulnels ought not to be tried by a Jury, but by the Bifhop. jiut per Cur. The material Part
oFthe UTueis, Married or Not, and the Plaintiff might have demurred to the Word (Lawfully) put in
to the Defendant's Plea; and tho' he did not, but took Iffue upon it, yet it being in a Perfonal AHion
here the Rhht of Jiiarri.t^e does vot come vaturally in ^hieftioi ; as in Dower and other Real A6lions,the
'rial is well enough. Lev. 4.1. Trin. 13 Car. 2. B. R. Ballet v. Morgan.
Tri
* Eaftardy.
22. General Baftard v tljflU 6C triCtl bPtfjC Drtimarp, 40 <S. 3- ^9- V' 'P^
Iv. t 49 €. 3- i8- 3o'<£- 3- 8. b. 3S €* 3- 27. D. 49 9M, 7- ^5 C. 3- t^ll f &
njs of olQ Cinics! fjatij been ufcD tn tije Catc at" 'i3aftii(:DP» 1 8 c» s- 5 z.-- 1 b>-.
CtiP* 2. Trialls,pl.i5.
. cites S. C—
5. P. Br. Trialls, pi. 55 cites ^9 E.;. ^i Br. Trial, pi. (Jji. S P. cites 11 Afl". 21. S. P. Arg.
Hard. 69. cites 45 E. 3. iS. and 50 E, 3. i<?.
23. Special Baftardy fljaU be trtCO pa* [hl^. 1 1 I), 8. 84. 18 t^, Br. Trial
6. 31. P'-^9-S.P.
•^ cites II All,
21. S. P. Br. Trialls, pi. 54. cites 2 E. 3 S. P. Br, Trialls, pi. Si. cites 38 AfT 24 S. P.
Arg Hard. 65 cites 45 E. 3. 18. and 50 E 3. 19.^ In AlTife of MortdanceHor, if the Tenant
pleads Tpecial Baftardy in the Demandant, he ought to plead it certainly, as to fay the Demandant was
begotten between J. S. and Alice G. and born before any Efpoufds, and after Efpoufals took ElFed: be-
tween them; and he ought to conclude, And fo Billard. Now this Cortclufion has not avoided the fpe-
cial Matter before ; for if to, then the Iffue fhall be Baftard generally ; and if fo, this fhall be tried by
the Bifhop. And if fo, the Bifhop will certify him Mulier ; for fuch Ballard is Mulier in the Spiritual
Law, but fuch Matter fhall be tried by the AfTife (as in fevcral Books it is adjudged ;) therefore the
Conclufion has not avoided the fpecial Nlatter ; but this renlains, and the IlTuc is taken thereupon. Arjr.
PI. C. 14 b. Pafch. 4 E. 6. in Cafe of Rcniger v. FogaiTa.
24. 3!f 'Baffarb)) be picaticli iit one, becaitfe fje Uias bom of a sd Br. Afni:-,
VVite durins the Lile of the ill Wife, tlji0 fljall bC triCO peC JS)ail2i i tOt ''^ '5'' "^"^
ti)c 20 ?J9ai'riagc is uoio* 38 aiT* 24. arj)iibseD* LVy Bal
tardy plead-
ed in AfTife, fhall be tried per Pais ; Per Tank Br. Trialls, pl. Si. cites S. C
25» Jf tl)e :jiriie be Baitard, or Mulier, it fljail U trieu bp tlje £)r5i= i" ^lort-
nar^ 17 c* 3-59- a»b* anntDgeti. 3° C 3- 1- b. aQ)iiogcb. 39 1"!"^'"''. '^
C*3- 14- 38 m. 14- atinitiffcD. 35 air, 7. nbUtoaeti bp all tijCai&i'*
3uftice0. 4i2lir» 29, ati)iitiGeD» 26 am 64. aDnutteb, abntDo;cD.thel)eman-
I €♦ 3- 13- atJUiogcD, Contra * 49 €♦ 3- 17- b, is. contra 26 air, ^ant, and he
64* anjufgef in aiTife, %« that
Mulier, and
.Born in another Diocefs ; yet this fhall be tried by Certificate of the Bifhop where the Writ is brouahr.
Br. Tri3lls,_pl. 78. cites 55 AIT. ;. S. P. And no Mifchicf; for the Party mav bring his Proofs
before him in what Place he comes, in England or in France. Br. Certificate de Evelciie, pl i ■• cites
S.C— * Br. Trialls, pl. 16. cites S.C. 1 . f • -r- i »-
26. But if tbe JfTlie be whether he be Baflard, or Born within F.f- * Br. Triak,
pcufais, it 11)^11 be trien bj> tbc Country Canica 39 M, 10, * v^'c'^^J"
•y* 4* ^* fays,' that it
fhall be tried
by Writ to the Bifhop where the Lahd is, and not where the Efpoufals are alleged.
27» So tttije Ifllie be Born within Efpoufals, and fo Mulier, or Born
outofEfpouials, and fo Baftard, tbi0 fiiall bC tdCll bP tljC COUntrj) i
for it toell lic.5 tn Comifancc of tljc Country, Contra 33 <M, 30,
ianjubffco.
N 23. So
46
Trial.
S. p. Arg. 2S. So tf tlje SITUC be l©Ij£tl)Cr bom before Marri.ige, It fljaU {JC tHCtl
n„d. 65 ucr ri)ai0 ; for it lucU \it& m Cojuifancc of tljc GoiinttP* zi ix 4.
'r& 50E. 84. 35 aiT, 13. 46 aic 3* 49 au; 7.
Lb 1-9 29. S"!! an Aftion on the Cafe fot callmn; U^ l^alfatti. if tl)e Df=
pi- i'3 fcnuaut juainc0 tljat Ije is a Baikrd, upon miysl) jmtc 10 )om'a, tDijs
Anon. s.c. {|^,^{} j^j, fj.jj,Q p.,. p^^j^^ --jjij, j^qj jjj, tljc ©rDtnarj). £30liart'iSiacpartgs
242, anonimaus.
The spiri- ao^ ^{.^ r^jj-^.^^j df Tgallartip fljall be bp tijc Orlsdtarp, as weii in
to do with Loyalty of Marriage, but where the Tempoi-jl Courts conmanA tlem to certify, and this is only
in Real Jciicvs. Jenk. 2S9. pi 21^. In ancient T'ime Baftardy put in Iliue was tried fcr Pais ; but at
this Day it fliall be tried by the BiJhop as well in Perfoaal as in Aitioa Real Br. Trials, pi 515. cites
4E. 4 55.
See pi. 50. 3 1. ^\)t ^n'al of a!5a{!arBp Hjall be bp ti)c ©rutnarp, a0 tntll in
and theNote pjg^-^ ps^ffQj-jj} j^,0 {,-^^1, as well in an Aliile ad in Attions anceltiell, ti)0'
*''^'^" ©c!ap0 are oiitlcB in an aiTtfe i fc: it 10 not a Ddap, but tbe pcopec
'atrial* 38 Stff* 30. fi?!)Ubf5Clli for t\)t i^lood is to be bound perp<ecuiil-
ly by it. 19 D, 6. 17.
See pi. 1. & 32. Generaf Baltardy lijali HOt bC tX\t^ bp tljC ©iCinarp, if it be not
P'- "• upon a certain IHue join'd directly upon Plea ot the Farcies. 39 JJiT^ 14.
Jltti 'Sried bp all tbe 3luaiccg*
by Affife,
utilefs it be for the Demandant or Tenant ; a? where it is aV.eg'd in tie Pleadings, in one who is a Stran-
ger to the ff^^rit. Br. Trial, pi. 70. cites i4Afl" 10.
33. 3!n Affife by an Infant, if a Divorce bC pleaded between the Fa-
ther and Mother ot the Plaintiif fcr Pre-contraa, tljl^ fljall nOt bC
tnca bp tbe QDifijop, but bp foe ZMz, 3° M, 45 aouoseD*
34 Si a Mortdanceltor, if ttjC Tenant lays that the Plaintiff is a
Baltaru, and not next Heir, and the Plaintiff is an Infant, tljISS fljaU
not be triet! bp tljcflDrtiinarp, but b"^ tlje laffiTe i becaufe tijisi e,cccp'
tion toucijC!5 tye aijjijt perpetuallp, nno tbe 3nfant cannot anfiaer to
anp ej;cept!on uiijictj touclje^ W uisbt- s^ f)* 3- Binece @)tafforii.
j^Ot. 5- l^'Utam Kidwari-e's Cajd, aQjUOffCU*
See pi 2 35+ Jn an Aliife againlt an Infant, if Eaftardv be pleaded in the In-
fant, it iljaU not be trica b^ tljc ©r^marp, but bp tlje Countrp, be-
caufe tne infant is not lonipcilable to take JlTue upon it i for tljeii
ijefljall lofe tlje ^OijantasE of tijc Innuirp of tbc Circumttanceg, ann
ft no Jffue iDali be )om D upon lU 3° aif* 45* aO)uoscD» 39 M, 14,
bpalltijcjuftices*
Br Trial. 36^ Proteiiion Ojall be tdcB bp tljc ©ruinarp* 19 1>* 6, 17, 18^ 41
6H.*'.r" ^* 3* 10. b* 21 e, 3* 39. 59. b, * 21 air. pK 20. i c^V 9+b.
S. p. — * Br. Certificate de Evefnne, pi. i;. cites S. C That it was tried by Certificate of the Bifhop,
and Procefs made to him to certify, and Day .given to the Parties in Bank certain.
Where the Bidiop certifies, that M. is not a Nun profefs'd, this is art Efioppel to all others to fay that
fjeis a Ntm frofrfs'dy for the Inconveniency of double Certificate &c. Br. Certificate de Eve(4uc, pi,
32. cites 19 R. 2. & Fitsh. Eftoppel zSz. — See (A) pi. 5. CP)pl. 56.
37. HBljetljCt a 99an be profefs'd of the Order of Mendicants, tljl'Sl
fljall be ttien bp tlje ©rtsinarp* i €. 3- 9- b»
38. ^0 It fljall be of Monks and other Exempts, anU if tljC OtbitUI--
rp returnsi tljat ijc isi €xt\m from Ijijs luris^biction, tljcn it fljall be
trieo b)> tlje countrp* i €* 3- 9- b»
Br. Trials, ^p, Jf {jjg jfljij ijg whether A. S. be the Feme of J. S. or a Nun
s'c^whcre prot'efs'd. It fljall be tricn per pais* 38 M. 29. ari3uliscti+
it is faid that by the beft Opinion, and in a manner by all, it Ihall be wicd by the Certificate of the
Ordinary. Br. Certificate de Evefquej pi. 1 5. cites S. C.
4°' ^ir
Trial. /^j
40. 3!t' Bigamy llC 111 l]UCft(On upon a Counter-plea of the Clergy, it ^'' Trialis,
Hjail be tricD bp'tljc ©I'Otuarp. 4° air» 1 7- 1 8 C» 3 • cap» 2. s c — "
Br. Cci-tifijate de Evcfqiic, pi. 18. cites S. C. S. P. And if it be found ag^ajnft the Defendant by
(^ertiticatc of the Oi'dinary, ihxiia feremiHory, and the Defendant fliuU be hang'd. Br Peremptory ^1
S4. ciccs II H. 4. 48. ^'*^ '
41. Jf t\)Z JITUC I)C whether a Prior be perpetual or dative and 're-
moveabie, bc t&c i^i'ioc L3artj> oc uot, It ffjflll bj tcieo bp tbc C>r5i=
iiarp, 9 H» 2. cap* 4-
42. In AHife it was agreed, that a Jurj' may give and find by their Ver-
dicr that the Plaintiil' or Deiendant 6cc. is ■xBaJiani ; but ij it be pleaded^
itpallbe fent totheOrdmary. Br. Verdi6t, pi. 26. cites 8 AlK 5.
43. In JJ/ife it WAS foil ;jd by VerdiiJ, that the Father of the tenant had S**- Bartardy,
taken the Order of Deacon^ and efponfed a Feme, and had IJfiie the 'tenant, tp' "^"
and died. The Heir entered into the Land j and another, as collateral Heir
of the Father, enter d and otijltd him ; and he re-enter d, and the collateral
Heir brought Jf/fe. And it was adjudg'd by x\Hire in the Star-Chamber,
thai: the Tenant was not a Batlard ; and fo ice, that Efpoufals which are '
Ipiritual may hejoitnd byVerdiif j quod nota bene. Br. Verdicl, pi. 21.
cites 21 H. 7. 39.
44. In a Formedon the Tenant voucFd E. as Daughter and Heir of
H. ^. Clerk. It was moved, that H. S. was a Prielt, and therefore E.
.was a Baftard, and fo cannot be vouch'd as Heir ; and theretbre faid he
•would plead the Special Matter, and io it Ihall be tried by the Coun-
try. Dyer and Welch faid, that fo he might if he pleafed i but if he
pleads General Baitardy it ihall be tried by the Country i for E. is uot a
Party to the Writ, and in fuch Cafe Baftardy fliall be tried by the Coun-
try. 3 Le. II. pi. 26. 8 Eliz,. C. B. Simonds's Cafe.
45'. In a Title upon Marriage, if Iffue be join'd, Marriage or no Mar-
riage, this is to be tried by the Certificate of the Bilhopi but if there be
aQueftion, upon the Triad of a 7iY/f 0/ Z^W, whether a Perfon, under
whom either of the Parties claim, was married to another or no, the
Temporal Court will judge of the Matter without Certificate. Skin.
455. in Cafe of PJllipj5 ailD 15111?, per S. Eyre J. who faid it was fo
done in my Ld. Hale's Time in B. R. in the Cafe of the JLotD DanbP'g
labp antJ S^t. (icnifrtOn; and faid, that it is almoft every Day's Expe-
lience in all the Courts of Weftminfter- Hall.
46. In Debt on a Bond the Defendant pleaded Ne unqiies accouple in Show. 50
loyal Matrimony. The Plaintiff demurr'd, and had Judgment ; for it ?• ^' accord-
alters the Trial, inftead of trying per Pais, it puts the Trial on a Certi- Jhfc j;/"*^
£cate from tTie Ordinary i and adly, it admits a Marriage, but denies (liould have
the Legality of iti whereas a Marriage de Ea6lo is fufficient, and whe- pleaded No
ther legal or illegal is no ways material. 2 Salk. 437. pi. i. Trin. i ^,larri3ge in
W. & M. in B. R. Alleyne & Ux. v. Grey. t'h'af'would
have been
tried per Pais. Comb 151. S. C. but fays the Adiion was Trefpafs for taking his Wife; but Judg-
ment accordingly ; and tliat per Holt, a Plea that they were not married, or not Covert in Marriage,
vould bcgood.
(Q.) i»
+«
Fee Execu-
Yian.
Trial.
( Q^) In what Cafes the Writ Ihall be awarded to the
Bifhop, and in what to the Sheriff
Where it i.T jf fl Man recovers a Debt againft one who appears to be a Clerk,
^IPears by j^ pgj ({j2 ji^i-ft; 0f (j^jjcciitiou fljaU be atmicCco ta tfje S)ijenff; 17
the Pleading ,--^ ^ „ ,-' ,.,>,,,, „,~^t»
^vinan is De-
iendant, or hj the Sheriff's Return upn a Fieri Facias, ^oif eft Ckriciii bevefitiaUis von haler.s Lairiim fej~
dimi, a Levari Facias fliall ilTue to the Hifhop to levy the Debt, Damages, and Cofts, as the Cafe rc-
»:)uires. But if Non conjlat that he is a Clerk, as aforefaid, a Capias or Fieri Faijias may iflue. Jcnk.
ao;. pi. 56.
Br Chatties, 2. Scire Facids iffued c.gainjl tivo Executors- of the Bifhop, to deliver
pl.4. cues jQ [-j^g Plaintili" certain Goods, which b^ Cultom remaind to theBilhop
St £, 3. 4S. 5m;(;e|jQi.^ and not to the Executors of the Predeceflor. The Sheriff
retnni'd ^iiod Ckrlci fiint bcneficiati non habentes Laicmn fecdiini ; and Fieri
Facias ijfiied Ds bonis F.cckftajlicis againlt them, and the BiJhopfeqiiefter''d
certain Goods &c. Br. Ordinary, pi. 9. cites 21 E. 3. 48.
3. The Juitices Ihall not fend to the Biihop to certify, if it be not
upon certain Jffue join\i upon Plea of Parties j quod noca. Er. Verdift, pi.
47. cites 39 Air. 14.
4. In Dower in a Seigniory Royal in Wales, and they are at IJfiie upon
a Ne unqiies nccotipk in lawlLil Matrimony, they cannot write to the
Bifhop i but zheie the King /ha/l write to the Mar/bal to bring the Record
ijere, and then the King Jball write to the Eijhop. Br. Cink- Forts, pi. 8.
cites 19 H. 6. 12. per Newton.
5. It was not denied but that where an Abbot &c. has a peculiar or
exempt Jurifdi6iion, or Lord of a Franchtfe has Returna Brevium, or the
like, the Court will not take Conufance thereof; but Ihall write to the
Sheriff' or Bijbop, and not to the other, quod nota ; for the other is not
his Officer immediate to the Court. Br. Office & Off! pi. 2. cites 35 H.
6. 42.
(Q^ 1) Writ awarded to the B'tJJjop of ijohat Dlocefs.
Bf. Affife, i-TN AfTife the Tenant made Bar as Heir, and the Plaintiff replied that
pl.;55. cites J^ he was a Baltard ; ^zidthQ oxh^t x^]Q\n' A, that his Fat her and Mother
BaftaTdv*^ , were efpoiifed at L. [viz. at London in the Ward of AlgateJ within which
, i6. cites '-8 Efpoiifals he was born, and fo mulier. The Plaintiff fur-rejoin'd, that he was
E. 5. 26. born at L. [viz. LambethJ //; the County of Surry, (where the Land is, and the
^ ^' -AJfife IS brought) out of any Efpoiifals, and fo Bafard, Prtji ; and by Award
it was tried by Certificate of the Bijhop of W inchelter, where the Land lay, and
not by the Biihop of London, where the Birth is alleged. And there, perTank,
if Baltardy be alleged in him who is Party to the Writ, or in another, it
ihall be tried by the Alfife. Quod Finch conceffit, that it has been al-
ways fo ufed ; but faid, that it is better to try it by the Biihop in fuch
Cale. And after it was adjudged as above. Br. Trials, pi. S3, cites 38
All: 30.
2. In Appeal by a Feme of the Death of her Husband, if the Defendant
f leads Ne ungues acctup'e in lawful Matrimony, this Ifall be tried where
the
Trial. 49
the ECpoufals were alleg'd by the Certificate of the Bilhop ot this Place
where the Etpoullils were alleg'd i quodnotu. Br, Trialls, pi. 14. cites
II H. 4. 14.
(R) Bj^ '-jchom the Trial Ihall be made extraordhiary.
i.npfpc!!; Cn'al RjaH "ot be nmUe by him who is fuppofed by the See Judge
j^ A6'tion to be the Wrong-doer. <■-'^^
2. As in Quare Impedic againll the Ordinary, he alleges a Refiifal Of See pi. 7.
tljC Clerl^j- becaufe he was not fufficiently letter'd, attO fO tljC JflllC f,,^ T~!'®
Able or Not able, fliall be tried by the Metropolitan, ailD llOt bp Um-^.'^
fdf 40 (i;. 3* ^5* b* Br Trial,
p). 52. cites
59 E. 5. 1- S. P. if the Clerk be alive ; but if dead, then by a Jui-y of the County, where the Exami-
Tiation was, and not where the Writ is brought.
3. [But] Jit CluaremipcUit againft tljc Ortn'narp, if &e claims no- see tit.Prc.
thing but as Ordinary, &c. tljC Writ to the Bilhop fljaU be atOatDeD !^5!?'^"°"' ,
to t!)e fnitie SDcoinaru ; foe ijere iis not anp Diffiirbance m ijinu s jK)» ^s c iS tL
4. 22. b. Contra tnp jReportiei* 14 3a> Notes there.
5. But if tlje action be brougbt again!! tlje S)r5inarp anD otljeriS, see tit. Pre-
anD tijc ©ttJinarp claims notljing but asi ©roinarp, upon tuljiclj uarit fetation,
to tlje oeiUjOp 10 aiDarnco agamft ijtm, ano after, upon the Piea of the ^*^„«) p'- .
others it 10 mqiUVCH Of tbe plenartp, anD it is found that the Bilhop t^ha Notes
had collated after his Plea pleaded, and the Award ; ailll bCCaUfC It there.
appears tbat be bas matic a Difturbancc, tbe i©rlt fljall be aiunroeo
to the Metropolitan. 8 |)t 4. 22. b* 23.
5. 3!n Quare Impedit againll the Bifhop and Metropolitan, ailti See tit Pre-
jpiaintiff bass 3iu5ffinent affatnft tbcm, upon tbeic piea tbat tljep fentati^n,
claim nothing but as Ordinaries, &c* ailD aftCt KCCObCrp 10 affaiUtt C^^) P'- ''•
tbe Dtfturber, tbe writ may be amarocri at Ekaion to tbc ^ctro-- ^-
poUtan, Ciuia Cpifcopus eft pars $ nominatuc in oareiji, anti be
has admitted the Clerk of the Dillurber* S^g EepOttS, iJ^ %\^^ Grange
and Denny atl)UbgCD»
6. 3if a Man demands Land in a teal 3CtiOn againll the Bifhop of
the Diocefs, who pleads that the Demandant is a Ballard* '^^{^ fljaU
not bettieti h^ tbe l5iQjop, but bp tbe Metropolitan* \X 3 €♦ 1. 15.
Bot. io» amuUgeD*
By Guardian of the Spiritualties.
7. When able or not able is to be tried by the Metropolitan, becaufe Br.Trialh,
the Ordinary is Defendant in tbe Cluate impeBit, if the Metropolitan p'-^- <^"^
l)C dead and fo the See void, it ibaU be trieD bj^ tbc t^ttiirDian of tbe "
Spiritualties of tbe Metropolitan* 40 €. 3- 25. b.
O (S) In
5o
Trial.
Fol. ■iSS.
(S) In what Cafes it lliaU be tried per Pais ; for
Collateral liefpe^. * In RefpGdl of the Adion
* Grig, is 1 J J
(En Refpca pleaaed.
del Attion
pled.) which
h unimelli- I. y jf ProfefTion U pleaded in Abatement Of tI)C WUU It fljall ItOt bC
ft'feems''b' A ^"^^ ^J? ^^J^ ©rDuiai*}), tut pct 1.2)at!3* 1 38 air. 29.
the Senfe of the Pleas, to mean, (In Refpeft of the Manner of Pleading, ivhether to the Jf'rit, or to the
JBian )
tSee(P)pl. 59. S.C. ....
So of Viverce and Refignathn; bat if pleaded in Bar it fecmsit fliall be tried by tlie Bifliop. Br.Trial,
pi. 102. cites 7 E. 4. 16.
5ce(P)pl.i6. 2. Jf it ll£ pleaded in A£tion bv Earon and Feme, that the Feme is
not the Feme of the PJaintilt; but bf J. S. djI0 fljaU llC tHCtl per pai0,
(atimittinB t!jat it ouRijt to U trieD bp tije ©rBinatp, if ittaU bent
in oaar, a^ it oimijt nat,) becaufe it 19 in abatement. 49 aff. 7-
in Trefp^s, 3" 3lf B^iftardv fcC pieatlCD in Abatement of a Writ, and the other
Bafiavdy was fayj That he is'Muiier, It fljail bc ttictJ pct paiiS ; becaufe it is not
feoHhe Pctcmptorp. 49a{r.7. bpl^et^e^
Aftion, and . _ » t.
tried by Certificate of the BilTiop. Br. Trial, pi. 1 24 cites 5 E. 4, 1 1 . & 4 E 4. 3 j.
(T) In what Caies by the Law Spiritual, and in what
per Pais ; for Collateral Refpec^. Where tbe Ijjm is
upon the Time.
See (P) pi
59. S.C.
P'- t. T if tbC 3iirue be tUljCtljeC a. %> was a Nun profefled before llitf
^'f -Re A made a Feoffment to J. S. or after. CiUS fljall be ttietl b? tIjC
kafe pkaded Couiittp ; fot IjCtc tljc ptcfcffion 10 uot in Siucftian, but i0 con^^
to have been feiTeri i aiiti t\)z Ciueftion 10 ontp tot tljc €inie, luljicij 10 mofi ptopec
niadehyan fot tf)e Counttp to ttp. 38 ^If. 29. aHHiogeti. 9 ^. 7-2. Co. 4.
fhrpfaintiff,^-^^,7-b.
ivho was alleged to have been a Monk profefled at the Time of the making. Br. Trial, pi. 91. cites
44 Aff. 10. Br. Trial, pi. 94. cites 9 H. 7. 2.
2. 3!f tbe JlTue be whether in Time of Vacation of an inferior Ordi-
nary, the Archbilhop or Dean and Chapter of the See ihall be of Com-
mon Right Guardian of the Spiritualties. '®f)i0 fijall bC ttieU bp tljC
iDifljop, anti not pet \M^. 17 €. 3- 23. b.
SeeCY)pl.2. 3- 3if tljC Jffue be whether a Bilhop be Confec rated or Nor, Cl)i|2i
fijali betftet) by tlje %m €*pifitual, anQ not per L^aiiS. ^i €. g. 40.
4- If tlje jU'Ue be upon tlje time of the Voidanceof aChurchin
Quare impedit. '^1)10 fljali uot bc ttieti bp tlje ©tUittarp, but pec
pai0. i8 €. 3 58. 21 c. 3- 7- Contra is €, 3. 21. b.
5. 3!f tljC JflUC be upon ti)C time of the Confecration of a Biflaop, it
fljall be trict! fap tije laiu epintual, antJ not per I2)ai0. 21 e. 3.
JFit^O. ^ftoppcl, 161. nomitteo.
j. g 6. In an Action agai nit an £wf ///■or, htpkadcd that herefiifcd the Fx-
pl .iM. S.C. f'^w^or/^//), upon which the Parties were at Ilfue. It was moved that tiie
in the fame Ilfue join'd upon the Refuilil ought to be tried by the Country, and not
Words. by the CertiHcate of the Bilhop ^ and of fuch Opinion were Windham
and Walmfley J. But per Pcriam J. where the Illue is whether the Ex-
ecutor
Trial. 5 1
ecutor did relufe the Executorfliip Irefore fuch a Day or after, there the
■JVialfhall be by Jury; contrary where the Ilfue is upon Retufal gene-
rallv, becaufe the Refulal is before the Ordinary as a Judge, as alfo
his Relignation. Le. 206. pi. 285. Trin. 31 Eliz. in C. B. Anon.
7. Prohibition to Hay a Suit in tlie Spiritual Cout to deprive a Parfbn, 2 Jo. 15 r.
for that he was no Prieft. The Suggellion was, that at the Time of his ^''1; '' ^
litjlitntion he was a Priejl by Epifcopal Ord'tuation ; the Defendant L^,[j*^{,*'
pleaded that he was not ; £t de hoc ponit fe fuper Patriam. The Plain- ©oomiT
tirt" demurr'd. The Queltion was, how this Iffue fhould be tried ; it S. C. but
was agreed, that Pricfi or no Priejl is triable by the Ordinary ; but Prieit "^^^ nothing
or Not at ftich a Time is triable per Pais. Jones J. faid that it ought to p^int^'f^h
be tried by the Ordinary, becauie the Times refer only to a Spiritual Trial • but
Aft, (viz.) the Inftitution ; but where it refers to a Temporal Aft, as at the End
to a Feoffment, &;c. it fliall be tried per Pais. Sed adiornatur. 2 Lev. "^'"^^ Cafe
250. Patch. 3 1 Car. 2. C. B. Hill v. Barne. citefzTE""
40. Fitzh.
Elloppel 161. 58 A(T. 29. 9H ;.2. 4 Rep. Hinde's Cafe. 2 Show, 52. pi. 59 S. C. And there
by Jones J. Where the T/we is (i«/y ^ Qir«»/y?<iwi:« of a Spiritual JB, the whole Matter ought to be
tried by the Bifhop ; But iflhe. Spiritual J.ci ts admitted as PoJJeJjiotj &c. and the Time only is quejlid/ied ;
this fhall be tried per Pais. And Scroggs Ch. J. laid, that this Thing is triable only per Pais, v. here
it is a collirteral ALuter. -5 Keb. 827. pi. 55. Micb. 29 Car 2. S. C. that it was faid Tha: Prieft or
Not, at fuch a Time, is triable at Common Law.
(U) By whom the Trial may be made Extraordinarily.
By Prejcription. [Or other^ujife. ]
I. np]p2^ Archdeacon of Chefter Ijxlt! tlft^ tO ttp all WttgiS within
X the County of Chefler, as Ordinary immediate of the* Pope. 8
I). 6. 9. In
2. As \)Z fljali trp Baftardv. 8 IX 6 3. b»
3. So a Writ to the Bifhop fljall bc turccten to Ijim. 8 rp. 6. 3 B^
4. So IjC fljall certify Excommunication. COlttra 8 Ip* 6. 3. 6* Br. Certifi-
cate de
Evefque, pi. z6. cites S. C. that it is not good, [but mentions nothing of Ulao-e.]
5. '^\)t Archdeacon of Richmond igi tIjC immeHiatE SDffiCCt tO tt? The Arch-
Cljmsjs dtc. 8 ^. 6. 3. b. 17 C* 3. 23. b. RiZo°fd
in the Time of Vacation, may certify. Br. Certificate de EveCiue, pi. 30. cites 7 E. 4. 14. Jo.
Litt. 154. a.
6. He that exercifes the Spiritual Office, tho' another de Jure ought
to do it, pet tlje !I\tns fl)iiU Direct Ijig Wx\t^ to Ijim iulja eretdfegitljc
S)ffice» 17 €♦ 3-23. i\
7. Jjf ot an interior Ordinary the Archbiflicp had ufed to be Guardian
of the Spiritualties, and now by Compofition betlUCCH tljC SrCljbiajOp
auU * Dean anU Cljapter, one of the chapter exercifes it ; tijC 1BCIt0
I!)al{ bc tiirecteo to Ijim^ ann ^c ougljt to e;cccutc tljem> 1 7 €. 3- 23-
Diibitatur,
8 In Time of Vacation, tl)e l©tlt tO tt^ Baftardy (IjaU .bC tlirCCtCC P^crog-nive
to tljc ©uacntiin of tijc €)picitualtie0* 41 3(r. 29. atDUDgcr!. ^ c!_ ''
Br. Trialls, pi. 122. cites S. C. Br. Certificate de Evefque, pi. 19. cites S. C. So oi Able cr Ka
.able, in a Quave Impcdit. See Prerogative (T. c) pi. 7.
9- Jf a Man recovers in a Quare Impedit a Prebend in York, the
Archbilhoprick of Vork being void at the Time ; tljC Writ to the Bilhop
fijaU be bircctcij to t!jf i:>m niiti Cljaptct of ^orlw 3 2 e. 184. ati=
10. Jf
5 2 Trial.
lo Jf a Bilhop makes his Vicar, and goes over the Sea, VCt HUnnff
ij(^ abtcnce tlje XH^viw fijall net be Hirectcn to tU 3Dicat but to the
Idiiimi, 115130 istijc £)fficec of EecotU, i €. 3. 1 1. b»
1 1. [So] if a Writ be direfted to cheBilliop of N. and the Vicar, in
the Abfence of the Bifliop, will not receive the Writ, becaufe it ijS not
directed to him, ^Ct tfjeSicut alias Ojall bC DiCCftCrJ tO tljC OBilijOp, bC-
caufe ijE 10 tije £)iT!cer of tU Court* i e. 3. 1 1. b.
In fuch CaO: 1 2. 31f Profeflion be to be trieD b^ tlje Bilhop, tUljO is out of the
Pmcefi ftall Realm, as is fuggelled to the Court, VCt t|)e COUtt fljall atUntD tflC
Vicar Gene- ^^^^ tO tijC "BlfljOp, anU HOt tO !)tS Vicar General, bCCaUfe tIjC COUtt
rii to cer 10 uot appn?cH tljcteof. 41 e* 3 • I o. b*
tify. Br.
Ordinary, pi. v cites 41 E. 9. 10 Br. Nonability, pi. 4. cites S.C. Br. Certificate deEvefque,
pi. 2. cites S. C.
Er.Certifi- 13. But if the King certifies the Court by Writ, EitljCt tCfOfC tl)C
Fvef.ue t,! ^^^^ dLiMiTifQ, ov Moiz t!)c Ectutn, tfjcn tlje Wxit (Ijail be amtt^
i cites s. Q eD to tlje iDifijop, or to ijigi 33icar ^iDeneraU 41 €» 3- lo- b-
and S. P. 14. Alfo, iftijC King certifies after the Award of the Writ, and be-
fore the Return tljcreof, pet tlje l©rit fljall be auiatDcO immeuiatel))
to the Bifhop or Vicar General, tU tlje DlpjUllCtilte* 41 C 3. 10. b*
aUjuDgcti*
15- €)ec 8 ]|), 6. 9- Uiljere a I5rerentment luags to tlje 13il!)0p,attTJl)is
Vicar General uiaHc a Comuiiffiou XQ auotljet to uiquite U)l)o toad
patroiu
5Le. 45 pl- 16. Jit a Quare Impedit againfl the Archbiflioprick of York, for a
66. Mich, (jrjjiifcjj tj3it|3iii tJje DiOCefsJ of £^Orl?, iUljO pleads that he refuled the
Anon but Clerk of the Plaintiff lor liliterature, auU fO Lapfe iUCUtr'tl XtS btUl (JC
s. c. And if tlje JlTue be upon tlje Ability or inability ; tlji0 fljall be trtcn bi>tDc
Dyer ch J. !arcljblfljop of cautetbutP, becaufe tlje arcljbifljop of ^ork is a
conceived j^art?. Dubitatut* D, i6 €1*327- ?• pet it appears! tljat it ttias
Souidbeby after trieti bptbc arcljbifijop of Canter burp.
the Arch-
bifliop of York, and not of Canterbury ; but Manwood and Mounfon J. conceived it fliould be by the
Archbifhop of Canterbury.
17- [So] in a Ciuare ampct?it againS tlje ^rcljbifljop of^orfe attti
Otljer^, if tl)e Archbilhop be found a Dilturber, and Judgment for the
Plaintiff, tbe UBtit R)all be aiBamen to tlje atcljbifliop of Canterbury
^uta Cplfcopus Cborum eSl par^ $ conipertue Juipcnitor, ana
fljall not be ataarucn to tlje Dean aim Cljapter of i^orH. D* 15- 16
CI. 328- 7- per Curiam. ^IDjutJsen.
(X) When it is to be tried by the Law Spiritual, By
<whom it fhall be commanded to he tried.
r""^ v' '5fn K XI ^«e but tlje courts of Rccom of tlje mino:, ags tlje Court of
the Lo." iN Common Bench, King's Bench, Jultices of Gaol Delivery, aUD
Ihip's fUCJ llUe, may write to the Bilhop to certify OBaftatDp, ?0UliertP,
Marches in jLQP^-ilj-p Of i^atrimony, ann fuclj like (!5ccleftaftical Chatter i for It
n^ttritrto i^ a Eule in lau), tljat none befine m mtng , map turite to tlje 15v
theBiOiop- fljOptOCerttfpi atlD tljcrcfore no inlerior Court as London, Norwich,
and there- York, or anp otljcr inferior Corporation, can turite to toe Miop.
'''^"^■-'^--'^'But in fuch Cafes the Plea I'-ughc to be removed into Bank, and this C^outc
* I^/-^°'j ought CO write * to the Bilhop, and alter remand the Record again i aUH
Trial. 53
tW uwfi in iRcfpert oTtlje f^omm mn Ecijmncc giben tot\)ZlBi-f°'<^\9^^^~
fljOp. CO,lltt. 134- Schin'
Wales lay in die next County adjoining. Co. Litt. t;4. b. and fays, That this agrees with Antiquityj
which is, that Nullus alius pr^eter Regempotell Epifcopo demandarc Inquifitionem faciendara.
2. The Bi/bop of Durham has Temporal Jurifdiftion, and writes to his
Cfcrks to cercilv Bitfiardj, Eiiainy Sec. Bi. Ordinary, pi. n. cites i?
H. 7-9.
(Y) 3y whom it iliall be made.
I. 22 C, I EOt» ClaU= •''^Ertificate by the Bifliop of Ely ; aittl tljCtC See Excom-
farUUlS^. 9- V^ $13Cin&» 8. Felon delivered to the Bilhop munication
Elelt, UJlJO mane Purgation l)£tOl'C 1)10 SDffiCCCi aittl tIjC Bilhop certi- CB)
fied, alter that he is made Bifhop.
2. 3!ftfjC 3iirUC be, whether a BilLop be confecrated, or Not j t\fl$^^ ^^^^
fljall be triea bp tljc ii5etcopaIitan» 2r(£* 3- 4°- confecra-'
tion, and the Year and Day thereof And from fuch Day he fliall have his Temporalties delivered to
him. Br. Certificate de Evel'que, pi. 7. cites S. C. — Br. Ordinary, pi. S. cites S. C.
3. 9 Certificate of an Excommunication ttlfl^ bC ITIfltlC by the Dele-
gates per Commilfionem Regiam UUDeC tljCicConiUlCn ^£^1, upon an
Appeal a ^tntentia Dcfiniti^a prolata in Curia l^r^uogatiija Caiv
tuaricnns, D* 22. 23 ei, 371- 4- 10. 10 3ia. 15, jL^ct Cutiam.
4. In Annuity, the Defendant pleaded Excommunication in the Plain- Br. Certifi-
tiU, and fhewed Letters of the CommifJ'ary in Proof thereof. Et non alio- "^= '^^ .
catur ; lor Bafiardy and Excommunication ought to be certified hy the Bt- - J^clt^'i^ '
Jhop himfe/fi tor he is Officer immediate, to whom the Court lliall write e. 4. i^, s.P.
to make Abfolution, and to no other. Br. Certificate de Evefque, pL becaufe the
I. cites 20 H. 6. I. Court can-
not write to
the CommilTary to affoil the Party.- F. N. B. 62. (N) Marg. cites S H. 6. 5. that the Archdeacon
certified, and it was faid that he was Ordinary immediate ; and yet it was doubted whether good or noi
becaufe the King cannot have Benefit to feife Temporalties, by Rcafon he has none, as a Bifhop hath.
Excommunication certified by the Official, or CommifTary of the Bifhop, is infufBcient ; and it
muft be by the Bifliop himfclf, who is the immediate Officer to the Court ; and none fhall certify it
but he to whom the Court can write to affoil him, as Bifhop, Guardian of the Spiritualties. 8 Rep. 6S.
a. Mich.6 Jac in the Exchequer. Trollop's Cafe. But anciently every Official or Commiflary
might teflify Excommunication in the King's Court, but for tlic Mifchief that enfued, it was ordained
by Parliament, that none fhould certify it but the Bifhop only. Co. Litt. 194 a.
5. The Statute of i Eliz. i. Ordains that every Bi/hop in his Diocefs D. 254. a.
pall tender the Oath of Supremacy to every one of the Clergy within his Dio- P'ul '• ^^'P^-
cefs; and the Bi/hop /hall certify to the King's Bench the Refufal of any of ^(j ^^^ ^^.
themi and fuch Kefufer Ihall be there indifted upon fuch Certificate. A an Exception
Refufal was certified into the King's Bench by the Hands of Bijhop's v/as taken to
Chancellor i and allowed. Tenk. 228. pi. 03. Dr. Bonner's Cafe. theCertifi-
•* i. xj cate, becaufe
it was not alleged to be Per Mandatum Epifcopi, yet Non allocatur.
P (%) By
5* 4- Trial.
"I
(Z) By whom it fhall hzfor Collateral Canfe.
jf tlje Temporakies of a Biftiop are feifed ilttO tljE J^iWltlEi Of tlje
£\ing for his Contempt, Wt XX ^XlZtmiXlM Baftardy be tO IJC tUletl,
it Ihall be tried by him, t!3O'l)!0 '(lli:mporaltte0 CSnnOt IJC ItOlB iClfCH,
ifijc 5OE0 not DO J)i.0.S)fricc, ftljcp] tiemg fcifcD before* 8 jp, 6. 3. b*
Sec (U) pi. 2. 3if Baltardy bC tO be trieO HI Time ot Vacation Of tljC 'BifijOpHCU,
s- sc. it (jjiiK be txm bp ©uai-umn of tljc epirttualtiess* 41 atL 29. an-
)lt5iJCD.
D. 766. 77. 3- 3f a Writ to the Bifhop Uppn a BiUtJffUIEnt in a Quare Impedic
pi! 54. ^5.' againlt the Ordinary and others, is awarded to the Archbiihop of Can-
56. Henflow terbury, nutl aftCf before Execution of it a ^Vrit of Error is brought,
and Stanby ^^^ W^m tljI^tljE Judgment affirmed ; JlpOlta Surmife that Execution
fliop of Sa- is not yet made, a VVrK fljall be alOaCtieD tO X\)t Guardian of the Spi-
lum and ritualties of the Archbillioprick fede vacante per Attinfturam Of tl)C
Kebie. arcijbifijop. D» 6 e. 6. 77. 37. aO)UUsct!>
A Bifliop 4. Jf a Wric to the Bilhop be awarded to the Dean and Chapter of a
eleft, before giil^oprick, Guardian of the Spiritualties, %t^Z JDacantC Epifcopatus,
J?^^^^™'^-antl before Execution a Bifhop is created, it luaS tlOUbtell lUJjCtijC!: tljC
cenifv F autljOEit^ to erccute tijc mnt be ceafeo \\\ tlje Oeait ano Cljapter j
2^. b;62. ana it fcein'o, tljat upon ^lUTueffton to tlje Court of tfjig ^ISatter,
(N) But (gQ qijou nijjij aJtuti <3(tUm fUtt in bre^i PrsetllCtO, another writ may
ScM this b^ awarded to the Bilhop. D. i8. CU 35o. 19.
derftood of a Bifhop confirm'd ; for before Confirmation he has nothing. But the Ch. J. held contra,
ijecaufe it is a minifterial Aft ; and by the Eleftion the Power of Guardian of the Spiritualties ceafcs,
and it is ncceflary that Ibrae body make the Certificate. But Quzrc. See Lat. 247. in the Cafe of
Evans v. Afcough.
(A. a) By the Law Spiritual. Certificate, j^t what Time
it Ihall be made.
Br.Certift- I. Tjf H Writ iffues to a Bifliop to certify tUljCtI)er % IJC a Baftard
^'%'^'= X upon an jflTUC in an Affile, aUll after tlje Affife is difcontinued
20'' dt«'^ by not coming of the Juftices, aUD after a Re-attachment \^ fUCD, tlje
s. c. - 'BiHjop map niaUc Ijis Certificate \\m to tlje %mm upon tlje faiu
Br.Re-at- jiBctt, tDitljout a itciti JBtit Citecteti to ijim* 43 M* u. 43- SIO^
tachment,pl mOgeOv
i4.citesS.C. 2. In AlTife, it was writ to the Billiop to certify Bafiardy i and D^y
•was given to the Parties to the next Affife^ and the Parol -ouas not put "xith^
cut Day, notwithrtanding the frelh Suit. Br. Certificate deEvefque, pi.
6. cites 38 E. 3. 31. but cites 40 E. 3. 26. Contra; for there the Parol
was put without Day ; for the Eijhopjhall not be appointed any Day certain
to certify.
3. Upon Iflue of General Baftardy in Aff/fe, the Court made Writ to the
Bijhop to certify, rettiruable at the next Sejjtons. Brooke fays. And fo fee
that in Allife they give Day certain to the Bifliop to certify. Contra it
is in other Cafes. Br. Certificate de Evefque, pi. 28. cites 43 AfT. 11. and
43 E. 3. 26.
CB. a)
Trial. 5 5
(B. a) By the Law Spiritual. Certificate of Billiop. Foi. 591.
Hoiu it fhall be made. s^f&Q^
munication,
CC)
i.Ti!2 l©n't of Dower, upon itit Slfliie of Ne unques accouple m latB- ° 5°)- b.
i fill a^ntnmonp, if ai©rit ifTue^ to tfjeoatfljop to ceitifp $c. f,^^ f]'"''"
fllltl l)C certifies that the Baron being ot ii V^eara lo Months and 20 £]i^ § ^
Days of Age, and the Feme being 1 6 2^Ctlt|2i Of 3gC, inter-married in — it ought
facie CCClCfl=e, t!je one lUitlj tf)C Otljer, and fo they were accoupled in to bepyea/e^
iaiufiii spattiraonp i tiji^ 10 not n gooo Certificate, becnufe It tioesf ''"^ "'* f
not give a full Anfvver to the Writ UJljCtljet tfiCP inCte aCCOUpICtl UxTpecial J/lt
laujful $t5atrimonp* D* 14 €1 313- 92. /e, ; for this
Court can.
not adjudge of the Special Matter, but it appertains to their Law to determine it. S. C. cited per Cur.'
Cro. E. 7S9. in Cafe of Baker v. Rogers. (But if he certifies precifely or pofitively in the Be-
ginning, and fuper-adds his Re.rfcin, it feems fuch Certificate is good.)
2. But If ttpon fUCfj tlSrit tlje "BifljOp certifier, that he has made di- D. ;5S. b.
ligent Inquilition Of tljC ^attCt, by which he has found, by lawful P'^- ^^|._|'*^'=^-
Proof, that the Feme at luch a Place In CCCtaitt was accoupled in laUJfltl Return ^
i^fltcimoni) to tije faio 'Baton mentions in tljetisrit i tljts w a gooD made bv the
ii;n;tificate, tijo' it inagi oDjctteo tOat Ije ougf)t to IjaDc ccttiftei] W fii'^eeding
propec £Dpimon, anu not tlje 3lnquifitIon onip ; foe Ije l)a0 certified G.evM^afe
a0 mucl) ass tije i©tit requiteH in effect. D. 22. CU 368. 48. 49. _Asrhc'
aOjUngCD* Cafe is in
Ld.Dyer,
if the Spiritual Court will certify the Special Matter upon a Certificate of Matrimony or Ballardy &c.
it is not good ; but they ought to certify precifely the one <way or the other ; for the Temporal Court can-
not judge of that Special Matter, but it belongs to their Law to determine it. Cro. £. 7S9. Mich. 42
& 45 Eiiz. G. B. in Cafe of Baker v. Rogers.
In Dower a-n lilue was join'd upon ATe unojues accouple in loyal Matrimony, and a Writ awarded to the
Bipop- He return d the Evidence before him to prove the Marriage, ivhich appsar'd fitffcierit ; but did not pofi-
ti-i,el\: return that the Parties were h:-wfully married. On Motion for Judgment upon this Return, the
Court refufed it , and faid it might be moved again, upon giving Notice of the Motion, that the other
Side might have an Opportunity of difputing the Sufficiency of the Return Note, the Return was af-
terwards amended, and the Fadi certified mftead of the Evidence, and the Plaintiff had Judgment,
Barnes's Notes in C. B. i, 2. Mich. 7 G. z. Eafterby v. Eafterby.
3. [So] jn UBrit Of Doiuet, if tljclflite tic toljetljct llje toais ac^ ThisCertifi-
touplco in iatofiil ^^atrimonp, aim tlje Odifljop certificsi that ihe was ^f /jf/^;^..
accoupled in vero Matrimonio fed Clandeitino, tljtS ISS a jJOOH CCttifi^ j^ menf*
cate; for if fije ioa0 accouplen \\\ Dcto $59atrimonio, tljisf iuais In Iaui= particpa-
fui S^atrimoni'* Ipill, 9 Car. 15. Eeg(0, betuiecn ivtckham andCosford^ t.one mut^
nUiiiDG D in mtit of Crtot, it bans affiffn D tot error. 3ntratiir "^Z'rZ' ^
^iih 8 Car. Eot. 66. Z,r of"'^
the Baron ;
■which proves that they continued as Husband and Wife during his Life, and it is not now to be quef-
tion'd. And tho* it was alleg'd for Error, that there was neiti.er Day nor Place of the Marriage men-
tion'd in the Bifhop's Certificate, yet it was held good becaufe it is not ifiuable, the Certific^ate being
conclufive. Cro. C. 351. pi. i6. S. C, by Name ot Wickham v. Enfield.
4. :jf a l©rit iffiies to tlje Binjop, uiljctljct tlje plaintiff m^ Baftard
orMulier, ailO tljCBifljOp CCrtlfieiS that his Father efpoufcd his Mother
in lawful Matrimony, alter whofe Efpoufals the Plaintiff was born, and
the Efpoufals continued all their Lives ; tf)iS i0 gOOH Certificate, tljO'
Ije tjagi not certified fully Muiier, ann tljcre iiiaD be a Diborcc aftec
tbeir Deatlj. CBiit itktim it fijall not be iiitcnUctiO 43 SIT. n.
^njiitigen.
?, So
56 Trial.
5. So in Affife, if t\)Z Tenant fays tijat A. the Father of the PlaintilF,
took B. to Wife, and had Iflue the Plaintiff" and after they were di-
vorced, and ft tlje PImntiff a BalUrd i to iDljiCl) ti)Z Plaintiff" fays
that he is a Mulier. iJpGlt lOljicI) n WUt 10 XHUittXi t0 t!)C 'BlfljOp,
IbIjO CCl'tlfiC0 that the Plaintiff' was born in lawful Matrimony, U)itl>
out cectitlJtng tijiit !)C i^ fulip ^Uliec ; anti tljo' tfje -Ccitant !ja0 ac=
itnouJicDBCO in I310 piea, tljatttjcrciua^aii^atrmionp, aimtijat tlje
3]i5!nmtisr luas boiu ttjcrciii, pet tieraufe if tljere m^ a Divorce, tijeti
It ncucr U)a0 a laiarui ^-.rcnagc, tfjc Cettsficate afoixfatD is ixoon,
luljic!) ceitifics tIjat Ijc uia^ born m laiyful S^atritncuj?* 43 ^fl» 43.
atijutigcn*
6. l^pon tIjC IITUe of Baftard or not, (f tljC ©rHiliari? CertifiCSi that
the Plaintiff was Mulier, prout per Inquifitionem invenit, tf}i|5 10 gOOH,
ftJitljout cettifping sntetall^^ Icgitinuis* 3 ^» 6. agaffarDp 2.
7. 3;f alDlfijOp certified a Plenary, fCiliCCt, that the Clerk was ad-
mitted and iniiituted, auD BOC0 iiot fav itiouctcti, pet tljis 10 a;aoD ;
for tlje Ci)Utcl) i0 fail atrainft a common H^ctfon lip tIjc 3:ni!itfitioiT,
Br. Ccni- D* 4- €U 2I7. 62. JaUjUDO;'!!*
ficitc de 8. In Affife they were at IHue upon Baffardy and Mulierty, and the
EveCjue, pi. Bifhcp upon Writ to him directed, certified that the Defendant was a BaJ-
'^^'c-!!^^— ti^^^i and the Lidorfemetit was, that A. Mother of the Defendant, abfented-
Jenk. 44 pi hcrfcif Jrom her Husband by 7 Tears, in which time the Defendant aforcfaid.
S4. cites ;9 -joas begotten by W. K. a Clerk, and fo ommno a Eafiard. And becaule he
E. 5. 14. and ^^g a Baftard' in the Certificate, the'y had no Regard to the Indorfe-
s'c' Says, "^^nt, and the Plaintiff recover'd. Br. Baftardy, pi. 35. cites 38
it wa« re- All. 14.
folved on
this Certificate, that the Iffue is a Baftard ; for this is tlie Effeft of the Certificate, and the Addition of
the Caufc was funeifluous; by all the Juftices of both Benches. D. 513 b. p).92, in ©tav'S
Cafe, cites 38 Aff and that the Court gave no Regard to the Indorfcment ; for the Writ commanded
the Bifhop to certify per Literas fuas Patentes 8c Claura,s, and confequently what was return'd upon the
Back of the Writ was Surplufage or Nugation, and not eftcciual.
D. 23-.pl. p. The Billiop of York, in Anno 5 & 6 E. 6. certified In the late
29. Patch. Court of pij-fl; Fruits and Tenths by thefe VVords, Adhibimnus omnimo-
Anon'\vs ^^^''^ diligentiani per Siib-coUedores noffrcs, per totam Dioceiim Eborum, fc?
thato'fVoi- compermiis J. C. Vicarimn d& G-dTgrave, rectifantem fohere fabjidia vicari^e
dance, by fi^ qui nullo modo metu pcenarum hujufmodi product potuilfet ad folu-
Refulal to tionem fubfidii prsedift' fed perfeverans in Obltinatiori fua Malicia &c.
TentV^the Quaere if by this Certificate the Vicarage be void or not. D. 116. pi.
Aft fh'ews 69. Pafch. 2 & 3 Phil. & Mar. Anon,
plainly that
It is as void to all .Tntents, ipfo Fad:o, as if by Death of the Incumbent. See 26 H. 8. cap. 5.
(C. a) By the Spiritual Law. Certificate. What fhall
be a good Certificate.
Br.certifi- i.T jf it be fent to tljc ©ttiittarp to ttp UJljetljec one of tlje Iit)art(c0
cated-E- ^ tua0 accoupled in lawful Matrimony $C» it 10 WO gOOH Cettift-
12 dt'es Ctlt^ ^^^ ^^^ fiDtOlnarp that he can do nothing, by reafon oi an Inhibi-
S C pe'r tion come to 6tm out of the Arches j fOC IjC Oligljt HOt tO CCafC tljC
Curiam, and commauOment of tlje J^ing fot anp :jnl)ibition. 39 €, 3« 2o»
therefore a ^5)^,^5,
Sicul alias ' "
iffued. — Br. Ordinary, pi. 14. cites S.C Br. Return de Brief, pi. iii. cites S. C.
(D. a)
Trial. 57
(D. a) What fhall be good Certificate for Collateral
Refpeui.
i.Tif atlDnt imm to tljcl5in)0p to certify if 3!» ©♦ 'bz a Baftard, srCemfi,
1 if !)C 111;lftC3 a Certificate, pet if he does not fend back the Writ '^'rj.^'.
luljjcl) comes to ijim to uinrrattt tijc Ccttificate, it 10 not gooti> 41 ,^^ckJ '
Slfl;29- atijuDffco* sc. ,
Br. Retom
de Briefs, pi- Sr. cites S. C. — Where the IFcmav., finding the Bifhop intended to certify againft her, got
aviay the li^Vit hi Stratagem, and then the Defendant, whom flie fued, took out another Writ, (which he
might do upon ^'Iotio^ or 'Notice to the Plaintiff) he upon that had a Certijicate. Z Jo. 38. Pafch, 2$
Car t. G. B. Smith v. Smith.
2. Jf a Ji^tit iflues to the Guardian of the Spiritualties to try Baf- ?>■• ^^J^-
tardy, tlji0 IS tO be certified in the Name of the Guardian of the Spiri- g^^fq^g* t
tuaities. 41 air. 29. aoningci!* 19. dtes
S.C. Br. Retorn de Briefs, pi. Si. cites S. C.
■ 3* !Jf a DBrit ifllte^ to the Archbifhop, Guardian of the Spiritualties,
©eDe DacantC of the Bilhoprick of Coventry and Litchfield, tO Cetttf?
luljctljcr a, toais cijcr accoupied in latufiij S^atrimonp, aitu Ijc rctiirnss
that Doftor Babington his Commiirarv of Coventry and Litchfield, had
inquired &c. tljigi 10 llOt a gOOtI KetUtn, bCCaUfe Delegata Poteftas
non poteft delegari ; iJUt tfte KCtUtU ought to be in the Name of the
Archbifhop himfelf <^U 7 3!a» 'B* Fultatizb's Cafcy pet: CUnailT*
( E. a ) For whom the Certificate fhall be faid to h§
made.
i.T jf tlje IffUC \SZ ilt ait Affife iuIjCtljet tlje tenant be a Baftard or aEr.Baftardy,
X Mulier, aitll tl)t0 t!3 ftnt tO tljE ©CDlltatp tO 1)0 ttiCH, tUljO certi- p'^'- "'«
lies that he is a Baftard, and Ihews tlje lUanner How ; by which it ap- \^^ And fo
pears, upon the Certificate, that he was born in Efpoufals, and fo a Mu- fee that the
jier by our Law j yet iiecaufc tlje Q5ifl)op faiti Dcfoce, tljat tl)e Cenant y«y?''" w
% fiiHp 'Baaatu, tljis is to be tafeeii a Certificate againft tljcCcnant* "' "i^'^*'
39 e. 3- 14- amubseD. 38 am 14- m\x^m rame Cafe* fcfjT
tie Certifi-
cate-, but only to the EffeU thereof, which was that the Tenant was a Baftard. Br. Certificate de
Evefijue, pi. 2-. cites 58 AflT. 14. S. P. and the Reafon given was, that the Wife went away from her
Husband, and was 7 Years with the Adulterer; but did not fay whether the Baron was Infra Qjiatuor
Maria or not, and by this he i« Baftard by the Law, but otherwife by the Common Law.
(^ (E. a^)
58
Trial.
* The Word c£^ .\ * j/L^^j Good. Vpon isjhat beins; 'ta'ke/L And
IlTue has di- \^ J J' 7 r> 7 • !
veiicAppH- isotes am Kuks concerning them.
Citions ill
our Law,
<::arc it is ta- i-T^ Covenant the Iflue was taken ///)o;; ^// the Covenants feparatelj, if
ken for that j[ they were performed or not. Contra in Debt upon an Obligation lor
Point of ^'-^"'-Performance of Covenants, the Iliuc Ihall be upon one Point only for
,T sTt'"^'"^ "^'^^ ^^^'^^ Penalty. Br. Covenant, pi. 33. cites 26 E. 3.
whereon the • m- n. i 1^
Parties join, a^^d pit their Canfe to the Trial of the Jury, and is an Eftcct of a Caufe preceding, as the
Point refcrr'd to 12 Men in the Efted of Pleading or Procels. Heath's Max. 75.
ll is a fingle cert air- and materia! Point ijfuins; out of the Allegations and Pleas of- the Plaintiff and De-
fendant corifift"'g regularly upon an JJJirmative and Negative, to be tried by 12 Men. Co. Liit. 126. a.
2. IlTue may well be taken upon Prefcription in Afiife. Br. Common,
pi. 43. cites 30 All. 42.
3. Iflue was awarded good, whtxhcx the Defc}ida?it ought to Chant at
D. ur clfr^here for the Soul of IV. N. and he/aid that he bad chanted fe-
cundim jormam Charts-, and llFue awarded good, without laying Where
he chanted ; for the Deed is at D. or elfwhere. Br. IflUes joins, pi. 64.
cites 41 Afl." 3.
4. ilUie was tender'd \v\.Sciie7acias to execute a Tine levied to J . and
W. his Son, where he had two Sons of the Name of IF. if the Intent of the
Fine was that VV^ the eldell or W. the ydungeft fhould have it, but * h
*Orig^is does not appear if the Illue was received ^ for per Finch, Intent does
(non pi) not lie in Averment. Br. Ifiue joins, pi. 47. cites 47 E. 3. 16.
5. In y^jjffe of 100 ^cres of Land, if the tenant fays that the Land put
in View is but 40 Acres, and pleads in Bar, the Plaintiff may make 'Title to
the 40 Acres, and pray the Ajfife of the Re/l ; but the .Quantity will not
makeljfiie, as it is faid there in the End of the Cafe j but it is only afay-
ing. Br. Traverfe per &c. pi. 323. cites 8 H. 6. 11.
6. When all is confeffed and avoided, Iffiie cannot come upon the Time, as
it feems. Br. Departure de fon fire pi 30. cites n E. 4. 5.
7. An Iffue being taken generally refers to the County and not to the
Writ. Co. Litt. 126. a.
8. As in an Account, the Writ charges him generally to he his Receiver.
The Count charges him fpecially to be his Receiver by the Hands of T.
The Defendant pleads that he was Never his Receiver in Manner and
Form &ic. This Ihall refer to the Count fo as he can't be charg'd but
by the Receipt by the Hands of T. Co. Litt. 126. a.
9. A Special Ifjue mull be taken in one certain material Point, which
may be bell underltood and bell tried. Co. Litt. 126. a.
4iE.-.ri.b. lo- A Man leaves his Wife Eifeint with Child. Iliue Ihall not be takert
that Ihe was not Enfeint by her husband -dz the Day of his Death ; for Fi-
liatio non potell probari. But the Iffue mull be whether llie was En-
feint at the Day of his Death. Co. Litt. 126. a.
11. No Iffue can be taken after a Judgment quod eat indc fine die.
Cro. J. 126. pi. 13. Trin. 4 Jac. B. R. PLirold v. Ciof worthy.
12. In a Prohibition upon a Suggeflion of Unity of Pofjcjfion in the Abbey
of the Reolory and Lands, &c. and that they came to H. 8. by the Difjolutiou
of the Abbey, and afterjaards the Re5ory and Lands were fever' d, and the
Grantee of the Retfory libelled agaitifi the Grantee of the Lands for Tithes.
The Detendant in the Prohibition pleaded for a Confultation, that at the
Time of the DilFolution, and Time out of Mind the Lands were de-
raifed for Years, and all that Time the faid Famers paid Tithes. The
Plaintiff demarr'd and Judgment was given for the Defcndnnt in
C, B. But in Error brought in B, R., the whole Court held the Plea for
Trial. 5p
Conl'ukation ill, ic being too genera], and no Iliiie could be taken upon it,
and l"o the Judginenc was reverfed. Jo. 412. pi. 6. Mich. 14 Car. Broad-
head V. Lewis.
13. The Illue was join'd upon a Disjandrjc as Pay or Ca:ifc to he paid,
and put in lii'ue, and held to be well enough. Hard. 19. pi. 3. Mich.
i6j'5. in Scacc. in Cale of The Protcftor v. Wyche, cites 24 Car. B. R.
3iCnnj> and jfl-C\3!riS Cafe.
14. hfor'/iatJof!, fetting forth tbat at Gravefend in the Countv of K.
on fuch a Day and Year, in fuch a Veflel then and there riding, f. S.
fvifed Z06 I. iu Gold from certain Perfons unknoian^ then and there paffing^
Or upon their Pafj age in a certain Ship fromRatclilFih Middlefex to Parts
beyond the Seas ; the Dclendant claim'd Property, and pleaded that no
Gold-ujas found in any Vefj'el by \jipoii\ any Pajpng^ or in their Paffagefrom
Ratcliff'&c. Upon Ilfue join'd a "Verdidt was found for the Protestor ;
and it was moved in Arrell of Judgment that the lifue was ill, becaufe
taicen in the Disjantft-ve, (viz.) Pajjing or in their Paffage ; but adjudg'd
that the Ilfue was good, becaufe the Parts of the Disjunifi've Propojirion
are Synonymous. Hard. 16. Mich. 1655. in the Exchequer, The Prote£lor
V. Wyche.
15. No IfTue can be or ever was taken upon a Pofleffion onIy,'(viz.)
PoffeJJionatas vel non i Per Cur. Carth. 445. Pafch. 10 VV^. 3. B. R. in Cafe
ol'Stlly V. Dally.
16. In Covenant Defendant did not plead in Time, but afterwards
agreed to plead an ilfuable Plea ; and he pleaded Non infregit Con-ventio-
nem generally. The Court faid that this is net an iffaabk Plea ; lor that
is fach a one as will be good at all Events. Barnard. Rep. in B. R. 156.
Pafch. 2 Geo. 2. Sole v. Waller.
(E. a. 3) IfTues. Affirmntwe and i><egat'rjs Neceflary in
what Cafes to make an llTue.
i. TSSUE {hall he always 'yAwtdi upon a Negative after an Affirmative S.P. Brown's
Jl alleged before, or upon an Alfirmative after a Negative alleged ^'^^^- i°'
before ; for Ifllie ihall be always upon an Affirmative and a Negative, and
not upon two Afnrmatives, unkfs in fpecial Cafe. Br. IlTues Joines, pi.
51. cites II H. 4. 79.
2. In ylffifi, the one faid that it was the Land of a Prior Dative, and
removeablc, "who after the Leafe made to the Plaintiff of the Land in Plaint,
was removed Sic. And the other faid that be %vas a Prior Perpetual, and
did not fay that there was a Covent and Common Seal. But it feems there
that the Ilfue is not good for the other Caufe ; for it is upon two Affirma-
tives, and theret'ove he pall fay that Perpetual, and not Removeable- Br.
Iffues Joines, pi. 27. cites 43 AIT 4.
3. Account as Receiver of the Plaintiff; it is no Plea that be received them
for J. S. without faying that be was not the Receiver of the Plaintiff', prout
&c. Br. Iffues Joines, pi. 51. cites 11 H. 4. 79.
4. In T'refpafs, the Defendant faid that it was the Franktenement of J.
I'J. who leafed to him at IVill ; Judgment ^c. and the Plaintiff faid that
it was his Franktenement ; and no Plea, without faying. And not tlye Frank-
tenement of J. N. For it is not a perfeft Iffue without a Negative. Br.
Iffues Joines, pl. lo. cites 11 H. 4. 90.
5. Difceit for felling of corrupt Wine ; the Defendant faid that at the
Time of the Sale it was fnfficient and able; and this is no Iffue, without
faying that it was Not corrupt, Prout &c. and therefore the Defendant faid
accordingly. Br, Iliues Joines, pl. $$. cites 9 H. 6. s^-
6. 'freRi.if's
6o Trial.
6. i'refpafs cigairijl •}. D. if F. ^vho faid t bat be was c.biiiing at D. the
Day of the Writ fiirchafed; and no Plea without faying^ And fiot at F. Per
Cur. For Iffue Ihall be always upon a Negative i Quod nota. Br. lilucs
Joines, pi. 17. cites 19 H. 6. i.
7. Yn^refpr.fs againji three, tht one Defendant [aid that the one of his
Companions was dead the Day of the Writ piirchafed ; Judgment of the li'rit.
And the other faid that he was alive the Day of the Writ, Priji ; And no
Plea, without faying that Alive k3c. and Not dead. Er. Iffues Joines, pi.
17. cites. 19 H. 6. 4.
8. In Cafe oi'Ba/iardy pleaded, he fliall fay that he is Mtilier, and not
Baftard. Br. Iflues joines, pi. 17. cites 19 H. 6. 4.
9. So /« Cafe of Villeinage pleaded, he Ihall fay that Frank, and of
Frank Fftate, and Not Villein ; and fohe did accordingly in Trefpafs. Br.
Ilfues Joines, pi. 17. cites 19 H. 6. 11.
Br.Conditi- lo. Two iVt'^^^^kw fhall not be fuffered ; As where ^. is bound to pay
Otis, pi 91. to B. 20 /. at E. before Michaelmas ; and he fays that he was there in the
cites s. C— YjjiJ^^ jrom the fourth Hour till the Feajl, ready to pay, and £. did not come
Br. Traverfe ^j^^^^ ^^ receive it ; there it is fufficient for B. to fay that he was ready at
2 14 'cites' £. fi<:h an Hour before the Feafi, without Traverfe, abfque hoc that A. was
S. C. there to pay, for there lliall be no Traverfe ; for there is a Negative of
Br. KTues j-he other Part, And fo fee the Iflue joined upon an Affirmative, where
joins, pi 24. ^ js^^^(,firjQ --jjas alleged before. Br. Traverfe per &;c. pi. 155. cites 36
citesS. C ,, ,^ i> J t r././
H. 6. 15.
So in Scire 1 1. 1" -Dc^? by J. N. Executor of the Teftament of R. the Defendant
Facias upon fiid that R. made J. N. and H. his Executors, which H. is in full Life at
a Judgment jy; in the County of E. And the other faid that be died at London fuch a
^ "^Ad' ■ ^'^y ^"^ ^"^'"" ^rf^^"" ^^^ pur chafing of the Writ ; this is no Plea, without
nifb-ator "the Traverfe that he is not alive; lor here are two Affirmatives, which cannot
Defendant make an IJfue without a Traverfe, or a Negative of the firft Affirmative, or
pleaded that ^^y Confeffing and Avoiding of it ; Quod nota bene. Br. Traverfe per
gra7ited to the Plaintiff, 't w<t; granted to J. N. who is fiiU alive at D. and concluded in Abatement ; tlie
Plaintiff )-pt/«i, that J. N. died l^r. and ccnchides to the Ccuntry; and upon Demurrer, it was in fitted
that he ou^ht to have traverftd abfque hoc, that he was alive ; for tho' it cotitradifts the Declaration,
vet an apt fflue is not form'd without an Jjflrmatiie and a. Negatizv ; and fo faid the Court. Vent. 215,
Trin 24 Car. 2. B. R. Fortefcue v. Holt.
Two Affirmatives fliall not make an Iffue unlefs it be lefi the Tfue Jhould not he tried. Co. Litr.
B«f fometimes an Iffue may be taken upon two Jffimiatives without a Negatize, as in Debt againft an
Executor, who pleads Plene Jdminifiraiit ; to which the Plaintiff" replies, that the Defendant hath Af-
fets upo'n which Iffue isjoin'd. So where Iffue is joinM upon a Writ of Rightof Advowfon, whether
the Vouchee or Demandant hath better Paght. Brown's Anal. 10.
r , ^ rvh^vf 12. Where the Tenant anfwers in the Negative, as Non-tetnire., or itt
the Tenant Priecipe againjt two, the one takes the tntire Tenancy, and vouches abique
anfiiers in hoc that the Other any Thing has ; in thofe and the like Cafes the Deman-
theJffirma- ^.^^^'^ ^n^xy maintain his Writ in the Affir7native, without Tt'averfe; for Tra-
^xhehenian- verfe Ihall not be upon Traverfe : And if the one traverfes, it is fufficient.
tiantjhall Br. Traverfe per &c. pi. 130. cites 9 E. 4. 36.
a7ijiver ivith „ ^ ^ . , - -c ^
(t Negative. Br. Traverfe per Sec. pi. i;o. cites 9 E. 4. 56
Js the Tenant -pleads Jointennmy ii'ith a Stranger, Judgment of the Writ, the Btmandnni pall /.ly
that he is Me Tenant, as the Writ fuppofes, ahfque hoc that the Stranger any thing has. Br. Traverlcper
&c. pi. 150. cites 9 E. 4. ;5.
Jnd fo fee where a Negative goes before , the Jffirmaiite fuhfeqiient fliall make a perfefl: Iffue. Br. Tra-
verfe per &c. pi. 130.
13. An liTue fliall not be taken upon a Negative pregnant, which im-
plies another fufficient Matter, but upon that which is lingle and iimplei
as Ne dona pas per le Fait implies a Gift by Parol ; therefore the Iliue
muft be, Ne dona pzs modo S forma. Co, Litt. 126. a.
14. An
Trial. 6 1
14. An IfTueJoined upon an Abfque hoc &c. ought to have an Affirma-
tive after it. Co. Lite. 126. a.
15. Some IlFues are good upon Matter Affirmative and Negative, nl-AnAffirma-
beit the Affirmative and Negative be fiot in frecife Words. Co. LAtt. *''^"'"d ^^
iz6.d. implied Ne-
igative, will
/ make a gooji
I/Tue, tho'it be not an exprels Neg-Jtive ; Per Roll Ch. J. Sty. 211. Pafch, 1549. £n Cafe of Jennings
V. 'Lee. ■ <> -»
16. As in Debt for Rent upon a Leafe for Years, the Defendant pleads
t hit the Plaintiff had nothing at the I'lme of the Leafe made^ the Plaincitf
replied that he was fetfed in Fee &c. This is a good IlFue, Co, Litt.
126. a.
17. A Negative may be inquired, as Not guilty in Trefpafs^ Neunques
decouple in lawful Matrimony^ & de hoc &c. icithotit faying. Quod fiiit
accoiiple &c. Per Manwood Ch. B. And Walmfley J. agreed, that
thofe general Negatives might, but that upon an I£he arifing m a Repli-
cation upon a Negative, it is othervvife. Sav. 64. pi. 136. Pafch. 25 Eliz.
in Gife of the Queen v. Lord Berkley & al'.
18. Jffimpfit &c. for 100 1. the Defendant pleads that he gave the
Plaintiff' a Bond for the f aid 100 1. The Plaintift' replied, and maintained
his Declaration, and traverfed that the Defendant gave him a Bond &c.
end concluded to the Country, & pritd. Defendens Jimiliter ; and fo to Iffue.
The Jury found that the f3efendant did not give the Bond for the faid
100 1. And thereupon the Plaintiff had Judgment in the Exchequer ■■, but
upon a Writ of Error brought, Popham and Anderfon held it to be Er-
ror, and not remedied by the Statute, becanfe here was no lifue joined ■-,
for that * cannot be without an Affirmative and a Negative, whereof the * 2 Barnard.
one ought to be dtreflly contrary to the other; and here the Defendant lliould -\9- Mich, j
have rejoined in the Affirmative, viz,, that he made the Bond as he had t^l'car rf
pleaded it, Et de hoc ponit fe &c. and the Plaintiff fimiliter. 2 And. 6. isurDin lu
pi. 4. Mich. 37 & 38 Eliz.. Roch v. Pat. S^pmlaia,
reports tiiat
the Chief Jaftice faid, that upon looking into the old Books, he believed it would be found, that an
Affirmative and Nef^ative is not always requifite to the forming an Iflue ; and inftanced tJieCafeif
Paites Finis nihil habuerunt-
19. AlTumpfit &c. Tiie Father, in Confideration the PlaincifFhis S09
would pay fuch a Debt for him, protnifed tofiiffer his Land to defcend upon
him, zndfets forth that he paid the Money &c. but that he did not fuff-er
his Land to defcend. Upon Demurrer it wzs objc^ed, that this was np
goodllfue. VVilliamsJ. took a Difference, where the Cafe ariling upop
the Alfumpfit, is in the Affirmative, and where in the Negative. In
the firft Cafe it ought to be averred in Faff, that the Land did defcend ; hu^
otherwife where in the Negative ; for there it is fufficient to lay that he
did not fuffer it to defcend. And the whole Court agreed that a good
Iffue may be taken upon this Plea of Non Permilit j and Judgment rfpf
the Plaintiff 2 Built. 18. 19. Mich. lojac. Gray v. Gray.
20. In T'refpafs, the Defendant pleaded an Accord between the Plaintif
and A. S. of the one Part, and the Defendant and ethers of the other Part,
that the faid Defendant fhoitld pay to the Plaintiff, and the faid A. S. in Sa-
tisfadion of the faid Trefpafs, fo much Money, which he had paid. The
Vid.int\^ replied there was no fuch Accord between him and the Defendant,
as the Defendant had alleged ^ which Iffue was found for the PJaintiff
But upon a Motion in Arrelt of Judgment, it was adjudged that here was
»o Iffue joined, becaufe the Negative ought to be as broad as the Affirma-
tive, which this was not ; for here the Affirmative is of the Pfainciif^
and A. S. but the Negative is of the Plaintiff only i and therefore it i«
no Negative and Athrmative. Roll. Rep. 86. pi. 35. Mich. 12 ]iz.
JB. R. Carpenter v. Starr,
62 Trial.
21. It one fays, thac twt onlyG. hath been at fuch a Place, but alfd
H. it is without Doubt a plain Affirmative, that both have been there •
Per Jones J. Mar, 55. pi. 83. Mich. 15 Car. in Cafe of Hicks v.
Webb.
22. \n Covenant^ the Plaintiff afligned feveral ViVtzchts in mt Repair-^
jno-. The Defendant pkaded Non tnfregjt coirocntiones. Adjudged that
fwo Negatives cannot make a good Ilfue, and the Breach is in Non re-
parando; and therefore Non infregit &c. cannot be good. 3 Lev. 19.
Pafch. 33 Car. 2. C. B. Pitt v. Rulfel.
(E. a. 4) Jijne taken on o?ie 'Point only, nxJljere there au
jeveral.
I. f B ^Refpafs. Leafe is made upon Condition^ and depended upon ftveral
JL Points in the DnjunSive^ that if the Plaintiff t/^/j ^Fok^, ox fails
in Reparations, or does not pay the Rent (Sec. that the Plaintiff' may re-
enter ; there the Lelibr Ihall allege only one Point of Breach, and Iffue
Ihall be upon it, and not upon leveral Breaches ; Quod nota. Br. Ilfues
Joines, pi. 57. cites 38 E 3. 33.
2. Debt upon Indenture of 100 /. which was of Jeveral Covenants, Adquas
conventiones perimpkndas the Defendant obliged himfelf in 1 00 /. by the fame
Indenture of Covenants; and he pleaded that he had performed all, and
pewed What and Hoiv ; and there the Plaintiff pall fay by Protcfiaticn
that he has not performed [ome, and for Plea that he has broken fuch Cove-
nants, andpe'-J)'d''certainly ; iox in Debt the Iffue /hall not be joined, but upon
one Covenant, be it for Debt by Obligation, or by Indenture. Contra in
A£iton of Covenant. Note the Diveriity. Br. Iliues Joines, pi. 52. cites
9 H. 6. 18. and 14 H. 4. accordingly.
,rr 3. In Debt upon an Obligation, the Defendant faid that it is indorfed,
Toinc-srpl. >vith a Condition that if he find to J. S. till 2.1 fears. Meat, Drink^ and
29. cites * Apparel fuffic lent, that then &c. And he faid that he found him fufficienc
S. G. Meat, Drink, and Apparel during the Time at D. and held a good and
fufficient Plea, notwithltanding that he did not pew What Meat, Drink,
and Apparel he found. Per Keble, He did not find fufficient Apparel
during the Time albrefaid, and durA not take Iffue upon all the Points
for the Doublenefs, but took Iffue upon the whole Time. And good per
Cur. Quod nota. Br. Conditions, pi. 138. cites 12 H. 7. 14.
4. Debt was brought on two Bonds. The Defendant pleaded Non funt
faiia, or Per Mmas ; And adjudged good by one Plea. Noy 232.
Denton's Cafe.
Cro. C 219. 5. Cafe &:c. on two feveral Promifes. The Defendant pleaded Non af-
pl. 4. S P. fiiinpfet, as to both, Et de hoc ponit fe fuper Patriam, but did not put
t"^" '^"cir them feverally in Iffue; yet this was held well. Cro. J. 544, p'. ^.
Br" Taylor Mich. 1 7 Jac. in Cam. Scacc. Heath v. Dauntley.
The Cafe of Cro. J. 544. wascited Per Cur. as to this Point. Sid. 555. pi. 17. Fafwh. 19 Car. 2. B. Rj
in Cafe of Palmer v. Lawfon.
6. If there are 2 or 3 things in a Declaration upon which an Iffue may he
pined; if an Iffue be jomed on any of them, it is well ; Per Koll Ch. J.
Sty. ijo. Mich. 24 Car. Jennings v. Lee.
7. Quantum Meruit for Goods fold and delivered. The Defendant
pleaded Infancy in Ear. The Plaintiff replied that Parcel of the Goods for
which he had declared, were for neceJJ'ary Cloaths of thelntanti and the
Rejidue wasfcr Meat and Drink. The Delendant rejoined that Parcel wai
not
Trial. 63
'f.'ot for uecejli>y Cloaths^ and that the Rejidiie was not for Meat and Drink,
S dc hoc pomt fc fnper Fatriam. And upon a Demurrer to this Rejoinder^
ic was objefted that the Defendant ought to put thele Allegations fe-
verally in Illue. Sed non allocatur. Lutw. Rep. 239. Trin. 11 W. 3.
Swinburne v. Ogle.
fE.a. k) * Gsna'al or Special liTass, what are. * General
contrived in
I. f"^ Eneral Iflue is, where the Defendant makes a Ihort and peremp- as were not
X^JJ tory Delenceto the Plaincili's Declaration, and is always in the proper to
Negacise ; as Non ^i'jjjinpjit to an Aftion upon the Cafe, Nil debet to an '^^"^ "^'i?
Aaion of Debt, and the like. Heath's Max. 75. b the De
claration ;
thus if a Cliarge was of Trf/Ji/r/Jr, the General IfTue w.^s, that the Defendant was Nc* j^H/Z/y, if he
V ere charg'd with the Debt, that he Om-ed ncthir.e, ; if it were on a Specialty, he admitted the Debt,
unlels he daned the Deed, becaufe the Seal continuing it muft be diirolved eo Ligamine, quo Lii^atur ;
for there was that Credit given to the Solemnity of the Seal, that he could not fay he did not owe, whea
it appear'ii by the Acknowledgment of the Seal that he was indebted. But if the Debt were on Simple
Contract, then he might plead that he Owed ncthing, becauie it did not appear by the Seal that there »-ns
any Dcci continuing. G. Hift. of C. B. 47. 48.
2. A Special IfTue is that, where Special Matter being alleg'd by the
Defendant for his Defence both Parties join thereupon, and to it goes
either to a Demurrer, if it be ^tiejfio juris ; or to a Trial by the Jurv, if
it be G)iiejiiofaBi. Heath's Max. 75, 76. cites 4 H. 8. 3. Nov. Lib. In-
tration' verbo Ilfue, & 18 Eliz. 12.
3. It was agreed chat the General IlTue in a Repk'vin for Goods taken,
is Ncij ccpit -y and this ibr an Officer to plead, or others. Clayt. .107. pi.
183. April. 8 Car. before Whitfield J. Elias Hanfon's Cafe.
4. Solvit ad diem is no General Ilfue ; but becaufe it is an ordinary
Plea, the Clerk does not make up a Paper Book of it ; Per Sir Samuel
Aihtree. 12 Mod. 44. Trin. 5 VV. & M. B. R. Anon.
5. The Plea of Non ajjiimpfit infra fex annos, is a Ipecial Iffue. 12 Mod.
103. Mich. 8 \V. & M. B. R. Brent and Edwin.
6. Levied by Dijirefs is a fpecial Plea j and fo is Nil debet i Per Holt
Ch. J. 12 Mod. 330. xMich. 11 W. 3. B. R. in Cafe of the King v.
Speed.
7. Riens arreare is the General Iflue in an Avcivry. .13 Mod. 354.
Pafch. 12 W. 3. B. R. in Cafe of Horn v. Luines.
(E.a. 6) Pf^jat Plea amounts to the Gena-al Ijjuc, and ib
Not good.
1. T N iVoi'er and Converfion, the Defendant pleaded a Sale in .Market,
J^ and fo jttjiijied the Converlion i but held not good, becaufe ic
amounts only to the General Ilfue. Cro. J. i6j. pi. 3. Trin. 5 Jac.
B. R. Johns V. Williams.
2. In Trover the Defendant pleaded^ that before the Vlaintiff fuggejied^^^- ^ '^^:
that the Goods came to the Defendant's Hands ^ one S.A. -xas pojfejjcd thereof, ^'"-^ ^ 9; ^^
^ndfold them to the Defendant ^ but kept them in his oivu Hands, and ajtcr- bjs.
wards fold tkcm to th: P-lvntiff ; and fo the }'!.ui::!jf'\::i,:s pr>ffef['A^ and after-
■xarif
■6^ Trial.
' wards loji thein, ^M tJJey came to the Dejeficiatifs Hands, who converted
theni as it was lawful for him to do ; it was held no good Plea, becaufe
it amounted to the General Iffue. Brownl. 5. Trin. 10 Jac. Rot. 355S.
Aullin V. Aullin.
3. In 1'rover and Converfion cf 26 Hogfheads of Cyder in London, the
Defendant pleaded Bailment of them to htm to re-dehver to another in the
County of Oxford, to fpend in his Hotife, abfqiie hoc, that he converted them
at London, or elfe-johere out of the County of Oxford ; upon Demurrer it wd^
udjudg'd ill becaufe it amounted only to the General lifue. 3 Built,
209. Trin. 14 Jac. Phillips v. Wicks.
4. Cafe upon a Promife made by J. S. the D f en-dan fs Father, to pay
10 1. yearly to the Plaintiff, if he fhould marry J. S's. Daughter, and
alieg'd that he did marry her i the Defendant pleaded that the Promife
was conditional, viz. if the faid J. S. gave him looo /. in Marriage with
his Daughter, then if he married the Daughter he promifed &c. but that
J. S. had not given him 1000 /. ahfque hoc, that he promifed ModoS forma;
this upon a Demurrer was held ill, becaufe it amounted only to the
General Ilfue. 2 Roll. Rep. 350. Trin. 2ijac. B. R. Barret v.'Barrer,
S. P. Godb. J. If in 'trover and Converfion of Goods a Title is derived to them /row ^
3"4-Pi' 465- Stranger i this amounts only to the General Iffue ; but otherwife if de-
Doderidg^e; "^ed from the Plaintift'i Per Doderidge J. Lat. 186. in Cafe of Bellamy-
tut r/to;^ ' V. Balthorp.
ri,itiitijf and
Defendant make I'itle by the fame Perfon, then the Plea is good.
In all A ai- 6. In 'Trover for two Oxen, the Plaintiff declared that he was pof-
J"'^f J"*^*" Teffed of them as of his own Goods, and loft them &c. the Defendant
every ""pi'ea j^ftified that One S. was poflejfed of them as of his oivn Goods, and loft them,
fpeiial with and at fuch a Place, and Day he died, leaving the Defendant his Executor,
Colour.,^- and gave Colour to the Plaintiff, who demurr'd becaufe when he counts
mounts only that the Plaintiff was poflefled of them as of his Goods &c. and then
ral Iil'ue^ ^" the Defendant fays that S. was poilefled of them as his Goods, this
unlefsitbe amounts only to Not guilty. Lat. 185. in the Cafe of "BcJIanip ll» IBill--
•where it tl)OCPi this Cafe was Ihewn to the Court by Serjeant Hendon, he beino-
concerns requefled fo to do as a Cafe in which he was Counfel Mich. 2 Car. iil
Lands °Lat. ^- ^- between Styles and Snelgrave.
j8j. Mich.
2 Car. in Cafe of Bellamy v. Balthorp.
Godb. 575- 7. In Trover of 20 Load of Grain in the Ward of Cheap, London i
pl. 462. S.C. fjie Defendant 7///? //^^i by a L.eafe of the Tithes of all Grain in the Parifh of
and J^'^S" £_ by porce whereof he was polfeffed, that the Grain grew in the faid Pa~
Plaintiff. ^{/^j ^^^^ ^'^ ^""^ them fever d from the nine Parts for Tithe, and was pojfeffed
of them, and at E. aforefaid loft them, and that J. found them and delivered
them to the Plaintif to keepfafely, by which the Plaintiffwas poffeffed of them
till he in the W^ard of Cheap &c. loll tliem, and the Defendant took them
and converted thorn to his own Ufe ; Plaintiff demurr'd becaufe the Plea
amounted only to the General Iffue. And Judgment was given by the
whole Court. Lat. 184. Mich. 2 Car. Bellamy v. Balthorp.
Admitted 8. In an Action on the C^t/c /or Gw/zw/w/, VlaintiS declared that the De-
Arg.hy ?o\- fendant put his Cattle on fuch Lands, fo that the Plaintiff could not in tam
-^"Isf^ri GG ^^^P^'^ ^''- ''"°^° ^"Py ^^^ f^^^^'^ ' ^^^ i^efendant pleads that he put in his
in the Cafe ' Cattle rightfully, and that the Plaintiff' had fufficient Common ; and upon a
of jiicU'ton fpecial Demurrer it was agreed that this Plea amounted to the General
l).(irtflBicfe, Iffue ; but the Court were all of Opinion that yet the Plaintiffhad no
^h^^n*^^'^ Caufe of Demurrer for that Reafon alone ; for the Defendant may v.'cll
\mrilil^Tn^ difclofe the Matter of Law in pleading, which is much cheaper than to
Matters of have a Special VcrdiiSt, and that this is on the fame Reaion of giving
Law, the of Colour ; but if the Matter by which the Defendant juftifies be all
Dejeiidatit Matter of Faft, and proper for the Trial by Jury, then the Defendant
oughc
Trial. 65
ought CO plead the General Illue. z Mod. 274. Mich. 29 Car. 2. C. B. »"7 i^^"<^
Birch V. Wilfon. -^>'"'''^>' :
i)»/ where
It is ^imly Fafl, the General llTuc muft be pleaded-
9. In Cafe the Plaintiff declared that the Defendant exhibited a Petition
aiainft him to the Kifi^ in Council, jor erecting Cotages m Kingpwood-Chafe
in Gkiicejhrjhire, and chat he was compell'd to appear at great Expence,
and was atcerwards difcharged. The Defendant pleads, that the Chaje
iv.is injured by evening the faid Cotages, by digging PicSj and by the
Plaintiff's making a Warren there &C. Upon a Demurrer it was ob-
^efted, that this Plea amounted to no more than the General Iffue; Ibr
the Quellion is, whether the Defendant had talfely charged the Plaintiff
before the King in Council, which is only Matter of Fatt, and therefore
Ihould have pleaded Not Guilty. And the Court, except Allibone J.
adviled the Plaintiff to waive his Demurrer, and the Defendant to plead
the General llfue. 3 Mod. 166. Hill. 3 Jac. 2. B. K. Newton v.
Crefwick.
10. In many Cafes, tho' a Man pleads a thing 'which may be grjen in
JL'jidence, yet this Ihall not amount to a General Iffue, As where the
Plea goes by way oiConfcJ/ion and Avoidance ; as in I'refpafs, where the
Defendant acknowledges the Plaintiff" to have good Caufe of Atiion, iinlefs
for the Matter which the Defendant has pleaded in his Plea, and in fuch
'Cafe fuch Plea Ihall not amount to a General llfue i per Holt Ch. J.
Skin. 362. pi. S- Mich. 5 VV. & M. B. R. Reeves v. Pepper.
11. In Cafe upon a Bill of Exchange, the Betenddnt pleaded, that after
he had accepted the Bill he gave a Bond in Difcharge thereof; and upon a
Demurrer it was objefted that it amounted to the General Iffue, bs-
caufe the Debt on the Bill being excinguilh'd by the Bond, the Defen-
dant ought to have pleaded Non Alfumplit, and to have given the Bond
in Evidence i and the Court feem'd of that Opinion. 5 Mod. 3 14. Mich.
8 W. 3. Hackihaw v. Gierke.
12. In 'Trefpafs the Defendant pleaded a Right in the Bilhop of S. by Skin. c-i^.
Prelcription, to grant Replevins in fuch a Manor, and that the Hoife in ^- 9 ^h"'"^h"
Queltion was the Horfe of -J. S. a Stranger; that the Plaintiff cepit ^ im- ^fme of
parcavit Equum pni'dift. and that by virtue of a Replevin the Defendant Hallec v.
took the faid Horfe &c. The Court held this Plea no more than the Ge- B'rt
neral lUiie, for it does not fo much as admit a Pofjejfton in the Plaintif; s^p*^' J^°i
for the taking and impounding gain'd no Poffeffioa to the Plaintiff, but ingiy.^I^^j'
the Horfe was thereby only in Cuftody of the Law, and fo no Colour of Mod. 2 jz
Atlion in the Plaincitfj otherwife perhaps if it had been ceptt S detinuit. ^ C. accord-
j Salk. 394. pi. I. Pafch. 9 VV^. 3. B. R. Holler v. Bulh. '"^!v^~
' "^ *■ » ^ J ^ Mod. 120.
S. C. accordingly .-Ld. Raym. Rep. 21 S. S. C.
16. In Jffuwp^t the Defendant. pleaded, that he had performed all things ^^e. Re-
m his Part to be perform' d ; it was ruled that this amounts only to the P°"^'' ""^^^
General Iffue. Salk. 394. pi. 3. Mich. 2 Ann. B. R. Sea v. Taylor. be«"uThe
(ays the
AlTumpfit is admitted ; fo that this is but a Difdiarjic.
(E. a 7)
66 Trial.
See (E. a. 6) (E. 3. 7) General IfTue. Not ?2eceffmy in ivhat Cafes.
pi. 8. 9.
i.ripj?f/p^y} hy a Bifloo'p in a Park, the Defendant fdd that he did it
_X. "Johen the 7'emporalties ivere m the Hands of the King, ahfqiie hoc
that he is Guiity before ; and a good Plea, and Ihall not be drove to the
General IlFue, by which he laid that he was guilty fuch a Day after.
Er. General Kiae, pi. 66. cites 39 E. 3. 19.
2. In Debt againlt Executor the Defendant [aid, that the 7'eflator gave
to him all his Goods, except fuch &c. hy which he took them, and to the reji
Plene adminiflravit. Caund. faid. All amounts to Plene Adminillravit i
and yet per Cur. the Plea ihall be enter'd, and he ihall not be drove to the
General llFue for doubt of the Intelligence of the Laymen. Br. Gene-
ral Iflue, pi. 91. cites 11 H. 6. 35.
3. In Treipafs the Defendant j'aid, that the Plaintiff^ made his Servants
to put in the Bcafis, and '-Johen he had Notice he chafed them cut. Judgment
&c. And a good Plea, without being drove to the General llfuej and
the Plaintiff laid that De ion tort Demefne, without fuch Caufe^ and
the others e contra. Br. General Ilfue, pi. 58. cites 21 H. 6. 39.
4. In 'Trcfpafs of Goods taken, the Defendant faid that J. N. was pof-
fefs'd, and bail'd to the Defendant in another County, and commanded him
to take them, and he did it at D. in a foreign County, and re-deliver'' d them
to the faid J. N. Abfque hoc that he took them in the County in the Writ ;
and a good Plea, per Cur, and ihall not be drove to the General IlFue,
lor other wife he may lofe his Evidence. Br. General Ilfue, pi. 77. cites
22 E, 4. 39. And concordat the lame Year, fol. 19.
5. In Trefpafs of beating his Servant, tha Defendant may fay that he was
not Servant of the Plaintiffs and Ihall not be drove to the General Iflue.
Er. General lifue, pi. 80. cites 5 H. 7. 3.
6. The General Ilfue is to be taken where a Man hath not any Co-
lour. Le. 178. pi. 251. Trin 31 Eliz. E. R. in Ward and Blount's
Cafe.
(E. a. 8) General IlTue. Good. In what Cales.
i.T N Maintenance the Defendant pleaded Not Guilty, 8ii non Allocatur,
\_ but /loall anfwcr to the Point of the Writ ; and fo he did, and faid
that he did not maintain. Br. Iflues Joines, pi. 16. cites 8 H. 6. 36.
.-{^[/i he may 2. Not Guilty is a good Iff ue in Raviihment of Ward j /or the Writ is
rLijha)t' ^' ^ ^™"- •^^- ^^^"" J°'"^^'' P^- 34- cites 2 E. 4. 6. per Moile.
Br. Iflues Joines, pi. 54. cites 2 £. 4. 6. per Moyle.
3. In an Aflion of trefpafs for Battery, Not Guilty is a good liTue, if
the Defendant committed no Battery at all. Co. Litt. 282. b.
Cro. E, 569. 4. In Cafe the Plaintilt' declared upon a Cujiom of the Parilh for the Par-
pl 4. S. C. fon to keep a Bull and a Boar, for the Increafe of the Cattle of the Inha-
f"°w*'^'f/' bitants &c. and that the Defendant being Parfon, and the Plaintiff an
ty and Non' Inhabitant &c. the Defendant had not kept a Bull nor Boar for 4 Tears, ad
feafatice are Damnum of the Plaintiff^ The Defendant took the Cujiom by Protejlation,
2 Negatives, and for Plea pleaded Not Guilty. Upon a Demurrer the Plaintiff had
winch can- Judgment, becaufe wheie the Offence is for ^ NoH-fcafance, the Defen-
not make anJ°-' j
Qunc
Trial. ($7
dint fliould not plead Not Guilty ; but he pould plead in the Affirmative^ I^ue any
and fijcw that he had done the Ihing j tor the .Proteflation is not good to "T^^ ''^^" ^
the Cultom, which is the very Ground and Subftance of the A£lion. tjygj"'^j,'^ij
Mo. 335. pi. 481. Trin. 36 Eiiz. Yelding v. Fay. cites 52 H.
, 6. 25. But
in an Adtion For Misfeafance it it vtherwife.
5. In Aftion upon the Cafe, upon a Motion in Arrell of Judgment, it
was held, that where a Defendant pleads Not guilty to an Aftion on the
Cafe on a Prowife, it is not a good IHue, nor amendable by any Statute,
but in Aftion upon the Cafe Jor a Deceit, or any Wrong, it is a proper
Illue. Pjlm. 393. Mich. 21 jac. B. R. Turner v. Turbervill.
6. \w Afj'iimfjit ^Q. the Deihadmt pleaded Not guilty. The Jury found
that he was guilty, ^nd that he promij'ed Modo ^ Forma, Prout &c. It
wasinfiftedin Arrelt of Judgment, that Not guilty is no Iflue in this
Caie. And the Jury finding farther, Quod Aflumplit is void, becaufe it
was not in Iliiie ; but Per VV'indham and Twifden only in Court, This
is cur'd by the Verdift at leaft. And by Windham, Not guilty is a good
Plea, and Illue in Alfumpliti for this is Trefpafs upon the Cafe. And
they gave Judgment for the Piaintilfi Lev. 142. Mich. 16 Car. 2. C. B.
Elrington v, Dolhant.
(E. a. 9) Pleas, ff^jat Pleas are Jjjues in themjehes.
T. MplHERE are jome negative Pleas that are Iflues of themlelves,
i whereunto the Delendant or Plaintiff cannot reply, no more
than to a general Ilfue, which is, Et praediftus A. limiliter. Co. Lite.
126. a.
2. As if the Tenant vouch, and the Demandant counterpleads that the
Vouchee, or any of his Ancejiors had any Thing &c, whereof he might make
a Feoffment, he ihall conclude Et hoc petit quod inquiratur per Patriam
& Prsdiclus tenens limiliter. Co. Litt. 126. a.
3. So\n a Fine pleaded by the Tenant &c. the Demandant may fay ^uod
Partes finis nihil habuerunt, & hoc petit quod inquiratur per Patriam, &
priediftus Tenens limiliter. Co. Litt. 126. a.
4. So in a Writ of Dower, the Tenant pleads Unques Seijie que Dower, he
lliall conclude, Et de hoc ponit fe fuper Patriam, & priediQ:us petens
iimiliter. Co. Litt. 126. a.
5. Demurrer is an Iflue in Law. Co, Litt. 284. a.
(E. a. 10)- Qi jomng Iffues, And Rules relating see'cE.a.j)
thereto.
1, ' I 1 H E IfTue ought to be joined upon the mofl material Thing in the
y_ Declaration or Ear. Jenk. 326. pi. 45. cites 21 H. 6. 12. 30
H. 6. 7. 3 H. 7. 7. 13 H. 7. 21. 5 E. 4. 136.
2. Where the IfTue is joined of the Part of the Defendant, the Entry is Co. Litr.
Et de hoc ponit fe fuper Patriam:, but if it be of the Part of the Plaintiff, 126.3. S P.
the Entry /J, "Et hoc petit qmd ifiquiratur per Patriam. And lb is ttie ^,^5
Courfe ; Per Hales Attorney General. Br. Iffues Joines, pi. i. cites 26 ^'^*i"''
H. 8. 3.
3- He
6S Trial.
3 He that pleads ihej/'r/t Negative^ Ihail conclude the Ifliie. Brown's
Anal. 10.
4. If the Defendant doth fkad in the Negative to the Writ, the Plain-
tift'fhall reply in the JJJirmatrje, and conclude the Iliue. Brown's
Anal. 10.
5. In T'refpafshy a common Perfon, the Defendant pleaded that his Fa^
ther zvas feijed of the Land in Fee where &c. and fo feifed died feifed ;
after ivhofe Death he entered as Son and Heir to him, and gave Colour to
the Plaintift'. The Plaintiff replied, that his Father did not die thereof-
feifed j this is not good, but he ought to maintain the Count, abfqite hoc
quod obitt fei/itus. Per Manwood Ch. B. Sav. 64. pi. 136. Palch. 2.$ Eliz.
in Cai'e of the Qiieen v. Lord Barkley & al'.
r.ond to 2. In Debt Upon a Bond of 100 L conditioned to pay 51/. on fuch a
pay 105 1. Day, the Defendant pleaded that he paid the fiid 2.1 1, at the Day &c.
dant pkaTed The Plaintilf replied, that he did not pay thefaidsi I. at the Day, (and
Payment of fo miftook 21 for 51) and concluded the Country, and had a Verditt and
icol. The Judgment in C. B. And upon a Writ ot Error brought in B. R. this;
riaintift re- jQ^jament was reverfed, becaufe there w as no Illue jom'd. Cro. C. 593.
Jiymmof pl.T'.Mich. 16 Car. B. R. Derby v. Hemmings.
J05 1. 'Tis
ho IfTue, and Judgment reverfed. Cro. J. 5S5. pi. 7. Mich. 18 Jac. B. R. Sanback v. Turvey.
s^.eTraverfe^E, a_ ii) Tcndcr'd. In what Cafes an Jjfpte lliall be
Uuder'd ijijhichjlmll not be tried,
Br. Quare i, "T SSUE Hiall be tender'd which fhall not be tried i Js in ^nare Inipe-
Smpcdit, pi. J^ ^^^^ j£- xhQ Plaintiff counts of a Prefentation of his Anccfior, and 0}
S^Q Br another Prefentation by his 'fenant for 'term of Life, as he ought, if fuch
Kepiication, there be ; the Defendant (hall plead to the frfl Prefentation, and pall fay
pi. 41. cites further, that the Tenant did ?iot prefent, Prifl i and the Plaintiff pall not
S-C. reply to it, hut to the frfi Prefentment ; Quod noca. And this makes the
Iflue only ; for xhtfecond Prefentation does not make 'title to the Plaintip'^
and yet he ought to make Mention thereof ; for it is the laft Prefentment.
Br. IlFues Joines, pi. 67. cites 7 E. 4. 20.
Br. Avowry, 2. So where the Lord avozvs for Rent payable at Alichaelmas, the P/ain-
pl. 106. cites fj^j-^id that It is payable at Chrifimas, and not at Michaelmas ; and as to
§_q' ■ this Nothing Arrcar, the Defendant Ihall not anfwer to the Nothing Ar~
rear, but that the Rent is payable at Michaelmas, Quod nota bene. Br.
General Iflue, pi. 42. cites 21 E. 4. 17.
(E. a 12) Several IJfues. Allow d in what Cafes.
Br. Conu- i.r ■ ^HREE Iffues were permitted between the Demandant and thofe
fance, pi. J^ yjf^Q demanded Conufance tn a Re-fummons for failer of Right, be-
io._^cites caufe the King was in a 77tanner Party to affirm the Jurifdiftioh of his
Br.Rerum- Court. Br, Ilfijes Joines, pi. 4. cites 40 E. 3. ii.
mons, pi. 38.
cites S. C. ^ r f^
2. Trefpafs
Trial. 6^
2. ^nfpafs againfi J. and two others.^ The two jtiftijied the Taking from Br. Aid, pi.
the Plaintiff, as Servants of J. their Mafter, becanfe he was Villein to J. |^q*^"^*
and would not be jullifiedi, and fo to Iffue ; and had Aid of J. who
came and join'' d in Aid, and alio -pleaded upon the Original the fatne Plea in
Dtfability &c. And the Opinion was that both Iffues are triable, and the
one does not make an End of all. But J^iicre, if the one Ifjue be tried,
if this Jhall not be EJloppel between j. and the Plaintiff', if it be pleaded.
Br. Ilfues Joines, pi. 9. cites 8 H. 4. 17.
(E. a 13) Trijl per Pats. TJje Original.
i.T T is not to be doubted but that the moji ancient Yorm of Trial in Cafes
J^ Civil, As Title of Land, Debt, Trelpafs, Detinue &:c. and in Cafes
Criminal, As Murder, Burglary^ Felony &:c. wrfj by a certain Number of
fworn Men of good Credit and Integrity, who upon Teftimony given
before them, as to the, Matter of Faft, were to judge and determine
thereof Dugd. Orig. Jurid. 64. cap. 25.
2. This Kind of Trial here in JEngland was derived from the Danes^
and they derived it Jrom the Goths. Dugd. Orig. Jurid. cites Olaus
Wormius Monument. Danic. Lib. i. Cap. 10, Pag. 71. And Dugd. Orig.
Jurid. 71. Cap. 27. fays, that Trial by Combat being at length deem'd
unchriltian, H. 2. reterr'd it to the Choice of the Perfon challeng'd,
(viz. the fuppofed wrong Doer or Defendant) whether he would detend
his Title in that Sort, or put it upon Trial by Oath of 12 good and law-
ful Men, to be chofen out of the Neighbourhood, (as in the Saxons
Time) which Trial was then and fince call'd the Trial by Great Affife.
(E. a 14) Triable per Pais. 7Vhat Jffues are.
l.T N Error it was awarded, that where it was alleg'd in Afjife of frep Br. Error,
\^ Force in D. that the Ufage is, that he who has been feifed by 40 Weeks p' ^'>- cites
pall not be otijied, tho" he has no Title, tinlefs by Writ of the King by Suit, I" g~:
which was tried by Jury, yet this is no Error ; for tho' the Ufage be a guifhment,
Law, and that the Law is, that what is Law, and what not, fhall not p!. \6. cites
be tried by Jury, but by Record or by Judgment ; yet this is not Error, |- ^
and efpecially where the Party agrees to the Ifllie tor his Advantage ; p/ '.^"ci°es*
for a thing may be tifedfor the Cujiom, which is not the Cujiom in Faif. Br. s. c. And''
Cuftoms, pi. 21. cites 21 E. 3. 46. Brooke fays,
it fcems
there that Cujiom of the Country, or of a bafe Court, Jhall he tried by the Country, or hy the Homage.
2. Intent may be tried per Pais ; as Refcous, where the Lord came to Br. Refcous,
dijlrain, and f aw the Beajis, and the Tenant chafed than out, and the Lord P' J- *^"^*
took them ; and the Ilfue was taken if the Tenant chafed out the Beafts, ^^ j^ jr^^^
vb the Intent that the Lord Ihould not diftrain them or not. Br. Ilfues mation in the
Joines, pi. 45. cites 44 E, 3. 20. ExcheciHer,
the Ijjiie ••j/as
join d if tie Intent cf the Defendant , Viho jhipfd certain Wool, ''Jias to carry it to A. in Flanderj, and nut ta
Calice, or not. Br liTues Joines, pi. Z2. cites 57 H. 6. 12 S. P. per Choke and Littleton, that it
lliail be tried per P.iis ; but Littleton doubted in ivhat County it fhould be tried. B.-. Tn.ills, pi. i 5 i.
cites 19 E. 4. ^. • •
T Bv
yo Trial.
By the Statute of i 2c i ?h. & Mar. cap. 1 1. toucliing Importation of Coin counterfeit of foreign
Money it raurt be to the Intent to utter and make Payment of the fame ; and tho' the belt Trial of an
intention is by the Act intended, when it is done ; yet the Intent in thi.s Cafe may be tried and foiwd by
CirtHniflnncei of F.iff, by Wortij, Letters, and a thoufand Evidences, befides the bare doing of the Fa6t.
As in Cafe of thofe many A<Sts that prohibit lading of Wool, Gold, Silver &c. with an Intent to
tranfport the fame, whereby fome are made Felony &c. the Intent ihall be tried in thofe Cafes (being
ioin'd with an Aft) by Circumftances that evidence the Intent of that Adtion ; for tho' Bare Intentims
cMJict receive any Trial., yet Intentions jaind with an Overt- JH, as here Importation, may be tried and dif-
covct'dbyCm-timfiames. H. Hill. PI C. 229.
So that it feems, the very importing of counterfeit Money pur Merchandizer &c. to the Intent to mer-
chandize or make Payment therewith, tho' no fuch Merchandize or Payment be actually made, is Treafon
hv this Statute, if die Party importing know it to be fuch ; and that as lueil his Intent as his Knowledge
hes in J^jermetii and Proof. H. Hift. PI. C. 229
But per Holt Ch. J. Intention cannot be tried ; as that a Man did fuch a Thing, as that he took out
fuch a Writ ea Intentione, to do ^o or fo, is not triable. Indee J fometimes, upon another FaB put m Iffae,
the Jury fhall try the Intent collaterally, as in Cafe of Murder. 12 Mod. 5; 4, Mich. 1 j W. 3. B. R. in
Cafe of Hay ward v. Kinfey.
Br. Jurif- 3. The Bounds of a Parip was tried per Pais, lefjoeeu a Parfon and the
diftion, pi. Servant of another Parfon., it" the 'tithes grew in the one Parifh or the
19. citesS.C jj(.i^gj._ £j. Trials, pi. 17. cites 50 E. 3. 20.
4. IfTue which is Matter in Law Ihall not be tried by Jury, Br. Iflues
Joines, pi. 54. cites 9 H. 6. 38.
5. In Preecipe quod reddat at the Grand Cape, the 'Tenant came ready to
aver that he 'voas not fitmnwii' d according to the Law of the Land., per Pais;
■ and it was doubted if itfiall be tried per Pais^ or by Ley Gager of NeceJJity.
And the belt Opinion was, that if Caitfe befhewn that he isfick, fo that he
cannot come, or if they he Mayor and Commonalty, Rechfe, or Priors ofClofe
Religion, that upon fttch Cattfes pewn it may be tried per Pais, and other-
* wife not ; for the IJfage of Law cannot be chung'd, unlels for Ipecial
Caufe. Br. Trials, pi. 3. cites 33 H. 6. 8.
Br.Limita- 6. Per Markhani Ch. J. Recm-d before time of Afemory Ihall not be tried
tion, pi. 2. at this Day, no more than a. Deed made before time of Memory, Br.
Andlys Re^o^d, pi. 54- cites I £. 4. 6.
that Billing,
Serjeant, denied that of the Record, but confefs'd the Specialty ; therefore Brooke makes a Quire.
And per Cur, oi-Fine levied before time of Alemtry, Exectition by Scire Facias cannot he now tried.
7. It fhall be tried per Pais, whether a Man be adherent to the "Enemies
cf the King beyond Sea or not i per Nele; but Littleton doubted in wbatCou»~
ty it (k'ould be tried. Br. Trials, pi. 151. cites 19 E. 4. 6.
8. In all Cafes where the Matter is to be tried by the Difcretion of the
Juftices, they may fend it to be tried by the Country. Br. Appeal, pL
47. cites 21 H. 7. 40. by all the Juftices of B. R.
9. Debt upon Eond, conditioned That whereas the Plaintiff was in
1 74 S C. Poffeffion of fuch Lands, tf R. G. nor W. R. nor TV. fT. dtd dtftiirh him by
ccordingly. (iny indtre^i Means, but by due Courfe of Law, then &c. The Defendant
pleaded, that tieque B. G. nee W. R. tiec IV. T. did difiurb him &c. It was
infilted, that this could not be tried either by Judge or Jury j not by the
Country, for they cannot know what is a due Courfe of Law ; not by
the Court, becaufe the Defendant had not alleg'd in certain by what due
Courfe ot Law the Plaintiff was dilturb'd. The Court feem'd to think
it was not good j & adjornatur, 2 Le. 197. pi. 298. Mich. 29 Eliz,
B, R. Dighton v. Clark.
10. Sealing and Delivery of Deeds fhall be tried by the Jurors Sec. Co.
Litt. 225. a.
1 1. The Jury cannot try whether a Man be Conftliarius S i» Lege eru-
ditus &c. See (F) pi. 15. Broughton v. Prince.
S.C. cited 12. In a ^lare impcdtt by the Patron againft the Bipop, who had
Cro. E. 727. pleaded that the Paripioners were Welpmen, and could not underPandEn^
in Cafe of glip, and that the Clerk he prefented cotild not underpand JVelp i and the
^^^^'^•^°^'FiLtion replied J that the Clerk could fpeak JVel/b ; and upon Demurrer ic
was
man.
Trial. 71
was adjudged a good Ill'ue, and that iuch Matter might be tried. Ow.
iz'j, 128, cited per Hern Serj. in Cafe of Lane v. Cotton.
13.' In Debt upon a Bond, on Condition to pay 20 1. within a Month ^^'°-^-Ji.}'-
after the Obligee had a Son, that did or could [peak the Lord's Prayer in ^,' ^ ^l '
Eiiglip, that he could be underjlood -^ the Plaintiff pleaded that he had a Eiiz. c. B.
Son, qui hqui potuit precationem Domini, ut intelligi potuerit ; and the !Laneb.
Detendant demurr'd, becaufe it was pleaded that he had a Son qui loqui ^°f'^^"»
potuit, for that is a fccret Ability that cannot be known. Anderfon Ch. ^■i^^ whole
J. and Kingfmill, and Glanvill J. held the Iffue good ; but Walmfley Court held
Contra, that it is a fecret Thing, and cannot be tried. Ow. iz*?. Lane if ^ good
V. Cotton. ' I^'tf ^"^,
wclltnable;
for the Conditicn being in the DisjunHi'je, he may allege the One or the Other at his Ele<9:ion ; and his
jpowerof Ipeaking &c. fhall be proved upon the Evidence by fuch as had heard him recite it ; But the
moll apt and proper Iflue had been, that he had a Son ^i locutus fuit, and fo have tried a Thin" ac-
tually done.
14. Whether Land be reputed Parcel of a Manor {ha.U not he tried hy
the Country, becaufe it is too uncertain lor them to try ; for it may be
reputed fo by forae Perlbns, and not by others, and for a Ihort Time'&c.
Per North Ch. J. in delivering the Opinion of the Court. Freem. Rep.
207. pi. 212 Palch. 1676. C. B. Lee v. Browne.
15. Where an Account Render is brought, if the Defendant will plead
Plene computavit, and offer to bring the Money into Court, that will lig-
nify nothing : For that in a Trial upon an Atlion of Account, the Jury
have nothing to do, unlefs an Account fiated be proved ^ but an Account
mufi be before Auditors, lor thev are the Judges, and not the Jury. L. P.
R. 31. cites Pafch. 9 W. 3. B. R.
16. Upon an Indiftment on the 5 Eliz. for ufing a Trade, Holt Ch.J.
fiiid that it were fit for a Jury to try whether it were a 'Trade then or not ;
and why not as well as try a Prelcription, and therefore was againlt
quafliing it upon that Exception, is Mod. 311. Mich, ii W. 3. B. R.
the King v. Slaughter.
17. The Courfe of the Court cannot be tried by Jury ; for if it be fo it
is Matter of Law, of which we as Judges mult take Notices per Holt
Ch. J. 12 Mod. 572. Mich. 13 W. 3. in Cafe of Hayward v. Kinfey.
18. Cujiom of England in charging a Carrier or Inkeeper for Goods neglefl-
ed or llolen from them, is not triable, but is the Common Law, of
which the Court mull take Notice; Per Holt Ch. J. 12 Mod. 573.
Mich. 13 W. 3. in Cafe of Haywood v. Kinfey.
19. Whenever an Ait of Parliament makes an Offence, and is ftlent on
en the Manner of trying it, it fhall be intended to be a Trial per Pais ac-
cording to Magna Charta. 7 Mod. 99. Mich, i Ann. in B. R. the
Queen v. Sturney.
(F.a) Trial fer Pah. By the firft Jurors. In what Sf<=/^^^^^5 )
Cafes it fhall be tried ky thejirjl Jurors, Note on pi.
I.T if Recotd be pleaded in Bar of Affife, and tIjC Pattp lUiJO J^CaUjS * Trials per
X It fays the ftme Tenements were put in View to the tirlt jurors, if P^'s, jq.
tl)c Plaintiff fa))0 Nient Comprife, It fljall bc tneli U]? tlje firft SucoriS Tc ""^
aim otiiergi * 13 ip* 4- ^°- 6* 38 air. 4- 27 €. 3- 84. anjuorn. when Nie„t
be tried by the firft Jurors and others, the/i-/? Jurors Jlmlt mthe any of the 12 Imt iiin'd u"tu'in^efi
and the fame of WunelTes. Br. Trialls, pi. 1:51. cites 5 H. 5. and Fit7.h. Inqueft, 55 4r,^ if romt
come andfome vot, thofe who come fliall be join'd. Ibid. .M if the Slo-if returns them De.xii the
inqueft fliall be taken without them. Ibid.
2. So
72 Trial.
1 I ,. ■-- - --- ■■ I
r'^^^^^-^'^. 2. So It' tljE Tenant i'avs that thofe Lands are not the fame Lands be-
^^^:!^^ fore recover'd i tiji.0 fijiVu bz tiicD ibj? tijc firft 2urcic0 anil ot()crj5»
Trials per 22 I^IT, 1 6.
Pais, 7 5.
(85) cites S. C- Br Trial, pi. -2. cites S. C. S. P. and he ciiirft not fay that Nient Qmpri/e;
for this fhall b: tried immediately &c. and the Reafon is becaule Judgment in Affile is Quod querens
recuperet per vilum Juratorlmi. Br. Comprife, pi. 10. cites S.C.
*S.P. Trials ^ g^ in Affife, if Defendant pleads a Recovery by View of Jurors
rs5)''ci;es in Other Affife; tU^ fljcili UDt ht tricO by tijc ^ffifc, but lip tije firft
s. c. — lurors. * 13 Ip- 4' i°* l-i* 38 M. 4- 29 ^iH 70 aDjuDir'D. 1 44 M. 19
t Br. Trials, p5)mig'5^ 30 $}fl; 39. oBp tljc ftrft liiror0 aiiD otijeris *4o 3ir»4
i;Air.'i9'ac!fi5niorti.22cjn;i6.
cordingly. But it fliould be 44 Afl'. 19. ^ Br. Trials, pi. S6. cites S. C. accordingh', and that
tlierefore the Plaintiff was compelled to afcertain the Names of the firft Jurors, fb that Proceli might
be made againft them.
Trials per ^ j^yt: Upon the Return of the firft Jurors and others, if all the firft
Ses ^'c^''' 1""^°^^ appear, it fijall be tiicti bp tijcm onip -, but if any do not aopeac
it (Ijall be fupplieu bp tbc otljer^^ 4° 3ff. 4-
Br. Trials, ^^ jj^ Allife, if tJjC Tenant pleads an Extent and Delivery of the
s'c°but"k Land by Force of an Elegit &c. and the Extent and Delivery be tra-
is raid there verfed tW 03^11 uot be trien bj) tlje fivft Juroris, bccaufe tijo' tbe er=
that 51 AfT. t^nt be bp tlje ©ntb of tlje Iiiror0, pet tije ©eli^jccp map be bp t(jc
6. the Ex- gjjjeviffiit tlje abfcnce of tlje 3^uror0. 38 m* 4» ati]u5B'ii»
tenders were -^ j ->
join'd to the Affile by Procefs to try this Matter.
Trials per 6. Jit fuc!) Cafc^j where the Plaintiff is not to recover the Land,
Pais,7 3.C8?)^yj. jQ jjgfg^,. j-he firll Judgment, if Nient Comprife be pleaded upon a
seerl^" Recovery pleaded x\)\^ wap bc trten bp otljctgi tljait tlje ftta 3!»VOt*!5»
I J;. 6. 5. b*
Trials per y. As ill Trefpafs of Trees cut, Defendant fays that he recover'd be-
Pais, 75X85) foj.g jjj Alfife the fame Land where &c. and cut &c. Plaintiff fays that
* sV^ s * this Land where &c. was not put in View, and fo not comprifed 3 tI)i|S
vhereitistofliallnotbetricu bp tl)c firft Iiurorisi but bp otljersj, becaufe tlji^ ac=
recover the (ion fljall itot Ocfcat the firft 3uDp;nient, nor fljall rccoDcc but Da-
Defeat°the «i»^5^^' * ^ ^^' ^' ^' ^* CoHtra 4 %^ 6« 28. b>
firft Tudtrment, there it feems that it fhall always be tried by the firft Jurors and by others; note the
Diverfity. Br. Trials, pi. 61. cites S. C- Br. Coroprile, pi, 8. cites "S. C.
8. 31lt Scire facias out of a Fine, if Nient Comprife bC pleaUeH, aUD
found that it is comprized, and after Demandant brings Affife of the
■ fame Land, and Tenant fays Nient comprize; tljl'lS fijall bC triCH bl>
©trangcr^, (bccaiifc it fiiall net defeat tt)e firft iiuDgmento 1 1\
6. 5 b*
s. P. Trials 9. 3in a Rediffciiin, t!je €:rtal fliall be bp tfjc firft luroris ant«
perPais75. otijeris* 33 ^IT* 7 ^DmuscQ* 26 c* 3- 57- ^owogen*
(S3)
If in this ID. 3if Upon a Recovery in other Aflion pleaded, Non Comprife be
Cafe the pleaded, and one of the Jurors in the firft x^tlion is one of the Defen-
beTv Sr'*^ ^''^"^s ^" ^^^'^ ^^^^'°" ' bccaufe Ijc fljall not bc \i^ ouin lunge, tfjisJ
ftrft Jurors, fljall bc ttieJi bptljc firft 3:urorj2 aiiD otljcvis S:trangeriS* 4jp» 6;
then the 28+ b*
Defendant
fhould try his own Iffue, which is not Reafon; Per Mal-tin, by which the Court would be advifed.
Br. Trial, pi 50. cites S. C.
In fuch Cafe all the Jurors in the firft Affife appeared, except one who was named as DifTeifor in
this Affife, and therefore the Plaintirf was delayed hereby, becaufe it might be that there are two of
the lameKame. And it was faid there, that Thorp at anoiher Time tock the Affife, notwithltanding
that fomc of- the firft Jurors did not come. Br. Tri.t!L^j nl. S6. cites 40 Affi 4.
Trial. 73
\i. 3iU Audita Querela, if tljC Parties go to IfRie upon the Payment
according to the Dcleafance of the Statute, attll tJjIS iSi found lor the
Plaincift, but the Jury did not afleCs the JXunages i tljC COUtt lltilP
atuarn a ijentrc fnciiisi aijatnlt tljc firit Juroris* to taJi the Damages^
12. j,U Affife, if a Recovery be pleaded by View of the Jurors, ailtl I" -iP/e, th§
PlainrirtTays Nient coniprife, ilHtl Writ ilfues to the Sherilt'to fummon '^^"""t
tlicfirit Jur'oi-s, anb he returns that they are dead, ailtl flftCr tIjC Plain- ^'""^"^ ''.
tiffin the Affile is nonfuitcdi i^OtlUitijffnntlinO; tljC fillO KCtUm, mothe7%fe
in other AlFife upon the fame Illue, a J©rit fljilll iflUC tO tIjC €>ljenfFtO ^'^'^'"'fi 'he
fummon tIjc firft Juror0. 44^{r, 19- ^aDjUOgcQ, pumiff
upon which
they ttcre at IJfue upon Kient Coniprife ; and the 7'enant prayed Procefs to thefrfl Jurors, and it was grant-
ed, notwitlirtanding tlie Pl.xhitiff alleged that they iiere retHrr.ed dead before the fame Jiifiicei in fuch other
Jjfife bejore the fame Jujlices bct'ViJeen the fame Parties ; for the Levant faid that in fuch Jfflfc, in abich
the Death was retmn'd, the Plaintiff <xas h'onfuited, and fo ought not to take Advantage of this Record ;
but Perfcy was clearly contra to it, and fiid that it was againit Law. Brook fays, Tamen quare if this
ivas Reafon ? For it does not feem to be the fame wiiich is againli: the firft Jurors for this Caufe ; Ideo
tiuaere inde. Br. Record, pj. 14. cites 44. E. 5. 41. ■ — Br. Comprif;, pi. 6. cites S. C.-» -Br.
Triall, pi. 61. cites S. C S. P. Br. Comprife, pi. 4. cites 45 E. 3. but it feems it ftiould be
44 £. 5. Ay
If it be of Record before between the fame Parties that the firft Jurors in fuch like Aftion and IlTue
are returned Dead, then the Procefs fhall not ilTue to the firft Jurors ; Per Perfey. Br. Trialls, pi.
1:5. circs 4 Aif. 19. but it ftiould be 44 All'. 19. ac;ording to Roll.
^3- Jf upon ^n IlTue all the .Matter be not fully inquired, a Venire
facias de Novo Hjall iffUC td tije ftrft 3iUL-0l'3* 18 e» 3» 50*
14. Jf after an inquelt returned by Habeas Corpora, the Plea be put
Sine die by Aid of the King, aitO aftCC a Procedendo COmC^j, aUD a
Refummons 0,100, and a Venire lacias de Novo granted ; tijC S)l)Criff
Piap return a ncaj li)anncl, if ije tDiU. 21 e. 3- 44 b>
15. Forger of Deeds, by which he was difturbed of his PoffeJJion offiich
I'aicments tn D. in ths County of K. and of fuch Lands in L. and alleged
the Forging at D. in the County of K and br/inght the Atiion in the County
of K. and [as] to the Land in the County of K. the Defendant pleaded a
Plea to Ilfue, and to the Land in L. etioer Ifjne j and the Jury of K.
appeared and found f^r the Plaintiff -, and the Jury of L. did not appear ;
therefore it was ordered that the Jury who appeared, Ihould tax Da-
mages lor the whole. Br. Damages, pi. 74. cites 21 H. 6. 51.
16. T\iQjury which is put in aPanncl^ ttpn Demand of a Fill in
Affife, cannot be put in Inquell after the Abridgment 0} the Plaint in this
Vill, Br. Tit. Abridgment, pi. 18. cites 21 E. 4. 28.
17. In Mortdancejhr, Attaint ., Juris Utriim, Afjife, Certificate of Affife^
the Jurors may be re-ajfembled after Verdi£l before ) udgment, or after
Judgment by Certificate; this Certificate is not a new Procefs, but is as
the Original. Jenk. 283. pi. 13.
18. In Trefpafs againjl 2, one comes and pleads Not guilty^ and is found
guilty ; in this Cafe the firll Inqueft Hiall alfefs Damages for the whole
Trelpafs by both Delendants ; and afterwards the other comes^ and
pleads Not guilty, and is Ibund guilty j the finding of Damages by the
firll: Inquelt, to which he was not Party, Ihall bind him ; and there-
fore if they are outrageous and exceffive, the Detendant in the laft
Inquell Ihall have Attaint. 10 Rep. 119. a. in the 2d Refolution in
CljCPUCp's Cafei and fays that with this agrees 44 E. 3.7. and F. N. B.
io7.^(£)
U (G. a.) Trial
74-
Trial.
(G. a.) Trial by Jiny, or ether Proofs. In what Cafe it
I'oi. 594- ^gX\ be by jury, or other Proofs before other Perfons,
7!pon jpec'ial ff^ordsy and How. S^And at ndkit Time, in
the yioiio?i?^
r.fainft a
Stranger,
upon a Pro-
riifc to pay,
II fan Proof
made that
fo much
■was due to
the Plaintiff
from J. S.
jnay be
brought be-
fore the
Proof made,
and the
Proof may
be better
made hi the
^rjal of the
Jciioii. Sid.
4-. pi- 25-
I>lich. i;
Car. 2 B, R.
Trover
y
Palmer i6o.
I Lev. 48
jf a. lit confitscratian of 125* ffi^cntoljim bP OS. alTumejs
tillBl promifes, that if A. can prove that E. at any Time before,
had borrowed any Sum Of S^OUCl) of B. that tijClt he would give to A.
100 1. upon Requeft, <a> ITiap bnitff Action upon the Cafe agailtft 15*
upon tl)i?s [^ronitfe, d.m aver tijat T>. ijau before tljc l^romife, rctti=
cet, fuel) a Dai>, borrotueti fo muclj $©oncp of Ijim ; anti tijat Ijc
can pvone ft h\> fufticient V^itwt^t^; ano ttnit Ije Ijnn oftentimes,
nftet tlje Ptoniifc, otYereo, ann }?ct i^ rcanp to probe it, yet l)ci]a0
notpaio ijtm tije iafa ico 1. 1!}0' l)c rcqucften bim fuel) a Dap (jc*
CbtSi 10 tl ffOOO Declaration ; foe it is ibfficicnt for the Plainciii to
prove it in this Action; fOt iUafUlUCl) a0 It is limited to Proof gene-
rally, it ought to be by Jury, U3i)ICb 19 tIjC ptOpet Ccial Of CljingS IW
Controberfp bp tbc %m of tbe Lann, bctuiecn $^en. %t. 1 1 car»
a'i^K* betiuccn/^:-Wt//^/;^yW/)?. aojuiifferi per Curiam, in J©rit
of error upon a Jutigmcnt m 'Bank ; ano tbis aft'irm'O aCcorUing^
Ip, UlljerC tbe Promile was more than 6 Years belore the Action brOlUjljt;
anu pet becaufe it was a Collateral Promife, ano fo HO Caufc of Action
before Eequeft anO proof, Uiljtcb coulQ not be but in tbe fannc ac-
tion, it 1030 out of the Statute ot 2i Jac. oi Limitations. JnttatUtt
^M\h 9 Car* 'B. K. Kot. 191*
Anon. S P. Per 2 Juft. Ceteris abfentibus.
. Mich. 13 Car. z. B. R. Webb v. Martin, S. P. P.-r Cur.
Le. 25(5 pl. 2. JftbC Condition Of aU Apprentice's Obligation tti If ill Cafethe
-44. s.c. {-^[^ A. B. (tbe apprentice) tiurnin; tbc Sppruiticefljip, do untruly take
Sd b°y the^ or fpenti aup of tbe »JD00ti?s of m TaiD eiSaifcr ; then if the obiij^or do
Court! within one JNlontli next after Monition berCOf tO bim bP tiK ©bU'lTCe
Cro. E. 256. giticn, tBCll anil trU!p 'pay unto the Obligee for all fuc'h Goods as'by
pi. 2. S.c.
fays that
Gawdv and
the laid Apprentice, Ot bP anp Otbet, bP W ^Can0, SlfeUt, Ot J^tO'
CUremCnt, Ihall happen to be taken or confumed as aforefaid, the fame
Fenn"er'^on- being lufficiently proved, tbflt tbCU 11)1^) £)bligati0n tO be UOtD* JU
ceived the tbi^ CilfC, UI 2.ttim Of Debt upon this Obligation, it 10 ttOt a ffOOH
pica for tbe Defcnuaut to fap tbat tbe ObUsxec, nor anp otber foe
bim, after tbe mal^inii; of tbe fiiio 2)bl!i3;ation, jfecit aliquam fum=
Proof muft
be before
the Aftion
brought by cientem l^robatioucm juxta formam $ cffcitum Connitioni^ pr.?=
Sea"S or""^ and tb^t be'bit^ "o^ a Month tOt papmCI't Of it, after Proof Of it; and'
in what therelore the Proof may be made in the Y\ction UpOU t\)t S)ujigatiOn»
Manner! forc^jj.^j^j2. 33 (£L 05. £v» HOt» 4=3. bCtUJCCn TaU-a/fe and Hally^elL
dant is not' ao)uOficti upoix a iDemurtet*
to pav but
fo much as is taken, and proved to be taken or fpent &c. And this within one Month afier Xotice ; ^o
he is to have Time to pay after Proof made, and Notice triven ; and thi^ cannot be in this Aftion. Bur
inuch was not fpoke to it, for there was an incurable Fault in the Pleading ; for he for Plea fay.'!, that
the Plaintiff had not made Proof that J. D. took or riotoufly fpenr &c. but fpeaks not that aijv other,
by his Confent or Procurement ; and fo does not anfiver to the Sublfance of the Conrii-ion. And for
this it was held clearly ill ; and for rhis Caiifc it -.vas adjudged for the Plaintiff, aliho' it wa.s fuid, Oni
rcr
Trial.
75
■per alium tVit per leiprum facit. .So the PJea extends to it; but the Court contra. But for the Matter
in Law, they laid it was ftrong againft die Plaintiff
3. 3iftI)C Condition Of an ObliptiOtt lie, Whereas Queen Elizabeth Cro. J. 252.
by her Lecters Patents, did demile unto the Obligor, and J. S. all thofe I^'; '^ ^' ^■
Dcmefne Lands belonging to her Manor of Wells, lor 21 'iTearsj Now ^J-^ht ^^
if it fijallfa happen, tijat ijereaftCL* it flmll be proved that any fuch have pleadea
Lands as the Obligee now uleth or enjoycth, lying within the Fields of that they
Wells albrefaid, have been any of the Dcmefne Lands at any Time to i;^""^ "°y
the faid Manor of Wells belons^ing ; If then the faid Obligee, and Alice Jhe Manor
hisWife, ihaii, nottDttljffautimo; tlje fotn letters patents ^t all ib as Proof'
Times hereat'ter, during the laid Term of Years in tlje faiD jLettetS Pa= thereof
tents e.rprefS'tl, * quietly Have, Hold, Occupy, Poliefs, and Enjoy ^'f'"^ ^"^'^
all and lingular fuch Lands as the faid Obligee now ufeth or enjoyeth f^^^^JT^^
as afbrcfaid, lying in the Fields of Wells aforefaid, and being proved to * Poi 595.
be anv of the Demefne Lands, as aforefaid, without any Evidion or L-'^'VX^^
Interruption of the Obligor ; then tljld £)bUlXat!On tO &e HOItl ; 3n HH '" ^^at Ac-
mmi of iDebt npon tijis S)bligation, it fs not a goon Plea for tlje "f "hat om
Defenoant to rai>, Qpod non probatum fuit, qtioQ nliqu.^ Cerr* quas nionuas the
pr.'eitirtus tlje ©bligce (tlje plaintiff) antttncufus fuit occupauit, M ^^hoie
jjal!iru0 fuit, jaccntes in Campis ne iBellcs prsDict' fuerunt Cerra; ^^"""'^ .
■£)ominica!cs praUicto £i9anerto u UDclles pertmentes fitie rpec= wSXS
tanteS ; for it fCemS tljat it may be proved in this A6lion upon the for that
Obligation. Ctv 7 3iit» EOt* 911* 05, tv» bCttUeCn Ehey and Sabbe. ^i!^innS.
aHjUDaeti upon a Demurrer*
4v 3:f a '^tjmS be generally referr'd to Proof, it fljall \it intetlUetl 3 Hob. 21-.
proof by Jiurj). Jpobart's Ecports 127* CTate 1-4. ann £afe 280* p'f;- "'"■
tetUJCCn Crokcy and 'iVocdward. iVilobl^ap
1) . 231000^
loarD, upon an Apprentice Bond. And it was agreed by the Court, that the Word Proof qeneiallv
Jaid, ilia 11 be undcrftood a Proof judicial by jury, Confeffion, or Demurrer in CoUi^. ^Brownl.
21, S. C. fays it uss tried for the Plaintiff; and after Trial Exception was taken, becaufe the Plaintiff
did not allege any Proof made. And therefore [udgment was arretted.
NoProof is allowable by Law, but the /'e)-^/V7 of 1 2 Men. 5 Rep. I oS. in Sir H. Confiable's Cafe.
Tho' the Proof by Verdidi is the bell- Proof, yet Proof may be in other Manner ; as a laft Will
is well proved by £ or 5 WitneHes. And there is a Difterence where Mention is made of the Manner of
Proof, and where not; Per Anderfon. Mo. 181. pi. 322. Pafch. 26 Eliz.. Anon.
5. But if.other manner Of PtOOf be agreed tO \it UiaUC between the Hob. 92. pi. .
Parties, it fljall U alloiDt!, aiiB fljall not tahe auiav tijc Proof uiljicij {,^^, '" '^"^
tlje lau) senerasii? mtenos. Jpobart's Reports, ih- chSv'"
Gold V,
Death. S. P. agreed per Cur. Hob. 21;. in the C.ife of CrOOkliapi). CUoOOiDarO, and that fo it
is if it were upon Proof made by Certificate, as is ufcd for Travellers, or by Wimefles before 2 Alder-
men, which appears cannot be judicial ; which Proof flia 11 be let down in the Plea with all the Cir-
cumlhnces, and then it fliall be put in Difcretion of the Court to judge whether that Proof were com-
petent, according to the Meaning of th; Writing.
6. As if tbe Condition of an Obligation for the Truth of an Appren- Hob. 92. p!.
"tice be, "^Ijat if the Apprentice waites the Goods Of IjIS $l9affer, and J,J^-f^"T
this duly proved by the Confeffion Of tlje apptClltiCe, or otherwife; nl Mi^h
then if the Obligor render KeCOmpeilCe $C» It IS a 0005 allegation 15 fac. S.C.'
luitljin tlje Contiitian, Cljat tbe apprentice luadcu fa nnicij of tlje a"d sss- pi-
C^OnCP of tljC staffer; ailD that he acknowledged it by VV^riting under '^5o- SC.
his Hand &c. tijis IS fuffidcnt Proof iuitijin tlje Condition i anD coa',tVeem-d
tljO' it is not alleg'd to whom he acknowledged it, pet it iS ffOOO, be- to think a
Canfe it is according to the Words of the Condition, anH it IS t^eptOOf "-"''''"''"■/
agreeti to be mane bctuicen tlje parties* i^obart's IReports, 127. ^w#""^^f-
bctuieen Gold and Death, pct Cutiam, Cafe 124* ^;|,' "j; ,3 ,
pl. 9. S.C.
adjudged for the Plaintiff. And there is a Note added, that a Writ of Error was brought in the Ex-
chequer-Chamber, and upon the Queftion whether tlie Proof was good or not, all tl'.e [alHwcs and
7 6 Tmi.
Bii-ons conceived it to be £;oo3 enou^li. But for a Fault in the Pleadings the Judgment was revcrfed.
; V BuUl. s5. S. C. aa^'^dr/d for the Pl.iintiS^. Roll Rep. 222. pi. 2S S. C. adjonr.itur ; but Ibid.
adi. pi. ;2.'s. ci. adjudg'd for t!if Plaintiti' And Ibid. 262. it is faid per Cur. Thnt notwithftanding
The Pleadm"'' of this Proof, the DL-fendaut might liave taken liTue that he did not confels, or did not
irabezzle his Goods ; and if fuch IlTue had been proved, the Plaintiil" muft prove the contrary.-
fenk' -00 pi fi'^ . S. C -BM^i'-jiiment ought to be made that he did the Fact, notwithftanding the
Confeiiion. KoVl tlcp. 40. Lee v. Ft'nch. ^ .
In bindinq U. H. Apprentice to the Piaiinift, the Condition of the Bond was, That ij he pould imbez.-
-h any of hi.s Mafter'.s GcodSi <iW if •iiiithin 20 Da'vs after Notice thereof ff/ircen to the Defendant, and one
T H. rtwrf Proof thereof made to them., the Defendant J/.oi/W fay to the Plaintift fucli Sums of Money 2S
the Goods imbex7.1cd were worth, tliat then &c. The Apprentice did imbezzle fome of the Goods,
and the Plaintiff r;ave Notice t'icreof unto them, flieiung a Paper unto them under the Apprentice '.s
own Hand, wherein he confefs'd it. To this it was obj-iCted, That the Notice and Proof arenot fuf-
ficienr ; for it ou<rht to have been given to tlnem both together, and being given to one at one time, and
to the other at another time, it is nor fufficicnt ; and the r"roQf alfo is not luOicient in itfeU, being
only upon the Jj)frn:tice'i oxn ConfeJJion, who is not Fide dignus ; wherefore, for thef-; and other E^c-
ceptions, it was adju.ig'd for the Defend.int. Cro. E. 723. pi. 55. Mich. 41 & 42 Eliz. C. B. Car-
dinal V. Hesker.
7. If a Man be bound See upon Condition^ That // the Ohligor fiiffi-
ckntly prove that it -was the Will of C. D. that f. K. fljouUi make an Efiate
unto the Obligor^ of Land in Fee i3c. that then &c. In this Cafe it is mofl
lor tlie Benefit and Advantage of the Obligor to make Proof by VV ic-
nelTes, before fome honclt Men in the Country ; and yet the Prooi ought ^
to be made by an Inquell ; for the moft fufficient Proof in Law is by a
Tury. And the Condition does not mention in what manner the Proof
ihall be made, nor before what Perlbn i but lays only, that it fhall be
fufficiently proved. And therefore the Law lliall fay. That it jhall he
f roved by the rnojl fufficicnt Proof, --jvhich is by Inqtiejl : But if the Words of
the Condition are. That he Jhall make the Proof before Jhch a oue 8ic.
"which are not Jultices Sec. then the Proof fliall not be made by Jury ^
Or if the Condition be, That if it be proved fufficiently before fich a Day &c.
before A. B. and C. D. Jujliccs of our Sovereign Lord^ the King, and indeed
they are Jufliccs of Peace or Quorum, and not juftices of the one Bench
or of the other,^ nor Barons of the Exchequer, nor any fuch Jultices
which may make a Trial by Jury; then the Proof Ihall not be by Jury,
unlefs the Proof be to be made by Indiftment. And notwithftanding
that the Proof be to be of fuch a thing as may be tried by Jury, yet it
the Proof be to be made at fuch a Time, in which they have no Power
to take an Inqueft, the Trial fliali not be made by Inquell &:c. Perk.
S. 791.
i Cdlrt. 5(). 8. In Debt tipon an Jlfjumpfit, on a Wager on a Cock-Match ; and
cites the upon the'one's demanding the Money of the other, the other promiied
Cro'-a alias ^^''^^ (/ ^'-"^ ^'^"^'^ P/"""-' that fuch a Cock teat, he would give him 3 /. In an
Craaat-, 1).' Action upon this 2d Promife the Detendant laid. That no Proof was
■<!!5riffin| made. Sed non Allocatur ^ for it was not neceliary to make the Proof
S. P. as to a before the Aftion, but it may be made in the A6lion. Mo. 845. pi. 1 140.
Suing, cites Mich. 32 & 33 Eli^- ^- R- Griffin's Cafe.
JMatch ; but
it fcems to be S. C. iLe.zi?. pi. 2-9. Hill. ;o Ehx. Scrogs v. Griffith, S C. and it was agreed by-
all the Juftices, that the Proof ought to be made in this Aftion, tis in the common Cafe of Voyages ;
and Judgment was enter'd for the Plannift.
S. C. cited 9. Debt upon the Statute 8 Eliz. for fuing an Affion in another'' s Name
Lutw. 441. if)lthout his Privity, being duly proved by 2 Witnejjcs, that he lljall pay tre-
" ■'^ the ble Damages to the Party grieved, and 10 1 to the Party in whole N'ame
Cafe of the Arrell was made. The Queltion was, how this Proof ought to be
WLMS Sc in an Aftion upon the Statute, whether by collateral Proof before i and j
al'.b.^itf, it way held, that the Proof pall be in the fame A&ion, and not in any '
Debrthe Other Courle. Wherefore this Exception being taken after Verdict, ic
Condition was adjudged to be well enough brought, and Judgment for the Plain-
of a Bond lift: Cro. J. 188. pi. II. Mich. 5 Jac. B. R. Aldred v. Mathew.
■was to pay
aoo/. tJpn dm Pnof of Breach of any Part of the Jrticles Sec. And it was infiftcd, that '.her; ought to
ltaV("
Trial.
77
Slave been Proof of the Breach of fome of the Articles before the Aftion was brought Seii iioii A1--
locatiir ; for the Proof may be in this Idine Action. And the Plaintitf had Judgment by the Opinion of
ail the Court.
lb. Debt was brought on a Bill for Money to he paid within i<; Dajs Mo. 8SS ia
after bis return from Jeriifalem, he proving his being there. The Defen- ^*'^ "'
dant pleads, that he did not prove his being there. To which the ^tauf Vavs
FlaintilF demurs, he making Proof, that is, it it be true. Sir Edw. Serjeant
Coke and Daniel held, that the Proof Jhould be made upon the Trial, Harvey cited
and the Proof (hould be fubfequent. But VN-^arburton and Fofter held, ^ J^'^- '^^
chat the Proof Ihall be precedent, becaufe it was rejirain'd to a certain f^' j'^^
'Time ; but it had been otherwile if no Time had been appointed. foivedThat'
Brownl. 65. Trin. 7jac. Sturges v. Dean. /wi Proof
Aould be
fa.'ficient as miaht he made ivithin the 1 5 Days, and not fuch Proof as the Law requires for Proof be-
caufe the Condition of the Obligation difpenl'es with the Law.
Tho' generally Proof is to be intended Trial by a Jury, yet it may be otherwife, according to the In-
tention of the Parti?s fhewn by Chcuwftances in Writing, which when it is referr'd to a Time after
Proof, it cannot be referr'd to a Trial for Proof; which by the Circumftance o'i 'T'ime wherein it is to
be made, or of the Perfcn before whom it is to be made, cannot be by Trial, but ought to be as it may.
As if Proof ought to be made to Defendant ii/jthhi 2 Days, that cannot be by Trial, but ought to be
only by Witnelfes, who will affirm it before him. Cro J. 5S1. Gold v. Death.- -Godb. 1 50. Tailor
V. James. If the Death of a Man is to be proved within 10 Days, it may be proved by the Church-
Book ; per Croke. Roll Rep. z6z. in Cafe of Gould v Death.
11. Debt Upon a By-Law, 'That no Verfon Jhould exercife the Art of a Cloth-
worker, or 'Taylor, within the Town of Ipfwich, unlefs he made Proof before
the M.^'Jters Se. or two of the?n, that he had been Apprentice to the Trade for
7 Tears. I'he Court agreed. That this Proof could not be upon Oath,
becaufe the Corporation cannot adminifler an Oath ; and then the Proof
mtiji be by his Indentures and Witnejfes ; and perhaps the Corporation will
not allow of any of thems for which the .Party has no Remedy againlt
the Corporation but by an A6tion at Law, and m the mean time mult be
barr'd of his Trade, which is his Maintenance ; and Judgment for the
Defendant. Godb. 252. pi. 351. Pafch. 12 Jac. B. R. The Cloth- workers
of Ipfwich's Cafe.
12. Per Haughton J. If a Thing is to be proved witloin three Months-,
this is not to be by Jury, becaufe this cannot be done in ^o Ihort a Time.
And by Croke J. wnere it is referr'd to the Lives of Parties, or to other
Ctrcumjiances, this is not to be tried by Jury. 3 Bulf 57. in Cafe of
Gold V. Death.
13. Proof was to be made to J. S. that a Relief was due, and certain - gujft ,,,
Rent. Shewing that he made it appear to J. S. at the next Court, by S. C. and'
Prefentment of the Homage upon Oath, and by the Court-Rolls, was ^ P- And
held to be good Proof Jo. 133. Trin. 2 Car. B. R. Hungerford v. f^"',^^''!^.-
Haviland. ■^^,^J\f ^^
Matter oi Record, it is to be proved by the Record ; but if of a particular Benefit <which the Lord of the
Manor is to have, then no better Proof can be of this than by the Rolls of the Court ; for no Proof caii
be more direct and particular than by fetting down all the Rolls in particular.
14. In ./^rf»?g/?? the PlaintiiF declared, That in Ccnfi deration he would T^tv. 191.
deliver to the Defendant his Cattle, then in the Pound, he promifed that if^- ^- ^^^
he did not make it appear before the Steward., at the ne.\t Court held for the ^' ^^ '^^^^
Manor of&cc. that he had a Right of Common in fuch a Place in Widmore, as to the '
he would pay the Plaintiff 10 s. It was agreed per Cur. That where the Trial.. — .
Coniideration is to prove a Thing generally, this is intended fuch as the ^ ^'^^- '•?.
Law requires, which is by Jury j but where it is to prove before fuch ^''^l- p^
an one, or in fuch a manner, there it need not be by Jury, but the Mo- does not ap-
dification muft be obferved as here. Sid. 313. pi. 27. Mich. 18 Car. 2. pear.
B. R. Butcher v. Yale.
15. The Statute 33 H. 8. cap. 6. prohibits the carrying f a Gun, and^'^'^- 419. p'.
en.i^s^ That the Conviiiionjtall be upon due Exam in at ion a.id Proof before a '•■ ^- ^- ^>'
X Jujlice''^'^'''''' "--
78
Trial.
the femg V). Jufiicc of the Peace. The Court reiblved. That this Proof was not in-
^auiiDiTS, tended by a Jury, but by IVitncfes. Vent. 33. Trin. 21 Car. 2. B. R„
ni^on'of the ^"0"-
Court. Sautid i6z. i6%. S. C. but S. P. does tiot appear. 2 Keb. 521. pi. 16. S. C. And per
Cur. it being to be on due Examination before a Juftice of Peace, it Ihall not be by Jury.
16. A Difpute arofe at a Horfe-Race, 'whether B. -was the Owner offtich
a Horfe. B. gave Bond to make it appear to C. and D. within 3 Months'^
that he was the Owner. Refolved, that when the Parties have agreed
particularly in what manner it Ihali be made appear, and before what
Perfons the Matter fhall be fo determin'd, and not by Trial in the
Aftion, or otherwife, as it fliould be if the Condition had been general
to make it appear. 3 Lev. 240. Mich, i Jac. 2. C. B. Beayne v.
Beal.
17. Deht on a Bond dated 23 Jtigiifl^ condition'd to pay 10 s. for every
2.0 s. ivhich the Plaintiff Jhall by [tifficient Proof make appear to be o'wing to
him from J. K. and to pay one half oi it on the 25 Day of November follff:iij-
ing. The Delendant pleaded, Ihat the Plainti'ff did not make it appear
that J. K. ozved him any Aloney. The Plaintiff replied.^ That before the
faid 25 Day of November he and the faid J. K. accounted, -who then ac~
hwjckdged that he owed the Plaintiff 310/, Upon Demurrer to this Re-
plication it was objected, that the Proof ought to have been by Jury,
■which is the only Proof the Law takes notice of. But it was anfwer'd,
that a judicial Proof could not be intended by the Parties, by reafon of
the Shortnefs of theTime.^ and confequently other Proof mull necelfarilv
be intended. And Judgment was given per tot. Cur. for the PlaintilK
Lutw. 663. Pafch. 9 W. 3. Ladd v. Garrod.
See Inquiry fH. a) TfiaL In what Cafes it fhall be hy Inqnefl: of
of Damages ^ '' ^^. ,. , -^ 1 J J
at Tit. Da- Ofpce^ and in what not.
mages.
Br. Brief de I-T-JI5 Dower, tf tljC Tenant comes at the Grand Cape, and fays that
Enquire &c. J^_ he has been always ready tO tCUtlCr ^OUlCt, and the other takes
pi. is. cites iflue upon Xt.^ upon which Seilin of the Land is prefently awarded i flit
^^E 3. ac- ;j„qijgff Qf £)ffjj;j {^j^iK „Qt j,;, aUJatneD to inquire of Damages, \m.
tljCP fijfili be inquir'd by thelnqueft which isto try thelifue. 22(g+3.
15. aouDgcD*
2. JiU an Action, if ije in Reverfion prays to be refceived upon De-
fault of the Tenant, and the Refceipt is counter-pleaded, upon which
thev are at Iflue, auU It IS found at the Nili Prius againft him in Re-
veriion, by uiljicl) lunamcnt is to be gilien againft tlje tenant upon
ijijs Default ; I'ct tijc lame Jnci'icll uiljiclj tvicD tlje jnue map tax the
Damages againlt the Tenant. 39 C» 3- S. b« CBUt tljat It i.S bUt 31tt^
quett of £)fEiice a.s to tljiso
3. The liiue oi Tout temps priji cj tincore eji iTiall be tried by Jury upon
Ilfue join'd, and not upon Writ of Enquiry of Damages. Br. Triails,
pi. 132. cites 34 E. 3. and Fitzh. Enquell 59.
4. Where Iffm is tried in ^uare iwpedit, and the Plenarty is net in-
quired, or who lafl prefntcd Sac this can't be inquired after Ex oiilcio ■,
per Hank, and Attaint does not lie ^ Qtiod non negatur. Br. Enquclt,-
p\. 44. cites 1 1 H. 4. 79, 80.
(11. a. 2)
Trial.
19
(H.a, 2) ABtoiis\ vAi2X2XZ* Local or rranfno}y. \^f^t^
was laid in
the Place
\x^''^T Anantia Chart te may be brought in any Cotint)\ if the Deed vhzr&h was
VV bears not Date in a Place certain. Well's Svmb. S. 107. really done,
■ . ' 'r- J ' > and there-
cues 31 £.3. f„,^ th„
. written Cm-
traBs bore Date at a certain Place, and the Trefpajfes on Land were in their own Nature Local, and
the Decenna was rerponfible for the Appearance of the Parties within their Diftrifts ; but when the
Cuflomcf Decemiary began to wear oft, Alen could go from Place to Place, and the Kinj^'s Writ iJued
,to any Place where the Defendant refided ; from thence they began not to date their Contracts at any
Place, that fo they might luc them at what Place they plealed ; for before the Capias, the Proccfs by At-
tachment and Difiyefs cculd be only executed where lis Goods nvere, and this begot the DifiinHion betvieen
I'rarji^ory ,ttid Local Jciions ; for the former related to Goods and Chatties, and follow 'd the Debtor
wheveve'r he could be found, but the latter related to Lands and Tenements ; and fo the Procefs was ge-
neral, and on the Lands, tho in Trefpafs Vi & Armis the Procefs was on the Perfon, but created no
Inconvenience, becaufe it was an A<S:ion that was generally between Neighbours, and the Perfon had
no Occafion for a Writ into a foreign County in order to find the Defendant.
In the Tranfitory Adtions the Plaintiff had Liberty to chufe his Venue, being fuppofed to lay it
v.hcre the Fact was done, and that it was done in the County where the Writ was brouo-ht; but if the
"Writ followed him into foreign County, he having fled from the Place where the Fadt was done the
Plainti.*^' wa- at Liberty to chufe from what Vicinity the Pares fhould be fammon'd.
But the Defendant could not by his Plea after the Venue, unlefs the Matter pleaded was local.
The Kcafon of the Diltringas was, that where the Decenna's were broken, where People were ob-
liged to anfwer locally, the Plaintiff was neccilitated to feek the Defendant, and to fummon or attach
him in the County where he refided, and the County was put into the Margin ; the Record begins that
the Defendant was fummon'd or attach'd, as in that County ; and this Notion feems to bcborrow'd from
the Canonills, where the Rule is, Qiiod Attor debet feijui forum Rei.
Now fince the Law obliged the Plaintift' to feek the proper Forum Rei, the Defendant could not al-
ter the Judicature of the Fact by any Plea that could be determined in that Place, becaufe fuch Plea
was not Alieni Fori ; and it would be hard that the _ Plaintiff, who was forced to leek the Defendant,
iliould go ellVhere to have the Caufe determined ; but where the Piea of the Deil-ndant was local, fo
.that the Place made Part of the IlTue, there the Place of its own Nature was Alieni Fori ; and there-
fore to prevent a Failure of Juftice, the Venire was carried into a foreign County.
But if the Plaintift's Declaration be for a Matter local, where he cannot follow the Perfon of the
Defendant, as in Q.uare Claufum fregit, there if the Defendant could net be found in the Countv
where the Trefpafs was committed, they could not follow the Perfon of the Defendant, and (b they had
only the Procefs of Outlawry ; but as thePlaintilf was obliged to follow the Defendant, fo the Plain-
.tilf had his Choice from what Vicinage within the County he would try his Caufe ; for 'if he had been
obliged to lay it in the Neighbourhood of the Defendant, where he was fumn-on'd, the Defendant
might have had Influence enough to obftruft Juftice. G. Hift. of C. B. 6S, 69, 70.
I li'arravtia Charts may be brought in another County than were the Land is ; Per Thorp ; but Brooke
fays, .^«<cre inde : For by F. N. B. the Plaintiti' fhall recover in Value and Damages ; and therefore it
JTeems that it fliall be brought in the County where the Land is. Br. Lieu.pl. 10. cites 40 E. 5. 4.
2. Ward cf the Body only was awarded well brought in another County
than were the Land is ; but the contrary leems to be Law, and contra
21 E. 3. 42. Br. Lieu. pi. lo. cites 40 E. 3. 4.
3. And it was faid here that Account agalnft the Bailiff of a Manor^
fliall be brought in the fame County where the Manor is. Br. Lieu,
pi. 10. cites 40 E. 3. 4.
4. But Detinue may be brought in the County where the Detinue is,
as well as in the County where the Bailment was. Br. Lieu. pi. 10. cites
4oE- 3- 4- ...
5. Bill of Z)//?!?/? was brought in the Exchequer, againfi the Sheriff .^^]f^%^!'SJl'^^^
upon his Account there, for embezzling of a /A rit of Exigent agauijl ^^^^ poft in
four., "where three render'' d themfelves^ and the fourth was outlaw' d, and the Scaccario fnr
Sheriff embezzled the ^Vrit, and it was brought in Middkfex in Scaccario., PAccoirpt le
•where the Delrjery and the Embezzlement were at H. in the County of B. and j^'!:?.""'^ ^'^"^
yet good ; for the Difceit is to the Court, and it feems that the Matter ^ '^ -^
is not local i and the Sheriff faid that he delivered it to VV. N. to bring it
to Weftminlter, who was robb'd of it by the W'ay by one of the three
jn the Writ ■■, and becaufe the Sheriff himfelf ought to have kept it in
his
8o Trial ________
his Cultody, therefore Per judicium, no Plea ; and the Plaintift'recover'd
]^amac^es lo 1. and that the Defendant be committed to Prifbn to make
Fine to the King, and gree to the Party. Br. Bille, pi. 22 cites 41 AIL
1
The Lnw 6 6 R. 2. Stat. \. 2. Enafts that, If in Writs of Debt, Accompt, and
liaving let- fi-,c like, it Jhall be declared that the Contra^ thereof was made in another
tied the Di- Qg^^jjjy ffj^f, IS coiita'pi'd ill the original Writ, ftich l^ritpall be abated.
cal ard tranfitorv Aftions, it feems that towards t!ie 6 R, 2. it wns abufcd to Vexation,; for Plaintiffs
•would lay their Actions tar from the Place v. here the Facl: was done, (b that the Defendant was necef-
{itatcd to carry his V'S'itnell'es into that County, liow far fo ever from that Place where the Fadt was
done ; to prevent which, this Statute was n-ade. G Hift of C. B. 72.
This Statute was intended to haveccnfincd all Aftions to their properCounties, butt hen it would have
created sreater Milchicf than it was dcfign'd to have prevented, if a Plaintiff could not have follow'd
]iis Debtor into another County ; but the Statute is fo worded, that it only provides that the County
fliou'.d afi-ee w ith the W rit in the Place which did not make the Tranfitory Actions Local ; but to ob-
viate the Inconvenience, the Judges conftrued it to impower them to change the Venue ; and therefore
in all Cafes, unlefs of Specialty, the Court will chai^ge the Venue to the Place where the FaCf was done ;
and therefore they Non- Pros the PJaintift in fuch Cafes, unlefs he gives feme Evidence of the Fadt
■^rithin the County where the Writ is brought •, and thefe Rules are good fince they tend in Effect to
abate the Writ, ' according to the Statute. G. Hifi. C. B. ;2. 73. S. P. in the very Identical
Words in the Mew Abridgment, q<;. _
But in Cafes of Specialty, they did not change the Venue, becaufe if the Contract was not dated at a
particular Place, it v- as pre'lumed fo to be adniitied.that it might charge the Defendant in any Place _; and
{he very Form of Moverint Univerli, fecms to be calculated, that it flx^uld be taken as a Contradt in all
Places whatfoever ; ana therefore it Hiould takeaway one of the Benefits of his Specialty to confine
him to fue it in the County where it was executed. G. Hi(l. of C. B. 7;.
Debt in Lciidcn, xhe IFrit was Precipe Jlh.'tt! S/trcfi Jih.-r};i iit tie Qitv.t) of Hertford; and becaufe
County is expref'-'d in the Writ ard Count, therefore it fhall be brought in the County of Hertford,
and therefore fhall abate ; for it was dated in Demo ticjlra cafiltilari &c. which fhall be intended ulere tie
Jhky ts, but notwiihlhii-.dir.g thofc VS'ords (Dated in Demo noftra capitulari) ytt if the County had net
ieen exprejfed in the Writ leiore it mis^ht haze been intended that the Jhbey "u-ai in. a>:cther County, .ind if the
County had not been in the Writ, the Defendant could not have pleaded to the Writ that the Obligation
Kvas made in another County, and yet the Statute 6 P. 2. cap. 2. fays diredtly that he may have this
Plea ; ^t.cre, for it is not put in Ure. Br. Lieu. pi. 63. cites 21 E. 4 26.
If a Bond bears Date * at large, viz at no Place certam, he may bring Aftion in England where he
will. And by feveral, before this Statute a Man mifht haie brought Debt in London, and declared upon a
Bond made at Tork. Br. Obligation, pi. 60. cites 21 E., 4. 74. Br. Lieu &c, pi. 65. cites S. C. and
favs it feems to be there, that it fhall be intended to be made where he alleges it ; for before this [Sta-
tute] the Aftion might be brought in one County, and declare upon the Obligation made in another
County.
♦ Br. Lieu, p I. S7. cites 1 3 H. 7. 1 7. S. P.
Br. Lieu &c. 7. Debt by him who recovered the Land in Writ of Entry and Damages
pi. 29. cites to 10 I. againll the fame Defendant, and the Land was in the County of S.
S-C.and that ^^^ ^f^^.^.g ^,^^ ^^^ j^ ,.^^ brought of the Land, and the Ad ion of Debt was
at Yor'k^'^^ brought in Middkfex, where the fudgmcnt was given of the Damages, and
Debt lies not yet the Writ awarded good ; Contra tn Scire Facias to execute the Judg-
jn Bank; inent ; for there the Tenant ihall be warn'd upon the Land, S Habere fa-
Per Brown, cias feifinam (hail be in the fame County where the Land is ; but in Debt
of ThirnT^'^he Summons lliall be to the Perfon. Br. Brief, pi. 190. cites 22 H.
for Doubt 6. 38.
of double E.-^ecution.
If a Man reocvers Damape or Debt in C. B. upon Trcfpafs cr Obligation laid in any other Comity, if the
Plaintiff will bi ing an Adtinn of Debt per tie Sum recoier'd, he niuji lay it in the Coui.ty of jh'iddlefex, and
rot in the County where the firfl: Aftion arofe ; and the Reafon is apparent, for he tnufi accottnt upon the
Record, by which it appears to the Coin-t, that the Caufe of this Adtion arifcs in Middleftx, where
Judgment was given, and the Record for that Trefpafs that was done ; and that Obligation that was
made in another County i.s not now the Caufe of this Adtion, but the Judgment, which has made No-
vationem contradtus which begins there; Per Hobart Ch. J. Hob. 196. pi. 248. in Cale of Hall v.
Winckfield. •
OiConffiracy g. In Ccnfpiracy, the Writ did not make Mention in what County the Place
'f *r"^°"k^ '^'^•^ where he was acquitted, but that Legitimo mcdo acquictatus fait apud D
tionXcsnot &^- ^"'^ Y^^ well 5 lor it Ihall be intended to be in the County where tht
lie in the Adion IS brought, if the contrary be not ihevvn. Er. Lieu. pi. 8. cite;i
Co\inty of 2 f H. 6. 46.
Bedford, but ^-^ '^
'cnly in the County of Fucks; for the Re'covery in one County is no Gar agair.fta New Actior; thereof
brought in another Couutv. Br. Li;u, pi. Sv citw 13 H. -. 1-.
' If
de
Trial. 8 1
If there is a Confpiracy in one County, and an Indidtment in another, the Adtion may be bronght in
either ; Per Holt Ch. J. 1 1 Mod. 257. pi. 12. Mich. S Ann. B. R. Leveridge v. Hoskins.
9. -fj, Pritcipe quod reddat in D. he ftall not fhew that D. is in the
fame County. Br. Lieu. pi. 8. cites 3^ H. 6. 46.
10. Jihi 'trcfpafs ift D. Yikevt-'ik without faying in D. in Canitatu tuo,
quod nota, and this feems to be tn Writ or Count ; for thofe fhall be
brought in the fame County where the Wfit is, or where the Aft was
done. But Contra in Bar, Title or Pleading ; for there he ought tojhew the
Place and County; note the Diverlity. Br. Lieu, pi. 8. cites 35 H.
6. 46.
11. Error becaufe where IV. was in Execution upon a Statute Staple in
London in Ward of the Sheriff of L. they permitted htm to efcape to S. in
Surrey, and theJBion was brought in London, and they were acllfue, and
Joundfor the Plaintiff, and he recover'd ; by which the Defendant brought
W'ric of Error, becaufe the Ad ton ought to have been brought in Surrey and
not in London ; and by the bell Opinion it is Error. Br. Error, pi. 82.
cites 15 E. 4. 18.
12. Trefpafs (^ Battery or Goods carried away &Te not local, and there- Br. Jurors,
fore may be brought in another County than where the Trelpals was S'" J'' ^""
done. Br. Lieu, pi. 65. cites 18 E. 4. i. g; }~~'
pl. 104. s. p.
cites M. 2 M. I.- Battery ai^d Goods carried away are determined to be Trefpafs Tranfitory and not
Local, and therefore the Adhon thereof may be brought in any Place ; for the Place is not traverfable
there. Br. Lieu, pl. 65. cites 18 E. 4. i. & 4; E. 5. 25 . & S H. 6. 96. & 9 E. 4. z6, %-.. Jnd of
Maihem, no Regard was to the Place. Ibid, cites 41 Aff 21, But Trefpafs of 'frees cut, or Grafs
irampled, is local, and muft be brought in the proper County. Br. Attaint, pl. 104. cites M. 2. Ma. i.
13. If I kafe Land to W. N. in the County of Bucks, rendring Rent, I Seepl. 19.
cannot bring Writ of Debt thereof in the County of Bedford j for the ?? ^"'^ ^^^
Defendant may traverfe the Leafe made there. £r. Lieu, pl. 87. cites °^'^^'
13 H. 7. 17.
14. The Plaintiff fliewed the Place of the Receipt of Money on an uftirious
Coiifraff, and not the Place of the Contraif i and yet had Judgment for
the Queen, without any Exception to it before Judgment, or Error
after j for the Contracf is hut Inducement to the Receipt, and it ftoall be
tried where the Taking was. i Leon. 97. pl. i2j'. in Cafe of Sir Wolla-
llon Dixie, cited Per Popham Attorney General, as 20 Eliz. one Bird's
Cafe.
15. faking of Rents of Lands in one County, may be laid in another ;
butr^^/«^ IJfues and Profits of Lands, muft be laid where the Land lies.
3 Le. 238. pl. 327. Mich. 32 & 33 Eliz,. Per tot. Cur. in the Exchequer,
in Owen Morgan's Cafe.
16. Debt for Arrearages cf Rent-charge by Executor of Grantee, and
afcer Death of the Grantor, muft be laid where the Land is j lor the
Perfon is chargeable only in Refpecl of the Poireffion. Hob. 37. pi.
42. Pine V. the Countefs of Leicetter.
17. Regularly it is true, that every Affion tmifi be brought in that County
where by the Record it appears the Catife of Ad ton began, which foiiietimes
may admit an Election ; As where the Admiral Court iits in Middlefex,
and fummons a Party in Eflex, the Aftion upon the Statute may be in
either of both Counties. And if a Man recover a Debt in the Court of
Norwich, and will bring his Aftion of Debt upon that Record in C. B.
he muft lay his A6lion in Norwich j Pet Hobart Ch. J. Hob. 196. pl.
248. in Cafe of Hall v. Winckfleld.
18. Devifee of the Reverjion of Lands in Southwark, brought Z>f^; in Win. 26.
London for Rent Arrear. Jones took Exception to the Action's being ^ ^- l^""^
brought in London, whereas it ought to be brought in Southwark, be- ^_ ^' "_
caule being brought by the Devifee of the Reverlion, it is brought upon ibid ^9 s C-
the Privity of Eltate, and io not well brought. And uf tl;£ finie Opi- and s.^'.
Y nioa
b2 Trial.
moved by nion were NVinch and Hutton J. abfente Hobarc in Chancery i and
Jones J. and T^^jj^PPent accordingly. Jo. 43, pi. 2. Mich. £i Jac. in C. B. Tie-
(Hol:::?be-iearnev.Cleabrooke.
that this was a Millrial.' Hutt. 68. S. C. And it is faid there, that becaufe it appears to the Court,
that this Attion is founded upon a Contract in Law, therefore it ought to be brought in Surry.
c Roll. Rep.^,8i. 2Jrfa b. CltabVOOllf, S. C. adjudged. And Jones J. faid it was fo refclvcd in the
Cafe of iiUimble I). CSiO^f, in B. R. — Jo_ 44. lays i: was fo adjudged per tor. Cur. in a Writ of
Error VJfcU. 6 Car. fn Sir Stephen Bourne's Cafe.
Godb. 585. 19. A Leafe in London was made of Lands in Middkftx. LefTee all
Pj- .47 V flgns ; Leilur dies. The Admimjlrator of the Lejfor brought Debt in Lon-
^aidi 5 ar. ^^^^ agalnji the AJJtinee. The Queftion was if it was well brought. Jones
^mitlj's f'li'^j J^hat where Debt is brought iipn the Contrad^ it may be brought
Cafe, S.C. any where. But where it is brought upon the Privity of the Contraff^ as
fays the ^^j-g J,- jg^ \^ jiiuft be brought in the Place only where the Land lies;
^•ei?of Si- ^"d that this had been adjudged in B. K. and in C. B. And the Court
nion that ordered the Plaintift to pay Coils, and then he might amend his Decla-
the Action ration. Lat. 197. Hill 2 Car. Smith v. Wave.
■was not well
brought, hut ought to have been brought in Middlcfex. — S.C. cited D.ajo.b pi. 25. in Marg.
Action of Debt for Rent againfi an Affignm cf a T'erm, is local, and fo is an Action of Covenant againft
fuch Affignee, becaufe is is founded en the Frarty of EJlate. And tho' in the Principal Cale, the Leafe
ivas of Lands in Ireland, and the Rent v/as covenanted to be paid in London, yet this does not alter the
Cafe. Carth. iSi. Hill 2 & q W & M B. R. Barker v. Darner. 5 Mod. 556. S. C. according-
ly. 1 Salk So. pi. I. S. C. accordingly. Show. 191. S. C. argued. And Ibid. 19;. Arg.
agrees that Debt againll Aflignee is local, l-ecaufe it refults purely from the Privity of Eftate, and arifes
only from the Perception of the Profits. S. C. cited 6 Mod. 194. in the Cafe of WX3.y fa. j@allp ; and
is there faid by Holt Ch. J. to be good Law. S. P. For the Etlate is local. But it is otherivife where
it hjctmdedcn a Privity of Contract, which is tranfitory. _Js in Debt for Rent by Lejfor ; for that may be
where the Land lies not. And if a foreign IlTue which is local, fliould happen, it may be tried where
the Aftion is laid ; and for that Purpofe the Plaintiff may enter a Suggeftion on the Roll, that fuch a
Place in fuch a County is next adjacent; and it may be cried in B. R. by a Jury from that Place, ac-
cording to the Laws of that Country, which may be given in Evidence upon Nil debet pleaded. Per
Cur. z Salk. 651. pi. 51. Trin. 5 Ann. B. R. Way v. Yally.
S. P. By 20. If Debt be brought by Grantee of the Rtverjion^ it muft be where
HV"°?' . the Land is, becaufe it is brought on the Privity of Eftate ; Per Tones T.
Tones r z Godb. 385. in Smith's Cafe.
Roll. Rep.
385. 'Mich. 21 Jac' B. R. in Cafe of Trea v. Cleabrcke.
AfTignee cf the Reverjion of Lands ir. the County oi Somerfei, tcpon a Leafe thereof made in London for 2
Years rendring Rent, brought an Attion oi Debt in Lornhn for the Rent arrear, after the Jffignment and
yittornmeyit . AH the Court conceived, that feeing by the Affignraent of the Reverfion and Attornment,
the Privity of Contract is gone, and the Rent follows the L.ind, the Plaintiff being only intitled to it
bv Reafon of his having the Land, the Aftion fhould be brought in that County only ,where it lies.
And therefore Judgment was reverfed. Cro. C. 1S5. Pafch. 6 Car. B. R. Bord v.Cudmore.
Jffigtiee of Reverjion fliall have Cozenr.nt againji Lejfee for the Rent in a foreign County. But other-
•wife it is of Debt ; for the Statute of H. S. puts the Affignee in the fime Plight as the LefTor himfelf
was, as to Aftion of Covenant. And it is clear that Leflor might have brought his Aftion where he
■picafed ; for the Statute made it alTignabic. But it feeras Debt lo brought in a foreign County had been
ill, becaufe it was annexed to the Reverfion by the Common Law, and to be brought in the County
where the Land lay, and not elfewhere, without a perfonal Contraft ; but the Realbn of a perfonal
Contraft is not extended to the Cafe of Covenant, which by the Statute is transferr'd as amply as the
King himfelf might transfer any Chofe en Adtion. And Judgment for the Plaintiff Sid. 401. pi. S.
Hill. 2n8i: 21 Car. 2. B. R. Thursby and Hall v. Plant. ^Lev. 259. S. C. accordingly. Saund.
2-y. S.C. Vent. 10. jflvirCiCfa. il[aU, feemstobe S.C. but adjornatur, becaufe the Court was
not full.
It was agreed by all, that the Grantee of a Rei/erjion may maintain an Action of Covenant againft the
Lejfee hitnfelf, as well in the County where the Demife was m.ide, as in the County where the Lands-
lie, becaufe the Privity of Contract between the Leflor and r.^e(fee, is transferr'd to the Grantee of the
Reierjion by the Statute of H. S &c. Carth. 1 85. in Cafe of Barker v Darner. S. P. Per Holt
Ch. J. but the Affignee of LefTee remains at Common Law. Shov/. 199. S.C.
Sid. 254 pi. 21. Debt upon OW/c-^iT/o;; at London^ conditioned that if fuch Ship does
t;7. S.C. the not mifcarry in fuch Voyage^ to pay &c. The Defendant f leaded, that the
■^leldedTiiat ^^'P * ^"'f''''^'^"'^^^ ^^ Falmcuth in Com. Cornwall. The Plaintiff demurred,
t^hrship"*^ and Judgment tor him ^ for all this Matter is tranfitory, and the Plain-
"* rcturn'd to tiif
Trial. g Q
tiff has Eleftion to bring his Aftion in which County hepleafej and Falmouth,
the Defendant is obliged to plead all tranfitory Matters, as this is, in the ^^^^^ ^^'^^'
fame County; ior iftbc Sbipperip in the one County, or tn the other, it is the^o^'"'
all one. But if he hath local Matter to plead, he may plead this in the held, That
County where the local Matter arifes, and by this bring the Plain tiff to tho'the an-
trv it in another County i otherwife not. Lev. 149. Mich. 16 Car 2 '^'^"'^ ^ooVs
B: R. Collins V. Sutton. " defendant''"
the Venue, yet the Praaice and Law now is, that he cannot do it in tranfitoi-y Adions. And tl^^
adjudged the Plea ill. But where the Adtion is not tranfitory, the Defendant may plead foreifn Plea-
but then it ought to be fwoin, or otherwife it fhall not be received. " *
22. Debt for Kent lies againft Executor in otfier County than where Lev. 12;.
the Land lies, if it be in the Dctinet only : Otherwife if ic'be in Debet y '^ C. bur
Dettnet, as ic ought to be, if he has not affigned. Reiblved. Sid. 266. ^' ^' "^""^
pi. 17. Trin. 17 Car. 2. E. R. Helliar v. Casbard. ^ Where
in the Debet & Detiner, v\z. for Rent incurr'd in the Executor's Time, it muft be where the L;md
lies ; but where in the Dctinet only it may be brought where the Leafc was made, becaufe it is for Ar-
rears in the Teftator's Lifc-tim-. Agreed per Cur. Vent. 256. Hill. 24 & 25 Car. 2. B. R. Anon. .
S. P. And where it is in the Debet &: Detinet, he is charged as Aflignee upon the Privity of Eftate
and not on the Privity of Contraft ; and therefore mull be brought whe.e the Land lies, 2 Lev. So*
Hill. 24 & 25 Car. 2. B. R. feems to be S. C. Cormel v. Lillet.
23. Where the Matter confifts of two Parts in feveral Counties, asIfaCaufe
Sale in London, und Delroerj/ in Kent, the Plaintiff Ihall have his Election °f Adtion
Per Cur. Vent. 344. Mich. 31 Car. 2. B. R. Anon. f"" P^"^/
*'" • "^ in one
c^ -
partly in another, it is in Eleftion of the Plaintiffto lay it in which County he pleafes; as if a Country
Chapman fends a Letter to a Trade/man in London to fend him Goods into the Cetmtry, he delivers them ac-
cordingly, and they come to the Chapman's Hands; there the Caurc of .4H!on arifes in both Counties
he may lay them in either. Per Holt. 12 Mod. 76. Trin. 7 W. & M. Anon. *
24. Deht upon a Record is local, and cannot be altered ; But if one
pve a Record tn Evidence, it is not local. Per Pemberton Ch. J. Skin.
44. Palch. 34 Car. 2. B. R. in Cafe of Lord Shafcsbury v. Graham.
25. Covenant &c. brought in London, upon Articles of Agreement, This Cafe
wherein R. P. Vuar of S. covenanted to permit the Defendant to receive to Y^* '^'^^'*
his own Ufe, all Duties of the [aid Vicarage for one Tear, to be due at a/r|' ^"h
Michaelmas following &c. and the Defendant agreed to paj the PJaintiff th^Court
150 /. in Lieu of the faid Tithes, and avers Performance on his Part, but becaufe the
that the Defendant had not pxid the 150 /. The Defendant pleaded in Bar, ^^^'^ '^^^
that R. P. died at S. before Adichaelmas &c. And upon a Demurrer, Ex- Date^r""
ception was taken, becaufe the Defendant has pleaded a tranJitory Thing, particular ''^
viz.. the Death of R. P. at S. whereas the Aftion is brought in London. Place. Ld.
But the Plaintiff had Judgment by the Opinion of the whole Court ^^ym. Rep.
Lutw. 343. Trin. s W. & M. Pyke v. Puilein. f W^f"''-
^ . in Cafe 'of
Ernngton v. Thompfon.
26. In tranfitory Aftions, as for Battery and Taking of Goods, the If the fpe-
Plaintiff may allege the Tort done, not only in other /'///, but alio in ''•'' -*^"««r
other County i and the Place cannot be traverfed without fpecial Caufe of ^^ ^^'1 .">
Jufiification, which extends to fome certain Place ; as in Cale of a Con- Counry'^e
liable arrefting a Man for Breach of Peace, in Atlion againft him, he may/a/y^, the
traverfe the County, but then he muft traverfe all other Places,' except P'^intiiimay-
the Vill where he 'is Conftable. The fame in taking of Goods. But ^■^^i'"-''" his
where the Caufe of Jufiification is not reftrained to any certain Place, i. e. t,ti°,fe xhc
fo local, that it cannot be alleged in other Vill ; Then, tho' the A6lion fpeci.il ALt-
is brought in a foreign County, he ought to allege his jufiification in the ^'^^' alleged
County where the Aclion is brought ; As if a Man is le:it in the County of^'' ''"^ ^^'-■-
Midd/c-
84-
Trial.
fendant; and Middkfcs, and he brings his ABion in the County of Bucks, the Defen-
io a Tra- ^^^^^ cannot plead that the Plaintiff made Affault on him in the County
Cafcm'iVbe of Middlefex, and traveife the County of Bucks, but he fhall plead
upon a Tra- his JulHHcation in the County of Bucks, becaufe theCaufe of his Juftifi-
verie when cation is good in any Places and fo it is in Cafe ci Bailment of Goods, and
Falfity is other Caies for tranlitotv Things. Per tot. Car. 2 Lutw. 1437. Pafch.
rhfp'indff 8 \V. 3. C. B. Searle v. Darlord.
of the Be- * .i ,
nefit which the Law gives him. 2 Lutw. 143S. in S. C cites Poph. loi. Paramour v. Vcrrolcl, And
Jilo. 1 50. S. C.
27. Local AB ion is not to be laid any where, but where it did arife,
y\ khouz Con/en ( of Parties. Per Cur. 12 Mod. 399. Pafch. 12 VV. 3.
Anon.
a Salk. 6(^9. 28. In Cafe for afalfc Return to a Mandai/ms, for reflorin^ to an Office
pi. 5. %i)i ^.j ^[^g Corporation of O.xjord. The Aftion being laid in Suffolk, it was
fiit'oBaror '""oved at the Bar to have it laid in another County, topreferve the Peace
ot ilP^cforD ; and Quiet of SuHblk. Per Cur. This Aftion beiug a local one, muft in
but it fhould ijs Nature be brought either in Stiff oik, where the falfe Return was made^
^^i^'^'s°C ^ or Middlefex, where tt appear'' d on Record; and the Plaintiff has his Elec-
^ " ■ ■ tion by Law of the 2 Counries, and the Court cannot lay it without hb
Confent in either of the 2 Counties ; for it conliits of 2 Faljities, viz. of
the Faff, and of returning it on Record. It was agreed, that in tranlitory
Aftions the Plaintiff has not a peremptory Election ; but the Defendant
might transfer it to the right County, unlefs the Plaintiff would be
bound by Rule to give material Evidence of fome Fa£t in the County
where he laid it. 12 Mod. 515. Pafch. 13 \V. 3. The Corporation of
Orford's Cafe.
hating of a 2S). If a Bond bear Date at a Place certain, the Action thereupon mufl
Bondxo be be laid there; Per Holt Ch. J. 6 Mod. 195. in Cafe of VV^ay v.
at It certain -w- 1 1
Place, makes ^ ^^V'-
it local ; and
fhould the City of London hold Plea, if it were dated at York It would be erroneous. But the makin<;
of a Bond <zvifhcut Dating, makes it tranfitory ; and may be laid to be made all over England. 1 1 Mod.
51. pi. 21. Pafch. 4 Ann. B. R. Anon.
30. In Cafe the Plaintiff declares. That he was poffefs'd of a Farm
and a River, apud D. in Com. Devon i and that the Defendant, to damage
the Plaintiff's Farm and River, did at a Place, 'vocat'' Davys's Clofe m
Com. Dorfet, dig 2 Ditches, and diverted the Plaintiff's Water out of the
Rivers, and damaged the Meadows ; but does not fay fer quod. An Ex-
ception was taken, that the A6tion is brought in a wrong County i for
it fhould be brought where the Trenches were dug. But per Holt &c.
'tis good ; tor here is Caufe of A£lion that arifcs m both Counties, and
the Action may be brought in either. 11 Mod. 257. pi. 12. Mich. 8
-\nn. B. R. Leveridge v. Hoskins.
31. If a Nufance be erefted in one County to the Damage of a Man in
another, the Alfife muft be brought in conjinio Comitatuutn. 11 Mod. 257.
pi. 12. Leveridge v. Hoskins.
* 6 IMod. 32. All real and mix' d Ail ions, as TVaffe, * EjeBment &c. muft be laid
2
2. perCur. jjj the fame County where the Land lies, for they are local Actions ^ and
B K^ Aiion' ^^ ^^^ TrelpafJes of Quare Claufumfregtt, and the fame Places where the
Wrong was done muft be fee down in the Declaration. L. P. R, 16.
Tit. Aftions.
33. But all perfonal Anions, and all tranfitory Aftions, as Debt, De-
tinue., Affault, Annuity, Account &c. may be brought in any County, and
laid in any Place where the Plaintiff pleales, except it be againft an Offi-
cer. L. P. R. 17. Tit. Aftions, cites Co. L. 282, 283.
34. Where an Action is brought agatnjl a Coiffable for a Thing done
by him by virtue of his Oflice, by the Statute of 21 Jac, 12, it mull be
brough:
Trial. 85
brought againll him in the County where he is Conftable, and the Fa6t
was done, and not elfewhere. L. P. R. 23. Tit. A6lions.
35. Sherirt' took a Bail-Bond in Snny, upon an Arreft 7i2ade there^ and
the PlaintiiF brought Debt upon the Bond in London, and laid the
Alignment there. Exception was taken that the Jffignment being tran-
fico'ry Matter, and not local, ought to have been laid at S. in Surry,
where the Bond was taken. But per tot. Cur. the Plaintiff may lay the
Alfignment in London if he pleafe ; and Judgment tor the Plaintiff z
Ld.Ivaym. 1455. Hill. 13 Geo. B. R, Gregfon v. Heather.
(H. a. 3) Place. /;/ <udhat Cou?ity the A£i:ion may be
brought, fwhsre there arefeveraL
i. TFa Man grants a Rent out of his Land in the County of M. andBut^vihtrt
_ charges Land in the County of E. to the Dijlrefs^ the Aflife Ihall be ^ ^^"' "^^^
brought in the County of M. where the Land lies, out of which thefr^"j^^°^'^
Rent was granted. Br. Alfife, pi. 151. cites 10 AIT 4. </;wr/e Coun*
ties, and
JJp/e brought in one Counly, the Writ was abated ; for in this Cafe Aflife cannot lie. Ibid.
z. ^uare Infpcdit of a PreDend wa.s brought in the County where the
Cathedral Church was, and not where the Manor was, which made
the Prebend and Body of the Prebend i and well by Award. Br. Lieu,
pi. 24 cites 21 E. 5. 5.
3. Ward of the Body in the County of D. where z\\Q Land Jay in the The Plain-
County of 6". and therefore, upon Exception taken, the VV^rit was abated tiffbroujht
by Award. Quod nota. Br. Lieu, pi. 26. cites 21 E. 3. 42. K^ilhnTcnt
of his Ward,
in the County of York, and fuppofed by his Writ that it was done in the County of Derby, and that
the Defendant carried the Ward to York ; and counted that the Tenancy and the Seigniory by Kniehc
Service was in the County of Derby. The Ravifhment was travevfed, and found for the Plaintiff, and
Judgment for him. But it was alTigned for Error, that the Original fhould have been brought in tlje
County of Derby ivhere the Tort was done. And fo was the Opinion of the Court. D. 285 . pl. 58. Pafch.
izEliz. Sir Tho. Fitiherbert's Cafe.
4. Scire Facias upon a Recognizance in Chancery brought there, and they If Scire Fa-
were at IJfue upon Rekafe, and the Record^ the AtJion, and the Pro- '^"^ ?*■ ^*"
cefsfent into B. R. to try ; and there at theNijiPrius the Plaintiff' was non- ^^^^^ckv^^^
fuited, and brought another Scire Facias in B. R. And Exception taken Mged in Un-
that it ought to be taken in Chancery, where the Recognizance was ac- n'"" before «
knowledged, & non Allocatur ; for where the Record remains, there X"-^'"^ "/
the A£i:ion Ihall be brought, for the Record itfelf was fent there. Con- ^..fft^"^
tra if the Tenor of the Record only had been fent. Br. Lieu, pi. 36. cites Banco, and
24 E. 3- 73" ''-^''^ '"'
grofs'J, Scire
Facias fhall be brought thtre, direifted to the Sheriff of London, and not to the Sheriff of Jliddlefexy
where the Bank is ; by all the Prothonotaries of C B. Br. Lieu, pi. S5. cites M-. 5 M. i.
It a Man recovers Jnnuity in C. B. which arifes in the Comity of E. yet the Scire Facias thereupon Jtiall he
always taken in the County of Middlefex, where the Record is ; per Jufticiarios. Br. Litu, pi Oa. cites i3
£.4. iS. _
But of a Fine or Damages recover'd, the Scire Facias fhall be brought in the County where the Land isy
cr where the Damages arofe upoti the Land. Ibid.
But of Recovery of Debt here, which arofe upon a Qntrali at Tork, the Scire Facias fliall be brought
in Middlefex ; per Littleton. Ibid.
Bailv/3S taken before aCornmifpoiier in y'orkpire, and the Recor>:iZ'incr was tratfniHted to a YndgecfC. B.
and made a Record of that Court ; afterwards a Scire Facias was hron^ht aeainft the Bail, directed to tie She-
riff of JJiddlefex. And upon Demurrer it was refolvcd, that the S;;rc Facus wa.s well brought in Mid-
Z dieils,
86 Trial.
dlcfex, and might have been biought m cither of the Counties. 2 Lutw. laSz. Mich. 10 W. 5.
Redman v. Idle.
Br. Lieu, _j, A Man cofifpired at N. in the County of N. to make A. B. Attorney fot
^1-12. cites fois Adverfary^ againfi 'whom the Confpirator brought AJ/ife of Land in the
A ^' '"bid \ County of D. to make him plead by Covin ^ and to lofe the Land &c. And
ir cites" ''the Party brought thereof Writ: of Confpiracy in the County of N.
ac. -where the Confpiracy was, and not where the Lofing was by the palling
Br.Conrpi- jj^ theAlIife, and yet wellj per Judicium. Br. Lieu, pi. 77. cices 42
racy, pi. 6. t?
cttesSX.-t" 3-I4-
S. C. cited ■ ■ ^ ,
rer Cur. - Rep l. b. in ISultftr's Cafe ; for when a ALrtter in cm Couvty is dependant upon Matter in an~
c^her County there the Plaintiff may eleft in which County to brin^ his Aition, unlefs where the De-
fendant, upon the General Iflue pleaded, fhall be prejudiced of his Trial, as he Ihall not be in this
Cafe. .
So of Conrpiracy in one County, by which he is indicted m another County, the Aftion flial! be
brought in the firlt County. Br. Efcape, pi. 36. cites 14 E. 4. 3, Br Lieu, pi. }2. cites S. C.
6. A Man had Land in the County of Kent, by "is^hich he and his Ancef-
tors, and thofe -whofe EJtate ^c. have ttfed to make a Hedge, and to inclofe
the Land in the County of Surrey ; and for the not doing it, the Party grieved
brought Adion upon the Cafe in the County of Surry, where the Land was.
And the Writ awarded good, becaufe nothing is to be recovered but
Damages ; for it is not in the Right as the Writ of Curia CJaudenda is;
and it is a good Plea, that there are Bullies and Furzes, abfque hoc that
there ever was any Hedge there i for if a Hedge never was there, he
cannot repair the Hedge. Br. Lieu, pi. 84 cites 11 R. 2. &Fitzh. Tic.
Afition fur le Cafe 36. And fee Ibid. 37.
7 Eep. 2. b. 7. But if a Surgeon affiimes in London to cure the Plaintiff', and puts con-
in Bulwer's ^^^^y Medicines in Middtcfex, A61ion may be brought in the one County
Cafc^^cites^ ^^ ^^^ ^^^^^^ j[^-j_ ^-^^^^ II R. 2.
defendant has a Plea to give him in either CoUnty. D. 5S. b. pi. 5 3. JMich. 2S H. 8. in Cafe of Gawen
V. Huffey.
8. Writ of Account was brought in the County of N. and afftgii'd the
Receipt in Ncwcajile upon l^yne, which was made a County in itfelf pending
the Writ, and therefore the Writ well brought in the County of North-
umberland by Award. Br. Lieu, pi. 17. cites 2H. 4. 18.
Br. Lieu 9- 1" Difceit, the Defendant for 6 J. covenanted with the Plaintiff' by
&c. pi. 18. Parol to infeqff him of his Land m the County of H. and after infeojfed ano-
cites S.C. ^i^gy. . jind he brought a Writ of Difceit in the County of L. where the
Covenant was made. And perThirne, He ought to have brought it in
the County of H. where the Difceit was. Quaere. Br. Aftion fur le
Cafe, pi. 3 r. cites 3 H. 4. 3.
Br. Lieu 10. I'rcfpafs upon the Cafe againft A. becaufe he had Land in W. in
Sec. pi. 19. fjng County of Efjex, by which he ought to repair a certain Wall upon
citesS.C. Thames, and did not, by which the Land of the Plaintiff was furrounded
in the County of Middleje>i ; and tho' the Damages are to be recovered of
the Lofs in IVliddlefex, and the Aftion is brought in Ellex, the Writ
was awarded good ; tor the Non-jeafance &c. is the Tort &c. Br.
Aftion fur le Cafe, pi. 32. cites 7 H. 4. 8.
Br. Lieu II. Where a Man has Common in one County to he tifed over a Bridge in
pl. 19. cites another County, and the Bridge is broken, AJJife of the Common fhall be in
^- *-"• the County where the Bridge is. Quod conceditur. Br. Aftion fur le
Cafe, pl. 32. cites 7 H. 4. 8. per Rikhil.
Falfe Impri- 12. If a Man is taken in one County, and imprifon'd in another County, he
fonment, for j^^y havc Aftion in the one County or the other; or he may have his Aftiori
Timats"'in "' ^^^ ^"^ Cotinty, [peaking of the Ail in the other County ; per Hank. Bn
the County of Lieu, pl. 67. cites II H. 4. 64.
E. and car-
ried him to 0. in the Ccunty of S. itnd there detain'd him till he had made Fine of icl. the Aftion was
brought
Trial.
87
tirouglit in the one County, but it does not appear in which. Chelr. faid he ought to have leveral Ac-
tions in this Cafe, but the Defendant was awarded toani'wer; Quod nota. Br. Lieu, pi. 23. cites 5S
E. 5. 54.
13. If a SCiiVer extends into 2 Vills^ and it is Jiopp'd in the one, Aftion lies
well in this Vill, and ihall not abate. And the Defendant pleaded to the
Writ, that the Land fiimnnded is in S. and not in L. Judgment of the
Writ. Hank, iiiid, Then you may plead Not Guilty. Skrene faid.
No, Sir; for the Writ, is not good no more than in Aifife or Praecipe,
quod reddat &c. Quxre. Br. Action fur le Cafe, pi. 46. cites 12 H.
4. 3.
14. Difceit was brought againft J. N. Sheriff of Berks, inafmuch as the
Plaintiff recover'' d Damages tn Banco, and flicw'd certainly &c. and had
Elegit to the Sheriff' of B. which he deliver d to the Defendant, Sheriff^ &c.
at London, and he imbezzled it in the County of B. and the belt Opi-
nion was, that the A6lion fhall be brought in the County ot B. where,
the Difceit was, and the Damages fhall be inquir'd there, and not in
London. Quoere. Br. Lieu, pi. 21. cites 9 H. 5. 6.
15. E.xecutors are not chargeable in Afition of i)if?;«//e, anlefs by ?^£ Br. Lieu &c.
"Poffeffion of the Goods, and not by reafon of the Bailment ; quod nota i and PJ- J ■,^5,"^* 5
therefore the A£lion lliall be brought where the Tellator died, and not But per pi^i-
where the Bailment was made to theTeftator. Br. Executor, pi. 10. fot, the Ac-
cites 3 H. 6. 35. tion may be
brought ei-
ther in the one County or the other. Br. Lieu &c. pi. 6. cites 54 H. 6. iS.
16. If a Parfon grants Anntiity at D. and the Patron and Ordinary con- l^^^mity is
'firms it at another Place, the Adiion may be well brought in the Place g''f"te<l to le
•J , ly" 1 r • r !-• uu L- taken m the
where the Grant was made ; tor itleems that it cannot be brought m any County of N.
other Place. Br. Lieu, pi. 70. cites 7 H. 6. 39. 40. ^j^xthe Ac-
tion may be
brought in the County of S. wheretheGrant was made. Br. Lieu, pi. 27. cites 8 H. 6. 23.
17. If a Man covenants with another in L. toferve him in E. Action may
be brought in L. Br. Lieu, pi. 27. cites 8 H. 6. 23.
18. A Man frrged Deeds concerning the Manor of D. which extended into
the Counties of IV. and L. and A£lion was brought thereof in both Coun-
ties. Brooke lays. See the Book ; for it is hard to intend how the Ac-
tion was brought. Br. Lieu, pi. 30. cites 22 H. 6. 53.
19. Debt upon an Obligation brought in the County of W. where it bcrre^^ ^^ ObUga-
Date at D. in the County of S. it was faid, that there ry??;? Plaintiff' ought to ^'^"^'"^^'^'^
furmife that the Livery zvas firjil^nade at N. in the County of W. where ^^ ^Yor\ t%-
the Writ is brought. Br. Lieu, pi. 31. cites 22 H. 6. 57. able at Lon-
don, yet the
Aftionfliall be brought in the County of York, where the Obligation and Contraifl was made. Pee
Danby Ch. J. and the bell Opinion. Br. Lieu, pi. 51. cites 5 E. 4. 21.
20. If a yi'xa fe'ifed of Land in the County cfE. grants it to W.N. for
Tears in the County of H. and the Leffor cuffs the Leffee, he may have Ac-
tion of Covenant in the one County, or the other. G)jiiere inde i but it
feenis that Debt lies in the one County or the other. Br. Lieu, pi. 76.
cites 26 H. 6. and Fitzh. Covenant 9.
21. In * A^iioii upon the Statute of Labourers, if the Retainer be in one *,§ ^- Br.
County and the Departure in another County, the Mafter may have Aftion -^'"^fej , ,
in the one County or the other. And where the Servant is retain'd in t:'^ -
one County, and ferves In another County, he may have Debt in the one Br. Lieu, pi.
County or the other. Br. Lieu, pi. 6. cites 34 H. 6. 18. per Prifot. "*• cites
S. p. Br. Lieu, pi. ii. cites 41 E. 3. i. and concordat the Hime Year, fol. 2". ~ ^^S. V. Br. Lien,
pi. 33. cixs 1 5 E 4. 18. per Digis ; for in thcfe are Privity. ; But contra, a-l:e,e there is 7ort and no Pn-
■"''- . ■ If
Trial.
_L
. Jf a Man retnias <> Ser^nr.t m tie County of M. and a Stranger tnkei him in tle'Cour.ty ofGr the Aftioti
IJ'k in the County of G. (ur no Pri-Jty is in tie Strarwer ; but •u.-here the Servant departs, AA'ioa may he
brout'ht in the one Countv or the other, for there is Privily. Br, Lieu, pi. 55. cites i 5 E. 4. S . .
- Reu 2. a. inl5ulU'fr'-.'Care, cites.sC. & 41 E. ; i b. 5S H. 6. 1 j.b. 14 E. 4. 6. 20 H. 6. 11.— D.
-8. b. pi. 55. Mich 29 H. 3. in Cafe of CgatotU b. t.Uffej', bccaule the Defendant has a Plea to make
b each County, viz. in the firil Place the Retainer li traverfable, and ib ii tiie Departure.
- Rep. ra. 22. .^lare Impedit (tgainji 2, and the o»e Defendant "Wasjffoigti'd, and
'■^^^^^'^.'^■iX'i {[-^Q piauniff' viade Default, and rhe other Defendant made ^tle, and had
tli« Qu!frl ^^'"'^ ^° ^^^ Bifiop, and delivered it to the Bipop at W. in the County of M.
j'mpedit and ivherc the Church was in the County of N. and the Bijhop refufed to admit his
c^uare In- Clerk, and the Deicndant brought Quare non adniilit in the County
cumbravit where the Church was, where it ought to have been brought in the
brbloulTu ^ County of M. where the Refufal was ; and therefore the Writ was
ivherethe abated by Award. Quod nota. Br. Lieu, pi. 43. cites 38 H. 6. 14.
Church is; 23. But * ^uare Inciinibravit Aall be brought where the Church is i for
for by the the Clerk llmll be oulted. Br. Lieu, pi. 43. cites 3 8 H. 6. 14. PetYelverton:
one the U
Plaintiff fhal! recover his Prefentation, and by the other the Clerk of the Bifliop fhall be removed, and
the Plaintiff'.s Clerk admitted, and ciies S. C. but cites 4 E. ;. 9. that otherwife it is in the Qjfe of the
■t-.King. But 4: ^tare r>on admifit fhall be brought in the Country where the Refufal was, and not
■Where the Church is ; for Damages only are to be recovered, and the Refufal is the Commencement of
the Tort, and Ground of the Aftion ; and cites 98 H. 6. 14&15. andF. N _B. 47.(F) But %^re
Mpcdit of a Prebend fliall be brouf^ht in the County w here the Cathedral Cliirch is, and not in the County
■v-here the Body of the Prebend i.s ; for the Plaintitl\ Clerk is to be irdudfed and inftalled in the Ca-
thedral Church ; and fays that with this accords 21 £. 5. 5. and D. 2 Eliz 194. [pi. '55 ] but that 45
E ". 24. is, and 1 5 E.5. Brief 525. fccms conira, and that fo the Law is well explained in a Cafe where-
in was a Diverfity of Opinions in our Books.^
* Br. Quare Incumbravit, pi 4. cites S C.
+ The A'/AV? ™^y bring his Writ of ^tare impedit in a foreign County, where the Church is not. Brooke
fays,. Qiiod ^iiare, for it is a Wonder. Br Lieu, pi. 78. cites 4 E. 9. 9. & Fitzh. Brief 705.
'4:'s. P. Br. C^uarenon admific, pi. 5. cites 3S H. 6. 14.
- Rep. 9. a. 24. Writ of Valore Maritagii fhall be where the Refufal was, and not
in jgul; only where the Land is. Br. Lieu, pJ. 43. cites 38 H. 6. 14. Per
Jrtr's Cafe, T -
%s it fhall Jen^ey.
be brought
where the Land is; for the LoVd iiecd not make any Tender. But if he makes Tender, and the other
refufes, and he alleges it in the County, then the Writ lies in the Ctunty where theKefufal was. And
cites 22 R. 2. Tit. Brief 937. and 38 H. 6. 15. a.
7Rcp. 2.a. in 25. Debt Upon a Leafe for Tears pall be brought where the Leafe was
IBuUx'fr's made, and not where the Land is. Br. Lieu, pi. 43. cites 38 H. 6. 14.
Cafe, cites p A ^ ^
6. C. and* 8 i^er'-^r.
XJ 6. 2**.
accordingly ; for the Aftion is founded on the Contraft made by the Leafe. ♦ Br. Lieu, pi. 27.
cites S.C. and P. But Br. Lieu, pi 6. cites 94 H, 6. 18. that Debt maybe brought in the one
County or the other; Per Prifot -S. P. D. 40. pi. 70. Mich. 29 H. 8. bccaufe there is a continual
Privity between the Leffor and Leifce.
26. If a Man makes Attorney in Middlefex, who deceives him at the Niji
Prius in N. Aftion Ihall be brought in the County of N. where the De-
ceit was. Br. Lieu, pi. 43. cites 38 H. 6. 14. Per Suliard.
Debt upon 27. Debt upon Ej'cape lies in the County where the Efcape was. Nota.
Efcape was gj.. Lieu, pi. 43. cites 38 H. 6. 14. Per Suliard.
brought in
London, for that A. B. was condemn'd in London at the Suit of the Plaintiff, and was there in U ard, and
the Defendant Sheriff, permitted him to efcnpe fuch a Day in Southivark, of which he brought the Attion,
and they were at Iflue and found for the Plaintiff; and it wasalleg'd in Arreft of Judgment, inafmuch
as the Aftion was brought in London, where the Efcape was in Southwark, and yet the Plaintiff reco-
vered per Judicium ; for the JHion is •welt brought. Per Catesby, in the one County or the other. Br. Ef-
Cape, pi. 96. cites 14 E. 4. 9. -Br. Lieu, pi. 72. cites S. C.
Br Lieu, pi. 28 Oi Maintenance in one County, by which thelnqueft pafs'd againft
••2. cites j^i,^ jn another County, the Aftion ihall be brought in the firlt Countv.
S. C agreed. ^^ g^^.^p^^ ^^^ ^^ ^j^^^ ^^ ^ ^ 2.
29. Of
Trial. 89
29. Of Covenant to make a Hotife tn one County, by which he makes it B--- Lieu.pL
hadly in another County, he may have Aftioa in che one County or the ^^p'^""
other, as it is faid. iir. Efcape, pi. 36. cites 14 E. 4. 3. ^ ^•
30. Debt upon Jccount ihall be brought in the County where the Account
was made. Quod non negatur. Br. Lieu, pi. 33. cites 15 £. 4. 8.
31. C. brought Bill of Debt in London againji J. S. and J. B. late Sheriffs
of London, in the Exchequer, upon their Account, jor that the Plaintiff had
Execution againji N. upon a Statute-Staple, and ihevv'd the Certainty of
the Suit &c. and that N. was in Execution in the Ward of the Defen-
dants', and they fufferd him to efcape in Southwark in the County of Sur-
ry, fuch a Day ; and they were at Ilfue, and found for the Plaintiff, by
which he reco\er'd. And the Defendants brought I'Vrit of Error, maj-
fHuch as the Aiiion was not brought in Surry, but m London. Per Hody,
A Man Ihall be indifted in the County where he futFer'd the Efcape.
But per Pigot, Here is no Privity between the Sheriffs and the Plaintilf,
therefore the Aftion Ihall be brought in S. And it a Man be taken in L.
hy Capias ad Computand. and efcapes in S. Aftion upon the Cafe Ihall be
brought in S. for there is the Tort i and Choice agreed with Pigot. Br.
Lieu, pi. 33. cites ij E. 4. 18.
5'2. Error. If a Man brings Praecipe quod reddat, and Proteifion is Br. Lieu, pi,
cafl- at Weflminfler, and allowedyor a Tear, and after within the Tear he ^^Z- cues'
dwells in the County of G. at his Btiftnefs, Adion upon the Cafe lies in the ^- ^•
County of G. for there commenced the Tort. Br. Attion fur le Cafe,
pi. 62. cites 15 E. 4. 18. 19. Per Dygas.
33. Where the A^ton artfes upon two Points^ he may ufe the Aftion in
the one County or the otiier. Br. Lieu, pi. 33. cites 15 E. 4. r8.
34. 01 Retainer in S. to flooe a Horfe, and he cloy d him tn L. A£lion
may be brought in the one County or the other, by Reafon of the Pri-
vity. Br. Lieii, pi. 33. cites 15 E. 4. 18.
35. It'a Mdnhe arrejled by Capias in Aliddlefex, and committed to New-
gate, which is the Gaol as well for London as for Afiddlefex, A6lion fliall
'not be brought againft him in London upon his Prefence there ; for he is
Prifoner there for Afiddlefex, and not for London, tho' one and the fame
Perfon be Sheriff of Middlefex and London; for if he by Capias award-
ed in Middlefex, arrefts the Party in London, Aftion of Falfe Impri-
fonment lies. Br. Lieu, pi. 73. cites 16 E. 4. 5.
56. If a Man cites one in one County to appear before the Admiral in ano-
ther County, for a T'hing done m the Body of the County, by Force of which
the Party appears, he may have his A6tion in the one County or the
other, at his Pleafure. 7 Rep. 2. a. in 'BUllUCC's Cafe, cites 5 Mar.
Dyer 159. b. 42 E. 3. 14.3. 44 E. 3. 31. b. 32. a. 46 E. 3. 8. b. 3*
H. 4. 3. a. 38 H. 6. 14. b. 14 E. 4. 3. a. b. The fame Law of Court
Chriftian.
37. In Cafe the V\d\nt\.S declared that H. H. recover'' d 20 /. againfi him
in C. B. and died before Execution, and that the Defendant knowing him to
he dead, did malicioujly, in the Name of the faid H. H. outlaw the Plaintiff
in Middlefex, and upon a Capias Utlegatum, he was imprifoned in Norfolk.
and laid his A^ion in Norfolk. It was objefiled upon a Demurrer, that
the A6bion ought to be laid in Middlefex, where the Wrong commenced
by the Outlawry; but refolved that the A£lion was well brought where
the firft vifible Wrong was, (viz..) the Imprifonment. And where Matter
of Fa£l is mixed with Matter of Record, and a Thing done in one
County depends upon fome Matter done in another Countv, there the
the Plaintiff has his Election to bring the Attion in either Countv.
7 Rep. I. Mich. 26 & 27 Eliz. Bulwer's Cafe.
38. The Defendant was Sheriff' of Somerfet, and an Exigent bewy . t
awarded againfi the Plamtff, the Plaintiff fues out a Superfideas, and dt- i-'^s'c
livers it to the Defendant, who allowed it, and received his Fees ; but not- accoidi- sjV-
withllanding outlawed the Plaintiff; and afterwards he .was tjken bv a
Capias Uclagatum in Dor ctjhirc, y^hcre this Aiticn ivas l.ud ^ and it vva's
A a Ob,
po Trial.
objefted, ihaz he ought to have laid his Action in Somerfetfliire, where
the Wrong was done, or elie in Middlefex, where the Record lay. But
it was relblved per Curiam, that he had his Ekff ion to lay it in either}
and that he had well laid ic in Dorfeclhire, inafmuch as he was there
taken by the Capias Utlagat'. Freem. Rep. 6. pi. 3. Mich. 1670.
Walker v. Horner.
* Cro. C. 39- -fn 'J'refp^ifs for taking his Cattle &c. The Atiion vms laid in Sajfes^
294. pi. 4. the DtiiivA^ni pleaded the Statute of Limit at uJis j the PlaintiffiY/)/^^;-/ r^^f
Hill !> tlai- at another Time^ he brought an Original in London^ in Battery &c. intend-
Cafe of ''7b "i^hen the Defendant appear' d^ to have declardjor this Trefpafs, and that
jJrputl) I), the Defendant was out law' d in London^ and xh'ix within fnch u Time after
^amb u;jon ^}-)g Reverfdl of the Outlawry^ the Plaintiff declared here &c. Upon a De-
'r'w^'^T^'^'^ niurrer it was inlilled, that the Original being laid in London, the
toolca Dif- PlaintilF could not declare in another County, tho' the Caufe of Aftion
fcrence, that was tranlitory J but the Prothonotarics inlbrining the Court that the
forasmuch Courle is, that tho' the Original is laid in London for expediting the
as this Out- Outlawry, yet * when the j5etendant comes in, the Plaintift' may de-
notTevcrfed dare againit him in any other County \ and the Statute of 21 Jac. cap.
by Error, i6. gives the Plaintiffs generally Power to Commence a new A&ion
but avoided within a Year after the Outlawry reverfed, and that fo he may do here
^5'^''^1'.'^'^^ to warrant his Declaration within the Courfe of the Court ; Judgment
is not'detcr- was given lor the Plaintiff. 3 Lev. 245. Mich, i Jac. 2. C. B. Whit-
mined, but wick V. Hovenden,
he might
have proceeded thereupon ; and tlien to bef^in a new Original, and in another County, is not accord-
ing to the Statute of 21 Jac. nor within the Intent of the Statute. But Bichardfon, Jones, and Berkley
held, that the Variance of the Coijnty is not material to the Adtion, being tranfitory, and averr'd to be
for one and the fame Caufe ; and altho* the Outlava-y is not reverfed by a Writ of Error but avoided
by Plea, it is all one within the Intent of the Statute ; for the Statute is not where the Outlawry is re-
verled by Error, but where the Outlawry is reverfed, '^o it is by any Means. Wherefore upon their
three Opinions, a Rule was given that Judgment fhould be affirm 'd &c.
(H.a.4) Vmm, 'Necejjary in what Cafes.
'•W
Kl'T of Inquiry of Damages is not of any Vifhe certain, but
per Sacramentum proborum & legalium Hominum &c. Br.
Vifne, pi. 115. cites Lib. Intrac. Placitorum.
2. In Cafethe Plaintiff prefcrib'd for a Way from his Hotife in D. overGr.
jicre in S. and over El. Acre to fuch a Place in P. and faid that the Defen-
dant had ftopp'd his Way in S. and it was found for the Plaintiff^ and
becaufe he did not allege the Vill in which El. Acre was, Judgment was
ftaid ; for he ought to allege all Lands thro' which he was to have his
Way. Cro. E. 427. pi. 27. Mich. 37 & 38 Eliz. B. R. Bragg v.
Banning.
Godb. 5S2. ^. In Cafe brought by an Infant he declared hy Attorney^ and upon Not
f'- if^'p guilty pleaded had, Judgment. It was ajftgn^d for Error that be appeared
B^R io!^' ^y ^^^^°'"^'€''i whereas being an Infant, he Ihould have appear" d by Guardian }
Ipn i). STap* to which the Plaint ijf in the Original Attton, pleaded that he was of fill
lor, S. C. Age at the Time of his Appearance, but alleged no Place where. This was
according- tried in Suffolk where the firll Aftion was tried, and found that he was
This Cafe °^ '^^^ -^S^' ■^"'' ^^ whole Court held that the Trial was not good,
■was cited, there being no Venue laid. Lat. 194. Hill, i Car. Taylor v. Tolwin.
and denied
to be Law Mich. 5 Geo. in Cafe of Brttt b. 2©intfr, which was thus, viz.
In Trefpafs Quare Claufum frcgit, upon Not guilty the Plaintiff had a Vcrdift and Judgment ;
whereupon the Defendants brought a Writ of Error coram Nobis, ajid ajfi^vcd ior Error that v. F cyie
efthe Defendiznls appeared, and p/e.idcd Ly yhto-rmy, and that he was, at tJiat Time, lyitbin the Age oj 1.1
rears. The i^laiimS pleaded that thej'aid \t. F. was, at tie lime of his Jppearsnce and Pteadir.g, of thi
full
Irial. 91
fulUge of Zl Tears, and rat within the j4ge of 21 Tears, front &c. Et de hoc ponit Ic fuper Patriam. To
"vhicii the Defendants dennined, and fliewed forCaufe that the Plaintift had not alleged in what Place
the Taid T. F. was of full Age. And the Plaintift joined in Demurrer It was infifted, that the Plea
was bad for Want of a Venue, and relied upon the Cafe of 3ravlor anD ISToltnin. But per Cur. 7he
Phil is good, becait/e it is acompkat ^raierfe of the Defend^xnt's ^•Ulegatiov. The Defendants allege that
one ot them appeared by Attorney, and that he was then under Age. The Plaintiff pleads that he was
then ot fiill Age, and not under Age ; and if it be neceffary for the Trial of the Infancy to lay a Ve-
nue, the Defendants ought to have done. (See 2 Bulft. 129. the Venue laid by the Party who pleaded
the Infancy) but that it is not neceflary ; and denied the Cafe in Latch, and Godb. to be Law. Upof»
the Argument the Court inclined, that if IfTue had been joined upon the Infancy, it ftould have been
tried in the County where the Adlion was laid, becaufe the Proceedings upon the V\''rit of Error, were
a Continuance of the fame Record ; but at the Time of the Judgment inclined that itfliould have been
tried inMiddlefex, where that Defendant appeared. N. B. The Reafon why it is not neceifary in this
Cale to lay a Venue, is (as it fecms) becaule the Record itfelf without fuch Venue, points out a proper
County for the Trial of the Infancy. lilS. Rep. cites Cro. E. b'lS. 17 E. 5. 13. 21 E. 5. ;. S. Rait. Ent,
24S. Co. Ent. 125.
4. In Trefpafs againfl; a Parfon for not carrying away his 'Tithes in due
7ime, the Defendant pleaded that the Plaintiff' gave him no Notice to leech
them away J the YhintiA' replied that he did give him Notice, but did not
fbew where &c. and upon Demurrer, Roll Ch. J. faid he ought to allege
a Place. Stile 342. Mich. 1652. Linilton v. Maurice.
5. In an A£lion upon the Cafe in Nature of Deceipt, viz. for taking
fa/fe and tnfttfficient Bail to the Intent tQ defraud the Plaintiff of his jult
Debt &c. the Defendant pleaded that he had taken fufficient Security of
good Men of his Bailywick; upon which the Plaintiff demurr'd becaufe
he did not plead at what Place he took Security; but 'twas refolved
that it is not illuable at what Place the Security was taken, and there-
fore the Place ought not to be Ihewn. Sid. 96. Mich. 14 Car. 2. B. R.
Bentley v. Hore.
6. In Error upon Judgment in Durham in Debt upon Bond to pay 20 1. 2 Keb. 610^
the Defendant pleaded Solvit ad diem, not faying where; a \'erdi£t P'^"9; P*^'^''-
thereupon is void, becaule there is no Vifne, and fo no Trial. Trials J^"j^ ipor*
per Pais. 301. cites 2 Keb. 620. cliff b.jn;=
Dfrfou, but
there the Words (Not faying where) immediately follow the Words (to pay 10 1.)
.7 Cafe &c. the Plaintiff /e«? the Defendant a Mare to ride from S. in Raym. 1S7.
Norfolk to J. in Suffolk, in which Journey he fo immoderately rode her that ^- ^- J^'^S-
flie died i after a Verdi£t for the Plaintiff, it was moved in Arrefl: of Hay-j^i^
Judgment that no Place was laid where this immoderate riding was, and the other
the Journey is in two Counties, and the Caufe of A£lion is the immo- Party
derate Labour ; and Judgment was ftay'd at the present, but was after- '^°a^^'~7~'
wards given for the Plaintiff, as Holt, who made the Motion, told the not'^ P. ~-
Reporter. 286. Lev. Pafch. 22 Car. 2. B. R. Horfley v. Cotten. 2 Keb 620.
pl. 10. S. G
adjornatur. Ibid. 647. pl. 8d. S. C. adjudg'd for the Plaintiff.
8. Debt upon an Obligation condition'd not to hunt in the Plaintiff'' s
Warren : the Defendant pleads that he did not hunt in his Warren j the
Plaintiff replies, and fays, that after the making of the Bond, & ante
diem impetrationis brevis &c. venatus fuit Sec. The Defendant de-
murs J and adjudg'd againft the Plaintiff, becaufe he does not allege wberg
his Warren lav, that the Defendant might have taken Illlie. Freein. Rep.
31. pl. 39. Palch. 1672. Bud v. Weft, in C. B.
9. Debt for Rent, the Defendant pleaded Nil debet, and fo Iffue join'd ; ^^? where
and at the Day of Nift Prias the Defendant pleaded .ff) nod puis darrein Con- ^"f^^"'
ttnnance the Plaintiff' releafed to him, and does not iVame any Place where •yiid°me?'t"ia
he releafed, fo as no Iffue can be taken, and to this the Plaintiff de- Debt ; the
niurr'd ; and it was adjudg'd a Fault incurable. F'reem. Rep. 112.pl. Defendant
i3Z.Trin. 1673. Gardner v. Bloxam. '" ^'T^^
•^ ' ^ flf.Tded Re-
ieafe of Errors witliout laying a Venue ; this was adju.lg'd ill, and then the Plea amounts to a Confeilion
92
Trial.
oftlie Error, z Ld. Raym. Rep. 1005. Hill. 2 Anni B R. Carleton v. Mortagh. S C. 1 Salk,
!5. pi. 15. Trill. 5 Aiinse B R. accordingly.
»u
10. JjfatiH and Batier)',ihe Defendant pleads an Arhifrdment in Bar, and
does not Jheiv "xhere the A--joard ixas made; the Plaintiff demurr'd, and
for this R-Cafon the Plea was ruled to be ill ; Jud. pro Quer. Freem,
Rep. 268. pi. 295. Hill. 1679. Jones V. Walker.
4. Show. <; 6. II. A 6'«/? was brought in the Spiritual Court /or iT//,??!?/. K Prohibi-
pi. 4z. <in* tion was granted, and an Actachnaent was brought upon the Prohibition
^''DoblKn ^"^ Judgment by Default, and Damages and Colts given to the PlaincilK
and SS. ['1 ' It was aliign'd for Error, that//o Fijua was laid inhere the Siiit in the Ec-
Sz. S. C. but kfiafiical Court was i (o that if the Defendant had pleaded Non profecu-
S.P. does ms fuit after the Writ of Prohibition delivered, and Iliiie had been taken
not appear. j|^gj.g(3n^ there could have been no Trial : And there are feveral Prece-
"--. Anon, dents where a Vifne is alleged in fuch Cafe s and this Difference was
s'c. 34S. taken. Viz. Where Damages are given for the Plaintiff, there generally
Singer b. he lays a Vifne where the Suit in the EccleHuitical Court was; butother-
^r^'d' ^^^'^ ^^^ W^ant of a Vifne hurts not. And Judgment was reverfed for
S P. fa"ys this Reafon, by the Opinion of the whole Court, Raym. 3S7. 388.
that it being Trin. 32 Car. 2. B. R. Brogan v. Aunger.
made appear
to the Court,
that in all the Precedents of thefe Kind of Declarations, there is no Place found mentioned of the Pro-
ceedings after Delivery of the Writ, but the Place only exprefs'd where the Writ was delivered, they
thereupon over-ruled this fpecious Exception. But Ibid. 550. S C. and S. P. and that the Court faid,
that where thofe Precedents Were, there was no further proceeding after Judgment, as there feldom
■was when there was judgment by Nihil Dicit ; bur here they reverfed it for this Error. 2 Jo.
128. Aungier v. Brogan, lays that Judgment was reverfed.
12. Conjideration Executory is traverfable ; and therefore a Venue mull
be laid.
13. \n Covenant C-gainJi one as AJJignee^ there is no Need of laying'
any Venue, becaufe an Affignment is always intended to be made on the '
Lands affjgned. Per Cur. Carth. 256. Mich. 4 W. & M. in B. R,
Huckle V. Wye.
14. Upon a Demurrer to a Plea in Abatement, where the Defendant
faid that Ihe was baptized by the Name of M. and not of P. And the Plain-
tiff ^e««rrf^, becaufe no Place where Ihe was baptized is mentioned ; and
alfo fhe does not fay that Ihe was fo called at the Time of the Bill find-, for
where an A£t is alleged, there ought to be a Place mentioned, becaufe
it is traverfable ; but if it had been that fhe was known by fuch Name only,
it might be tried where the Aftion was brought, becaufe it only concerns
tiie Perfon ; but becaufe the Defendant did not fay that fhe was called
M. at the Time of the Bill fued, Ihe ought to give the Plaintiff a better
VVirit, Skin. 620. pi. 14. Mich. 7 W. 3. B.R. Nichols v. Shepherd.
In this Cafe 15. If a Ville be alleg'd, and no County where it lies, no Procefs can
HoltCh. J. ;f|-ue upon it ; per Holt Ch. J. Mich. 9 W. 3. Ld. Raym. Rep. 258. in
6.t9.'6a4 C^feof^heKingv.Griepe.
H. 7. 8.
where Scire Facia.s on a Recognizance was of Breach of Peace ; The Breach was affign'd in a Vill, and
no County where was mention 'd; and when the Jury was brought to the Bar they were dillharged, and
the Information fet afidc. But in fome Cafes the Ville alleged fhall be intended to be in the County
where the Aftion is brought ; As if Trcfpafs is brought in Middlefcx for a Trefpafs done at Iflington,
Iflington fhall be intended to be in Middlele-t, becaufe that is the Git of the AAion. But if a Place
is mention'd in Matter collateral to the Idue, it is neceflary to fhew in what County it lies, or other-
wife it ftiall not be intended to be in any County. Ibid.
16. A^ of Compofition, and a Compofuion purfuant thereunto, was
pleaded in Bar to an Action of Debt upon a Bond, without reciting the A6t
or laying Venue tor the Compofition, and for thefe Faults Jud' pro Quer.
12 Mod. 249. Mich. 10 W. 3. Dennis v. Roberts.
17. W'here
Trial. 93
17. Where i\\<i Judgment is upon a Ntl dicit, the want of a Venue is
not material to fet it alide, becaule the Inquiry is not to be of any thing be-
fides Damages^ which may be inquir'd by any Jurors in the County.
Lutw. 235. Trin. 13 W. 3. Remington v. Tailor.
18. W Coverture be pleaded to a Writ, it needs no Venue ; but may be
tried' where the Writ is brought ; and the Defendant muH ihew and.
prove the Coverture ; and faying in the Replication that fhe was fole,
implies the Negative of a Marriage as much as that (he was not Covert,
and it is the fime as pleading of Infancy. If this had been a Bar, the
A4arri(!ge mult have been laid at a certain 'Time and Place ; but being in
Abatement it is well generally ; but e\en there the Husband'' s Name
ought to bejoew'd, that the Plaintilf may know whom to have his VVric
againft ; Per Holt Ch. J. 12 Mod. 503, 504 Pafch. 13 W. 3. Vezey
V. Smith.
19. Alatters touching the Perfon, as Privilege of Attorney, may be plead- 2 Salk. 54'^.
ed without a Venue. 2 Ld. Raym. Rep. 1172, 1173. Trin. 4 Annge, P'- ^ ,? 9-
„ r- J I. I } 1 ■' -13 accordinp-l7.
Scawen v. Garret. ^ '
20. In Cafe the Defend3.nt pleaded in Abatement, That the Plaintiii was S. P. hy
an Alien Enemy, and laid no Venue ; and on Demurrer adjudged, that it l^S^'Si'' J*
was well pleaded; and the Plaintiff might have replied, that he was Rgp n-^"'"
born in England generally. But if fuch a Matter is pleaded in Bar, it Trin. 4 Ann.
muil be pleaded with a Venue ; and the Plaintiff Ihould reply, that he in Cafe of
was born in fuch a Place in England. And in the principal Cafe Judg- Scawen v.
ment was given, quod Billa caffetur. 2 Ld. Raym. Rep. 1243. Hill, s p'^b^Hdit
4 Ann. Pie v. Cooper. Gh. J. who
faid that
the' Precedents be both ways, yet this is a true Difference, and according to Co n Mod. 503,;
Pafch. 1 3 W. 5 . in Cafe of Vezey v. Smith.
(H. a. 5) //^;;^ of Femie. Aided by what.
"W
ANT of a Venue is aided by pleading over ; as where in Tref- 6 Mod. zu.
pafs the Defendant pleaded a Submifjion to an Award, and that ?r-- S- ^ ^y
I J. .../.;./. 1. 7,.j ^._.jr. 'J 1 I-:j _- \r._ i Name of
V.
on A-ward was made, which he had performed, but laid no Venue where ggj^^
the Performance was. The Plaintiff replied another Award, and the Baily.
Defendant tender'd Iffue upon it. Holt Ch. J. faid. That the want of a
Venue was aided by the Pleading over. 2 Ld. Raym. Rep. 1039.
Mich. 3 Ann. Purflow v. Baily.
2. So in Debt upon Bond no Venue is laid where the Bond was made. S. P. But if
If the Defendant pleads a Releafe, this admits the Bond, and aids the ? Demurrer
want of a Venue ; per Holt Ch. J. 2 Ld. Raym. 1040. Mich. 3 Ann. wlll°be'ill-
in Cafe of Purflow v. Baily. per Holt
Ch. I S
Mod. 222. S. C. by Name of Boifloe v. Baily.
In what Cafes the Want of Venue fliall be aided by VerdicV, fee Tit.
B b (H. a. 6)
94-
Trial.
( H. a. 6 ) Venue. What a fdfficient laying of it.
I. rnpH E Venue in the Declaration was laid at Leek, and not at Leek in
J[_ the County atbreliiid. Delendant demurrV,, and fhew'd the
Want of a proper Venue for Caufe. Plaintiff join'd in Demurrer j and
upon Argument the Court gave Judgment for the Plaintiff It is fuffi-
cient, according to the Courfe of this Court, to lay the Venue at Leek,
which has Reference to the Comity tn the Margin. And fmce by Att cf Par-
liament the Venire Facias is De ccrpore Coinitatusly it is not mcejfary that any
particular Place in the County be laid. Barnes's Notes in C. B. 338.
Eafter, 9 Geo. 2. Spooner v. JVlilward, Com. Staffs
2. In the Margin flood the Word Norfolk, in the Body of the Decla-
ration the Venue zvas laid at the City of JSJorwtch, in the County cf the fame ■
City, throughout. The Plaintiff executed a Writ of Inquiry of Da-
mages directed to the Sheriffs of the City of Norwich. Had no Venue
been laid in the Body of the Declaration, Relerence muft be had to the '
Margin j hxxfjjbcre a proper Venue is laid in the Body of the Declaration,
the Word in the Margin floall not vitiate it. The County in the Margin
will help, but not hurt. Barnes's Notes in C. B. 341. Hill. loGeo. 2.
Howfe V. Hafelwood.
(I. a) Trial
out of
the Place alleged,
come. 'Next Himdred.
Verne. Where the Venue cannot come
Out of what Place it fhall
i-Tif tljC JflllC concerns the Mavor and Commonalty of a Town, tIjC
1 atrap HjaU lie maoe ail of ifcccigncr^* 31 ^flV 19- ^x^. ^flitc
agatna tlje £i9apot an<3 Commoiiait}? of i©mton»
Sec(G) pi.
^atiage ;
and (H)-pI.
5- ^mitl)
6. i^ancocft ; and becaufe in the firft Cafe a Cuffom was pleaded which concerri'd the City of London,
it was refolved that the Venire Facias fhould not ilTue to the Sheriti's of London nor Middleiex, but to
the County adjoining, viz,, tlie County of Surry. Mo. 871. pi. 1209. Trin. 11 Jac. C. B. Yii.^ v.
Savage.
The Parties
being at IJJiie
upon a If/iy
in Cjinterbwy,
the Venire
Facias fhall
not ilTue to
the Officers
of the City,
ty of Kent.
Cafe.
2. [As] Jn Trefpafs of Grafs cut in the County of Coventry, QtClMCtt,
the cicy 30 It fcenijj) auEi tlje 3iffue bettneen tijcm ttia0:, v/hether the
Mayor and Commonalty dilleifed the Defendant Ot llOt i t\)Z MUttZ
jfacia0 fl)aU be auiarticn to tlje ^Ijeriff of i©arujich to mal^e ttie l?a^
ncll, tljo' ti)e ^apor anb Commonaltp loete not Parties. 15 c 4.
18. ^atb to be abjubpb intbe ming'^'Benclj upon goob abbicc,
tho' they have the Trial of Things arifing within the City, but it fhall iflue to the Coun-
Mo. S71. pi. 1209. in Cafe of Day v. Savage, cites 40 EVu. B. R. Dr. Ovendak's
3NewAbr. 3. Jf ait 3tttOn Of Debt be btOUgbt againft a Hundred upon the
25S. cites Statute of Winchelter, tOC IDemte JfaCiaS im\> come from the next
favs the Tu Hundred generally, tljo' tl)ere ate bib£C6 mi^ 111 tlje l:)unbreb, UJltij-
ry muft come out bnuttuix It to coHie fcoHi tlje nect mil m tlje C^imoteb* ^.n.
from the 3;a»'B.E. pet Curiam.
next Hun-
dred, becaufe the proper Pares for the Trial of every Faft done, are the neareff impartial Men to the
Place where the Faft was done. G. Hilh of C. B. 7 1, 72. S P in totidem Verbis. The Ven. Fac.
niuft be from the next Hundred. Comb. 332. Trin. 7 W. 3. B. K. Anon.
4- Jn
Trial.
P5
4. Jit an Action of Trefpafs for tafeino; of i©00t> in Crundall, if Trials per
2)£fCnliant pleads as to Part Not Guilty , and a0 to the Relidue, that ^^''> i°9-
the Place where &c. is Call'll 'BacleP-ClOlC, tUljiCi) IS Parcel of the ^"(?^ *="''
Manor of Crundall, and makes Title to the Manor ; UpOU inljic!) tIjCP
are at JfTue alfo, fcilicet, i^Ijctljet; it be I3arcel of tljc ^anot of
CrunQaU, ann tlje l^lamtiff fuggel!^ tijat t)c is lorn of tlje pnDren
of CrunQaU, anO that the Manor ot Crundall in Crundall is within the
Hundred oi Crundall, auu ptaps a iDCtttve JFacias ftom tijc ncj:t ipim-
DrClJ, CijC mniXC laCiaS ftall U aiuarUCD to the next Hundred for
both Iflues, tho' Part of the Vill ot Crundall may be out of the Hun-
dred Of cnmtiaHi bccaufc tljcrc cannot be aaDenirelactas'sgranteH
in tW Cafe in one sartion, tijo' federal Jlfucs are join'n* ^. 1 7 3]a*
15* K. bCtiUeen tlje .Dea/i and Chapter oj Wnichejicr and
aonnscti UDon tljis Crception in arreff»
5. jn an action of 'SCrcfpafs agatnff a» aitt 15* for Trefpafs in And tho- it
Dorchelter, if A. fays that he is a Copyholder to J. S. oi the Manor of ^^^ objeaed
D. and prefcribes to have Common ior J. S. and his Tenants, in the o"^'^'''""^-
Place AS'here $C» ilpOn tOljiClj tijCP atC at W\Xt> and B. pleads That j, D.ltVi
he is Lelfee for Years of the Leafe of J. D. and prefcribes to have Com- m Challenge;
men for J. D. and all thofe whofe Ellate &c. in the Place where fC* ^'^'" ^'^^""^ "^"
upon tDljici) t|)cp alfo arc at lilTiie i ann tfje Plaintiff fuggefts, that l^J^fy^"
J. S. is Lord of the Hundred of Dorcheiler, within which it is, anU nire Fac %
fijercfore praps a aDcnirc jf acias to tlje nctt !t)unrircn» Cfje ©cnire try feverai
laCiaS fljaU be graUteO to tlje next Hundred for both Iffues, bCCaUfC ^'^^^ "">"'
tijcre cannot be 2 ©enireJfacias'S,tl)0'tl)e3(rues are join'O bp 2 feiic= f'""'^';. ''"K
ral 99cn, anB upon 2 fciicral picas, ann fo for jl^eccflltp ougOt to /jrJsint-
be atDatueti to tlje ncrt Jpunorcu for botlj. S9, n Ia» 15. R, he^zeraicoL-
nueCtt Dnnche j9Iatntlff, ^»d Elton and Defendants, all= ""' " "'
rungen -, xw €;cception being mouen in sarreff. craj j^o.
Dance v. ElidenSc Bucklock.
6, 3In an Appeal of Murder committed in Feverfliam, within the '^vjv^^n
* Cinque Ports ut l^cut, iipou Bot suiltp plcatietj, tljc oDcnire facias * l^''-
djall be aUjamen de Vicinetode Olpring, which is the next Vill ad- c^Ed^
joining to ifciscrHjam, bccaufc it cannot come from JfcM-fljam, it pi. 5 sc
being Uiitijni tijc Cinque l^orts, luljerc tlje tBtit oftljel^mn: tJocs'^>^^%^°%
not run, tljo' it concerns tljel^mg ; for tljiSiSbetiueen Common w'- "if ,.
IperfOnS. ^iCD» 42. 43 €\. QB» E» betUJCen IVatts and Brayne an= be dircfted
)UDSeH» to the She-
riff of Kent,
and nothing mentioned of the next Vill. Cro. E. 77S. pi. ii. S. C. but nothing mentioned of this
Point. Noy 171. S. C. but S. P. doe.'i not appear. 2 Inil. 557. cites S C. and fays that the
Writ of Appealfliallbe diredied to the Sherift of the Couniy, and he ihall execute it within the
Cinque Ports.
.. 7* Jn trefpafs Of Affault&c. inSuflex, if Dcfeimant pleads that
he delivered to the Plaintiff a Subpoena within the Cinque Ports, which
is the fame Affault, tO tOljiClj Plaintiff replies De fon tort Demefne ;
t^S fball be trieu in tlje next viu aooinina; to tlje fain ipiace i for
tftis Court (Ijail not be oulten of tlje L9Iea. Cr, 1 3 Ja. %. bctiocen
Elpin and Hutton. ^et CUtiam*
8* l|)in. 36 rp» 8, EOt. 35* 'B* E. betUlCen Bamewell^ aun OtljCrS, S. C. cited
ann Rochford, m a uarit of error upon a lungment in an ^Mz m ^'s- Raym.
tt)e king's 'Benclj in Jrelann, ann tljc Defcunant in i©nt of Error ^^^ ^"^ .
here in England plCanS, tljat tljC l^laiUtiff iUfCOft" 0 3>, %. Of tljC CC' Cafeo"'
ncmcnts ?c* ann upon tljis Jiffue is )oinen i ann tljereupon tlje De= avUfe^}.
fennant fapS tljat the county of Salop is the next County next adjoining t')e u^aj'or
to the faid County in Ireland ^C* Ct pCtlt 15X£)3C £)ammi EClTlS nc Bt- °''^^^^^^^y
nirc facias 12. ?c» an trtannum c^-itum pr^enictum DiccctSiiiiti ejut thus vfr''
nciu '
^6
Trial.
in Covenant t3cm comitatiifS ^alopt^ qtioti ijenire faciat otc* aim upon tijis tlje
foy ^ukt jj]pi,g jgas trica ill tijE cTountp of ®alop, ana a mmtt gtiicn foe
^;>-\^""l ti)£ Defendant in tlje mm of Ccvor. iI3otc, tijat ^aflcc IpoOfon,
the'Breaci/ g^ccouiiarp of tljE ming'0 :5encf), l30UcIjE5 t{ji0 l^rcccucnt to tlje
affigned was, ^omt of Bimj'^ XCHCf) P» 13 Cat* ano aft^rtuarn^ ga^c it
^)/i'r//>/r«'^'^«»' "* £eru.w/t. Upon which they were at IlTue, and the Plaintiff fuggefted that Belfond in
Northuirberlc.nd is next to Berwick ; whereupon a Venire facias was awarded accordingly, and a Verdidt
for the Plaintitf. And upon two Precedents fliewn to the Court, where the Trials were as here, and
one of them affirmed in Error, and alTo upon citing this Cafe in Roll, the Court ruled the Venire well
awarded. Vent. 58. 59 Hill. 21 & 22 Car. 2. B. R. Crifpv. Mayor &c ot Berwick. Lev. 252.
S C that the Covenant was laid to be made at York for quiet Enjoyment of Lands in Berwick And
the Reporter fays, he heard that Judgment was given for the Plaintiff. .Raym. 17:;. S. C. that Wind-
ham T held that it ought to be tried at York, where the Action is brouj^ht, as Co. ^Otl'Datt's Caf- is ;
and favs the Cafe was adjourned, but afterwards relblved for the Plaintiff. — Mod. 56. pi. SS. S. C. but
no Tudt'ment mentioned. Sid. ^Si- P'- H- Jackfon andCrifpe v. the Mayor &c. ofBarwick, S. C.
adjornawr ; but in a Mote at the Etidof the Cafe, (ays K was afterwards adjudged for the Plaintiff.
Br. Inqiiefts, 9. In Affife, Ififant Defendant pleaded Rehafe of the Plaintiff' in Bar,
pi. z6. cites rjui,ii;jy r^as denied^ and bore Date at I'ork^ and VVitnefles were in the
^' ^ Deed, and Procefs tffiud to the Sheriff to catije the Wittieffes to come, and
Vifne of the Place where the Witneffes were named, and continued till now i
and it was faid that they could not take Inquell ot Foreigners of a Deed
bearing Date in York ; and after this Panne/was oujied, and Procefs conti-
nued againfl the Witneffes, and Procefs to make the Jury of the City to come.
Quodnota, Pannel ouflcd where the Court perceived that they had err" d. Br.
Pannel, pl.4. citesioAir. 13.
10. The f njiices of Bank inquired hy 1^ of the King's Palace impanelled
Vy the Warden oj the Fleet, to inquire of Menace and Imprifonment done to an
jitter ney of the Palace hy J. N. Efquire of the King i and that he fliould
make Fine for this Contempt. Br. Inquell, pi. 89. cites 32 H. 6. 34.
11. If I am hound to J. S. to ferve him in Normandy hy a Tear, and the
Defendant pleads accordingly, x}cit Plaintiff' 7nay fay that J. was here in Eng-
land fuch a T'me in the fame Tear at fuch a Place^ and ifllie fhall be taken
//; Confinio Regni. Br. Trialls, pi. 46. cites 15 £. 4. 14. Per Littleton.
S.P. that 12. If the Parties are at Ilfiie, and the Vifne is of D. and the PlaintiiF
the Dejen- alleges that all there are his Tenants ; there, if the Defendant will con-.
dantpallbe ^^^^ ■ ^^^ Venire facias fhall be of the Vifne next adjacent. Br. Vifne
andifhenvill'^l lOO. Cites 22 t. 4. 3.
Plaintiff pall have his Prayer, but if he denies it, then he fliall not have his Prayer, but then the De-
fendant fhall never Challenge for this Caufe, per tot. Cur. And therefore it feems that this Matter fihxll
he enterd in the Writ ; for if it does not appear of Records^ it is nothini;, but this Challenge ought to be taken
before the Venire jacias if lies; for if the Venire facias iflues return.ible in another Term, or at another
Day, there the Plaintiff fhall, not have this Majtcr at the Day of the Return. Quod nota. Br. Chal-
lenge, pi. 18-. cites 22 £. 4. '3.
(K. a) Trialls per Pais in the next County. In what
Cales it Ihall be tried in the next Cou?ity,
!♦ TiF 3» be indited fot nOt repairing of a Way in the City of York,
X anD t\)\m temo'oeQ mto tljc^uts'^ ai5encl), anD tlje Defendant
pleads that tlie Inhabitants of the City ought to repair it, without that
that he ought to repair it, tipon tiiljicf) 3!ffue i0 )ontcB i tljisi fljall not
be tcien bp tlje nejtt Count}) to tlje Citp, becaitfe it tioc0 not appcai;
t&at ttie Citp i!3 m gnueitton foe tlje laepacatton of it, tnarmiicij a^
It
Trial. 97
it isl alleged only in the Inducement, UlljiCfj nmi> l)C fillfe, attH It i|S
not in 3iruc» €^r* lo car* 15. E» faettoecn //^^ ki»g and scaimg. jpec
Curianu
2» Jlf it be alleged chat the Mayor, Bailiffs, and Citizens of York, s. C cited
till I R. 2. Ill U5l)icl) l^cat tijc? luete incorporaten bp Bame ofp^r cm-.
fl^ilVOt, ©ijmtf aitU CltI?enSl, Uii t'uerunc foreign bough'c and foreign ^^r\ 3 '2.
fold &c. anu ti)i0 li^rcfcvlptiott 10 tcauetfcD, t\)z^zmz iuvs$ fljall be S r 2 It
nUiatOEO ta tlje S)ijerift Ot tlje County ot York de Vicineto Callri £bo- Scacc.'in the
rum quod luit proximo adjacens Civitati Eborum, becaUfC tlje ^ijetltFlSi ^^''^ of
ant! Corci!icr0 ot tbe Citp arc Citi?ensi, D. 1 1 ej» 279, 10, f rojtor ti,
4Di)uupS',
Venire facias was awarded to the Sheriff of York(hire, upon a Suggeftion that there was not a fufficienc
Number of Freeholders within the City, not free of the City, to try the Ilfue, as appears by Bendloe's
Kep. Gale 59.
VS\\c\-z Ac'mn\i\ito'a^'iagamp: Mayer arACcmvionalf) in a City, the Iflue fliall be tried by Fo-
reigners. But it was laid that Attaint thereof fhall be tak.-n of People within the City ; which Brook
fa) s fecms not to be Law, if the firlt faying be Law. And elfewhere it is faid that it fliall be by Fo-
reigners. Br. Corporation, pi. 41. cites 10 AflC 15.
If the Ili'ue concerns the Mayor and Commonalty of a Town, the Array fhall be made all of Fo-
reigners. Trial per Pais 102. (114) cites 31 Aff 19. So if the Trial concerns the Mayor and
Corr.n-.onalty &c. altho' they are not Parties, yet the Venire facias ihall be direfted to the Sheriff of the
next County. Trials per Pais 102. Ci'4) cites 15 £. 4. 18.
3. In AJftfe the 'Tenant Infant pleaded Re leaf e of the Plaintiff in Bar
•which bore Date at l^ork, and IVitneffes "Were ; and it was agreed there than
it ihall be tried by thofe of the City and not by Foreigners^ becaufe they
have Privileges that Foreigners pall try nothing there ; and tho' the Tenant
being an Intant cannot be attainted Difleifor by the Trial of the Deed,
yet in this Cafe the Trial Ihall be taken by the Foreigners. Br. Trials,
pi. 67. cites 10 Alf. 3.
4. In Trefpafs for taking away a Bag of Pepper ; the Defendant7>//?//5>^ Hob. S5. pL
as Servant of the Mayor &c. of London, for Wharfage due to them by theCuf- "4 S. C.
toni, which the Plaintiff retufed to pay ^ the Plaintiff replied that the
Ciijlom did not extend to him, becaufe he 'was a Freeman of the City, and
ought not to pay Wharfage, to which the Defendant rejoin d, that the
Qtjtom extended to him as well as to Strangers j upon which Ilfue was
join'd. Refolved that the Venire Facias Ihall not be awarded to the
Sheriff of London nor Middleftx, becaufe the Trials there are by Free-
men ; but it ihall be to the County next adjoining, viz. to the Sheriff
of Surry. Moor 871. pi. 1209. Trin. 12 Jac. C. B. i3ay v. Savage.
5. Cafe in London for dijltirbing him to take the Fees and other Profits
of one of the Judges of the Sheriff's Court in London; after Not guilty
pleaded and I/fuc thereupon, the Plaintiff moved for a Trial in a Jorelgft
County, his Title being under a Grant of the Mayor and Aldermen, and the
Defendant pretending a Title under the Mayor Aldermen and Commonalty in
Common Council aff'embled, fo that the whole Commonalty of London were
concern'd in the Succefs of this Trial ; but per tot. Cur. the Surmife is
not fufficient, becaufe ic did not appear that the Title would come in ^ue~
JiioH upon this Ilfue ; for perhaps the Defendant may inliil upon Ibme
other Ilfue, or that he had not taken the Profits ; nor does it appear by
this Surmife that there is not a fufficienc Number of Freeholders in the
City to try this Iflue who are not free of the City nor within the Di-
ftrefs of the City, which ought to appear, or elle there Ihall not go a
Venire into a foreign County, as it appears by the Suggellion, the Con-
tell is betwixt the Corporation of the City icfelfj and the Queltion is,
whether the Mayor and Aldermen, or the Mayor, Aldermen and Com-
monalty alfembled in Common Council, have the Right to place Judges
there ; fo chat the Ctijlom of the City does not come dire^ly in J^iiejtion be-
twixt them and a Stranger, but amongfl themfelves. And it this Sug-
geftion were admitted to be good, yet in cafe the other Side ihould deny
the Fa£l of ic to be true, how Ihould it be tried ? To v/hom ihould a
Yer.ue be awarded to try it? //; all Cafes cf foreign Venires, they are
C c awarded
pS
Trial.
awarded either by Adiuittance or Confent of the Parties, or upo?i a Nient De-
dire, or a Demurrer over-ruled ; as appears Plow. Com. 79. b. and Djer
300. 367. So that upon the whole Matter they agreed, that the Suo--
geftion would not aid the Plaintiif. Hard. 311. 312. pi. 2. Mich. 14
Car. 2. in Scacc. Proftor v. Philips.
6 Mod. 507. 6. Where a ivhole County is concerned in a Trial, As in an Information
^'i'^'i- 5 for not repairing a Highway, or a common Bridge, the Trial Ihall be
TheOLieen by a Jury of a neighbouring County ; and a. Suggejiion muft be made
V. the Inha- Upon the Roll of the Cauf'e ot its being tried in another County, viz. that
fcitantsof it concerns the vvhoie Countv. Per Cur. 12 Mod. 503. Pafch. 13W.
*';^^,"""fy 3. Anon,
of Wilts ■'
accordingly ; and this tar theNecc[fity of an indiflFcrent Trial.
'T^^K^^^ (L. a) Trial per Pais. Vifne. What fhall be faid a
'-"^"^'^"'^^ good A^vard of the ^;ext County or Humlred,
See Robbery i» TJf fttt Aftion fa^ fctOUgljt againft an Hundred upon the Statute of
ry.)- — 1 vvinton, Of 13 €. i* Of Kobiictp, nm ttje mnitt fatim iis
i nails per J^^lJ^^;5fJ| upflji tfjCEOll trom Bradley, quod eft Proximum Hundredum,
(I'^o'.r' ano tijc Wtit i<3 gcnccaUp fcom QScatilep, pet it 10 poti, fcccnufe in
the Award upon the Roll, it is averr'd that the Vill of Bradley, and
the Hundred of Bradley, are all one ; auB tljeU tUljeit tijC©CnirC faCia0
10 pncraHi) ftom CBratilep^ it fljall not be intcnneti tljat tljerc ate
fe^ecal ©1U0 calicQastatHc}) bcfiDe^ tW. Cr* loCar.I^ing'iS OBencfj,
betUieen Jmeridith and the Hundred of Rape/gate, i\\ ti}t COUlttp Of J|)C=
rcforu, pec Ctitiam, in UBtitofettot, ann mtt). 10 car* aD=
junoeb, an0 tlje firft Jutiffmeiit ffiiictt in 15anK% amrm'H pei: Curiam
accorDino;!}?* 3ntcatur p. 10 Car. id. K. Kot* 233.
(M. a) Trial per Pais. Venue County. Out of what
Coujity. According to the Ijjae.
1. TiB Debt upon Obligation made in the County of B. Defendant fays
y^ it was made in the County of C. gtC* aitD Plaintiff fays that it was
made in B. where the Writ is brought; auU DefeilHant faV^ tljat It
iDa0 mane in C* antJ not in X* Clje^cnue (ijaU be irom b. tor tte
JitTue i0 talten upon it. 3 1> 6, 35, tj»
2. l!f an Abbot brings Trefpafs ar a Crefpafsi Doite to fiigi CoacI>
tttan> anb Defendant fays that he is his Frere of his Houfe in other
County, without that That he is Frere of the Plaintiff, tljilS fljall bE
ttieO by the Ordinary of the County where the Plaintiff has alleg'd him
to be his Frere. 22 C 3- 2- b. anUHlgetl*
3. 31tt Aaion upon tlje Cafe in Warwick, for faying there tO tljC
lESlaintiffj Thou art a Thief and ftoleft my Iron, if Defendant fays thac
the Plaintiff ftole from him in Leicefter tf)e IDalUe Of 3 s. 3!rOn, and
carried it to Warwick, where he caufed him to be indited, by which
he fpoke the Words in Warwick, tO U»|)iC{) the Plaintiff replies De
.Injuria
Trial. 99
' - — — — ^
injuria lu;i propria abfque tali Caufa, tljC miMlZ fljall tfllie Oltlp from
the County ofLeicelter, bCCaUfC tljC !J9art!0 abfqUC tflU CauCa tCftC
to tljcCc^gmalCaufc loljiclj tuass in Irlceffcr, ann fa Up tijcJiTue
tl)i0 onlP 15 put tn Jffiie, for tlje fpeaknin; of tlje imva^ 10 coufef«5'Dv
{©IClj. 15 3a. 05. K. bCtlUeCn Dalhimie and Swift, anjUHlJ'O i tl)0' It
wa.0 jf cloni' in i©aruiich alfo, uiljcrc tijc 3Iron mag carctcn.
4. [So] "Ijn action upon tljc Cafe in London, foe fapinn; of tlje Aaion for
nioufly Hole his Plate &c. upon which he faid the Words in the Deck- ham-College
ration at London. CO WljICl) Platntlff replied * De fon tort Demefne 7^^^^^"^
without fuch Caufe. '^Tljis oug(jt to bc trieti at Coijcntcp, ann not at , JkJ^,
jLontion ; for tljc fpcahmn; of tijc I©octi0 tss confef^'n, ant! tljc Jlfue ,7or/».^
arifcd onlp upon tljc Caiuc, tljat 10 to fnj?, tIjc OSteahtne of tljc i|>oufc The oefen-
nnu tatung of tlje l^Iatc at Coticntrp feloniouflp, loijiclj ougbt to be <j.^^^i"Pf<
trtcn bv a lur? of Cobcntrp. S^icg* 1 3 Car. 05. E. bettacen Bacon % 'I'^i %^
ciud his'lVife agalnfi Kmttesforde, tit Wt\t Of CttOr UpOU a SiUUffment College Plate.
in a5anh, anu tljc juDgmcnt z'^'Qzn in laanh tcberfeo accoroinglj^, The Fe. Fa.
Uzm^t It iuais tricb in lonoon. J'omiZtt
id'tre theU^orAs were nlleg'd to be /poke. After a Verdidi: for the Plaintiff, it was moved that this was
a Miftrial ; for the Ve. Fa. ought to be awarded from Oxford, becaufe the IlTue was join'd upon the
JutUfication, and the Words are confefs'd. But the Court refolded, that this was aided by the Statute
16 Car 2. cap. 8. being tried by a Jury of the proper County where the Action is laid, tho' the IlTae
upon Pleading may arii'e out of another Place and County. Vent. 22. Pafch. 21 Car. 2. B. R. Croffe v.
Winter. Raym. iSt. S. C. by the Name of Craft ij. ^intET, adjudg'd for the Plaintiff, becaufe
it is aided by the Statute 16 and 17 Car. 2. Bat the Defendant might have drmnrrd upon it.
*Saund. 246. S. C. by Name of CtAft b. IBoite, adjudged accordingly by Keelinof, Rainsford, and
Morton, contra to tlie Opinion of Twifden J. and alfo of divers others, as the Reporter fays it was
afterwards related to him.
5. 3!n an Aftion upon the Cafe by Executor, ff tl)C Paintlff COUntjS ^^°- 4'2- pl-
tljat ljt5 Teltator was Jullice of Oyer and Terminer ot Mongomery in ^^'■J--^V^
Whales, and made the Defendant his Clerk of the Fines to be levied Fa^cia,^ was
there in the County of Shrewsbury, and fot ttjilS CfflCC tljC Defendant awarded in-
alfumed, aUH ptOmifCB to pay 20 Marks for 8 Years &c. '^(y tDljiClj ^° theCoun-
tljC Defendant fays, Quod non exercuit Officium pr£ediQ;um by thofe 8"^5'°fWor-
Years. ^M^ cdnuot bc tricu in ^Ijropfljire, but ougOt to be in tbe thlreforetlia
mxt Count? of CnglanD to s^ongouicrp ; for tbc Jffiic i^ not upon judgment
tljc malnns of Ijijs Clcrh, but upon tljc ercrcifc of tljc C'Ificc, tnljiclj ^^s. that
cannot be but m ^ontjomcrp* i;iU. 38 €U 05. E. between Waiter ^'^ "p''-*^
end Dawes, atDUDgeH* ' becauVrthey
cannot take
Notice of the Iffuc in the County of Worcefter. Cro. E. 465. pi. 14. Hill. ;S Eli^. S. C. That
the Trial ought to have been in the County of Hereford, being the County ne.vt adjoining, and not in
the County of Worcefter ; per tot. Cur. Gouldf. 180. pi. X13. Walter v. Walter, S. P.
6. If one be taken in the County of S. with the Manner of 'Rohhery done
in the County of N. the Juftices of the County of S. fliall put him to an-
frt-er i and if he pleads Not Guilty, they fhall fend for Pais into the
County of N. Br. Corone, pi. 102. cites 26Afl'. 32.
7. In Be fail, Releafe with Warranty of the Grandfather was pleaded in
Bar. The Demandant faid, that Not the Deed of his Grandfather, prijl i
and the others e contra. And then the 'tenant faid, that he made the Deed
atD. in another County, and pray'd Procels there tor the Vifne, and could
have only Vifne where the Land was, becaufe he did not allege the Placs
in his Bar ; for now it fliall be intended that it was made in the County
where the Aftion is brought. Quod nota. Br. Vifne, pi. 42. cites 2'r
E. 3. 10.
8. In Falfe hnprifomnent the Defendant pleaded Villeinage. The Plain-
tiff' faid ^ that he was lorn out of any Ffpotifals, and the ctl\r that within
the
lOO
Trial.
the Efpoiija/s. And it was tried by Vifne of H. where the Writ was
brout^hc, by reafon that they might better tax the Damages ; and yet the
othefpleaded the Villeinage to theManor of D. in another County ; buc
the Ilfue was Born within the Elpoufals. Br. Vifne, pi. 40. cites 3^
E. 3. 34.
9. In Deficit the Defendant pleaded Arhitrement at another Place. The
Plaintiff: faid that No fttch Siibiinjion. And Vifne was where the Arbi-
treiueiit was alleged. Br. Vifne, pi. 45. cites 7 H. 6. 43.
10. And to the other Part Retainer ivas pleaded at B. another Place, and
Ilfue thereupon ; and Vifne was of B. in another County. Br. Vifne,
pi. 45. cites 7 H. 6. 43.
11. Ravtpment of iVard in the County of S. in B. R. and counted of te-
nure in the County of Eff'ex. And the Defendant faid that he held cj ano-
ther, and not of hini, and made to him Title. And per Cur. the Vifne fhall
be of the County where the ienun is alleg'd ; quod nota. Br. Vifne,
pi. 64. cites 21 H. 7. 6.
12. A. B. and C. -^xt Coparceners. They purchafe other Land than the
Coparcenary Land to them and their Heirs, and by Indentures they cove-
?iant every one u ith the other refpe£tively lor them and their Heirs,
with every one of them and their Heirs, That the Survivor or Survivors
of them and their Heirs, Jhall convey to the Heir or Heirs of the others
who die firft, feparately, at the Coft of the Heir or Heirs, an equal Part
with the Survivor or Survivors. They purchafed the Land in Kent.
A. and B. die ; the Heir of A. fues Covenant againft C. and alleges, that
he tendered to C. tn Kent an Jjurance to be made of the faid purchafed
Land i whereas the Sale "was made in Kent, and the Tender was, in truth,
in the County of Middkfex, and the A£lion of Covenant was brought in.
Kent by the Heir of A. and Ifjue was join'd upon the Tender of the Affu-
rance, and it was found with the Plaintiff. He had Judgment, which
was affirm'd in Error. Refolved, that the Plaintiff has his Elettion to
bring his Aflion of Covenant either in Kent, where the Purchafe was
made, or in Middlefex, where the Tender was made. The Place of the
Tender is alleged for Conformity, and is not Parcel of the Iffue ^ and
the finding of the Tender by a Jury of Kent is fufficient. Jenk. 241.
pl_ 24. D. 337. b. 338. VVooton v. Cook.
Le. 14S jil. 1 3. In Debt upon a Bond in London, the Defendant pleaded an Ufuriotis
206.' S C. Contra ff in the County of iVarwick. The Fhintiff replied, that the Bond
^^!^'"S'y' «;^j made upon good Confederation ; ahfque hoc, that it was made for fuch
brought ^^^ ufurious Contract. The Trial was in the County of Warwick, and held
upon a Bond good; for the Bond is confeis'd, and the Ufury in Warwick is only in
inLondon. queftion i and Judgment lor the Plaintiff. Cro. E. 195. pi. 10. Mich,
T^:^^uITa 3^ <Sc 33 £li^- £• i^- Kinnerlley v. Smart.
that the Con-
irnEi was ufurious r-ade in Surry. The Plaintiff demm'd generally. It was adjudg'd, that the' the
Pka contaiyi'd criminal Matter, yet becaufc it was tranjitory it was ill pleaded, and for that Reafon the
Plaintiff had Judgment. Cited by Serjeant Girdler. Ld. Kaym. Rep. 1S3. in the Cafe of (JcmUSton
i3» irijompfon, as Mich. 5 W. 6c M. in C. B. Rot. 797. Bare v Cafe.
Goldsb. 158. 14. Trover at P. in the County of Hunt. The Defendant pleaded a Sale
pi. 8:. S. C. ^jj ^ Market-Overt at R. in the County of N. The Plaintiff replied, that
(Sa d*^^ ave J- ^- ^°^^ ^"^^ Goods Irom him at P. and by Covin between him and the
Tudgrnent Delendant at P. in Com. Hunt, he fold them to the Defendant, as he
"for the hath pleaded. Iffue was join'd upon the Covin, and tried in Com. Hunt.
Plaintiff; and found for the Plaintiff And it was moved to be aMiftrial, ibr that
F 'd\ in the Jury ought to have been of the County of N. and at leaft of both
fpeciallv tra- Counties. And of that Opinion was Gawdy ; but the other Judges con-
verfed/the tra, becaufe the Sale was confefs'd i and the Ilfue is upon the Covin,
buying at .^^^ j^ot Upon the Sale, which is well tried in the County of N. and ad-
fonJ1n"°' i^dg'd accordingly. Cro. E. 510. pi. 35- Mi'^h. 38 & 39 Eliz. B. R.
queftion. Harding v. Sherman.
15. Fafe
Trial.
loi
IS- Faljc Iinpnfonment in Suffolk. Delendant jiiftijied by Conmijioft (^'
Rebellion out of the Chancery in Middkfex^ d'tre[ied to one £. and that he
as Servant of B. and by his Command, anejied the Plaintiff thereupon.
Iffue was joined De [on tort Demejne, and tried in Suffolk. The Juftices
held theTriiil illi for the Awarding of the Commiffion, whence the Juf-
tification arifes, is here in IlFue, and without that the Command was of
no Value; for tho' the Commiffion be Matter of Record, yet it is Pare
of the Cuiife, and the Jurors ought to take Conufance thereof And
the Judgment was reverled. Cro. £. 844. pi. 30. Trin. 43 Eliz. in the
Exchequer-Chamber, Downing v. Bayward.
16. Debt upon an Obligation in London, againft J. S. of Wakefield in
Com\ fr,td\ condition 'd to fay 100 1, at Wakefield. The Defendant
f leaded Payment of the 100 1. at Wakefield, prxdid, in Com\ Ehorum.
The Plaintiff replied Non fohit. And thereupon they were at IfTue, and
the 'Trial was De incineto de Wakefield in Com\ Ebortim. Error was af-
lign'd, for that he is named of Wakefield in Com', praed'. which is to
be intended in London j and when he pleads Payment at Wakefield
prsed". it is to be intended at Wakefield in London ; and in Com'. Ebo-
rum are idle and void Words, becaufe repugnant to the firli Where-
fore the Trial is ill, and tor this Caule it was reverfed. Cro. E, 867-
pi. 50. Mich. 43 & 44 Eliz. in Scacc. Savil v. Roads.
17. The Bifhop of London, at Fulham in Middlefex, granted the next
A'-Midance of a Church in the County of Worcefler. A C^are Impedit was
brought. Upon Iffue .^lod Non conceffit, it was tried in Worceflerjhire ; and
Judgment tor the Plaintiif In Error brought, it was object:ed this was
a Miitrial, becaufe it ought to have been in Middlefex, vi'hererhe Grant
was made. Fenner J. thought it might be tried either where the Grant
was, or the Land lay. Yelverton J. doubted whether the Trial in
Worcefterfhire was good ; but the other Juflices were clearly of Opi-
nion that it was good, and affirm'd the Judgment. To which Yelver-
ton agreed. Built. 47. Mich. 8 Jac. The Bilhop of London v. Baldwin.
18. Cafe againft the Sherilf for an Efcape upon Mefne Procefs, and for Keb -•\.
zfalfe Return of Non eft inventus. After a Verdi£t for the Plaintiff^ it P'- ,^: ^■,^'
was moved in Arreft of Judgment, that the Plaintiff had declared that the moved "to'be
Defendant falfo & deceptive returned Domino Regi apudWeflmon. Non eff in- a Miftrial on
vent us, when he had taken the Perfon, and fuffered him to efcape at Eajl the Statute
Deer ham in Suffolk, and the Venire facias was from thence. It was moved, "^.J*"^- ^^^^
that the Caufe of this Action was the falfe Return, and Ihould be brought iptafded ^
in Middlefex, as all Aftions for falfe Returns are. But the Court was where the
of Opinion that the Plaintiff has Eleftion to bring his Aftion in either Caule of Ac-
County. Sid. 218. pi. 3. Mich. 16 Car. 2. B. R. Ruflel v. Sucklen y°" '''/" ,
Sherifi-of Suffolk. ^•-/tnthi
fame Coun-
tv, and not when from feveral Counties ; and that the falfe Return is the principal; which Twifden
agreed. But Curia e contra, the Efcape being the Caufe of Jclicn, and the falfe Return is but Je;gratia-
. tion, and that the Party has Eleftion to lay his Adion in either County ; and the whole muftbelaid in
the Declaration. And Judgment for the Plaintiff, nifi.
In Debt againfi the Sheriff of Lancafler, he -was fued to an Outlaury. The Plaintiff had a Cap. Utiag.
direBed to the Chancery there, who made a Precept to the Coroners to apprehend the Sheriff, and to ha'ue him
4>efore the fudges cfC. B- at IVeflminfler on fuch a Day ; Owe of the Coroners -was in Sight of, and might
tafily have arrefied him , but did not, and they all return Non efl inventus, tho' he might be found and ar-
Jrcfted every Day. Whereupon the Plaintiff brought Aftion of the Cafe in Middlefex againft all the Co-
roners, and had a Verdid. It was moved in Arreft of Judgment, that this Action fhould have been
brought in Lancafliire ; for all that was done was done in the County Palatine, the Return made by
them being to the Chancellor of the County Palatine; and it is he that returns it to C. B. Here is all
to be done in one Countj'. It was argued, that the Aftion was well brought in Middlefex, becaufe
the Plaintiff's Damage did arife there, by not having the Body there at the Day ; That the Ground of
this Adion was the Return of Non eft inventus. And for thefe Reafons the Court inclined to give
Judgment for the Plaintiff; but adjomatur. ISlod. 198. pi. 50. Pafch. 26 Car. 2. C. B. Naylor v.
Sharpley. 2 Mod. 25. S. C. but nothing appears to be faid by the Court as to this Poiat.
Freem.Rep. 191. S. C. and Judgment given for the Plaintiff nifi.
JDd ■ 19- Title
102
Trial.
jf"
19. A Title of Land was tried out of the proper County upon a feigned
Waper, Whether well conveyed or no? (This is the Courfe of Iliues di-
reifcd out cf Chancery.) i Vent. 66. Pafch. 22 Car. 2. B. R. Mewes v.
JVlewes.
20. Covenant was brought in London., and a Breach affigned for hinder-
ing him from digging in Mines., that the Defendant leafed to the Plaint if in
Lancafhire. The Defendants pleads Covenants performed. The Plain-
titf replies, that the Defendarit did inclofe the Mines in the County of Lan-
cafier. And Ifiue being taken upon that, and tried in London, it was
moved in Arrelt of Judgment, becaufe the Trial was in a wrong County.
And the Queftion was, whether or no it were helped by the Statute of
the 16 & 17 of this King, cap. 8. ? And VVylde and Twifden held
that it was not ; for then by this Means they might draw all Caufes out
of the Counties Palatine ; and this Aftion was as much local as might
be; and becaufe it was faid the Judges had otherwife refolved in C.B.
advifare volunt. Freem. Rep. 437. 438. pi. 592. Mich. 1672. Cham-
berlain V. Ainfworth.
Vent.2i5;. 21. Cafe for at////;^ the Plaintiff p^r/wrif^ /O/tfw. T\\t AH ion was laid
S. C and the ifi X)evonpire, and the Defendant^' «_/?///«/, for that the Plaintiff' made Oath
Court (aid ^^^ Cornwall.^ that he did not kno'S) that J.S. ifas Plaintiff in fuch an Jc~
^ ard oV the ^''°"-> ^'^^ revera he did know it. There was an Illue and Verdift for the
Kefokitions Plaintiff! And it was objefted,that this A£tion ought to have been tried in
in the Cafe Cornwall, where the Jultification didarife. Hale Ch. J.faid, that Knowing
of CrofS fjy. fiot Knowing, h a Matter tranlicory, and triable in any County, tho'the
f'n'^and making Oath in Cornwall is local, and fo this Ilfue, containing 2 Mat-
*°IUifc»'0 ters, viz. Making the Oath, and the Knowing whether J. S. was Party,
Cafe, cited is triable in 2 Counties, Trial in either of them is good by the Sta-
there as of ^.^.^ 21 Jac. which has been ruled to extend to Cafes where the Matter
T^rmTn i" ^'^'^^ ^^'^^^ '" "-^^^ Counties, and the Trial is by one only, as well as
whidi'the where the Matter in Iliiie arifes in two Places in one County, and the
Defendant Trial is by one only. To which Jones anfwered, that no Place is put
pleaded a Y\eTe where the Oath was, to draw the IfTue from Devonfliire, as to this 9
f L*^d"" fo ^^^^ ^^^ "^^y ^^ "^^^ ^" Cornwall, and the local Matter draws the
OxfoTd(hi>e, Tranfitory to it; but the Tranlkory whereof no Place is alleged, fhall
and the Iflue not draw the Local to it ; but that if IHue had been taken upon the
■was Non Knowing, it had been good ; for then the Local Matter, viz. the making
feotfavit.and ^^ Q^^y^ ^^^ ^^^^ vvaved ; And upon this Curia advifare vult. 2 Lev,
London" 121. Hill. 26 & 27 Car. 2. B. R. Jennings v. Hunkin.
"where the
Aftion was laid, the Opinion of the Court was, that the late Statute would help it, they would
not ftay Judgment, but laid they conceived it not within the Meaning, tho' it was within the Words
of the Aft ; and that they intended only lb that the Trial was in the County where the liTue did
g^jCg 1" Keb. 509. pi 59- S. C. Trin. 27 Car. 2. B, R. that the Affidavit was taken before
VaUghan Ch?' f . as Chief juftice, and not as Juftice of AflTife ; and therefore, tho' it fay Jurat, apud
Lnuvcefton, yet it is tranfitory, and not local. The Parties agreed to amend, and lay Oath and all in
Devonfliire but the Court inclined on local Iflues ftrongly, and clear againff former Judgments. So
of an Oath' taken at Weftminfter, which was at Serjeant's-Inn, is well enough, and the Place not
piatcrial.
* 2 Lev. i'iJ4. Adderley v. Wile.
22. In Covenant &c. the Aftion was laid in London, and the Defen-
dant phaded a Feoffment of Lands in Oxfordjhire. The Ifue was Non feoff a-
•vit, and the Caule was tried in London. And after a Verdift, it was
moved that this was a Miftrial, becaufe a Feoftrnent in Oxfordfliire of
Lands there, is local. But it was refolved to be cured by the Statute of
17 Car. 2. of Jeofails, by the exprefs Words, it being tried in the County
where the Atlion was brought. 2 Lev. 164. Hill. 27 & 28 Car. 2.
B. R. Adderly v. Wife.
23. In Dek upon Bond in London, the Defendant pleaded a Releafe
dated at Newcajlle ttpon T'yne. Upon Demurrer it was argued, that this
is a tranfitory Aftion, and fb the Plaintiff' might lay it where hcpleafed,
and
Trial. 1 03
and that the Releafe pleaded is alfo tranlicory j and when the Defendant
pleads tranlicory Matter in Bar, he ought to conform to the Plaintiff's
Declaration; andtho'the Releafe bears Date at Newcaftle, it may have
been delivered at London, and Traditio facit Chartam. But per Cur.
Where a Deed bears Date at a certain Place, it is local, and muft be
pleaded there. And if the Plaintiff had not replied Non eft faftum, the
Ycnue muft have come from Newcaftiei and faid that (Datum) prima fa-
cie iie;nifies Deliberatum. And they advifed the Plaintiff to waive his
Demurrer, and take Iffue upon the Plea. To which it was confented.
Ld. Raym. Rep. 183. Pafch. 9 W!. 3, Errington v. Thompfon.
(N. a) Trials. Out of what County. Where out of
t'wo or more Counties. County.
I. Tii5 AfTife, if tIjC Birth of one who claims as Heir, be alleged in a See(Y. a)
1 foreign County, (t ttta? U tticn 1))? UOtl) COUtttie^* ^(> €. ^. P' 4 5- —
8. 48(!I;. 3. 30. ClUStC* Sarefaaat
2. So tit l^dttOn, if Efpoufals and Birth during it are alleged in ano- p'^^lyY
ther County, tW Ajall \\Z tClCtl bj? UOtlj COUntie^* 8 I), 4. 22. Sm of j. 'sm
of E. the
tenant faid that E. had vofuch Son as J. the Plaintiff faid t'hat E. had fitch a Son as J. born a>?d begotten
at D. in another County, and Vifne was of both Counties. Quod nota. Br. Vilne, pi. 51. cites 8
H. 4. 22.
3. So in Formedon, (f t\)Z DemanUflllt counts that R. Father of T. Br. Vifne,
was Son of R. the Donee, aitti t\}t Tenant fays that R. Father of T. P^^^- cites
was Son of J. born in the County where the Land is during the Efpou- ^onicVdd
fals there; if Demandant fays that he was Son of R. tl)C OOIICE born that the
during the Efpoufals with A. in another County; tljtjS fljail t>C tCtell Ijp Trial nioulJ
Wl) Coitnttcjs» DiUjttatuc* 19 5), 6» i6, so. counties""'
and fome that it fhould be where the Land lies. But the beft Opinion was, that becaufe the Deman-
dant alleged the Birth to be in other County than where the Land is, whereas he need not have fc«
done; that therefore the Vifne fliall be where the Birth is alleged. But it was not adjudged.
4. Jn Affife, if tlje JIfUC be, whether the Tenant was Son of J. by * Br. Vifne,
A. his firft Wife, by whom the Land defcended, or by B. his 2d W^ife ; P'- 97- "tcs
and the Birth and Marriage are alleged in a foreign County ; tljfS fljatl
l)c tricu lip liotl) Coimtic0» * 45 ^ff* i2» 46 ^IT* 5, atijutseb* 48
5. 3!lt Alfife of a ;Common in Confinio Comitatus, if tIjC JlTue ht, Trial per
whether he has Common by Prefcription in Land in one County, appen- ''^'^ ai-
dant to a Manor in another County ; tW AjaU \iZ triCH &P IJOtl) COUU= s'°P* p^
tiegi* 49 C* 3* 20. 29 (£♦ 3* 45» b* Choke, Dan.
by, and
Jiloyle ; but Needham contra. Br. Vifne, pi S6. cites loE. 4,. 10 There Jhall be two fcveral
Writs to the Sheriffs of the feveral Counties. Or if the Land to which QTc. lies in one County, and tl^
Lands in which Izi'c. lie in feveral Counties, there he Ihall have one Writ of Affife to the ShcritF of the
County where the Land to which &c. lies, and feveral Writs to the Sheriffs of the Countries where
ihc Lands in which &c. lie. 7 Rep. in Bulwer's Cafe, cites the Regifter, and F. N. B. iSo (A)
6. -Srije fame latU 10 tit H Trefpafs brought in a County (tUljICD CiHt^
not be tit Confinio) upon fuel) Wwt it (ball be trieD bp botb Couu=
tiesi» 49 c 3. 20v abjubgei!* 29 €. i, 45* b»
7- 3!n Action, if Plaintiff fays that T. had Iffue in one County, him-
lelf the eldeft, and A. the youngeft, antl tl)e Defenciant favs that he had
Illue
104.
Trial. ^
lliue in another County, A. the eldeft, .and the Plaintiff the youngeii,
without that t!int i)c ijan JfTue tlje * ^9laintiff tfjc cinea i tW fljait be
trieu b\> Dot!) Coiiutieis* 18 ip, 6» i u 19 fp. 6, 16, n» fa* 50* b.
^. 3l\ Precipe quod reddatot a Manor in one County, if Tenant fays
that the Moiety Of tljC Sl^ailOt is in another County, It fijaU bC tXlZU
bj) botlj Counties* 9ii>6.66,
9. 3m Scire Facias, if Plaintiff pleads that A. took a Wife in one
County, and had lliue him, ntltl Defendant fays that A. took another
to Wite long Time before the other married, and this in other County,
to lUljtClj Plaintiff rejoins that A. was firlt efpoufed where he has al-
leg'd, and not where Deiendant has alleg'd ; tljlSi SiJTUe fljall bC tncH
bp bot!) Coitutiesi, bccaufc tljc jmie i^ upon tije pribit]?* 18 ii), 6.
II.
But where jo. Ju Trefpafs in County of B. DcfettUant juftifies by ifOtCC Of fl
the Plaintiff Common by Prefcription to his Land, in the County of D. and it is
■7\lh?Se traverfed that he has not any Land in D. tW Hjail be ttlCQ b? tIjC
vcr^\ abfiiue couuty of D* oiilj) J foc upoti tW Milt KOtJjinu 10 to be inqiitreii
hoc that the (II fijg o'tljer Countp* 49 <S. 3- 20.
It d Common there, the Vifne was awarded from both Counties; Quod nota. Br. Vifne, pi, 28. cites
^°n f f, f}nii a jM^nor in Ha»?p[l:ire, -prefcribes to have Common in PFiltJlihe : In a Trial for this Common,
the Venire Facias is to be awarded of both. Cited per Cur. Bulft. 46. Mich. 8 Jac. in 5[lv5kernt's Cafe,
as adiudg'd the fame Term in Godfcrie's Cafe. Trial per Pais 91 (104) fays that Trefpafs cannot
tc in Confinio.
11. Jf it be pleaded [by one] that the Ward holds of him by older
Feoffment than of the other, ailU [by] the other, tliat he holds of him
by the older Feoftment, without that that he holds of the other by older
Feoffment, ailTl the Land lies in feveral Counties • aUti tljO' tfte '^Zti-
uerfe 10 taken upon one onlp, }^et becaufe it ^m Reference to tfje
otbet part of tlje g)entence of tlje tCcnure of tlje otljet, tljat igi to fap,
of tuljom be bolbjs more anciently, tlje %m\ mm to be b}? botfj
Counties* n I)* 6. 54* is ip. 6. 10. ii, 29 e*3-45- b*
12. So if a Deed be pleaded to be firlt deliver'd at a Day after the
Date in one County, anO the other fays that it was deliver'd firft the
Day of the Date in another County, without that that it was firll: deli-
ver'd as the other had alleg'd ; tijtlS fljall be ttiCtl b^ bOtl) COUntte^
notbJitbflantJtng tlje Craijerfe -, for it \m iReftrence to tlje firft "Dz^
libcrp in tljc otljer Countp, of luljtclj tljis« Count? cannot tafcc Conu=
fance* is ^)* 6. 10. b, atsjutigcb*
13. 3ijx Alfife for Rent by Prefcription, 5110 alleges Seiiin "in other
County, and the Seilin traverfed. It fljall be ttten m bOtl) COUttt(ejJ»
1 1 rp* 4- 49- b* becaufe tbc lanli tg cljargeD*
I4..'2rije fame LaiU in Avowry, ii !)♦ 4. 49. b»
15- JiU Mortdanceftor, if Plaintiff makes himfelf Heir to J. aitH De-
fendant [fays] S. took his Mother to Feme in other County, by whom he
had lifue the Plaintiff without that that he is the Son of J. tljijS fljallbC
trtctJ mljcre tbe Action is broug;ljt, becaitfe tlje Craberfe putis all upon
tije ajatter tljere* islx 6. n.
16. 31,f a S^an pleads that a Deed was firlt deliver'd in one County,
iinU tlje other lays that it was deliver'd in another COUUtp, without
that that it uiaEi firft neliber'n tuljere tlje otljer Ijasi alleprr ; tljijs fljaU
be tvicn luljere tlje -Craberfe ijs taUcn, becaufe tlje Craberfe put0 aU
upon tlji£i County is % 6. 1 1.
17. So if a Deeb be jJleaUCD bearing Date m one County, auti tljC
a p. Cro. E. other fays it tDa0 mabe by Durefs in other County, tO UJljiClj t\)Z otht r
rejoins that it was deliver'd where it bears Date without that that It
tUflS tlClib£V'i;t per Durefs where the other has alleg'd j tl)i0 fljail bp
txi\.i$
195. pi. in
Cafe of
Trial.
105
frieti toljcrc tljc Dtiref^ is allesen, for tlje IfTuc put0 all upon it* J^innrr^ifp
18 JP. 6. xo. b. ctSf 5,
I If. 2$H. tf. 24. H. 2S Eliz. Rot. 511, or 2ii.between * Sibthorpand Turner,
* Le. 149. in Cufe oFKinnerflcy v. Smart cites S. C. but mentions Rot. 209.
18. In Aftion againft Executors, they pleaded Plaie Mmifitjlra'oit, and
the Plaintiff aV eg 4 AjJ'ets in the County of Aiiddhfcs and S. and per Cur.
he fliall not have Vifne but of the one County only, which Ihall be at
the Eledion of the Plaintiff, as it feems, and the Reafon leems to be in-
afmuch as the Jury of one County may take Conufance of the Aflets in
another County, for Goods are tranlitory. Br. Vifne, pi. 108. cites 18
E. 2. & P^itzh. Executors 114.
19. I'refpafs cf a Clofe broken in D. in the County of L. and the Defen- So in Tref- ,
dant prefcnbed that the Inhabitants of J. in the County of W. have a Way to ^^\°^^^f^
go j rem thence to F. in the County of L. by which he, as an Inhabitant &c. Defendant^
ufedthe Ray 8cc. and they were at iffue upon the Prefcription ; and per /i/e^^c^i than
Choke, Danbv and Moile, Yifne Ihall be of both Counties. Br. Vilne, l^e had a
pi. 86. cites 10 E. 4. 10. ^'f'^'/n '"' ^
^ . ' the County of
N. Time out of Mind Sec. and frefcrihed to draw his Nets in the Soil of the Plaintiff, in the County of L.
the Plaintiff /fvjpt/eii the Prefcription in both Points. The Court were of Opinion that the lilue fliaU
be tried by both Counties. D. 26;. b. pi. 14. Mich. 9 8c 10 KHz. Anon.
20. In Replevin in one County ^ if the Defendant avows, for Tenure of his
Manor in another County, and Jfjue upon the Tenure, Vifne Ihali be of both
Counties. Br. Vifne, pi. 86. cites 10 E. 4. 10.
21. Two Counties may join altho' they are not the next, as Lincoln Trials per
and Eflex, and * the Jury ihall be equally out of both, viz. lix out of ''^''' 5i?-
the one and lix out ot the other. Fin. Law. 59. a. ^ |^ )^cues^
. But more
Counties than two Jliall not join. Fin. Law 59. a.
■* But in Rephiin the Defendant avou-edfor Dawage-feafant, the Plainiiff by Prefcription claimed Com-
fiion in the Place where, being in B. in the County of If. appurtenant to his jWamr of D. in the County cfG.
two Venires were awarded to the Sheriffs of the feveral Counties, Scjen of one County and fi'je of the other
appear'd,3nd tried it by JJfejit of the Parties. It was allow'd by the Judges, bat commanded their Affcnt
fiiould be enter'd upori Record ; otherwife it would be a ftrangc Precedent. Cro. E 4-1 fbis^ dL "2
Pafch. 58 Eliz. B.R.Sheldon V.Hodges. ^' ' ^ ^ *" ' .
(O.a) Trial. County. In what Cafes. By two or p„, ^^^
more Counties. o-'^vtn^
See (N'.aj
I. T B miction Upait tIjC statute of Marlbridge, foc taking Diflrefs Trials per
X in one County and driving into an another COlUltl', if tIjC S)£= ,^'"'* '-
fcnuant plcaDsi Not guilty, tljc Ctial fljall be onlp bp tljc Countp s °p*''b7~
toljcrc tlje DciiJing tuasi, for tW iis all tlje Caufe of tijc ^rtion. 4 Thorpe,
3|)» 6. 4. b* that all Hiall
County, which Finchden agreed, becaufe it is by Statute. Br. Lieu, Sec. pi 2; . cites 5S E. 5. "4
jaion upon the Statute ot I & 2 P & M./cn- taking a Diftrefs at D. in Sujfex, and driving it to S in
Kent, the Defetidant pleaded Not guilty, and it was tried by a Jury of the County of Sullcx ; and this
Matter moved in Arrcft of Judgment, becaufe the I'enire lacias ought to have been frcm both Counties ■
for the Tort confifted of two Parts: And of that Opinion was the whole Court. Cro E 6'6 ol «ri'
l^Iich. 40 & 41 Eliz in C. B. Gibbin's Cafe. ■ ■ t ■ i- ■ i^.
2. Jn Action of Forgery of Falfe Deeds, for making of the Deed in S.C cited "
one County and proclaiming ic in another, if DCftllDailt plCaDS Not 5 ^^o^. 225.
Ee guilty, ^'"g''^^*^
i o6 Trial.
Cafe of the guiitv, tt fijail be tricn bp botlj Counties i bccnufe tljc i©ritms i$ a^
Imnb. nnitcnai a0 tbe pi-otlaumnn;, 41^,6.4. b*
2:l)0ri3C 4 aU and admitted by the other Side.^ 7 Rep. 2. b. in Ellllotr's Cafe, cites 29 H. S. 5S.
Je;(H.a 5)pl- iS.
* See (T.a) 3. Ju Raviihment of \^'arci, if tljC JITUC bS whether ha holds of
pl. 9 S C— ^i-ie ,-,ne by Owelty or of the other by Eigne FeoHmenc, if tljC Lands
^i'',^, rire. are in feveral Counties tl^e JDeiltrC Jfada0 fijnlt be Of bOtl) COlfJItlC^"
rc!iil- uccaufe tbe lauD 10 tlje Caufc of tljc Action, * 10 ^,6. 19. f n
t Br. Vifne, fp, 6. 54.
pi. 1 1 5. cites
^' ^- . 4. But if the Lands were in one County, but tljcp VOSTt held feve-
Br. Vifne, rally of one as of his Hundred in another County, and of another as of
Ic "'"'"his Manor in other County, JJCt tlje miMlZ fijaU bC Onlj) iDljCrC tljC
InnH 10 ; foe tt)i0 1^ onlp tljcCaurc of ti}e actiotu lo p, 6» 19.
Br. Vifne, ^. Jj] Trefpafs, if Defendant claims the Goods by Gift of the Plain-
pl. 1 10. cites jifl- in one County, iinU Plaintiff" pleads a Gift of them to him [back
adds' z again] in other County by Dekndant, anD tIjC JllTllC 10 whether De-
Qu^re, for fendant regave them tO t\jZ plniUtlff, ilftCC tlje vSlft bj? ijim tO t\)t "DZ^
it feemd to fEiitiant, il)t iDcitue lijall be from botb Cotintic0, bccaufe one Coun=
!n'aii''be'' ^^ ^^"^"""^^ 'J^^'^ Comifancc of botlj Q5ift0» lo ip* 6. 17.
only where the Giving them back again v/as, and that all may come in Evidence.
Br. Per qua: 6. 3!n Per qu2 Servitia, if Plaintiff counts that the Defendant holds
feervitia, pi. certain Land in tbS COUUtP Of Middlefex of him, as of his Manor
i^c"^ i^?3lcl) 10 in tlje Count? ofSuifex, loijere tbe l©rit 10 brouixbt, ann
Br Vifne tljC Ilfflie i0 whether he holds of him ; ti)l0 fljnll bC ttlCD OUlP in tlje
pi. 4.3. cues Count? of g^ititilcre;;, tubere tbc Lano lie0, becaufe ti}z\> tfjetc
s c. — — tiiai) UnoiD if be \)om of tlje ccnufoc ot not* 2 1 c* 3- ^s.
Br. Lien &c,
pi. 69. cites S.C. Br. Vifne, pi. 105. cites S. C. 7 Rep. 4 b. in ZSullTEr's Cafe cites S. C
fays that 6tone pronounced the Rule of Court in thefe Words, viz. He cannot have any other Writ,
for his Writ muft be according to the Fine, and brought in the County where the Note is levied.
Br. Vifne, <j_ Jj^ Scire Facias to execute a Fine, If tIjC Tenant pleads the Releafe
V^- 19- cites of the Demandant in a foreign County, and alleges that the Demandant
S P butit was born there, tO iDljIClj tlje Demandant fays tljat be tt]a0 within Age
fhouid be as at tbe Releafe marse, tbe mtmiz fljall be from botb Counties, tDat
in Roll, viz. ig to fup, uiijeie tbe lanD 10, an5 uibecc tt}€ Eelcafe Uia0 mane* 3«
UeVneothcr<!^*3. i7-b,aQjunfixD.
Editions of Brooke. But Brooke fuys he wonders that it had not been only where the Birth is |
alleged.
8. A Man (iijfrain'd /« the Coufity of N. in Land held of the Honour of}
, tV. in the County of D. and Replevin was brought in the County of D. and.
■well, notwithttanding the taking was in another County j tor none can
make Replevin but the Sheriff of the County where the Bealls are im-
pounded j Quod nota. Er. Lieu, pi. 79. cites 29 E. 3. 31.
9. trefpafs brought in the County of H. of hnprifonment at D. in the
fame County^ and of the taking at L and Imprifontng there, and therefore
he took nothing by his Writ, and the Plea was inafmuch as the Writ
was brought in H. of Imprifonment in L. Judgment of the Writ ; but
per Hank, if the Counties may join, the AQion lies, and he fliall have Vifne
of the one County and of the other i Quaere inde, for it feems to bey*-
veral Imprifonment s, of which feveral Actions lie. Br. Trefpafs, pi. 95.
cites 1 1 H. 4. 64.
Br. De fon 10. Trefpafs of Battery at IV. in the County of E. ths Defendant faid
tort Sec. pi j^^^^t the Plaintiff made an Jjjault upon him at IV. in the County cf K. ivhich
3- '"" JJfault continued te the Place in the Declaration in the County of E. 'where
Trial. 107
'ihe Defendant ciej ended himfelj\ and the Damage which he had was De fon *4 H. tf ifi.
j£ault deniefne ; Judgment &c. and the Plaintiff' fatd that the Defendant^- *-•
1,1 adc an Ajjatilt upon hint in the Place in the Declaration, in the County of E.
De fon tort demefne, abfqiie hoc that he made an Ajjault upon the Defendant in
the County of K. Modo i3 Forma i and after he relinqui(Jfd thts^ and [aid,
that the Defendant made an Ajfault upon him in the Place k3c. in the County of
i\. De fon tort deviefne without fuch Caufe, which was tried by Vifne of
both Counties : And fo was the Opinion of the Court, that it be in the
firll Cafe, and the like always where the Alfauit continues from one
County to another. Br. Vifne, pi 6. cites 34 H. 6. 15.
1 1. I'i the Parties are at Ilfue, Whether two Acres of Land in D. in the
County of E. are Parcel of the Manor of P. in the County of K. this Ihall be
tried by Vifne of both Counties. Br. Vifne, pi. 6. cites 34 H. 6. 15.
12. In Aifion for Words, the Defendantj?//////^Vii^' Perjury in a Suit in
the Exchequer Chamber at VN^eftminfter, between the Detendant and W.
R. and a CommiJJion awarded thence to exatnine Witnejfes at B. in Berks,
where the Plaintiff' made a falfe Depojttion ; the 'Plddnix^ replied, De injuria
fua propria &c. This was trted in Berks. It was argued that the Trial is
good, for the Matter of Juftification is the Perjury, and the Suit and
Commiffion are but Inducements and Conveyance to the Aftion, nor did
the Deiendant Ihew that the Exchequer Chamber is in the County of Mid-
dlefex, as he ought. Per Gawdy and Wray, when the Defendant julti-
fied for Perjury, and Plaintiff replies Abfque tali Cnufa, this amounts to
a T'raverfe of the Perjury, which being fuppofed to have been committed
there, ihali be tried there. The Trial was held good ; and tho' it be
not pewn in what County the Exchequer Chamber ts, the Plaintiff had
Judgment to recover. 2 Le. 102. pi. 127. Trin. 31 Eliz. B. R. Parker
V. Burton.
13. AJfumpftt, fuppofed to be in the Par'ip of St. Mary le Bow, in Lon-
don, the Deiendant pleaded to Part, Non Affumpjit, and to the other Part.,
a Releafe, in the Partfh of St. Magnus, and one Venire Facias was award-
ed to try both Iffues, and it was De Vicineto de Bow . It was moved that it
was a good Trial lor the Iffue which was at Bow, and a Difcontinuancc
for the other, and cited 11 H. 7. 5. But the Opinion of the Court was,
that inafmuch as the Venire Facias was awarded for Trial of both If-
fues, this is a Miftrial in all, and cannot be good tor one; But in ii H.
*j. 5. the Queftion did arife, for that it did not appear that the Venire
Facias was awarded to try both the Iffues, and judgment was llay'd;
and they faid he might take a Venire Facias de Novo, if he would.
Cro. E. 171. pi. 13. Hill. 32 Eliz. B. R. Johnfon v. Tucke.
14. Trefpafs of Ajfault and Battery in Wilts, continuing the Ajfault in Trials per
Middlefex ; and adjudged that the Jurors fhall come out of both Coun- ^^'*' '°.'
ties. Moor, 538 pi. 704. Pafch. 39 Eliz. Michel v. Long. ^"(4^ '^"'
tecs
(O.a. a) Trial per Pais. County.
I- T if a ^ait claims an Annuity out of a Manor in one County, and S. P. As ap-
X alleges the Seilin in another, anU tljC Polfeffion traverfed j tljIS Pf'"'^ ^y ' '
tijaU Uc vcm bi? botl) Counties* 9 V* 6. 63. ^ecaufe''thr
1. /• /- J I r, . , . ^ . Sheriffs maf
be luppoled to meet on the Bounds of each County, and impannel the Pares there. G. Hift C. B ;i
cap. 7. 3 New Abr. 258. S. P. in tondem Verbis,
2. [So]
io8 Trial. '
2. [So] :jfaS10an claims an aumUtP out ot a Church by Prefcrip-
tion ill one Countp, ann aHen;e0 tlje ^eiQit in anatljec, ann tlje Seiiin
i-^rQ-^ traverfcd, tlje Ci'ial map be bpibot!) Coumie0. * up, 4. 49. b.
pi. ^2. cites 1 4 P^ 6. 27- b* + 4 ^* 4- 26. Contm 10 !t). 6. 19. b.
fj (^
Jbid. pi. 8; . S. P. cites 1 E. 4. 28,- Annuity was brouglit a_^ainfl a Parfon^ where the Q;urch chari^ed
rj;.TS in one County, itnd the Seijin in another County, and they were ar ffiie ttfon tie Seiftn ; and the Vifne
vss awarded of the County where the i'cy/??; was alleged only, and noi whefe the Church was. Br.
Vifne, pi 90^ cites 48 E. :;. 26 & 49 E ;. 5.
I Br. Lieu &c. pi ;S. cites S. C. per Marten J. that where a Parfon 5s feifed Time out of Mind, ,in
one County, of Annuity ilTuing out of a i hurch in another County, he may bring the Writ of Annui-
ty in the one County or the other at his Eleftion.- — Br. Vifne, pi. 60. cites S. C according to Roll.
4: Br. Vifne, pi. 84. cites S. C that the one and the other is good ; and therefore, becaufc it was after
Verdict, Exception taken thereto was not allow'd. Br. Repleader, pi. 52. cites S. C.
S. P. Br. 3. So it map be if t!jC Prefcription be traverfed. 19 I'), 6. 16.
Vifne, pi, 66. " _. ' ,,
cites 39 H. 6. 15.- Where the IlTue was upon the Prefcription, the Vifne wa.s awarded from the
County where the Seifin was alleged. Br. Vifne, pi. 27. cites 49 £. 3. 5. Ibid. pi. 51. cites H.
16. E.3. accordingly. But Ibid, cites 2i H. 6. 2. 3. contra.
* Br. Vifne, 4. ^jjt Annuity, if it bC Claim'D out of a Church in one County, and
pl. 3i^^ates alleges Sgilin in another County, aUll tljE gjClfin traHCrfCll, if the Coun-
iftiieCoun- ties cannot join, tlje 'fiTrial fljall bc otilp iuljEce tlje S)Eiftn i^ alleseo*
ties cannot lo t), 6. 19. b* * 1 1 P* 4- 49- b* aOjUUffeB*
join, itfliall _y. Qj^ojifra i7<S» 3- 32. Jt \\\t!C^ bC where the Original is brought,
be tried by ^j^^ Church being in the Ikme County alfo.
thofe or the "=" •'
County where the Church is. Qja^re. Br. Vifne, pi. 60. cites 4 H. 6. 27. Annuity was brought
ai^^ainfi a Parfon, and the Church uas in the County of D. and alkg'd Seifin at Exeter, irhich had Privilege thltt
'jheyjhould not join nvith Foreigners. And they were at Iffue upon Prefcription, and yet the Vifne was of
both Places. Br. Vifne, pi. 112. cites loH. 6. 19.
Where Annuity is due to a Church out of a Houfe in the County of C. and the Plaintiff and his Prede-
celTors have been feifed at D. in another County, the Plaintiff may chufe to have his Aftion in the
County where the Seifin. is, or in the County where the Houfe is ; quod nota. Br. Lieu &c. pi. 37.
cites 4 H. 6. '5. ■ — 7 Rep 2 a in I5ultotr'0 Caff, *>■ P- The Plaintiff may eledt in which County
he will bring his Aition, cites4S E. 3. 2(5. a. &c. 4H. 4. i. 4H. 6. 5. b. 39 H. 6. 15. b. 2 E. 4. 28. b.
4 E. 4. 26 a. &c. Rut otherwifc if an Annuity be granted in oneCounty lo be paid in another, there Adtion
lies where the Grant was, cites 8 H (5 23. b. S. P. fiut an Annuity to receive from a Man of Reli-
gion, or a Body Corporate, or from a Church, ouglit to be brought uijere the Church or Houfe is, or inhere
the Seifm n alleged. F. N. B. 152. (E)
6. So fljall it be if tlje Prefcription be traverfed, tlje 'WviHl fljall bC
o\\\\> uiljere tljc Seifin 10 alleg'D* 10 p, 6. 19.
7- 3it fln Annuity be brought in one County, and a Seifin alleged in
another COmitp, auQ Uje Seiiin traverfed. It (IjaU bC tnCU tUtjete t!)e
€*eifin i0 atlcgeD* 17 ^* 3- 32.
Tnals per g. jj^ g^ cjaiOJt UpOlt tljC Cafe againlt the Sheriff of York for ari
* Cro^'^£° E^^-^^P^j ^"d counts that he arrelled the Prifoner UpOH a l©nt in the
625 pi 19. f^'d County, and aftCC fuffer'd him to efcape at D. in the County of
S.C. accord- Nottingham. CO lUljiCf) tlje DCfCntiant pleaUen Not Guilty. C{)l0
ingiy. And jffne x\m bz trien bp tlje Cotinti) of jaottlngbam onip, toitljout
thTtTn re m^m Of t\)t Couiitp of ^ocU i foe tlje action ano Jfliie 10 upon m
gard York Cfcapc, aiiD iiot upoit tlje avreff. ^. 40. 41 m, 05. K* between
was a City * Bmw» and JVatfon^ pet CUCiamt
and County,
and fo could not join with any other, therefore alfo the Tri.il fliall be from the County only where the
Aftion is brought. So where the Arrelt was laid to be in the County of Southampton, and the
Ifcape fuffer'a in London, and tlie Trial was in London, it was adjudg'd for the Plaintiff, the Efcape
being the Matter upon which the Aftion is grounded. Cro. E 271. pi. I. Hill. 34Elii. in the Exche-
>quer, Richbell v. Goddard. See (H. a. 3) pi. -27.)
Cro. fe. 620. 9. 31^ Trefpafs of a Cow taken at D. if tIjC Defendant juflifles for the
accordingly- ^'°'^' becaufe J. S. holds of him certain Land in S. as of his Manor of
and that the' ^' by Heriot, ailO tljC Tenure is traverfed, t!je mHW map be ffOm
I
Trial. 109
^,^> nna v. for Dnmaijcsi aw ta bt mquiren ajs lucll a^ tljc3Iffue» '*f«'i;^'h"e
^, 40. 41 (£1, 15. E» betUICCn ^^/w; ^/;i Harbaffi, aOjlHipD* w^s, mty"^
have the bcft Notice of the Damages, and therefore as necefTary for the Venue to come from as the
othc- ; and To a Judgment in G B. was affirmed in Error.- S. P. 7 Rep. 2. a. in Bulwer's Cafe, cites
I 5 £. 4. 5. a. b. "50 H. 6. 6. a. b.^ D. 2;S. b. pi. 5. Mich. 10 Sc 11 Elii. Gawdy's Cafe, S. P.
10. In Cafd the Ylxxnti^ declared, that Defendant eshihited a Petition
agatnJT him to the King tn Council^ jor ereifiiig Cotages in K/ngfwcod-Chace
in Gioiicejhrjhire, and that he ivas covipeWd to appear at great Expence, and
was afterwards difcharged. This ylclion was lirll laid in Gloucefierjhire,
and the Defendant moved that it might be laid in Middlefex, where the
Petition was exhibited. But it was inlilled for the Plaintiff, that where
a Caufe ot Aftion arifes in 2 Places, he has his Election to lay it in ei-
ther. The Court held, that the Exhibiting of the Petition was the
Ground of the A£tion ; and tho' it contain'd Matter done in another
Place, yet it Ihall be tried in the County where the Petition was deli-
ver'd i for fuppofe the Petition had contain'd Matter done beyond Sea,
&c. 3 Mod. 165. Hill. 3 Jac. in B. R. Newton v. Crefwick.
11. In an Information againil T. and others, for confpiring at Win- Carth. 5S4.
cheller in the County of Southampton, to marry a School- boy there, the S. C. but
only Son and Heir of his Father, to a Woman oi an ill Charafter, and ^- ^°^
no Fortune j and afterwards marrying him to her in Oxfordfl^ire. The
Trial zi'as in Hampf/nre, and the Defendants found Guilty. It was
moved in Arreft of Judgment, that here was a Miitrial ; that the Con-
fpiracy being laid in Hamplhiire, and the Marriage in Oxfordfliire, the
Trial Ihould have been by a Jury of both Counties. To which it was
anfwer'd by the other Side, That in an Indiffment the Counties are never
joind. But the Court faid nothing to this Point ; & adjornatur. 5
Mod. 221. Trin. 8 W. 3. The King and Qj.ieen v. Thorpe & al'.
12. An A£i;ion for a. Falfe Return is local, but may be laid in the
County when it was made, or in that in which it appears on Record; per
Cur. 12 Mod. 40S. Trin. 12 \Y. 3. Lord v. Francis.
(P. a) Trial per Pais. Out of what County theVifne
lliall come. When Part of the Matter to be tried
is in one County^ and Part in another. There 'voheri
beji Conujance may he of the Matter.
1. Tii5 Attachment upon Prohibition, if tIjC Summons and Denuncia- Rr. Lieu,
\_ tion of the Excommunication are in one County, and the Suit in Sec. pi. ij.
another cCouiiti? coitttatj) t0 tljc ptoljibition. It flj'aU be tricU uiljcre T'v-^^
tlje g)ummoni5 anu Dcnuuciattoit uia^* 44 C, 3- 32. pi' i- cL
the Plea was held in the County of C. and the Attachment was in the County of K. and they were at
J^m vihether it was for his I'ithes, or for Debt re/erved therenfoyi, which was a Lay-Chattel.
2. 31tt Difceit for cafting a Proteaion Quia profeaurus, UlljCtC IjC nC= Difccit was
Set tDCnt O'bEt tftC @ea, hut continually remain'd in fuch County i ifbroughtbe-
tt)e Defendant faith, that he was fick at the Proteftion call in other "'"'^'"/'i'
County, tm fljall fie tricn mm m mmxti^ \& aUcgcD. is e. t'tVoJ^uz
3- ^3- bythePlain-
thc Defendant in Bank at Weftminfter, in the County of Middlcfcj:, be ..t/? P,otenior. r,!!j JForat!-'«s
no
Trial.
&c. whereas he li-as aller.rliii,'?, his cxn Biifir.efs in the County of Tork ; and tlie Action was brought in the
County of York, and not in Nliddlerex where theCafting theProteftion v/as, and yet f^ood byjudgment;
for there it may be bell tried whether he attends iiis Bufinels there or not. Br Difceit,. pi. i. cues 20
H. 6. 10. For the carting the Proteftion in the County of Middlefcx is not the Dilceit, but the
attending his Bufinefs in the County of York. Nota. Br. Lieu &c. pi. ;. cites S. C.
If Defendant cafts Protection in one County, and remains in another. County, he may bring Aciion
in \vhich of the Counties he pleafe. 7 Rep. 2. a. in Sulwer's Cale, cites 20 H. 6. 10. a. b. — See (^H.a. 3)
pi. 32.
Jjffe ^gainft 3. So if at t!)C Petit Cape tIjC CCttant alleges Imprifonment in one
B.imi and County tor laving his Default, ailll tl)Z Plaintitl' [Hiith] that he was at
die'^'^rL I'^rge in another County, tIjtjS fljaU DC tViCti UJljCCe t\)Z 3!«ipnfCnment
atpear'd,md 10 al!en;eli+ i8 c 3. 13.
the Feme
}}uide Default, and the Plaintiff pr/iy'd the J0e by Default of the Feme ; and the Baron faid, that le
cwht not to haie the Jjffe by DejiUih of his Ji'ije ; for the Plaintiff and others ravijh'd her in the County of
K. and there as yet detain her. The Plaintiff /aid, that aliiays after the If' rit fiirchafed jhe was at large in
the County of C. and there amefnable at the IVill of the Baron. And Vifne was awarded of the County of
K. (^lod nota bene ; for at this Day the other ouc;ht to have travcrfed, abfque hoc that they dctain'd
her, Prout Sec. which is at the County of K. Br. Vifne, pi. 69. cites 1 1 Aff 7.
n'^-J''.^^ 4 In Action upon tljC Cafe, becaufe Defendant rook an Horfe from
* Fol. 603 A. at S. and alter fold it at D. to him {t\)Z piaiUtlff] as his own Horfe,
^Y^QC^^ and * after A. retook tijC fpOVfC; if Delendant lays, that the Property
Pais9S.Ciio) of the Horfe was to him at the Time of the Sale, upou tuijiclj tljCP atC
cites s. c- jjt 3iruc, tljc mmiz iljaii be from %. Uiljere tijc %mm t0 fuppofea ;
Br. viine fgj. j-jj^jg j{jg pcopcttp at ttjc ^biuic uiBP bettEt be tne5, ann tl)c
s c.'but property onip 10 m qucftion* 42 ^tr» 8. aUHi^scn bp ail tijc
fays that it ^jUlllCCgi*
feems, that
the Vifne ihall be where the firft Sale to the Defendant is alleged.
Br. Lieu, 5. '^\\\ Per quse Servitia, upon a Fine levied of a Manor which lies in
&c. pi. 69. a County where the Writ is brought, and counts that the Defendant
BrVifne" ^^'^ certain Land lying in other County, of the Conufor, as of the faid
pl"^ 4- cites Manor ; if ti)C !Jfll!C bC VV^hether the Defendant held of the Conufor,
s'c.^ It fljal! be ttien in tlje Countp tubere tljelanti \)Z\^ \mi foctbei>
Br.Perqux j^jjp j-jj^j, conufance if be \)m% of tijeCouufot ot not, 21 C
Servitia, pi. 'o
A cites ^* •* -*•
SJC. 6. 3in Account, if a Releafe be pleaded in Bar made in one County,
aniJ tbe Plalntilf fays that he was the Defendant's Prifoner in another
County at the Time &c. tbi0 fljatl bC ttietl iH UjC COimtp tDbCte tljC
jmpnfonnient U)a0» 25 c» 3 38. b* aOjutiget!*
7. Replevin in the County of Middlefey;. 'Vht Dejendant a'vo-jocd for Ho-
mage, and the Plaintiff ■pleaded Tender of the Homage in the County of Surry ^
and the Vifne was ot the County of Surry. Br. Vifne, pi. 93. cites 2t
E. 3. II.
8. Atlion of Goods cjhined and received by the Defendant.^ and the Tort
cj the EjJoimng is alleged in one County, and the Receipt of them by the De-
fendant in another County, and they are at Illlie if he received them, or
noti there the Vilne ihall be of the County where the Receipt is fup-
pofed. Br. Vifne, pi. 94. cites 21 E. 3. 48.
9. Trefpafs in the County of W. they were at IJue, if the Defendant -xas
Villein of the Plaintiff', regardant to his Manor of D. in thcCoimty ofH. And
the Delendant prayed Vifne of the County of H. Et non allocatur ; but
the Vifne was awarded where the Writ was brought. Quod nota. Br.
Yifne, pi. 10. cites 40 E. 3. 36. And per Prifot, 35 H. 6. 12. it
lliall be tried where the Villein can hefl prove himfelf Frank in favorem I.i-
bertatis. .^t^re inde ; for it does not feem to be Law ; for others were'
againit him. Ibid.
Br. Lieu 10. In Trefpafs, the Defendant a/fwned in London to cure the Wound of
^'^ sell ^^■'^ Plaintiff' &ic. and pat contrary Medicines in Afiddhfex, by which the'
S C cited - t'liiifitijf "Was impaired. Per Thirn, if they take Ill'ue upon the Aliiimp-
lu.
Trial.
Ill
lit, V ilne Ihall be of Loudon ; and if of the contrary Medicines, then l^ep- 2- b «a
ofiMiddlefex. Br. Voucher, pi. 117. cites 11 R. 2. and Fitzh. Aaion ^l^"'
furlc Cafe 37. ^ See'"cH.a. 3)
1 1. It the tenant in Writ of Wajle pleads a Surrender at D. in a foreign pi. -.
County, made to the Plaintiff, who fays that he did not agree &c. Vifne
Ihall be of D. Br. Vifne, pi. 107. cites 12 R. 2. and Fitzh. Walle 99.
12. Trefpals. The Plaintiff counted oi' taking of his Ship at S. in the
County cfE. and the Dfcndant Jaid that A -was popffcd at D. in another
Ciunty, and gave to the Defendant, and he left it in the Hands of A. and
the i-laiiitiff came and took, and carried it to S. and the Defendant took it.
And the Plaintiff [aid that lefore the taking, and the Gijt made to the De-
fendant by A. the Plaintiff ivas pojiffcd at S. till A. took it out of his
Polfcffion, and carried it to D. and there gave it to the Defendant, and the
Plaintiff retook it, and was poffeffed till &e. Judgment j and the Defendant
maintained his Bar, abfque hoc that the Plaintiff any 'Thing bad before the
GiJt made by A. to the Defendant i and fo to llFuc, which ihall be tried
by the Vifne of both Counties : But becaufe the one could not join,
therefore he was compelled to allege a *Day certain of the Gift, and then *See(P. a. 2)
it liiull be tried only by S. for without the Day certain S. cannot take pi- S.
Conulance thereof Quod nota, that the Day was omitted of Purpofe
to have Vifne ot both Counties. Br. Confefs and Avoid, pi. 30. cites
38 H. 6. 25.
13. In li''rit of Mefne, where the Lord dijlrains the 'tenant for Fealty ^
Rent, Suit of Court, and Relief of the Mefne, the tenant Jhall have Writ of
Mcfie, and the Iffue was upon Prefcription, and found for the Plaintiff. And
per Danby, the Vifne ought to have been ot both Places, viz. where
the Land is, and where the Manor is of which the Land is held, by
Reafon that Suit is to the Manor. And Prifot contra, and that the
Vifne fliall be zvhere the Land is ; for the beft Conufance of the Acquit-
tal, where he claims the Acquittal by Prefcription, is where the Land
is; and after the Plaintift recovered by Award. Qiiod nota. Br. Vifne,
pi. 67. cites 39 H. 6. 29.
(P. a. 2,) JVhrc th Coiwtles cannot join.
[i] 7- Tif t^C SiffttC 603 whether J. rid from London to York, and Trials per
X froai York to London 5 Times in 6 Days, tijtU 10 tO CllJ^, ^.^'^^SCno)
from fuel) a ^Ime to fuel) a 'SDrnic ; tW niaj) be tneo Op lontiau m- s"? g. niih
ip, or ^orh onlp, tljo' pact of tljc ^ijmo; to be inqutrcD was none c b
in radj of tlje Couiitiesi* ^* 4 3la» 'B, E* bctujcca * Berby and cap. -. be.
PqP^ caufe the
' _ Shcririi can-
not meet each other on the Bounds of each County, in order to impanel. -5 New Abr. 257. accord-
ingly, and in the fame Words.
*'Cro. J. 137. pi- 14- Normanville v. Pope, S. C. adjornatur Ibid. 1 50. pi. 10. S. C. but S P.
does not clearly appear ; but becaufe the Trial was in London, and the Venire fjcias was from the
ParifliofBow, and not De Corpore Comittatus, the Trial was held ill.
[2] 8. 3!n ait .Action of Battery in London, if ttjC Defendant jultl- Trial.? per
lies in Defence of his Poffeffion in D. in Ellex, aUti tijC Plaindii fays P-"«y^'^,'i°?
Defontort Demefne, without fuch Caufe i tljtS OUffljt tO bC trtCH bp^""
ijoti) Counties, if tijep mwSt join, becaufe be map be founQ ixuiltp
at anotijer iDap, anD becaufe tbep cannot join it mai) be trieD m ei=
ter. mi\)^ 4 M^ ^» 1\» bettuecn Lmcoand Porter, i^ct Cutiam*
[3] 9.
1 12
Trial.
Tmlsper [3] 9. Jit ait QCtlOU UpOlt tlJC Cafe in Exeter, for faying that the
PaisqS.fui) pi^intirf was acceliary to a Robb'cry, if tijCDelendant juftifies becaufe
citciS.C. ^[^g piaintitFwas Conltable of D. in the County of Devon, and took a
^lUtl Of Wonev of a Robber, to fulfer him to go at large, tO iDljiCl)
tlie Plaintiff replies De fon tort Demefne &c. Cf)0' t!jC COUtttieS OUffljt
to join If tliep couID, aim tHe Juftifi cation i& printipallp put in jmie,
vet tlje '(ICnai mai> tie m Dcnoit ot Cxtm at election, S^, lo Jia,
•B, E» -Ka7;o//'s! 'Cafe ali)i!tio;cQ.
Ti-ials per [4] 10- "J'W ait EjLclione firmse in London, upon a Leafe made there
Pais 99.(1 II) of ].iand in'iMiddlelex, if DCftnOant plcaHlS Not guilty, t!)i0 Uiap bC
cites s. c. j.f j^ij jj^ Lonnon ; fcecaiife tlje Coiintiesi cannot loin, tljo' t\\z Jiurp
ouQljt to intjuite of ttje eiectmcnt, uiljicl) iua0 ut ^^iUDlefej:. Cr. lo
Car, "B* E* betmcen /^^rZ^cr;^ ^«^ MiddUton a5)Utiijct!, in tl^rit of
Crtor upon luBsment in 'Banfe, anD tlje firft JiUUgment afftrmca
accoi-mngl}), :jntratuc, i^ilU9Cac. 03. E* Eot» 634. OBut tljc
Court mo not Ki^je tljijs Eeafon.
5. In Vozver^ the Defendant alleged that the Feme elop'd from her Baron
^t D. in the County of S. and abode with the Adulterer in Adultery at Lon-
don, and Iflue was taken in London ; for they cannot join with any
others. Br. Vifne, pi. 25. cites 47 E. 3. 25.
in 7reh(ifs 6. Debt in London. The Defendant pleaded that the Plaintiff' is his Vil^
the Defen- ' khi regardant to his Manor of D. m the County of E. and born there ; and
d.tnt fkaiied prayed judgment if he fhall be anfwered. And tliQ other faid that Frank,
Villeinage in ^^j^^j' p,-^;,^ j^jfate, and prayed ?ius ot' London. And it was doubted, |
I'elarllntio ^"^ ^^ ^^^^ '"^ ^^^^ granted, and ifrit bailed in indifferent Hands, to retain I
^hMwer till it was difcufs'd by Parliament, if Vifne Ihould be of the County where |
4 D.inano- the Villeinage is alleged, or where the Writ is brought, Br. Vifne,
and Sr'-^'P^-26- cites 47 E. 3. 26. 27.
other fiiid
that Frank &c. upon which they were at IlTue,and becaufe the County where the Aftion was brought,
and the County where the Manor was, could not join, therefore F/fne <was where the AHion ivas brought.
fir. Vifne, pl. 58. cites 9 H. 5. I. But it fhall be of both Ccn/itiej, if they could have joined. Br.
Vifne, pl. iS. cites 9H. 5. 1. But Ibid, pl 56. cites 22 H. 6. 52 Upon fuch Matter pleaded i-i
Trefpafs, the Court awarded the Vifne from the County where the Writ was brought, Infdvorem Li-
bertatis.
7. In trefpafs, a Man was taken in the County of H. and imprifoned in
London, and brought his Aflion in London: And therefore the Writ
was abated ; for Hank, faid that London cannot join with any ; and fo
by him, if they could have joined the Writ had been good. Br. Lieu,
pl. 66. cites II H. 4. 64.
8. Debt upon Account by an Executor. The Defendant faid that the
deflator made the Plaintiff and one W. his Executors at London, who is in
full Life, not named in the Writ ; Judgment of the Writ. And the Plain-
tiff' faid that after this the Teflator made him his fvle Executor at C. in the
County of Middlefex, Judgment &c. To which t\iS. Defendant faid that
the 1'rnth is that he made the Plaintiff his fole Executor • bat after this he
made both his Executors, abfqtie hoc that he made the Plaintiff his Execti-
See(P.a) tor fvle after this ; and hs y^&s com^cW^^d to Jheia * Day certain^ vix. that
pl 12. fuch a Day he made both his Executors, abfque hoc that he made the
Plaintiff Executor fole after this j lor per Prifot, if all was alleged in
one County, then the County may inquire of the Time well enough ;
or if all was alleged in two Counties which might join, Vifne fliould
be of both Counties. But London cannot join with any ; therefore, by
him and Moyle, Day certain fhall be alleged, and the Vifne fioall come
where the Affirmati^oe is alleged. Br. Vilrie, pl. 5. cites 33 H. 6. 44.
Br. Ibid, pl. 9 Debt upon an Obligation, upon Condition to render to the Plaintiff
106. cites fuch a Day in London, 100 Cloaths as good as were made in Walton in the
|.Sf~r:~ County of G. And per Catisby & Brian J. if the Defendant fays, 'that
p). 10-. cixc^ he deliver d at the Day 100 Cloaths as good as were made at W. it cannot
be
Trial. 113
be tried ; tor the Delivery lliall be at London, and London cannot try "^- 4-J-
what Cloaths are made at W. Per Choke J. the Plea is good, prima Conditions?
tiicie; and ati:er the P/aiiitiJf'faid, that the Defendant had not delivered ^]^ i-^^i^].^
^ny Cloaths at Loudon^ protit &c. Per Cacisby, now the Replication has S. C.
made the Plea good, and lb to Iliue. Br. Barre, pi. 88. cites 22 E.
4. 2.
10. Treppafs of taking a Ship at S. in the County of E. The Defendant
faid, that f. ""jaas thereof pojcfs'd, and gave to the Defendatit at M. in the
County of N. and he lejt it in the Hands of J. That the Plaintiff came
and brought it to S. and there the Difcndant took it &c. The Plaintiff r^-
plicd, that before the Taking and the Gift made by J. as above, the
Plaintiff ti'as pojfvfs'd at S. till J. took it and carried it to M. and gave it
to the Defendant^ and the Plaintiff retook it, and '■juas pojfefs'd till the Trefpafs
&c. The Defendant maintain d the Bar, abfqtie hoc, that the Plaintiff any
thing had before theGtft made by J. And fo to IlFae, which is to be tried
bv both Vilhes ; and M. cannot join with another, by reafon of their
Privilege, and S. only cannot take Conufance of a Gift in another Coun-
ty, therefore Day certain JJjall be alleged by the Defendant of his Gift ; and fo
he did, and then it lliall be tried by Vifne of S. Quod notaj And note
that the Day was omitted on purpofe to have had Vifne of both Coun-
ties. Quod nota ; and fo fee that S. may take Conufance of Property
i« another County, when the Day certain of the Gift is put in i quod
nota bene. Br. Vifne, pi. 65. cites 38 H. 6. 25.
11. In Debt for Rent, upon a Leafe for Years, made at D. in EJfex of Cro.]. 125.
Land in London, the Action is brought in Eilex, The Defendant pleads «n pi- 9.
Non debet. The Trial Ihall be from the Vicinage of Dale in Eilex.
Jenk. 323. pi, 33.
((^ a) Per Pais. In Avhat County. In what County
it fhall be brought, irhere the fVr'tt is brought^ and
where noti
i. TJf A. recovers againft B. in Ejectment in Durham, UpOtt tPljIC!) %, Cro. |. 2^4.
X brings Writ of Error in B. R. at W'eflminfter, ailO EUfCClltimiC^ P' 'oMich.
it ; aim aftct btlngss ncuj HBtit of Crvor tijcte, €luoti Coram nolns Uf^M ^
rCfiDet, anO airtgn^ fOt error, that the laid a. at the Time of the^SJn,
Trial ot the firll Attion, was commorant, and within Age, at Weftmin- s. c. but not
fter inJVliddlefex; and that he fued in the fud A6lion by Attorneys S. P.
aim upon tlje Nonage tijc liPartie0 arc at JlTitc. Cfji0 fliall be trtcti lix '.' V
in l©cftminftcr, ano not \\\ Durljani uiftcre tIjc lano \\z% bccaufc b r M o'e'
tljE ejectment igi not anp real Action, ann inarmuclj asJ it 10 efpeclal^ i).ii5ortto»i,
Ip alleixeo tljat IjeuiajS tnitftinage, antJ commorant at i©eff minffer, l^- ^^^^
UJljere tlje HBrit, to tuit, tlje t©rit of error, is now brousOt. Cr. ^^Lt'Il"'
1 1 3!a» 'B* Ul» bCtUlCen Orde and Morcton, aDjtlDjJCll* Bulft. 129.
S. C. and S. P. and the former Judgment was reverfed, . Brownl. i 50. (©CCrfOU b. fiDrib S C
accordingly. Hob. 138. pi. 1S9. ^OrtOll 1). jgDrDe, but S. P. does rot appear S. C cited 2 To
171. Mich. 5; Car. 2. B. R. per Curiam in Cafe of Slgorgan b. 5l3augl)an, which was thus, viz. Judg-
ment in Dovier in the Seflion.s at Brecknock, Error was affign'd, that he was mder Age, viz. of the A»c
of 14 Years, avA ^ppear'd by Attorney, and upon Iflue of Infra xtatcm, the Trial uas hi A. where Pie
Jenant was commorant ; it was argued, that faying A. of fuch a Place was within Age, is all one as if
^id he was commorant in A. but it was anfwer'd, that this being a Writ of Error on a ludrrmentin
power,a';jff;)C)- Infant or not, is collateral to the Title cftle L.nni, viz. Dower ; that if the Kis^ht of the
Land depends upon Infancy, it muft be tried where the Land lies, bun otherwife if the Ri^lu be not
G g '^ £cc.
11^ 1 riciJ.
&c and cites Fitv.h. 6^ & i Bulft. t 2C. 179. Ld. Ch. J. at firft laid, That wh^re Infancy is alleged gene*
rr//v\vithoutaVenuc,it muft be tried where the Land iKs^hiitcvhere a Special Venue is laid,\x. maybe tried
there Tone-i took a'Dirterencc, where the Defendant pleads a Releafe, and the Plaintiff replies, Deins
Aae there it need not b- tried where the Land lies : And at laft refolv'd per tot Cur. that the Trial
was well cnoueh ; and a Bule for the Reverfal of the firft Judgment in C. B. Nifi See. 2 Show. i6b',
169. pi. 162- J^lic'h. 5; Car. 2. B. K. Morgan v. Vaughan, Raym. 45(), S. C. accordingly.-
To I'-o. S. C. accordingly ; and that where Konape is pleaded as JLitier de hers, the Trial need nor
be where the Land lies; but where the Title depends upon the Nonage alleged, it is otherwife ; and
cites Fitih. Tit. Vifne, 63. 39 H. 6. 49 Skin. 10. S. C. accordingly.
(R. a) Per Pais. Out of what County the Vifne Ihall
I
come. Where the Writ is brought.
'A
^fllt liring.5 Covenant in Southampton, and declares upon Co-
_ venant made there. 2^£fcnlinilt pleads a Releafe in Sulfex ;
toli3l)icl) it 10 repUcU, tljat i)e uiljo uiatie tljc Eclcafc 133 an ideot;
upon ujljic!) tijc Itfue i&% -Cijiei Hjal! tie ttico lotjcre tlje EeJcafe i&
plcaBetJ, auD not uiOcre ttjc action i^ brougijt* D* i. 2. ^n*
112.53.
3r Vifne, 2. Jf an SiffUC ll£ tal^Ot upon the * Name or Condition of the Perfon,
pi. 88. cites i^ fl^jin jje tnen in tijc countp loljere tljc J©rit tjs brougljt* 21 e. 4-
^9- 8. foe it may asS mil be iuioion tljetc* 44 3fr» 10. 46 m. s- bi?
Pais99.oio ifincDOcn. Co. Litt. 125. b.
* S P Br. Vifne, pi. loi. cites 3 5 H. 6. 51. Br. Trials, pi, iii. cites S. C. Every Plea
concerning the Perfon of the Plaintiff &c. fliall be tried where the Writ is brought. Co. Litt.
^^fFhether a Man he an Efqiiire or a Knight, fhall be tried where the Writ is brought. Br. Trials, pi.
But Wideflad faid, That where it ivas alleged in the Writ brought by Sir Richard Hank in the County of
Devon that he was made a Knight at S. in the County of Hertford, pending the Writ, this was tried in the
County of Hertford, by great Advife. Br. Trials, pi. 6. cites 34 H. 6. 54. But where Defendant
pleaded in Abatement, Quod fufccpit Ordinem militarem, ^ & jam Miles exiftit, upon Demurrer i:
was held that there needs no Venue where he was dubb'd ; for any thing that concerns his Perfon
Ihall be tried where the Aftion is laid, i Salk 6. pi. 14. Hill. 2 Ann. B. R. Lett v. Mills. -This
was in an Aftion of Debt. 2 Ld. Raym. 1014 Hill. 2 Ann. S. C. by Name of Nutt v. Mills.
In Affumpiit the Defendant pleaded Mifnofmer in Abatement ; whereupon the Plaintiff demurr'd, be-
caufc the Defendant had laid no Venue ; but the Court held, that there need not in this Cafe, bccaufe
jt is a Plea concerning the Perfon, and fo muft be tried where the Acliion is brought. .12 Mod. 195.
Trin 10 W, 5. B. R. Williams v. Drury.
Matters touchin'' the Perfon, as Privilege of . Attorney i fliall be tried where the Writ is brought. 2
Ld. Raym. Rep. uji, ii73- Trin. 4 Ann. Scawen v. Garret. 2 Salk. 545. pi. 8. S. C.
cordingly.
ac-
c
Br. Vifne, ' 3. As Ut Debt in M. againfl A. of D. in the County of C. Knighr.,
pi. S8. cites jjj^j, jf j|g plciiHeU tljat I30 IS Gentleman and not Knight, It fljaU bCttiCti
tiferTa^' tuljctc tl)c i^tit i^ btoiigljt, 21 €. 4- «• ^2 p, 6. 5. Contcfl 5 e. 4-
Man was 2. \^Zt Cltnattl*
Illbtln J ondcn , by Name of J. S. of D. in the County of H reoman, and came upon Cap. Vtlag. and /aid that
the Day'of the Writ he was Gentleman and not feoman ; and the King e contra, and fo to Illue, and Pais
was of London, and not of the County of H. for this amounts to a Mifnofmer, which more convenient-
ly fliall be tried where the Writ is brought. Br Vifne, pi. 99. cites i E. 4. 2;.
So in Debt in Middlefex affainft J.S. of London, reoman, the Defendant faid that he was Draper and not
Yeoman Tud"ment of the Writ. And the Opinion of the Court was, that it fhall be tried by Vif,ie of
London wLele inhabits, and not by Middlefex where the Writ is brought ; by which Venire Facias
iffued to the Sheriff of London, and yet Mifmjmer fliall be tried where the Writ is brought. Br. Vifne,
pi. 85. cites 5 E. 4.2.
* Br. Vifne, a <Wi]z iilbbot (n 99» btouffljt s^lction \\\ otfjcc Coimtp, ant! Deftut-
pi, 14 cites jij,,^^ fjjprt that !)c lis not Abbot i It HjaU be XKm UJljete m i©ritI5
^ c. and - btousljt.
Trial. lie;
IjrOUffljt* 2 1 e» 4- 8. lor it t'Si W ^'ame. 12 fp* 6. 5. aitD fO lis * 43 that it fliall
C {. 29. !)» of t&e A/<?//f>- "/ Z. not be tried
-' -^ by the other
County in wliich the capital Houfe of St L. lies. Quod nota. Br. Trials, pi. 11. cites S. C. .
6. P. lir. ViUic, pi. 51. cites 21 H. (J. 4.
5. So if Dcfcnnant ((i5?0 tijat tijc Abbot, luijo i^ plaintiff, t0 de- Er. Trials,
pded in other Connty, and he himlelf cholen Abbot, tm fljaU lit tnCH ^ c t'^^*
tesijcre tljc n3rit W brougljt, 8 jtx 6. 3. it ^,311 be
tried where
the Writ is brought, by the Statute of 9 E. 3. cap. 4.
6. Jn Debt upon Obligation in one County, Defendant fays that he Br. Vifne,
made it within Age in other COlintJ?* ^UD [plaintiff fa}?0, tljat tt tDHS f^' """
made Avhere he has counted bv Detendant ot full Age, prill ; $ fllti Z
contra i tljiei fljall be tricn infc tljc HBrit i^ broutjtjt. 3 Ip* 6, 40.
7. But in Debt in one County, upon Obligation dated in other COUU=
tP, nnU tijC Jfllie 10 whether \}Z tDaiS within Age at the making;, or of
lull Age i i\0 fijall lie trieb toljere tbe ©biigation bcaris £)ate, ants
not iDbcrc tijr !©nt 10 brougljt* 1 7 €. 3- 1 3-
s. I;f an ^iTiic be jfenie or ii5ot Jfenie, Covert or Not Covert, it '
fijall be trtcb inljerc tljc mtit i0 brousljt. 12 p, 6. 5.
Debt upon an OhVt<!,ation again fi a Fen/e, who pleaded Eftonfa!s at D in another County, and that Jhe was
Co-art Baron at the ^imc See. And per Cur. ITie jhall not allege the Place of Efpoufals, but fhall fay gene-
rally that Covert &c. So of an Infant ; for it fliull be tried where the Writ is brought, and not where
the Efpoufals or where the Obligation is fuppofed to be made. Br. Vifne, pi. 5S. cites 1 5 E. 4.. 31.
Br. Trial.s, pi. 49. cites S. C.
9- If tlje JflltC be whether J. S. was within Age at the Time of the If Defendant
making of a Deed, tljici fljall be trieb UJbcre tlje nirit is brourtbt, t{jo' f f ' "J^'-
?)i0 'Birtlj be allcgcti in otljer Coiintp ; for It map ajs ujcU be l^ncuin xhipia,nt,s
tijere. 44 ^in 10. repHes that
he was ••with-
in Jee, there it need not be tried where the Land lies; per Jones J. 2 Show. 169. in Cafe of AMorgaa
.V. Vaughan.
10. Jtt Aflife, if it be pleaded that Parcel of the Tenements are in
other Counts, It fljall be trien tubere tije J©rit 10 brouffljt* 46 €. 3-
7. 46 m 5. "
11. 3n Affife, if tbe Iffue be uibetber % %. tDa0 a Monk profefs'd
in the Abbey of T. in other County, at the Time of making a Deed,
!t fljaH be tritQ tobere tbc tlSrit 10 brougbt i for tbe Cime map be
a0 well fenoion tfjcre a0 m tlje otber County 44 ^ir» 10. abjubgcn.
'But €iU3ere»
12. Count or not Count, fljall be tticn uiljcre tljc tJBrit 10 broiig!)t, see(C.2)pt.
(abniitting tljat it otigbt not to be trieb bp Eccuib a0 it ougljt) 12 ' ?
ip« 6 5.
13. So Knight or not l^niffljt fljall be trieti iuijere tlje i©rit i0 * ^^ ''■p:h«d
brOUgljt. * 18 If). 6. 5. fori2ri.6.5.
14. Where an Ufllie i0 trieb upon a Point which fhould be tried bv two Trials per
Counties, and one cannot join iultlj tlje Otljet, It fljali be tVieU iul}etCP'^'^'99(iiO
tbe l©rit 10 brouffljt* 21 €.4-8. b» ""^If^^ ^-^
IS- 3if IlTue be iUljetljer 31* %>* Uia0 within Age at the Time of mak- in fuch c^fc
ing of a Deed which bears Date in another County tljnn tUljCrCtije ilBrit^'^^ ^''"^
10 brOUfjbt, and it is alleged that he was born where the Writ is^^^^^^^''^-'^
.brought. It iball be trieb tbere, Contra 3 €♦ 3- "account 130* crnSs,
(^od nora
But Brook fays, he wonders that it had not been only where the Birth was alleg'd. Br \'irne p' -o
cites 36 E.J. 17. but it Ihould be (38) according to the other Ediiions. ' ^" ''^'
16. 3;n
1 1 6 Trial.
Br.Vifncpl. i6. 3^11 Account as Receiver, SDefCntiattt (iiyiS tljat IjC ilWlS within
4i.citesS.C. ^^.g ^^ jj^g Time of the Receipt, and that he was born in other County,
nnu tijc 'JlTuc tiS, luljetljec fjc ttiasi iuitljin ^ge at tljc ^imc of tijc i^it^
cclpt ; tljid fljall tie trien ttiljecc t{}e l^rit 10 ui'ouuOt, ann tlje Receipt
nlTiGn'D i for tljcce tbe Cauntrp \\m)> tncll hnoui taljctOci; Ije uias
luitijm age at tlje Cmie of tljc Eeceipt. 21 e» 3- §.
Sec (S.aOpl. 17. 3in a Writ of Forieiture of Marriage m Olte COUUtP, if tIjC De=
i?; :, „f feitUant fapS tljat IjC toasi of full Age at the Time of the Tender, and
Forfeiture of that the Tender was in other County; tljtSl fljall bC tCJftJ tUfjetC tlje
JSIaniage ^tit l^ faCOUffljt. 3 9 ^IT. 1 8 .
■fhall be
brought were the Land is; for the Writ fuppofes an Intrufion into the Land. - Rep. 3. a. in Sirlh'Cr's
Cafe, fays that with thi.s agrees 2Z R. 2. tit. Brief. 937. & 3S H. 6. i 5. a.
18. 3if A. by the Name of A. of the County of Hampfhire, brings
Scire Facias upon a Recognizance acknowledg'd in CijailCetp ill tljC
CoimtpofMiddiefex, aiiD Defentiaut pleati0 tljat pinmtitfigout-
law'd by the Name of A. in the County ot Chelter, tO tDljlCl) ije rCpUejS
tijat ije 10 not Una & eadem Perfona, tljis fljall be tcteo lit si^iDtilefej:-,
iDfjcre tlje !lBrit (6 brougljt* ip. n 3a* 15* R. bctioeen mod and Hunt
atJ)uoa;eli pec CitnanL
Br. Vifne, 19. Jif a Birth bC allCgCll during the Efpoufals in other County, aittl
r'- 'i- cites |-|jg Ql\yx fapsi tIjat be lUaiS bom before the Efpoufals where the Writ is
in%lj}afi, brought, it njall be tneo tnbcre tbe Wtit ijs broucbtv 42 €♦ 3. s.
the IJj'ue was
if J. N. was born iiithin the Efpoufals or without ; and it was tried per Pais of the Vifhe of H. where the
Writ was brought, bv Reafon of the Taxation of Damages. Br. Trialls, pi. 32. cites 3S E. 3.
Baftardy fhall be tried per Pais where the Writ is brought, or it is to be tried by Certificate of rlic
Biftiop. Br. Trialls, pi. 6. cites 34 H. 6. 54. per Moyle.
When an 20. 3!tl Debt upon a Leafe of Land in other County, if Defendant
iffue is f ^h,^^ he ciid not leafe, t\}\^ fljaU be ttieu tubete tbe !©tit tjs
SGL5,Ui:oiigbt xi^.4^4o.b>
it fhall be
tried where the Land is ; but if a Leafe is in ^tefiion, and Nrn Concejft is pleaded to it, it fhall be tried
where the Leafe was made ; Refolved. Godb. 233. pi. 322. Mich. 11 Jac. C 6, Eagnall v. Potts.
21. 3in J©rit of Dower of a Mill in EfTex, if tbe DefeitUattt fays that
the Mill is in Middiefex, niiu tlje j[3laintifF rcpUe0 tbat It i0 in Clfec,
a0 (be \m counteo, tbis fljall be tneo m efle;c uiijsre tjje J©m ts
brougbt. 26 c* 3- 68. apjuogcO-
22. In Replevin, the I/fhe -was, if the I'ejlator of the Defendant had any
^hing in a Ship with the tackling, at the Time of his Death, and the De-
fendant faid, that the 'Tejlator died at D. and pray' d Pais there. Per Thirn,
wherever the Teftator died, the Property ot the Goods are in him in the
Place where the Goods are, and therefore Vifne fliall be where the Writ
is brought, and where the the taking was; Quod nonnegatur, quod nota
bene. Br. Vifne, pi. 109. cites 11 H. 4. 13.
23. The Statute is, that where a Deed tears Date ivhere Writ of the
King does not run, and is pleaded here, this fhall be tried where the VV^rit
is brought by the Statute i E.^. Br. Cinque Ports, pi. 8. cites 19 H. 6.
12.
24. Debt by A. B. and J. D. upon an Obligation, the Dfendant
pleaded Non eft Fa^um, and at the Nift Prius in London, the Defendant
faid that J. D. one of the Plaintiffs is dead after the laft Continuance,
Judgment of the Writ ; upon which the Parties were adjourn'd, and at the
Day in Bank it was indorfed upon the Record of Nifi Prius, and Day given
over, at which Day J. D. in whom Death was alleg'd appeared m proper
Perfon, and demanded Judgment if the Defendant fiall be received to fay
■that he is dead. And it was touch'd that // he had not appear d in Ch'/h
before.
Trial. 117
before^ tn Perfon or by Attorney, and the Defendant would aver that he was
act the fame Perfon who was Plaintiff' ; this Ihall be tried where the Writ
is brought, and not where the Death was alleg'd ^ qusere. Br. Trialls,
pi. no. cites 34 H. 6. 45.
z$. Where the P/^« « <«//f?V in Writ or Pleading, and it is not faid
in what County the Place is, it Ihall be intended in the County where the
Jcfion is brought, and therefore fliall be tried there. Br. Lieu, pi. 5.
cites 34 H. 6. 50.
26. Us in Scire Facias in Norfolk, againfl L. B. Warden offuch a Hall in S. P. For
Cambridge, and the Scholars of the fame, and *did not fay in Cambridge in the this is a
County of Cambridge, and therefore per Cur. it jhall be tried in Norfolk '^^Z"'"'u"j
whether L, £. was Warden or not; quod nota. Br. Lieu, pi. 5. cites 34 Coi-poration,
H. 6. 50. pl 9. cites 45
E. 5. 29. — .
S P. Br. V'ifne, pl. -. cites ^4 H.jS._ 49. And fo of Mifr.ofmer of proper Name &c. and of Jdditions,
as Yeoman, Gentleman, Efquire, Kni;;lit ficc. and of Callaidy.
* Becaufe the Writ did not l^iy in Cambridge in the County of Cambridge, therefore it fliall be in-
tended that this Cambridge is in the County where the V\' rir is brought, and therefore clear ; Quod
nota. tir. Trial, pl 6. cites 54 H. 6. 54. Othertvfe, if he had laid London, Tork, or fuch like, which
arc kfouu to he Coutities tn tlenfekes. Ibid Bywhich the oiler f.iid that the Univerfity of Cambridge
»j in tie Qiinty of CnmhrJdge, and pray'd Pais there, Et non Allocatur ; for then the firll: IlTue fliall be
alter'd, if the Plaintiff traverfes it, as he may if he will, and therefore was not futfer'd. Ibid.
27. In Debt againji Executors, if they are at Iffue upon Ne ungues Exe- Br. Trials,
cutor Ne uiiques adminijlered as Executdr i this Jhall be tried where the P''. I"' *-"^
\\rit is brought. Br. Vifne, pl. loi. cites 35 H. 6. 31. ' "
28. In Debt againfl Executors, the one pleaded Mifnomer, and the Ac-
tion wjs brought in the County of C. and the Defendant was named of London.
^nd the belt Opinion was, that it Ihall be tried where the Writ is brought
Br. Trials, pl. 97. cites 5 E. 4. 55.
29. If it be pleaded that J. S. was foffeffed of fuch Goods &c. or if Re-
leafe, Arbttrement, or fuch like, be pleaded, and expreffes no Place certain
where Sec. there the Vifne Ihall come where the SVrit is brought j for
they Ihall be intended to be there. Br. Vifne, pl, 114. cites i E. 5. 3.
30. In Trefpafs, if the Defendant fays that he himfelfwas puffcfled, and Br. Bar, pL
delivered them to IV. who delivered them to the Plaintiff, and he retook them 'o. cites
&c. there he need not tofhew at what Place he was polfelTed i and ifit^-^
be cra\ers'd, Vifne Ihall come where the Writ is brought. Per Julti-
tiarios. Nota. Br. Vifne, pl. 79. cites 4 H. 7. 5.
3 1 . The Defendant committed Adultery with a Woman in Southwark, ibid, the
where they both dwelt i She went from her Baron to Ratcliff tn A^iddlefex, Reporter
and tarried there a Day and a Night, and then went to the Defendant, *"^y^ Quxi-e
who conveyed her jrom thence to Richmond in Surry. T\\i Plaintiff brought !f^"^'!-.' ^" j
an A£lion of Ttcfpafs in London, De Uxore r.ipca & abdufta cum Bonis juiHjes
viri. Dyer doubted whether upon this Evidence the Defendant could wereofOpi-
be found Guikv in London ; but the Jury found him Guilty generally, ni"" that the
and gave the Husband 300 1, Damages. D. 256. b. pl. 10. Mich. 8 & ^'^'^;'?''. 'i"^
9 Eliz Anon. _ _ i.oniov^.
32. The Condition of a Bond was to pay 20 1. to the Plaintiff", at his
Hotife in S. in Kent. The Defendant pleaded Payment at the Day ike. Se-
cundum formatn S Eff'e^ium Indorfamenti prxdiRi. The Ilfue was tried at
H. and Judgment fof the Plaintiff. It wasalligned for Error, that this
was tried at H. and not at S. in Kent. But the Judgment was affirm'd i
for when a T'hing i£uablc is alleged, and no Place, itfball be tried where the
AS ion is brought. And the Words (Secundum formam &c.) refer only
to the Time, and not to the Place ; for the Place is not material. Pay-
ment being made to the Obligee himfelf And it does not appear but S.
in Kent may be within the jurifdi6lion of H. it not being fiid in the
County of Kent, but at S. in Kent ; and there may be fuch a Place called
Kent in H. Judgment was affirmed. Cro. E. loj. pl. 15. Trin. 3oElii,
B. R. New's Cafe.
Hh ?v W.
[i8 Trial. __^
S. p. 5 Salk. 33. W. co'veiiantcd in Middlcfoi to viijiniti D. his Jpprentice iii facb a
564.. pi 10 q'y^dc and for not inltrufting him D. brought Covenant^ and laid it /«
Anon^- — ^ MiddUfex. The Delendant fkaded that the Plaint! f departed out of his
p" CH. a. 5) ^^,^.^,y^,^^ -^^ London. And upon Demurrer it was infijied for the Defendant,
that the Venue odght to be from London where the Departure was, and
the rather b&caufe the Qiufe of Afiion in MiddJefcx was admitted by De~
vnn-Tcr; and fo no Caufe of Ilfue there. Judgment was given for the
Plaintiff, that the Action Ihould not be "removed. And Glyn Ch. J.^
faid that it is aMaximThat in perfonal and tranfitory Cafes, the Plaintiff
may lay his A&ion in what County he will, but that in this Cafe they
ouo-ht to take a Writ of Inquiry, to tax Damages in iMiddlefex. 2 Sid.
60° Hill. 1657. and Mich, 1658. Dickfon v. Vyilliams.
■3,i\.\Wh^re Alien-neeh pleaded in Abatement ^h is triable where the Writ
it is brought ; Otherjsife where it is pleaded in Ear. Per Holt Ch. J. i
Salk. 2. pi. 5. Pafeh. i Ann. B. K. in Cafe of Welt v. Sutton.
Fol. 606.
(S. a) Trials per Pais. Out of what County the Vilne
fhall come. Li other Comity than nxihcrs the JFrh is
hi-oinrht.
1
Jf ItBn't of Dower be brOUgljt \\\ one COUntP, ant! Not accoupled
is pleaded, and the Efpoulals are alleged in other County j tfjlS
fljnlf be trieD tijerc uiljere tijc (Efpoufais toece [allcgcQ.] 40 e« 3. 43.
■ _ ^-1, 2. Jn Scire lacias out of a Fine, if it Birth be alleged during the Ei-
t)l 12 cites poufals in other County, and the other fiivs that he was born before the
s. c. ■ Efpoufais, it fljall be tricti uiljere tijc 'BiftD !0 allepti. 42 e. 3- s.
BrVifncpl. 3. But if tIjC Qtfjei-laPSj tljat it lUniS before the Efpoufais [in tfiC
iz^citesSC (££Hjllt:j)] vv'hcrc the V\'rit is brought. It fljaii bC trJCD tWt* 42 €♦
• — See (K. a) q
pi. 19. '• •
Br. Vifne, 4. Jif Adrniniflrator brings Afiion, and Defendant fays Teflator died
yl 16 cites in other Couhtv, and there made himfelf Executor, it fijall ItOt fcC tncS
viz In Debt lulJcre tljc i©nt 10 btousljt, but in tOc ctljcc Cuuntp* 44 €. 3- 16.
mini/lrnUr in the Courty of S. lie pleaded to the VVrit, that the Teftator made him Executor, and
died in tlie County of N. And Pl.nntifff.nii th.it he died intej?.ite, and Vifne was ot the County of N. and
no: where the Writ was brought. But it was not grcjtiy ai-gued.
Br. Vifne, 5. Jn Detinue upon Bailment UX OttC COUntp, SD^fttttiant pleads a
pi. 24. cites Bailment in another County, as a Gage, aut) ti)C liTUC 10 tijat it \m^
(Ha ->-) pT not baiietj as a Gage, It fljaU be ttieu in tfjc €mnv^ uiljcrc it laajj [fiip=
4. ■ ■ pofeti to be] neliliereti as (Saffc* 46 C. 3 30. b*
£r. Vifne, 6. JU Trefpafs, if ^efeiltant jullifies bv Command of J. S. in other
p'- 92. cites County, ann tbe ConinianD tcaijei'fcD, it'fljail be taeo in tl)C Countu
l^s^.eSafs ^''•J^te tlje Commann tua^* 14 ip* 4- 32. b*
of taking of a
Servant in the County of E. The Defendant jtifiifed, inafmuch as the Anceffor of the Servant held of A. his
Alafter certain Land in Chivalry, and died, the Servant of his A'lafter within Age, by which his Mafier com-
manded him at S- in another County to t.%ke him ; by which he took him at D. in the County of E. where the
Plaintiff makes lisPl.xint, Proutei bene licuit. The Plaintiff faid De fon tort Demefnc, abfcjue hoc that
the A'lafter commanded ; and alleged econtra. And per Thirn, The Vilhe fliall be where the Command-
ment was. Quod nota &c.
But where the Defendant \n Trefiafs jujlifcd by Commandment of his Alafler, and did not allege Phxce of
the Commandment ; a.nd the Plaintiff faid that De fon tort Demefne, abfque hoc that he commanded; there,
by
Trial. up
bv fcveral, the Vifne fliall be where the Writ is brought, becaure no fuch Place of Commandment is
iiile"-ed. And by others, the Defendant may fay by Rejoinder that he commanded him at fuch a Place,
& d'c hoc &c. Br. Vifne, pi. 4. cites 35 H. 6. 41.
7 Jf Arbitremcnt made in other County be pleaded in Bar of aTref- * Br. Vifne,
pafs, It fljall be tricn uiljcrc tijc arftitreimnt ijss alleffcD* nl}. 4. 3- tcL^
7.b» *7Jp. 6. 43.fe, InTrefpa/s
the Defen-
<(a>!t f leaded J'ji.nrd at JF. in the County cf M. 1o pay lo /. which he has paid, the Plaintiff pleaded Jward
T/rade by the fme Jriitrators before at D. in the County of C to pay I o /. and a Horfe ; and he has not paid
tie Horfe. And tlie otl:>er maintained the Bar, abfijue hoc that they made fuch A--juard in the County of C. as
Je has alleged before the Award made at If". Prifi ;_ and the others econtra. Per Newton, Now the VifnC
ihall be of both Counties, ad quod nemo refpondir. Br. Vifne, pi. 5;. cites zz H. 6. 52.
8. Ju Debt in London againft J. S. of D. in Eflex, if Defendant fays Trials per
that he was converfant at S. in Eflex at the Time of the Writ purchafed, ^""^ 99-
and not at D. tW AjitH bz tutXi in Cfler, 0115 itot tuljerc tfje tBtit igs s c^"""
brouixljt ; for noitc tnn fenoiu toljcvc Ijc nuielljs fo tneli a0 tlje Ccun--
trpofeirer. i2]^»6. 5.
9. 3in a Quare Impedit for refufing his Prefenree, ittf^Z DcfCtltiaittt, ^'^- Q^^re
tl)l)0 I,£i tIjC Ordinary, pleads that he examined him in other County, and ^'^P='^'y> pl-
there found him Not able, fOC iDljiC!) !jC rCfllfeD ijilU, UpOlt UlljlClj s° c ^^^
tl)ep arc at 3ifrUC, whether Able or Not; tl)C Prefcntee being dead, it Br Vifhe
fljail l)c trieD m\)ut tljc Cyamination is allcsen^ 39 €♦ 3. 2. ao- p' ^i- "tes
hiinf^ affifled by Men learned in the Ecclefiajlical La-vj, may inftruft the Jury as well in that Law as is
ufually done in the Common Law. 2 Inft. 632. Show. Pari. Cafes ji .
10. 3If tlje Death of one be alleged in other County tljait MjCtC tlje Bi-. Lieu
mxit 10 bcDUSljt, it fljail be tticD tijerc, anti not mljcrc tbc mxiti% ^'-'- p' ^^
brougljt* 19 i% 6. 4. b* Brvffn?~"
S. C. which was in T'refpafi againft J.andN. J. faid that N.ti-as dead the Day of theJf'rit pu'rchaM'
(udgment of the Writ. The Plaintiff faid that Alive the Day of the H'rit &c. and Not dead, and pray-d
Pais where the Writ is brought. 'The other faid that he died at Z,. and prayjd Pais there and had it
^nd (b fee the Place come in m the Rejoinder, and not before.
In AJffe a Deed o^ Feoffment, -with l-Farranty of the Part of the Plaintiff, was pleaded in Bar. The Plain-
tiff faid that his Father was alive at D. in the fame Ccunty. The Tetiant faid that he died at S. in another
County. And it was tried by AHife by Award, upon Adjournment into C. B. by the Opinion of all the
JulHces. Br. Vifne, pi. 70. cites 11 Alf iS.
But in Pr£cipe quod reddat of Land in the County of D. againfl two, the one faid that the other is dead at
S. in the fmie County ; Judgment of the Writ. The. Demandant faid that he is alize at P. And per
Hank Vifne fliall be where the Land is ; for there is the better Conufance it he be Deader Alive-
quod multi concordaverunt. Br. Vifne, pi. 91. cites 2 H. 4. 7. '
In Debt by J. Executor of the 7efiament of R. L. the Defendant pleaded tbat R. -made this J. and one H.
his Executors, and died, which H. is in full Life at N. in the County cf E. not named in tlie V\'rit ■ lud''
ment of tlie Writ. The Plaintiff replied that H. died fuch a Day, and this in the Parijh of Sa-'nt U. °n
London, before the Writ purchafed : and x\o?\iZ without traverjing the Life of H. Sic. by which hcVravers'd
accordingly, and Pais was awarded of London where the Death was alleged, becaafe it is more certain
than Life. And by others, it fliould have been of both Counties, if London could join with another
County. But by the Reporter, Vifne fliall be of jV. where the Al/^ue hoc is ; for tie Jhfaue hoc is al
ways made the Iffue. Br. Vifne, pi. 68. cites 39 H. 6. 49. '
11. 3in Debt for Arrearages of Account before Auditors in the County Br. Vifiie,
of London, if Defendant pleads that he difcharged the Auditors in other P' 49 cites
County betore this Account, it fljail bC tCiCU WljCtC It \^ allCfiCD* 10 I "^^ '
^* 6. 36. l,^ ^--
Avoid, pi. 16. cites S. C,
12. But if the other confefTes it, but that after this Difcharge he Br. Vifne
prayed the Auditors to hear the Account [* \\\ tl)C (COlUltp Of LOHDOH, p' 4'-. cit-s
ttJljICfj "" ^- ^'"^
120 Trial.
ad.is as in the ^}j|(;jj (jjpp jjj^ ^hB foUno tljc faviie flrrearages $c,] if Jffuc be upon
-B° Con-' tlJi'S, it fljali te tricn mljcrc tSjei^nt 10 brougijt. 19 ij). 6. 36.
fijfs and Avoid, pi. i6. cites S. C. and adds. And fo fee that where the ViTne fhall be from one CountJ
by the Bar it fliall now be in the other County by tlie Replication. Quodnota.
13. 3!lt Replevin, if Tender of Homage be alleged in other County
tlmi tBljerc tije llSrit !0 broitfffjt^ it (Ijail be trieu tuDerc it is allegen -,
for It cannot be t'ounti bp an inqueft out of tlje Count? tuljere it m^
tenQet'Ot 21 c. 3. n. b* aaiubgcQ. 39 ^ff. 18.
See CR.a) 14. So iU Forteltuie oi MarriaHe, if a CeuOet afiegCH in a fOfCiSll
^u'^w~ County be tta^ccrcQ, it (ijall be tcicu tf}cre, i^€. ?• action upon
Im be tlje @)tatutc 17. atDuoge^.
brought
•where the TWe)- w.t; ?7;/rife by the Guardian to the Heir. Br. Lieu, pi. 80. cites 14 E. ;. andFicz.h.
Vifne 4.
15. Declaration that the Defendatit ex Malitia fua, aptid S. in Con?,
Norju/k, Prociirdvit uijortnationctH perj/irii exbd'eri agamfi the Plaiiitijf:^
apnd Wejtminjier in Cum. Middkfex. Upon Not guilty it wzstried at Nor-
folk Affizes, and Verdict for the Plaintiff! Jt was moved in Arrelt of
Judgment, that the Venue was ill, becaufe there was nothing of the Pro-
curement^ or of the Exhibition of the In formation /;/ Norfolk, bat all in
Middk[ex. But the Court was of Opinion, that this was but an Aflion
of one continued Tort^ and is all one with ISUltDCC's Cafe ; for the procur-
ing of the Intormation is but the Prolecution of the Malice. And it
cannot be intended that the IVlalice and the Procurement could be in le-
veral Places ; and therelore it may be laid in the one County or the
other. And for thefe Reafons the Plaintiff" had his Judgment. Ld
Raym. Rep. 105, 106. Mich. 8 W. 3. Philip v. Ketifon.
(S. a. 1) In what Cafes the Vlfne fhall come out of
other County than where the Writ is brought.
Ex ajjenju Partium.
I. X I "^Refpjfs agninjl 2, the one faid that the Plaintiff is his Villein
i regardant to his Manor of D. in anither County^ Judgment it'
he fliall be anfwer'd. And the other jujitjied for coming tn Aid of hmi,
and Pais awarded of the foreign County, ex ajjenfii Partium i and they
taxed the Damages, and a good judgment, notwithftandingit be a fo-
reign County. Hr. Damages, pi, 28. cites 44E. 3. 6. and Lib. AK 4.
£, ,g, J, 2. Confenz cannot take aivay the natural and effential Vifje. Jenk. 310.
BS4ra.pI. 3;. pi. 89. cites II Eiiz. Dyer 284. Croutch's Cale, and 27 H. 8. 15. and
Butler V. 44 E. 3. 6.
Crouch. ^ jj, Cafe for fopping a IVay in the City of Canterbury, leading from
fuch a Street to luch a Street, the Defendaht pleaded Not guilty. A
Vifne was awarded Jrom IV. in the County of Kent, byAlIent of the Parties(in
Regard the Caufe concern 'd all the Inhabitants of Canterbuty) audit
was found for the Plaintiff! It Was moved in Arreft of Judgment to be
a Miftrial, becaufe it ought to have been by a Vifne of Canterbury ^ and
cited 21 E. 4. 31. D. 299. But the Court held it well enough, becaufe
it was by Jffent of the Parties entered of Record. Et confenfus tollit Er-
roremi and cited 44 E. 3. 6. 44Aif 4. D. 367. And Fenner cited
the Lord CtOUltDCU's Cafe to be adjudged, chat an Iffue tried by ano-
ther
Trial. i 2 1
ther Jury than it ought to be, yet being by Aifent, is well enough. Cro.
E. 664. pi. 14. Pafch. 41 Eliz. C, B. Fineux v.Hovenden.
4. In Debt upon an Obligation, for Payment of'iil. 10 s. at Coventry, ^°"- ^^P-
Jjjue was taken that the Money -was paid at Coventry. And yet by Confent ^j^g^j^
of the Parties, and Paper Rule of Court, the Illue was tried^ at London, ^,^ CrobJ,
and found tor the Plaintiff, and Judgment given. A Writ of Error was S. C. refolir-
brou^ht in the Exchequer Chamber, and the Judgment revers'd ; for ed that be-
Conffnt of Parties may not change the Law. Hob. 5. pi. 11. Crow v. "^^^1^1^°"
Edwards. upon the
Record that
the Trial wasbv Confent, it is erroneous, notwithftanding the Party had, in a Manner, confefs'd it by
■Demurrer ; arid fudgmcnt was revers'd. fenk. 516. pi. 89.
In EjiBment for Lands in the County of Clare in Ireland, upon Not gailty pleaded Iffue was joined, and
tht Entry upon the Roll was thus, Et fitper hoc fro indifferer.ti triatione 6cc. Partes fr<cd. ex unar.imis ccn-
fenfu eorum c?° Concilii fiP Atom. &C. fetunt Lreve Domini Regis lie. Com. Corke dirige!?d. de Ver.ire facias &C.
& quia videtur Curis hie cjuod petitio ilia efi rationi confona iAeo precept' eji Vic. Corke &C. quod Venire facial
Q'c. Diiodecim.&c. de Corpore Com. fiii per qiios Sec. Whereupon^ Trial <-jjas bad inCcrk; and Judgment
for the Plaintiff. A Writ of Error was brought in B. R. the Quellion was, Whether Coufent can make
this Trial had in a foreign County good ; contrary to CroiX' anD (rDtParPS's Cafe, Hob 5. And re-
folved by all, that the Trial was well had ; and they faid that in Crow and Edward's Cafe, the Con-
fent was not entered on Record, as it is in this Cafe. And fo Judgment was affirm'd. Raym. 572.
Trin. - 2 Car. 2 B. R. Vilcount Clare v. Linch. S. P. And the Cafe of Crow v. Edwards being
cited, it was obferved that there the Conlcnt of the Parties was only entered on a Paper Rule of the
Court, and therefore Kot allow'd. 2 Jo. 199. Pafch. 54 Car. 2. B. R. Devoren and Devoren v.
Walcott.
5. ^^'here the IJfiie is local, the Venire facias cannot be by Confent ;
Per Cur. Sid. 339. pi. 2. Mich. 19 Car. 2. B. R.. in Cafe of Kighly
V. Buckley.
(T. a) Trial per Pais. Out of what County the Vifne
lliall corns. In what Cales where the Latid is, being
inforced by other Matter. Where the Land is, and not
\y)here the] Writ \is. ]
!• Tl!5 Debt upon Obligation in one County, to perform Covenants in Trials per
X ■'1 Leafe, and the Land and Payments were in another County, it ^''"^ '"'f-
fljall be ttieo uiljcrc tlje lano ann papmcntis tucrc* * 44 <S* 3- 42. i's.'cTdted
2 Le. 146.
14-. pi. tSi. C. B. Mich. 30 Eliz. in Cafe of Cont' b. KfbtrlDgf, -which Cafe was thus, viz. the
Plaintiff at Northampton leafed Lands in the County of Cambridge, reiidring Rent. Leflee gave a Bond to
the Plaintitf, for Payment of the faid Rent The Plaintiff brought Debt on the Bond in the County of Nor-
thampton. The 'DdtaA.2iV\\.pleadedPayment of the Rent, mtlout pewing the Place of Payment; and fo
to IfTue, and found for the Plaintiff in the County of N. It was moved that the IlTuc was miftried ■
for here the Payment of the Rent being pleaded, without fhewing the PKace where, it fhall bw- intended
that it waspaid upon the Land, which is in the County of Cambridjje, and Anderfon held accordingly •
but Rhodes |and Windham contra ; for it does not appear that the IlTue is miftried, becaufe no Plice of
Payment is pleaded 5 and it might be for any Thing fliewed, that the Payment was in the Countv of N,
• 5 Le. 216. pi 2St, S. C in the fame Words.- Cro. E 116. pi. iS. Beveridge v.'Conev*
S. C. in B. R. upon a Writ of Error ; but the Judgment was ailirm'd; for tho' the Bal- w.is ill no
Place of Payment being alleged, yet that is made good by the Verdict ; for Payment in one Place is
Payment in all Places. S. C. cited Goldsb. iSo. pi. 115. Arg. in Cafe of JIBaltEr l),«3lalttT; and
faid by Gawdy J. to be a good Cafe.
2. 31n Debt upon Leafe in one County, and the Payment of the Rent Br. Vifne, pi.
upon t\iZ Htm limited there alfo, but the Land was in other County, '9- cites
I i " and ^- ^
122
Trial.
Trials per and the Payment was upon the Land, It fljnU l3C tdeH UlIjCtE tl)e HHnU
Pais 104. J^5^0 j^iipment uia^ i foe ijc tna.s boimti to pap it tljere upon Diftterisf.
Trials per 3. Buc t\)t €Ctial ffiouiD be u^Ijere t!)e l©rit igs faroiigljt, if the Pay-
Pais 104. fj^guc had not been alleged where the Land is. 44 (£» 3. 42. {),
the N^ ^^ 4- 3n Debt upon Obligation in London, tOljeteOf tljC COtttJitiOlt Ifil
to pi. I. to pay all the Arrearages of fuch Land in C. in Elfex, if tf)C 311ftie fi£-
tUiecn tljCUT be whether Defendant holds the Land by los. or 5 s. Rent,
It fljall be triciJ in €KtK iuljcte tlje Eann i&. 20 1). 6. 32.
5. Otherwife if they agree of the Tenure, and are at lifue upon the
Payment, and no Place afleg'd of the Payment, tbeceit fi}all bC ttiCQ ilt
lonnon, 20 ip» 6. 32.
Cro E. 175. 6. 31n a Writ of Entry fur Diffeiiin, for Land lying in the County of
P' 'Ap'F' H. if tlje Plaintiff delivers the Writ of Summons to the Sheriff of H.
not'appear- >" London, aitti aftcc tlje ^IjetiiT 5oe0 fumnion tlje DefenQant upon
Le. 146. pi. tlje Lann, ann after does not return the Writ, fot tD!)iclj ^ftion upon
20;. s. c. tlje Cafe is bcousbt mmit \m in LonUon, iuljevc tl)C IBrit tuagi De=
andS.P.held JjVigc'O tO IjiUl, UliQ tljC Defendant pleads that he did n6t fummon him
accordingly. ^^^ ^^^^^^ ^^^^^^ ^j^^,^ ^^^ ^^ ^iffue, tljijS uiap bc ttieD in lonbon tobecc
tlje nsrit if) broucUt* tx 32 (£!♦ Id* K* bettocen Marjte and Ajiry,
aojursgcD.
iFhre Land and JFr'tt.
Br. Vifne, 7. Jf Debt US btOUgljt for Rent upon Leafe for Years, and the Ac-
^'- ^'-i,"." tion is brought where tlie Land is, but the Deed Of Leafe bears Date in
per p^if ic- o'^her Connty, tlje Ctisl fljall bc luljete tbelann ann t^cit ijs brougljt,
c 1 1 6) ''■ 45 C» 3 • 8- b. Clj c IlTue being; uibetljec tlje JLcKoc l)aD a conditional
Eftate, anU fo a lauiful euiction*
Br. Trials, 8. ^iU Atfife of Land in the County of D. if Tenant fays that the
pi. 2? cites Land is in the County of C. it fijall be ttietl b}? tljC ^fllte, flntJ llOt bp
Lii be' " botlj CountiejJ* 7 % 4- 30. b> Ciuare,
tried by the
County where the AOife is brought; per Skrene & Hulls J. which was not denied.
Br. Vifiie, 9. 3|n Ravifhment of Ward, if Plaintiff' and Defendant claim to have
pi. Ill cites hini in' Ward, bp teafou of lanU Ipins in tlje fame Countp tubere tbe
(oT^^T. Wiit 10 brougljt, tuljcrcof part i% lielD of one, a0 of b'-S i^unbreo,
s. c ' tuljicO is in otijec Countp, ano tije otljcr is IjelQ of tlje otljer, as of
ijts ?0anor in anotber Countp, anu tije 31irue is whether the Ward
holds by Owelty, or by Eigne FeoHinent to one of them, tljlS fljall bC
trteb ttibere tbcLanu iSj ann Jl^rit is brougbt onlp, becoufe tbclanu
tS tljcCaufe of tlje ©ffieltp or enipe jfeoament* lo j^, 6. 19.
10. Jn an Aftion, if a Relealc of tlje Pamtltf be pleaded in Bar^
dated where the Land lies, tbO' tbe lS)lanmff laPS tt}at fje UKIS born
Th^ Plam^ in Other County, and is of full Age, UCt it Hjall be triCD lObetC tlj?
riff faid, that jLano iS, anti DeeD bore ©ate* 24 e, 3- 36. b, aojuDg'D.
he was with-
in Ace at theTime of the makino^ ; and IlTue upon it ; and then faid, that he was born in the County of
E yet the Deed bearing Date in the County of N. and the Lands lying there, the Trial ihall be by the
County of N, 24. E. 5. ;6. b.
11. ^uare Impedit by the King. The Defendant pleaded a Grant of the
jidvowfon by the Predecejfor of him by whom the King claitii'd ; and the
King faid, that he did not grant by tbe Deed, and fo to Ilfue ; and it waa
doubted if Vifne Ihall be where the Deed bore Date, or where the Church is,
becaufe the Deed is not denied. Quaere. Br. Vifne, pi. 13. cites 43
E. 3. I.
12.
i
rial. 123
12. Covenant upon Indenture of Demife of the ReHory of Stoken-Church
in the County of Oxford, with Covenant that he had good Authority and
Power to demife, and he alJeg'd the Indenture made at London, and the
Venire Facias illued to the Sheriff of Oxford, And Error alfign'd in
this ; but the Judgment was affirm'd, becaufe good of theCounty where
<he J^and lies. Mo. 710. pi. 99^. Palbh. 38 Eliz,. Englilh v. Bower.
13. In yiccount brought againji B. in the County of C. as Bailiff^ of the ?3.\m. ■^iz.
Plaintiff's Manor in theCounty of C. and alfo to another Manor in the S. C. Hill 3
County oiS. And Judgment to account, and found in Arrearages, and h^'\-^' ^/
Judgment given. The Judgment was reverfed, becaufe it jhoiild have TuJijcesdid
been tried at the Ear by fever al Ventre Facias' s direded to the feveral She- not ("peak to
riff's ; and refolved that it was a Milfrial, and not aided by 21 Jac, cap. thisPomt.
13. Hutt. III. Wilfon V. Briggs.
14. Jffumpfit, lor that the Defendant ivas feifed 21 May 173 1, in Fee,
of Lands in C. in the County of K. and in Confideration of 500/. adtunc ij
ibidem, (viz.) apud London in Parochia &c. frcmifed to affure the fame &c.
Upon Non Alfumplit pleaded, the Trial was in London. It was objefted
to be a Miftrial, and ought to have been in K. where the Land lies, and
where by the Adtunc & ibidem the Promife is, and that the Venue can-
not be alter'd. And oi this Opinion was all the Court, and that the
(Viz.) is idle, and may not alter itj whereupon a Ve. Fa. de Novo was
awarded. Cro. Car. 284. pi. 28. Mich. 8 Car. B. R. Delves v.
Clarke.
15. Aciion on the Cafe was brought in Middlefex, for forging and con-
triving a Will; and the Land which is coniprifed in it lies in Suffolk ; and
the Will being affirm'd twice upon Trial in an Ejectione Firmse, they
endeavour'd this way to difprove it. Jones moved to change the Venue
to Suftblk; and refolved it fhall be alter'd. And the Court feem'd to
difcountenance fuch Aftion. Raym. 33. Mich. 13 Car. 2. B. R. French
V. Kent.
16. Covenant was brought inHamppire, and the Breach ajfigned for not Raym. 85.
repairing an Houfe in Berkpire. Iffue was join' d upon Non mjregit Conven- ''♦• ^ ''^y.s
tionem, and VerdiB (or the Plaintiff in Hampjhire. All the Court, prceter j*^" JXm
Windham, held this aMillrial j for this was a Special Ilfue, whereupon foTtiiePkin-
nothing could be given in Evidence but the Not repairing the Houfe in tiff, becaufe
Berkihire ; and tho' the Privity remains, this Action being between thofe ^^'^ ^^^'^
who are Parties to the Deed, and not Ailignees &c. yet it cannot give jo^u^^'^r'!
the Plaintiff^" any Eleftion in this Cafe. Sid. 157. pi. 9. Mich. 15 Car. the Pllimiff
2. B. R. Gilbert v. Martin. alle<>"d k.
And Wind-
ham J. likewife, that if the Iffuc had been fpecial the Trial ought to have been in Berks; but here is
Jvlatter General alleg'd by Defendant, and he does not join in a particular Ilfue, and may g\vt in Evi-
dence any collateral Thing. ButKeylingJ. held for the Dsfenda:u, th.it the Thing itfelt is local. And
fodidHide Ch. J. becaufe it is not a General Iffue, but upon a particular BrMch, vii. the Repair of
the Houfe. There being 2 Juftices againft 2. the Calc was adjourn'd. L»ev. 114 S. C. lavs that
by the Opinion of all, befides Windham, the Judgment was ttay'd.
17. 'frefpafs for taking the Plaintiff's Hogs. The Defend ant ;///?//«
ly a Cujiom to take 4 d. for all that pafs &c. tinlefs bred or kept upon Dutchy
Land. The Plaintiff replies, that they were kept at S. in Leiceflerfhire^
which is Dutchy Land ; and Iffue thereupon, and the Venue came from
Northampton, where the Adion was laid. It was mo\ed, that the Venue
fhould have come from Leicefterfliire, where the Land lay. It was an-
fwer'd, that that was the proper Place. But Judgment was given tor
the Plaintiff by virtue of the new Statute, becaufe the Iffue was tried in
the proper County where theAftion was laid. Freem. Rep. 33. pi. 42.
Pafch. 1672. Anon.
18. Queftions of 'Title of Land (except by fpecial Order of the Judges
in fome Cafes) are to be tried in the County where the Land lies, tor
the Law is, that uU Real and Mixt Anions, as Wafl,lfetimnt &:c. mu:t
124
Trial.
be brought in the County where the Land is ; but Debt, Dettfitie,Jcmi/!t,
Aiiionsofthe Cafe, Battery &:c. are in their own Nature tranlitory, and
yet they ought to be laid and tried in their proper County where the
Faft was done, unlefs the Court order the contrary, for fome fpecial
Reafons ; and if they are laid out of the proper County, daily Practice
■ ells us the Court may alter the Venue, upon jijfidavit of the true Place
^f the Faff. Trials per Paiy, 90.
(U. a) Trial per Pais. Out of what County the
Vifhe fhall come. ff'Jxre the La?d is, and where
not.
-I
B Affife if tlje Wit be, tcljctljrr tVjt Ccnant be a Baitard or a
Mulier, and i]\^ Birth is alleg'd in Efpoulals in other County than
•where the Land lies, and the other fays that he was born in the County
where the Land lies, it fljtlll bt tl'ietJ by the Biihop where the Land
lies. 38 e* 3- 27- ari)utJgcD*
2. So it Ojall U trtetl iUtjCre tlje JLanH 10, tho' the Birth only be al-
leg'd in other County tljail luijetC ttjt l©nt 10 brOtlSljt, fOt tlje IStOOfgi
map be btouoljt tljcrc. 35 SIT. 7 ■ atijimijcti bp all tije liufiiceis.
Br. Eiror, 3- Jit Scire Facias by the King to have a Releifer, if tlje JffllC be
pi. 150. cites whether J. S. was an Alien and Baftard, or the Son of W. S. born in
s- c. Efpoufais with A. t|)i0 fljaU be trien toljere tlje JLanu 10, for i^ere m
Countp 10 ailcgco lobcre tije OBirtlj Uia0, aim tijercfoce it 10 clcac
cnotigij. 39 3fl» 18. atijutiffeti*
Br. Error, 4. So it he had alleg'd the Birth to be in other County, pet tbCCVfal
pi. 150. cites fljjiji lie t^ijei-e tbe lanti i0, ann not taljerc tlje ^tttlj is allegeu. 39
* • sin; 18 bpCtjorpe.
5. Sit Affife, If Efpoufais are alleg'd in other County, and that be
■was born within Efpoufds, ailtJ fO a ^UllCr, 0110 tlje other fays that
he was born where the Land lies, out of Efpoufais, anil fO aCBaftatO;
tlji0 fliall be ttieD loljete tlje Lann lie0 bp tlje ©tbinarp, fot tfjc otbcc
map bring ljt0 pracf0 tljere. 38 M. 30. abiuBgcD.
Br. Vifne, 6." 3^11 Affife, if the Tenant be alleg'd to be born at S. in the fame
pi. 98. cites County, before Efpoufais, ailb tljC Tenant fays that he was born within
f ^- ^"'^ the Efpoufais at D. in another County, t{ji0 fijall be ttlCO bp t^e ^fflfC
Efon Mjcrc tljc Laub 10. 4^ Slff. 3- abjubg'Q*
leerTis to be,
becaufe Bartardy Hiall be tried where the Land is. Br. Trialls, pi. 92. cites S. C.
S. P. Br. 7. Precipe quod reddat, they were at Iffiie if the Demandant was Vilkin
Vifne, PI.S9. f^gardant to the Afanor of N. or a Baftard, and the Manor was in one
*^''^*^5 • County and the Birth alleg'd in another ^ and yet Vifne was of the County
Trefpafs in where the Manor was. Br. Viihe, pi. 62. cites 39 E. 3. 36.
the County ^ . . .
ofC the Defendant pleaded Villeinage in the Plaintiff, regardant to his Manor of D. in the County of
B TudTnent if he fhall be anfwer'd ; and the other faid that Frank and of Frank Eftate ; and the Vifne
•was awarded by the Court of the County where the Writ was brought, in Favorum Libertatis, Br.
Visne, pi. 56. cites 22 H. 6. 52.
8. li an Incumbent be Mifcreant, it is good Caufe of Avoidance, and
pall be tried where the Church is, tho' the Sentence was given at Rome i
and fo of Sentence of Deprivation at Rome. Br. Prefentation at Efgljie,
pi. 54, cites 5 R.. 2. Fitzh. Trial, 54.
9. If
Trial. 125
9. If It he found by Office that f. N. is an Jlie», born act of the Allegi-
ance of the KtHg, and has piirchafed Land, J- N. may fay that be -was born
at fiich a Place in England, befjjeen fiich and fiich, his Father and Mother;
and this lliall be tried in the County where the Birth is alleg'd j Per
Choke and Cat. accordingly. Br.Trialls, pi. 46. cites 15 E. 4, 14.
10. It" a Man fign a Leafe in one County, or Vill, of Lands in another,
vet the J ury mull come from the Place where the Lund lies, in an Ejeff-
tiicnt upon luch Leafe ; Per Cur. 6 Mod. 222. Anon.
er
(X. a) Trials per Pals. Venus County. Out of what
County it fhall come, aahere the Land is.
I. T J tf)e 3itrite be in aiTife, toljetljct tlje -Cenant be eideft Son of j. T.iais per
\ S. and his Birth is alleg'd in other County, pet It fljillt bC tCiCO Pais, 105.
jDljcrc tijc LanO 10. 46 SlIT* s- <^i '^)
2. 3ii Mortdanceftor, iftljc Cenantfap0 tijat tlje Demannant toa^ upon fuch
born beyond Sea, and io not inheritable, flUD tljC Demandant fays that jJcmandt t
he was born in fuch Place in England i tljl'Si fljal! bC ttleU UlftCte tIjC fhaU ftew
JLantJ \% Contta 46 ^aiT* $. the piace
where he
was born, and there the Jury Ihall cortie. Br. Vifnc, pi. 71. cites ia Afl" 25.
3- Jn a Real Aaion, ItJijer^tlje Demandant demands Land, as Heir
to his Father, and alleges his Birth in other County > if it be denied
that he is Heir, It fijall \^z tticu tuljcre tl)C laitu ile0, ant! not laljere i>ilh^
tljc ODittl) 10 alicgcn ; fot tljc laiD pfertmic0 that it i0 bell hnoiun uiljo Pa=s, sf^ss
is Oeir uibtte tljc Lann lies* Co. litt» 125. b. ■ c>oo)
4. But if tfjcDcmantiantmabesijimHeirto his Mother, ant! allege^ Trials per
bis TBirtb \\\ in otbet Counts, if it be tienieti tbat be is l)cir, tljis f ■'''\ ^^•
fljail be tneD tuijete tbc 'Bittb isallCGctJ, anti not tobece tbe lanti^'°°''
Jtc0 ■■, bccaufe tbcrc map be more ccttani Conufance of tljts tuijere tbe
OSirtb itias, luija lyas bi0 S^otber, lubicb 10 tbe mote certain ^ibe
tban of tbe part of tbc jfatber. Co. litt. 125 b.
5. So it is lahcre Eafiardy is alleg'd generally, the Trial iliall be in like Trials per
Cafe mutatis mutandis. Co. Litt. 125. b. P-^is 8S.
(100)
(Y. a) Trial per Pais. Out of what County the Vifne
Ihall come. Where the Land is, and where not.
I. TJO Scire Facias out of a Fine, if Eeleafebe pleabeH t^ be m tbe
1 fame Count}?, anD llTlie i0 tahen whether he, who made the
Releafe, was of Non fante Memorise at the Releale in other County, tbi0
Iball be trieti by tbe Countp tobere tbe Lanti i0. 43 C 3- 3 1- b.
2. Jn Quid Juris clamat, if tbC^lTue be whether Lelibr releafed in Br. Vifne,
Fee to the Leffee before the Fine, bUt tljC Deetl [toa0] COnfefd'tl, antI p'- 'S.cites
tbe jfTue only upon the Time, tbe€;nal fljall be lubere tijcDecb brats
Date, ants not VJljere tbc lanti is. 44 €, 3- 34 b.
K k :!. So
126 Trial.
Br-Vifiic, 3. So in Aliifc, if Rcleafe be pleaded in -d Foreign * Counts-, Et Ojilll
PI 42. cites i3c"j-f(ctl tl)CrC» 46 €. 3* 6* b. 13 T3«4» 2» b* * 21 €♦ 3* 10. 46
<I-enis to ad- -i*'l» J*
mit S. P.
See(N,a) 4. l^U AfTifc, if tljE Birth of him who claims as Heir be alleg'd in a
yl I- Foreign Countv, and the Illue is whether he be Heir, t!3t0 fijaU bZ
B,-. vifne, j.^.jgQ ^1^5,5.^ jjj^ £^_j.jg jg^ ^^j.jj uot tuljeit t\)t loixtl) t0 alieff"!! ; fot tije
j^ c'that" laljci-itaiicc is tl)c principal, nnn tijep, iDijcre tfje Lann 10, map uirU
aftei- lont^ bnoui tuijo fijaii tnljcrit it, 46 €♦ 3. 7« IJ* 16, ij, 46 w, 5* fo. 305, ti,
p.b:itc the CitjjuJjgcO,
Vifnc was
awarded from both Counties, and ill, by the Rcportei-.
* Br. Vir,ie, 5. Jf Nonage iiC pICHBCtl, ailtl tl)C OtfjCU fai'.S 0f fUl! a0C, and bcrn
p! 97. cues in other County, ^tt It HjaU fac tncQ luijcre tijc laiio isi, 46 e» 3* 7*
V. k "bT" ti* * 45 siir. 12, 46 an; 5.
Trials, pi.
«;i. cites 44 Afl". ic. for thofe where the Land lies, have the beft Conufdnce of the Age and State of the
Heir. JLidgnient was given by Defiult againll an Infant, where the lime was, whether he was
of full of Age, the Land lay in iVlorfclk, but the Action v. as brought in Middlefcx ; In Error it was
adjudg'd that ilie Trial fliou'ld be in Norfulk, where the Lands lay. Cro. E. SiS. pi. ii. Pafch. 45 EliTt
B. R. Green v. Rofs — And Ibid. TanHcld laid it had been fo adjudg'd in this Court in Cafe of Throg-
iiiorton V. Burfind^ S. C. cited by G-oldl'mirh, Aig. Bulft. 150. by the Name of .^Ijrogir.ortOIT's
C-de, as of ;i Eliz. and that it was held that a Trial at tlic Place, where the Infancy is alleged to be, is
good. But Davenport faid, this was a Mirtrial ; and Moorfaid the Trial was To had by the Advice and
JJireftions of the Court.
What cc7iccrru tic Realty fhall he tried where the Land lie;, when Kcnnpc or the Birth are alleged to
intitle one to Land demanded ; As if in Afnie the Tenant pleads a Difccntinuance, and Defendatit iays
he was within Age at that Time, cr to debar another of Land, that he was ior7i before JAirrir.oe, in thelo
Cafes, bccaufe the Inheritance of the Land depends upon it, tho' they arc alleged in another Place,
yet they fhall be tried where the Lar.i lies. 19 H. 6. And fo i,s 59 H. 6. 49. b. to be intended. Bat if
!Nonage or Birth is pleaded as Matter de hors, and not to tlic difabling the Title to the Land but to an-
other Purpofe, here 'tis to thePerfon, becaufe he could appear by Attorney; and in this Cafe itfliall be
tried where the Infancy is alleg'd. As if inFormedon in Remainder, Tenant pleads Nonage in thePiai.T-
tiff, and prays that the Plea may ilay till his full Age, if Ilfue betaken upon it, it Ihall be tried where
'tis alleg'd ; Per Curiam Ablenre Fleming Ch. J. Brownl. 151. Meerton v. Orib. Bulft. i;i, 15;.
SDrDCln i^ontOU. S. C. and fame Diverlity.
6. 3n Writ of Cuftoms and Services, if OemantJailt counts of a
Seilin in other Countv, VCt It fljaU tt ttlCD III tDcCOUlltP lUljCVC t\)Z
laniillc0. 4S<£*3- 26. In
If a Feoff- 7. 3if i^eifi'ifs or Feoliment be pleaded, if tIjC other fiiys that he to
ment or whom &c. had nothing at the making, or tljac JjC ijaQ nothing of his
Leafe for peoiFment, ti)i0 fijiiU b£ tncU toijcrc ti)c tauo 10, tOo' tIjc Dzm bears
plea'ded' and OatC III OtljeC COUllt)?. 49 €,3*5* b»
the IlTue is
!Non Feoftavit, or Non Dimifit, Livery ought to be made, and therefore the Trial fhall be Dc Vici-
ncto where the Land lies. Cro. J. 575. pi. i. Mich. 15 Jac. B. R. Karne v. Pryther.
8. Jn Cui in Vita for Lauti Ul onc COlUttp, If Baftardy be alleg'd,
and the other ihews Elpoulals in other County, and that he was born
within the Efpouiais, t{ji0 fljall bc tneD WljCtC tl)C laiiO i0» 7 *5.
4» 8,
Br. Vifnc, o. Jf Ul fl Vv'rit Jt bC fappofed that R. died without Heir of his .
pi. q 5. cites Body, anO tfjC Delendant lays that he has Ilfue J. born in another
II H. 4. County, who is yet alive; ailll Demandant fays that R.. never had fuch
'^' ''■ Son J. tljiiEi fljall' be ttieo uiljere tlje lann is ^ foe bp tlje zmz tJje
pace of tlje ODitti) 10 not material, but uiljettjet ije ijau fucb S)Oiu
II 1^*4. 5*6,b» 75»
^^'i^-fT^ 10. But if it be allegCtl tbat be iua0 Son of a Feme, and the Birth
yj^ly^ traverfed, tlje ^tial fljall be uiljerc tfje 'Birtlj 10 allegeo* 1 1 p.
4»57*
II. ^f a Birth be alleged in a County after Marriage, ailtl tfje other
Trial. 127
%\s rhat he was born, where the Land is, before Marriage, it flj^U tlC
tries tijcrc. i7G*3*?6. b*
12. Jf rt Birth be alle^'d in other County, to which Eaftardy is*InCofi-
pieaded, it Qjail bc tcieQ mm tljclanu i.0» * u ^, 4. 56. b* 13 ^i?* sefiLtf n^
4. 14. DUbitatUi; 7 JP* 6* 37. the Deman-
dant made
him'elf Heir 8cc. The Tenant /aid that M. had IJfue U'. horn and begotten at Fi nvUch is in another
Cunty, 'u.-ljoii in full Life. Judgment fi Aftio, and the Vifne wasawarded where the 6'c/^»w3salleged,
and not where the A'/)7/^ tt'as alleged ; andthilffue was, whether N. ever had fuch a Son W. or not-
Br. Viihc, pi. 55. cites S. C.
13- 3!U Affife, if Birth before Marriage in other County be pleaded, Br.Vifne,
S.C.
nnb tijC other iays that he was a Mulier,1t fCCmS It ^tlU iiz trtCO )XA)Ut f^"-'- '-'""
ttjcLminis* Diibitntui'i4E).4'9»b»
14- M nil Iniant born in one County, b0 in W^'ard for Land in other
County, tlje Age fljaU bc trieU tuljerc tlje 'Birtfj tuajj, ann not tuljecc
tljclannig* i3$p»4*3»
15 JfLelfee tor Lite furrenders in other County, It f^a!l hZ ttiCtl ill
tIjcCoiuttp luoere tIjc SiicrcnOcc m^ [allcg'D to be] ann not mttz
tljcLanni^. 4o^> 3- 43-
16. 3^f It bc aileffCQ tfjat Dower tua^ affigned in one County of Land Br. Vifne,
in another County, it fljall be triCO ill tfjC COUHtP \))l)ZZt t\)Z ^ITlgtl^ p'- n- cites
«iciit \m§ [allcseb] 46 ^» 3- 43- . b. ^- ^•
17. So if a Man be dillrained tor Homage in one County, atttl ft Jenk. 20. pi,
Proifer is alleged in another County, It fljall be tVlClI UJljeCC t^Z PrOffCC 5«- S. P.
iUaS, 40 (£» 3- 43- u»
18. 3iU Writ ot Colinage, if tljC Birth of a more near Heir be alleged
in a foreign County, it fljall be tl'ieU tUljCte it Ig aflCSeH* 13 p.
4. 3- tl*
19. 3if tlje Iffi^e be between the Heir, and a Man who claims to be
Tenant by the Curcefy, whether he had Itfue by the Feme during Co-
verture in foreign County, it fljall bZ tticU tOljete it tjS aUeSCH* 13
l^> 4- 4-
20. 3ilt AfTife, if it be alleged that A. was the Daughter of B. ailU
tljC other fays that ihe was the Daughter of C. born in other County,
without that that Ihe was the Daughter of B. CljIJo fljall bC tCiCtl b? ttjC
amre luljcre tljc Lauo iis, became tljc Crabecfe piitgi tljc Sifliie iipott
it, fcilicet, tBijctljer fije bc DaugbtEc of 15* Uiljerc no 'Birtlj ig al^
letjeb ; antJ tijercface fljall be tttcD bj? tlje aiTife* Contra 13 Jp* 4- 4-
©pinion*
21. J\\\ Scire facias upon a Fine, if it hZ alleged that N. had Iflue J. Scire fadat
flnB tIjC other fxys that J. was the Son of another, and born in other "^"*"' -^"'^
County, it fljall be trieis icljece tbe "Birtlj is? allcgen, ano not uiljcce RZ'iiTier
tljC L'antl i!3. 13 li>*4- M- i"Pee, be.
catffe Ai.
tenant in Tail by the Fine, is dead without Tjfue. The Tenant /aid that M. had Ijfue K. in full Life ; and
the other that No fiich K. and the T'enant e contra, that ftich K. at N. in another County ; and Vifne was
of the County where the Life is alleged, and not where the Land was. But per Seton, in fuch a Calc
Vifne wasawardedin the County where the Tenements were. Br. Vifne, pi, 59. cites 24 £ 5. (J4.
22. So in a Formedon. 19 Jp» 6. 15. b* ^^^ C"^' =»)
pi. 5. ,
Br. Vifne, pi. 48. cites S. C. Hill. 19 H, 6. 50. b. pi. S. S. C. and S P.
23. 3itt Nuper obiit, Ot Partition between Parceners, anU tljC one fays
that the other is not l3aughter to the other, ailU tlie rejoins that Ihe is
her Daughter, born in other County j tljlS fljall be tnCH tlSljCtC tljC
lan5Uesi» 190*6. 51.
24* J«
1 2 8 Trial.
24. 3!n A£lion, if Releafe of ail his Righc be pleaded againll him,
ailTi he i'.iys that at the Making he was within Age born in other County ^
t!ji^ fijail be trieu lyljerc tijc lauu licis. 19 1)* 6. 51.
Vifne County.
i3r. Virne, 25. J\\ Formcdon as Siller and Heir to her Brother, if Defendant fliys
pi- 5- S.P. that her Brother had liiuc one A. who |is in full Lite in Salop, UlljCte
cites 2.S H. jjjg ^,^^^ 'j^ Demand is in Effex ; tO tDljICl) Demandant fays that there
^- '■ never was any fuch A. '^DDl^ fljilll U trtCQ UlljCtC tljC lanO 10* 18 e»
3.58. D»
26. 3|f iJ Fine bC alleged to be levied in other County than where the
Land lies, and it is averr'd to be upon Collulion, tijC Collulion flj^U bC
tricn luljece tlje Lnnti liess, anU not iyljerc tIjc f tnc toais lelJtcQi fac
vifnerpi-s^.tije fine m^ fimplc imtijout CanQition oc lintent in itfelf, 12 il)»
cites T 2 H. 4. 16. ii. Curia.
4- i5i— — 27. So iJlOrC CiCildP, if it be alleged that there was Parlance of the
pl 29 cites Collulion where the Land lies. 12 {p. 4. 16. ]).
S.C- •
In Entry fine Arfenfu Sec. If 3 foreign Relerfehe pleaded to the IfTue in an Aftion brought, the foreign
County ihall not inquire of the Collufion, butitfhall be inC|Uircd of in the County where the Land is
by a fpeci;)! V\ rit, and not by Q^uale jus. Br. Collufion, ph 6. cites 55 H. 6. 25.
In Walk the Defend.mt -pler-ded a Licence made in Lchdon, as to Part, and to the reft Nul Wafte done.
The f^andlay in Effex, and the Licence was tried for the Plaintiff, and they inquired of the Collufion
in London. Mordant faid the Collufion fhould huve been tried in Ellex where the Land lies, and not
in London ; but Frow ike econtra, that it was fufficicnt in either Place, and that this was, in a Man-
ner, Aftion perfonal, in which the Collufion Ihall ret be inquired. Br. Collufion, pi. 4S. cites
10 H. 7. 5.
Br. Lieu 28. In ^CtlOlX Of Wafte COnimfttCti in a Manor, and for exiling of
^'^^ P' 9'- Villeins, tljO' tljC €Xl\m Of tSje mMtt0 iaa0 by Caufe of Menace in
-Br Wafte Other County tljan iDljere tljc ^anot 10, I'ct It fljall be trien toljere tl)e
pi. 9. cites ' iWanot iss; for tljerc iis tlje Waitt, 9 P. 6. 42. b.
s. c.
S.C. cited 7 Rep. i.b. 2. a. in Balwcr's Cafe.
29. But if 3i IjallC Tenants in London, antipCU menace them in other
County, upon' which they depart ftani lUV '<S^mtmmt0, fOt lUl)tCb 31
bnnn; Crefpaf^, antJ be alleges that he did not menace ^ ti)iis fijall be
trieu in tlje CountP uiljcrc tbe C^enace iua^. 9 ^?* 6. 42. b.
Br. Vifne, pl. 30. ju an ClcriOii, if impriionmcnt be alleged, it fljali be trieu in
22. 6.1 . cites fjjj, ^j^ojjj^fj, y,jj{;j.^. jj. jjj jiucgct!. 46 €, 3- 7- b. ann not tobcre tijs
^'seeCH.a3)lanm0*
pi. 12.
Jenk.20.pl. 31. Cbe fame latU iUljere Tender of Homage igf. 46 e*3. 7- b.
5«- 19!!;. 6. 16. 21 (£. 3. 56. b* aDjunscii. 21 aflu pU 14. Contra
19 ip. 6. 50. b.
32. ^f Partition be pleaded to be made in other County than where
the Land is, it fljall bc tricn tljetc iBljcre It ie allegen. 1 1 Ip. 4. 6i.
Kut if a 33. 3n Avowry lor Rent refer^en upon a Icafe for Life, ifDefen-
Man plettds ^^^^^ pleads a Surrender in other County before the Rent-day, It fliall
«X/f7.// be trien tljcre. 19 ^. 6. 16. ;o. b. 4° e. 3- 43-
Right, Con-
frmation, or fuch like, and does not pew Place &c. the Vifne Ihall come where the Land is ; for thofe
jfiall be intended to be upon tie Land. Br. Vifiie, pl. 114. cites 1 E. 5. 3.
34» 3:«
Trial. 129
34. 3n Jetton of Visall or otijct Srtion, if tijCAc comment of t{)e
'CTfliaUt be allee'd in other Countv than where the Land lies, |t fljaU
be tncn tljcrc, toljerc it t.s aUcuen/ nwo not UJljcix t()e lan5 10* i9A5*
6. 50. b.
35- llfin Real Action, a Releafe of all his Right be pleaded, bear- See the Notg
ing Dace in other County, It fljall bC tHCO tIjCtC, ailQ nOtUlijCrC tljC topi. 3;,
tanti 10. 19 i> 6. 50. b» 21 e. 3- 21. Curia. 21 aiT. pi. 8. aouuijeti,
pu 14. 38 e. 3- 10- anniDgcD.
36. [So] 3f in AUiib a IRcIcafc of all Ijid Kiffljt bcplcaueu, anti
tIjC other lays tljflt It WaS per Dureis in other County than where the
Land lies^ it fljaU bc ttlCD tijccc, aiiB uot luljctc tIjc laiiO igf. 19 Ih
6. 5o.b.
37. Jf aU Infant brings an Affife, aUll a Releafe of his Ancellor is Trials pet-
pleaded againlt him, bearing Dace in other Countv, t!ji0 OUgijt tO bC Pais 105
trico lobete it bcarsj Date, aim uot bj) tlje amfcj tljo'tljepaintiff"^)
beau Jiifant, aim tlje Citcumftancesi are to be imiuiren* 2i€. 3.
CO. b. 2ia{r. pU 8. amutiijeii*
38. JU Allile againlt Baron and Feme, (ftljC Feme comes and alleges
the Death of the Baron in other County, if tljllS bt tUfO per Pais, it
fljall bc trico uiljcre tlje Deatlj is alletjcn. 39 M. 9- .
39. If a Man holds Land in the County of 1). of the Manor of S. in the
County cf S. and the Lord levies Fine of the Services, the Fine Ihall be le-
vied in the County of S. where the Manor is ^ for it is Parcel of the Ma-
nor ; and yet in Per qnx Servitia, if the IlFue be that it was not held o£
him at the Time ot the Note &c. Vifne liiall be in the County where
the Land lies. Er. Lieu, pi. 90. cites 21 E. 3. 18.
40. In ^//fe of Rent, the I'enant pleaded Deed in a foreign County cf
the Rent Charge no'ia in Plaint, and the Plaintiff being an Infant, faid
that Ne Chargea pas by the Deed ^ and the Vifne was of the foreio^n
County, as it he had pleaded Non eft Failum. Br. Vifne, pi. 96. cites
26 All; 3.
41. A Curia Chuidenda Hiall be brought only in the County 'where the
Lands, which ought to be inclofed, he ; per Skipw. But Cafe Ihall
be brought in that County which is damaged by the Non-inckfure, and if
Iffae be on the Prefcription, the Venue fhall come De utroque Comitatii j
Per Skipw. F. N. B. 127 (G) in the new Notes there (a)
42. A Grant of the next Avoidance of a Church in Worccfier, in the
County of VN'orcefter, was alleg'd to be made at Bri/iol, the IlTue was upon
Ncn Concefjit, and tried at Brillol, and well i and affirmed in Error.
Jenk.312.pl. 95.
43. In Trefpf's, the Defendant pleaded a Grant by the ^neen, by Let-
ters Patents under the Great Seal ^ the Plaintili replied Non Concefftt\J' ^"i,
&:c. This IlFue fliall be tried where the Lands lie, and not where (k) '. !^
the Letters Patents bear Date; for thefe being of Record, and iLewn S P. Jcnk.
to the Court under the Great Seal, cannot be denied ; fo then the Ef- 3 '2- pl-P?-'
feft of the Iflue, is that the Queen had nothing in the Land, or that ^^it^^""'
nothing paffed by the Grant, which muft be tried where the Land is ; (I'^/o) _
and fo it wasadjudg'd. 6 Rep. 15. b. Mich. 36 & 37 Eliz. B. R. Eden's Cio.£.697.
Cafe. pi- 10. ftlich.
41 &42Eliz.
B.K.C-fm's
CafcibaD-P.
L 1 (Y.a.21
130 Trial.
(Y. a. z) Of Offences. Part being done in one County^
: a?iil Part in another.
I. j\ Man was arraign'd upon Indiftment of Jtealing Goods i» the
J^\ Cotmty of S. who faid that he was indiBed of taking the fante
Goods in the County of M. nt the fame 'Time, and of that was acquitted i
which was the fame Felony j and demanded Judgment if of this &c.
And per Frowike this is a good Plea, tor if Goods are ftolen in one
County and carried into another County, he may be indicted in each
County, and Ihall have Judgment accordingly ; and by the fame Rea-
fon if he be acquitted in one County, this fliall ferve in another County.
And Hulley and Fairfax contra, as to the Indi£tment, but the Law is
with Frowike ; and after Mordant pleaded the Plea above, and prayed
Allowance, and to the Felony Not guilty. And a good Plea by all the
Jultices, tho' the one Matter be Matter in Law, and the other Matter
tn Fa^. Br. Cofone, pi. 139. cites 4 H. 7. 5.
2. A Man was arraigned upon Indiiltnent taken before the Coroner of Lon-
don ; for that he Jirnck J. N. at D. in the County of Middlefex, and of
which he died in London within the Tear ; and he was difcharged per
Cur. Br. Corone, pi. 142. cites 6 H. 7. 10.
Where the 3- 2 t? 3 £. 6. 24. Enafts, T\i2it where any is felonioujly Jlrickcn or poi~
principal Fe- foncd in One County, and dies of fuch Stroke or Poifoning in any other County^
levy W.U doyie ^^^ ijj dement thereof found by Jurors of the County where he dies, pall be as
a'vTthe "'ac-'' &'^°^ ^'^ ^^"'^ ^^ 'f ^^^ Stroke or Poifoning had been in the County where the
ceffary was Party f) dies. And Juflices of Gaol-delivery, and Oyer and Terminer in the
in another Cotinty where fuch indiilment is taken, as alfo the Juflices of E.R. before
Cotmty, the ixshom fuch Indi^ment is removed, may proceed thereupon in all Points as if
•wem'quK, /'""^ Stroke or Poifoning, and Death, had all happned in one and the fame
ainlefs where County.
the Vill ex-
tended into two Counties ; for the Appeal fliould be where the Death was, ifhev/as ftruck in one
County, and died in another. Br. Corone, pi. 125. cites 4.3 Aff. ;i.
Before the making of this Statute, if a Man had been felonioufly ftriken or poifoned in one County,
and after had died in another County, nofufficicnt Indiftment could thereof have been taken in cither
of the faid Counties, becaufe by the Law of the Realm, the Jurors of one County could not inquire of
that which was done in another County. The Appeal might have been brought in either of tfie faid
Counties, but the Trial muft have been out of both ; but when both Counties could not join, then both
Appeal and Indictment failed at the Common Law. 3 Inft. 4S. 49. cap. 7 .
Hawk. PI. C. -Q. cap. 51. S. 13. fiys, It is faid by fome, that the Death of one who died in one
County, of the Wound given in another, was not indiftable at all at Common Lav/, becaufe the Of-
fence was not com pleat in either County, and the Jury could inquire only of what had happened in their
own County. But it hath been holdcn by others, That if the Corpfe were carried into the County
-where the Stroke v/as given, the whole might be inquired of by a Jury of the fame County. And it is
agreed, That an Appeal might be brought in either County, and the Faft tried by a Jury returned
jointly from each : And at this Day, by Force of this Statute, the whole is triable by a Jury of the
County wherein the Death Ihall happen, on an Indidimcnt found, or Appeal brought in the fame
County.
This Statute extentis not ivhere one is Stricken or Poifoned on the Sea, or in any foreign Dominion, and dies i»
England ; but where one is ftricken in one County, and dies in another. 2 Inft. 49. cap. 7, Bun
fee now the Statute of 2 Geo. 2. cap. 21. at (N. b. 4)
For more as to this Divifion, See Tit. ^ICCClTacp, and Tit. :3ppCilIj
and 2 Hawk. PI. C. 220. cap. 25. S. 33. &c.
(Y. a. 3)
Trial. 1 3 r
(Y. a. 3) Venue chviged. In what Cafes.
I. T N Afiion on the Cafe for Deceipt, the Court will not change the
\_ Venue out of the County where the Defendant has fuppofed the
Thing to be done. Sid. 87. Mich. 14 Car. 2. B. R. Anon.
2. Upon a Motion to change the Venue in an Aftion of Scandalum Magna- In an Aftioft
tam^ from Middlefex and to London wpon the common Affidavit, the Court ofScanda-
faid that this Aftion is outof the common Rule of changing Venues, but fj^^ iJd"^
inafmuch as the PkintiiF inhabited in Middlefex, and it is fit that it Kent, it was
lliould be in an indifferent County j it was, after feveral Motions, rrioved to
laid in Kent, and ordered to be tried at the Bar in Michaelmas Term. '^'^^S^ '^^e
Sid. 185. pi. 7. Pafch. 16 Car. 2. B. R. Lofd Gerrard v. Floyd. MMiefix,
upon J-ffida-
i-it that the Words were fpoken there. It was on the other Side prayed that the Vifne might be con-
tinued, thc'Woi:ds relating to FaBs in Kent ; but no other Caufe being Ihew'd, and the Words being
Avorn to be fpoken in Middlefex, the Court would not alter the common Courfe, but ordered it at the
Bar in Middlefex. 3 Keb. 39. pi. 8. Trin. 24 Car. 2. B. R. Earl of Thanet v. Graham. Sec
pi. II. .
3. It was moved to change a Venire facias in Debt upon the Statute of
'Ufiirj, upon Affidavit that // any ufuriuus Contra^ was made, it was made
tnfach a County ; but the Court would not change the Veni:e, becaufe it
is a Debt in every County. But the Reporter fays, It feems there is
not any Mifchief ; for by the Statute . . . Jac. . . .' if the Aftion is not
brought in the proper County, the Defendant flrall be found Not guilty.
Sid. 287. pi. 2. Trin. 18 Car. 2. B.R. Anon.
4. In Affiumpfit, the Promife was agreed to be at Dorchejier, and the
Breach in Middlefex, and Plaifitiff declared in Middle fes. And the Court,
upon Affidavit, would hot change the Venire to Dorcheller. Sid. 405.
pi. 14. Hill. 2o«?C2i Car. 2. B.R. Swaine'sCafe.
5. If there are two Caufes vf Aifion in the Declaration, viz. the one in
the one County and the other in another County, and Affidavit is of Caufe of
Aciion (if any) in one of them, yet this pall not exclude the Plaintiff" 0} bis
Elcliion. As in Trover, if the Defendant becomes polTels'd in Kent, and
he brings the Goods and fells them in London, and the Plaintifi' brings
Aftion againft him in London, here, upon the common Affidavit for
Kent, the Venire fliall not be removed from London. Sid. 405. pi. 14.
a Noca of the Reporter's in Swaine's Cafe.
6. In an Action for imbezilling the King's Goods, which was laid irt 5;^ j
the Declaration to be in London, it was moved for the King that the 10. S C. :
County might be changed. And the Court held that the King might cordingly.
chufe his County, and might waive that which he had feemed to have
ele£led before, as he may waive his Demurrer, and join IfTue, & contra.
Vent. 17. Pafch. 21 Car. 2. B. R. The King v. Webb.
. 7, Affamp/it brought in London,ufonthe common Affidavit was changed to
Hampfhire, andfo being changed, the P/a/«?/^ in another Texm,made Af-
davit that his Caufe ofAHion arofe in Northamptonjbire ; and upon a Rule
that he would not give in Evidence any Matter but only in Northamp-
tonlhire, it was laid there, notwithftanding he at firft laid it in London.
Sid. 442. pi, 14 Hill. 21 & 22 Car. 2. B. R. Anon.
8. Covenant againji an Apprentice on his Indenture, for fpeaking Words to
the Damage of his Mafier. The Defendant moved to change the Venue,
becaufe the Aftion was purely for Words for which A6lion on the Cafe
would liCj and that this A6lion is brought only for the Plaintiff to elect
his County for the Trial, and to oull the Defendant of the Privilege to
change the Venue, as he might have done had it been an A£tion on the
Cale.
ac«
.-Ts. p. I z Cafe. "Buc adjudged :hac this Attion is * Covenant, in which the Venue
Mod.'648. is'not changeable, i Lev. 307. Hill. 22 & 23 Car. 2. B. K. Taylour
"''I, ''^^'v.Eecket.
3. Anon. Upon Affidavit that the Lord Gerrard and his Anceftors had Irocd
loi!<r in LdiicajMre^ and kept great Hofpitality, and bid every Body wel-
come &c. and that Spencer was a Southern Gentleman, and lately come
into Lancaihire, Hale Ch. B. did not fuller them to proceed upon their
Ejectment in Lancafliire, but made them to try it in 5 feigned J^ious by
a Jnryof HertfordpJire. Skin. 44. Pafch. 34 Car. 2. B. R. in Cafe of Ld
'Sljitft^bUrp il* <i5tiip!)iinij cited by Dolben as the Cafe of Ld Gerrard
v. Spencer.
An Aftion 10. It was moved to change the Venue in an Aclion of £/?/?/>£ .• But
otErcapeis was denied per Cur. for an Efcape in one County is an Efcape all over
out of the England. And per Robinfon Prothonotary, The Court rarely changes
^Vi^Jm^-K the Venue but in an ASion of the Cafe. Freem. Rep. 260. pi. 278. Tria.
Venue ^^c^ 1679. C. B. Anon.
izl^lod! 204. Midi. 10 W.;. BR. Anon. S.P. zSalk. (J70. pi. S. in allfatijCOtt's Cafe, faysh
■was lb faid by Holt Ch. J. Mich. 10 VV. 3. S.P. Sid. S;. Anon.
* 2 Jo. 192. II. A£lion upon the Statute oi Scandahim Magnatum againft the De-
Paic'h. 54 fendant, in Nature of Confpiracy, lor indicting the Plaintiff of High
Car. 2. ^■^•Tj-cafon, in Compaffing the Death of the King, and the Subverfion of
Skin. 40. pi. che Government, and iox fiiborning one Wilkinfon to tejlify falfely upon the
9. S C. and faid Indiftment. The Action was laid in London. And upon the Ajfi-
cited Loi-d d^vit cf the Defendant, that what --jvas done by him w^j by Order (f the
^v' C f ' King and Council ; and that the Confpiracy (if any ivas) was in the County
in' Lord ^' of s'urry, and fevcral other Jffida-Jits of $ good and fubjfantial Citizens., to
Halt's Time, the fame Effect, as the Affidavits in the Cafe of the laid * Catl tl» Crit-
&c. where j|jjfj» and the Rule of Court was, that the Vifne Ihould be laid in the
r^n^LW County of Surry. 2 Jo. 198. Pafch. 34 Gir. 2. B. R. f The Earl oi
J on^Coun- Shaftsbury v. Graham.
altered into another. Vent. 3^5. S. C. fays the Court p;?.ve the Earl the Eleftion of any other
County ; but he retufed to try it elfewhere, and would rather let the A6tion fall. 2 Show. 197.
S. C. and cites Lord ^l)aftSburp's own Cafe I), ©i^i^l'j \there the Venue was changed by Lord Hale,
and that in a Cafe of Scandalum Alagnatum.
+ 2 Show. 197. pi. ioo. S. C. And per Cur. Here the Chief Evidence muft arife in Surry, viz. the
Confpiracy and Labouring ; All that is in London, and can be inquired of there, is the Indittment ;
to which nothing is needful but a Copy, and one Witnefs to prove it true ; and even in a Scandalum
Intercft with tic then Sheriffs of Lcncioi, that an iniiiffereiit Jury ivas not like to be returned ; and that feve-
■>-al Prrfons named to be material lf'it?!rj]'cs for the Defendants, durfi not come to the Trial, if it tvere in Lon-
don- for Fear of their Lives, in regard they had been ib affronted and abufed when they were produced
to prove the before-mentioned Lididtment at the Old Baily ; and fevcral other Matters were alleged.'
The Court declared that they were littisfied that no indifferent Trial could be had in London ; they
remembred they were affronted, thenifelves when they were at the Old Baily, upon the before- raention'd
Indictment ; and they refolved that they h.ad a Pov, cr to alter the Venue in the Cafe of a Peer, as it
had been done about fix Years fince, in a Scandalum Magnatura, brought by the Earl of Salisbury in this
Court. And alfo they faid. That the Caule of Action here was tranfitory, (vi-i.) The Confpiring ;
and that the Preferring of the IndiHinent ivas but in Jgcra-jation of Damages ; and the Aftion would lie,
altho' none had been oMered, or if preferred by other Perfons than the Confpirators. 12 Mod.
<i< Pafch. (; W. 5. in the Corporation of .flOrfOrD's Cafe, it was iaid by Holt Cli. J. that this was a
Cafe of the Times, and when Things were in a great Ferment, and he did not know that this Cafe
was founded on Law and Reafon ; fjr in Cafe of Scandalum Magnatum, it was always ruled the Venue
could not be changed.- On a Motion to change the Venue in Scandalum Magnatum upon the com-
mon Affidavit the Court faid it had been done on Account of Intereft and Unindift'erency in a Connty ;
but not on the common Affidavit. Ec adjornatur. 2 Show. 905. pi. 507. Trin. q 5 Car. 2. B. R. TJie
Duke of ©tlfkinciiiam to» flDutiaUv Garth. 400. Pafch. 9 W. 5. B. R. in the Cafe of the Dul^
of iliorfolk V. j.tDertOn, the Court denied to change the Venue upon the common Affidavit, that the
Words (if any fuch) were fpoken in another Place. And the Lord ^IjaftSbUrp's Caie bi.-ing cited,
the Court faid that was becaufe of the great Influence that Lord had at that Time in London. — 2 Salk.
668. pi. %■ S. C. accordingly, and cites the Lord Shaftsbury '.s Cafe ; and it was granted there on Affi-
davit of Unlikelincfs 8;c. of an impartial Trial ; but in the principal Cafe, the Court faid they would
not
Trial. iQo
not do irfoi-tlie Convenience ot the Defendant. 12 Mod. 121. S. C. the Court faid they would nof
grant it, unlels upon Ibme (pecial Reafons. 12 Mod 4.01. Pafch. 12 W. 5. B. R. The Bifhopof
73aH] t). I3riD£l'fi, the Court denied to chanj;e the Venue ; for they faid it was never granted but fpr
extraordinary Caule, as was that of my LordShafcsbury.- — In Cale of the Duke of JJlcljmoilO Sj,
Cofilicto. iiMoJ. 254. pi. 5. Trin S Ann. The Court refufcd to change the Venue. And Holt
Ch. J. (aid the Rcafon in Lord Shaftsbury's Cafe was, becaufe he had an Intereft in the City ; and
therefore he could not have an impartial Jury there; and where there is a fpecial Caufe, it is in the
Difcretion of the Court whether they will do it or not. But it is not ufual to grant it upon the com-
mon Affidavit. And Trin. 10 Geo. 2. fuch Motion was denied. The Venue is neyer changed in
Actions of Scandalum M.ignatum. Barnes's Notes in C. B. 559. Loi-d Griffin v. Buckby. -Rep. of
Praft. in C B. 152. S. C. fays it was agreed by the whole Court, to be the conftant Praftice to deny
fuch Motion. And adds. Note, between Lord *)tamfOt^ anD JSrOten, Trin. i Geo. i. There was
the like fiefolution by the Court S. P. G. Hilf ot C. B. 7 5. becaufe a Scandal raifed on a Peer of
the Realm, rcflefts on hmi thro' the whole Kingdom ; and he is a P,;rfon of fo great Notoriety that
there is no Neceffity of his being tied down to try his Caufe among the Neighbourhood.
12. \\^hen a Matter arifes in fever al Places, the PlaintifFhas Eleftion;
but if there is like to be no indifferent 'trial where it is laid, it is ufual
with B. R. to change the Venue. Vent. 365. in Cafe of Lord Shafts-
bury V.Graham.
13. A Bill in Chancery to change a Venue, complaining that they could
not have a fair trial tn the County where the Ac! ion was laid, was difniifs'd
Per Lord North. Vern. 267. Mich. 1684. New Elm Hofpital v.
Andover.
14. A Man being /o powerful that Right could not be had againjl him in
the County of Bucks, the Venue was changed upon a Bill brought in Chan-
cery, purely for that Purpofe. Vern. 439. pi. 411. Hill. 1686. in Cane.
in Cafe of MOatC \i> <£UfiitCC, cited per Ld. Chan, as the Cafe of Sir
William Tyrringham.
15. \\^here Evidence neccjfary to ftipport the AH ion arifes in two Counties, As in Troitv
ity wftere ne laid liis Action, tne L-ourt wiil never Leave to
change the Venue. 2 Salk. 664, pi. 4. Mich. loVV. 3. B. R. Anon. change the
Venue, the
Plai>:t!ff moved to fct it afide, and it was granted, he being loimd to give Evidence in the County 'vjhere the
Action ivas laid, z Salk 669. pi. 4. cites Pafch. 10 W. 5. B. R And where a Rule is made to
change the Venue, and afterwards the Plaintiff would bring it back again, the Rule muft be, that he mufi
give Evidence of the Matter in fjfue in the County where tie AElion was brought. 2 Salk. 669. pi. 4. cites
Pafch. 12 VV. ;. B. R. But where the Defendant had obtain'd a Rule for changing the Venue
and now after llTue joiii'd, it was moved that the Plaintitf might have his Venue changed back again,
upon entering into the common Rule to give material Evidence in the County where he had at Jirjl laid it, but
tiie Court laid, that the Rule between the Plaintitf and Deferd.int in thefe Cafes is mutual, that a Ve-
nue cannot be changed the one way or the other after Delivery or Acceptance of a Plea ; and that the
Plaintift is under no Difficulty by this, becaufe the D,:fendant mull Icrve the Plaintiff with tlie Rule
for changing the Venue before he delivers his Plea ; which is fufficient Notice to him to move to have
it changed back again, before he accepts the Plea. 1 Barnard. Rep. 29S. Hill. 5 Geo. 2. Anoa.
16. Cafe againfl: the Drawer of a Bill of Exchange, who lived at Brifiol, n ^^od. 52.
and drew the Bill there upon one who lived tn London, where the Bill was ^'x^f^ b'r'
tendered and refufed ; and the Afliion being brought there, it was moved Anon, makes
to change the Venue to Brillol, but denied ; becaufe the jR<y}(/2?/, which a Quire if
was at London, inujl he proved to make the Drawer liable. 2 Salk. 669. 1!^= ^"^l^^
pi. 4. Mich. 10 W. 3. B. R. Anon. oTvenuT^
extend to Bills of Exchange. The Court doubted, but feem'd to be of Opinion that they did not, for
the Inconvenience that might enfue. But Trin. 8 & 9 Geo. 2. the Court denied Leave to change
the Venue on a Bill of Exchange, or PromifTory Note ; for thefe are in the Nature of Specialties. Rep
of Praft. in C. B. 119. Ward v. Colclough.- Barnes's Notes in C. B. 557. S. C. And Rep. of
Praft. in C. B. 119. fays, that Trin. loGeo. 2. between QliggtT.0 luSligBff.B'j f'"= Court made the like
Relblution, and fo it was faid to be ruled in B R. S. 1*. B.irnes's Notes in C. B 545. Mich, iz
Geo. 2. JUllatfon i).®lilU0, and the Court faid it was the fettled Praftice. And Hill, i; Geo 2.
the Court refufed to change the Venue, the Caufe of Aftion appearing to be upon a Bill of Exchange
only, and Plaintitf undertaking not to give Evidence upon any other Count in his Declaration, fave
upon the faid Bill. Barnes's Notes in C. B. 547. Maugir v. Hinds.
Where the Declaration was on a Promijfary Kote, and other Count!, the Defendant moved on the com-
mon Affidavit to change the Venue, and obtain'd a Rule to ihew Caufe, which w.is difchargcd, it ap-
M m i'earing
134- ^ Trial.
■peanns, by Affidavit rliat Plaintiff "s CM<fe of Jetton •a.is u^on a Proniiffary Note. Barnes's Notes in C. B.
541. Hill. 10 Geo. 2. Kice v.Vinail.
It was mov'd 1 7. Aclion for Words was laid in London, and an Jffidavit for changing
to clian<re
Venue was, That if any fuch Words were fpoken by him, they were U
f '^ ^TvA fP°^^'' "^ ^^'' County of Lancajtei- &c. and becauie the Court could not or- '■
dlcL- into der a Trial there, it being a County Palatine, they changed the Venue into
Hereford- the next County, viz. into York, tho' the Proof lay all upon the Plain-
i]iiic,inan ^yy ^.j^q ^^^^ ^u his Witnelics in London ; and that the Defendant
ial'LhJs could not prove a Negative, viz. that he had not fpoke the Words,
/rlrls' The otherwile than indircftiy, by producing thofe that were in the Room at
Words were the Time, and that they did not hear any fuch ^\"ords, or that no fuch
net nier,tiomd j^jfcourfe was &c. 12 Mod. 313. Mich. 11 W. 3. Anon.
Zt but oniv that if fuch Words were fpoken as in the Declaration, they were fpoken in Herefordlliire,
and not in'isliddiefex. Held bad. Barnc's Notes in C B. 335. 336. Hill. 8 Geo. 2. CalUe v,
Eoucher.
18. The common Counter- Affidavit, ro ^/W^r the Change of Venue, is
to give Evidence de materia in exit 11, where the A£tion is laid. 12 Mod.
372. Pafch. 12 W. 3. mentions it as a Rule.
12 Mod. 15. In Cafe for a Falfe Return, the Afliion was laid in Suffolk. The
I,' 5- p ^ Delendant moved it might be laid in jWddlefex, becaiife this Atfion ■would
ftid^t waf ^-^'(A' f^'"'''^ ^^^^^ "^ ^^^ Country. The Court inclined to grant it, yet be-
good Caufe caufe^the Plaintiff would not confent, theretore nothmg was done, bc-
to change caufe he had a Right to lay it in either County. 2 Salk. 669. pi. j.
the Venue, ^^Sch i^ W. 3. The King V. Mayor of* Oxford.
to prclerve d j d j
the Peace of the County. But this Aftion being a locil one, muft in its Nature be brought either lit
Suffolk, where the falle Return was made, or in Middlefex, where it appear'd on Record ; and the
Plaintift' has his Eledrion by Law to bring it in either of the two Counties, and the Court cannot lay it
without his Confent in either of them.
It is mifprinted for (Orford )
♦
20. In Debt upon Bond, the Plaintiff declared, That the Defendant,
apud Warwick concejftt fe teneri &c. The Defendant pleaded fever al tran-
/itory 'things in Bar, and alleged them to be done apud Rugly in the County of
Warwick. And upon Demurrer it was infilled, that the Defendant can-
not change the Venue from Warv/ick-Town to Rugby, by pleading
thefe tranlitory Things in Bar. And Judgment was given for the Plain-
tiff, the' it was urg'd that Warwick was in the Margin of the Declara-
tion, and fo to be intended of the County ^ and that the Count that the
Bond was made at Warwick, Ihall refer to VV^irwick in the Margin.
Lutw. 614. Mich. 13 VV^. 3. Treene v. Hiccocks.
21. T\\ij pcrfonal ARion may be laid anywhere, yet if theGz///Z' of
A£lion appears to arifc in another County, the Venue will be changed ; as
if Aflault and P>attery be in London, the Party may lay it in what
County he pleafes : But if he fues an Original to the Sherift' of Middle-
fex, and declares in London, it will be bad. iz Mod. 568. in Cafe of
Jt^aptDartl \^, EtnfCP, cites Cro. J. 479. [pi. 3. Pafch. 16 Jac. B. R. J5)0l=
iiltU il, 15lin;I)t.J and 674. [Mich. 21 Jac. Reynel v. Kelfey.j
8 P. Gibb. 22. The Court ne\>er changes Venue in Debt. 12 Mod. 579. Mich. 13
166. Mich YY ^
4 Geo. B. R. -'
DupleiVas V. Short. S. C. & P. and tho' on the other Side it was urgM, that as the Circumftances
of this Cale were, they would change the Venue, becaufc here the .-IH'wi was brought tipn a P.nol Di~
viife, and not laid in the County ivhere the Lands are. But the Court ftid, they thought the Rule in
general was, that the Venue is never chang'd in any Aition of Debt for Rent ; and appeal'd to Mr.
Reeves, who declared, that fo he always underftood it. Accordingly they diltharged the Rule I
Barnard. Rep. 379.
But where an Aftion of Debt for Rent was brought in London, and the Lands lay in Glouceflerjhire, the
ABion betwixt the Leflbr and Leffce was grounded upon the ContraH, upon Affidavit made, 'J hat the De-
fendant would plead a fpecial Plea, whereby the Title »f tie Efiaie would come in ^lefiion, the Court order'd
the Venue to be chang'd into Glouceftcrlhirc. Freem. Rep. 260. pi. zjj.Trin. 16-9. in C B. Mcritt's
Cafe of Winchcombe.
sj. Aftion
Trial. 1^5
23. Aftion for Falfe Iniprifomnent againji the Sheriffs of London -was laid
in Middkfcx^ and the Venue was changed to London upon the common
Affidavit i but it being moved, that the Officer of the Counter is ftibje^ to
the Sheriffs, and fo there could be no good 'Trial, it was therefore brought
back to Middiefex. 2 Salk. 670. pi. 7. Mich. 3 Ann. B. R. Sir Sam.
Gerrard's Cafe.
24. A Lighterman took Goods in Kent to he carried to London, and the So where
AUton being brought againlt him in London for not delivering the Goods, "^*''" ^^^
he moved to change the Venue, becaufe the Damage and Negleft was in L^'^d'^'^ '"
Kent ; but non allocatur i for the Negleff is tranjttory, and not material e,a;na^a "'
where it was done. The Fenue is never changed for a common Carrier i but Lighterman
otherwife perhaps in Cafe of Deceit, or where there is an aftual Afif- f"" '"fi^S
feafafjce. 2 Salk. 670. pi. 8. Pafch. 4 Ann. B. R. Heathcott's Cafe. ^'""^' '"""'
J ■> ' ^ ^ veytng them
from London
into Middiefex. It was moved that the Venue might be chang'd, upon an Jffidavit that the Goods, if any
where, 'xere lofi in Middiefex. But the Court faifi, that it appear'd upon this very Affidavit that the
.Plaintiff was bound to giue material Evidence in London, and therefore refufed the Motion, i Barnard.
'Rep. in B. R. 2S5. Hill. 5 Geo 2. Gifford v, Letchmerc.
25. On Judgment in EjeSment, upon a Demife of 3 Years, the Defen^
dant brings a "vV^rit ot Error into B. R. and the Defendant in Error fues
out a Scire Fac' quare Execitt' non. To which the Plaintiff' in Error pleads,
that he has paid 200 /. in SatisfaBion of the Term and Damages ; and
upon Iflue join'd, it was moved to change the Venue out of York-
fhire into Middiefex; but the Court denied the Motion, becaufe the
EjeSr<ent is local ; and the Scire Facias being grounded thereon, the
Venue could not be changed. 11 Mod. 263. pi. 2. Hill. 8 x\nn. B. R.
Follf.r V. Burden.
26. A Rill was brought to fettle the Boundaries of the Manor of D. iu Com.
Palatine of Durham, and an Iffue being directed to try the Matter &c.
a Motion was made to try the IfTue in the County of York, and not in
Ojm. Durham, becaufe the Btflwp, as Lord of the County Palatine, appoints
the Sheriff, and has fuch a Power and Influence in the County Palatine,
/that there cannot be an Indifferent Trial where he is Party. It was admit-
ted, that this Court may dire£l a Trial of a local Matter ariling in a
County Palatine in another County, being only to inform the Conlcience
of the Court ; and this has been the ufual Praftice, and there are many
Precedents for it. Cowper C. faid. It is ufual in this Court to direft a
Trial of local Matters in a County Palat-ine in any other County, being
only to inform the Confcience of the Court ; and order'd that the Jury
have a View, and that the Poftea be mark'd, if the Jury find any thing
different from the Boundaries given in by the Plaintirt! Per Cowper C.
Pafch. 2 Geo. in Cane. Sir Henry Lyddall v. Durham (Biihop.)
27. A Tranlitory Aftion was brought in London, and being changed,
ic was moved to difcharge the Rule, becaufe the Action was brought by a
fpecial Original. But the Court would not difcharge it i for ihould they
do fo, the Venue would never be changed when the A£lion is laid in
London i and as to the Variance, which was objefted there would be,
OQ the changing the Venue, the Court faid the Defendant Ihould take no
A<1 vantage of it, tho' the Atlion was brought by fpecial Original.
8 Mod. 229. Hill. lo Geo. 1724. Long V. Nixon.
28. It was moved to change the Venue from Pool into the County of On Ruk to
Dcrfet, upon an Affidavit, That the Atilon was for fame fmall Town- fliew Cauie
Duties, wherein the Inhabitants were fo much Interefted, that they were''''"^^^^^'
afraid they could not have an impartial Trial in theTown it/elf^ and that the j,^, j^^
Sh.2riff' was Member of the Corporation. The Court faid, that the firll chang'd /row
R«:afon has conltantly been difallow'd, unlefs in Ld. ^Ijvlft^bUVp'Si Ltadon to .
Cilft , which has always been complain'd o{; arid as to the lalt Reaion, S."thampt^^
•thry faid the proper Method then was to enter this upon the Roll, and "^."!}^"hat "
pray
1^6
Trial.
the Caufc of pray a Writ to the Coroner, i Barnard. Rep. in B. R. 283. Hill. 3 Geo.
Aftion, if 2. The Town of Pool v cites Skin. 40.
3tl.V 3ro^c
there. It was moved, that the Jcliori related to fame Duties, which the PlaintitF claimed as Lejfee of the
Mayor of Sciithampton, and ivhich ail the neijlboiiring 'to'wns were affeBed iy, and Co •liece afraid they could
not have an equal 7'rial there; and therefore hoped the Venue llioU'id continue where it was. The
Cciirt faid, that Salisi^ury was the moft proper Place then for the Venue to be in, as being the next ad-
joining County in the fame Circuit ; however made a Rule to fLew Caufe, why the laft Rule fhould not
be difcharg'd ; and then upon fliewing that the Duties were exceedniply trivial, and that only the Sea- fort
<Idwvs in the County were affelied iy them, the J.lule was difcharged. i Liarnard. Rep. in B. R. 412 HUl.
4 Geo. 2. Grove v. Drag.
S. P. 2 Bar- 29. Affidavit to change a Venue, was penned that the Proinifes in the
"'^'b R "^-^ Declaration (^ifafiyfuch were made) were made hiSiiJJex, and not in London
Mich. 5 Geo. ^^- but was held infufficient, and not agreeable to the common Form,
a. White V. which is, that the Plaintiff's Caufe of Action (if any fuch he hath) did
Love. arife &c. Barnes's Notes in C. B. 331, 332. Mich. 6 Geo. 2. Cole v.
Gouing.
30. A Rule Nili, to change the Venue, was difcharg'd, the Word^
ci ihe. Jffidavit^ whereupon the Rule was made, being, that the jiS ion-
did arife in the County of Bucks, and net in the County of Middlesex, or elfe-
•where out oj the County of Bucks, to Defendant's Knowledge and Belief,
which is not politive, and therefore infufficient. Barnes's Notes in C. B.
333) 334- Mich. 7. Geo. 2. Belfliaw v. Porter.
And the Ve- 3 1. yfffiddvits if one of the Defendants held fufficient to found a Motion
""s ^H^ to change the Venue. Barnes's Notes in C. B. 339. Trin. 10. Geo. 2.
tho-uwas Box V. Read & al.
moved for
feme of the Defendants, that they did not defire the Venue fhould be chang'd. Rep.of Praft inC. B.
133. S.C.
S. P.Barnes's 32. On Motion to change the Venue from Middlefex into Surrey,Plain -
r°R"- 'fi tiff infixed Defendant ought to pay for a new Billi but per Cur. it is no
Trin i-Geo. more than in other Actions, a new Original is necelfary in all Cafes : Tlie
2. Winter Venue mult be changed without Cojis. Barnes's Notes in C. B. 344 Mich.
V South an 12 Geo. 2. Davies v. Grace, Attorney.
Attorney.
(Y.a. 4) Venue changed. By privilege.
I .
S. C. cited I. \ Tranlitory Adion was brought againji a Barrijier in Northum-
^^M^'i''^^" _/5^ berland, and it was moved that he might have his Privilege to
J,- Q xr^n ■ lay it in Middlefex, and this upon the Authorities of JfranhUlt ll, ^C
22 Car. 2. in UBliUam QBUtlCC and 'BCtC iJ. 3!One0, that where any Tranlitory Ac-
Wingfield's tion is brought againft him, he may have it laid in Middlefex, let t{»e
Cafe--—- Caufe of Aition arife where it will. And the Court afterwards, upon
a Sho'w^i-- ^^^'"S ^^ Precedents cited, order'd to lay the Venue in Middlelex ac-
pl. i72.Hui. cordingly. Sty. 460. Trin. 1655. Bacon v. Ramfey.
33 & 34 Car. [
a. B. R. in Cafe of STljOtmJfon fa. S>crOgg.ff, in which it was agreed that IBaCOn's Cafe in this Court
was Law, that a Plaintiff being a Barriftcr, had Privilege to lay any Tranfitory Adtion which he
brought, in the County of Middlefex ; for his Attendance is fuppofed continually on the Courtf at
Weftrainfter ; and lb if he were Defendant. If the Defendant is a Barrijier, he may have the Ve-
nue changed into Middlefex. 2 Salk. 668. pi. i. Mich. 6 W. 3. B. R. Seaman v. Ling.
^irfinanln- 2. In A£t;ion for Words ^v ^ £^rr//?^r, laid in Middlefex, the I'e-
debitatus ^^^g ^^^ changed into York on the comnion Affidavit, and upon .Moiiion
Aflumpht fo
Trial. 137
to continue it in Middlelex, the Courc denied iz, undikid a. BarriJ-er ^''°^^^ h »
■had m fitch Privilege, gciicraily ; and tho' the Plaintiff had Judgment by ^i""f%f
Derault, and waved it to try the Caule, yet they would make no other Venue Ihall
Rule than to try it in the County of York. 2 Keb. 164. pi. 53. Hill, not be
i8 & 19 Car. 2 Remington v. Harrilbn. changed By
Reajcn of h:S
Jtte,:Aa}ice in B. R. And per Twifden J. in Mr. Igaroh's Cafe of Gray's Inn, the Court refufed to
chance the Venue in the like Cafe : And fo a Motion to chant^e it was denied. Mod. 64. pi 9. Trin.iz
Car. 1. Wingfield's Cafe.. ^ So in Trefpals of Battery in Eflex, laid in Middlefex ; the Venue was
chanced upon the common Affidavit, but it being afterwards moved that the Plaintiff was a Barrifter at
Law^ the Court order'd it to lie in Middlcfe.\- Secundum Privilegium ; iio' it was J/jeaed on the other
Side, that he had difcoritimied lis Praciice, and Ihed in the Country for many Tears paft. z Show. 242. pi.
259 Tvin. 54 Car. 2. B. R. Row v. Ruflel.
So where the Plaintift'was a Mafter inChancery, and Barrifrer at La^rv, and had laid the Venue of a Per-
fonal Mion hi Middlefex. The Court was of Opinion it could not be changed ; for they faid, Officers
that are bound, or have Bufinefs to attend at VVeftminfter-Hall, have a Ri^ht to have the Venue in
thefc Perfonal Adtious laid in Middlefex. i Barnard. Rep. in B. R. 1 14. Hill. 2 Geo. 2. Buroughs v.
Willis.
3. An Jttorney was Plaintiff, and laid his Adim in Lcftdmi, the Court S C. cited
upon Motion, order'd the Venue to be changed ; for being laid in Lon- f„"c"f ^"^f '
don, he is to be confider'd as a Perfon at large. Vent. 47. Trin. i W. & seam^ v.
M. in C, B. Anon. Ling.
... . JJfunifftt by
s.a Jtlorney' -was laid in London; Affidavit to change the Venue was, that the Caufe of Adion, if any
arofe in Devon. But tlie Court fiid that an Attorney has a Right to lay the Caufe of Aftion in Middle-
fex ; and therefore they obfervcd it was neceffary in thefe Morions, that it fhould appear the Venue was
not laid there. l7pon which wai produced a Copy of the Dcclaraticn, hy ii-hich it was faid, it appear'd the
Venue was laid in London. But per Cur. an Jjfdai:t ought to he annexed, that it may appear to Le a true
Copy; for they faid indeed, in common Cafes they allow Venues to be changed, let the Caufe of A<&ion
be lain any where, and therefore do not require any Affidavit that the Venue was not laid in a partioi-
lar County; yet in the Cafe of an Attorney, as he has a Right to lay his Action in Middlefex, they muft.
I Barnard. jii.Pafch. 2 Geo. 2. Anon.
4. An Attorney or Officer cf B. (as Secondary of the Crown Office &:c.) Carth. 1^7.
has no Privilege to change the Venue where he is * Defendant, but where he is ^ p' ^^^
f Plaintiff, he may lay his Aftion in Middlefex, and out oi the proper show. 15J.
County i and in fuch Cafe the Venue fhall not be changed upon the S. c. but
common Affidavit, by Reafon of his Privilege. Carth. 126. Pafch. 2 VV. ^ ^
& M. in B. R. EilFe v. Harcourt. " I ^}'>^ ^Si.
o. C but not
S. P. 1 Salk. 1 7 -. pi I. S. C. but not S. P.
* But where an Jttcmey was fued hy ff'rit of Pri-ji!ege, and the Adtion was laid in Suffolk the Venue
upon Motion was chang'd into Middlefex. 2 Salk. 66S. pi. i. in Cafe of &)ii!Tnail SIID ^Linj cites
Trin. 2 Anns, Wilcocks's Cafe. But Mich. 10 Geo. 2. The Defendant infilled in Ri<rht'of his
Privilege as an Jitormy, that the Venue ought Co be laid in Middlefex, his Duty requirincr his Aiten-
dance at Weftminfter. But per Cur. Defendant has no fiah Privilege. Plaintiff may lay his Attion
where he pleafes; and if Defendant applies to change the Venue, it muft be upon tlie ul'ual .Affidavit
Barnes's Notes in C. B. ;4o. Cooper v. Mills, an Attorney .^ S. P. Rep. of Pract. in C. B. i - ' 1^ -'
Mich. loGeo. 2. Mills v. Johnlbn, an Attorney. '''' '
t S. P. Barnes's Notes in C. B. 54S. Hill. 1; Geo. 2. Warden, Attorney, v. Norden. S. P. per Cur.
tho" the Aftion was \n Jffault and Battery. Barnes's Notes in C. B. 355. Eafter, 7 Geo. 2. Denton an
Attorney v. Lambert.
But Dolben J. remember'd a Cafe where the Venue was alter'd upon Affidavit, tho' an Attorney was
Plaintiff, becaufe the AJatter did arife, and all the If'ttneffes lived in remote Parts of the Kin''dom. Carth
J 26. in Cafe of Bilfe v. Harcourt. So where the Plaintift was an Attorney, but had%ct declar'd in
Terfon, but by Nicholas Cotterell his Attorney, the Venue upon Motion was changed from Middlele.x to
Suttblk. Barnes's Notes in C. B. 554. Hill. 7 Geo. 2. Dent v. Lamb
5. A Clerk of AJffe of the Norfolk Circuit brought Aflault and Bat- 2 Ld Raym.
tery in Middlefex for Battery done in Kent. Upon the common Affi- ^^^p- '-55
davit the Vifne was changed, but upon Motion that Rule was fet afide ?' ?' ^'^'^°^'^~
and brought back again _; for as Clerk of the Alfife, the Plaintiff is '"^ ^'
bound to attend the Courts at Weftminller to^return the Pofteas. 2 Salk.
670. pi. 9. Pafch. 5 Anna B. R. Knight v. Farnaby.
6. Hi Serjeant, Barrijler, or * Attorney, bring' any ^ranjitory A ff ion ^ Silk. 6-0.
in Middlefex, the Venue Ihall not be changed to any other County ; be- P'-?- i^nial)t
Nn ^ caufe ^•^■'^^'^^i'
i^S
Trial.
^ C. & p.— c^ufe the Law is, that a Plaintiff may bring his Tranlitory Aftion where
* Freem. j^g ^yjjj . ^nd tho' the Court, fince the Time of K. James I. have changed
5 " Trin!* ^^^ Venue on the common Affidavits, yet this lliall not be extended to
16:6. B. R. take away the Privilege of thofe who a!re to attend the Courts of Weft-
Aftree v. miniler; but no fuch privileged Perfon Ihall be exempted from the Rule
Ballad. of Changing the Venue on the common Affidavit, if they bring their
Action in any other County except JVliddlefex. Holt. 712. pi. 5. Mich.
5 Ann. Smith v. Farnaby.
See Pi-ivi- ij. Barrijfer at Law being join'd tvith mother, has no Privilege to
lege CD) pi. change the Venue ; ib where the Suit is in Juter Droit. 8 Mod. 316.
''■ Mich. II Geo. 172J:. Townfend v. Affignees &c. ota Bankruptcy.
Kep. of 8. Plaintiff' fued Defendant by Capias,, and not by Attachment of
Piaa in Piivilege, and laid the Aftion in Middlefex ; Defendant moved to
Trin. '10 change the Venue, but Plaintiff' inlifted that in Right of his Privilege
Geo. 2. S. C. as an Attorney, the Venue ought not to be changed ; but Court were of
by Name of Opinion that Plaintiff^ having declared as a comma Perfon, and not as upon
^ItllanDti. gj^ Attachment of Privilege, the Venue mult be changed. Barnes's
^""colVt Notes in C. B. 335. Trin. 7 & 8 Geo. 2. VVelland, an Attorney v. Fru-
declared that ment.
he was not
intitled to the Privilege of an Attorney unlefs he claims it properly ; if he fues as a common Perfon, he
muft be treated as fuch. ■ S. P. where the Plaintiff being a privileged Perfon, fued by Original.
Barnes's Notes in C. B. 542. Hill. 11 Geo. 2. Girdler Serjeant at Law. v. Watthews. — Report of Prad,
inC. B. 145. S.C.
(Y. a. 5 ) Venue changed. y^( what Time.
1. T N all Tranlitory Aftions, where the JDecJaration came in above Jix
j[_ Days before the End of 'Term next after the Appearance, or the Term
wherein the Appearance was, the Defendant mult that very Term (and
crnnot afterwards) move to alter the Venue i neither can the Plaintiff
after the Appearance, alter his own Venue, tho' he wonld pay Colts, or
give an Imparlance L. P. R. 85 cites Paich. 21 Car. 2. B. R.
Gilb. Hift. 2. Venue cannot be chang'd after a Plea pleaded. Come Serable.
bSufe tt^' ^^^^^' ^^P- 4^^- P^- 573- Trin. 1676. B. R. Altree v. Ballad.
is agreed to by the Defendant. ' A Motion to change the Venue after flea pleaded and Notice of
<7»-m/ given, was denied by the whole Court. Rep. of Pnfl:. in C. B. 55. Hill. 15 Geo. I. Carter, Ar' v.
Dormer Ar' So where it appear'd that the Defevtfaiit had pleaded bejore he applied to change the Fenue,
the Rule was difcharg'd ; for that the Venue is not to be chang'd after the Defendant has pleaded. Rep.
of Praft. in C. B. 112. Hill. 8 Geo 2. Collar & Ux. v. Standcn. . S. C cited ibid. 56, 37. in Cafe of
Gardiner v. Forbes. S. P. l Barnard. Rep. in B R. 2S5. Hill. 5 Geo. Gifford v. Letchmere.
Venue cannot be chang'd the one Way or the other, after Delivery or jlcceptance of a Plea. 1 Barnard.
Rep in B. R. 29S. Hill 5 Geo. Anon.
Motion was made that the Plaintiff" might have Liberty to amend his Declaration, by changing the
Venue after Plea pleaded ; and the Court accordingly made a Rule to .fhew Caul'e. 1 Barnutd. Rep.
in B. R. 410. Hill. 4 Geo. 2. Yarp v. Plea.
* A Motion 2. The Motion to change a Venue muft be •withiu eight Days after the
^^^'^'^Z^^^^ Declaration deliver' d ; but this Rule is not ltri£tly oblerved. But Trin.
Ruir'to" 7 VV. 3. B. R. it was faid by Alton, that one might move to change the
lliew Caufe Venue at any Time before Judgment lign'd ; but Holt Ch. J. denied
granted ; on Jt^ and fatd, that heretofore it was never granted after the * Rules for Plead'
Jlj'^T"^ tnz -inhere out. 2 Salk. 668. pi. 2. Pafch. 8 W. 3 . B. R. Anon.
Caufe It ap- o ^ ^ , r rr
pcar'd that aft^f the Rule to plead iras out, the Defendant applied to a Judge for Time to plead, andptndiiig
the Summons mned to change tie Venue. Per Cur. he fliould have applied to change the Venue fooncr J
the Rule <n«ft be difcharg'd. Rep, of Pratt in C. B. 126. Hil. 9 Geo. 2. Ball v. Young.
4- Iq
k
Trial. 1 39
4. In Jffimp/i( the Plaincitf laid the Promife in Staff ordjhirt. The <5 Mod. 175.
'Dcclarattm was Helfvcred in Eajlcr-7'erm ; and a Motion being made in 'bVt^'^o'^*
Trinicy-Term to change the Venue [into London] Holt Ch. J. laid, that Bu/ Holt
iinlcfs It appears in the Declaration, that the Plaintiff was not tntitled to a Ch. J. faid,
Plea to cnter^ we expeft an Affidavit when the Declaration was delivered, ^hat this be-
that the Court may be afcertamed thereby. 2 Salk. 669. pi. 5. Trin. 3 ii?sa Counirj
^nn. B. R. Crockett's Cale. the Decla-
ration of
Eafter-Tcrm, in which, the* it were the firft Day of the Term, he could not have a Plea to enter, he
thought this out of the Reafon of the Rule, and therefore an Jffidaiit unneceffary ; hut here, becaufe it
the Action were laid in London, there muft be 1 5 Days between the Telle and Return of the Procefs,
and fo the Flaintift" could have no Trial till Michaelmas Term, the Court held him up to the Rule.
5. The Plaintiff the fecond 7'erm may amend, but not change the Ve- * It was a-
nue, tho' Iffue be not joined, nor in any Cafe afterwards ; for in * tranli- greed perCur.
tory Aftions the Plaintiff has his Ele£lion to lay his A6lion where he pJrv'!^ffLT7
ple'afes; therefore he fhall not change it, tho' the Defendant may, ox\ lUa'PUim,^
Caufe Ihewn. ii Mod. 198. pi. 15. Mich. 7 Ann. B. R. Withers v.basmta
Baker. ^;;T?'°'^w ,
Eteatori; Hut
the DeFeidant might transfer it to the right County, utilefs the Plaintiff would be bound by Rule to give
tnaUrial Evidence of feme F.iB in the County where he laid it. Per Cur. 12 Mod. 5 1 5. Pafch. 1 5 W. 5.
in the Cale of the Corporation of Orford.
6. A Rule to change the Veftue was difcharged. Defendant ^(?w»^ * S. P. Bar-
kad 1'ime by a Judge's * Order to plead, confenting to plead an ifftiable "^l^ ^o^T
Plea, and to take Notice of 1'rial within Term. Barnes's Notes in C. B. Mich. 10^^'
333. Mich. 7 Geo. 2. Hardrifs v. Sandell. Geo. 2.
Newby v.
Burton. S. P Ibid. ;4(). Eafter 12 Geo. 2. Gouthoufe v Blaxland. So where the Defendant
itid fuwnioned Plaintiff before a Jttdge tor Time to plead, though the Summons was difcharged^ and no Or-
der obtained, a Rule to cliange the Venue was difcharged. Barhes's Notes in C. &. 335. Mich. 7 Geo
a. Singleton v. Laccy.
It was held, upon heaving Counfel on both Sides, that Defendant cannot regularly move to change
the Venue, ajter taking out a Judge's Summons for 'Time to plead. Barnes's Notes in C. B. 357. 33!!.
Hill. 9 Geo. 2. Paul v. Young. S. P. Barnes's Notes in C. B. 344. Mich. 12 Geo. 2. Ellis v. Chorko.
7. The Venue was laid in Yorkfliire inflead of London bj Mijlake of
the ylgent, contrary to the Injirti^ions received from the Country Attorney
(his Client) as appeared by Affidavit 3 A Rule had been made in the
Treafury, upon hearing the Agents on both Sides, to amend the Decla-
ration, Piaintift' confenting to give an Imparlance ; but the Court dif-
charged that Rule, as being without Precedent. The Plaintiff after he
has made his Eleffion as to laying the Venue, cannot afterwards change it.
Barnes's Notes in C. B. 334. Eafter 7 Geo. 2. Jarratt v. Dawfon.
8. It was moved the lafi Day of the Term to change the Venue. Per Such a Mo-
Cur. It can not now be done, as there is not a Day left in the Term for """ wasde-
Plaintift'to fhew Caufe. Barnes's Notes in C. B.' 336. Eaiter 8 Geo. 2. Ti.^'P"" c
wr J \Kr- L Athdavitof
Wood V. Winch, Notice.
Ibid. 34?
Hill. 12 Geo. 2. 2ri)0meur b. JKanO. Andadd.s, Note, the Writ was returnable the fecond Return
of the Term, and Declaration delivered February S. to that Defendant's Attorney could n^t procure ait
..jfjidavit from his Client in the Country, fo as to movefooner.
9. After a Rule to fhew Caufe why the Venue fhould not be changed,
was made, and before the Day of fhewing Caufe the Defendant pleaded,
which it was infilled was a waiving of his Rule, yet the Court madethe
Rule abfolute, feeing his firfl Application to the Court to change the
Venue, was made before the Plea pleaded. Rep. of Praft. in C. B. 136.
Mich. 10 Geo. 2. Lucas v. Rudd.
10. Defendant having moved to change the Venue upon the common
Affidavitj it was objefted that he had obtained Time from a Jud^e to per^
f9ii
140
Trial.
fed his Bail ; and therefore the Motion came too late, but the ObjeQion
was over-ruled. Barnes's Notes in C. B. 340. Mich. 10 Geo. 2. Newby
V. Burton.
Bg of 1 1. On Rule to fliew Caufe why Venue fhould not be changed, Plain-
l-'iadr. in tilY objefted, that Detendant had' obtained a Judge s Order for an Impar-
<l B. 159- lance^ and could not afterwards move to change the Venue ; but theOb-
jviich^ 15 ;(;Q.ion was over-ruled. This is not Matter of Favour (like Time to
\non"feems plead) butof Right; the Judge would not have ordered an Imparlance,
'to be S. C. if Defendant had not been uititled to it h Law. The Rule was made
abfolute. Barnes's Notes in C. B. 346. 347. Mich. 13 Geo. 2. Elack-
itock V. Payne.
(Y. a. 6) Venue changed to ^juhat Place.
1. T T was moved to change the Venue into Chefer ; And it was grants
Jj^ ed per Cur. becaufe this Court can fend down the Record by Mit-
timus. 2 Ld Raym. Rep. 1418. Trin, 12 Geo. B. R. Godfrey v.
•Philpot.
Ibid, adds, 2. jltTion for Words was laid in London, and a Motion was made to
h*°^"' ^^\'' "change the ^'enue, upon Affidamt of the Words being fpoken in the 'to'isn cf
Uiix's Hill.' Southampton j but denied upon hearing Counfel on both Sides, becaufe the
5 Geo! 2. for Court did not ufe to change the Venue into a Cit)\ or T'own and County
the fame within itfelf, without Confent of the Parties. Rep. ofPraft. in C. B.
l(eafon a ^ Trin. 1 3 Geo. i. Gardiner v. Forbes.
Jilotion to -^ -^ '
chan''e the Venue /row Middhfex to the City of Turk, was denied. And lflcbin.S I). ^HUfbbfr, Kill, i
Geo.°i. a Motion to change the Venue /wn AfMlefex to the City of Exor, wasdtnied. S. P. Where
the Motion was to change the Venue from London to Exeter. Rep. of Pradt. in C. B. Sz Hill. 5
Geo. 2. ?lane in iglUanan. And the Book fays, that Trin. 6 & 7 Geo. 2. between Cottlmg to.
ifltl'llOlDfon, the like Motion wasag-iin, for the fame Realbn, denied by the Court. Barnes's
ISotesin C. B. 352. Mich. 6 Geo. 2. S. C. the Motion being to change the Venue from London to the
City of York. rr , ■
But on a Motion to change the Venue j'rom the County of Middhfex to Lcr.dcn, en Affidavit that the
Caufe of Aftion, if any, arofe in London ; the Court ordered the Venue to be chang'd ; for
London h.is always been confidered in this Relpeft as a County at large ; and fuch Motions have ufually
been granted, tho' not to any ether City or T'owri; i^hich is a County oj itjelj. Rep. of Praft. in C. B. 41.
Hill. I Geo. 2. Biddolph Sc al. v. Browne.
The Court 3. After a Motion to change the Venue /m« London into the County of
■was moved j.]^g Qfj qj' j'~ork had been denied, it was prayed it might be changed into
to change ^j^^ County at large (York ;) whicb was alfo denied Per Cur. becaufe that
fi-om Hamp- ts not the true County ivhere the Caufe cf jiclion did arife. Barnes's Notes
Aire to in C. B. 332. Mich. 6 Geo. 2. Cowling v. Reynoldfon.
upon Affidavit that the Caufe of Action arofe in Pool, which is a Town and County in itfelf (it being
admitted that it could not be removed to Pool for that Realbn ) But denied it, there being no Confent.
*i Barnard. Rep 185. 306. Trin. 6 Geo. 2. Damon v. Jolliette.
Rep. of 4, It was moved to change the Venue /re;;/ Cumberland into Lancaflnre'^
Prad. in which being a County Palatine, the Motion was denied. Barnes's Notes
S ?• '^\ in C. B. ^32. Mich. 6 Geo. 2. Herbert v. Shawe.
Trin. 6 K 7 ■^ •'
And fays the Court has conftantly denied fuch Motions for changing the Venue int.<> a County
Palatine.
5. A Rule was made to change the Venue from Norfolk into London.
Sir ^aUlUCl (^W^tO's Cafe in Salk. 670. was cited to Ihew that a Rule
had
«i
Trial. i^i
had been made to remove a Venue from a County at large into London.
Barnes's Notes in C. B. 337. Trin. 8 & 9 Geo. 2. Bickley v. Mackerell.
6. Ic was moved to change the Venue into Durham, or an adjacent R«P- of
County where the AJJszes are held twice a Tear, upon the common Affida- }^^^' *"
vit. The Motion was denied. Barnes's Notes in C B. 337. Hill. 9 s.C. by^''
Geo. 2. Grafter v. Cockerell. Name of
draffdlij*
CocfttT, fays the Court refuftd to change the Venue u a County Palatine.
7. The Venue was changed /row the County of Cumberland to the City
oi London, upon the common Affidavit. Barnes's Notes in C, B. 338.
Ealter 9 Geo. 2. Lutwich v. Eames.
8. Ic was laid that the Court does not ufe to change the Venue to any
County ivhcre the JJJizes are held hut once a Tear. Rep. of Praft. in C. B.
129. Hill. 9 Geo. 2. Crartell v. Cocker.
9. On a Folicy oj Infurance a Rule was made to fhew Caule why the
Venue iliould not be c\\ax\'^A. from Cumberland to the City o'c Brijlol, or
Somerfetjhirc, (the adjacent County) at Plaifitiffs Eh[iton. It was Ihewn
tor Cade, that the Rule was unprecedented, and againft the Courle of
the Court; for though in an Aftion on Policy of Infurance the Venue
may be changed, yet it cannot be to aCity or adjacent County at Plain-
tiff's Eleclion, and thereupon the Rule difcharged. Barnes's Notes in
C. B. 339. Trin. 10 Geo. 2. Lucwidge v. Wilcox.
10. \' itnue v,"^s c\\-xn-gt<l from London to Middlefex. Barnes's Notes in
C B. 348. Hill. 13 Geo. 2. Stoneham v. Dent.
(Z, a) Per Pals. Vifiie. In what Cale the Vifhe fliall ~>
come out of 2 or more Vtlls in the fame County. '^S^^^r^
See (A. b)
I. T jf|5 Trefpafs In D. DcfcnUiint pleads a Releafe dated at S. in the Br. Vifne,
X lame County, \\\ luljicl) t^itnclTegi Htc naiueo* '^Tijepaumffpi i9 cues
Hemes tlje Dccti* m)m Iifliie fljaU be tticn tij) botlj Iplacegi, .^ o s. c.
C 3- I-
2. 3;f tI)C JITUC lie whether 5 Acres in B. are held of \V. as of his
Manor of D. or of C. as of his Manor of K. tljlS Ollgljt ItOt tO bC triCD
HP 13* onlp, but bp 05* aun B» ^icl> 7 3!a* 15» Bond's Cafe-, pec
Curiam.
3 '^f it be plcaHCtl, that E. had IfTue J. born m another Vill than Becaufe tl*-
where^the Land is, ailB tlje other fays that E. had No fuch Ilfue J. t()i0 o-^''^ "^
fljaU be tcieti bv botlj ^\\\% auo not onip Uiljcce tije lanD 10. 1 1 Jx f^'Xe ^^l^
4. 75. iJOUbgeO* County, the
Viilie was
awarded from both Counties ; but iF the Place of Birth had been alleg'd in a foreign County, the
Vifne iTiouId be only where the Land is ; perThirne. Br. Vifne, pi. 55. cites 1 1 H. 4. 74. S. P.
as to fuch Pica of Birth in another County, and the Iffue as here. Br. Vifne, pi. 55. cites 11 H.
4 5<5'
4- Sif tlje 3iffUe be whether D. be born before Marriage at A. or with-
in Marriage at B. in the fame County, t\)\^ fljall be tCteD bp bOtl) ai)l!l0«
II i^»4. 84.
5. But if tlje Iffue be whether he was born before Efpoufals, it fljall
be tcieti bp tlje Slffifc. \^.^.^ 84.
6. Jin a Replevin, if tljC DeftnUnnt avows becaufe the * Plaintiil i Ruirt n3.
holds the Place where &c. of him by Fealty and Rent, as of his xManor ^"^ ''^^^
cf D. in the fime County, but in other Vill than where the Land &c. jnTref «tj
O o and
142
Trial.
hnd E^ecfc- and for Rent arrear &c. CO iDljtCl) tljC Plaintiff fays, tliat he holds
ment 'tor the Land of ]. S. as of his Manor of S. &c. without that That Ije IjOlDj?
Common, j,f ({jg ^Defchtiaut a!3 of W ^@annr of D* hp Jf enltp $ c» Cljig 3mie
the Venue ^ jj j^^j jjj, j j^j^g oj^jp Jjp (jjg j;)j{j ^jjjgtc tlj'c IflllD llC0, bllt bp tijilt
from w JDIU aiiD tlje 33111 luljcrc tlje 99anoc Iiejs aifo* Cr» 3 3a. %. K. bp 2
vlicreas it asailllt I- Ct* 1 1 %>\. 06* -U* ttettOCen &//»-f//, P/ainn^, againjl Ancell
-was moved ^nd Kidcr. pec Curiam,
in Arrcit or
Judgment, that it fliould have been fromW. andT. And Doderid^e J faid. That the Ven. Fac. is to
be from the Place where the Land is, and where the Common is; and lb where the Common is appen-
danr. The Court was clear of Opinion, that the Venire Facias here in this Cafe was mif-awarded ; for
T. is not within the Manor ot VV. and the Venire Facias being here of W^ faying nothing of T. is
not well awarded ; for the fame ought to have begn of both, viz. of T. and W. And therefore by the
Eule of the Court, Judgment was arrefted, and a Venire Fuc. de novo was granted.
* Orig. is (Defendant.)
Jo. ;95- pl- 7. 93iClj. 13 Car* 15* Ev bCtlCCCil Sherhckand Chandler^ tUljCte tljC
I. ^l)i.rlocfe iQgffftQant ftllD, that he holds the Land mention'd in the Avowry, and
Drit^ s'c other Land by the Services mention'd in the Avowry, without that
acco'rdingiy; That \)z ijolus ti)c falB Latit! ottlp Ijp t!)c faio eccuice^ of tl)c03anoi:,
but that it y^ix, curiam, vm outrtjc to be trtcQ bp a s^cnuc from ttic pi ace
b ""the stl ^^3^"^^ ^"^y^ ^^""^^ ^^^^' ^^"^ ^'■'^"^ ^^^^ ^anor alfo,
tute. Per tot. Cur. (abfcnte Bramfton.) Cro C. 4S0. pi. 2. S. C. held accordingly, that the Trial
bv theCommon Law ought to have been per Vicinetum of both, and that fuch Millrial had beenCaufe
ofReverfal; but that it is aided by 21 Jac. cap. 13.
Er. Vifne, 8. JU Dowcr, if tijC '^^WZ bc whether Demandant was above 9 Years
pl. 44. cites ^j. ^j-jg j^eath of her Baron or not, and Demandant alleges flie was born
in other ViU in the fame County, tlje ©Cmte fljall COmC ftOm bOtlj
Placet; tijat isi to ftp, iDijece tlje lann is, ano tuljerc tljc oeirtl) is
aileg'O^ bccaufe it is \\\ tlje lame Couutp^ 21 c» 3- 28. b,
9. 3!n Account brought in London, iDCfeitUant pleads the Releafe of
the Plaintiff in London; tO tUljIClj tlje Plaintiff fays, that at the making
he was within Age, and faPjS that he was born in Fleet-llreet ; tO tDljIClJ
Defendant fays, that he made the Deed in Thames-llreer, at whichTime
the Plaintiff was of full Age; tlje l^Cmie fljaU COlUe ftOUl tlje OIK
pace aiiu tlje otljcr, 22 c» 3- 1- ^mungeD,
10. !Jn a Formedon, if tlje Tenant pleads a Releafe in 'Bat, dated
at * S. aitD Demandant fays that he was imprifon'd at D. at the making,
' tljis lljaU be tcico at D* tuljcrc tlje 3imptifonment iis allcgeu, 22
e*3i6.
A i?//!A'f be- II. 3ff tIjC Prebendary ot G. brings Annuity againft the Parfon of B;
ing i^rf/i-oK 0/ and counts of a Prefcription, and alleges a Seilin in S. all being in the
~^"tedtl' ^^me County, ailB tiJS Seilin in him by whom Seilin is alleg'd is tra-
%7tM, verfed ; tljts (Ijall bc tricu bp tljc one 351U ann tlje otljec, anti not bp
««« of either tijc ©ill Of <©♦ ujijerc tlje 'Bonp of tlje l^rebcnn i^, 2 %), 5. 3. 30=
of them, juogCD,
which
fliould be firft vacant; and the Dean and Chapter confirra'd tlie Grant. The Bip)op died, then one of
the Prebends became void, and the fucce>-ding Bifliop granted it to another ; the firil: Grantee brought a
^<are Impedit in the County of the City of Litchfield, where the Cathedral Church is, and not where the
Body of the Prebend lies; and this by the Opinion of the Court. D. 194. pl. 53. Mich. 2 & 5
Eliz.
12. Trci''p^{s o^ Battery Gt B. The Defeiidafit pleaded, that De fon Af-
fatilt deniefne at H. The Plaintiff faid, that De fon tort demejne, without
fuch Caafe ; and Vifne was of both Places, inafmuch as they were in one
and the fame County. Br. Vifne, pl. 54. cites 21 H. 6. 22.
13. Eje£}ione Fir ma of a Rethry in A. B. and C. and tried for the
Plaintiff by a Vifne out of A. only. Verdi£l and Judgment for the Plain-
tiff, but reverfed upon Error brought ; for the Vilhe Jhould be from all
three Fills. 5 Rep. 36. b. Trin. 30 Eliz.. in Scacc. Baynha.m'? Cafe.
14. In
143
Trial.
14. In A6lion on the Cafe for a Way, the Declaration was of a TFay
from A. to R. and from B. to C. The Venue ought to be from A. the
firlt Place, and C. the laft Place ^ cited by Warburton J. Mo. 862. in
Citfe of Cumberland v. Cumberland, as adjudg'd in B. R.
15. In Waite for JFcr/e done ;'« 3 Villages £. F. and A. and afftgn^d
Wajte in B. F. and A. and alfo L. not mention' d in the Writ, there were i8
feiiral Iftics, and one Venire Facias to try all ; and this the Court held
to be weil enough to avoid Multiplicity ; but then the Venire Facias miiji
arifc from all the Places from whence the Iffties arife, and from no more, as
-a common Venire Facias for one Illue ought to be ■ but here it did not
arife from B. a Place mention'd, and it did arife from L. another Place
not mention'd in the Writ ; and becaufe the Venire Facias could not
be made good in Parr, and void in Part, and efpecially becaufe a Place
was added to the Venire Facias which was not mention'd in the Writ,
which Place could not be applied more to one Iffue than to another : In
was held ill in all. Hob. 37. pi. 43. Cumberland v. Cumberland.
16. If there be two Places which have equal Notice of the Matter, there
"the Venire Facias Ihall be of both Places. Bulll. 48. Mich. 8 Jac. in
Lvskerrit's Cafe.
(A.b) In what Cafes it fhall come out of two or more see (z. a)
Vills, and where not, in the fame County.
1. T iI3 Trefpafs for Entry into a Manor, if DffCUtiant juflifies in B.
X Parcel of the Manor, attO Plaintift' replies Not Parcel Of tijC £^3'
nor, anD fo at IlTue -, tfjis map be trien bp tlje idxW of 05. anti tJjg
^anor. 'QTr. s 3:a. 15* Sidky^ cafe pec eutiam. S^idj. s ja. Qo*
pec CTuriam.
2. 3^f an SiffUC be, whether within the Manor of UBaCtXCalie tljeCC Cro.j. 514-.
has been Time whereof Memory &c. the Manor of JJBacfiClD demifed P'- 4- ^'^^•
and demifable by Copy of the Court of the Manor of JJBaCgCalie i tljC ^n^n^r'^M,^"
aDeniic map be from tlje ®anoc of ngtanxra^e onlp, became tbc Slfllie Sooocame
anfcs upon tije Ciiftom UJitljin tW ^alioc, anD it appears tljat tljc s- c. and \n
Cenantsj of n^arfiein are jaaccei of tJjc ^anoc of iiaacgcalje, alfo l"°\
it appears? tljat tljc 03anoc of uaacfielO is tcitljin tlje $39anoc of naar- IZniL
CCaUe. Co. II. AV^'///l8. Point, the
Judgment in
C. B. was aOfirm'd. ■ — 2 Bulrt. 155. (JJoClflgrOOmC ti. Sgoorf S. C. accordingly, and that tlic q E. 4
50. does not warrant the Venire Facias, in this Ciife, to be of both Places. — Jciik. 340. pi 93. S. C
3. 3f tbe JiTUe be, whether an Advowfoh in an Hundred be in Grolle
or appendant to a Manor in another Hundred, It fljail be tCiCll b?
botl; DimticeriiS. 9 5|). 6. 66.
4 Jn Action of Waft lor Waft in two Vills in the fame County, tlje
©enue fljall come from botlj ©HI0, if No ^^^afte done be t!)e JlTuc,
9IS). 6. 42. b»
5. 3n Trefpafs of Battery in D, if DefenlinUt juftifies De fon Affault
in S. anO Plaintiff fays of his ov/n W"rong without fuch Caule, tlje ^Z-
nue fljail come fcom botb ©iUsf. 9 ^* 6. 63 . b.
6. 3!n Trefpafs of Grafs fpoil'd in S. if Defentiant juftifies there by In Replevin
Force of a Common Appendant to his Franktenement in D of which he ^^'^ ^'^^' ^^^
&c. have been feifed Time whereof Memory &c. if tljC Plaintiff tra- T"'''^''"
verfes the Seifm It fljall be tCien b? bOti) 3DtI(0. 3° €. 3- 26. b. cllZ In'^N.
apfendiivt to
Land in D and the t'enrte was from N. only, and found for the Plaintiff, who pvay'd Judgment, infifting
that the Trial may be in one iPlace as well as in the other. But the Court held it iil, a:-d ih.n the Ve-
nae
14
~7^
Trial.
jnie fliou'd come from borh lilacs when the Matter arifes in both, and it_ i.s.not help'd by the Statute
of Jeofavles, it bcinj; a Matter niillried ; and thereupon the Counfel advifed his Client to take a new
Venire Facias. Goldsb 97. pi 12. Mich. i<) Elii. Knight's Cale
566(0.3)^1. 7. Jn Annuity againll a Parfon upon an Annuity by Prefcription, if
2> 5> 4 <5- Scilin be alleged in other Place than where the Church is, but within
the ftme County, anU llje IfTUC Id llpCU tljC Prefcription, It (IjnH be
tviEti bp batlj i)ills. 10 1), 6. 19.
8. So if tljC l?aUU!itp lie tirOU0;!)t in Devon where the Church is, and
Seilin is alleg'd in Exeter, aUll IfFue is upon the Prefcription, upon
Averment that Parcel of the City of Exeter is in Guildable, and out of
the Franchife, and fo may join with the County, (tUljCtC tljC EcO'dUC Of
ti)t CitP cnituot join UiitO JforcisnerEi,) tljc i)cntic fljall ise trom tlic
aDifnc luljtcl) tss out cf tlje Jfrancljife, auti ftom tljc otljcr s foe tijc)> arc
in one County lo i3» 6. 19. amungeii.
9. If a Thing be alleg'd in a City, as in York, and the Trial li\3Qix
tljC JflllC is to be by the City and the County, and the City has lucH
Privilege that it cannot join with Foreigners, p£t if P'lrr of the City be
out of the Franchife, and within the County, tl)t ^OtiUlZ fljail fcS h])
tijis Part of tlje Citp, anti lip tljc Countp; 10 i), 6. 19. ]},
i-rials per iq. Ju Aftion upon the Cale, if tlje PlaUttiff declares of a Truft at
Pais ^105. j)_ jjj^j o^- ^ T(^rt at S. aitU tljC Defendant pleads Not Guilty, if it ap-
, pears that the Trult is not material, innfmUClj a0 It Id llOt nUlteriaUp
aKeg'D, tljC JDcnuc * fljall lie onlp frani<^, ants not from botlj places.
' -SDr. 8 3'a. in tljc e.rdjcqiicr, between t iewyo« ami Kirh-, aojubii'D
li:^:,^^; in^rrell.
■(ac. S C. in the Exchequer ; and the Trial beinf^ from both Parifhe.<:, was agreed per Cur to be a Mif-
trial ; for the Truft not being; effeftuallv fhew'd in the Declaration, the Truft is now only an Induce-
Tiient, and therefore needs not be fliew'd within what Parifh it v/ds made, and therefore'a new Ven.
Fac. was granted. — Cro. J. 265. pi. 30. Levvfon v. Kirke, S.C. accordingly.
II. JJJlfe af Land in t'uuoWapentakeSj viz. in L. andK. and the Panne
was all of K. and none c f L. and therelore the Array was chal-
leng'd, and quafli'd upon this being found. Br. Challenge,pl. 128. cites
28 All: 38.
'Bui in Tref- 12. In 7'refpafs for cntring into the Alanor of D. in S. Vifne fhall be of
pafs/oK en- s. Br. Vifne, pi. 81. cites 6 H. 7. 3.
ierwg into
)heM,xvor of D Vifne fliall be of the Vifiie of the Manor, notwithftandinj^ that it be alleged that the
JSIanor is inS for this is no Plea for the Kcafon aforefaid, becaufe the Vifne appears before. Ibid.
(116)
13. Foi-cibk Entry into the Manor of D. in D. the Defendant faid that
No fiich Vill^ Hamlet, tr Lien conns cut of Vill and Hamlet within the fame
Ckmnty. And a good Plea by reafon of the Vifne ; for now the Viihe
fiiall be oi D. but if he had faid in the Manor of D. without more, then
well ; for there the Vifne fliall be of the Manor o^ D. Quod Hulley &
Fairfax concelferunt. Br. Vifne, pi. 118. cites 11 H. 7. 22. 23.
14. In Replevin the Defendant avowed Damage lealant, and intitled
himfelf to the Franktencment, for cutting a Tree contra Confnetndinein lida-
fieni. The Plaintiff made litle and Traverfed, abfque hoc that he cue
contra Confuetudinem Manerii ; and this Illue was tried in another Vill,
and not in the Manor, which was inlilted to be a Millrial, becaufe the
Vifne ought to be Irom the Manor, and the Vill where the Tree was
cut, thellFue not being upon the Cutting only, but upon the Cutting
contra Confuetudinem Manerii ; and that where Cultom comes in
Queftion, it ought to be tried by the Vifne of the Manor. Sed non al-
locatur, becaufe the Ciijlom is not in ^iiefiton^ the Traverfe being in the
Negative ; which does not aifirm the Cullom. AndDoderidge faid that
this Vill may be within the Manor ; and fo Judgment was given accord-
ins;
Trial. 14$
ing to the Verdift. Palm. 170. Pafch. 19 Jac. B. R. Lothwell v.
Clinton.
15. Debt for Rent was brought in Middlefex, The Defendant p/^^^
ed an Entry before the Rent due, and that he was held out Sc. at D. itt
Hertf'ordptre, where the Lands lay. IfTue was taken thereupon, and tried
in Middlefex. It being moved that this was a Miftrial, the other Side
infilled it was aided after Verdifl by the Statute of Jeofails. But it was
anfwered, that a local Juftification will alter the Cafe, and the Locality
was necelfary in this Cafe. And per Cur. This is a Miftrial, and a Ven.
fac. de Novo was awarded. Comb. 75. Hill. 3 &4jac. 2, B. R. Lan-
der V. Elliot.
(B. b) Per Pais. Vifne. In what Cafes it fliall come
out of two or more Vills in the fame County. In re^
Jpeci of the Iljue.
I. T JB3 9rtiOn of Wafte for Wafte in A. and B. if it l)C pleaded that A.
J[ is a Hamlet of B. without that that it is a Vill by itfelf, tho' A.
'ind B. are in diverfe Hundreds, pct bCCaUft tijIlS 3flUe 10 tafeCH UpOll
tlje Ji2egatii3c, to!)ctl)cr it be a ©ill fap itfclf, ttjc aDenue (tiall be from
a» onl? i fot tl)c 3,ffuc x% tafeen upon tiji^ point onlp* 9 £>» 6. 66.
Curia.
2. 3in Trefpafs in a Vill, DCfeUHant juftifies in another, if tljC Place So In Aftloft
be made Parcel of the Ilfue, ti)e ©eUUC ftall bC ftom tl)at OnIP» 9 "P^" "^^
I^ A A, J C :> Cafe for
pofed ro be
fpoken at B. in tlie County ofS. the Defendant faid he /poke them upon an Iffue tried at C. in the County of
VV. and becaufe the Venire was of B. in the County ot S. where it otie_ht to have been of C. in the County
of W. where the Juftification arofe, the Judgment was reverfed, Cro. E 4.68. (bis) pi. 18. Hill. 3S
Elii. B.R. Bow ye r's Cafe. Mo. 410. pi. 557. ©OlrptT i). ^^inkins, S.C. accordingly.
So in Aftion for Words, viz. calling him Thief at D. in Com. E. the Defendant jufiified, for that he
had committed .X Robbery at IF. in the fame County., IfTue De fon tort Demefne. The Venire was award-
ed from D. where the Words were fpoken, and a Trial thereupon, and held to be ill, and a new Ve-
nire fac. awarded from the Vifne of W. where hejuftified ; and a Verdift for the PlaintitF, and Judo--
mcnt thereupon. It was moved that the Venire fac. fhould have been from D. as well as from W. Sed
non allocatur ; for by the Juftification the Words are confefi'd, and the Iflue is only upon the Caufe.
Wherefore the judgment was affirmed Cro. 870. pi. 5. Hill. 44 Eliz. 3. R. Clerk v. James.
Aftion for Words, for calling him a perjured Perfon at D. in Ejfex; and Defendant /ay?/^:;rf, for that
tie Plaintiff luas perjured in his Anf-vuerin Chancery, at Wefiminfier in the County of Middlefex, and fo iufti-
fied the Words at D. The Plaintiff replied De injuria fu i propria ; and the Venire facias, by the Award
of the Court, was direfted to the Sheriffs of Middlefex; for the Juftification arifes there, and the
ff^ords uere confefi'd. Cro. £.261. pi. 48. Mich. 55 8c 54Elii. B. K. Ford v. Brook.
3. 3[!n Appeal ofMathem in a Ward in London, if 2i)Cfenl!ant jufti- Br. London,
fies in other Ward there without any Traverfe, and Plaintilt replies De p'- ^'- cites
fon tort Demefne, it lljaU be tCieU bp bOtlj J©atD,0. 41 3ff. 21. Br v](h^
pl- 74. cites
S. C. but Brook fays, that now by the Statute 7 //. 7. cap. 4. Nothing within thelFard is no Plea ; for
London is not but the fame Vifne by this Statute.
4- 31n Falfe Imprifonment of an Imprifonment in D. if 2^efenfant
juftifies by a Warrant ota Franchife in S. and the other avers his Writ,
antj ^ JifliiE igs uiljetijet !)c tooh \m in D, tijc mmz fljaU be onlj?
fromD* 42 €,3- 7-
s- 3n an action upon tbe Cafe, if tlje plaintiff counts t})at fjc tuajs J»^''« ?<='
ieiled of an Houfe in D. and of CCttaiU Land in S. and had a Wav from ^-^^ |^°5.
Fp ' the^"'^
146
Trial.
Cro.E. 619. the laid Houfe to the faid Land, tlUB tljat DcftttBaitt IjilSS ftopc the
pl. 7. %s ^^y^y 5v levying of a Hedge in D. tO UlijtClj Defendant pleatl0 I^Ot
f''^n"nn ciiHtp i tm cannot be tricD b)) D, onlu tuitljdut €>. tljo' tlje 31fiiie
lywas ad-" i^ Bot suiltp , toc 0^ tiji9 all tijc lIBap 10 put in Wm* ^- 40. 41
judged rfiod;^l 15. K. betlaeen siddenham and Robins aGjutigeii, anti ctteD a
for upon f^^^^ between Davis ami fco, to bc aUjiiHscti at %mx $ilban!S 'Cetm
^^Td'lL accotninglp.
CJbftruiition
-ivas pioperly in Iflue ; and fo tlie Venue fliall be from D. only, where the Stopping is ; but that if t!ic
IlTue had been upon the Prefcription, it had been otherwife. S. C. cited Ld Raym. Rep. 172.
Hill. 8 & 9 W. ;. But Treby Ch. ]. i'nd he had a MS Report of this Cafe of Cro. E. 619. and 2
Roll 614 and that by his Repoit, which is much preferable to the printed Books, that Judgment was
arrefted.
In Trefptifs for breaking; his Clofc, the Defendant ;K/Zy?erf iy Prefcription for a IFay from his Frar.ktene'
mevt in D. to tlje fill of A', in the fanu County, fffue was caksn Da injuria Jua propria _ &c. the Ven. fac.
zvas de D only It wa;, objefted that the Vifne ought to he from D. and S. but admitted it to bc right,
if the Prefcription had been travers'd 5 but hy the Heplication the IFay is confefs'd, and fo he might break
• the Clofe without ufir.g the Way ; for the VVay is not in (liiellion. And of that Opinion was Pop-
ham; but Fenncr and Clench beinp; e contra, adjornatur. Cro. E. 426. pl. 26. Mich. ;7 & 58 Eliz.
B. K. Atwood V. Ballard. Aid Cro. £. 4Z7. pl 27. in the Cafe of Bragg Ij. Banning, where
the Plaintiff pvelL-ribed for a Way from his Houfe in D. oiier Gr. yicre in S. and o'jer Bl. J.cre to fiich a
Place in P. avd that the Defendar.i (lopp'd Us IFay in S. the Defendant pleaded Kot_ guilt);, and found
for the Plaintiff. It was laid tliat if the Prefcription had been travers'd, the Venire facias fliould be
from every ViU where the Land lies, over which the Way is ; and that lo it was adjudged 33 Eliz. in
C. B. in Haukhurlt's Cafe.
So in Cafe for difturbing the Plaintiff" in a common Way to the CI arch ofB. and fhewed that the Way-
was over dtveife Clofes in L M. and K. and oz-er the Clurch-yard ot the Church of B. and that the Defen-
dant difturbed the Plaintiff, by making a Ditch in the Clofe in M. the Defendant pleaded Not guilty,
iund found for the Plaintiff"; but the Venire facias was quafh'd, bccaufe it was from N. only, and a new
one awarded from L M. N. ar.d B. Hutt 27 Hill. 12 Jac. Kayner v. Waterhoufe.
So in Trrfpafs for entering his Clcfe in L. and cutting down the Hedge, the Defendant jtifiified that
in the faid Clofe ihe>e was an Higlivay hading fn»t .I. to N. &c. and becaute the Way was ftopp'd by
the Hedge, he cut it down to ufe'the laid Way. The Plaintiff" replied De injuria fua propria &c. and
the IfTue was tried upon a Ven fac de L. only. The Court held this a Miftrial ; for the Fen. fac.
ciight to have been from S. and h'. being the Places frcr?! and to lihich Places the Way is fuppofed to lead.
Cro. J. 59S. pl.22. Mich. 18 jac. B. K. The King v. Hopppr.
But where in Cafe, the Plaintiff" declared that he was feifed of an Houfe and Land in F. to vjhich he
had Common appendant in 7 Jcres of Land there ; and alfo to have a ff'ay jrom his .Uejfuage over the faid 7
.,4cres to B. and that the Defendant had ploughed up the faid 7 Acres, whereby he loft both his Common and
Way. Upon Not guilty, Verdi(5t was for the Plaintiff' Exception was taken that the Ven. fac. was
frcm F. only, when it fhould have been likewife from B. becaufe he could not be guilty unlefs there
was fuch a "Way ; ard it the IlTue had been upon the Prefcription for the Way, the Vifne muft have
been from both. The Court gave Judgment, becaufe /ie Point in ///"«« appearing and dircft, is upon
the Difiiirbance, which was only in F. where the 7 Acres were. Hob. 315. pl. 595. Clerk v. Wood -^
Jo. 2. Mich. 18 Jac. C. B Cltdbt \i. iHlOOO, S. C. accordingly ; and the Declaration fctting forth alfo,
that he had a W'ay likewife from B. to C. another Vill in the fame County, if the PreJcription for
the Way hadb-^.: travjrs'd, theV"if,ie mull be from all 3 Vills. Hutt. 39. S. C. accordingly. —
S. C. cited by Powell J. 2 Ld. Raym. Rep. 1193. Trin. 4 Ann. in the Cafe of the Queen v. Wyatt.
6. Jn an ClfttOn of Trover and Converlion of a Fowling-piece at A.
if iDCfCnbant jaitiHed at C. in the fame County, by the Statute of i Ja.
iBbtcl) cnactji tbat none fijall fijaot in anp JfotulinsHJiece, if be bass not
40 !♦ Lan0, ot 200 U in ©OOD^i and that any Man who has 100 J,
Land may take the Piece from the Oliendcrr, anb fljetUStbat t^t DefCH'
nant lljot \\\ it at C» anb W not 4° l» JLanb, nor 200 1» m (SoodjJj
anb tbat Ije bimfclf \M i°o i. in lanb, bp tuijicb be toolt it $c> anu
3s)laintiff replies De ion tort Demeine fc» tbts Wwt iball be tried \i^
C* onip, aub not bp $l» becaufe dje Conbcrfion lubicb 10 lato at
a. \^ confcfs'b. Jp» 5 Jia. 06* Recmi^ cafe, iPet curiam an=
)ubgeb»
Hob.64.pl. 7. 3in Replevin for taking in H. in S. againft two Defendants, aitU
65. Slrun^ jjj0 one pleads Non cepit, and the other avows the Taking in H. in the
™d?niiv Parifh of D. anb It i0 tneb bp one ©enire facial, tW fljall bc from
that he wh^ botb l^laceg, tbat 10 to fap, from %, anb D» if or tlje plea of tbe
pleaded laft cannot alter tbe €;nal of tbc l^lea of tbe otljer 2:)cfenbant*
Non cepit, OQi^U o Tig, 15, bCtlOCen Arunddl and hlanchard ab)Ubgeb,
■was not "^ -- ^ •»! •'
bound by the other's ConfcQiion, that it lay in the Pari (h of D. and there being but ore Venire
taciaj.
Trial. 147
facias, it muft fit both their Cafes, which was to have it from S. and D. Brownl. 174. S. C. ac-
cordinglv.
In Trefij.ifs at B. ae:a'nifi two, the one pleaded Not guilty, and the other pleaded Releafe at A. and Venire
facias ifTu'ed of the Vifne of B. and therefore tlie Defendant pleaded in Arreft of taking the Inqueft ;
and all was quafh'd, and Vifnc awarded of both Places. Qiiodnota. And yet per Hill, Two Venire
Facias's ought to have ifl'ued; but per Belk. where two plead feveral IlTues, Venire fhall beef one and
the fame Place by one Venire facias, and one Inqueft fhall try all. Br. Vifne, pi. 29. cites 50
E. s. I.
8. Jn flu Action of Debt upon Tithes upon 2 E. 6. if tl)€ Defendant r^^sJ^wO
fliys that the Place out of which tlje '^\t\)Z^ atC ClflimCi!, is Parcel of^Jv^'i
the Manor * of Prerton in the Parilh of Eavill i and that there is a 2'RollRep.
Cullom within the Manor Of PrCftOll to pay 4I. to the Reftor Of tIjC 412. S. C.
IPanflj of €aUiU, at the Church of Eavill, fOC all -^CttljClS Of tljC ffltO accordingly.
^anoc, anti an aiTiic i£( taltcn upon tljigi CTuftom i tiji^ fljall be tcieu "7''/^ .
l)p tijE lS)ariflj aim tlje C?9anor, aiiQ not bp tlje stjanoc onlp ; foe tlje in thefamL
t>\Viiz of tljc i?a})mcnt, luljiclj iiS at tljc Cijuccb of tlje Ji^aridj of ea= words with
iill, by tljc fpccial i^ccfcciptloii ij3 maoc pared of tljc Cufiom ann i^°>i R^p.
3irUC» ^iCl)» £1 la. 16* E. betioecn €)IC Robert Phthpp andSlade.'^^'-rf''^-
aojuown tn aiTcft, ann neui ©ante faciasi grantco, bccaufc ituiais „ s c^'
triCQ bp tljc O^anOC Onl)^ accordingly,'
9. 7refpafs in D. of Goods taken^ the Defendant jiijiifed as Executor of
W. ThtPlfJntiff' [aid that W. "was his Villein^ and he claimed him^ and
feifed the Goods by Parol in the Life of the Villein^ and IJJae was taken upon
the Claim of the Goods, and Vifne was awarded where the Writ was
brought, and the Claim was made, viz. of bath Vifnes. Quod mirum !
Br. Vifne, pi. 30. cites 3 H. 4. i_j. 16.
10. Debt upon a ContraH. The Defendant faid that it was upon Condi-
tion at another Place in the fame County which was broken of the Part of the
Plaintiff; Judgment. The Plaintiff faid that it was made Jimply without
any Condition^ Prift ; and the others econtra, and Vifne was awarded of
both Places, by Advice of all the Juftices. Br. Vifne, pi. 8. cites 34
H. 6. 42.
11. Debt of 20/. in Bank^ t\\Q Defendant pleaded Recovery and Esecu- Br. "Dettey
tion thereof in London, whereof the Suit was in fuch a Parijh, and the Exe- pi 145. cite^
cution in another Parip ; and the Plaintiff faid that the Defendant was in- ^- ^■
debt ed to him for another 'Thing, and fhewed what [/tv/.j in 20 I. of which
the Suit and Execution was made, abfque hoc that the Suit and Execution was
of this 20 /. now in Demand ; and the others econtra. And the bell Opi-
nion was, that the Trial fliall be of both Parties, and not alone by the
Parilli where the Suit was taken, becaufe the Execution is alfo in Iflue.
But fee a ^Statute, that all London is but the fame Vifne. Br. Vifne, pi. * ^^^ P'- >•
82. cites 5 E. 4. 110. iti the Note,
12. In Cafe the VWxm'x^ counted, that he was feifed of a Hotife and Lands S. C. cited
in B. and prefcrib'd for Common in 400 ylcres in L. and that Defendant had c.^ ^/-^L P'"
inclofed it, and fo dillurb'd him &c. The Defendant travcrfcd the Pre- ^■,' ^^^^ '
fcription. Iffue was join'd, and found for the Plaintiif! But the Ven. C. B. in
Fac. and Trial being front L. only, and not from B. where the Land is, Cafe of
it was adjudg'd that the Plaintiff Nil capiat per Billam. Cro. £. 114. ^^^?' ^•
pi. 13. Mich. 30 & 31 Eliz. B. R. Richmond v. W^ebb. havflee'rT
adjudg'd,
Mich. 51 Eliz. inC. B.
13. In Cafe the YWxnii^L declared, T'hat he was feifed in Fee of a Mill, S. C. cited
and prefcribed to have a Water-courfe running by 3 Towns, viz. A. B. S C. PJ^f Powell
to his Mill &c. and that the Defendant cut the Banks of the Water-courfe in \^^ ^^zi_t
A. whereby he lofl the Profits of his Mill. Upon Not Guilty pleaded, it Raym. Rep",
was found tor the Plaintiff. The Ven. Fac. was awarded from A. only, "94- '"
where the Cutting was ; \vhereupon it was objefted, that it fliould come ^f'^ "* ^^
from all 3 Vills, and alfo from the Vill where the Mill is. Sed non>^"""j''
allocatur, becaule the Iff'nc is upon Not Guilty ; but had it been upon the
Prcfcription,
148
Trial.
Prefcriprion, ic had been otherwife. Cro. Eliz. 751. pi. 8. Pafch. 42
Eliz.. B. R. Leeds v. Shakerly.
TrefpaG&c. i^. -Trefpnfs tor taking an Ox. The Defendant j/^Z/fer/, becatife the
D Y d^^'^ -f /'?'■'• ivbt^re Sic zvas holden of him as of his Manor of W. in the County of
tkaded tkat ^- '^"^ ^^^^ ^^^ Ciijlom there IS, that the Lord upon a Tenant's Death might
the Place fcife for an Heriot the bell Beaft in any Place. IJpie -was taken upon the
where &c. Cuftom, and the Ven. Fac. was De vicineto of the Manor. It was ob-
"i^H'^/f"^ je£led, that it ought to be as well from the Land holden as from the
call'd Hoie -Manor. Sed non allocatur ; for zhe Iffne heiag on the Qijlom, it Ihall be
in L. Panel from the Manor only, and Juda;ment tor the Plaintiff' Cro. Eliz,. 854.
cftke Jfa>ior pi. 18. Trin. 43 & 44 Eliz. B. K. Burfty v. Challoner.
of 1- and
that the Ear! of B. iv/xs feifed in Fee of the Manor off. ivhereof a Hoiife and 20 u4cres of Land in L. is Copy-
hold, dennfeable in Fee ; at:d the Eart granted to him by Copy in Fee, and that by Ciiflom of the Manor every
Copyholder of the laid Manor Jhoiild haveCumr?ion of Ejlovers in the faid lF.*fte. The Iffue ivas upon the Cuf-
/im, and found thnt there was no i'uch Cuftom. T lie Venire Facias was of L. only, and not of chp
JManor. The whole Court agreed that this was a Miftria!, betaulc the Ven. Fac. ought to be of as
large Extent as th^ IlTue ; and that b^-ing upon the Cuftom of a Manor, the Ven Fac. ought to be of the
Manor, and not of the particular Viil within the Manor, which may extend to fcverai Vill.s. Bur if
the IfTue had been whether the Cultom had been for fuch p.irticular Copyholders within the Vil), there
it Ihould be otherwife. Cro. J. 527. pi. 5. Mich, ii Jac. B. R. Thef.arl of Bedford v. . . . .
Yelv. --. j^_ 'frfpafs for taking 20 Load f'Wheat in E. The Deknda.nt p/eaded,
fn ^ ^'^for'^' ^^ ^-'^ ^"^ ^ Load, Not Gutlty ; and to the refl^ that E. is within the Parijh
when 'the ?/ ^^- ''•"^ ^^^^ ^- ""^^^ fi'f''^ f'^ F^^ of the Reilory of IV, and devifed it to
Plaintiff de- him in Fee ; a/id that the Corn vjas Tithes fcver'd ike. and {o jQA'iiitd. The
clar'd of a Plaintiff' protejtando, that E. -was not liJtthin the Parijh of Jr. Pleaded thai
E"h''^'b'" L. was feifed of the Rcciory, pro'it &c. and died feifed, and the fame de-
jreneral In- fended to him as Cou/in and Heir, and traverfed the Devife ; and Ilfue
tendment is thereupon. A Ven. Fac. was awarded De vicmeto Parochitc de W\ to try
prefumed to both the IJfues. The Jury found the Iffiie of Not Guilty for the Detcn-
bc a Vill, dant, and the other Ilfue for the Plaintift^ It was argued, that this was
thc'filattcr ^ Millrial ; lor that the Venire fliould have come as well from E. as from
there in If- W. tor where there are 2 Iffues ariling from both Places, the Trial ought
iue ought to to be per Vicinetum of both, and being otherwife it is a Millrial, and
\^ "■'^''.■' not aided by any Statute. And adjudg'd to be a Millrial, and a Venire
fendatit* al-^" Facias de novo was awarded to try the fame Iffues. Cro. J. 86, 87. pi.
leg'd E. to 12. Mich. 3 Jac. B. R. Lapworth v. Wall.
be a Ham-
let, yet this is only to enable the Devife, and extends not to the Iffue of Not Guilty as to Part ; for in
this Iffue the Parties are both asreed that E. is a fill, and this is a perftft Iffue by itfelf, and has no Co-
herence with the other Iffue of Noa devifavit. But if the Defendant had to the whole Trefpafs pleaded hi)
Exciife by the Devife, and had alleg'd E. to be a Hamlet in IV and this only had been in fJJ'ue, there the Ve-
nue awarded as here had been good. Brownl. 203. Laxworth v. Well, S. C and is only a Trati-
flation of Yelv. 7 ; .
16. The IlTue was whether the Land which lies in another VtU he held
(f the Manor in another Vill -, and becaufe Tenure of the Manor was the
llFue, the Trial ought to be by the Vifne of the Manor and of the Vill
where the Land lies, and not by the Vill where only the Land lies.
Palm. 170. in theCafe ofJLOtfjlUeU^^ClmtOlt, cites it as adjudg'd 5
Jac. Rowland Hinders Cafe.
17. In Debt on a Bond made at S. the Defendant pleaded that it was
made at D. upon a Corrupt Contra ff, and fet forth the Statute 13 Eliz. of
Ufury to avoid the Bond ; the Plaintiff replied, that ic was made Bona
fide, and tra^^pfed the Corrupt Contra^ &c. Iffue was taken upon this Tra-
verfe, and t\\& Venire Facias awarded from D. where the Corrupt Contraif
was alleg'd to be made, and the Plaintiff had a Verdift. It was moved
that the Venire Facias ought to have been from both Places, (viz.) from
the Place where the Bond was fealed, and from the Place where the
Contraft was made i but the whole Court held the Trial was as ic
ought to be. 2 Built. 34 Mich, lo Jac. Stanton v. Barton,
18. In
Trial. i^p
19. In an liiiormation ot For^erj'y alleging that he fr am' d it at A. and ibid. 35,
publijh\l it at D. in the fame County, the Venue mull come from both ^""- *'
Places J and being in an /;//bn;Mf/o/;, is not aided by zi Jac. Vent 17 ^^'■•^•^•^
Palch. 21 Car. 2. B. R. Perry's Cafe.
(C. b) Trial per Pais. Out of what Place the Vifhe j^^ ^B ^
fhall come in the fame County. fFhere the fVrit is
brought. \I/2 rejpeui of the I/fie.']
I. T j|5 Debt upon Obligation, if Durefs be pleaded in another Place, ft It iliall be
X fljall l3C triCD tljCCC, 19 ip» 6» 15, b, tried where
the Durefs
IS fappofed, and not where the Deed is fuppofcd to be made. Cro. E. 195. pi. 10. cites Hill. z8 Eliz.
Sihthorpe v. Turner. S. C. cited Le. 149. pi. 206. in Cafe of ^innerflC? i). ^mart, as ad-
iudg'd Hill. zS Eliz.
2. Jn an 3Ctiait upon tljC Cafe, tf tfje plaintiff declares that he In Cafe &c.
lent to the Defendant a Mare to plow his Land lor 2 Days, anH tljC ^x- '-"ff v
©cftnnant promian to ncliuet Ijec fafc at tijc Cnn of tljc fain z JZdthZ'
Daps i anU tljat !)C, miring tl)C faiU 2 Daps, labour'd her excelfively he at London
that fhe died : Qnll Delendant pleads that Ihe died of Difeafes ; abfque ler.t the De-
hoc, tl)at Ije cjccEffiUclp labourn Ijct, bj? ioljicl) flje UieD tfjcteof; iDljerc-^/^t"' "v
upon mic teas )Otn'ti» Cijis fljali U tncD inljcrc tlje l©rit i^fZfLln
broucijr, liccaufc noj^lacc is alleg'D iut)trc ijc labour'D Ijec, upon/.i^««,w
yjfjicij tlje Jflfiie is jom'D, anti tfjercforc it fljaU be uitenocD tJjat Ijc "^^^^ M^'y
iabonr'O Ijec tubetE tlje action is bcongljt* Cpobatt'S Ecpoits, 254^ '/ '^i'-^"^^''^-
bCtUlCCn * Revcs and Moxam. S^tljCtMC It IjaU bCHI:, if tJjC Place oi the pl3*„'°ff ^
Labour had been alleg'd. and that' the
Defendant
rode h:m thither and back avain to London, and thereby fo ahiifed the Horfe that he became of little Value ;
'and not'ivithflandii^g he rerji:ired ihe Defendant at Exon to re-deliver the Horfe fuch a Day, he refufed, and
converted him at Exon to his own Ufe. Upon Not guilty pleaded, the Plaintiff had a Verdlft. It was ob-
jected that the Trial fhould have been at London, becaufe the Bargain was at London, and ft) was the
.Abufer of the Horfe in riding him back thither. But per tot. Cur. the Trial is good De Vkineto de
Exon, becaufe the Tort is fuppofed to be done there, and not at London. Cro. Car. 20. pi. 15. Mich,
t Car. C. B. at Reading, White v. Rifden. S. C. cited Raym. 187. Pafch. 21 Car. 2. B. R. Arg.
in Cafe of ii^orfclfV i). ^Otton, where Plaintiff declared of lending a Gelding to the Defendant, to
ride from S m Norfolk to P. in the County of S. and the Defendant abulcd the Horfe in Itinere. Upon
islot Gailty the Plaintiff had a Verdict. It was moved, that there was no Vifne where the Abufe was,
"but only in Itinere, and Judgment llaid till moved by the other Side Lev. 2S6. S. C. and the
Reporter fays, the Counfel that moved in Arreft of Judgment told him, that Judgment was afterwards
given for the Plaintiff ; and cites the Cafe here in Roll Abr. that in fuch Cafe all fliall be tried where
tbe Adtion is brought. Sid. 457. pi. 28. Pafch. 22 Car. 2. B. R. Horfley v. Potts, is a DP.
♦Hob. 1 87. pi. 228. Trin. I5jac. Rives v. Moxham, S. C.' Mo. S87. pi. 1246. JRpncS I). SlJop*
Tjam, S C. ard the Place where the Lending was is not iufficient. And per tot. Cur. a Judgment
igiven tor the Plaintiff was arrefted. Brownl. 17. =!slfJ'mt,S b, ©Ojcljam, S. C. that the V'cnuc
being from C. where the Lending was, was naught.
3- 3!n Debt againft the Abbot of B. upon the buying of his Com- ^c^'- ^ioney
moigne in C. which came to the Ufe of the Houfe, if Delendant fays " bor-ovj'i
that it did not come to the Ufe of the Houfe, tljC mmt fljaU bC On!l' i "m "*
ftom "B. iuljctc tlje looufe is* 22 cg^ 3* ^* t"* aojubgeo. ca>ne to the
Ufe of the
Iftufe at S. and th?y are at FJftie upon ihe coming to the Ufe &c. this fliall be tried where the Action is
brought. Br. VifiTe, pi. 119. cites 16 H. 7. i.
But per Keble, if the ContraH and the Coming to the Ufi had been alleg'd in feveral Places, Vifhe fhall be
of both Places. Br. Vifne, pi. 119. cites 16 H. 7. i.
Q.q 4- In
i5o
Trial.
"r
3n nn SlCttOU of Covenant brought in London upon a Charter^
party, WijlCl) ly alleg'd to be made in the Pariih of Arches and Ward
ofC'hepe, atlD t!jC Declaration recites the Charter-party J bp iuljtCl) it
IP rCCltCO, Th-at a certain Ship was then riding at Anchor in theKiver
' ot Thames in the Port of London, and the Owners Of tljC ^Ijtp cove-
nanted that the Ship flwuid be fit aiiD ptcpatcu fcr a ccrtnui EDopagc
tijcrc mcntion'tJ before a certain Dap i aiiD tijat tijc faiD «)ljip, be=
tore Ijer Departure tijence, fljouirj be fiaunclj ann m\\ tacfeleD u*
awo tijen alleges, tljat fiici) a Dap tOe g)l}ip cammcnceti fjer aDopaae
from tf)e fatU port of lOnHOn, anU that Ihe was not Itaunch at' the
Time ot her Departure $C* bP lUljiCl) DaUiagC f C* 'WO tUljiC!) DefeU^
Uant pleads that fte was itaunch at tije miM Oi fjec Departure from
tljefaiQportoflonoon; upon wijicij tljepare at Mue, ann tljiss
trieD bp a a>enue from tfje l^ariflj anu !©aru aforelam ; aiiti au-
3lHlff'J3 not a 0*005 Crial, beCaUft no Place is alleg'd where the Port of
London lies, fciiicct, tuljetljct iuitljin t\)t faiti partO) ann iBaro or
not ; ann it fljall not be trieti iuljere tlje i©ric 10 brouijljt ant> tljc
COarter=partp mane, becaufe pcr!)ap0 tije port of lonoon isj in
anotljer pariHj anH !©arli» p, 10 car* 15. E. bctiueen Preefu ami .
Boothby, arijuDs^Qi it being moiieo in ^rreft of 3u5n;ment bp mpfelfj
. after a sDerBtct for t!)e piauttiff. Jntratur % 9* Car* Kot* in*
But in Debt j. In Debt Upon a Leafe of Land in another County, nihil Debet Ihall be
.v/xw Jri,itre. ^^-^^^ where the Action is brought ; but levied by Dijrrefs Ihall be tried
TulwijfJiTs i° "^he County where the Land is. Br. Vifne, pi. 119. cites 16 H.
nlk^'d in 7' ^*
apother Hurt-
dreil, nihil Debet, anit Nn! fiel Jwarif, fliall be tried by botb Vifnes, becaufe the Caufe of the Dtlt arifes
upcn fwo Ihivgs which are in two Hundreds. Br. Vifne, pi. 119. cites 16 H. 7. I.
6. Ejeffment was brought of an Hotife in AnJiraU Parte vici Anglice
the High Street in Winton, and the Venire Facias "was, Duodecim liberos,
& legales Homines de PVinton, and did not fay of anyPnrifh in Winton. lu
was held good ; and Doderidge J, faid that it is not like ^rUnCetl's
Cafe, for there the Offence was laid to be done in Parochia of St. Mar-
garet, therefore the Vifne ought to be of that Parilh ; but in this Cafe
it was laid in Winton generally. Godb. 335. pi. 428. Trin. 21 Jac. B.R.
Hewett V. Bye.
7. Debt was brought in Exeter , and the Writ fuppcfcd it to be within the
County of Devon, after Verdift it was held, that the Writ in one Coun-
ty cannot be intended for an A6tion in another County; and therefore
it was a Trial without an Original. Cro. C. 281, 282. pi. 21. Mich.
8 Car. in B. R. in Cafe of 3l0l)n!3 D* ©tapCt, cites it as Hill, 2i
Jac. Rot. 503. The CafeofKelley v. Reynell.
8. Where a Promife is laid in one Place, and the Breach in another.^
the Vifne mufl he according to the Event of the Iffue, whether it be
taken upon the Promife or Breach, But if no Place be alleged for the
Breach^ and IfTue be taken upon it, the Vifne muft be from the Place
of the Promife, which Ihall be intended right, where the Contrary
appears not. Trials per Pais 103. cicesGodb. 274. and in Marg. iscited
Mod. 36. 37.
(D. b) Trial
Trial. 151
(D. b) Trial per Pais. Vifne of the Body of the '^^>i^
torn
6ee(P.a.2)fi
County. In what Cafes the Venue Ihall come, fr
the Body of the County. D] :• in "the
IJf Ccefpar0 fie IJtOllirljt of Trefpafs none in D. and S. in the Trials per
County of CnmbriDp, anD tl)e Defendant pleads No fuch Vill Pais, 86. (98)
nor Hamlet of S. &c. CiUietC ttljCtljeC tljC iDlflie fljall bC ftOm tljC T ^^"?
XoDP Of tljc Coimtp, tljisi pica goins to all tbe JlBrit, aiiD Ijctc be- nui IkV
ins aitotljcc 3D11U 22 c* 4- 4* [3!t fljall] not Co* Litt, 125. b* vine Ham.
let, nor
Place known, as D. extra Villam, and Hamlet in the fame County in the Iflue, there the Vifne fhall
be De Corpore Comitatus, and not from the Vifne of D. Br. Vifne^ pi. 46. cites 8 H. 6. ^2,
S. P. by the beft Opinion, Br. Trialls, pi. 54 cites 57 H. 6. 1 1. Br. Vifne, pi. 6;. cites S. C.
IfTre/piifs be laid in Dale, and they flead Nul tiei Ville de Dale, or if the Aftion of a Man be laid
in Dale, and Nul tiel Ville pleaded, it muft of NecelSty be tried by thePares Comitatus ; becaufe if
there be really no fuch Place as the Plaintiif has laid in his Count, then there is no particular Hundred
chofen by the PhintitF, out of which any Pares fhoutd come totry it ; and fo where the Plea is in Abate-
ment oftheirrii, the Place chofen by the Plaintiff in the County totry the Caufe, is not material ; andj
therefore de Corpore Comitatus. G. Hift. C. B. 70, 7 1 .
2. 3]n Debt againtt % %, of D. if Defendant fays that there is Over Br. Vifne,
D. and Nether D. in the fame County, and none v/ithout Addition, P'- 9'- '^"^^
without that tljat tljctc 10 D, oiilp tultljout aonttlon ; tlje anemic fljaU
be fcom tlje 15001) of tljc county 14 p. 6. 8. b* foe tlje llTue 10 upon
tije Traverfe,
3. So if tlje Defentiant IjaU faiti that there are two D's. and none Br. Vifne,
without Addition, and the Plaintiff had faid that it is known by the pl- 95- cites)
one and the other, and not with the Addition only ; tljC ©enttC fljaU ^' *""
be from tljc 'Booi' of tljc County Cliisre 14 Jp» 6. 8. tu
4. 3f Debt be brOUgljt againlt ]. S. of D. in the County of E. if No
fuch Vill be pleaded, tljC IDlfitC fljall COmC ftOUl tljC 'BOO? Of tl)e
County 21 (£.4. 10. isobar t's Eeportsi, Cafe 325.
5. So fljall it be in Trefpafs affalnft % g»* of D» in tlje Count? of Br. vifne,pi:
€♦ an5 Bo fuclj mil pleaocD $c* 8 p. 6. 32. b* aOjubgeo* Co* iitt» ^- ^J/"^^
h 37 H.6. 12.
^^5- V* and that it
fliall come
from no other Vifne. — S. P. by Coke Ch.J. and agreed by Crew and Dampart. Roll Rep, 565. pi. i&
Pafch. 14 Jac. B. R. in Collier's Cafe.
6. [So] in Praecipe quod reddat btOUffljt for Land in D. anU Md
fucb iDlU 10 pleatico ; tljlsi "Smz fljall be tticn loijece tlje laialntlff lup^
pOfCjS tlje OllU 45C*3-6.
7- l\n a Quare Impedit fot tljC Cl)UtClj Of MfClbCC, If DCfcnUant Trials per
plcabss tljat tljere iss Not any fuch Church, tljc mmt fljall not be from f'"'' ^j-
tlje 1600? of tlje Countp, but from tljc iDiclnagc of itrelbcc i for it Hob^^o i
10 a pace bnobjn, ano it 10 Intenbeti tljat tljc Cljurclj of Hfclbce 10 -,27 s c'^
in tljc a^tll of |;lftlbeC* P* 17 3la. 16* betiUCen "Ttr-jjhitt and q'anfey, all= accordingly,
jimgeb* %zz tlje fame Cafe |)obatt'0 3acport0, Cafe 325♦bptbej"°^^''^"bs
Bmt OfCuppkdick and ^nwhltt. there is any
fuchChurch,
yet the Vill is not denied ; and the Count of Ecclefia de Ufelbee is an Allegation that there is a Town
called Ufelbee. Hutt. 91. CupplcDicfe i). %5.\\Ut S.C. accordingly Brownl. 161. Cupuci
V. Tanfie S. C.
8- ^f an IilTue betO be trten bp tlje Venue of a Manor, aim tljc Plain- Trials per
tiff fuggefts that he is Lord ot the Hundred where the Manor is, and ail ^^'s, 109.
the People within the Hundred are within his Diftrels. 3if tljC Delen- ^w|^^ — ~p —
dant confeffes it, tljC ^CnUC fljall nOt IZ ffOm tljeOSOO)) of tDe COUn-' tiaareT
15*2 Trial. ^ ^
/i/»f,andd,etD, Uut fljiill Uc ftoiu tljc ucrt Jl^iuiticcu ; far if it fljall be from tijc
cvcu Lo-A of '}3o5p Of rijc Coantp, it fljall be trieti bp tlje '^enantis oftDc fame
S.f &f'' gganar* 3 1)^ 6. 39- b. Contra 1 1 Ii). 6. 54.
Piifot the Vifnc ^all be of the Hundred next adjacent and De Ccr^ore Comitc.tus. Br. Relo'm de Briefs,
p'. 57. cites 5- H. 6. XI.
9» Jf 11 Qiiaie Impedic of a Church in Wales fee brought in Herefor(^
as the ncarelt County, m^ flll JfTUe 10 JOin'O UpOll It i tl)e ©CllUe
fijnll not tie fcom tljc 'I5m\f of tljeCoiuitj? of IDetcforD, but ftom tlje
a:)icinat];c nearcft to tlje €\%\u\). 24 e. 3- 33- b» aoiuoc'o*
10. 3n a TreCpafs bp §(♦ apinft 15* tor chaling ot his Sheep in D.
if Delendant prefcribcs to have Foldage there for 300 Sheep, UpanttJibiC!)
tljcy arc at JllfUe, anU tlje Plaintiff luggefts that the Frankcenements of
the Land belong to C. who is Lord ot the Hundred of S. in which ic
i« and that he has Returna Brevium within the Hundred. HpOH tl)i0
^uftrtcSton tbt0 Jlfue fljall not be trien ftom tlje TSoop of tije Coun=
tp, but bp tlje ncrt Otmoreri, becaufe tlje QBoUp of tlje Countp com=
preljcnnjJ tt)!!3 aime ipunorcn luljere tije lann is, luijicb is to be ej;
cluneb. ^. 1 1 3a* %, E» betuieen Cohmn and Biake aujungeu.
11. CljC 33CnUC Ihall never come from the Body Of tfjC COUHtPj
, where a Vill is named not denied. £]0p EepOttSj 14 liSt
fcTll Repr3:<). pi. 36. S. P. per Coke Civ J. in Cafe of Rowe v. Ledfam.
Mo S50 pi. 12. [As] Jn a Trefpafs, Defendant juflifies by Force of a Warrant i|
I '57 S. C. py^ of a Stannery Court, inDEbOU, Plaintiff replies that it was done an
^^-Kolrilf Totnefs, out oi the Jurildit'tion of the Stanneries, autl tlje, DctenDant
--o pi -6^^ rejoins that it was within the Jurifdiclion of the Stanneries ^ t!je ©e=
s.x: accord- litre fljall be from -CotncfS ann not from tlje IBorip of tlje CountP,
ing'y- isecaufe a 33i!l is nameti. 14 3ia. Ro'-^e and udiam aojuoijeD*
13- 3f Action of l^ebt be brought in Norwich upon Obligation made
in the Parilh of St. Peter in the Ward of Mancroft in Norwich, anU tljC"
Defendant alleges the Cullom of Norwich, to give the true Debt to the
Plaintiff; tho' it be upon Obligation, auU tljcrcfore Ije ptaps tljat it be
inquir'D De vero Debito ; tljiS map be tnen from tlje "l5otip of tlje
Countp of Bortoiclj, becaufe tlje ©bliption is not in Clueffion, but
tlje true Debt. il)ilU 14 In* ^* K. ^^nmter andA-Jichelbum aOjUOgeO
mt©ritof€rrot.
trials per 14. 3!f A. by Name of A. of the County of Hamplhire, brings Scire'
Pais, s"- Facias upon a Recognizance in Chancery in the County of Middlefex,
See (R°a^ atjainft 'B» auB the Defendant pleads that the Plaintiff is outlaw'd by,
pri8. the Name of A. of the County ot Chelter, tO tOljiClj tlje Plaintiff replies'
tljat IjeiS Not one and the fame Perfon ; tljlS ma? be triCQ bp tlje QSOUP
Of tlje Countp of ^innicfec, UJbcre tlje mm is brougijt. i), 1 1 3a»
T>.J3i.\ittMt\\Wood and Hunt, aUjuUffeb pec Curiaut*
Trials per 1$- 3!n aU Ejetlione Firmae, upon a Leale made at D. in the County
Pais 86, 87. E. of Land called S. (f Not guilty be pleaded, aUO a ©enite ifaCiasS
<^99^ — , auiatlieti from tlje "Boup of tljc Countp of €> tljere not being any
Hob b9.pi. ^jj^ ^^^^^ jj^ ^yj^i^h the Land lies i tljis IS etroneous, bccaufe It lie0
and for that lu fottie ©ill out of tuljicl) tlje ©Ifne oucljt to come, to trp it ; ano in
Reafon fticij Cafe It ouffljt not to come from tlje iSobp of tt)e Countp, for it
Judgment jg (qjj jji^gg^ JpObatt'S EtpOttSj 121* bCtUJCen Rich and Sherty
-r^eEf atijutiseo.
chequer
Chamber. Hill. 15 Jac. Jenk. 297- pi- 53. S. C. and l^ivs it feemsnottobe aided by the Statute of Jeo-
fails, zi Jac. cap. 13. by the Words there, viz. The Vifnc being miftaken. For here is no Vifnc
at all.
16. o^ut
Trial.
153
16. 15Ut If nil 3trilC be tabCn upon a Tide of Dignity, as tDl)eti)eC Trials per
Kni^hc or not, it lUiij) comcfcom ti)t ISoijv Of tljc Couiitj), bccauK T^'" '^'•
tfjc \p\citc luijcre jc. 10 not matenaU Jpobkt'js EeportiS 121. s^p.~GHift
C. B. 71.
cap. 7. See (R. a) pi. 5. 12. 13. Hob. 89. pi. 119. Rich v. Share.
17. Trefpafs oi' Battery of his Serv.vit at D. in the County ofE. the TVc/z-^r/i c/
Dejeiitiant jnjiified at F. in the County of M. abfqiie hoc that he is^ guilty in '^^'" "" "'
the County of E. and vet Vifne was ot D. and not of the Body of the r 'V^l- n
County. Br. \ ifne, pi. 53. cues 21 H. 6. 8. 9. ,he Defen-
dant JHjlified
at S. in tie County ofS. ahfijue hoc that he is guilty of any trefpafs in the County of D. and fo to Iflue ; and
Vifnc wasof D. and not of the Body of theCounty. Br. Vifne, pl.jj. citeszi H. 6. 5^.
18. In 'Trefpafs, if the Iffue be taken upon common Voice and Fame of a
Man arrcjled, Yifne fliall be of the Body of the County. Quod nota
bene. Br. Vifne, pi. 87. cites 11 E. 4. 4.
19. In Debt upon a. Bond, conditioned to pay Money at the Plaintiff'' s
Hoiife in Lincoln-, the Defendant pleaded Payment at Lincoln ; upon which
they were at lifue, and the Venire facias i<uas Dc vicineto Civitatis Lin-
coln, and found for the Plaintiff. It was objected that the Venire facias
fliould have been De Corpore Comitatus, and not of the City, which is
alfo a County. But by 3 Juft. contra Crawley J. the Trial was good;
and grounded their Refolution upon 34 H. 6. 49. & 50. pi. 17. which
was agreed to be the only Authority in the Law in Point. And it was
taken~as a Rule, that where it appears not on the Record, that there is a
mwe proper Place of Trial than -where the 'trial was, there the J'rial is good,
and here there is not a more proper Place ; for it could not be by the
Body of the County, becaufe the Payment was to be in the City. And
refolved that the Trial was good. Mar. 124. 125. pi. 204. Mich, 17
Car. C. B. Thornedike v. Turpington.
20. Covenant for not repairing a Houfe in Chejier, the Defendant pleaded 5 Mod.40f.
Reparavit ; upon which they were at Iffue, and the Venire facias was from Pafch 9 W.
the County cfCheJler at large. After a Verdift for the Plaintiff it was ob- '• ^■-'"■/'^"
jeaed, this was a Miitrial; for the Iffue being local, (vii.) at Chefter by the Name
generally, and the Trial being in the County of Chelter at large, it was of Calverley
by a Jury of a wrong County. And per Curiam, This is not aided by v. Leving.
any Statute, but only a wrong Venue in a proper County, 3 Salk. 364.
pi. 12. Anon.
21. 4^ 5-</'z«. cap. 16. Every Yenire for the Trial of any Iffue in theConrts InaProfe-
f Record at VVeltminlter, /hall be awarded of the Body of the County where ""'"" °^ .''
i'lich Iff'uable is triable; and no Challenges /hall be admhted to the Arrays of ty' the Crow;!
Panels, or to the Polls for Default of Hundredors. rhe Fenirl
w.ts tte I i-
cineto de B. and Exception was t.iken to it, becaufe by this Statute it oUr;ht to have been de Corpore
Comitatus. But Parkei" Cll, J. laid they were all of Opinion, that the' this Claufe might have extend-
ed to Cafes of the Crown had the Objection come earlier, yet the conflant fr.iihce ever Jh'ce the making
the Jcl, having been otherwife, and all the Precedents both in the Crown-Office, and in the Exche-
quer, (in Cafes not cxprefsly excepted) being de Vicineto, it would be in fome Meafure to overtura
the ]uftice of the Nation for fcvcral Years part, to make a contrary Refolution in this Cafe ; and there-
forc'held the Venire well awarded. Wms'sRcp. 207. 212. 223. Mich. 1712. The Queen v. Bewdley
Corporation,
Provided that this A(f Jhail liot extend to Appeals of Felony or Murder, or An Ja,on ^
to Indiiiments or Preferments ofTreafvn, Felony, or Murder, or other Mat- J^^„H^^,"f '^^
ter, or to any Procefs upon them, or to any Writ, Bill, A^ion, or In forma- Hundred,
tion, upon any penal Statute. upon the Sta-
tute of Hue
and Cry, and a Verdift was found for the Plaintiff; and one Exception taken in Arreft of Judj^ment wj.s,
ihat the Venire faci.is was mifawarded, vh. to the County at lar^ire, whereas it ought to have been to the
next Hundred ; for this Statute, which direSfs that Fenins jhall he de Corpore, does not extend to this Cife,
it being zn^'lBion brcupht upcn a penal Statute, and therefore within the Exception in that A<ft ; for the
Damages to be recovered agtinft'the Hundred by the Party robbed, wetcnor provided for tlic R-p.n-a-
' R r tioii
154 Trial
tion of IiJN Lofs but as a Punifhment upon the Hundred for their Default ; and therefore it is rather a
penal than a remedial Law. Hut the Court held that the Venire de Corpore was well warranted by this
Stitute. And that the Exception, being only of Aftions brought upon penal Statutes, does not
extend to the prefent Cafe ; for the Statute of Hue and Cry, as it only gives Relief to the Party robb'd,
is not to he confidcred as a penal Law, according to the Rule laid down in Mich. 4. Geo. i. B. R.
^init'O b. ^IjillipS', t'lat where a Remedy only is provided for the Party grieved, it i.s not a pcad
Statute. Hill. 1 1 Geo, z. B. R. Merrick v. the Hundred of Offuilbn.
(E. b) Per Pais. Body of the County. Ont of what
Place the Vifne fhall come.
i.TB Debt upon Obligation, it l'^ plCuUCtl h)) DcfCHtiant tljat bD
X iFOtCC of a Menace at D. he made it at London, J^iailltiff K-
plieSS tlHU i}t made it at London of his own Gree, without that ttjilt IjC
mu It tijcix lip jf oixE of tl)z £|3cnace at 'D. 'W10 fljan be tricn bv a
mimt fuctas fcam Lopboii i fee t|)c ^zmtz at £), 10 agteco* 33
^. 6. 24. i\ Dutiitatur.
Hob 266. 2. 3;n a Prohibition, |f tl)C Pattte^ fitC at Iffuc upon a Cuftom of
pi. 55°- Non decimando otVVood in the Wild of Sulie.K, fljC mnitt faCia^ fijaU
J''\^X bz from tijc 3oBp of t!je Countp ; for tijc JtBilts is not am fuel)
TTiaisrer P^"?*^'^ tBljctcof tl)Z Coiut iiiap fjaiie Conufance to be fiifficfcnt to
Pais 8;. yaue a S^urp to couic from iL 3lt 10 bp IJntmDnient a i©ooti, DO:
C'oo) iiart'0 ECpOrt0, Cafe 34s- betlUCCU fa-^/vier and Jndravs. }9eC
Curtani*
3. 3in an iSCtiOn upon tlje Cafe, if t^e Plaintiff declares that he and
Detendant were jointly fciled of a Clofe called Church-field in the
r\.A_^0 County of *Eflex, and Defendant had fbwn it, and alter cut it, and the
*Fol. 618. Corn lying upon the Land, in Coniideration that the Plaintili' would
^^^'^""^'^"^ permit the Defendant to carry away tijE COtH Ollt Of tfjC Latltl tO IjiS
Oftin afe, he promiied at London &c. tUljClt tljC SCttCll UiaS btOUffljt,
to pap 10 L tc tIjc pfaitithT, ants ancrs tfjat Ije pernutteD Ijim ta
carrp it aiuap u. Co luljidj Defendant replied, that Plaintiff ftut
the Gates Of t!)C faiD ClOfC bp lUCf) a 'STimCj and hindred him de Ab-
cariatione tritici prxdifti extra Clauium prsediflum, per idem tempas.
^0 Uifjicl) t!)e piatiitjff replies , ariD too!i bp protcitatton tfje fljuttinrf
Of tlje <£^atC.ei ; but for plea flipSS, tljat Ije did not hinder the Defen-
dant de Abcariatione ttitiCl p^«t!tCti e;Ctra ClatU'lUU ptaeQiCtUm, pCC
totmii t?em tempusi Modo & Forma &c. 3in ti)i0 Cafe tljiss Wuf
may te tilctibp Bzimt facias from tljeOSotip of tijc Countp of €iTer ;
for it map be djat tlje (iii5 Clofe 10 not in anp m\\: auti if it be in
anp ©ill, it ougljt to be alicfteo bp a^efennant m Iji^ #lea isi Q5ar»
CBiit bp !jl0 pica it is aOmittcD to be \\\ tije Countp, ann not in anv
viii, ani3 tljcn of JOecefTitp tlje aDcinre tiicias oiuTtjt to be froin tije
•Bobp of tIjc'Countf, for as tfjis EecorO is, it cannot be trieu aVdzi*
imfe ; for tije Declaration luas qiood tuitDout allegino; anp oill
tUbCre It lies, beCaUfe it UiaS l^ut an inducement to the Promiie. OgJlt
h^ tlje pica of tbe Dcfentiant, Hje Place ano i^ill is material, ann
neceffarp to be ailegeD, if it be in a aDill i and uoui tbe Detcntiant
tDill talic Siti^amage of Ijis oiun Default* anis in tljis Cafe it mi
true, tbat it "mm in no 3DI1L '2Cr» 1649. betuiecn simpfon and GoUmg
ati)iibt(£B, It bcHirc !i30i)CD in arrea of 3^utiijmcnt» S^ntratur '^r* 22
t Trials per Car* JRot* 1 27. klno * If a aDenire fiicias cugbt to come from one
Pais 86. (99) or more i?i!is in certain in a Countp, ann it is atonrtJeti De Cot*
pore CouHtatus, it feeins it is fli5e5 bp ti;e ^itaturc or 21 Ja. of jeo-
iails J
Trial. 155
iaiis i for it camcei from tijc mw^ out of luljicfj it ouGljt to comc,aiiD
from ctljcr^, inafmiici) a0 it comes from tlje OBolip of tljc County
4. It Acfion be brou2;ht /// ^/'e C/^)' agaiufi the Mayor and Commonalty of ^^yi^-^^- ^
the City^ this flwll be tned by Fcyciguers, and Attaint may be brought by citerio^E^''
the People within the City. Neverthclefs, by fome it lliall be by Fo- 5 ^^ and
reigners. Br. Attaint, pi. 56. cites 10 Aff. 13. 10 E. 3. 29. Shard faid,
that tho'thc
Court had made Award that the Trial fliould be by Foreij^ners, yet he thought it ought to be amend-
ed ; whereupon he outed this Panel, and continued Proccfi againft the Witneffes, and ordered an In-
■quell t6 be made come from the City 8cc.
(F. b.) Per Pais. Venue. From lahat Place a Venue
may come.
I. A mwiu faciasi niaj) be ntuarueti from a Caftie. }S). s 3ia* in tlje ^-o. j. 259.
jt\ Cnljeillier, bCtlUCen Conmpn and Hare aUjtttJffell* nin^hariJv?
Hare, S. C. S.P. G.Hift. C. B. 70. cap. 7. See pi. t ^^■
2. 3if ii '^\)m be itlleseu in a C^anor, tljc ©enue \my> be de Ma- s.p.G.Hi(i.
nerio, bccaiKc a ^aiior ig a Cijintj luioujii, ann [ija^aj certain ^-^-.'^a
j^amc* 6 li), 7. 19 j;. 6. 49. $19}? Eeportis* 14 :fa- Co* thTvenirr
3Litt» 1-5- b* muftbefrom
Ibme known
Place, where the Faft is fuppofed to be done, as in aVill, Caflle, Manor, or Foreft, becaufe if it wa.-;
not a kiiown Place, there could be no proper Direction to the Sheriff to cry who were the Pares that
were to try that Fatt. G. Hift. C. B. 70 See CG.b) pi. 17. iS. 19. 20.
^ 3 Denue cannot be from tlic Scice of a Manor. p» e ja* 15. Tnaisper
perCunam. ' fu'T''
4. Every Trial mufl come out of the Neighbourhood of a Cafile^ Ma- ""
iior^ T'csjUj or Hamlet^ or Place knozvn out oi a Caftie, Manor, Town,
or Hamlet, as fome Forefts, and the like. Co. Lite. 125. a.
5. In furis Utriim of Land in S. if they are at Iflue, Vifne fliall be
of C>. be it a Vill by itfelf or not, and not of T. near S. Br. Vifne, pi. 105.
cites 29 E. 3. II. and Fitzh. Brief, 963.
6. Trefpafs ivas - brought in B. R. of JJfa/i/t, Battery, and Mah-treat- S P who
were not
jiientintbcHdlofWeJiminJler; and the Pannel was commanded to be "^^""^ ^
made by the Marlhal of the People who had Stalls oi: Merchandizes in noi^rocur'd
the fame Hall. Br. Vifne, pi. 76. cites 42 Alf 18, of the one
Party or the
other. Br. Pannel, pi. 8. cites SG
7. Where the Iffiie is to. be tried at Lincoln, or fuch like, -xhich is a
Frauchife in itfelf, the Venire Facias pall be of Lincoln, and not of Vifne of
Lincoln ^ for then the Jury iLall be return'd as well of the Country ad-
jacent as of Lincoln, which the Sheriff of Lincoln cannot do. Br.
Vifne, pi. 104. cites 8 H. 5. 10.
8. A Hoffe was demifed in Abington, in the Borough of Abington. The
Venire Facias was of the Borough of Abington. Adjudg'd to be well
awarded, and afterwards affirm'd in Error. And per Curiam, the Venire
Facias ought to be awarded from that Place which had the bell Notice,
aiid Cognizance of the Matter in Queftioni and fo is the Book of 10 E.
4. fo. 10. cited per Williams J. Built. 46. in Lyskerrit's Cafe.
9. A
1^6
Trial.
* When a o. A Veil. Fac. may be of a ^oa/s, * Parijh, Manor, or any other
Parifliisal- place known j but »of ot'a f C/Yj)', County, crtWi^'^^; PerGawdy: And
aS ^'tSeCi'^ed 7 H. 4. 13. Cro. Eliz.. i:6o. pi. 46. Mich. 33 & 34£liz. in Cafe of
Without "^ Bradilh v. Bilhop.
tiueftion the ^ . ^ ■„ r , ■ • . t r-.- \^ t • i_
Vifne iliall come out of the Panfli ; tor that is more certain than the Lity. Co Litt. 125. b.
t But iL-e CG. b) jl 39, .;:. -t See pi. 16.
3
S. P. cited 10. Payment of Money was to be at Lincolns-Inn-Hall in Holhorn
perCur Sid. jinij []-,£ \ ei^ire p^cias was a'vvarded from Holborn. It was objefted,
521I Palch. j,|.|^j. jj. pyg-i^j. j-Q be from Lincoln's-lnn, th.it being the moft certain
in Cafe of Place. But it was anfwer'd, that it was never heard a Venire Facias
Strike v came front Lincoln's-lnn, Gray's-lnn, or any of the Inns of Court. And
Banes. j^e whole Court agreed, that the Ven. Fac. was well awarded, and
Judgment affirm'd. 2 Bulll. 120. Trin. iijac. Baker v. Chew.
11. Vilhe cannot be out of a Wild, as the Wild of Sujfex. Hob. 266.
pi. 3 JO. Trin. 17 Jac. Fawkner v. Andrews.
12. A Ven. Fac. de Vicineto of a Lieu Conns in a T'own, without
making the Vifne from the Town, is not good. Hutt. xo6. in Cafe of
■^BilltCE ll.3iOl)nfOIU This was cited to have been adjudg'd.
13. A Venue cannot be from an Honour. See Sid. 17. pi. i. Hill. 12
Car. 2. C. B. Hill v. Bunning.
14. A Ven. Fac. was awarded from 'fannton-Dean. It was objefted,
that it was a great Country, conlilting of feveral Vills, like the Vale of
E'vepam, or the Vale of VVhtte-Houfe, or the Wild of Suflex. But the
Court thought it good after a Verditl:, and that it iLould be intended a
Vill, and not all the Country of Taunton-Dean. Sid. 88, pi. 4. Mich.
14 Car. 2. B. R. Tubbe v. W'hiteworrh.
6id. 525. pi. 15. Debt upon iioW brought in London. The Condition was for Per-
5. Strike formance of Covenants in an Indenture, by which a Walk in a Foreji call'd
t. Bams. Shrub-walk, in the County of Northampton, -was granted &:c. and the Ve-
ingly ^''°' " ^^^ "^^'^^ '^^ Shrub-walk, and the Caufe tried at Nofthampton. And
after a Verdift for the Plaintilf, it was inJilted that a Venue could not
come from a Walk in a Forelt, becaufe it was only an Oince or Liberty,
and is only collaterally all eg d as a 'Thing granted, and not as a Place where
a Thing was to be done, and is only a Liberty or Office within a Foreft.
And Keeling, Twifden, and Morecon were ot that Opinion ; but V^ind-
ham doubted, in cafe it had been alleg'd as a Place at which a Faft wa.s
done; but being allcg'd as a Thing granted, it is otherwile. To which
the other J urtices agreed. Lev. 207. Pafch. 19 Car. 2. B. R. Strike v.
Bates.
♦Seepl. S. 16. Venire Facias m.iy be from a * .Bora/zf ^, ] Ward, ^Caftle, and it
[See pi. 9. feerns jt may be from a Park &c. but not front. Things incorporeal, as Leet,
vieepi. I. 4. ^^^^^,; y,. - Sid. 326. pi. 5. Pafch. 19 Car. 2. in tlie Cale of Strike v.
Banes, in a Nota of the Reporter.
S P. cited i>7. Venire Facias irom Whitehall has been held to be good. Sid.
p^"V;'^°- 326. cited per Cur. Pafch. 19 Car. 2. B. R. in the Cafe ox Stri.ke v.
J. 3icn* 2. 'y p)
Car.2.B.R. -Banes
Arg. but
fays it was quafli'd for want of a Place. And fays that to this the Court inclin'd there in the Cafe of
JNIatthew v. CrofTe.
1 8. In Debt for Rent refervcd on a Leafe of an Houfe fttuate upon Little
Tower-Hill &c. the Defendant pleaded an Entry into a Roo7n of the faid
Houfe at Little Tower-Hill, and that fo he had ftifpended the Rent. And
upon Demurrer it was obje6led, that Little Tower-Hill cannot be in-
tended to be a Vill i and to this the Court inclin'd ; but the Matter
was ended by Compromife. Vent. 119, Pafch. 23 Car. 2. B. R. Mat-
thews V. Crolfe.
19, Accli-
Trial. 1^7
^ --'' — ■■ ■ - ■ ■■ -^
19 Acclivitas of HampJ}cd-Hill is not a Place from which a Venue Skin. 507.
may come. Carch. 235- Pafch. 4 & 5 W. & M. B. R. Parker v. ^j^.^^^°
Harris. — i salk.
162. pi. 2.
S. C. but S. P. does not appear. 4 Mod. -5. S. C. & S. P.
(G. b) Per Pais. Venue. Out of what Place it fliall - ^ ,
\ J I ^1 J- r Foi. 619.
come, adhere were are dtverje. v.,x-vnsJi
I. T JI2 3 Second Deliverance .for taking of Beads in Belbroughton, fl Trials per
X Feotlment 10 ptCnOCU tO b£ ITiatlc'at Bradford in Forfield, in the Pais 84(97)
Parilh of Belbroughton, ClllD X\)t JiflllC 16, whether he enfeoff 'd or noti
t\)t Dcmtc njiill be from 'Bcl&roiigOton, anti not from 'Branfom,
for Ticldrouijljtoii fljall l3e tntcituco to be a Couin, aim one Town
Ihall not be intended to be in another Town, aitD tljCtefOrC 'BtaHfOtU
fljall not be intcnncn to be a %m\\. ^, n 3!a» 05* betiucen Peme
md Hewing pEC CUVianU
2. 3itt Replevin fot taliinff Of a Ipotic in D* in a cettain place "°^ .f *•
CallCTl 13. if Defendant fays that the Place &c. contains 20 Acres, Par- j',.,^ 16
eel of 100 Acres &c. the which 100 Acres Time whereof Memory &c. jac. Gay-
were Parcel of the Manor of W. whereof J. S. was feifed in Fee, and haid v. Mil-
conleifed the taking as Bailiff to j.S. anH tlje Plaintifftraverfes without '=^ ^ C. —
that that the Place where &c. was Parcel of the Manor of VV. ^U 3in f'"'^"^^''J''
t!)i5Cnfe tlje i^enire ifaciagi fljall come from tlje 03anor, mimrn iZcZfe'afrj
from D. tlje mil uiljere tlje tal^mn; U)a0» ^^^obart's jaepocts, Cafe g. in mcd-
367. between GaUiard and Miller aBlUUffeU* '*"'?'■ The
Defendant
pleaded, that the Clofe was known as well By tie Name of D. as G. and that Time cut of Mind it hadbeenPar-
cel of the Manor of fVigenworth ; and pleaded his Freehold in the f aid Manor &c. The Plaintiff maintain'd
kis Declaration, abfque hoc, that the Place where &CC. was Parcel of the J/anor Sec. And upon this they
T/ere at Iflue, and the Venire Facias was awarded of VVoodthorpe only. It was objected, that this was
a Miftrial ; for :ho' the Parties were agreed that Woodthorpe was the Place where the Trefpafs was
do.ne, yet that being alleged to be Parcel of the Manor of Wigenworth, a Ven. Fac. from the Manor
&c. may have a better Knowledge of the Fad: than the Vill of Woodthorpe only ; quod fuit concef-
fum per rot. Cur. Yelv. 1S2. Mich. S Jac. B. R. Kniveton v. Roylie. Browni. 21S. S. C. and
leenvs only a Tianflation of Yely.
3. 3n Trefpafs for a Horfe taken at \V. tljC Defendant fays that T-^°^- '^- P''
S. was feifed of a Leet within the Manor o." D. whereof VV. is Parcel, ?'\^^^}^^
jind prefcribes to amerce and to diitrain for it, nnH tO appWlfC tljC Dl= sc ^Lt'^It
ftrclg bp four sappraiferis, f.nn it anp refiifcb, to be a Jforfeiture, anU ougin not to
piaintnf rcfufen 9C» to tcijicij laiamtiff replies De fbn tort (tc. Cije ^'- ^"'q"! w.
iDenne fljall be from tlje a^anor ana not from W. for tlje cmiom of ^^ ^'J.' ; J^-
the Manor is put in iiiue, nnD It map ertcnu to feM-al mll^. ^itlh Taking was
13 3ia* 15* bCtUJeen £a»kes and Barker aUjllOfiCD UT ^Irteft. confcis'd on
both Sides,
fo that required no Trial Browni. 259. S. C. accordingly. B»t in Repleiinfor takinjr 2 Cotis
in Buckland-Mead in Biickland, the Defendant /aid, that the Place where was Copyhold, Parcel of the A'Janor
of Bitckland in Buckland; and the Ciifom was that ezery Copyholder, having 10 .^cres of Land, pciild hav
Common from fiich a Day to fiich a Day there, and fo julHfics. Upon Iflue join'd, //jc /'f;«if wjs De vici-
Jieto Manerii de Buckland, where it ought to be De Buckland ; and fo the Trial not good, notwithlland-
ing the IfTue is upon the Cuftom ; for being allefted to be the Manor of B. in B. the Yen. Fac. ought to
have been from Buckland. Cro. J. 302. pi. 2. Trin. 10 Jac. B. K. Mortimer v. Petifer.
4- Jnnn Ejeaione Firm^, if tlje plaintiff lieClare0 of a Leafemade EjeHment on
at Ickworth, of Land in Bury in Suttblk, ailU Not guilty plCaHCD* "^l^^;'^" "'■
Clje aDciure ifacias fijall be from OBm-p ano notirom jcf^wortfj//,';.^!'^;^
^3lCl). 8 Car. V>, H» bCtUlCCn Pclland Spnr^ccn, a'OjUtiaCQ lU Wnt OU,werM,:{as.
s f CJrror
1^8
Trial.
.i!po:, iNot error, ann tijc Jutsgracnt gincn m TdjuiU rciscrfen, bccaure tljc 3:)c=
ciuihv, die ^^jfg JJ3JJ2 fj.Qm 3cliiuortlj. Jntrattir '<i^r. s Car. Eot> 77+ fcrtijc
fv'arSd "''WtieofBot ijiultu relcrjs to tljc eKCtumit, uiljiclj UJa0 inljcrc tljc
from Moc- InnO 10.
kas, where . .^
it CH"/;? <u htive been fnw Lciver .Unckas ; the IfTue being 'Not Guilty. But if the Leafe had been tra-
ver'ed it had been otherwile ; and of that Opinion was the whole Court, wherefore the Juds^ment was
Jby'd.' Cro E. 701, 702. pi. 19. Mich. 41 & 42 Elir.. B. R. Williams v. Whytney. If a Man
fichus a Leafe in otic Comity or Vilt of Lnnds hi anctler, yet the Jury mufi: come from the Place where the
Land lie,';, in an EjeEhnevt upon inch L':are. 6 Mod. 2.22. hlich. 5 Ann. B. R. Anon. ■ S. P. per
Cur. but that Fault is cured aficr Verdiift by the Statute of Oxford. 6 Mod, 265. Mich 9 Annx, B R.
Grce V. Sharp But in Debt upon a Leafe for Tears mmie at Sorthaivpton cf Lnvds hi D. in the County
of Northartipton, upon Kiliil debet pleaded, and found againfl him, it was objefted tliat the Fenire ivas of
Nor f ham ft on ■, whereas it ought to have been of D. where the L.inds lie, But the Court held the Trial
good ; tor the Debt is due by "reafa? cf the Contra^}, which was at Northam; ton ; and, abfente Auderlbn,
adjUdg'd for the Plaintitf: Cro. E. 565. pi. zS. Palch. 59 Eliz,. C. B. Matthew's Ca:e.
Trials per 5. JfaCIjiUg l*t lai't tO tlC tOUC at Brillo], videlicet in Warda
P'*'^' y4 Sanaa MariK in Warda de Racclirt; auU JfTUC UpOU It ; atlD tU JDC^
^'°' '' Hire if nctn0 10 He i^nrna He EatcUff, it 10 not poD. ^iclj, s car.
13. R, ucon'zcard'0 Cafc upoit ait luiDiftir.cnt for fdltuK Op falfc
I©ngljt0. Ecrolt3Cti pec Ciinani. Jutratiic €x. s cnr*
[From the] Moft certain [Place.]
Trials per 6. Ju au InfOrUiattOn of Qj-io Warranto for ufing of a Warren in B,
Pais S4. tf Delendant lays that the faid Vill ot D. is Parcel of the Manor of S.
^9p P and that he and all thofe whofe Eltate he has in the Man£r, have ufed
"11 Ji 2 to ha\e a Warren tettljlii tljc Cl3an0ianl! Dcnicfucs, 'oLiuie iDfjcreof
t'he king V. ^emorp t f. anti tljc l^inn;'0 iilttornej' tafec0 niue upon the prcfcrip-
sherington t,on. jn tijts Cfllc tIjc mnixt Jfacia0 ougijt to come from tljc $i^a=
Talbot, sc j^p^ jjf ^^ j^j^j, jjjjj f-^.^j,^^ fjjg 3j)jij Qj.-^:)^ tfio'D. b£ parcel of tljc
accoidivy^ c53ji„or,inarnuiclj as tljc J9rcrcripilon mljiclj 10 in Mm, 10 1 lain in tlje
t Foi. 620. cManot, wijiclj bv intendment 10 more large tljan tljc mu Cr, 9-
^.^'^-^^^^^^ Car. 13. .E. * shmiigton q:aibof% cafc, aoiutseeri per Curiam in $ir=
7~Jc 'r°- reft of Ju^ijineut, after a a^erotft at X^ar for tlje DefenOant:, tuljcrc
!cco."dingiy. tlje iDcnire ifacia0 mas from D, anu not from tlje fi5anor»
JVnrr onto for dmming aLeet iinthin the Mar.or of JI. the Defendant pleaded that he was feifed in Fee of
the Manor, and fo chiim'dthe Leet by Prefcription ; upon which they were at ItTue, and the Venire Fa-
cias was of the Vill of M. and adjudg'd a Millrial ; for the Prelcription being that he had aLeet
■within the Manor of M. the Vifne fliould be of the Manor of M. for the Fill ivas not mentiou'd in the
Jiecord, and the Venue might well be of the Manor. Cro.E. 304. pi. 2. Mich. 55 6c 36 Eliz. B. R. at St.
jMban's, Kcvil v. Payne.
Trials per 7. Ju an Indianient of Murder, t!lC C^UifUcr lun0 aHCgelJ tO I)C done
Pais S3. jipyj^ Civicatem Wellmonallerii in Coniitatu Middlelex, in a certain
*^M OA Street there called King's-Street, in the Pariili of St. Margaret in the
pl S07 SC faid County of Middlefex, aitO Not guilty fccmg plCaOCO, » DCnitC
and the ve- jfacia^ W^ auiarUcO ne aDicineto CiUitat(0 aaeftmonafferiii ano m
r,ue was ad- ^xj^Q^x^ jiflt iTooo, bccaufc tIjc Paviflj 10 more ctxtm tijan tljc CttPi
h -lufe anf tljercfoce tljc mimz Jfacia0 ougljt to come from tljc Pariflj^
^vhen Mat- aito ttot ftom tljc Citiv Co. 6. * AriiudciF^ caft, aOjuOffcQ 14-
ter of Fadt
is found in a particular Place known, as a Vill, Hamlet, or Parifli within another general Place which
contains this Particular and other Particulars, as County, City, or Borough, there the Venue ought to
come from the particular Place, and not from the general ; becaufe the more particular the Place is,
the Inhabitants there may have the better Conufance of the Fact, _ But if the Fait had been found by
the Indiftment to have been done at the City of VVeftminfter, without any Mention of the Parilh of
St. Margaret's, the Vifne would have been good from the City., Goldsb 133, pl. 51. S, C. but
S. P. does not appear. S. P, Co. Litt. 125. a. b. but fays it is to be noted, that if it had been al-
Ic'o-'d in King-ftreet in the Farifli of St Margaret's in the County of Middkfex, tb-rn ir fhcdd have
come
TriaL^ i^p
]v known in what Hundred it is- G. Hill, ot C. B. to.
8. Jf an JITUC be iOin'tl, iDljtClj is to be tried by a Vlfne of D. and S Tnahpei-
and the Venire Facias is awarded Irom D. S. and U. it tS nOt ftOOU bC= ^^''' ^•'•' ^>-
caufc it is more larp tljait it ouffljt to bc> J3cibart'0 Ecpaitis! 52. ^^ '^
anU ifOl. 105. tCtiUeClt ^^7/^-^^^ and Parker.
9. 3n Replevin fOC tilhilllj Of 'BeaffSl ac a Place called D. in South- Hob 6s,. pi,
w:'.rk, nnD one the Detendancs pleads N"on cepit, UpOll ioljicj) JlfUC i^ ^'>- .^•^•
tnl^Clt, anB the other pleads that the Place where &c. lies in the'Parilh o-fenV'^
ofO in Souchwark, and was the Franktenement of J.S. &:c. UpOtl UlljiCf) had^'bo""
t'OC Plaintift" replies claiming a Way over the Place where &c. to another pia'd in the
Place in the fame Parilh, nuD Iffue taken upon the Prefcription, iJUHOllG '''^ °^^i'^-
a^ciiire facias aiuaciiCD foi* Crial of botO JHucs from eoutliuiark S;"^"°"'
anu tijc |i)anaj of O. auo ffooD ; foe i\n fetueg botlj IJtTue^. l3o= /houia have
l'art'!3 Kepcit.s, Caic ss. Anuidcr $ cnfc* been oe vi-
cineto Paro-
chis, becaufe m fu:h Cafe they had both agreed that it had lain in the Parifli.
10* Jn an Ejeaione Firms UpOtt a Leafc made in C. of Land in the * <^-<^o. J.
Parilh of C.pn^ditT Upon Not guilty pleaded, tOe iOtnUZ map bt UZ I'^r ^\'''
13aroc!)ui cc C for tijc lBor5 ciSJi'sOicta) is in ligature of an mtt^ td^'-dX-v
ir.cnt tijat tljc panflj anti Wmn arc one. 15, 12 jia, 03. B. brtuiccn tot"curac-
* Fak and Fielder, aOlUQgClI. £©)) ECpOrtS, \p, iz Jfl, m tijC (SjC-- cordingly.—
CljeqUCr (!Lt)an»i3Cr, betlUecn T Spe,!ccr and SirThw,!as Sa-J^e, aOllltJffCO. ^°'' ^=P-
eamc Cafe l^abart'0 Ecports?, 9- ann tljcre otljer Cafe anjuoffcu Tc bu?not
4: iBaiflep. &.?. but
ibid. 21. pi.
z6. S. C & S. P. accordingly. 2 Bui ft. loS. S. C. accoidingly.
+R0II Rer>. 2-. pi. <,. Pafch. 12 Jac. in the Exchequer Chamber S. C by the Kiame of ta>pi'iictT 3119
^iv 'S,\.)QmiS ^aijagc, aiiD Cofec accordingly. Hob. 6. pi. 15. IBrcik b. S>pntaT, 6. C. ac-
cordisipjly.
In Ejeclione fii-mxof a Le.tfe apiid De^ih:jm, of Lands in the P^rip d>- Denham py^di^.i. After Not
f^uilty pleaded, and Ilfui, a Ven. hic. was awarded de Vicineto de Denham ; and Error thereof af-
/igned, becaule the Yen. fac ought to have been De Parochia de Denha'n, where the Land !ie>-. Sed
lion allocatur; for in Regard it is De Parochia de Denham pradicfa, the Pa^i^h and Village are intend-
ed tae);tcnd,and tobe all one, and no more. Cro. E. 558. pi. 75. Mich. 59 Eliz. in Scacc. Bedell r„
■Su'iboroagh. Mo. 709. pi 992 S. C. accordingly. S. C. cited Bulll. 46. in Lyskerric's
Cafe.
-4: So it is in the Original, but Qiisre v/hat it means.
II* J\\ an Ejeflione Firmge UpOn a Leafe made in G. of Land in T See pi. 4.8::
in G. atoreiaid i tijc iDenuc lljail not be froHi (S. but from€;. for it '^'
fljall be intent! tljat C is a mi or &, $?5iclj. i o ja. 03. H. betuieen
Bcachai'iipe and Sampfou^ atljUOlXeil.
12. Jf a Leafe be pleabCD to be made at the Parifli of Rock, of Land * Roll Rep.
at Linden in the Parilh of Rock, tlJC 3DenUe Ifjall UOt be froni tlje \3H^ i^}; P^- '^
rinj, but from Linbcn. m} Hcpart0, 14 3:a. * Coiiier'^ Cafc. @ce re, co^e'l-
J)Obart'g ECpCltfj, 257. tCtlUCCn t J^orrel and Jiidrcws, t\)Z MWZ be= Curiam'- fur
ins upon tije Cjectmcnt per Curiam. ^. is 3]a. 13. H. bctuicen ^o^e (aid
t ienkm and Smith, aOjUUSeQ. 19. 8 Cat. 03. K. betlUCeU Crooke and ^^^ tl e \ e-
TiltleDa'TC nue ought to
untepa^c. be from the
moll certain
Place. If Trefpafs be brought in two Towns, and no "^111 is pleaded as to one Town, it (]i.iil be tried
by the other Town
|Hob. 190. pi. 250. IMich. 14 Jac. S. C. accordingly. Hutt. i5. Mich. 15 Jac. S C'. accord-
ingly. But Lord Hobart laid, it had been diverfe Times adjudged, that on the Allegation of a Thino-
done at the Town of Dale in the Parilh of Sale, the Yen. iic. frcm the Parifli, is good ; for tho' the
Parilh may contain more Toivns, yet it is not to bi prefum^d but it is of one E>;tent, unlcfs the con-
trary appears by the Record Brownl. 69. ^arrfl v. 4iHDrtill, S.C. And that Lord Hobart (-li.l
that where the Landis laid in the Paridiof Dale, the Yen. t.ic raay be made of Dale, or within the
Pariih, or of the P.i.'idi, and both good. - . '
i 60 Trial.
±Cro T 5S6 pi S S C and it was an Attion for Words fpoke of an Attorney, and the Words were
''.^Ileoed t'o'be fpoken ^t S CMam in iU Cawty ofCorvrj;all, and the j"'^"^/'"^' ivas from lie Pay,jh cf ^.
Culkom ■ and this was moved in Arrcll of Judgment ; for that the Panfh is larger by Intendment, and
fo u Miftnal. And of that Opinion were all the Court.
"t3. 3ilt an 'JCtiOlt upon tlje 2 E. 6. for Carrying away of Tithes in
Silkltone, mil! tljC 33CnUe tOUlC0 from D. in the Parilli ot Silkftone ^ (t
10 not goon* Ml H 3n. "B, H» Rol^Jon agalnfi Cutler^ aHjUDpii.
Yelv. 104. ' 14. ;5f an Aliumpfit be Jaid in M. and tljC ^iXXiXZ ifaCiaS IS de Vi-
jMich 5 jac. ^i^^^g ym^ ^ Parochi^ de M. It IS Hot ffooD ; toc t!je li^arK!) map
ijukiiurff i^rtcnti out of tlje aDiil, ann map be a parifl) in iuDicIj tijerc is not
t'ii'aimtr, anp aiXll. C^icO. 5 3^a» 05. K* per CTurlauu
S. C. 6c P
fays it was adjudf^cd per tot Cur. a Wiftrial, becaufe it ought not to be of a larger Precina than the
Plaintili" himfelf had fuppofed.
Trials per 15 Jif a CfjiniT bC alleg'd in fuch a Parifli and Ward in London ; tljC
Pais, 93. ^^xxviz lactas ojall be tc parocljia, anu not De slBartiai for tlje }3)a--
^'"'^^ nOj In jLonnon id mSciiD of a ii)iU, anQ tlje l©arti in lieu of an 8)im=
Dtcti. ly\> 41 eu C!5. K. aQiuBgen.
16. Jih a Replevin Of 'BCaftS wken in A. if DCfenUant jultifies the
Taking in a Place call'd R. aitb Plaintiff fays they were taken in a
Place * call'd C. in the Parilh of A. upOn tDljICl) tijcp atC at WUe, tljC
avenue mni' be from a, for tlje l^aiiOj ano m\ of %. fljall be uv
tentieo to be one. lyM 9 3lii» 03. Frances Cafe. \3n Curiam.
Cro I. 405. j-y 3if tlje JiiTue be whether certain Land be held ot luch a Manor bv
tamfsT' ^'S"^ Feorfment, tljc mwwz fljiiU be 2:)e ii)icineto ^anetii. n |).
©iirJoU'/ 6. 54.
Trin. 1 4 f ac.
B. R. JulHfication inTrefpafs was for a Heriot for certain Lands, Parcel of the Manor of Stanfted- Hall
in Windham ; and upon Iffue whcrher Parcel, the Ifluc was De vicineto Manerii de Stanfted-Hall in
Windham, and held good, and atfirra'd in Error by the Opinion of 3 Juftices, abiente Coke.
Trials per 18. Jlf a %\)\\% be alleg'd in a Manor, tlje ^Z\M\Z fljall be "DZ $^3=
Pai.s, 86. j^gi-jQ^ becaufe a S^anor is a -^ijinn; fenoiun, aim [IjaS aj certain
* Poll Rep Bmz. 6 IX 7- s'- b. 19 1>> 6. 49. ^^ m iaepoi'ts, m- 3a.
■39;. ©urJ 19. But If a -djiiio; be aiieg'd in a Manor * in u tljete tlje ODeiuie
rougi) i). fljail not be De C^anerlo gencraJlP, but from D. for tfje Cotun is
^mons, jjjoj-c tijan tlje ^anor. 6 tp. 7. 3- b. '^)> Reports, 14 Iia. Jfor tljc
Coke fa"id 03anor map ertenn into Dibers iDiils. Co. 6. Anunieii 14.
If a Thing 20. But m tljis Cafe tlje mwut map be * from tije i^^anor in D.
be alleg'd in fof fljis IS mcte certain tljan from tlje Couin gencrallt). £0p i^e-
the ju^,orcf m\:w, 14 ja. Biirmigb v. Simons. Bet Cutiaiu.
V. in D. the r j i a
Venue may be from D. generally ; but if alleg'd in a Manor without naming a Town, it muft be from
rlic Manor, quod fuit concefuim ; per Doderidge. But Doderidge faid, That where the Manor is al-
leg'd in a Town, there are no Books in the Negative that the Venue cannot be from the Manor in the
Town ; for this is more certain than from the Town generally, but that it may be from the Town ge-
nerally. And this Diverfity was agreed bv Haughton ; and fo all the Court inclin'd that the Venue
"was well awarded ; but order'd to fearch Precedents.- Mo. 851, pi. n6o. S. C. and S. P. the Venue
bcing/'row the jU^vioi- of Windham inU'lndham, it was objefted to be double, and uncertain whether it be
from the Manor or the Vill. But non allocatur, becaulc the Venue is from the Manor, and the Addi-
tion of (in Windham,) which is the Vill, is only to afcertain the Manor ; for there may be 2 Manors
of Windham, one of them in IFindham, and the other out of it, as there may be 5 Manors in one
Town.
* S.P. Co. Litt. lij. b. Trials per Pais S(J. (99) 101.(113)
j- Trials per Pais 86. (^S')
Cro. J. 139. 21. 3if a 'Cljina; be alleg'd to be done at the Caftle of Hertford in the
pi. 4. cun- County of Herttord, tjjc mwixz fijall uot bc De Diciueto tJe Ipertfom
HaT's c in Comitatu Dcrtforo, but from tlje aDicinap of tlje Caitlc of i;crt-
accor'dingiy. fov5 \\\ tijc Couutp Of ?3crtfor5 . fov n Cndle 10 as certain as aiDiU.
Trial. 1 6 1
p. 8 ja, in tljc CrcfjcqutrCljnmfccr, betiacen Coninfton and'mre^
a0jiirin;co, anO tijc JuniTuicnt rE\3Ci1cD.
£2. if a Ct3in5 (ad UDOrDS fpOkC) be aUcn;'0 to be done apud Bur- Trials per
gumde piiiYioLich, auii tljci")cnuc couicsJ fcoiii piuioutl) gcncrallp,.^'"^ ^5-
tJjts 15 ixoaQ cnoiujl), tlja' tljcDill of J^Umoutlj map ettenU fiutljcc/'"'
or not la far a0 tOc 03010110:0 -, for it luad an ancient laocouglj, as
Ijc ijinifclf ailcff'D in tijc plea, but tljcu iKjall be uitenueD to be all
one. li). 16 3!a. 15. R. betuicen hvs^di and Cazve, aOjiiOg'Q, it being
xmwo in ^mft of Juognient. ^ce p. 41 €1 15. E. betluecn
n:Ms a>id Scot, mi of Cambringe ano Cainbriose fljali be intenbco
to be one.
23. Jf a Cbinn; be allCg'tl to be none apud Villam de Cambridge in Trial, pef
NV'arda ibri, ano Jfiitc upon it, aiiti tljc Denitc iFaciajj 10 Dc viilii $ p^-is s,-.
mirtia p^i^DictiS, tbis isixooo. a3* s car. 015^ K. between Coiie(i9:,9^)
ajid Edmonds, ati)utiiTeD nt i©rtt Of Cttor upon j UDgment in Cam=
briOixe. Jntratur \p, 8 Hot. 298. Oout tljc ^uiigc^ faiD, tljat tlje
€>tatute of 21 ]ac aiDcli it. lowt ciu*re tljig.
24. if an Iftue be to be trieO of a Thing which is out of any Vill, Tnals pei;
tbe r>cnue (bail not be from tbe neareft iDill to it, but from tlje J31acc fg 't ^^'•
itfeif. 29 e. 3- II- b. aOjutig'O, ca0 it feemss it 10 to be i\v
tcnnen.)
25. But it feem^ tbat tlje @)ljeriff cutjljt to return tljc Juru from
tlje ncarea mi*
26. %W an Ejectione Firmse of 3 ^SCtC^ Of Land in Forefta de Keven- Trials pe<
non in Comitatu &c. if tljc DcfenUant plcati0 Not Guiicv, tljc ©cnuc P^'s ^5-
map be De liictncto iforcfts ; for it is a Cijing Unoton, anD bp Jw ^^5)
tentmicnt, inafmucb as tljc Dcfennant Ijas not pleaaeo it iw Slbnte=
ment, it id out of a pariOj or a3i!l. ^iclj. 6 31a. betUicen Philips
and Evans, ati)UUgeo pct Curtam \\\ tlje (£j:cbeQuer.
27. 3!f a Cljinn; be alleij 0 to be done at Sc. Peter's in the \^^ard of
Mancrofte, tljc iDcnuc iiiap bc aiuaroeti from ^t. pctcr'd rjencrailPi
for it fijall not be intcnbeo tljat tbere are more ilSarcd. ip. 13 Jfa*
15. E* betuieen ivood and Sutciitfe, pec Cohe.
28. Jf a Cijing be aUCg'D to be done in a Ward in the City of Brif- Trial, per
to], where &c. tljC i^CnilC fljall ItOt bC ftOltt tljC CitP, bUt ftom tlje P-"^ 95-
mirtJ. v9. loJa.OS.E. between Rvbmfon and Paddy, atljUt!gCOi^'°')
aiin fo tljere atiiubi-cti \\\ smni-j's cafe.
29. 3lf a Trefpais bC fUppOfCll in Warda Auftrali infra Libertatem Ci-
vitatis Lincoinite, anD tljc oDcuuc id "Dt Dicincto libcrtatid Cibitatis F'
prietiicts, it i^ iTOOO, becaufc it fljall be intenocQ tljat tlje libcrtp ann *-<, „
tljc «^aro aforelam arc all one. fi). 1 3 Iia. 05. E» betiueen Ogkthorp i ,4 ', p;
and Askc-^, abJUDS'tl ill UBtlt Of Ctror. s'c and
30. So if a '©binn; be alleg'D at Plimouth in the old Town W^ard, Judgment
tljc anemic map be from piimoutlj ffencralip, anH it id ijooti, tbo' in «'^^ «^''™''^'
tt^rtt of error, upon fuflj Sltitiijment in toe OSorouglj-Court, it be
abcrr'O tljat tljere are 3 otijer llBarDd iuitljin tije 'Boiougij. ^iclj. 7
Car. 15. l\. betuicen Buckham and Lcppcr, at!)UtIg'0.
31. Jf tijC Condition Of a RCCOgnijaUCe be to pay Money at Haxie's ^oll. Rep.
Tomb, in the Cathedral Church oF St. Peter's of York, commonly cal- |^^' P'^"^"-
led York Miniier j anD iu a gicitc ftciad upou tljtd Evecogni^aucc tljc cordin-iy ;
DefenOailt pleads that he paid it at Haxie's Tomb in the Church atore- but the
faid, in the County of the City of York ; UpOU U5l){Cb UjCJ' atC at liTllC, t:<wrt faid,
ano tbe iDenuc idauiartJCti De aDicineto CiDitatid eborum ; tijig id ple^ had
not lucU aiuaroeOi for J^orUS^mttec map be of l^orti, anDioitljin tlje been that
Countp of l^orU, anU vet not in tbe Citp. c^. 13 3a, "B. E. be= th-. Paymer.t
tlUeen ti)C iiyZ-'fJ/) ofBn/oI and Sir Stephen yrotlor aOjllUffCH. 03. i'^ was mad, .,*
3:a. 15. artcecn, becaufc tbe countp of tIjc Citp map be of larger S/yV/j^e
Crtent tban tbe CitP. cuy Jf hrk,
thi Venire ■
facias frcir, tlic Citv hsd been s^ood.- S. C. Ibid. 2S7. pi. 5. but not S. P.
T E 3-- Sa
1 62 Trial.
r.ro.J.",99- 32. So It' CtontlitlOlI of £)bliljatiOn be ro pay Money at the h\d
ji 7. Pafcb. -j^^ji^^b in the City of York, aun DcfeiiHant pleati0 Payment fc, tlje
r"^ i/""' senile from t!)c Cttp of jt^ork, is gooti ; foe tije '^omb Mm in the
Clip, fljaii be lutcnnco to be of tije €itp* ^. 13 3!a« 15. htmmi
Denton and Roberts aHjUtlffCll*
Roll Rep. ,3. Jf a Thing be alleged in D. tIjC MXVXt (Ijall ItOt be ffOm D.
;m; p'-iy- luit nc o^icineto oc D» Jfoc otljenaiie tIjc jOei^bbourljoori fljnil be
cordinH; fvciurictJ, Uiijicfj tljc? ougijt not ^^p Kcpoits, 14 :ja. i^r^M'g
iho- u,ue Cafc» 90\i% i4l'a*Cl3* bctlucrn Buikn and jarvife^ pjj; (Tunam,
cited 8 H. 5- oatst tljcre It luas amenBcu bp JBarrant of tijc Roil, Contra -SCtt
^°'"''^,- ,, 39 (£U 13* H. jBf/f rfiw'0 Ca'ie aO)«tin;eQ.
[Sec pi. 36.] -'^ " "^
Cro. J. ;99. pi 7. Pafcii. 14 Jac B. R. 3:]'DCCtt tj. tUlilIromb, S P. In Debt tlie Ve-
nire facias was tiom W. where it fhould be De Vicincto de VV. and therefoi-e the Inqaeft wn.squafh'd,
and anew Vcaire was awarded. Br. Venire facias, pl.S. cites 7 H. 4. 12. 13.
34v 3!f an Action be brOUgljt in an inferior Court in a Borough, anO
JJTuc 10 tljerc joineD, anQ a centre fiicias 10 atoartieo, duoD ©cnirc
facia0 i::. Ubci'O0 Qourpnli0 'Burgl f paroclji* De 15. Cijis 10
gocti, tljo' tijcre map be 12 'Burgcfleg of tlje QBurougb anD i^a^
rifl3, antJ not Jnfjabitants tijercot at tijc (Eimc of tije atoarD of it*
iDubitatur* IpUl* loCar* 15. K» betuieen Uvcnng and Mv-tm, m
Wxit of error upon juogmcnt m 'Baruftaplc \\\ Dei)on* 3!ntratuc
p> 10 Car* Rot* 261. asm after, upon information tljat al! pre^
ccticntgf tijcrc arc fo, tlje liuDgmntt uia0 affirm'ti. $^ic()» 13 Car»
13. K* bettyecn Kmii and Wc/hn anjiinpo accoriiinn;!?, aitn fuel)
5urin,mcnt affirm'D Jntratur p* nCar* 3aot*454* Cr*i649. be=
ttuccn Peard and Hams aD5Utiixco accorQtngli', upon 3 HBritof Cttoi:
tipon a Jiilfffnient in iRarnHa'ble, but rcners'li for otljecCaufe* 3in=
traturc^. 24 car* 15. E. Kot.jn.
Venire fa- 3 j.. ^ ^\t\\Z Uiap \it ot the Vicinage of the Suburbs of the Vill of
rr^hc'nf Ei^'^toi ' ftJttije SijcriiTmapfummonanpof tbeaDill, anti tljofearc
Bnftdi, was Of tljc 3Dtfnc Of tljc €)Uburb0> s i), s- lo. b. armrogen*
awarded
good; for they cannot exceed this Precinct. B.-. Vifne, pi. 104. cites S H. 5. 10. and Fitzii.
ijrief 892.
* S. C. cited 36. So de Vicincto de Brillol, 10 gOOU,' * COntta 8 IX
by Coke 5. 10. I1.
Ch. J. Roll.
Rep. 574. pi. 29. which fee at pi. 53. fupra.]
Cro. J. ;o-. 3-7. Jf jjfi Jffue li0 upon a Thing done in Civitate Corentrie, 01* OtljCt
fap.ro.Tnr' fitdj CitD, tlje iDciuie tie ^icineto CiUitati0i0 ffOOQ ; for it Hots not
Sc accord^ cjclutie tijc citj,'. $^p Eepcrt0, i o 3!a. Protior and Clifton atJjuDgeo*
ingiy. — <^, 7 S'n. 15. @«amc cafe aoiuopD -, for it 10 a County in icfejf, cm
Built 1 26. tlje countp map ci:tenti utto feijcrai a0tll0 rounn about tbe Citp.
rordww 38. So tie jDicineto CtDitati0 Cborunij 10 ffooQ* ^. 11%^. 15.
after much * Buckic^ cafc, pcc Curiauu
Debate and 39. But if a Cljtnp; be alleged in London, tl)? ©CUUC l|)aU b~C DC
Search of Ciliitatc, t auQ not De iiicineta Cibitatis, becaufc tijeic liberties
r\ A^ are mcil fenouin, ann confirmed bp parliament* ^p Ecports, lo
:t Fd^3. 31a* + Proihr -v. C/ifton, aDlUDgCO*
Where Vifne is laid to be at a City in an Aftion brought in a Superior Court, or within the City, iho'
it be both a City andCouniy, the Venire facias may b£ De Vicineto Civitatis. *♦ Latch. 258. Tho' it hatU
1 u„ij «^- 1 u... .1,.... ..u.^ \T — \..^ c^ ^: n. i — r\.. /">:..;-,..., i., — ; — «.,.. TT*;^:-,^** __
cmei, mjra jtiyijdictionem OT me '^iry. /\uu 10 u is, ue v icincc. v^ivinii^, ur ijc v luinci ^ or Jje (civi-
tate Coventry, Eborum, Norwich, Sarum, Briltow, Exon, and all other Cities which are Counties in
thcmfclves. In all Places befidcs London^ no Mention is made of the Pa:i£h or Ward, ^ri Ibid. 493.
Bat
Trial. 163
But in London the Parip andlf'urd is mentioned. And therefore it was adjudged |||| 2 Cro. i 50. that it was
not qocd to allege any Thing done in London generally, but it mull be in what Parifh from which a
Venue may be. But where a Thing is laid in a City, in alta Warda there, and the Venire facias is
from the City only, it is well, bccaufe it fhall be intended there be no more Wards in the lame City.
Trials per Pais 95. (106') cites *!5 5 Cro. 282.
** In Cafe of CrOliSinsn to. ii.Uinr, cites S H. 5 becaufe the Court hasPower to award it ; and it
was there faid that this Calc of S H. 5. has great Reafon in it.
•j-l" The Cafe of Proftor v. Clifton.
:^:j: This is a Miftake, no fuch Point being there ; and the Cafe is that of JEUaltCr b* ^anffUa
which fee infra, pi. 42.
nil Cro T- 150. pi. 10. Hill. 4 Jac. B. R. Normanville v. Pope. =-Cro. J. 157. pi. 14. Mich. 4,
Jac. B. R.'S. C. but not S. P.
^^Cro. E. 2S2. pi. ;. Trin. 54 Eliz. B. R. in Error of a Judgment in Allumpfit, Beaucamp Vv
Neggin.
♦ ^. C. cited Godb. 5S1. pi. 468. Arg. as held good ; for (Vicieneto) fhall imply thofe within the
Jurifdidion, and not the Neighbours. And Doderidge J. faid tljat (Vicineto) goeth about the
iVciiitf.
\ S. C. cited Arg. Godb. 3S1. pi. 46S. as adjudged accordingly.
40 [So] ifa Cijmo; Realleged in CivitateBriftoI, tljC 31)011110 nW^ Do'l^'i'^gs
lie D£ CiiJitnte osnftol gcncrnHp. ^, 3 3!n* 'B* K. ann tu tljc J-. '"""^/'^"^
CittU^ faiD tijat tljcp IjflUc icsjcral j[5ixccDcnt0 accorumglp* " Zzl coun-
fel, he
moved for Briftol to maintain it good De Vicineto ; but that it was ruled not good, but ought to be Dd
Civ irate Briftol. Godb. 3S1. in pi. 46i>. Anon.
41- 3'f ait Aftion be brought in Lyme bv the Cuftom there, an5 Jill
Jffucissto be trien tijcce, a acnire facias Dc Dicmcta ac Lpuic, is
BOOB enoiin;!), tljo' it taas obicfteo tijat it c,ctciiQ0 to tl)C jl^cigObour^
ijaoii, iDbiclj \% out of tlje liUci^Diction of tlje Court ; for tljis is tije
common Courfe Of all fuclj tnfertot Couitgi ui CuijlauQ* J9» 5 Ia»
15. R» bettiieen ^Vaiker and ivittei. pct Cuviam* I3ili. ^ Car. 05, K.
ibetuiecn * ■«««« andCrofsman^ ut i©rit Of Crtot lipon JuBgmcnt in*jo. 171
3Lanccfton nt ConmaU, ati)iilin:cti goon De Dictucto ac Laucettoui ?• 5 crote^.
nun Siuosmcnt affirnrn nccornmslin Intratuc fi^icij. 2 Car. "}[,'^J''
KOt. 161. S.'C. accord-
ingly ; for
it fhall be intended that the Liberties of Lanccflon extend out of the ViU of Lancefton. Noy
<)6. S. C. accordingly.
42. So %K. 16 31a. 15. E- inlBrit of error upon Jimgrncnt in cm. J. ';9?-
Ji!leiubern>, £)e 32)icincto De J?3cUJberr)', aojuoijcti ttooo, anu Jiit!Q;= i^l^.^;{-
nicnt affifnrn. Jintcatur IX 16 J;a. ilot 4°. betuieen M.wfack and by Vi'e Name
Walker. cf Salter
V. ©anfeil.
And the Court faid, that tho' the Corporation do not extend their furifdiftion out of the ViU, yet the
Venire facias being awarded De Vicineto de Newbury, thofe of the Town mav well be returned.
Jenlc. 553. pi. 70 So in Cafe upon an JJfumtift made at Southwurk, it wasaflij^ned for Error, thai;
the Venire facias was awarded De Vicineto de Souchwark, whereas it ou<^ht to bs from Southwark.
And cited 9 H. 5. 10. Sed non allocatur. Cro. J. 504. 505. pi i6. Mich. 16 Jac. B. R. Beckwith
V. Nott.
■
43. 'Sn an Jetton BraUgljt in Briftol in the Tolfev Court, aiiti tlje Jo- 44S. p?.
Caufc of Slction isiallcgeo to be in OSriftol, iufra3iun6ti!moncni'i:;^J'^''>>
Curt«, ann tlje a^enirc faciajs upon il5ot tjuiltp plcaneo, i$ aiuarnen rinirnou
De UBarDa omniutn ©anctorum infra Ci\)itatcni at liurisfiftiancni v. mnant,
CUrisi tl)l0 tj5 IXOOO. ^. 15 Car. 015. RMtXmVi\Ui/mhJfjtafjdThuy/hi/,^^^-Conn
prCuriam anumgcti m llBrit of error, auD tljc3^utin;mciitaffaTtieD y-Jtt.
accorninii;!!). Jntratur {p. 15 Car. Eot. 220. oaut fouie oftbCandafffrn '
3!uiigcis lam tljat it lua^ aiDcti b)) tf)e statute of 21 jac. of jeoikiis. the judg
m a
ad
ment.
44. In T'rcfpafs, the Defetidajit prcfcribed for a Foot-ivay leading from H. Mo. 6S4 pi.
Upiue viaiii pcdcjlrem ds G. &:c. Ijjtie "Xas taken upon this Prefcnption, 945 S. C.
and
164.
Trial.
«ndin al- -ind the Venire facias was_ awarded de Vicineto de H. only. After
mofl: tlie 'judi^ment it was alfigned for Error, that it iliould be de Vicineto de H.
veryftine ^^^^Q. And for that Rcafon Judgment was revers'd. Moor 257. pi.
Words. '^^^ ^^-^.^j^ ^^ ^ ^^ gjj^ Hennage^v. Curtis.
45. Eje^fment of Lands in K. and JP. the Venire facias was of K. only.
It was objecled, that it was not well awarded ; tor it ought to have teen
X)c Vicineto de K. and IV. which was granted by the Court j and that
that Defeft w-as not relieved by any Statute. And Judgment was flayed,
and a Venire facias de Novo granted. 4 Le. 85. pi. 178. Mich. 30
Eliz. in C. B. Seixtberk v. Percie.
46. T'refpafs. The Iffiie ivas, if the Manors of P. and Great H. -jjera^
holden of the Honour 0/ Ewelme, the Ven. fac. was ot one Manor only j
and therefore ruled to be ill. Cro. E. c6o. pi. 47. Mich. 33 & 34 Eliz.
in B. R. Horfeman v. Johnfon.
47. M. dcmifcd to L, by Indenture, all his Lands lying in the Parifli
oi Maxfield^ called Hampfhirc-park, Habendum for 21 Years. L. co-ve-
nants not to cut any 'Trees there grozving, alove one Cord of Wood, without
the Affent of the Lellbr. In Debt lor Breach of Covenant, it was af-
figned that the Defendant cut dczvn 20 Oaks, exceeding the Quantity of a Cord
of Weed. The Ventre facias zvas awarded de Maxjicld. It was moved in
Arrell of Judgment, that the Venire facias was ill awarded de Max-
field ■■> and that it ought to have been De Parochia de Maxfield. But
the Plaintiff had his Judgment, and the fame affirmed in a ^^'rit of Er-
ror ; and held by the whole Court, that the Venire facias was well
awa'rded. Bulft. 46. Mich. 8 Jac. in JLygfeCtttt's Cafe, cites it as a
CafeTrin. 40 Eliz. between Moriey and Lapham.
48. In Debt upon Obligation, Payment ivas pleaded apud Domtim Manfio-
nalem ReBoricc de Much-Hadham in Hertfordia, and the Venire was De
vicineto de Much-Hadham. The Court held Much-Hadham is intended
here to be a Vill, and the Reftory of Much-Hadham and Much-Had-
ham to be all one, fo the Venire good, and Trial good, and a Judg-
ment inC.B. affirm'd. Cro. E. S04. pi. 4. Hill. 43 Eliz. B. R. Ker-
chever v. Wood.
Yelv. ii6. 49- In Replevin the Defendant avcw'd, that the Place where &c. was
jdottlart'S holden of him as of his Manor of Kingfdown in Cvm. Kent. The Iffue was
Cafe, S. C. gjj fjyg Tenure, and the Venire Facias was awarded from Kingfdown. The
And'^'^e"^'^ Avowant had Judgment. It was allign'd for Error, that the Venire Fa-
Fenner' J. cias ought to have been De vicineto cf the Manor of Kingfdown alfo j_for it
the Drje'rfuy fliall be intended 2 Places, and not one, nor that the Manor is in the
is'u.here tie ^^,.^g Vill, and then the Vifne ought to be of both ; and all the Court
^TTa 5/t ^vere of that Opinion, and io reverfed the Judgment. Cro. J. 8. pi. 8.
Zrllnd'"' Pafch. I Jac. B. R. Lovelace, v. Wilcocks.
where its cf ,
aSeif/iicrv hi Gvifj ; foi' where the Avowant has only a Seigniory in Grofs, there the Vifiie fliall be
only wlierc the Land lies ; but where the Manor which is local, and which by Intendment has Kree-
Jiolders, there the Trial fhail be as well from the Manor as from the Place where the Tenure lies.
And ibid. 27. another Diverfity was taken and agreed, •u.'hcrc it appears by the Record that the Layid lies
in D. and is held of the Afamr cf D. in D. and u^here of the Jj'a?wr of D. only. For in the firft Cafe the
Vifne from D. only is fufficient, becaufe it appears that both the Land and the Manor is in D. But in
the other Cafe the Vifne niuft be from both, becaufe Non conftat that the Manor and Land lie in one
Vill ; and the Manor of D may be in S. or V. as well as in D. and therefore in the principal Cafe
Judgment was reverfed. And Precedents Ihewn accordingly.
Brownl. 100. 50. Debt upon the Statute 2 Ed. 6. for not fetting forth Tithes, and de-
S. C. and clared that he was Parfon de parva Lavar in the County of EJfex, and that
a Tranfla- ^^^ Defendant had fo many Acres of Land infra Parochiam de parva Lavar y
tion oiYtXv. fowed with Wheat, and that apud parvam Lavar aforefaid, he took and car-
—Bchtupon ried away the Wheat, without fetting forth the Tithes; upon Nil debet
-^£d^^(i"f^- pl^'^d^'^j the Plaintiff had a Verdi6t j it was objected that here was
mtfetiin" ^ Miftrial, becaufe the Venire Facias zvas do parva Lavar, when it
ought
Trial. 165
ought to be de Parochia Parvse Lavar ; but it was anfwer'd, by this Ac- forth hit
tion no Tithes are demanded nor recover'd , but the Defendant is only '7''''/w of
punilh'd lor Contempt againll the Statute in not letting forth Tithes, and p -^^'^'^
the Wrong of which the. Plaintiff complains is laid only in the Vill of*j'r"vj^ the
Parva I.avar, and not in the Parilh &c. for wherever the Parifh is named Defeiiiant
in the Decbration, it is only Conveyance to the A&ion, and not of the Pleaded tiU
Subltance of itj for the Tort and Grievance is only in Parva Lavar, ^*"-.j^^?^
and adjudg'd accordingly. Yelv. 126. Pafch. 6 Jac. B. R. Oliver v. wast^efted
Collins. that the Fe-
tiirt Facias
■was from H. parva, and not de Parochia of H. parva ; but the Court were of Opinion that it miglt
be either of the P'tll or Parifl} of H. ■pavja, becitufe both were named in the Record. And Judgment for the
Plaintiff Brownl. 52. Mich. i4jac.Bawlcey v. filed. Hob. 21S. pi. 285. I5aU)trej' l3» 3ilt"0
S C. but S. P. does not appear.
51. Cafe Sec. for that the Mityor ^c. of L. in the County of Cornwall, Bulft. 45.
ivere feiftd in Fee of 7, JVater-MiUs in L. pr£d'' 8<.c. and fo prefcrib'd to have ^^- ^y.
a IVater-courfe running from H. in thePariflo of L. aforefaid to the faid Mtlls Lys'kerrit's
&c. ani that the Dejendant at L. dforefaid\ between H. and the faid Mills, Cafe.
diggd a 'trench, and diverted the Water-coarfe ^c. Upon Not Guilty, ic
was found for the Plaintiff It was moved, that the Venue being from
the Vill of L, was ill, and that it Ihould be from the Pariih of L. for
the Water-courfe is alleg'd to run from H. in the Parifh of L. and the
Stopping is between H. and the Mills. Sed non allocatur, becaufe the
Parijh of L. and the T'own of L. are intended to be all one ; and H. is only a.
Lieu Conus, and no Vill by Intendment, and adjudg'd for the Plaintiff
Cro. J. 263. pi. 27. Mich. 8 Jac. B. R. Wray v. V^elper.
- -52. In Dower the Demand was De tertia parte manerii de D. and alfo jNels. Abv.
De tertia parte terrarnm in H. The Venire Facias was of H. only. At- 407- pl- 24-
teraVerdi£t for the Demandant it was affign'd for Error, becaufe the ?"^j," ***'^"
Venire Facias ought to have been De manerio, and not of H. But it ^i^ ^^^ ^^^
was moved On the other Side that it was good for the 3d Part of the ferveitto be
Lands in H. and the Verdict having found that the Husband was feifed f»-
of the Manor of D. it was likewife good for the Whole. Godbolt, 25-7,
pi. 354. Pafch. 12 Jac. B. R. Wrotefly v. Cavendilli.
'53, The Plaintiff: declares, that fuch a Day and Year, at Ctirdworth in
the faid County', he demifed to the Plaintiff 2 Acres of Land, with the
Appurtenances, in the Parijh ofC. and. the Venire Facias was c^'the Parijh
ofC, And after VerdiQ:, Exception was taken, becaufe it was not of
Curdworth ; but it was adjudg'd good by the Court. Brownl. 130.
Mich. 12 jac. Arden's Cafe.
54. Caft in nature of Confpiracy, in indicting the Plaintiff of Felony
fuppofed to be done at IFeJl-Brmwiidge at Cawcott-Hills. The Indi^mem
was preferred at Stafford at the Affiles, and the Jury found Ignoramus ;
aud the Ven. Facias was awarded De Stafford, and held good ; for the
Defendant did not only there prefer his Bill againfl him, but did there
aMb take a falfe Oath againll the Plaintiii'. 2 Bulft. 331. Hill. 12 Jac,
Hercott v. Underbill.
55. Debt upon the Statute 2 Ed. 6. for not fetting forth Tithes. The ; Nels.Abr.
Plaintiff' made a Title by Leafe to him of the Reifory of E. in Kingjion upon 4;:<5 p' 2^-
Hull; and that the Dejendant occupied 30 Acres of Land in S. in Kingflon, a^'^j^-^w
in a Place call'd T. the Tithes whereof belonged to him &:c. Upon Nil debet ^^ \.^^ Mif_
pleaded, the Plaintiff had a Verdift. But it was moved that here was a trial, but I
Miltrial, becaufe the Venire Facias was awarded from E. when it do not ob-
lliould be from S. where the Tithes did erow. Brownl. 76. Cooper v. f^'T,^ ''^^5
T, o ' *^ in Brownl.
Bacon. .^
56. Trefpafs, and counted that he was feifed of the Manor ofD. in R.
and L. and prefcribed to have KJlrays i and that an Ox coming into the
Manor as an EJlray at L. the Defendant feifed him. Defendant pkaded
U u Not
i66 Trial
Not Guilty. The Venire Facias was awarded out of L. only, and it
was objetted it ought to be of the Manor of R. or from both R. and L.
But non allocatur, becaufe the Trefpafs was alleged to be done there^
and the Prefcnptioii did not come in qitejliou. Cro. J. 513. pi. 25. Mich.
16 Jac. B. R. Dalton v. Barnard.
57. In Replevin for taking a Dijlrefs at Bai/don, in a Place there calPd
S. Defendant viade Contifance as Bailiff to JV. H. becaufe the Hottfe was
held of him as of his Manor of Baildon. Plaintiff replied Hors de fon Fee.
The Venire Facias was Dc vicincto rf Baildon. After a Verdict it was
objected, that it ought to have been as v/ell of the Manor as of the
Town ; but adjudg'd for the Plaintilf, becaufe it did not appear that the
Manor was larger than the Town. Hob. 305. pi. 386. Trin. 18 Jac. Steed
V. Harley.
58. Replevin for taking his Cattle at S. in the Pari fJy of C. The Defen-
dant j///?///>r/ (75 in his Freehold Damage feaf ant. The Plaintiff faid, he
had Title oi Common in the Place where, as to his Tenement belonging,
ty a Prefcription, Jffiic yfus join d upon the Prcfcription. The Venire F'a-
cias was Irom C. only, and not from S. where the Place of taking was,
as it ought to have been. It was the Opinion of the Court, that it was
a Miftrial, and a Venire Facias de novo was awarded. But it was faid,
that if the Venire Facias had been of the Parifh of C. or it had been al-
leged in the Bar that the Land was in C. prjedifta, then C. the Vil-
lage, and C. the Parifh, had been intended to be both one ; but not
being fo alleg'd, it may well be intended that they be feveral. Cro.
J. 675, 676. pi. 10. Mich. 21 Jac. C. B. Sir Williiun Tharold v.
Spight.
The Report 59- In Cafe the Plaintiff fets forth .^ that he was Steward of the Manors
is as here, of K. and other the Manors of the Bilhop of G. and that the Defendant
but it feems (jijluyj/d jgim in the Court of the Manor of K. &c. Upon Not Guilty it
ckaJlyTe- '^^^ found for the Plaintiff! It was objected that here was a Miftrial,
ported. the Difturbance being alleg'd to be in the Court of K. and fo in the
other Manors where no Vills are, and the Trial being of the Vifne of
the Manors, whereas it ought to be of the Vills where the Manors are.
But the Court held, that becaufe fome of the Manors are alleg'd to be
within thofe Vills, and the Venue being of thofe Manors, it Ihall be
good by the Statute, tho' it be of fjwer or more Places than it ought to
be. Cro. C. 16. pi. 8. Mich, i Car. in C. B. apud Reading, Cook v.
Younger.
60. In EjeSiment the Plaintiff declared on a Demife of a Hotife &c. in
D. Upon Not Guilty pleaded, the Plaintiff fuggejled that the Parijh of
D. is in Rnmney, within the Cinque-Ports &;c. and that A. is the next Vil-
lage &c. Whereupon a Venire Facias was awarded De viceneto de A.
and found for the Plaintiff. It was aflign'd for Error, that the Venire
Facias was not well awarded, for the Suggeftion ought to have been
chat D. is within the Cinque- Ports, and not that the Parilh of D. is
■within them ; for D. may be a Vill of itfelf But the Court held, that
the Vill and Parip arc intended all one., unlefs the contrary appear, and lb
no Error, and judgment affirm'd. Cro. Car. 150. pi. 4. Hill. 4 Car.
B.R. Bach V. Gilbert,
(H. b) Per
Trial. 167
(H.b) Per Pals. Vifiic. Out of what Place it fhall comeseccB.y
in the lame Countj. In ReJpeSi of the Ijjue, ^^'^■^
t. TjR Falfe Impnfonment for Imprifonnient in D. if t\yZ Defendant Fai4x Tn,prU
\^ juftifies in S. by Force of a Warrant in a Franchife in S. gj^jj /<""»«»* of aa
tljC OtIjCr nllCr0 l)i<Sl©r(t, ann fO tijC Iirue taken -upon the Imprifonment l^^f^^'lrr
in D. ti)€ mmz fljall come from D. onlp* 42 m. ?♦ The Defen.
duiit jtiftifes
.hy a lf'.irrant upon a Capias outer C. B. diredcd to the Sheriff of Suffolk, maae at Bury Sec The //::.
fue was, Defon tort deimfite ; a Ven. Fac was awarded Dc vicineto de W. only. It was infilted that the
rc):t'.e oKiht to ha-ze been from Bury nr.d If', and not from one of them only. And of that Opinion was the
whole Court. Cro. J. 95. pi 22. Mich. 5 Jac. B. R. Sturges v. Judkin.
2» Jf il Suit be in the Ecclellaftical Court for Tithe 'of the Manor of Godb. 20;.
Lumingcon, which extends into Stangrave and 3 other Parifhes, and p'—gi. S.C,
lays a Modus Decimandi in one Parifh only, fCiUcet, in Srangrave, for to[°Cyf ^"
all the Manor, upon which they are at Ilfue, tljC 3I)eittlC {Ijilll IJC ftOm
S)tann;caiic m\h ann not Dc aDicmcto a^nncrii i for ijcrc tijc Citr=
torn i^ firco to tljc i^artfij of Staitsra^c* (^idj* n 3!a» 05. bctioccii
Norton and Ltjler atl)lHigcD»
3* %\ iin Miction of Xrefpafs of Battery in London, if DcftltDant Trials peji
julHfies in Middlefex, by Procefs out ot the new Marllial's Court at Pais, S5.
Whitehall, that he arrelted him, and becaufe he would not go with ^9^)
him he beat him &c. without that he was guilty at London, or elfe-
where, out of the Jurifdiftion of the faid Court, tO lUijiCl) tljC l,?Jailt'
tilf repllCD, nntJ COnfCf^'O tljC arrea, but tbat Ije De injuria fua pro-
pria, ablque tali Caafa, beat him * apud London, UpOlT lUljiClj tljCP ^XZ rv^A.^'H
at Iflite ; tl)i0 fljall be tn'co m lonnoii; for tlje mmm abrqtic tali *f°' ^^i-
Caufa arc l)OiD, tijc Wwt bcmn; loutcri upon a 131acc certain, fciUcet, ^^^>'^^.
lonbon* Il)iII i i Car. 03. K. between Cobb and Rrosnpp. per €\X'-
riam abjuBceD, in miit of error upon a lurisment in Ooanl^ upon
fucO a:):r5i(t, anb tw noiu affirm'b. Intratur. 13. n Car. Kot.
311. I5ut tijc Court faib tijat ije mfo:l)t ijabe bemurr'b upon ttjiss
plea.
4. Where Debt is brought in L. and the Defendant pleads the Covenants
performed in S. Vifnefliall be ofS. Br. Vifne, pi. 19. cites 44 E. 3. 42.
5. In Covenant^ the Defendant faid tt was made upon Condition at another Otherwife it:
P/ace^ and the Plaintiff' faid that it was made Jimply where the Writ is |^ '^^ ^^^
brought ; and Pais was awarded where the W'^ric was brought, and gj^" ^'"f"
where the Plaintiff" counted. Br. Vifne, pi. 22. cites 45 E. 3. 15. jonmenTat^
niiother
Place ; for then Pais fliouldbe where the Imprifonment was alleged. Ibid.
6. It was refolved, that when an IfTue is joined upon Non concefJit,
it Ihall be tried where the Land is; But if a Leafe be in J^nejfion^ and
Non conccjjit is pleaded to it^ it Ihall be tried where the Leale was made.
Godb. 233. pi. 322. Mich, ii Jac. in C. B. Bagnall v. Pott.
7. RefcoHs in A. of Goods difi rained for Rent upon a Demifc in 3 F/Z/j, i Salk. 209.
viz,. A. B. and C. the Venue is well where the Refcous was , for tho' the P'- '„ ^- ^•
Demife, Rent, Dillrefs &c. were in IfTue an the Trial, and ought to be ff^^ appear*^
proved, yet the /iw/ap.'z/ ^-^^/r in Queftion, for which this Action was —LutH-.2i;.
brought, was the Refcous, which was at A. and from thence the Venue S. C. fays it
came well enough. And Judaiment was given for the Plaintiff. Lord wasobjec^ted
Raym. Rep. 170. Hill. 8 & 9 W. 3. C. B. Bellalis v. Burbriche. Sno Ve-
nue l.iid
■where the Refcous was triads ; but it was anfwer'd, and fo agreed fer Cur. that there was fuilicfent
..MK-gauoii
i68 Trial^ _^^_
Alleeation of its being made at A. tor it v. as fuici that the Grain was impounded in a Barn Parcel of tlie
demiicd PieniifTes, ard that the Dcfer.dants at A. afcrefaid, refciied it out of the faid Barn, fo that the
fdid Bjrn fhall be ii tended to be at A. for otherwife 'hey could not refcue the Grain at A. out of the
faid Barn. It was further objefted, that tho'- the Veiue be admitted to be laid at A. yet it is not
«rood ■ for that it ought to come from the three fe'veral Vills where the Lands lay. But it was refolv^
that the Venue is well laid ; for this JUion is funded upn a 'Tort and vot upon the Right of the Lavd, and
the Deniife is only an Inducement to the Jcfion; and the Tort is the Principal Matter and therefore the
Vennefhall be laid where the Tort is done. And afterwards in Hill. Term Judgment was given for
the Plaintiff.
'^' Jfidehitatus Jjfimif/itfcr $ol. Money lent. 'The Defendant /(/W^
Injancy ; the Plaintiff replies that the Mcney lent was laid out Jor Necef-
faries ioi the Defendant and his Family. But becaufe the Plaintiff' had
laid the Venue where the Money was lefit, and ftct where the Necejfaries
werebou^hf-, Judgment was 'given againlt him. Comb. 482, 483. Trin.
10 W. 3. B.R. Ellis V. Ellis.
iSalk.-So. 9. On ^nhididment for not returning a J tijiice's Warrant, the Venue
S.C. but need only come from the Place where the Negleif was, without Regard
S.P. does towhere the VV^arrant was made, or executed. Per 3 Jult. 2 Ld. Raym.
not appear. ^^^ ^^^^ ^j.j^_ ^ ^^^^ r^^^ q^e^n V. Wyatt.
(H. b. z) frbere the Lcjjid is.
Ti] 4*TJ0 Affife Tenant pleads a Releafe dated in other Vill in the
X fame County, it fljall bC ttlCD bp tljC i^flllC* 50 (£, 3. i. ft.
Trials per [2] 5- But in Trelpals Ut Olte JDtH, It a Releale be pleaded, dated
Pais, icj. in other Vill in the fame County, which is denied, (t fljnU HOt bC tClCU
C116, 117) Dp tljE M\ ti3|)crc i\)t CrefpafiS m^ aone onip, but bpbotlj* jo
[3] 6* Jm Debt for Rent upon a Leafe of Land m D. 11)0 JllTUC i|S,
whether it be paid in S. in the fame County ; tl)!0 fljall bC ttiCD III D»
U)f)erc tljc WxM 10 brougljt, anD not iD!)ere tije ipapmcnt iis, 46 €.
3. 1, b* ,
[4] 7* Jn a I^ormedon, Defendant pleads a Releafe dated in D. "STO
t»J)IClj tlje Plaintift" pleads Imprifonment at S. <Wq\^ fljall HOt bC ttieU
luDere tljc lanti isj, but toljcre tl)e 2niprifonment 10 allegco, 22
C*3. i6*
[5] 8» 3!n Aifife, If it be pleaded that Parcel of the Land is in a
Franchife, atlD tljC other fays that all is in Guildablei tt)i!3 (l)aU bS
trico bp tlje aiTifc* 3 o aiT* 1 3 » Co* JLitt* 1 25* b.
[6J 9. %W Affife in a Franchife, if tt)C Tenant fays that the Land is
out of the Franchife, it fljall bC ttieU bj? tlje Affife* 3 1 M* 9-
►j,, jj jj "y. Debt upon a Leafe for Tears, the Defendant alleged in Bar that
feems'.fhould Gree was made at another Place^und prayed Pais there, and yet Vifne was
be 45 E. 3. awarded where the Land was, and not where the Gree made was al-
j.a. pi. 9. leged. Q^uodnota. Br. Vifne, pi. 20. cites 45 E. 3. 3.
8. Forcible Entry in the Manor of D. The Defendant faid that A. was
feifed, and gave to B. and C. his Feme, and to the Defendant, and to the
Heirs of the Body of the Baron 5 and the Baron and Feme died^ and the Plain-
tiff claimed by Deed of the Baron &c. and it was challeng'd for the Vifne,
becaufe he did not fay in what Vill the Manor was. Et non allocatur i
for it ftiall be where the Manor is, Br. Vifne, pi. ^o. cites 19 H.
6. 99.
(Lb) trial.
Trial 169
^I. b) Trial. In what Cafes a Trial hi one Tjjiie fhall
bhjd the fame Party in other IJjice upon the fame Matter.
1 . T B Affife, If ttjC lS)artiC0 are at Jfllte upon a Deed, and after upon
J^ other Aftion are at luue upon the fame Deed, tljC %lid\ tit t|)6
ama njaii tiiirn tijc \f>mm tn tije otijct action. 1 2 jp, 4. s. b.
2. 3in Debt aganlt 2 by feveral Praecipes, (f one pleads a Releafe, jT"^'^'^ P"^' ^
and they are at llfue upon the Dee 1, and the other pleads the fame Plea, "*'* ^^ ^^''
if it be foitno tlje Deen of tljc plaintiff iit tljc ficft 31ffue, tljiss fljall
biiiD ijini in tlje cQ Jiffiic. 12 ii). 4. 8. b.^
3- 3if a ^an'JC found guilty of a Provilion in a Quare Impedit, tt)tfll
fljall binb bun in Prsmunire aixainft bim fou it. 1 1 i)> 4. 78. b.
4. 3^n Trefpafs, if tbe DcfenOant pleads Villeinage in the Plaintiff, Trials pc-
upon mbicb tbcp are at Siffnc, anb tOis i^ founD affainft t&e Deftn- Pais, 25. ]
tant, tbtd (ball binb tbe Defcnbant in tbe fame JlTue bepenbing; in c^o
otbet action in tbe fame Court between tDe fame ll^artieis. 44 9C;
5. abjubgcb.
5* jf a ^anbe found guilty of a Confpiracy upon an Indictment at Trials per
the Suit of the King, pet tijisi fljaU uot binb bim in a t©rit of Can= ^^'^^5
fpiracp at the Suit ot the Party, but bc mai? pleab JI5ot gitiltp to it. '•^'^
27aff. 13-
6. 31f aS^an be attaint at the Suit of one Party, t^lSi f^aU notgtiebe
bim at the Suit of another of the fame Matter j for tljC IDCtbiCt map bC
falfe. 27aff.57*
7. 3if a ^an be indited for taking 8 Marks fj-om one J. S. by Ex-
tortion, anil tbe Defendant be put in Grace of the King, and makes a
Fine, anb after J- S. fues a Bill againft him of the fame Extortion, tbe t • ■
Dcfcnbant cannot pleab iElot gutltp tbercto, inafmucb aci Ijc ijas ac= pa^^^^L)
fenotuleotjeb it at tbe ©uit of tlje ming; ; for tljis is (tronjjer tban a
Jfinbino; bp iDerbict. 27 aiT. 57- bp Siijarbe.
(K. b) Trial. In what Cafes a Trial againft one Jloall he
againfi others.
i. T T (£ U)t)0 ijS not Party to an IfTue, cannot have Attaint or Chal- Trials per
Xa lenge tO tlje JnqUett, nor Ihall be bound bp tDC Crtal. n ^, f^'^ ^5-
4. 30. b. ^"^
2. Jn Trefpafs againft 2, aitH one pleads a Releafe, Upon tDfjiClj i\^t'^ Trials per
are at Jfltie, and the other Defendant juftifies as Servant to him, anO ^'^'525. (22)
tljep are at JflUe upon tlje fame piea, if tbe Jffue be founo ao;ainlt rf^'lV";^
tlje Spatter, pet tbisi fljall not concUibe tbe ^erbant, becaufc be can= one Defen.
not babe attaint tljereiipon, nor cballenge tbe3]nqueft. 1 1 1). 4. 30. dant pleads
a Releafe
to himfelf (which in Law extends to both) and the other pleads Not guilty (which extends but to him-
felf) or if one pleads a Plea, which excufes himrelf only, and the other pleads another Plea which goes
to the whole ; if that which goes to the whole be found, the other Defendant fhall take Advantage
thereof, becaufc in a perfonal Aaion the Difcharge of the one is the Difchargc of both. Co. Lit:<
125. b.
3. Cbe fame JLatO l^all be upon Trial againft the Mafter, by Procefs
againft VVitnelles. iij^«4. 30. b.
X X 4. ^0
I JO
Trial.
Br. hftop- 4. g)i3 \Xi\\ Trefpais againlt 2, one jullifies becaufe the PlaintiiF is his
pel, pi 62. ^'iiiein, ailU tljC other jultifies as Servant to him tor the fame Caufe; tf
BTTikir it be fotttm aijamft tDe^i^aftec, tW ftaU not btnn tljc ^cdjantfor tlje
pi.25. cite,s Ciiureafoi-efaiD* Contra n l)*^ 3°- ft*
£. c
S. p. Br. Eftoppel, pi. 6 1. cites S H. 4. i:.
" 5. !Jf a Releafe be pleaded by two feveral Tenants at diverfe Times^
and fo feveral iifues, it it be founB ntjau^ff onc, j?ct it fijall not binu tije
otijcr, becaitfe ije tua^ not ll^aiti) to tlje Crial» 1 1 1). 4- 3°- b.
6. Con [piracy againfi two ; the one appeared and ■pleaded Not guilty^ and
the other made Default^ and he who pleaded ivas found guilty with the other,
*Orig. (Et) * who made Default^ and good, and the Plaintiti' recover'd ; and yet
this Verdicl ihail not bind the other who made Defliult, and one alone
Cannot confpire. Br. VerdiO:, pi. 88. cites 24 E. 3. 73.
7. The hciimlentpall be e/opp'd by Plea tried againjl his Patron. Br.
Eftoppel, pi. 72. cites 38 E. 3. 31.
8. In Plea Real., as in Praecipe., brought as Heir to his Father, againff
2, it the one pleads a Plea which extends bur to himfelf, and the other
fleixds a Plea which extends to both^ as Bajiardy in the Demandant, and it
is found for him, yet the other I/iue fhall be tried ; for he Ihall not take
Advantage of thePlea of the other, becaufe one Joinienant may lofe
his Part by Mifpiea. Co. Litt. 125. b.
(L. b) Trials. .At luhat Time it fhall be tried.
* Cro. C. i. Tif a ^an be indifted of Extortion before the Juflices of Peace at
J[ their Seliions, anO t\}t Defendant the fame Seffions traverfes it,
pet be cannot be conipetin to txv it tlje fame SclTions. MM 1 1 Cat*
05. E. * Brnnfden's Cale, aBjiiDs'D III UStit of (gttot upon fuclj
Crial, anu Jfifffnicnt aoantll ijtm at tijc €)C{rion0 at @)arnm, anD
by the Name j-jjg juosment tcHcrftn accorDiiiglD, pec totam Curiam -, for a^an
fffaD-^cafe tismiot be reatiD to anftucr 09nttcr0 UJljiclj fljali be upon tlje fuimen
and of this ' oU)cctcn attainrt Ijiuu Cr. 13 Car. 03. R. Bamabie's cafe, ati=
Opinion jiitig'Di anti an Jnbiftment agatntt Ijer in Lontion at tSe €?efrions=
v/ereaiithe f^oiifc, fot beuig a ^coio, tcijcrftn accorbinalp. S^. 16 Car,
ti°e'''part7 '^^ H. + Fridean^s Cafc, a Jubcuient upon ijubietnient for poifon^
ought to ins 3.^. before tlje Jufticc.s of }©cftininilcr, reuerfeD per Curiam*
liaveacon-
vej^ient Time to provide for Trial. But where one was indicted at Newgate Seffions for ingrof-
fin?, which was removed by Certiorari i:ito B. R. E.'iception was taken that the Trial was ill, becaufe
it was tried at the fame Seilions that lie was indicted ; led non Allocatur ; for it is ufiial and the com-
mon Courfe to try it at the fame Time that the Party is indifted, elpecially as this Cafe is, beinp; at the
Gaol Delivery, and the Party in Prifon ; and cites 9 H. S. Kelloway 159. That Trial before Juilices
of Gaol Delivery may be the fame Day. Cro C. 514 pi. 6. Trin. 9 Car. B. R. ^^cnu's Cafe, Jo.
520. pi. 4. the Siting li. ^tn ^>. C. but S P. does not appear. So where one was indiiSed of Bar-
ratry, and Judgment given againlt him, it was alTign'd for Error, that upon the Indiftment, Procefs
being awarded, he appear 'd gratis at the following Aflifes, and pleaded Not guilty ; And then a Venire
Facias was awarded returnable tlie fame Aflifes, and was thereupon then tried and found guilty. That
this Venire facias was milawardcd to m.ike it returnable at the lame Affiles, where it oupjitto have
been returnable at the next Affiles, fo as there ought to have been 15 Days betwixt the Tefte of the
Writ and the Day of the Return, and not to have been made returnable the fame Day, fed non Allo-
catur ; for it is the common Courfe throughout all England. And as Rolls, who moved it, laid, That
true it is, when he is in the Gaol fuch a Trial may be the fame Affifes ; but not fo when the Party is at
large and comes in gratis. But the Court faid, it is all one ; and the Trial good as well in the one Cafe
asin theother: And fo it is here a good Trial. Cro. C. 940 pi 4. Hill. 9 Car. B.R. Chapman's Caii.
Jenk. 517. pi. 18. Jo. ;-9 pi. 10 Hill. 11 Car the ^llig li. ^LsmfirilC, which was an Iiididt-
ment againfta Sheriff's Bailifi for Extortion, and reverfedbecaule JulHccs of Peace cannot try one, whrt
is indiaed, the lame Day that he is indicted. And fecms to be fame Cafe v. i:h that of Brunldcn.
• The
4;8.
pi. 9.
i.e.
argu'd
Hill.
1 1 Car.
BR.
Ibid.
pi. 2C
.. S. C.
— ^.-».. .-. . ... , ^j^.,^.^^^^ -,/:■.■, ■■^■r-
Trial. 171
. The Court of Scjfions may try the fame Seflion when KTue is join'd, if there he an Jdjoiirnment, fo that
there riuxy he i 5 Days for the Retinji of the f'enire ; Per Hole Ch. J. Quod nota. Comb. 23 5. Hill. 5 W.
& M. in B. R. the Queen v. Jones.
2. Jultices of Oyer and Terminer CiUmOt iltClUirC OtlC DflW, ailU the Trials per
fameDav determine, ItO tltOrC tljait JUftlCe.S Of \pCi\ZZ $C» ^ 16 lit Juf-f^^. ^6-
tices of Gaol-Delivery, and lUfttCCjS in Eyre, iDCii UlilP f C» I^CllOUiaP Sif ,> u
p. 9 1% 8. 159- U» iJP all tdc liimiccgi* contra €. 4 :jnait. 164. " e. ajelfu
Parttum,
they may. Sid. 99.
3. Jf a ^an be indifted of Felony before the Juftices of Peace, * fljC
Indices of l^aicc cannot procceD to W Delibecancc at tljc fame Day
that he is arraign'd. 22 €» 4- COUOnC, 44- HCClaceD UD al! tIjC JiUf tvC^^
t(cc0of(£nslanQtobcobfcmriasiaLaiu» " Pais, 26
C22)
4. Jf an Indiftment 1)C taken in B. R. or in the fame County where See pi. i. and
the B. R. lits, and this removed into B. R. t})C DefCnDant Uiap bCttiCD the Notes
upon tIjc fame Day tljat Ijc \^ anatgn'B i bccaufe tfjc Court of i^ing'iai %''"':
is>t\\i\), for ail fDffcncciS m tlje famcCounti) UJljcte it fits, 10 aCourt pTir''
of Cpre* 3|). 1 1 Car. 05, E. BnmfdaCs cafe, Ijelo ano fain to be (22) '
tlje common Courfe.
5. But if an Jimiftment be tafeen in another County tljan tuljere
tljc 15. E. fits, ano it is removed into B. R. tljetc ougljt to be 1$
Dai'S bctluccu tlje Slrraiiinment anD tlje Crial, bccaufe m fuel) Cafe
tlje Court IS not ut i^aturc of an Cj^re, IpilU 1 1 Car. 15, E.
Britufden's Cafe, ijclD auo faiD to be tlje common Courfe.
6. Jn an 3rtian of Debt upon 2 obligations, if tt)C Detendant pleads If there be
to one Not his Deed, and to the other that it is void by the Statute of ^ Demurrer
23 H. 6. upon tDljiCl) tlje Plaintiff demurs, and takes Iflue upon the firlt f°'- Pt"". J""^
Piea, tlje 3flrue map be trico before tlje 99atter in lato octermineD. part "L"''
l)\\\* 37 CI. 15. per Curiam, auo tljcrc fain to be before aojuDgen moreorde.iy
in 15. E. ^.°"'-'"« '^ '»
give Judg-
ment upon the Demurer firft ; but yet it is in the Difcretion of the Court to try -the IfTue firft, if they will.
Co. Litt. -2. a.— S.P. Co. Litt. 125. b.— S. P. Urifthe Declaration be againll two Defendants, and one
demurs and the other takes Iflue^tlic Court fh.ill determine which they ple.;fe firll ; for in bothCafcs
there are two Illuc;, the one in Law and tiie other in F"a£t, each of wiiich is independant of the other;
fince wherever there is a Demurrer, quoad that Pcrlbn or Fa6t it is an Admittance. Gilb. Hift. of
C.B. 5,-.
In Action upon the Cafe for Words (and in all other Aftions.) If tjie Defendant demurs upon one
Part of the W'ord.s and pleads to Illue upon other P.irt of the Words, it has been a great Qucftioti
much deb.ued, whctlier the Judt;es fliall give Judgment prefcntly upon the Part that is demurr'd to, or
whether they fhall lluy till the llTue be tried for the other Part ; tor they have uied iLraetimes one Way
and fometimes tlie other Way. But in the Principal Cife at the Bar the Judges gave Judgment
upon the Demurrer, becaufe as Doderidge faid this is the belt Way, inafmuch as when t!ic liTue after-
vards comes to be tried the Jury may affel? the Damages having Kefpeiil to all the Matter Lat. 4,
Trin. 2 Car. Anon.^ See (,^i. h) \\. 16.
T. Jn ^Vrit of Entry againit 2, tljeV atC at JITUC, autl at Nil! Prius
one makes Default, Ct)e Snciucft fljail \iZ tahcu acainft tljc otljer mv
tncriiateli' ■■> tl)0' if at tlje j^cttt Cape return'U asamft tlje otijer, tlje
S)emanbant IjolDS Ijini to tl)e Default, ano tije Deiendant laves the
Default, all tlje«9rit fijall abate, fa tljat tljis 3lm]ueft is taken De b^ne
eife ; for tljep Ijabe fetjeral ^oieties to lofe. 1 2 1), e. 6. b. 7:
8. an AlFiie of Novel Dilfeilin CaunOt be tal-tCU by Parcels. 17 C.
3. 48^ 19 air. 14. 21 Slff. 21,
9- 3in Alhfe againll: diverfe, if tlje Writ be ferved againft all except
one, tbe aiTife fljall not be taken, becaufe it is inconvenient to matie
tlje Jnquett to babe £):i^, ana to be imtljout Dap. 12 1% 6. 7-
10. iXl Trefpals againit diverfe who plead to Illue, and at the Return
of the Inquelt one makes Default, tlje Juqueil Hjall nOt tC talteu
asatnll tlje otljcr. 121^,67.
1 1- In
iy2 Trial.
II Jtl J^'is Ucruiii i^L iVlortdain-eltor, where diverle Summons arie
in the w ric bv [i^Icti iino IproccOs tiic 3iurp or tOe ^Mz map tic tahctt
bv Parcels, i)a\)ni!j ccsavu to tlje niuecle ^'umniong luljiclj are in
jLim of mucrtc £DnQ;tna!0 i but tlje Eccorn fljall make Mention of
ttjc €;elicrancc of tlje i^lea. 1 7 €♦ 3. 4S. 72.
12. 3f tl)C Parol demurs by Protettion lor one Tenant, J)0t tIjC 31lirp
fijall be auiarbcb acatnft tljcotljerg upon tlje fame ©ripiaU for tljtis
^cVicvancc appcatj5 bv tijeEccotD, 17 C» 3- 4^-
13. But III a Juris Lcrum againlt diverfe, who are rumrrion'd and ef-
foin'd, and alter make Detauit, tl)c 3urp fljall iiot be atoarUeti flgainft
tlje one OUlP lUltljCUt tljC OtljCr, becaiUe tljC Original is intire, and no
Severance is alter, n C 3- 47- b» ^ajllDg'tl 7^ b;
14. 3n Allife ot'Novel Dilleilin CamiOt bC tal^CH by Parcels. 17 (^,
3. 48. 19 air. I.U 21 air* 21. 28 aif. 42- atijuDs'o.
15. As in affifC, If tlje Tenant pleads Jointenancy with a Strahgef;
by Deed tor Parcel, ard plCaDjS lor the Relidue to the Affife, aiHi t^g
Plaintiff avers him iole Tenant by the Statute ; tlje SUTife fljall l!ap fOr
tlje luljole bp tljis J^lca of Jotntcuancp, bccaiKe it fljall not be taken bp
iparcci0» 19 an* H- 21 air. 2 1. 22 m, 7-
16. So in SITlfe by two, if tljC "^Tenant pleads the Releafe of one in
Bar againft Ijiin, and againll the other pleads to the Affife, and Wit-
neflls are named in the Deed, bp tUljiClj [^Can0j It CanUOt bC ttiCtl
fmmeniatclp, ann tljercfore tlje otijcr lifliie fljall not be noai trieU, but
all fljall be aoiournti* 20 aiT. 29. anjittipii*
17. So in an Slirife bp ttilO, if tlje '2Cenant pleads againfl one his Re^
leafe in Bar, dated in a iorei2,n County, tlje Slfflfc fljall be aUjOUtneD
for all, becaufe it fljall not be trico bp parcel^, 28 m. 42.
atijutigcri*
Quxre 18. In fome Cafes an Affife may be taken at diverfe feveral Times.
•where this ^» q^^ . a^f^^ ^^
Towip'^piMs ^9- As m Strife againft two, ailtl one takes the intire Tenancy and
are to be pleads in Bar, and the other prays in Aid of the King, if tl)0 Plaintiff
found; for I fays that he who pleads in Bar is the Tenant, and not the other &c.
havefearch'd ^jjg ^jf^jj-g (^jjjjj jjg j-^-^j.^^ (q mqn(vc tDijiclj of tljcm ijs -^Ceiiant, aim if
t^ono"!»ur It be founo tljat Ije uiljo praps ut aio ijs '2Cenant, be fljall babe ^io.
pore. - But (3it feems tbc l©rit oiigijt to abate for sl9ifprifon of tlje Ccnant,)
fee pi. 14,1 5 ann tfte afi'ifc fljall be taken at anotljer time* 15 €♦ 4. giL 33-
i;. above. ^.o. [So] Jn airife Of Mortdanceltor, if tljC Tenant vouches, and
the Demandant counterpleads the Voucher nOUJ tlje Sfflfe fljall bc
taken, ann if it be lound lor the Tenant ije lijnll babe IjiiS ©oiicljct,
ann tlje aiTifc fljall be taken acain $c> 15 €♦ 4* Slff". 3 3.
21. So if Leliee vouches him in ReverJion who counterpleads the
Place ; tbisi fljall be trien bp tlje aflife, ann uiljen it is founn $ c. tljen
|)e fljall plean, ann tbe ^Mt fljall be taken again* 15 C 4 ^fl"* 33.
22. So If an Aid or Receipt be counterpleaded, aiin tlje ^fllft takCH
ann founn, bp mbicbtije am or Eeceipt is granten, tlje afl'ife map
be ta^n again upon tljel^leaning* 15 e* 4- SMTos
23. Where one is committed jor ieing a notorious Owler and Smtigler^
he muft be tried within fMo 7m?is after his Commitment, otherwile he
muft be difchargcd by the Habeas Corpus Aft, 8 Mod. 5. Mich. 7 Geo.
The King v. Walter.
(M.b)
Trial. 173
(M. b) At what Time. Where Dlverfe Jffnes are to
be tried, ffhkhpall hcfrfi tried,
I. T jf tljCrC tXZ two Iflues and one will make an End of the whole, if SP. by fcTe-
\ it be lound, and the other [will] not, tljlS 0U5l)t tO I)e fttft tCieD "'> '^''f-
toljicl) m\ mafce an eito of tljc mm. n ]|). 4 ^s. 1 3 1)» 4- 36. £ Anions
perfbnal. Br.
Trials, pi. f. cites 9H. 6. 46- Br. Deux plees, pi. 4. cites S C. Br. Barre, pL 7. cites S.C. .
S. P. And as to the other, the Entry fliall be Quod Proccffus refpeftuatur till the other Iffue te t.ied^
Br. Trials, pi. 4S. cites 15 E. 4. 25. 27. per Brian. Br Trefpals, pi. 165. cites S. C.
2. As in Aflife againft two, tf they take feveral Tenancies, and plead
fevenil Pleas, and Demandant takes the one tor his Tenant, it OUOiljt tO
ije lira iiiqutr'H of tljc CcnaitCD, before Jnciuic}) of tlje otljcr j^lcas,
tjccaurc If It DC fount! tijat ijc 10 not Ccnant tljc Wx\x fljnll niiatc, anD
It fljaU not be niquir'D of tlje otljec JgJiea, 1 1 1). 4. 68. 1 2 1)* 6. i.
3. So \X^ Sfllfe, if tljc Tenant fays that there is not any Tenant
named m tl)e aiTlfe, anO tf found that there be &c. it OUffflt t'O be fitll
inqiiir'O of tlje Tenancy bcfocc it fljaU be incjuit'O of tlje @cifin oc
Diffcifm, for tlje Caufe aforefaiti. 1 1 Ip. 4. 68.
4- 3in an Oyer and Terminer againlt two, iftljC one pleads Not
guilty, and the other pleads the Releafe of the Plaintitf, tllC COUtt
map aiuaro tlje General 3iirue firft to be trieu ■■, for if be be founo
<©uiltp, tlje plaintiff map ijaue Jiuognient aijainff Ijim, ano fljall te^
iinquiflj aijaintt tbc otljer* 31 ^ff* 4- aoiuogeo* .
5. If in Trefpafs againll two, tljC one pleads a Releafe made to him- r^A.^O
felt, and the other Not guilty i Ot plCaOjS a PlCa tUljidj excufes him- ,*5^!^^ .
felf, and * the other pleads a Plea which goes to the whole ; tbi0 l^lca Tmlsp^r
ttljiclj BoejS to tlje l©bole n)all be firll inquir'O, becaufe if it be founO Pais, as.
It fljall make an €nD oftbe toijole; for S)ati!3faction maoe bp one (/,i)^-—
Iball be fiifftctent for botlj» 9 0* 6. 46- b» fz.^iZ'
in Perfon.il Aiftions the Difcharge of one is the Diicharge of both, S. P. per Pigot. Br. Trials pL
48. cires 1 5 E. 5. 25. 2-.
So in Tiei'pafs againft two, if the ove pleacii Not guilty, and the ether pleads Releafe of all AHhrs, and
each is at Ifue, and federal I'er.ire Fucias's a'U.arded retinvalile at a Day, and the Jury of Not puilty appear
and the ether Jury rot; the Inquell of the IlTue of >sot guihy fhall not be taken till the other Ifiue
which goes to all be tried. Br. Trials, pi. 48. cites i 5 E. 4 2 j. 27. per Fairfax and Clioke — Br.Trefpals
pi. 165. cites S. C. ■ But if the cm comes and pleads a Plea ivhidi does not .ro to all, to fjfue, and Venire
Facias is awarded, and after the other ccnies andpleads a Plea, which goes to all ; yet the firit lifue fliall be
tried becaufe the Pleas were pleaded at diverfe Days, hut (f'they had ^o pleaded at one and the fame Day,
there the Iffue which went to all fnould be firft tried. Br. Trials, pi 4S. cites i 5E. 4. 25. 2- .
6. So in '^TrerpafsS againft 2, tf one pleads villeinage, and the other In Trerp.-<js
a Reieaie, tljc Kclcafc fl)aU be ficft trieo, becaufe It «oc2i to tbc loijole, "y"/' f •
tljo' tljc Dillcinacc tccncljegi to tbe Eealtp, ana tljeotijcc to tljc jLi^e^L'jw! «
foualtp* Contra 39 €. 3- 16. b* abjutigcD* /;. //v.v,
and tlic
ether pra\s Jid of the King by Fee Farm, it was faid, and not denied, that where Realty and Perf naliy are
to he tried, the Realty Jhall befrjl tried. Brooke makes a ^ii£re ; for it feems the Plea to the VV rit ihall
be firft tried ; for this goes to abate the whole Writ. Br. Trials, pi. 14 cites 45 £. 3. i.
7. Jn an Action againft 2, tf one pleads to the A£tion, and the other S. P. Br.
in Abatement of the Writ, tljc pica tu abatement fljaU be firft trieo, oi rJ!!?"'
bccaufc tf it be foiinO, all tlje J©rtt (ball abate, i s e. s- 23. b* ;h 6. ^6—
Br. Trials,
pi. I. cites S.C. and 44 E. ^ and 21 H. 6. atid 15 E. 4. S. P. Per Nele. Br Trials, pi. 43.
cites I 5 E. 4. 25. S. P. Co. Litr. 125. b. S. P. For the Plaiinilf eight not to recover upon a
falle Writ. Trials per Puis 27. 28. (24)
Yy &
1 74 Trial.
So in Recaption apainfl ttvo, if the one fle.it's to the It tit, and the other in Bay, die I-'lca in Bar fliall be
fiift tiied ; tor thib fliall make an End of all. Br. Trials, pi. 159. cites 11 £.3. and Finh. He-
caption %.
So in Confpiiujcy nirainft tmo, tlie one fkfldeA tit tIeU rit, and the ether to theJciion, and the Pica to the
Writ was iirit tned. Quod nota bene. Br Trials, pi. i;7. cites 14H. 6. 25.
>So in Debt mrp.infi iiio Executors, if the one fleads to the Writ, and the other in Bar, the Bar fhall not
be tried till the Plea to the Writ be tried ; for thi.s goes to the Writ for both, and fpecial Entry fhall
be made thereof in the Roll accordingly. Br.Trial, pi. 41. cites Zl H.6. 4. —Br. Brief, pi. 180.
cites S. C. Br. Refponder, pi. 20. cites S. C.
8. IJflBnt of Error bC DrOUgljt againft Recoveror, and Scire facias
againlt Tercenant, flntl Recoveror pleads Mifnofmer ot "the Plaintiff;
ttji0 fljall hz tricu before tlje Court fijall proceen to e,ranune tljc €r=
rorjs againft tljcCertenant* 9 t>* 6* 47*
Trials per 9* Ju Real Actions brOlltjljt againlt 2, if one pleads in Ear for his
Pais 28. ^Z5) Moiecv, and the other pleatJjS a Plea which goes to the whole (I'U ItfC'if)
asBaitardv, oc fiici) Iii^e, It 153 iiot material tDljtci) of tljem isflrft
trieU, becaufe !je tljat plcaD^ in 'Bar fljail not \mt anp aotiantaffc of
tlje l31ea of tljc otijcr, if Ije be fotnitJ 'Baffarn ; for one Jointenant
maplofeiji0C?9oict))bpi}t^^irplcatim0* glxe.^e.h. Contra is
5i)« 6. 28. b*
S P Rr 10* Jn a Quare Imped it againft a Vicar, and the Patron anil tlje Vi-
Enqucit, pi. car pleads that tljC XBUt OCCS nOt IlC agaiUft IjiUI, anU tljat he has not
So. cites 26 diiiurbed tijc plaintiff, nnQ tljc l^laintiff joins Wit ixtitl) Urn tljat
vir'h Tn 1)^ 5ilti) btftlirDCn Ijim, ann the Patron pleads his Title, Upon WbiCi)
Jcl\ - tl)e»> arc at ItTiie alfo i tlje JtTue of tbe Ditturbanec fljall not be tneo
Br. Trials, tttrtije otijet Ifliie upon tlje EiiTljt of tljc aobouifon be trietJ ; for tljisi
pi. 192. cites ii^^p ijg foimn nijnmfl tijc l^laintnT, nno tOen tlje Diilurbance fljalt
*• ^ - not be tneu at all. 26 (C. 3- 59- b» aujubgeD.
Br. Brief, II. In JJfife of Roit agdiiijl tivo, it the ofie as 'TeH-XHt of Parcel of the
pi. 265. cites Land out of -which the Reut arifes pleads hlors de fan Fee &:c. Judgment if
^- ^- without Specialty &c. And the other, as 'Tenant of the rej}, pleads An-
cient Demefne of the Land out of which &c. this Plea Ihall be firft tried by
Affife ; for if it be ibund, all the W'rit lliall abate ; for it was pleaded to
the Writ. Quod nota. Br. Trials, pi. 64. cites 9 AIT 9.
Br. Avowry, 12. In Replevin againjl fxo, if the one makes Default, or pleads that
f\. Ill c\Ki ]^e p-,'ijl pas, and the other avcd's, the Avowry ftall be firft tried, and
t\ ^: ?„ ^"'^ ihall make an End of all. Br. Trials, pi. 139. cites 11 E. 3. and Fitzh.
Fitzh. Re- T, ■ 1 r J-' 3
caption 5. Recaption 5.
Br Affife ^3- ^^'here A^fe is brought againfl Difjeifor and Tenant, and the Dif-
pl. 166. cites feifor pleads to the Writ, the Plaintiff' pall he put to anj'werto it by Award,
S C. and the Tenant frail anfhiccr alfo\, and if they are at Ili'ue, the Plea of the
Br. Brief, pi. Diffeilor Ihall be firlt tried, and this found Ihall abate all the Writ. Br.
267. cues .j.^.^^^^ p^ gg ^j^^g J , ^jj- ^
' ' 14. \n iAoxx.di'iSiizQ^ox by federal Summons'' s, if the o«^ pleads a Matter^
danceftor' '^'^^ ^^ Other vouches one, who enters, and vouches another, which two
pi. 50. cites Vouchees are at IHue, this Ilfue Ihall be tried by Inqueft before the other
S. C. Iflue, and fiiall not be tried by the Alhfe ; tor neither the Demandant
or the Tenant is Party, but the two Vouchees. Br. Trials, pi. 71. cites
17 Air 9.
15. In Trefpafs againft fever al, where one appears, and pleads that the
Plaintiff ought to have had two Writs, and demurs in Law upon th.e Writ,
and another prays Aid of a Stranger ; upon which they are adjourn'd, and
at the Day he who prayed Aid has the Aid, and ivho demurred makes De-
yi?ff/f, the Plaintiff Ihall not have Judgment againft him who made De-
fault, till the other ^Matter be tried, nor fliall not haveDiftrefs Ad au-
diwidum Judicium ; for the Realty, Icil. the Aid Prayer tor Eftate of
Inheritance ihall be firft tried belbre the Perfonalty ; Per Knivct Jutt.
^ „ . Quod nota. By which the other hud Idem dies. Br. Judgment, pi.
nemsmil- 126. CKCS * 45 E. 3- 13.
quoted. , 16. If
Trial.
175
16. It a Man pkaJs to the biquejf for Parcel^ and demurs for the rejl^ the S. P. in
Inquelt lliall uoc betaken till the JJemurrer be adjudged. Br. Enqueft, Xr^If^^*'
pi. 93. cites 2 R. 2. and Fitzh. Enqueft 2. by Rm£'
of the Da-
ni.-!ges ; Per Finch and Belk. But Fulchorp contra ia Tiefpufs. Br. Difcoiitinuance de Proccfs, pi. jS,
cites !> E. 5. 15.- .See (L. b) pi. (5.
17. It was adjudged in I'refpafs againjl 3, who pleaded ISFot guilty, that
\? at the Ni/i Prius one makes Default^ and the other fays nothing, and the
■3,d pleads Arbitremeiit after the lajl Continuance, xh^ Inqueji pall betaken
againji the 2 /fr/?, and againfl the '>,d they record his Plea ^ and alter the
Plea was adjudged infafficient, by which Nil! Prius was granted againft
him who appeared ; and found for the Plaintiff, and he recovered againft
all, and tliofe Damages toftand tor all. Br. Enqueft, pi. 72. cites 26 H. 6.
and Fitzh. Enqueft 16.
i8. Forger de Fails againjl 3. The one made Default, 2 appeared, and
the one pleaded the Death of the third, ivho did not come, at D. in another
County, bcjore the IVrit purchafed ; and the other pleaded Not Guilty, and
Venire Facias ijfued upon both. And alter the Plaintiff pray''d fjuo Ntfi
Prius's upon thofe two Iffiies, and triable in two Counties. Per Moyle, he
may have both ^ but it the Iluie of the Death be tried, then the other
IlFue is void, tho' it be tried alio. But per Prifot, the Plea of the Death
goes to the N\'rit, and therefore the other Ihall have thereof Advantage.
.^tiiere of feveral Pleas to the yliiion-^ and therefore here the one may
make an End of all, and theretbre this Ihall be firft tried, and if it be
tbund againft the Defendant, then the other Plea fhall be tried for the
other ; but if it be found tor the Defendant who pleaded the Death, the
Writ Ihall abate in all i by which Niji Prius was awarded only of the
County where the Death is alleged. Br. Deux Plees, pi. 20 cites 37 H.
6. 37- .
19. urefpafs againjl three, who pleaded Gift, and the Plaintiff tra- Br. Deusf
'verfed it, and fo to Iffue, and Venire Facias returned, and Procefs continued Pjees, pi. 4S.
to the Dijlrefs, and at the Day the Plaintiff and the Jury appea/d, and^^l^-^
two of the Defendants made Default, and the Court recorded the Default, joines ^pl
and the third appeared in Perfon, and pleaded Concord, and the Execution 20. cites
thereof. And the Plaintiff pray d the Inquejl by Default againfi the other S. C. — Br.
two who made Default, tiotwithjianding the lafi Plea goes to all. But per ^"l^e'ls, pj,
Pigot, as here, where the fury appears, the firft IlTue ought to be tried i s'^C— Br
for otherwife it Ihall be dilcontinued ; for Continuance cannot be made Trefpafs, pi.
as here, becaufe two of the Defendants made Default. And per Nele, '^? cite;.
as here, the Jury ought to be taken by Default, and fo it was; quod ^-^'
nota. Jnd in the fame Cafe, tol. 27. there the Jury pafs\ifor the Plain-
tiff, and there Judgment was given for the Plaintitt' againft him who
was convifted, and ceffet Executio till the other IJfue was tried ; by which
the Plaintiff releafed his Suit againft the other immediately, and had
Execution , quod nota. Br. Trials, pk 48. cites 15 E. 4. 25. 27.
20. In Trefpafs againft two, if the one pleads Not guilty, and at the SoofUtlard;-
Dijrrefs the Jury appear, and the other Defendant pleads F-scommunicdtion ry pleaded ly
tn the Plaintiff after the lajl Continuance, there the Jury Ihall be rcfpitcd *'f'"' >>>
till the Excommunication be tried. Br. Trials, pi. 48. cites 15 £.4. 'aLr'tlThn
2.S. 27. Per Choke and Littleton. Continuance;
. for thofe ga
to the Perfin. Br. Trials, pi. 4S. cites 1 5 E. 4.. 25. 27. -Br. Trefp.ifi, pi. 16 j cites S C,
21. in Trefpafs againji two, and the one pleads Not Guilty, and the
other prays Aid of a Stranger, Venire Facias upon the firft Iffue fhall iffue
immediately, and fhall not attend the Aid ; for it is only to maintain
the Iffue in Trefpafs, And 18 E. 4. Ibl. 10. Summons ad Auxiliand'
was
176 Trial.
was firft awarded, and after Ven. Fac. and this in C. B. Contra in B.R.
Br. Ven. Fac. pi. 33. (bis.)
s!p['^^ ^ (N. b) Trial. At what Time. Where diverfe IfTues
are taken. Which Ihall be firft tried.
I- T JI3 Affife of Rent againft 2, ff one fays Ne unques Seiil, and the
Jl^ other Hors de fon Fee, Judgment, if without Specialty $Ct UpOlt
MjtClj Demandant Ihews a Specialty of him who pleads Hors de fon
Fee, and he denies it, tIjC SUfifC fljilU be fiCtt taheit UpOU tljC DCCH*
18 m 7-
See cab) (]s[. b. 2) Trial at BiW. h ijchal Cafes.
1. TF one of the Jufikes of the Benches, or a Majler in Chancery is con-
\_ cernd, it is good Caufe for Trial at the Bar, be the Value what it
will. Sid. 407. pi. 19. Hill. 20 & 21 Car. 2. B. R. Morton v. Hop-
kins and Spencer.
2 A Trial at Bar was denied, becaufe xhtCoJis ivere not paid apm other
trials which went againji her in other Courts, which the Court here would
take Notice of Vent. 64. Hill. 21 & 22 Car. 2. B. R. Lady Balting-
lals's Cafe.
3. It was moved to have a Trial at Bar, in an JndiBment of Perjury^
and for fome further Time, urging that it was the King's Cafe. The
Ch. J. faid, The King was no otherwife concern'd in it than in Main-
tenance of the common Juftice of the Realm. It was ufually the Sub-
jeft's Intereft, and his Profecution, and therefore muft not deviate from
the Courfe in Civil Caufes, and not to be refembled with Caufes where-
in the King is concern'd in Point of Interelt. Vent. 74. Pafch. 22 Car.
2. B. R. Anon.
4. A Motion for a Trial at Bar was cppofed on 19 Car. 2. cap. . le-
caiife the Copies of the Declaration in EjeCinicnt "were not paid for. Sed non
allocatur J for if the Declarations filed be paid for, as they were, they
need not pay lor the Copies, which are but as a Letter; and a Trial at
Bar was granted. 2 Keb. 805. pi. 60. Trin. 23 Car. 2. B. R. Aihmore
V. Edg.
5. A Caufe cannot be tried at Bar where the ABion is laid in London,
by reafon of their Charter. 2 Salk. 644. pi. i. Pafch. 5 W. &M. B. R.
Anon.
On a Mo- 6, Where there is Faltie or Difficulty, the Court is bound of common
tion for a Right to grant Trials at the Bar. Inqnijttiones de groffts & phiriLus Arti-
Trial at Bar, (uHs, qua magna indigeant Kxaminatione capiantur coram Jiifiiciariis de
^illd^To^» ^^»"^- Per Holt Ch. J. yet Trin. i Ann. it was 'denied, becaufe the
two RmiI's, Plaintiff was * poor, unlefs the Defendant would agree to take Nili_
That they Prius Cofts. Et poltea, fcil. Trin. 4 Ann. B. R. between the Truftees of
never ^ra«t j^^p jLaDp ^anQiDicl) fluD ui? loro S)annu)icl), tho' the Eitate was
merelf^ the 3°°° ^- P^^ ^""' ^ "^^ '^"^ '^^ ^'^^ ^^* denied, becaufe the Title ot
Confelttence'' chc Lcflor of the Plaiiitiif being from the Delendant himfclf, there
viOuld
Trial. 177
would be nothing to do biit to prove the executing of a Conveyance. 2 Salk. of '^^ Cauj'e^
648. pi. 19. Trin. 11 W. 3. B. R. Ld. Sandwich's Cafe. though kh,,
great a lvalue;
ror ever for the Length of Examination, where it is of a iiery fniall Value. And in EjeHKcnts the Rule has
been 7iot to allow them, tut inhere the yearly Value of tie Land in qiieflion is loo 1. The Court faid like-
wife, that a General Sweai-ino; of the Length of a Caufe, tho' there is Value too, will not be fufficienr,
unlefs there is a probable Foundation laid for them to believe it. i Barnard. Rep. in B. R. 141. Hill.
z Geo. 2. 172S. Goodright v. Wood.
* By Favour of Court one may have a Trial at Bar, tho' he fue in Forma Pauperis. 12 Mod. 31SJ
Itlich. u W. 5 Sherwin 7. Sir Walter Clarges.
7. When it does appear to the Court that a Suit is vexatious, they
will not grant a Trial at Bar in Ejeffment, without naming a fufficient
Plaintiff. 12 Mod. 318. Mich, ii W. 3. Sherwin v. Sir VV^altet
Clarges.
8. The Defendant being of good Reputation, and riding in the King's
"Guards, he was taken by the Hundred for a Robbery on the 40th Day,
and it being fear'd he fhould be too violently profecuted, that the Hun-
dred might difcharge themfelves by his Conviclion, a Trial at Bar was
'moved lor. And per Holt, It has been ufed to grant Trials at Bar in
'like Cafes ; but there being no Bill found, he faid they could make no
Rule ; but if there had been a Bill, he faid then it might be re-
moved by Certiorari &c. 12 Mod. 331. Mich. 11 W. 3. King r.
Thomfon.
9 Upon a Scire Facias brought againft A. for his Place of Clerk of
the Crown in B. R and lifue join'd, A. moved that the IlTue might be
tried at the Bar. The Attorney-General oppofed it. But the Court
faid a Trial at Bar was never denied to any Officer of the Court, nor hard-
ly to any (Gentleman at the Ear; and tho' Mr. Attorney was never bound
to confent to a Trial by Nili Prius in the Queen's Cale, yet they did not
fee how he could refufe a Trial at Bar, where it was reafonable to try it
there ; lor the Scat. Weft. 2. cap. 3. is attermixiencur, that they may be
determined there, qu« magna indigeanr Examinatione. aSalk. 651. pi,
30. Hill. 2 Ann. B. R. Sir Samuel Aftry's Cafe.
10. A Trial at Bar was denied in a Borough Caufe, and for the very
Reafon of its being a Borough Caufe ; tho' it was Ihewn by fome Affida-
vits, that Freehold to the Value of 1000 1. might come in queltion. 8
Mod. 210. Hill. 10 Geo. The King v. the Mayor of Whitchurch.
11. Upon an Indi^iiiient for forging an Jndcrfenieiit of a Note of 800/.
the Attorney-General moved that it might be tried at Bar the next
Term ; but becaufe it was not carried on by Diredion cf the Crown, thii
the King's Name be made ufe of, the Court helitated. But Probyn J. faid.
That this was a Forgery of a Note of Hand, and concern'd Publick
Credit in general, and therefore he did not know but the Confequence
of this Caie might make it fomething diftinguiihable from others. How-
ever the Motion was afterzvards granted upon the Attorney's faying, that
he hadjince got the King's Command to carry on this Profecution. Barnard.
Rep. in B. R. 88. Mich. 2 Geo. 2. The King v. Hales.
12. A 2d Rule cannot be made for a Trial at Bar between the fame * On Motion
Parties in the fame Term, nor can it be in an * ijfuable Term. Arg. Gibb. '^'' ^ "f"'^'
267. pi. 12. Pafch. 4 Geo. 2. B. R. in Cafe of Cantillon v. Ld. Mont- Term To'
gomery. it was an if-
fuable one.
The Court faid, that Ld. Chancellor had declared to them, That if the Court could no\ difpenfe aiih
their Rule againjl trying Caiifes at the Bar in an ijfuahle'ferni, he muft and would decree the lllue acainlt
the Defendant pro ConfefTo; and upon that they faid they would difpenfc witii it ; which they ascord-
IJr did. I Barnard. Rep. in B. R. 570. Mich. 4 Geo. 2 v. the Earl of Ferrars.
13. In Eje£lment it was moved for a Trial at Bar the fame Term, upon
Suggeftion that the Defendant would be intitlcd to Privilege the next Term ;
and it being objected, that it is not ufual to be granted the fame Term in
2; z. v.hich
lyS
Trial.
which the Motion is made, the Court doubted, and order'd Precedent^
to be fearch'd. But the Earl afterwards appear'ci in Court, and agreed by
Writing under his Hand to -waive bis Privilege j and thereupon a Rule was
granted tor a Trial at Bar the next Term. Rep. of Pra6t. in C. B. 66.
Mich. 4 Geo. 2. Edwards v. the Earl ci' Warwick,
* S. P. for 14- An Iflue our of Chancery being to be tried at the Bar this Term,
until liVue Lord Chancellor directed that the Plaintiff' and Defendant both fhould
joln'd, there jjj^,^ ^j^j^ Coiirt^ that the Iffiie might be changed^ and tried in a feign'd
anv'vcnire -'^(tion, which the Parties accordingly did. But the Court faid, that it
regularly was againji their Rules to allvjo a Trial at Ear to be moved for * before Iffue
iiiade. zL. join'd. Accordingly they refufed the Motion. 2 Barnard. Rep. in B. R.
P.K. z. 258. j2_y. Pafch. 5 Geo. 2. Lomax v. Holden.
15. Where an IJJiie out tf Chancery is directed to be tried at the Bar,
this Court of £. R. "will put no Terms upon the Parties^ as to Payment of
Bar Cofls^ or receiving cf JSfiJi Prins ones, or put any Terms upon the Par-
ties at all i the Ch. J. and Judge Lee abient. 2 Barnard. Rep. in B. R.
146. Pafch. 5 Geo. 2. Lomax v. Holdtin.
16. A Motion for a Trial at Bar, the Ad ion ht'ing for Crimi nal Conver-
fation, t\iQ Damages being laid in the Declaration to a large Sum of Money^
and a great Number of Witnejfes to be examined ; the Court granted a Rule
to ihewCaufe, which was afterwards made abfolute. Rep. of Pratt, in
C. B, 103. Trin. 7 & 8 Geo, 2. Hill, Efq; v. J cileries, Elquir?.
(N. b, 3) Trial at Bar. Bfy a Jury ofivh^t Coiwty.
•A
Trial was had at the Exchequer Bar, upton an IfTue, whether a
^ j^ Recovery of Lands in Berkfhire -was had by Covin, or upon true
T'ltle; If the Iflue had been only as to the Covin, it feems it ought to be
by a Jury oi Middlefex ; but being both as to the Covin and the true
Title (in which lalt Cafe it could not be by Covin) a Trial by a Jury
of Berks, where the Land lay, was good enough. See Cro. J. 315.
Mich. 10 Jac. B. R. Kirby v. Hanfaker.
(N. b, 4) Of TlitNgs done at Sea, or Part at Sea, a /id
Fart at Laud, 'where the Trial lliall be, and How.
I. T F a Man be (iricken upon the High Sea, and dies of the fame Stroke
_!_ upon the Land ; this cannot be inquired of by the Common Law,
becaufe no Vifne can come from the Place where the Stroke was given
(tho' it were within the Sea pertaining to the Realm of England, and
within the Liegance ot the King) becaufe it is not within any of the
Counties of the Realm i neither can the Adriiiral hear and determine
this Murder, becaufe tho' the Stroke was within his Jurifdi£tion, yet the
Death was Infra Corpus Comitatus, wiiereof he cannot inquire ^ Nei-
ther is it within the Statute of 28 H. 8. becaufe the Murder was not com-
mitted on the Sea. But by the A£t of 13 R. 2. the Conftable and Mar-
Ihal may hear and determine the fame, slnft. 48.
2. \i S 12. W. 'i.. cap. 7. S. 1. Enafts, that all Piracies, Felonies, and
Robberies committed upon the Sea, or lu any Haven, River, Creek, or Place
where the Admirals have Jurifdiftion, may be determined in any Place at
Seaj or upon Lend, in any of his Majefifs Dominions , Forts, or Faffories,
to
Trial. 1 79
'to be appointed by the King's Commijfion under the Great Seal, or the Seal of
the Jdmirsdry, dirccied to any of the Admirals ^c. And alfo to any f tic h
Perfons as his Majejly pall appoint , "xhicb CommiJJioners pall heme Fewer,
by Warrant under the Hand and Seal of them^ cr any one of them^ to commit
to Cujlody any fuch Offender charg'd upon Oath, and to call a Court cf Ad-
miralty, as Occafion Jhall require ; "which Court pall conftft of 7 Perjcns at
leaf.
S. 2. Iffo I'l.iny of the Perfons cannot conveniently be a/fembled, any 3 of
them (whereof the Preffdent or Chief of fome Englifh Fa (f cry, or the Governor
cr Lieutenant Governor, or Member of his Majejly's Councils in any of the
Plantations, or Commander of one of his Majejlys Ships, is to be one) pall
have PcjDer to call any other Perfons to make up the N'mnbcr cf 7.
S. 3. Prcjided that no Perfons but known Merchants, Falfors, or Planters,
or Captains, Lieutenants, or Warrant Officers, in any of his Majcfty's Ships
cfWar, cr Captains, Majlers or Matts cffoms Englip Ship, pall be capable
cf fitting and voting in the f aid Court.
S. 4. Such Perfons called as aforefaid, may proceed according to the Courfe
cfthe Admiralty, to ijfue Warrants Jor bringing any Perfons accufed before
them to be tried, and to fummon and examine Witnejfes, and do all Ifhings
vecejjary for the Hearing and final Determination of any Cafe of Piracy, Rob-
bery, and Felony, and give Sentence of Death, and aivard Execution, accord-
ing to the Civil Law and the Rules of the Admiralty. And every Perfonfo
conviifed and attainted of Piracy or Robbery, pall ft (fer fuch Lofes of Lands
and Goods, as if they had been attainted and convi^ed according to the Statute
28 //. 8. cap. 15.
S. 5. So foon as any Court [hall be affemblcd, the Kings Commiffion fiall
be read, and the Court p?all be proclaimed, and then the Prcjident of the
Court jtall take an Oath there directed, impartially to try the Prifoner, And
then he Jhall adminijler the fame to the reft of the Court':, and thereupon the
Prifoners poall be brought, and the Regtjicr poall read the Articles wherein
the Fads jhall be particularly fet forth; whcrcupn the Prifoners pall imme-
diately plead Guilty or Not guilty, or elfe it pall be taken as conjeped. And
if he plead N^ot guilty, Witne£es pall be produced by the Regiper^ and fworn
and examined in the Prifoner s Prefence ; and after a Witntfs has given his
Evidence, the Prifoner may have him crofs-examined ; and the Prifoner may
bring JWitneffes in his own Defeitce ; and after the Prifoner pall be heard for
hinifilf: Which being done, the Pfifoner pall be taken away, and all other
Perfons, except the Reg'fler, pall withdraw ; and then the Court poall con-
fider of the Evidence, and give judgment. And Execution may thereupon be
a\s;arded, by Warrant diretied to a Provoji Marfhal.
S. 6. Some Pnblick Notary fhall be Regifter, and for Want of a Perfon fc
qualified, the Prejident fhall appoint andfwear a Regtjler, who pall prepare
all Warrants and Articles, and provide all 'Things requijite for any Trial, ac-
cording to the fiibftantial and ePential Parts of Proceedings in a Court of Ad-
miralty, in the moft fmnraary Way, and pall take Minutes, and tranfmit
the fame, with the Copies of all Articles and Judgments, unto the High
Court of Admiralty of England.
3. zGeo.2. zi. If Perfons are felonioujly Stricken cr Poifvned on the Sea,
cr any where out of England, and die in England, or jhall be Stricken or
Poifoned in England, and die on the Seu, an InditJment found by Jurors
if the County in England, in which fuch Death, Stroke or Poifoning jhall rc-
jpeifively happen, whether it be found before any Coroner, upon Ficzj of fuch
dead Body, or before Jujiices of Peace, or other jitji ices, who jhall have Au-
thority to inquire of Murder, fhall be as effedual, as well againp the Princi-
pals as the Acceffaries, as if fuch Stroke, or Poifuing, and Death, and the
Off'ence of fuch Accefftries had happened in the fame County. And every fuch
Offender pall have the like Defences (except Challenges for the Hundred) as
if fuch Stroke, or Poiihning, and Death, and the Opence cfjltch Accefjariis,
had happened in the fame County where fuch Indidmcnt pall be found.
/N, b. =^>
•i8o • Trial.
"(N. b. 5) Of Offences committed in Parts heytnd the Seas.
fFhere the Trial fhall be.
I. z6 H. 8. 13. r D ^Reafon committed out of this Re aim ^ pall he inquired
I 0/ /« [iteh County, and lefore fuch Perfons as the King
fo all appoint by CommiJ/ion ; and upon e'very Indt&ment and Prefentment Jo
found and certified into the King's Bench, like Prccefs and other Ctrciimjlance
Jhall be there had and made againjl the Offender, as if fuch 7'reafon had been
found to have been committed within the Realm, jilfo all Prccefs of Outlawry
ivithin the Realm agatnfi fuch Offender (being refiant out of the Realm at the
I'lme of the Outlawry pronounced) fhall be as good in Law as if fuch 0£ender
had been refident within the Realm at the 'Time of the Prccefs awarded^ and
fuch Outlawry pronounced.
So if A. pjies 2. li 2 ot the King's SuhjeBs go oi'er into a foreign Realm, and fight there,
Kit mortal and the «;<? kills the other, this Murder being done out of the Realm,
ionieji ''Cctr. <^^n"°'^ ^e for Want of Trial heard and determined by the Common Law,
try., B. coves t>ut it may be heard and determined bejore the Conjlable and Marjhat. 3
into E7!glr.nd,\i\i}i. j^%.
and dies ;
tliis cannot be tried by the Common Law, becaufe tlie Stroke wa^ given there, where no Vifne can
comei but the fame fliall be heard and determined before of Conltablc and Marflial. 3 Inft. 48.
The De- 3. A Queftion Was, if 2. Treafon is committed in France, or elfewhere,
fendant was out of the Realm, if it be triable now by 35 H. 8. cap. 2. becaufe by
indicted ot ^^xq Statute I &2iM. cap. 10. Trials of Treafons are to be had and ufed
ibtf for'"' according to the Courfe of the Common Law, and not othervvife. It
raifing a feems that this is no Repeal of 35 H. 8. cap. 2. lince Treafons commit-
Jlebelihti in ted out of the Realm could not be tried by the Courfe of Common Law;
Carolina ;« f^ ^^.^^^ ^■^^^ Statute enlarged the Power of Trial here in this Point. D.
uZTbZ, 131. b. 132. pi. IS. Trin. 2 &3 P. & M. Anon.
and acquit-
ted. Vent. 549. Trin. 32 Car. 2. B. R. Colepeper's Cafe.
Co. Litt. 4. If a Peer of Ireland commits Treafon in Ireland ly open Rebellion, he
161. b. cites fliall not be arraigned and put to his Trial in England for this Olfence,
f ^ hafin either by 26 PI. 8. 13. 32 H. 8. 4. 35 H. 8. 2. or 5 E. 6. 11. Per
sir^olm " Wray, Dyer, and Gerard Attorney General, becaufe he cannot have
^trot'4 his Trial here by his Peers, nor by a Jury ot 12, he being a Subjefl; of
Cafe, in 34 Ireland, and not of England. Audit was faid to be the Ufage there to
Ehz. this attaint a Peer by Parliament, and not Per Pares. D. 360, b. pi. 6.
tert^de'niedVMich. 19 & 20 Eliz. Anon.
and Sir
Chriftophcr Wray himfclf (who is fuppofed to give his Opinion in that Cafe) protefted that he never
gave any fuch Opinion, bnt did hold the contrary.
In the Cafe of the Lord Macguire, an hip Peer^ who was indiBed in MidJlefex for High Treafon, '
for levying iFar againft the King in frehvid, he pleaded to the Indiftment that he was one of the Peers
and Lords of Parliament in Ireland ; and demanded Judgment if hefhould be arraigned in England for
aTreaibn committed in Ireland, whereby he fhould lofe the Benefit of Trial by his Peers, but it tvas
refolvcd, l ft. That for a Treafon in Ireland a Man may be tried here in England, by the Statute of 5 5
H. S. for ilis a Treafon committed out of the Realm. 2dly. That altho' Macguire, if tried in Ireland for
his Treafon fhould have had his Trial by his Peers, as one of the Lords in Parliament, which he
cannot have here, but muft be tried by a common Jury, yet that altered not the Cafe. He was there-
fore fut upon his Trial by a Middlefex Jury, and was convifted, and had Judgment, and was executed.
H. 20 Car. I. B. R. So that the Opinion ;o Eliz. Dy. 360. b. was ruled no Law. H. Hift. PLC. 155.
cites Co. Litt. 261.
A»
Trial. 1 8 1
5. An Irilliman committed divers I'reafo/is in Ireland^ and tlie Queltion S. C. cited
was, whether he, being no Baron or Peer, might be tried in England, ^'^1"'', '^P",
by Keaibn of the Sta't. i ^ 2 P. & M. cap. lo. ivhich enatls that. All ,„ Cotbet's"
/ trials hereafter to be had t?f. for any I'reafcii, jball be bad &c. according to Cafe. —
\ the due Coiirfe and Common L:rjus oj the Reahu, and not otberivife i for thac^o._Litt.26i.
'; of Things done in Ireland, a Jury here could take no Notice any more ^•'•'""S. c.
j than ot Things done in Foreign Countries. But all the Judges agreed, anddiat h *
that all Trealons done in Foreign Countries (Ireland excepted) lliall be fhall be tried
tried in England, by the Statute 35 H. 3. anci for fome Treafons by the by u Men
26 H. 8. and that the Statute of i & 2 P. & M. is to be intended of Trials °^^^.^ ^°"'^-
which might be in England by the Common Law, and of no other i For b r m7u
it would be idle to fay, that the Trials lliould be according to the Com- fit, and be
irion Law, when no Trials might be by the Common Law ; fo that the determin'd
Statute of I M. ihall be conilrued ot Treafons done here, which might be ^^"^•''^ 'H
tried according to the Common Law, and which was put in Ure in the tbit'BMch
Cafe of STT- 0tOrp and others, according to the Opinion before, foroi- othei-wii'c
Treafons done beyond Sea. And. 262. pi. 269. Trin. 33 Eliz. Orork's '^'^^"'■'^/'J'-h
n ,<;. Commif-
r A
in fuuli Shire of the Realm as. fhall be aflif^ii'd by the King's Comminion ; and that the St.Htuts of - f
H. S. cap. 2. as to this Point, remains in Force at this Day. ' ^ '
6. Part of the T'reafon objefted againfl: a Peer was fuppofed to be done
beyond Sea, and made Treafon by the y]£i of ^ Jac. cap 4. this cannot be
tried but by Inditiment to be taken before the Jtijltces of Jlffife and Gavl De-
livery -ivhere the Party ivas taken, or before the Jujlices cf B.R. any Law,
Cuitom, Statute, or Uufige to the contrary notwithilanding ; And lb it
cannot be tried by the Statute of 35 H. 8 cap. 2. in what Place or Shire
E. R. Ihall be; for this Satuce had for this Treafon prefcribed a Special
Form of Trial, and the Place where he iLall be taken Ihall be expounded,
the Place where he is imprifon'd. Hutt. 131. Ld. Digby's Cafe.
7. A Peer of England who was Lord Lieutenant of Ireland, was attainted
in Parliament here Anno 1641, for I'reafms committed by him in Ireland
during his Regency there, and he pleaded to the Jurildidtion of Par-
liaments in England, becaule the Fa£t was committed in Ireland. But
it was refoly'd and prov'd, that the conftant Practice of all Ages was,
that the Parliament of England had the Power of Judicature for 'things
done in Ireland, and that he being a Peer of England cannot be tried by the
Peers of Ireland i and after, he had Judgment of Death, and was be-
headed at the Tower. D. 360. b. pi. 6. Marg. cites Hill. 1641. the Earl
of Stratford's Cafe.
8. On Habeas Corpus brought, it appeared the Defendant was committed
toNe'-jigate on Snfpicwn oj a Murder in Portugal, which by Mr. Attorney,
being a Faft out of the King's Dominions, is not triable by Commif-
fion upon 35 H. 8. cap. 2. S. i. N. 2. but by a Confialle and A4arfljal, and
the Court refuied to bail him &c 3 Keb. 785. The King v. Hutchinfon.
9. The Habeas Corpus ylci made Anno 31. Car. 2. Enatls, That /;o A Man may
Subject of th.is Realm /"i?// befent over Prifoner to any Foreign Parts : Pro- ^fff'* ''^-'- '<'
vifo^ That if any SiibieU cf this Realm has committed any Capital Crime ,]' ''A '" l-
in Scotland, or other toretgn Farts of the King s Dominions, he may befent i:r.y there.
from hence to be tried tn juch Foreign Place. The Judges (Gregory, co-nnnutec..,
Eyre, and Turton, being abfent) unanimoufly gave their Opinion, "°""'^"
that there was nothing in the Habeas Corpus Att (fuppoiing one had ciauiImMfe
committed a Capital Crime by Martial in Ireland) to hinder liis being Habeas Cor-
fent thither to be tried thereupon j and certified their Opinion under their pus Act. And
Hands to the Privv Council. 2 Vent. 314. Pafch. 2 W. & xM. Lundy's "P"" ^'^^ ,
f^ ^ - ^ ■' Authority of
^'^^^- JlUllDp's
Cafe, tlie
Court ordei-'d tlie Defendant to be remanded. Gibb. 1 1 1. p!. 12. Mich : Geo. 2. B R. The King v^
Kimbsrley.
A a a 10,
1 8 2 Trial.
Aa Inform a- jo: II IF. 3. cap. 12. Enafts, Thiit if any Governor.^ Deputy Go'vertior'-
^'\'' ^^^^^- or Coimihwder in Chief, of any Plautattons within his Majejty's Doininioni
tU^dtZ hy""'^ the Seas, pall be guilty of oppr effing any of his Majeftfs Subjeashe^
tiant, late y'ond tho Seas 'within their Governments, or guilty of any other Offence ccn-
Gcvermr of trary to the Lazvs of this Realm, or in Force within their Governtnents, fiich
Jntcgoa,Jc.r Qppre[fions and Offences, fjall be enquired of, heard, and determined in his
""""Qpr^^l". yi/.y t//j'V Co//r? of B. R. in England, or before fuch Commiffioners, and in
};w/' there, fiich Cotinty of thts Realm as (hall be affiignd by his Majejly's Commiffion,
and Illue be- and by laivfiil Men of the fame Cotinty, and fuch Punipments pall be in^
ing join d iji^fd on fuch Ojfcnders, as are inflitiedjor Op'ences vj like Nature commit-
gmky, was ' ted tn England.
tried in Mid-
dlefex per Writ of Nifi Frius, and tlie Defendant found Guilty. And this Term the Court was mov'd
in Arretl: of Judgment, becauie as was alleg'd, the Trial, in this Cafe, was a Millrial ; for the 1 1 & iz
W. %. cap. 12. upon whicli Statute this Information is founded, fays, that I'uch Crimes &c. fhould be er-
quir'd of, heard, and determin'd, in the Court of B. R. But per tot. Cur. the Iffue in this Cafe was well
tried ; and by the Information being exhibited in this Cotirr, and the Profecution carried on and de-
ternr'in'd here, the VS'ordsof the Statute are fulfiU'd, tho' the Court directed the liTue to be tried elfe-
where, efpecialiy fince it vas tried by the Wen of Middlefex from whence that Jury muft havecome
if it had been tried at Bar. WS. Rep. Mich. 3 Geo. B. R. Tlie King v. Douglas.
(N.b. 6) Trial where. Of Matters cir'tjing in, or coj?"
cenung Lands &c. in JVaks, County Palathie, Chiquc
Ports, or other Franch'tfes.
U a Seigniory i.Y^THERE a A'fan is deforced of Lend in Wales, he
'n-.Jx'uJrJ^A Wales., unlefs in Special Cafe. But if the Lord himfelf be de]
fhall be tried
he flmll have
2s not run in
Special Cafe. But if the Lord himfelf be deforced of his
here by the Seigniory Royal, he ihall have Writ in England, in the County next ad-
Common jacent , for he cannot ha\e Remedy in \V^aleSj quod nota. Br. Lieu.
it^y^; ^J- nl. 7?. cites 18 E. 2. and Fitz,h. Alfife, 382.
Trials, pi. 5S. r iJ „ , ■
cites 21 H. 7. 55- Sut Land held of the Seigniory fhall be tried there, and not here. Br, Trials, pi,
58. cites 21 H.
/ •
So where it 2. In y^ffife in Suffolk, the 'Tenant pleaded Releafe ia Cheffcr, but bore
is f leaded fy Date there ; Per Herle, it a Man be to bring Aftion here upon fuch
SitrLt' I^^^^5 h^ ^^'^^^ ^°^ ^^ anlvver'd. Br. Trialls, pi. 63. cites 8 All". 27.
ferve ; for it
cannot be tried. Br. Trials, pi. 69 . cites S AfT. 27 , • And by others, if a Man in Bank touches a
Man in Chejler, this Court ihall make Procefs to * try it. But fee now the Statute 9 £". ; for fuch
Deeds, and Deeds of Tenements in Wales are pleadable here, and Land taken in Exchange in the 6i-
fhoprick of Durham was pleaded in Bar in Banco, and the Party put to anfwer thereto. And Shard
faid he had feen fuch a Plea taken in Bar of Dower of Tenements taken in Ireland ; and the Deman-
dant was compell'd to Anfwer. Br. Trials, pi. 65. cites S Alf. 27.
* S. P. And remanded it into Bank. Br. Trials, pi. 146. cites 32 H. 6. 2j.
Where this 3, 9 E. 3. Stat. I. cap. 4. Whereas maity he delay d in their Ailions,fof
Statute is, ^^^^ ^^^ Tenants or Defendants phad in Bar a Releafe, ^utclaim, or other
Deed^is^**^ Sp^'^i^^ Deed made within a Franchife, where the Kings If'rit runs not. It
pleaded is enaffed. That when fitch Deeds are Ihew" d forth in Bar of an Ait ion, and
bearing Date and bear Date Within a Franchife, albeit the Witneffes named in the Deed
^here Writ^g of" the Franchife ; yet if the Deed be denied, Procefs poal I be awarded in
does not run ^^^^ Court where the Plea depends, to caiife the Country and the Witneffes to
that this ' appear ; and if the Witneffes come not at the great Dijlreffes rtttirn'd, not-
thMhsttisd with/landing fuch Abfence of the Witneffes, the Jtijlices pall not let to pro-
ceed
Trial.
183
ceed to the taking of the Inqueji as well as ifj'uch Deed did bear Date with- where the
in the County •ushcre the Plea was moved, and that the Witneffes were of the}^"^,^^
fame County. tlic-e J/«/-
ters in Kiel,
as Difh'fs, Surrender, Entry 8zc. fo alleg'd, fliall be tried wliere the Writ is brought, by the Equity
of this Statute ; per Pigot. Br. Trials, pi. icO. cites at E. 4. 9. Br. Paiiiament, pi. 63. cites
S. C, and 21 E 4. 55.
But per HulVey , in Debt bi'bught in MM/fex, upon a Lea/e of Land in Durham, if the Defendant pleads
levied by Diflrefs, or Suircnder, or Entry by the Plaintiff, iiHiail be tried where the Land h, and fhall
not be' taken by the Equity of this Statute ; which all denied. Qusre, how this is intended ; for H
fcems that itjhall be tried, where the Land if, by the Common Law. Br. Trials, pi. 106. cites 21 £. 4. 9.
4. Formcdon in Durtam, the Tenant pleaded Warranty and ^ffets in
a Foreign County in Bar, upon which they were at IJJiie j there the Re-
cord Ihall be removed into C. B. and Scire Facias fhall ilFue there to try-
it. Br. Caufe. pi. 28. cites 14 E. 3. i. and tit. Error in Fitzh. 28.
5. ^lare Impedit was brought by the King againfi the Eipop of St. Da- ^•■"■^ ^"'?e-!
'vid's.y and A. B. of the Archdeaconry of E. in Hales, which voided the 7em- brought in
fcraltics of the Eipop being in the Hands of the King &c. And the Writ the County of
was brought in the County of Hereford, next adjoining to the Place Hereford, of
where the z\rchdeaconry isj quod nota. Br. Lieu, pi. 35. cites 24 E. ^^^o'^fonin
3-32. ^ well; and
the Defendant took Exception, inafmuch as the Plaintiff did not count in the County of Hereford, Fartibu^
jyalliii iTdjaatiti ; and yet adjud^'d good. Br. Lieu, pi. 68. cites 55 H. 6. 50.
fffue cf i^iare fnipedit here arrjing in If ales, fliall be tried in the County adjoir.in^ ; for the Bidlop thevQ
will not obey this Court, but will and maydifobey; Per Fineu.v. Br. Trials, pi. 5S. citesii H. 7. 33.
6. Where a Condition is to be perforrnd in Franchife, it is void,
becaufe it cannot be tried here ; And it feems that this Franchife ihall
be intended as Palatine, to which the Writ of the King does not run.
Br. Trialls, pi. 144. cites 10 H. 6. 14.
Debt in Midd/efe.^, of a Leafe made for Years, of Land in Lancajler, Newton faid
k-e
:ieems
pertohimthatif
Newton, it iliali be tried in the County adjoining, as if the Land was it had not
in Wales. But per Fortefcue, Wales has been a Realm by itfelt, and beep for the
never deriv'd from the Crown, but Cheftcr, Lancaller, and Durham, j^tP'^[°" °
have been deriv'd from the Crown, and were once all one Realm, and they had ad-
therefore not alike ; but of Wales, the Statute is that it pall be tried in the judg-d the
County adjacent. And Afcue agreed with Fortefcue. Cinque Ports, pi. Clafe; forall
c, ■ IT /■ were apainft
8. Cites 19 H. 6. 12. him. And
8. If a Man pleads a Deed in a Seigniory Royal in "Whales bearing Dat-: Brooke favs
in another Seigniory Royal there ; they have no Power to try the Deed the Law is
there, and therefore it ihall be fent here to be tried j and fo the Court of ^g^'""^^.^*'''-
the King has Jurifdi6lion in Wales. Br. Cinque Ports, pi 8. cites 19 H. fee^stohim-
6. 1 2. and (ays fee
0. The Statute is, that where a Deed bearing Date where iVrit of the fuch aOife
King does not run, is pleaded here this Ihall be tried M'here the Writ is ''l^"- '^""'^
brought by the Statute of i E 3. but of all other Cafes triable in County ^j^'^he^ in
Palatine, the Court here Ihall write to them to try it by the Common Debt upon
Law. And all Things in Wales Ihall be tried in the County next ad- anObliga-
joining by the Common Law j but of things in County Palatine, the J'°" '^'^^ ^'^~
the Court may write to the Lord thereof to try it and fend it hcrei and p^g^dgj ti,g
this has been done oftentimes. Br. Cinque Ports, pi. 8. cites 19 H. Condition
6. 12. perform'd ;
and mud) ar-
gued, and not deny'd. And Newton made a gteat Doubt, in Cafe that it fhould be tried in the County
Palatine and remanded here, that a Man Ihould not have Attaint here of Trial there ; which Brooke
lays feems to be not material, and fays fee H. 1 1 H. 4. 4c. it fliall be fent to Durham to be tried there, ar.d
remanded here. Br. Cinque Ports, pi. S. cites 19 H. 6. 12 51
to. The
184.
Trial.
li'.-ffperFi- 10. The Parties were at IJfhe upcn a 'Thing triable in the County-Pala-
neux Ch. J. ^y^^^ ^y j^aiicaftcr. Per Brudnell, If a Man vouches in Lancajler, the
ei-ioneous jujfices Jhall Write to them to try it, and to remand it here, and ii they
inComty- "give f erroneous Judgment, Writ of Error lies here i and where Judgment
Fdlaiine ts given here, we miiji write to them to make Execution there. But it t'alfe
iliall be aid- ju^ignienc be given in Wales or Calice, it cannot be reform'd here , tor
Co'miilion ^hole never were Parcel of the Crown ; but the County- Palatine was
and not here. Parcel of the Crown, and after was exempted j and by the Statute it
Br. Trials, ought to be tried where the Writ was brought, and Tremaile concellit.
P' iJ'."'!? Br- Trials, pi. 58. cites 21 H. 7. 33.
^' -/-Sj- II. In Trefpaps in the County-Palatine of Lancafler, the Defendant
pleaded foreign Releafc. The Court prejixd Day to the Parties in Bank, 15
Pafchi'e ; an'd if the Record come not in at the Day, yet it may be received
after, and may he ly Certiorari to the Chancery, and then into Bank by Afi:-
timtis, and there to be tried. And this leems to be by the Equity of the
Statute of Foreign Voucher. Er. Cinque Ports, pi. 9. cites 22 H.
6. 48.
12. A Man was taken upon Capias Utlagatum, and pleaded that hcjjas
abiding at T- in the County of Chejier at the Time ; and the Record was fent
by Mittimus to the Jujliccs oj Ch'ejler, to make Prccefs to the Sheriff to try
and remand it to the Bank-, and lb he did. Br. Trials, pi. 146. cites 23
H. 6. Rot. 411.
13. Debt againjl Executors, who fiid that there is another Executor in
full Life, who admiHiJierd at Durham ; and the other faid, that be did not
''adminijler. Per Markham, If a Man in JlBion in Bank pleads a Plea in
Wales or Ireland, or fuch like, which cannot be tried there, this is no
Plea. But Fortefcue contra, and that it Jhall be tried where the Writ is
brought by the Common Law, and not ly Equity of the Statute of g E. •}. cap.
6. for the Writ of the King never ran into Wales or Ireland. Contra in Dur-
ham, and other Counties Palatine &c. as the Cinque Ports &c. Br. Trials,
146. cites 32 H. 6. 25.
14. But It was doubted if fuch a Plea pleaded in Normandy, France &c.
be a Plea, by reafon that it is out of the Power oj the King, and cannot be
tried. Br. Trials, pi. 146. cites 32 H. 6. 25.
* Biitnoit, 15. Bui it was faid that P/<?i^ arifing in Ely, the Cinque Ports, or the
that at this franchife of * Bury, ihall be tried in the County next adjacent. Br. Trials,
PwL%/ pi- H6. cites 3. H. 6. 25.
ijfue ^rcyji the
Batik to the Sheriff of Suffolk of a Plea in Bury, and fliall be tried there in the Franchire before the Juf-
tices of the Kiil Prius of the County of Suffolk; for thcfe are Parcel of theCotiiities in which they (land.
But other'xrfe it is of the Caoily-Palatine ; for they arc Counties in themjelies. Br. Trials, pi. 146. cites
52 H. 6. Zy.
16. Iffue arifing in Scotland fhall be tried where the Writ is brought.
Br. Trials, pi. 146. cites 32 H. 6. 25. Per Brown & Fortefcue.
And the like ly. Starkey vouch'd Matter, that Ijfue arifing m Bank to be tried in the
of Iffue taken Countv-Palatine. was tried in the County-Palatine. Br. Trials, pi. 146.
in the County- ■ -i_f /■ ' , ' >. 1
Palatine to CltCS 32 H. 6. 25.
he tried in
England, Jhall he fent into Bank, and tried in Batik. Br. Trials, pi. 146. cites 52 H. 6. 2j.
18. Debt w^on Arrears of Annuity by aComfellor againjl his Client, who
pleaded Reftifal to give Counfel at A. in the County- Palatine of Chefter,
which Jhall be tried there in Aftion brought at Weftminfter. Cumberf
Prothonotary, faid. That ihtyjhould write to the Warden of the County-
Palatine to try the (fiie, and when it is tried all the Record pall be fent here,
and Judgment given here, as of Voucher in County- Palatine. This
Court fhall write to them to try it, or fummon the Vouchee, and alter
all that which they do Ihall be fent here, and according thereto they
Trial. 185
Ihall proceed here &c. Quod nota. Br. Cinque Ports, pi. 13. cites 39
H. 6. 21. 22. at the End.
19. Upon -inOiitlaivry in Del^t, the Party came in upon a Cepi Cor-
pus, and moved chat it might be reverfed ; for that i/i the original Writ
he was named A. B. ofC. in the County cf Denbigh^ li^herea'S he lived at D.
the Day of the Writ purchafed, and not at C. If IJfue is taken here-
upon^ it llrall be tried in the next Englilh County, and not in Wales,
and this by the Common Law. Moor. 70. pi. 189. Trin. 6 £liz^
Anon.
20. Jiinaity vias brought againft the Bifljop of Ely. The Parties were Bendl. 1S2.
at Illue, and the Plaintirt' pray'd a Ven. Fac. to the Sheriff' of Cambridge- p'- 2^6.8. C.
fhirey to return a Jury from the next Vill adjoining to Ely, becaufe the Place y^^s P'^ad-
where the Annuity was payable was within the Ifle of Ely, in which '"° '
the Bilhop has Liberties, and the King's Jnjlices and Officers cannot enter
there, and the Inhabitants ought not to ferve on any Jury out of the Ijland ;
and the fame was granted. Mo. 88. pi. 220. Hill. 10 Eliz. Howfe v.
the Bilhop of Ely.
21. In Tro'ver and Converjion ioT {Gver^xlQuartCTS of Corn, the Converjion
ivas laid in Middlefex, and the Corn grew in iVales ; and upon a Motion
that the Plaintiff' might be compell'd by a Rule of Court, to lay his
Aftion in the next adjoining County to Wales, for that the Title or the
Lands on which the Corn did grow, might come in queltion upon this
Action, the Court would notcompell him to change the County ; for, as
the Clerks inibrm'd the Court, where a Suit commences in B. R. by
Original, it may be laid in any County, and the Court cannot compell
him to change it. But the Court faid, that it the Defendant by his
Plea can make the Title of the Land to come in quellion, they will
compel him to bring it in the next adjoining County where the Land
lies. 2 Roll Rep. 141. Hill. 17 Jac. B. R. Floide v. Bethell.
22. A Man was murder'd at Aiontgomery, and the Widow brought an Ibid. 24S.
Appeal in Shroppire, which was the next adjoining Englilh County ■ and the Reporter
upon Not Guilty pleaded, it was tried at the Bar by a Jury of Shrop- ThaAfi//^'
Ihire, and the Defendant was found Guilty. The Judgment was ar- s. 6. alkwi
refted, becaufe it is againft a Fundamental Rule of Law, that Trials for indiBments
Murder by Appeal, or * othetwife, lliould be out of the County where !? ^" ^" ^^^
the Fact was committed. Cro. C. 247. pi. 8. Hill. 7 Car. B. R. Soutley ne°xt'adt)in-
t. Price, ing. But
there is no
?hntim therein of . appeals ; nnd for t'.iis Reafon Certioraries have been granted to remove Indictments
out of the Grand SelFions, but never Writs of Appeal. Jo. 255. pi. 3. S. C. by the Name of
$>flltle)' b. |3riCf, held accordingly ; and that the Writ of Appeal lies not in another County, nei-
ther by Common Law, nor by 26 H. 8. 2- H. S. or 54 H. 8.
* By Force of 26 H. 8. a Murder in Wales may be inquir'd of in an adjoining Englifii County ; but
Appeals mult be brought in the proper County. Hawk. PI. C. Sd. cap. 51. S. 14.
23. One was indiSed in the Grand Seffions for Petty 'freafn, and a Cr-
tiorari was pray'd to remove the Inditlment, and have it tried in an ad-
joining County. But the Court doubted how it might be tried in any
other County ; but upon citing Precedents, the Court awarded a Certio-
rari, and faid, when the Record was removed, they would advife how
it Ihould be tried. But afterwards it was ftaid, and appointed to be ar-
gued whether a Certiorari were grantabie. Cro. C. 331. pi. 16. Mich.
9 Car. B. R. Chedley's Cafe.
24. In EjeSviient jor Lands in Brechtockpire^ upon Not Guilty pleaded
a Venire Facias was awarded out of Monmoiithpire, being nearclt the Place
where the Lands lie. After a Verdift for the Plaintiff it was objcctcdy
that the I[fue ought to have been tried in Herefordpoire, that being the next
Englilh County i and this upon the Statute of Rutland, 12 Ed. i. for
the Statute 27 H. 8. makes not Monmouthfjire an Englijh County, but only
Jurifdiction is thereby given co the Courts of Law in England in that
B b b Counc\-.
[^6 Trial.
County. And if ic were expreOy made an Engiilh County by that Sta-r
tuce, yet an Iliue ariling in Wales Ihould not be tried there. It was
held a'xMiftrial, becaufe Monmouthlhire was made an Englilli County
within Time oi Memory i and Trials in the next County oi'lliues arihng
in Wales, have been l"im^ out of Mind, and at Common Lawi fo thac
an Engiiih County newly made cannot have iuch a Trial. And of this
Opinion were all the Judges at Serjeant's-Inn. Hard. 66. pi. 4. Trin.
i6j6. in the Exchequer, Morgan v. Morgan.
Lev. I iS. 2_j. The Delendant was inditied of Murder at the Grand Sej/ioiis in Gla-
^J'^''^ ' R morganlliire, and in that Part of the County ii'hich was Parcel of the
R'*''iiic ' Marches^ and acquitted ; ajterwards he ivas indiiied tn the next Englijb
U\n% "0. County^ (^i^-) in Shroplhire, for the fame Murder. He pleaded the Sta-
3!ri)Oina0, tute oi Union of \Vales with England, and thac he was, ac another
_S. P. accord- 'pjj-j.jg^ acquitted of the fime Faft in Wales. The Doubt was upon pen-
fecms'to"be "'"g "^^e Statutes 26 S 34 H. 8. whether this was a good Plea, becaufe
S. C tho' thele Statutes grJe tkem Po\sjct to try, bat not to acqiitt. But adjudged a
that is of his o-Qod Plea, becaufe thefe Statutes do not extend to give them Power to
being in- ^j... but alfo to acquit Offenders in their own County. Sid. 179. pi.
at Hetford. 15 H ill. 1 5 & 1 6 Car. 2. B. R. The King v. Thomas.
In this Care ^^- -^^" Hjcffvient was brought of Lands in theCowmy [Ifle] of £/>',and
It was fug- the Caufe was tried in Cambridgeihirej It was held good, becaule Ely
peiled that y^as Part o'i the County. 5 Mod. 405. in Cafe of Calverley v. Leving,
Ely was a cites it as Hill. I W. 3. the Cale or Cotton v. Tohnibn.
County Pa- *' •'
latine, and
theiefoic this was a Miftiial. But the Court held it to be only a Royal Franchife ; and that fuch ai-e
the Francliifes of the Cinque Ports, which are the fime with this ot Ely ; and ir is ufual for Appe.ils
of Murder to be brought in this Court, when the Fait was committed in either of thele Franchifes,
and the Trials here concerning Lands in Ely, are good ; But it is not fo where the Lands lie in a
County Palatine. It was held alfo in this Cale, that tho' the Jury ought to have been De Vicineto dc
Ely^ and the Trial was in CambridgcfTiire where the Bill v. as brought, this Jeofail was h;lped by tlie
Statute. The Plaintiff had Judgment. Carth. IC9. Hill. 2 W.&iM. B. R. Cotton v. Johnfon.' ■
1 Salk iS:. pi. 1. S. C. fays that a Suggeftion was entred (^uod nullus Julliciarius, vel Minifler Do-
mini Re-^is Infulam illam ingredi potcll ad aliqtiam Jur.it. extra &c. and ib prayed a Venire to R. the
next Village in the County of Cambridge. £t quia videtur Jufticiariis fationi confonum conceditur
&c. And it was objefted, That the Nient D:;dire, i. e. Qiiia Uef hoc non dedicit, or elfe the Con-
feffion of the Defendant {hould have been entered ; and that fo are the Precedents. But per Curiam,
Either Way is good. If it be not true, you may bring Error ; if it be true, then it is right.
In this Cafe 27. Debt on Bond made at Chefter, on Pkne Admlnijlravit pleaded^ it
Dolbencited ^^^^ ^j,/^^ ^^..^ yy Mittimus to Chejhr^ and a Verdict for the Plaintiff. It
^^infi'tta ^^ "°^^ moved in Arreft of Judgment, thac the Bond being made ac
ano ;|nton Chefter, ought to be tried there. But it was adjudged, becaufe ic was
adjudged ac- not pleaded that the Party dwelt there, or had whereby to be attached there^
cordingly. thac there would be a Failure of Julfice, ific could not be tried here.
judgmenc for the Plaintiff Comb. 115. Trin. i W\ & M. in B. R,
Smith V. Stephton.
(N. b. 7) i^ Medietas Lhigtia. h ojohat Cafes,
I. A Jew had his Trial per Medietatem Linguse, viz. Judasorum,and
J^\^ they weiefdjorn on the 5 Books of Mofes, held in their Arms
and By the Name of the God of Ifrael, who is mere ij til. D. 144. pi. 59.
Marg. cites 9 E. i.
2. Venire facias was awarded between an Alien and an Englijhman iipoa
Jffue &c. de Medietate Linguae, and after ic was perceived thac the Con-
traS
Trial.
187
traif was fwt miiie in tar,- or AJuik'jt i and therelorc another Venire facias
was awarded all of Deniiens, \iz. Englilhmen. Br. Yen. fac. pi. 37.
cites 22 E. 3. 14. ,
3. 28 iV/. 3. c.-'p. 13. S. 2. Enafts, that ift alJ Manner of hquefi and Proofs^ ^<^ Medie-
v:bich be to be taken or made amongji A'kus and * Denizens, be they Mer- "'^ Lmgus
chants or other, as well before the Mayor of the Staple, as before any other mon Law ""'
-Jiifltces or Mtnifiers, alt ho" the King be Party, the one half of thelnqneji- or but wasm-
Prtof (hall be Denizens, and the other half of Aliens, if fo many Aliens and noduced by
Foreigners be in the Toiai or Place idoere fitch hiqiieji or Proof is to be taken, -.^ is Statute
that be not Parties, nor ivitbthe Parties m Contrails, Pleas, or other ^uar- and c'°"'^^
rels, -iB hereof flic h Inqiiefl or Proof ought to be taken. And if there be not fo tracT:s.°jenk.
many Aliens, then pall be put in fiich Inqiicfi or Proof, as many Aliens as 2>6. pi. 42. '
fhall be found in the fame To-juns or Places, "which be not thereto Parties, nor — * J^eni-
■u.ith the Parties as aforef lid, and the Remnant of Denizens, which ^'^ ^co^ i^^eH ^ r ^
Men, and not ftifpiciotis to the one Party nor to the other. v ho arc^
Englifli
born, as tliofw who were Aliens and made Dcnb.cns by the King's Letters Patents Br. Denizen, pi;
4 cites 21 H. -. 52. zHawk. I'l.C. 41'^. cap. 45. 8.90. cues S. C.
Or\2iirrit of IiJijuiry of Damages, the Inqueft fliall be allot Englifh, and no Part of Aliens ; for itij
o'lt of the Statute. Cro. E. 295. pi. 6. Hill. 55 Eli/. B. R. Needham v. Corfellis.
It feems agreed, that the fabfequent Statutes, which require that Jurors fhall have Tenements tod
greater Value, no way repeal this Statute ; yet it feemsthat the Englifli half of the Jury ou^^ht tohavs
Tenements to the fame Value as in other Cafes. 2 Hawk. PI. C 419. cap. 43. S. 55.
4. By 3H.6. cap. 29. the Statute of zS E. 3. 13. ordering that an
Inqtiefi foall be Medietate Ltngti<£, where an Alien is Party, is con-
firmed. And it is by this ACP farther declared, that the Statute of 2. H. s.
3. does only extend to Inqiiejls taken between Denizen and Denizen ; fo that
an Alien may be put upon Inqncjls, according to the Statute ofzS E. 3. albeit
he have not Lands of the yearly Value of 40 s.
AJedi
other
agreed to be all of Englifh ; for they are as indifferent to the one 'as to the bcenadiuX-
other. Br. Trials, pi. 42. cites * 21 H. 6. 4. ed that the
Statute of
aS E. ; does ifOt extend fo an Jppeal or other Jclion by an Alien again/} an Alien ; for the VS^ords are all
Inquelh 5cc. between Aliens and Dc;nizens. '
* Trials per Pais 24() (215) cites S. C. But if the Plea be before the Mayor of the Staple, and both
Parties Alien Merchants of the Staple, it fhall be tried by all Aliens ; cites Stamfords Pleas del Co*
rone 1 51;.
6. W^here Iffiie is joined between an Alien and an EnglifJoman, there it Br. Deni-
fluU be tried by the Half of the one Country, and by the Half of the ^^"' P'- '2.
other, but not without * Praying it, as it itQms eilewhere. Br, Trials, p^^ p^" ^^T
i^-iT^ J ijr. t:iqueft.
pi. 42. Cites 21 H. 6. 4. pi. 5^ ^ij^/
S. c.
* S. p. Br. Deniien, pi. 4. cites 21 H. 7. 52.
7. An Alien, as a Frenchman, being arraigned of 7'reafon done here, D. 144. pi.
ihall be tried by all Englilh, and not Per Medietatem Linguje, as the ')9- S C. by
Statute fpeaks ; for by a Statute made i Mar. 10. the Trial in all Trea- ^'l^ '^.^^^ ^^
fbns is as it was at Common Law. Dal. 22. pi. 5. 3 & 4 P. & M. cites Cafe^^l^^
Sherris's Cafe. S. C. cited 2
H. Hill. PI.
C. 271. cap. 5^. But Serjeant Hawkins fays. It fecms that the King may, if he think fit, make a fpe-
cial Grant to an Alien to be tried for Treafon by a Jury, whereof the one Half iliall be Aliens. 2
Hawk. PLC. 410. cap. 45. S. 37.
8. Eut otherwife in Cafe of Felony. Jenk. 216. pi. 58. S. P. And
fo in Cafe of
Petit Treafon and Murder, if he prays it. 5 Inft. 27. If an Alien be indi£i:ed or appealed oj Fe-
lony, tho' thelnd'ftment ought to be by a Grand Inqueft of Englifh, yet bv the Statute of 2S E 7,. cap.
i;. the Trial fhall be Per iMedietatem Lingua, vii. Half the Jury to be of Aii£:;s, eycrpxn (2a'e of
Fclrj'iy
1 88
Trial.
Felony fcy Eeypianu "wltliin the Statute of i & 2 P. Sc M. cap. 4. And this Statute extends to Felomety
as wefl made after the Si.uiite of 28 E. 5. as before ; for the Statute is general all Manner of Inqucfts.
2. H.Hifl. PIC. 2-1. cap. 36.
If it be 9. If an y^Iicij be * Adminijfrator to an EngJipmaii^ the Trial fliall be
averr'd that j^y Englilli only. But it" an Englilbman be Adminifirator to an Alien^ the
Iwdbeen^an' Trial Ihall be Per Medietatem. D. 28. pi. 180. Marg. cites Hill. 35
Alien, it Eliz.. B. R.
would liave
been othervvife. 'Ci'o. E. 275. pi. 4. Hill. 54 Elii.
i4S. (214) cites S. C.
* So of an Executor; Per Barkley J. Godb. 449.
if an Jlien n ftied as Executor, he -fhall not have a Trial Per Medietatem Linguas, becaufe in fuch
cale he is fued En atiter Droit. 3 Salk. 362. pi. 2. Anon. — Went. Off. Executor 104 fays it was fo held
in Dr. Julio's Cafe.
If an Jhen marries a Feme English, ivho is made Executrix, the Trial fliall not be Per Medietatem Lin-
^U£ in an Action brou^lit by them for a Debt due to her as Executrix ; for tho' the Husband is named,
It is principally the Suit' of the Wife. Went. Off. Executor ao;.
C. B. Wingate v. Marke
pi. 516. Trin. S Car. B. R. Bland's Cafe
Trials per Pais
Trials per
Pais 248.
(214) cites
s c.
10. In Cafe where Eftglip and Aliens zre joint Defendants^ Trial fhall
not be Per Medietatem Lingus. Adjudged upon Advice with all the
Judges of England i for the Englifh, who are Delendants with them,
cannot have this Trial; but the Aliens may have Trial by all Englilh,
as they had before the Statute, and as they fliall have now, unlels they
demand it Per Medietatem Linguae. Mo. 557. pi. 758. Mich. 40 &
41 Eliz.. in the Exchequer, Barre's Cafe.
1 1. It Items agreed, that there is no Need that any of thole who find
an IndiCfment againji an Alien .^ Ihould be Aliens. 2 Hawk. PLC. 419.
cap. 43. S. 36.
(N. b. 8) By Medietas Linguae. Hoijo.
2 Hawlc,
PI. C. 419.
cap. 43.
S.35.
Upon this
Matter be-
ing moved
again, that
the Return
was not
good, be
I. T^Ugdale, in his Orig. Jurid. 64. cap. 25. cites theLaws of King
I J Ethelred, publiilied by Lambard 91. a. cap. 3. That 6 Englilh
nd 6 Welch were to be joined together, for determining fuch Contro-
'verjies as happened in the Marches of Wales.
■z. In l^rials where Medietas Lingase is required, the Alien may be
aided De Cinumfiantibus. Jenk. 288. pi. 24. — D. 28. pi. 180. Marg.
3. It was alfigned for Error, that the Plaintift' being an Alien, the
Trial was Per Medietatem Linguse, and thtVen. facias was Quorum quilt-
bet babct 4I. Land, whereas an Alien can have no Land. Sed non allo-
catur ; for it fhall be referr'd to the Englilh only. Cro. E. 272. pi. 3.
Hill. 34 Eliz. in the Exchequer, Tenancy v. Brown.
4. The Return upon the "Venire facias ought to be diftinB^ of 12 De-
nizens and 12 Aliens, and they ought to be fsorn alternately ; Per
Kemp Secondary. And of that Opinion was Clench and GawdyJ. cse-
teris abfentibus. Cro. E. 818. pi. 10. Pafch. 43 Eliz. B. R, Good\
V. Mountenaigh.
Iwin
caufe'it appears not who were Aliens and who were Denizens, all the Juftices, except Feni
infufiicient for thisCaufe ; but that it was aMifreturn only which was aided by the iS Elii
;^Fenner, held it
infufiicient for tnisv_,auic ; uul mai it was aiviiireturn oniy wiiicii was aiucu uy luc la Eliz. Where-
fore upon Affidavit made that 6 Aliens and 6 Denizens were fvvorn, the Plaintiff had Judgment. Cro.
E. 841. pi. 18. Trin. 43 Elii. S. C. 2 Hawk. PI. C. 420. cap. 43. S. 44. fays this Matter feems
agreed.
5. \i^Q Sheriff return 6 Alienigente, -johere in Truth they are Indigena^
and they are fo impanelled, ic is good enough. But if there are 8 Indt-
Trial.
gente and ^Aliefiige»<£ impanelled, it is ill, becaufe it is not Per Medie-
tatem. D. 28. pi. 180. Marg. cites P. 9 Car. B. R, Per Jones J.
6. Wherever Medietas Linguae is, a. Special Jury is to be returned.
Cumb. 20. Pafch, 2 Jac. 2. a Nota.
1 85)
(N. b. 9) By Medietas Linguae. Granted. Howy and
lyben.
I. TTfTHERE a Jury is De Medietate Lingua, where an Alien is
y Y Piirty, the PluituifF is not bound to take Jury, unlefs by 6 of
the one and 6 0/ the other. Br. Challenge, pi. 56. cites 7 H. 6. 40.
2. Debt agatnji a Lombard. They were at IlFue, and Venire Facias Br. Enqueft,
ijjtted., and return'd &c. And at the Day the Jury did not appear, and P'-4-°- '^""
the Defendant pray'd Decern tales, half ot Denizens and hali of Aliens, g,. -p^j^jT"
becaufe he is an Alien born ; and could not have it, becaufe he did not pi. izj. ci'tea
take Venire Facias half of the one and half of the other at thejirji. And S- C.
Danby J. faid, That if he does not pray Medietacem Linguae at the firft, ^'^''^ ^""
he Ihall not have it after ; and faid that there are divers Precedents fo ifl-ue^''an'd
there. Br. 0£lo Tales, pi. 18. cites 3 £. 4. 11, the one is
an Alien
born, he may have Pannel de Medietate Lingua if he prays ir ; and it leems that htjlmll not have it if
he Aces vol fray it, avd ^lew that he is an yllien ; for the Court cannot thereof take Conuiance, and yet the
Parties were ac Iflue, and Venire Facias idued, and after a Diftringas, and the Defendant came and pray'd
Superfedeas, inafmuch as he was an Alien, vii a Lombard. And per Fineux, He (hall not have it, becaufe
he did not pray it at firft. But Tremail contra ; and after he had the Moiety of Strangers, according to
the Statute; quod nota, notwithftanding that he did not pray it at the Venire Facias, and had a Moiety of
Strangers. Br. Pannel, pi. 5. cites 21 H. 7. 32. Br. Trials, pi. 56. cites 21 H. 7. 55. S. C. ^Br.
Deniien, pi 4. cites S. C. S. C. cited D. 144. b. pi. 60. Pafch. 3 & 4 P. 6c M. in Sherleis".*
Cafe.
Medietas Lingux nnifi be pray'd on Jward of tie T'etiire Facias, or it will not be allow'd. Jenk. 216.
pi. 5S. cites D. 504 otherwife the Sheriff has no Power by the Ven. Fac. to make fuch Return or Co-
nufance, that there is Alien in the Cafe. Ibid. Ibid. 259. pi. 20.
D. 144. b. pi. 61. in ^[)iX\i\S'S CLaff, the Reporter makes aQusre, if the .^lien be Plaintif, and
OKiits the Praying a Medietas Linsiie, by means •whereof a General Fenire Facias ijfues, and is return'd &C.
if he by this has furceas'd his Time. And quaere, if the Court, £x Officio, ought to award the Spe-
cial Writ above, by reafon of the Statutes, and Non conftat eis per Recordum quod una pars eft
Alienigena. And it feems that No ; for by the Common Law the Trial was by Englifh all, and the
Statutes were made for the Benefit, and in Favorem Alienigetiarum, if they will accept it ; but they
are not compclliblc to it.
Serjeant Hawkins fays. It feems to be fettled that no Alien, whether he be Plaintiff or Defendant,
can take any Advantage of the Statute, unlefs he prays it in time ; and that if he have ncglefted to
pray it before the Return of a common Venire, he can neither except to fach Venire, nor pray a Tales
or other Procefs de Medietate Lingua. 2 Hawk, PI C. 4:0. cap. 45, S 40- But it is more pro-
per for him to furmife it upon Plea pleaded, and thLicupou 10 pray it. 2 H.Hill. PI. C. 272.
cap. 56.
3. Brooke fays. Note that it is ill Pleading to fay per A^edietatem Lin- Br Pmnel,
gii^ ; lor he fhaii not have them of his own Language, but of any Man- J"' ?■ '■'"'^j',
her of Aliens, and fo it is put in Ufe. Br. Deniz.en, pi. 4. cices 21 H. por th" Sta-
Y- 32. tute is not
per Medie-
tatem Linguae, but by the Moiety of Aliens. Quod nota ; for it is falfcly .ibridg'd in the Abridgmcrr
t)f the Statutes. Trials per Pais, 246 [212] cites this Saying of Brooke ; but fays, th^t under his
Favour he thinks it proper enough ; for People are diftinguifh'd by their Language, and Medietas Lin-
gux is as much as to fay. Halt Englilh and half of another Tongue or Country whatfocver.
Serjeant Hawkins fays. Note, that fome of the Precedents for the Award of a Venire of a Jury of half
Denizens and half Aliens, in Pvirfuance of 2S Ed. 5. mention, that the Aliens fliall be of the fame
Country whereof the Party alleges himfelf; and otliers direft generally, that one half of the ]urv
Ihail be Alierw, without fpecifying ^ny Country in particular. And the Serjeant fays, this Form feem'; moit
agreeable to the Statute v;\\\ch [peaks ofJ/iens in General, and ft-ems to be ccntirrr.'d both by late Pr6Cti;.e
and the greater Number of Authorities. 2 Hawk. PI. C 42?. cap 45 & 4^.
C C C 4. If
ipo
Irial.
4. Jt'the Defendant yiltcn docs »o?/)r^j' Medietas Linguse, the Plaintiffy
to prevent Delay, by Challenge juay at the Dijinngas fray a Stay, and that
a nCJO Venire may he ifjaed. D. 144. b. pi. 60. Palch. 3 & 4 P. &; M.
Sherley's Cafe.
5. To have this Trial per Medietatem Lingnge, he ought to inform the
Court oi his being Alien before the Award of the Venire Facias. D.
357. b. pi. 45. Palch. 19 Eliz,. Symons v.Spinofa.
The Record (^ In AEi\ijn ior IVords, the DethndiLnt pleaded A^ot Grtilty, andfaid he
a^TusAHeni- "^^''^s yi/icft born, and prayd Trial per Medietatem LingU£, which was
gena de cir- granted. And at the Niji I'ruis 6 Knglijhmen and 5 Aliens only appear d;
cumftanti- and the Plaintijf' prayed a Tales per Aledietatem Lingua, which was
bus per Vic' granted, and they found for the Plaintitf. Alter Verdift tor the Plain-
ile uUk'io- ^'^ '^ '^'"'^^ moved in Arrelt of Jud^gment, That no Tales is to be granted
neiD (o"
Plaint!
mandat
ticiar Qe _ ^ ■ ^ ^ Default only of one Juror. Eelides the Aft does not giv
novd anno I r j . ^ . . J •> . .. . .._„. - . O
e
cujus nomen Authority to the Jultices to grant a Tales in this Cafe, becaufe in"the
in panello former Part of the Aft it is fpoken of Franktenement of Jurors, and of
prsd' affila- lifues to be return'd ; whereas an Alien has no Franktenement, nor lliall
tur i-cun-^ lifues be return'd upon him. And further, the Aft fays. That if there
Statuti in' be any Default of J urors, others ot the fame County Ihall be return'd
hujurmodi &c. whereas an Alien is not properly faid to be of any County. But
c.fu nupcr notwithllandin"? it was adjude'd tor the Plaintifll becaufe the Statute
iiait ociro- ^.^g made for Ipeedy Execution ot Jullice, and ihall be expounded ta-
demVuratoi- vourably to ferve the Intent and Purpofe of the Makers. 10 Rep. 104.
iicdenovo 'a. in £)mbaUJll'^ Cafe, cites Mich. 35 & 36 Eliz. Julius Caefar's
appofitus, Cafe.
(viz.) Chri-
Itianus Dethick, Alienigena e\-a(St' venir, ac in Juratam illam fimul cum aliis Juratoribus pra:d' prius
impanellat' & Jurat' juratus fuit. And tho' it was objefted, that the Tales ought to enfue the Nature
of the principal Pannel, and that this always is ad Requifitionem DefenHentis, whereas in this Cafe the
Plaintiff pray'd the Tales, vet the Plaintiff had Judgment. Poph. 55, dsfar t), CuUrfine, [alias
durfino] S.'C. And per Cur, where in the Statute it is laid (fuch Perfons,) it is thereby intended fuch
as the firlt, which ihall be of Aliens as well as Englifh, where the Cafe requires it. And Aliens may
be of the County or Place where the Nifi Prius is to be taken ; for tho' an Alien cannot purchafe a
Freehold, yet he may have a Houfe for Habitation, for the Time h'.- flays here. And per Gawdy,
where the Default was only of Strangers, the Tales might have been awarded of Aliens only ; as
where a Trial is to be by Inqueft of 2 Counties, and thole of one only appear, the Tales may be of the
other only. Cro. E. 505. pi. 3. JSIich. 55 8t 56 Eh:. B. P... S. C. accordingly.
7. In Aftion on the Cafe a Queftion arofe, Whether Alien Defendant
(tho' in the Declaration he is named Mercatorem Extraneum) mull pray
a Medietas Linguse, or that it is at the Peril of the Plaintiff Denizen ?
Popham held, that the Venire Facias was not well awarded, and re-
turn'd De Indigenis only. But Gawdy and Fenner J. held the contrary.
Cro. E. 869. pi. 3. Hill. 44 Eliz. B. R. Heyward v. Lipfon.
8. It the Defendant be an Alien, on Notice given ly his Attorney to the
Plaintiff or his Attorney, the: Plaintiff ought to enter it on the Roll, to have
a Trial de Medietate at his Peril. But the Court refuted to award it for
the Defendant, on his AfHdavit that he is an Alien. Keb. 547. pi. 49.
Trin. 15 Car. 2. B. R. Vangangel v. Browning.
9. In Covenant, atter a VcrdiCf for the Plaintiff, the Defendant moved
for a new Trial, fuggejling that he was an Alien, and that the Sheriff had
returned 12 ot the Jury ; but that there was not an Alien amongfi them.
Et per Curiam, The Defendant Ihall never have a Trial per Medietatem
Linguae without Prayer ^ and if it is granted, and the Sheriff returns
none but Denizens, the Defendant ought to cha.llenge them before the Trial;
and if the Challenge is not allowed, then to injiji on a Bill of Exceptions :
But the Suggeltion now made by this Defendant is aguinll the Record;
and
Trial. ipi
and it is true, he may have an Aftion againfl the Sheriff for a falfe Re- "
turn. 3 Salk. 362. pi. 2, Anon.
(O. b) Ktfi Prhis. In ^jchat ABions it lies. s=e (P. b)
*■ ' "^ the Note to
pi. I. and 2.
I. A JOiR PriUSi Ite^ in a Writ of Eflrepement at the firft Day.
/\ 27 e» 3- 8o- b,
2. In Attaint^ they were at the General Iffite ^iiod honum & legale Je- Nifi Priusin
certnit Sacravienttm^ and the Plaintiff pray'd Nili Prius, and had it j tor ^"'""'land
the Party is oufted of any Effoign, that is to fay, had his Petition at taken bvNill
the Day of the Iffue. ^iictre ; ior it is new as it was faid there. Br. Nili Prius Br.
Prius, pi. ££. cites 21E. 3. 16. 17. Nifi Prius,
pi. II. cites
SH. 4. 25. Br. Attaint, pi. 26 cites S. C The Statute of 5 E. 5. cap. 16. gave a Nifi Prius in
Attaint ; but this was before Juftices of one Bench or the other. Jenk. 5S. pi. 75. cites 55 E. 5.
Tho* the Statute of 14 E. 5. fpe^ks not of Attaint, yet is an Attaint within it ; for the Effeift of that
Ordinance is, that in all Cafes where a Nifi Prius is grantable, it fhall be granted before Juftices of
Affile. 2 Inft. 414.
3. 1^ Judgffient in AJfife be reverfed in B. R.hy Error^ the Party may
have a new AJftfe in Pais, or Attachment in the fame Bank, and Procefs
againjl the Jury returnable there, and fo he had 9 akd when they are at If-
fue, this fhall he tried hy Nifi Prius ; Quod nota, Nili Prius in Affife. Br.
Nili Prius, pi. 30. cites 31 Aff. 1S.22.
4. Nil] Prius was granted in a Writ of Right upon the Mife join'' d upon
Grand J^fe ; Quod nota bene. Br. Nili Prius, pi. 24. cites 12 H. 7. lo.
(P. h.) n^M Jhall have it, 'T^rff^
V. T Jf tlje King be Plaintiff (n ait Jactiou, Ijc fljall not ija^c anp il3tQ' in Rigu ./
JL lp)i:iU|5, without a Writ DircCteO to the Juftices foc t^tXl t^^i- Mwtvfon by
tant* 24 C* 3- 23. h. the Kh,g, the
2. But tijc i^ing ftaii ija^c a Mm priugi if a Writ be titrecteti to SfffT.!
m 3!utticc$ to tm effect, m tm mmmu 24 e. 3. 23. a, 2s. S V
aO)UOlitO» LieuofGravd
the KiTig.pray'd Nifi Prius. Pole faid this cannot be any more than upon Grand Jjp.fe ; but Wilbv bid
the AttoAey of the King proceed for we have }f-'an;uit to gr.mt Kiji Prats m this Cafe ; and fo he did
Trinity next ; quod nota. Br. Nifi Prius, pi. 16. cites 24 E. 5. 25. Br. Droit de refio pi i -
cites S. C. » r • V
So in Right of Ward brought by the Ki}ig,they were at TJfue upon the Grand Jjffe^ and the Kino- prav'd
Nifi Prius, which was counterpleaded, and after came Writ of the Kirg to grant Kr/i Prius and there'
Upon a Nifi Prius was granted ; quod Nota. Br. Nifi Prius, pi. 17. cnei 24 £. 5. 22.
(Q^ b) Againjl ivhom it fhall be granted.
»• A ^ifi IPriUlS fljaU not be gtanteU where the King is Party in S.P. unJefs ,
jfV. any Manner* 25 C« 3- 39- ^^ ^^"' °^
Br. Prerogative, pi. icS. cues 24 E. 3, 43.-^— Br. Nifi Prius, pi. 35. S. P. and %s the Feafon Itcnu
to
ip2 Trial.
'ffi be that the Nift Prias is by the Statute, and the King is not bound by Statute without exprefs Words;
cues F. N. B. I j.
2. Jtt a Praecipe quod Reddat, if tl)0 Tenant after Aid of the King
pleads to the Inquelt, tljC piaUttlff W nOtfj^l^e 0 JI3ifi IpCUllS, l)C=
caUfe tlje tenant l)agi ato of tbc i^»tnc, nnn fo tDe mm in a ^anncc
partp* 25 e. 3. 39. auningen*
3- KOt. parUament* 43 <£, 3- J^UmbeC 20. The Commons pray to
have a Nili Prius in CafClS Of Indidlments which concern the King of
one Party.
4- anftocr, fuc to tlje Cljancellor or ClctK of tl)e IpriUp ©eal, m
Cafe U)f)icl) uocsi not toiict) Criuic, nm l)f fl)aU fcnD to tlje 3iullice^
to no It in Cafe tljat It be rcafonaWe.
5. All Caiifes of theCrcrjan in B.R. mull be tried at Bar, if Mr. Attorney
will not grant a Warrant ot Nili Prius. And if Mr. Attorney will grant
a Nili Prius by Surprife, and after will fhew that to the Court, they will
fuperfede it. Refolv'd per tot. Cur. 6 Mod. 247. Mich. 3 Ann. B. R. in
Cafe of the Queen v. Sir Jacob Banks.
(R. b) Nifi Prius, twhh Provifo. ^t ixHm Time it ihall
be grmiUd.
For the Gar- J, Y jf tljC Plaintiff in a Detinue and the Garnifhee are at IlTue, and
Plaintiff aifo 1 tftc l^lafntifT prapjs a j0ifi lg)niisi,anb it \% granteb to Unii, pet
in this caie. tftc <J5arnUIjce at tlje fame ^nne map Ijabe a Bttt l^ciuis UJitf) Pco=
Br. Nif. ijifo, uecaufe be 10 l^latntlff alfo* 19 ii)» 6. 46. b. auiuiiseti*
Prius, pi 14- 2_ In Qu;ire Impedit, it was agreed that no Niji Pruts for the Dtfen-
^"" ■ ■ dafJt with ProviCo/hall ijpie^ tho' he be A^or in a Quare Impedit, unkfs
•where Laches or Default js %n the Plaintiff -^ quod nota. Br. Nili Prius,
pi. 2. cites 33 H. 6. 13, 14.
(Rib. a) Nifi Prius, ^johh Provifo. In ijohnt Cafes and
'tiow.
i.TTfTHERE the Plaintiff' at the Hahas Corpora., kept the Writ with
\' Y hull till the Sheriff had not time to fcrve tt, and this by him was
fhewn to the Court, the Court laid that each of them Ihould have a
Writ with him, with Provifo that the Sheriff' jkoitld Return only one of
them ; quod nota. And this was where the Defendant pray'd that he
might have Writ deliver'd to him. Br. Nili Prius, pi. 13. cites 8 H.
6. 6.
2. In Replevin, if the Defendant avows, the Avowant may have Venire
Facias or Decern tales without Provi/b, as well as the Plaintiffs for he is
Aftor, and therefore the fame Law feems to be of Nili Prius. Br. Nili
Prius, pi. 40. cites 16 H. 7. 14.
3. The Garnipee Ihall not put in His Writ if the Plaintiff will put io
His. Br. Nili Prius, pi. 14. cites 19 H. 6. 47.
4. In an Information upon the Statute of Ufury, the Parties were at
IfTue, and the Matter depended 4 Terms untried after Iffiie joined. The
Defendant prayed a Nili Prius with Provifo, as the Courfe is in the Ex-
chequer in fuch Cafe to fend Commilfions into the Country where the
Information is laid to try the IfTue joined in the faid Court, and that at
the
Trial. 193
the Suit of tlie Defendant. But it was much doubted if the Court
might grant fuch Nifi Prius, becaufe the ^ueen is in fome Sort a Party to
the Suit. 2 Le. no. pi. 144. Trin. 29 Ehz,. C. B. Knevit v. Taylor.
5. If IlTue be joined upon an Indiftment of Perjury, and the Party I1 Cafe of
Profecutor will not try the Ilfue, the Party indicted may try it by Pro- and'^ifflfe
vifo ; Per Cur. And this tho'it be in Cafe of the King. Sid. 316. pi. 2. joined, the
Hill. 18 & 19 Car. 2. B. K. Anon. Party cannot
carry it
down, and try it by Provifo ; for it lies not againftthe King. Per Cur. Vent. 315. Triii. 29 Car. 2.
B. R. Anon.
6. B. was ind'Med at the Quarter-Seffions in Berks, for an AJf'auh on C. ^ ^'^°^- =4f-
in Wlndfor-Cajile. The Profccittor removed the IndiUvient into B. R. by ^ \^ a^rd-
Certiorari. They htb made tip the Record, took out Procefs, and Nt/i ^^^ ^[^^ .,,_
Prtus to try it at the next jijpfss. The Profautor not thinking ft to pro- s. C. accord-
cccd, the Defendant put in his Record, and ii;as acquitted. The Plaintiff ing'y'*""^
>noved for z new Trial, and had it ; And in this Cafe the Court held, "°^ ^'^ ""-
That before the Statutes 5^6/^3. cap. 1 1. and 8 65* 9 W. 3. cap. 33. A
Pcrfon indifted in any County miglit remove it by Certiorari into B. R.
without any Recognizance to try it, unlefs in London or Middlefex ;
and by this Means he was out ot Court, & line Die, and new Procefs
was to be awarded, on which he might be outlawed unlefs he came in
gratis, which was the Caufe of great Delays, and of making thefe Sta-
tutes. That thefe Statutes pw^/^f^ for Removals by Defendants, but Re-
movals by Profecutors are not •within thefe Jitis ; and that this Removal
being before the Plea pleaded, the Defendant was out of Court & fine
Die, but may come in gratis, or be brought in by Procelsj and, in the
1 aft Cafe, ihall on pleading give Security to try it. That \n Civil Ac-
tions the Defendant ihall never carry down a Caufe by Provifo, till there
be Laches in the Plaintill', unlefs in fuch Caufes lahere the Defendant is
in Nature of a Plaintiff, as in * Replevin, * Prohibition, or J^uare Impedit, ♦ s p 2
which are to have Return, Confultation, and VV^rit to the Bilhop. But Bro«nl. 2-fi
there can be no Trial by Provifo in the Caufe cf the Crozi-n, becaufe there Mich. - Jac.
can be no Laches. That as m Indiihuents of Treafon or Felony, if the Attor- ^■■^- Anoii,
ney General will delay, B. R. may give the Defendant Leave to bring on
the Trial, So in Indi£lments oi Aiisdenieanors, it pall not be alhwed (orths
Defendant to proceed (as in this Cafe) by a Surprife on the Attorney General.^
and 'without Confent or any Default in the Profeciitor. And a Rule was
made, That when an Indiflment is removed hither by the Profecutor,
the Defendant Ihall not carry it down to Trial without Leave of the
Court on Motion. 2 Salk. 652. pi. 32. Mich. 3 Ann. B. R. Tne Queen
V Sir Jacob Banks.
1-4-
(S. b) Nifi Prius. Cenlficatton ofVad'tds.
I- TiT tIjC Juftices of Nifi Prius die before the i:)av in Bank, Wf tIjC Jenk.
1 Eecomsi.fljaU be tuell rcceiuen bp t!je ipautis of tlje * cierk of pi 45
the Aflile without Certiorari, OC OtIjCC Jf OCm Ot enttPbUt the iinCICnt lT^\T^
lomn D,4- 5- ^a» 163.55. ixcfoi^co* " (76)-^s p.
c , J- , r 1 Ti r. ■ But ifonlv'
one ot them die before the Return, a Certiorari may be awarded to the Survivor to certify the Verdia
2 Inrt. 424. '
^'fhiiii abettev Way than to award a Certiorari for thefe Verdifts to ike Excciilcr, of the Tudo-e, • for
-leUerkot Affiles was a fworn Officer. Alfo the Entrv fhall be in the common Fcm p'Jilt-'a id
■,uem diem venerunt partes & Jufticiarii ad Affifas capiendas coram cjuibus &c. hie mKeruntRecordum
luum. And ag-imft this Entry of Record no Averment can be received tl.at the Ii;dge:> were dead
■Ddd • before
194-
Trial.
before tlie Delivery of the Poftea ; for this would be contrary to the Record. By all the Judges of
England. Jenk, 216. pi. 59.
Jenk. I -4. 2. Alfo in tIjiS Cafe a Certiorari may be directed to the Executors or
H 45- — - Adminilbators Of tIjC %mtZ$ tO CCrttTg tljC ECCOrO, 2D« 4 5- ^H*
pi.ij. s.p. 163. 55.
£itcs S H.
^. ^... S. P. Br. Certification de Affife, pi. 4. cites 12 H. 4. 9, S P. z Inft. 424.
3. In Writ of Error, it was fa id by Hals J. for Law, that if J tij ice
of Jljftje takes Jiffife-, and after he is difcharged^ and atter is made Jujiice of
Afftfe agaifi, he maj record the Record without IFrit ; for it is in vain to
have a Writ to certify it before hinifelf But per Gafcoigne Ch. J.
He ought to have Writ to certily it ; lor he was once difcharged. Br.
Record, pi. 17. cites 8 H. 4. 4.
4, Inditlment was brought in B.R. hy Jujiices of the Peace in Oxford;
and after the fame Jtifitces brought in there a Record of the Acquittal of the
fame Party before than; and the Party catne by Proctfs, and pleaded this
Matter. Alarkham faid, This Record conies in without Warrant ; for vve
receive nothing of the Jufiices of Peace bat that which is Executory &;c.
Wherefore vouch the Record in the Hands of the JulHces&c. and you
Ihall have Writ to certify it, and fo he did. Br. Corone, pi. ijTi. [152}
cites 8 E. 4. 18.
J. Pofteas may be received by the Hands of the Clerk of Aflifts, al-
tho' his Office is determined], for he was fworn to execute the faid Oiiice.
Jenk. 216. pi. 59.
(T. b) Niii Prius. In what Cafes it fliall not be granted
for Collateral RejpeH.
Trials per I- JF any of the Parties may be at any Prejudice by it, tt fljaU UOt bC
Pais 58. JL gvanteDv
(66)
t Br Mifi 2. As in Attaint, if (t iippcatS tfjat one of the Petit Jury is imprifoned
Prius, pi. 6. in Newgate, fXXKX PCIUS Ujall HOt bC fftaittCD in other County ; foc
cites s. Q- tijenlje * fljall lofc 010 Cljalicngcg, inafimici) a$ fje cannot He t^cre -,
Wy^o pet it 10 tljcre objected tijat De maj? niahe an ^.ttotnep. 1 44 €♦ 3. 2»
j^^^-y-^ b» 44 £i(r» 20»
A Mifi Pnus r J /- L , T
is not n-rantiiblc avhereonc of the Parties or Jurors is imptjoned ; lo that the Juror cannot go to the Coun-
try to attend, nor the Parties to take Care of his Cliallengcs and Evidence. Such Party or Juror may
be brought by Habeas Corpus to the Bar at VVeftminfter, and there the Iffue fhall be tried, if it to
feems reafonable to the Juftices. At thi-i Day, by Force of the Statute of 55 // S. c. 6. ivhkh ghet
<raks de drcumflantihus, the Imprifonment of one of the Jurors ihall not flay the Nifi Prius; for tiiere
a Tales de Circumftantibus may be awarded. Jenk. 39. pi. 75. cites 12H. 7. 10.
Br. Nifi 3. F.N. B. 241. (A) fays. It appeareth Mich. 32 H. 6. that it is in
Prius, pi. 35. fi)g Jujlice's Difcretton, whether they will grant Nili Prius, or not ; and
R^V^ hv '-*y ^^^ ^^^^ Reafon, the King at his Difcretion, and by his Writ directed
it fliall nor to the Juftices, may reffrain the fame. And Nili Prius Ihall not be grant-
be granted ed where the King is Party, without the King's fpecial Warrant, or the
Without the King's Attorney's Aflent, notwithftanding the aforefaid Statutes.
fent, feems to be that the Nifi Prius is by Stature, and the King is not bound by Statute unlefs byeX-
prefs Words.
j^tidaKoit 4. In Jppeal againji 4, the one pleaded that Nofuch in rerum Nat lira as
was /aid, f^g Qfjg named &c, an4 fo to Illuei *"d ^be Defendant prafd Nift Prius.
"""^ '^*=- Catesby
Trial. 195
'Catesby faid. You ought not to have it ^ lor it is by Covin to abate our hears'd in
Appeal, and to try this at their Pleafure in Pais. And the Opinion of ^'l. ^'"I"^
the Court was clear, that htjhall have Ntji Prinsfor Eafe of the Country ; ^Z°J,tLt
an.i i^il the Matter may he given m Evidence. Br. Niii Prius, pi. 19. cites the King is,
2,1 H. 7. 34. in a manner.
Party, and
it is found hy VerdiB in Replevin affainft the Defendant ; therefore there is fuch in Rertim Natura. And alfb
he was indi6ted after the Appeal. And the Opinion of the Court was, that Nifi Prius fhall be granted ;
for the yury may have Nifi Prius in ffi,S;ht of the Parties for their Eafe, and thcfe Matters are good Evidence
to tie I,ii{iie(i. Br Nifi Prius, pi. 19. cites 21 H. 7. 54.
Serjeant Hawkins lays he does not find it denied, but that the Court may grant a Nifi Prius in Appeal
in the fame Manner as in any other Aftion. 2 Hawk. PI. C. 411. cap. 42. S. 5.
5. A Nifi Prius is grantaMe in a Writ of Right, "where the Mife ii
joined upon the great Affie. But if the Matter in Queftion Magna indigeat
exdminatione, then the Jultices of W^eftminller will not grant a Nili Prius,
but will try it ^t Bar before themfelves. And ic lies in the Difcretion
of the Jultices to do what they think belt in this Cafe. Jenk, 38.
P^- 73- . . ^
6. The D:ike of Exeter being Plaintiff' in Trefpafs, a N't/I Prius was f^f Nifi
/)M)£^ for the Duke, and it was denied /'or that the Duke was of great Prius, pi. ';^.
Power in that County, and if Trial Ihould be had ia that County Incon- cites ;2 H.
venience might thereupon follow, sinll. 424, Cron^todl
V. the ©ufte
of (f jrftf r, S. C fays the Nifi Prius was deferr'd by the Tuftices, becaufe the Duke w.as a great Prince,
and brought witli him a great Rout.' ■ Trials per Pais 5S. (65)
7. In a Prscipe quod reddat, if the Tenant after Aid of the King pleads
to the Inqueft, the Plaintiff lliall not have a Nifi Prius, becaufe the Te-
nant has Aid of the King, and fo the King is in a Manner Party. Trials
per Pais 58. (66) cites 25 E. 3. 39.
(T. b. 2) Nifi Prius. Take?/ or Grwitedy at (what Tme,
and where.
I. T F AJife is taken in B. R. in aCotmty where the Bank /its, and before -^ff'fi w^j
J^^ ic be determin'd the Bank is removed into another County ; yet the '''*^" '" f/^-
A/Tife fhall not ceafe or be difcontinued, huz proceed to I/fiie, which fjall'"y^^"l[°^^\^^
be taken by Nifi Pnus, notwithltanding the Statute which wills that Af- Court was re.
Jife fhall be taken in its County. Br. Nifi Prius, pi. 29. cites 15 Afl*. 5. ""'^^d to
and fee 25 Aff 5. ^eftmi„p,-,
•' and yet the
Court proceeded and awarded the Jjffe, and tried the fffiie hy Ni/i Prius in Suffdk, (lUod rota ; and after th«^
Party complain'd to the King that this iscontrary to [ulHce ; and notwithllarding this the firft Award
ftood in Force, and the Original not abated by the Removal of B. K. quod nota. Br. Nil! Prius, pi. 21.
cites 19 AlT. 4 — But contra 25 AfT 5.
\i JJfrfe is brought in C. B. of Land See. in the County of Aliddlefer^ and pending; the Aflife the Eark is
removed and they are at fffue, this Ihall be tried by Nifi Prius, and is out of the Cafe of the Statute. Br.
Nifi Prius,' pi. 51. cites 8 E. 4. 16. and F. N. B. 20;.
. 2. Attachment upon a Prohibition ; at the Venire Facias, Nifi' Prius was
granted at the firfi Day, -and the Statute Wills that before the Names of the
Jurors return d, Nifi Prius fhall not be granted i but it feems here that this
was at the Day of the Return of the Venire Facias, and then well j for
then the Names of the Jurors fhall be of Record. Br. Nifi Prius, pi, 9.
cites 3 H. 4. 3.
3 Venire
1^6
Trial.
^[ luls per ^. Venire Facias '■jaas return d fervcci., upon which the Plaintiff' prafd
Pais (>o. Habeas Corpora, and Decern tales with Niji Pritts, and could not have it ;
BiitifH.i- ^°^ ^'fi Prills Jha'l not ijjue before that the Names of the Jury be return d,
bens Cortcrit but hc may have Habeas Corpora and Ntfi Prius if he will, l^ut not 7'ales
he return d he ^;;^ Nlft PrillS tOgCthcr. Bt. Niil PfiuS, pi. I. citCS 27. H. 6. 10.
raay have Di-
jlrefs tiith Kijl Prius-, as well agahijf thofe in t?e Titles /a tlcfe in tie Habeas Corpora, quod nora ; for the
fii-ft- Writ rcruni'd is a Habeas Corpora againft the Tales, qiiod nota, in both Benches. Br. Nifi Priu<;,
pi. I. cites i; H, 6. 10.
4. If the ShcrifT returns not a Pannel of the Jurors upon the Venire
Facias, there Ihall be nu Nift Prius upon the 'faUs until a Pannel he re~
turned. Trials per Pais 60. (68) cites 27 H. 6. 10. and i H. 5. 11.
5. Note that it was pleaded in Arreft of Judgment where VcrdiCt "was
found by Nifi Prius, inafmuch as the Day of the Nift Prius ivas ajter the
Day of the Return of the Dijhefs with Nifi Prius, viz. the Ni ft Pruts
was after the fecond Day, W2r. after thefirfl Day and befcrethe fourth Day ,
and by good Ad-.ice the Party was adjudg'd to fue New Venire Facias ;
quod nota, F"or it was faid ihat after the Jirfl Day the Authority of the
Jiijlices was ceafed, and a Sheriff cannot ferve the Writ after the firjl Day
in Fain to anfwer as a Trefpaffcr. Br. Jours, pi. 7. cites 33 H. 6. 42.
(U.b) Nili Prius. jrbat Things the J/flkes o^ Nlfi
Prius may do.
Trials per i. fTp IpC^ Ija^C not pottJCt tO increafe Damages, tmt Oltlp tO iW'
Pais^, yj. j^ qmj-j, 0f tijat U)|)icij fljali be imimm bv i\)z 3inqucft, 8 p,
S. p. Br. Da- 4- 23-
mages, pi. 47. _
cites S. C which was in Trefpafs of Battery ; and Gafcoignc laid that tho' the Juftices of Nifi Prius
thought that Damages fhould be encreafcd, yet we will not increafe them for this, but the Plaintiff
lliall have a Day further that he naty ronie before us in Perfin, or before any of us in the Country to Jhew his
Jlaiheni, and by this Means to be aided, and lb it was done.
Trials per 2. %\)Z^ IjalJC not Ji)OU)Ci: tO allow or difallow a Protection caft
Pais 59. there. 17 (£, 3.22.11.
S P Br Kif. 3- But UJljCn tljS PcatCCttOn is caff tijep may record the Default and
Prius, pi. the Protection, nno tijcccupon It fljuU ijc alloia'O m 1S>. or DiflallotaD,
cites5 5H, 5. anntljcufljallticDctault 17C 3-22.Jj»
The Juftices of Xifi Prius ouvht tofurceafe if the Defendant cajfs ProteBion, unkfs they will take the Jury
De bene eJJ'e. Br. Nifi Prius, pi 4. cites 55 H. 5. 58. But if they do take the Inqueil notwith-
iJanding the Proteftion, yet it is not void notwithftanding they cannot allow or difallow it. Br. Nifi
Prius. pi. 25. cites 5 E. 4 2
Judge of AfiTife may receive and record a Proteftion, and yet may proceed and try the Caufe, for if the
Proteftion lies not, or lies, and is not well caft, the Trial Ihall ftand ; but if it lies, and is well caft,
the Trial fhall go for nothing. Arg quod Holt conceffit. 12 Mod. 652. in Cafe of Gree v. Rolle.
4. So if a I3r0teCti0n be caft at Bifi PriU0 by the Attorney of a
Party, tljC JtUtlCCSi may record it that it was call by the Attorney, Jjp
tDljicl) tljc iattarncp fljall be eftoppcD after inl3anh to faijetljeDe-
fault bp Impriraunicnt at tije Dap of tlje JQitt IpnuiS. 17 C s- 22.
Trials per ^_ W^t^ IjallC 110 l^OiUer to allow a Plea of Excommunication in the
Pais 59. Plaintiff 18. (£* 3. 58.
1 2 Mod. 652. Arg. cites S. C. Holt Ch. J. faid that he was not fatisfied with this Cafe. 1 2 Mod.
655. Hill. 13 W. 5. in Cafe of Gree v. Roll.
6. 'STfje
Trial.
197
6. '3EljC JUftlCe0 map demand the Jurors upon a Pain at tljC Jl^tfj ™^P"
S. p. 2 tnft. 425.
7. €Ije 3!UriiCCS( Ija^C pOacr to amerce Jurors at t\)t JOtfi l3t!U|S. J^alsper
SP. Andalfotopunifh them for Mifdemeanors done in their Presence which are in Defpire of the King
vind thcieupon make Proceli. ilnd. 425.
8. ^0 tljCf IttaP punifh a Trefpafs done in their Prefence tUljiCl) (0 lit Ti-ia's per
Dcfpitc ottijc Uiuff, ann matte ptoccfjsi tljcrcupoiu 17 €. 3. 23. ^^'^ 59. (66)
9. Jn an Ejefilment, tljE Defendant may plead at the Affifes bcfOrC C''^- T- i^r.
t!)C JUffiCCSi Of i3l(i l9nU0, that the Plaintirf" has enter'd into Parcel P' ^4 Igato^
Ot"tt)C LaUO mentlOn'O III tlje Declaration lince the laft Continuance, KorS C
anD tlje JU(!lCCS> of Bifi prill^ may accept the Plea. iJ0iC\). 8 3!a, m and held that
tl5C €,CC!jCqUCr> Str Hugh Brown's Cafe betUJCCn More and Hawkins, ijp the Plea was
all tije JllftiCCS. receivable,
becaufe it 15
^Matter in Fadt and peremptory to him that plends it ; p.rd tho' it was objeded that thereby all Trials
may be (laid, vcf it was faid that as a Releale or Matter of Bar may be pleaded and is receivable fo may
this at the Diicretion of the Juftices, if they perceive any Verity therein Yelv. iSo. S. C. and fays
iliat Yelverton J. reported to the Court that the JulHces of Serjeants Inn in Fleetftrect were all of Opi-
nion that it ism the Difcretion of the Jullicesof AlTife to accept fiich Plea, ard that this (lays the Ver-
dift ; But that it is otherwife of a Protection, for the' they allow a Protcftion, yet the judices may
take the Verdict De bene elTe ; But he faid that in 7 li. 3. in Prsecipequod reddat a Keleafe was pleaded
at Kiii Prius, and yet the Jury v.js tal.en ; but it is in the Difcretion of the yuftices to allow ordil'al-
low it. And he ahb reported it to be held by all the faidjufticcs, that in this Calc the Plaintiff could not
have replied to this Plea at the Kifi Prius, for the Juftices of Adife have no Power either to accept of
a Replication upon the Plea nor to try it, but only to return it as Parcel of the Record upon the Nili
Prius. Brownl. 145. S C. in totidem Verbis with Yelverton. Built. 91. ipoorc U. ©fOtril
S. C that the Court agreed that the Authority of the Juftices of Nifi Prius is only to take the Verdiitt
of the fury, and no other Plea.. Lane 81. 90, S. C.
Upon a Plea Puis darrehi Cotilwuatice, all that the Judge of AfTife can do is to Record tie Ple.t and
bring it up, and then the other Party may reply take IfTue or Demur, and tl-.e l\Iatter fliall be deter-
mined above. Arg. quod Holt Conccflit. 12 filed. 652. in Cafe of Grce v. Roll. Ld Raym Reo
:i7 S.C. ■ . ■ V'
10. But it is in the Eleaion Of tljC 3iUl!tCe0 Of ii5((i I^CUllEi whether See theKore
thev H ill allow fuch Plea or not ; fOC if tljCP pCrCElUC tljat tljC ^^lea Igi ^° P^- ^
Biiiitor]) tljcp map rcfufe it, fou it 10 tu tljcit Difctctioot :jn tljc Cam
Cafe at Sir Hugh Bro^^ic, IjClO Up CaUfiElD*
11. S'f 2 Coparceners bring a Real A£tion, anOtlje PattiC0 pleaU tO -J" " was
JITUC, nnO at Nili Prius one Demandant does not lue, t^C jlUtlCClEi Of ''*^'^' ^^at
Bin ]pnm may record the Nonluit. 28 m. 20. joZH^s
tririg J8jon,
and are at TJftte, and at the Kift Prius one makes Default, the Jultices of Nifi Prius pall not ^ive fiuh-
merit tl.at ttey fiall befever'd, haz Jhal I ceafe to take the Iiifiie/t and record the Default ; and others in a
contrary Opinion, and this feems to be of ceafing to t;ike the lurv ; but it f,ems that they cannot take
the Jury where the one of the Demandants makes Default. Bir. Nifi Priu';, pi. 8. cites 2 H 4 2-.
fi«« judge of Nifi Prius could not record a Non-fuit before the Statute of fork, 12 £". 2. 4. iz
Mod. 651.
12. But tIjeP can not fever them by Judgment. 28 ^IT. * 10. * Thjsfceras
mifprintcd,
and that it {hould be 20. according to pi. 11. and 15. &c.
13. But t\)t\> mav take the Inqueft for the other Demandant. 28 ^ff, S. C. ci.-ed
20. aojimseiJ* ■ i^J'Y-^
in Cafe of Gree v. RoUc. Br. Kifi Prius, pi. 2;. cites S. C.
14. So if both Parties had appear'd till the Inqueft fworn, and at
their coming back one had been non-fuited, pct tljC JillHtCClS maW tafeC
ti)ea?crma. 28^1^20.
E e e 15 $0
19"^
Trial.
Br Nifi 15. So a Si^iin brings Action againft 2, a!\5 one Tenant makes De-
Prius.pl 2v fault at the Nili Frius, VCt tijC JUftlCCS lljilU tafeC tlje JUflUCff, 28
cites S. C „ft- . ^
pei-Fifter StlU 2o.
They may 16. Thev have no Power to allow a Refceipt of Feidc in Default <f her
record a Baron. See Tit. Refceipt, (H) [L] pi. 12. 6c pi. 14. and the Notes there.
Prayer to
be received. 2 Inft. 4^5-
17. In Praecipe quod reddar, the 'tenant made Default after Default^ and
J. came and prayd to be received by Reverfion &c. The Demandant coun-
terpleaded the Refceipt, and fo to IJJiic. And at the Nift Prius the Prayee
pleaded Entry of the Demandant after the lafl Continuance ; and the De-
mandant demurred, becaufe he is tict Party till he be received ; by which the
Juftices difcharg'd the Jury, and gave the Parties Day in Bankj and fo
iee that the Jullices oJ: Isili Prius hz\Q Jiithority to record a new Plea,
and to dtfcharge the Jury, and to give Day in Bank. Er. Nili Prius, pi.
18. cites 37 H. 6. 2.
In Appe.1l 18. Where the Statute of 14 H. 6. cap. i. gives Power tothe Juflices
ccuwmiied ^j: j^jjj pyjn^ ^q gi^^ Judgment and E>iecntion in Felony and T'reafon before
t^ePlaimiff ^^''"'^j ^'^ the Party acquitted or attainted, yet they fliall not givejudg-
is non-fuited, mcnt oi Damages in Appeal before them of Felony ^ for the Damages is out
ihey may ar- of the Cafe of the Statute, by the Opinion ol the Jultices ; qutere inde.
raisn tie De^ gj._ ^^^-^ VtIuS. dI. 27. citCS 10 E. 4. I9.
Te>id/x7>t upon 7 r 1
the Declaration^ and adjudse Damages, ai:d iKijuh-e of the Mstiors ; per Fairfax J. Br. Nifi Prius, pi. 2S.
cites 22 E. 4. 19.^ Serjeant H.iwkin.s fays, that conftant Experience has ruled it, that JulHces of
jSIifi Priu.s cannot give Judgment of Damages in Appeal. 2 Hawk. PI C. 51. cap. 7. S. iS.^ S. P.
tho' they may aflefs D. images, and inquire of the Sufficiency of the Plaiutift to anfvver them. And ye:
if fuch Juftices are alio Juftices of Affife, and as fuch have an Appeal commenced before them, thev
may as juftices of A^flife, upon the Acquittal of the Appellee, not only inquire of Damages, but alio
give Judgment for thsm, both by the Letter and Meaning of the Statute 14 H. 6. 2 Hawk. PI. C. 201.
cap. 25. S. 141.
But hi Jiptal taken m B. R. if they are at Ifiie, and Nfjl Prius is granted, and i^t the Day ths Plaiute^
ij mn/nited, the ]\.\(tices cannot arraign the Dejendant upon the Declaration, as in B. R. for their Potver if
My to take the FerdiH and record it. '^Br. Nifi Prius, pj. 28. cites 22 E. 4, 19. per Fairfax J.
Jnd it was ip. Cognovit Jffioncm Re]i£ta verificatione, may be enter'd by a Judge
alfofaid, and ^f j^jfj pj-iug. Arg. 12 Mod. 653. cjtes Co. Ent. 172. Holt Ch. f.
S,"that agreed this. 12 Mod. 655. ^
if there be
2 Defendants inTrefpafs, and they ple.id Not Guilty, and at the Trial one of them Relidti verifica-
tione coo-novit Actionem, that the judge muft record it, and proceed againft the other. 12 -Mod. 655.
in Cafe of Gree v. Rolle.
Ld. Raym. 20. In F.jeBment againji 2, a Retraxit was enter'd as to one at Nifi Prius,
1^=P- '"^- and Trial againft the other, and held well per 2 J. againft Holt Ch. J,
according and Judgment affirm'd in Dom. Proc. 12 Mod. 651. Hiil. 13 VV^ 3.
ly, and af- Gree V. Rolle.
lirm'd in
Domo Procerum iS April 1702.
If a Judge 21. Judge of Nili Prius mzy do whatever is necejfirily incident tothe
of Niii Prius if^i^i^ as to take a * Challenge to the Array, or Juror, W^itnels &c. and
alhwaChal '^^ is by fubfequcnt A£ls of Parliament that they h.tve Power to give
ienge, it is all Judgments m fome particular Cafes, as Felony, 'Treafon, .^lare hnpedit.
fub modo; Arg. 12 Mod. 652. in Cafe of Gree V. Rolle.
for if he al-
lows it when it ought not to be, or vice verfa, and that appears on the Poftea, the 'frial fiat! .ffn for no-
thing ; but as t6 Things of Necejlty he is to allow them, as of Pleas puris darrein Continuance, as Releafe
between Day of Nifi Prius and Day in Bank ; becaufe the Defendant has no other time to plead it bur
at Nifi Prius, for that the Day of Nifi Prius and Day in Bank, as to Pleading, are the fame ; and in fuch
Cafe all he has to do is to receive the Plea, and return it upon the Pajlca, for the Judges of Courts above
to judge of ; per Holt Ch. J j 2 Mod 654. in Cafe of Gree v. Rolle.
* And
Trial.
199
* And he irny record a De?mmer to aCbaUer.ge. Arg izMod.dj^. -S. P. Ld. Raym. Rep. 71;^
Arg. in S. C.
22 The Judge of Nifi Prius mav receive a Non-Prof, at the JJftfes. 12 Mod.
Per 2 J. againlt Hole Ch. J. and affirm'd in Doin. Pioc. 2 Salk. 456. V^-l\2\''^
6. Pafch. 4 Ann. B.R. Greeves v. Rolls. s'c.° °'
This Cafe
Teems mif-dated; for Ld. Raym. Rep. 71S. fays it was affirm'd in Domo Procerutn, Saturday iS Apr.
1-02.
(U. b. 2) Jujlices of Ajpfi and 'Nifi Pnus. l^\iGix \y Zvl^m'
Power and * Original. thaf ihen
he defign'd
no farther
I. T^T//''' Prius of feuancnts in W. and the Record ivas to take the Ni/t ]f^'^'^^^ '"
i^ Prius at the Vill of N. and there came the Bailiffs of W. ^«^ p/^ch B°jfi-
Jhezv'd Charter, that no Inqueft floall be taken of 'Tenements m W. unlefs in nefs in their
IV. viud fray d that it be taken tn IV. Stouf. J. faid. This Claim ought properCoun-
to have been made in Bank ; tor our Record is to take it at N, and fo "^^> ^^^^ '^^
they did i Quod nota. Br. Nili Prius, pi. 38. cites 29 AfT. 13. brougrupt
the Courts
above, which would occafion great Expence, and {^reat Conflux of People to the Courts, and therefore
he conftituted the Writs of Nifi Prius, that the ^lattcl•s of the Law might be tried in his own Court
and the Fafts in the Country ; and therefore there was a perfect Uniformity in tlie Law, for the fame
Juftices Itinerantes in Vacation Time ; and henceforward, wlien they found that this anfwered the Ex-
pedition, the Juftices in Eyre were totally difufed. The Manner of contrivins; it was to direct the
Venue to return the Jury at fo.Tie Day next Term, unlefs the Juftices Prius tali Die & loco vene-
rint; and thus the Nifi Prius was at firll: on the Venire, and continued in that Planner from Ed. i. to
Ed. ;. For tlio' there were no Iffues return'd on the Venire to make them appear at Nifi Prius, yet it
was fo much a f;reater Difficulty on them to appear afterwards at Weftminfter, which if they did not
the Dillringas iffued, that it had its Effects to bring them in their proper Counties. The Writ was
contrived to command them to come into Court, bccauie it would have been improper for the Court to
have con-manded them to come into any other Place; lb that their Appearance before the Juftices of
Affiie is an Excufe for their Non-appearance in Bank : But if they did not appear at the Aflile, nor at
Weftminfter, there iffued an Habeas Corpus and Diftringas to bring them up. G Hifl of
C 3. 59.
2. The Juftices (i/'J^^' have Power to give Judgment immediately in ^^- Br.
their Circuit, or to adjourn the Parties before them at Weflminfier, or upon -^f^'^^) P'
Array quaff d to award Procefs to the Coroners, and for Default if the Coro- I-'^'a^"^*
tiers to the Ejliors Sz.c. Br. Judges, pi. 4. cites 8 H. 6. 12.
3. Contrary of Jultices of Niji Prins ; for they have no Power but to s P. Br.
take the Verdiif and adjudge the Challenges, and to record that which comes AfTife, pi.
before rhemfehes, and to flay from taking the VerduJ, if Protecfion comes &c. '^l'*\f}>^^
But net to give Judgment, nor to make Procefs ; quod nota DiverJity. Br. j],^^ juftL-es
Judge?, pi. 4. cites 8 H. 6. 12. of Nifi Priuj
can only hear and record.
4. If Day of Ni/i Prius be Mefne between the f.rfl Day of the Return cf
the Writ of N't/I Prius, and the fourth Day thereof., the Jultices cannot
take the Jury by the Nili Prias; (ovwhen the firfl Day ts p.ijl their Po\:ser
ts paft, as appears by the Words of the Writ ; and it thev take it after,
it is Error. Br. Kill Prius, pi. 32. cites 33 H. 6. 45.
5. At the Common Law Allifes were not taken but before Juflicss in * g,. jcjn
iyre (who fat virtute Bre vis every feventh Year. See Biicton, lol. i. Prias, pi. 5-.
and Bracton, lib. 5 & 11.) or in the Common Pleas. And this being a — Juilicei
great Moleltation and Trouble to the Recognitors of Allife, which °Lj^^''"..
Writ for the moil Part was in Ufe, for the Eale of the Country and Ex- jhe'coun';''.'
pedition of Juitice, it was provided by Mag. Chart, c. 12. .^uod recogni- by Force ii
tiones de nova Diffafina ^ de Mart de Ancefor^ non ccpiantur ii'fi in fuis >''■- ht-itu.-.-
Cciir.'
9 00 Trial.
of Weft, 2. Comitatibtts i3 hcc inoclo : Nos, vet (Ji extra Regruim ftiernniis) Capitaks
c. 50 h.we Jtijliciarn iiojlrt mittetitJuJiiciariosnqftrosperunumqueniqtieComitatiimfe^
To^nve'T fuel in Atuii^ qiii^c. capiant in Comitatibus tllis JJifas pradtifas. And
jpeiiaJ PAunt afccr was the Statute ot' * Wejt. 2. c. 30 made ; and by this it is provided,
for every Jj- &uod ajjigucntiir diio Jtijiiciarii jiirizti coram qiiibiis^ i3 non aliis capianttir
//?, thcge- yjjifa^c. ad plus [thrice'] per Annum. By which A£t Juftices of Niii
'"^iffion °"^' Prius were conltituted ot other Pleas, as well ot one Bench as the other,
ferves. Jenk, Coram qtiibtis Jiifiiciariis ^ Societate, (viz.) Coram dnohus Jtijticiariis^ 'vel
224. pi- S2. tino Milite ^c. And by the fame A£t the Jultices of Nili Prius have Power
■""■; ''"''^ to give ludgment (Sec. in Aliifes of Darrein Prefentment, and 3uare
the r,4e of ^"'?f^'^ i
iNifi Prius
is not by the Diftringas, but by the CommilTion of Affife ; for it is the 15 E. i. c. 30. which gives the
Trial by Nifi Prius ; and by that Statute the Trial by "SIR Prius is given before the JulHces of Aflife,
and at firit thefe Trials by Nifi Priu.^ were always had and made upon the Venire facias ; and indeed
the Claufe of Nifi Prius is by I 9 E. I. 50. exprefsly ordered to be inlerted in the Venire ficias, and
Trials by Nifi Prius continued to be upon the Ven. fac. till 42 E 5. 11. which requires that the Names
of the Jurors be firft returned into Court ; Per Holt Cli. J. 2 Salic 454. Pafch. 4 Ann. B. R. Bul-
lock V. I^arfons.
* Br. Nifi And then came the Statute of * 21 Ed. 3. De Fiuibtis, c. 4. and provt-
''^+'D^.'vf"r ^^^j .^iiod biquifitiones y Recognitiones capiantur tempore Facatioms, gene-
Prius pi "■ - ^^^ly Coram aliqiio Jiijiiciario de titroqtte Banco., coram qnibtis pLnitum de-
And yet " diid . fiierit affociat.Jibi csc, And alter by the Statute of f Ilvk, c. 3. it
that the In- is provided, That in Plea of Land the Nili Prius lliall be taken belbre
'3[|5'^ /"^y one of the Juftices where the Plea &c. And Cbap. 4. That no other
talien in the P^^^s movcd by Attachment or Diftrefs, lliall be taken betore any Juitice,
Bank, if either of the one Bench or the other generally, be the Plea betore them
they come ; or nOt &C.
and by the
Statute of zE 5. 15. KlCi Prius may be (rmnteil in Plea of L.i!7d, as well at the Prayer of the Demandant
as of tie tenant, according to tie Form cj the Statute of fork-
* Br. Nifi And by the Statute 14 Ed. 3. c. 15. Nifi Prius may be taken in any
rh" f R ' ^^^* ^^^^ °'' perfonal betore two ; fo that the one be a Juftice of the one
ron and " Bench, or a Chief * Juftice, or a Serjeant fworn.
tliat they may
record Nenf nit or Defaults, and may give Judgment in JJfife, Darrein Prefentment, or ^lare Impedit.
And by the Statute De Finibtis, c. 13. Jajficiarii ad AJJifas capiendas
afjignati deliberabunt Gaolas in Comitatibus Hits Jive infra Liberates qiiam ex-
trade Frifonariis quibiij'cmique. Vide le Recicat. del Stat, of 28 hd. i. De
Apellatts., which recites the Stat. De Felonia &c. But not that Felony in-
cludes Trefpafs in antient Time. See Stamf 57. The Statute of 3 H.
3. c. 7. gives Power to Juftices of Aifife to hear and determine Trealbn,
* Jenk. 224. concerning falfe Money. The Statute of * 14 H. 6. c. i. provides, that
ph 82. Jultices ot Niii Prius have Power, in all Gates ot Felony and Treatbn,
to give their Judgment, as well where the Party is acquitted of the
Felony or Treafon, as where he is attaint, and to award Execution &c.
And the Stat. 28 Ed. i. De Appellatis, gives Power to Juftices of Aifife
to try the Appeals of Approvers. And Juftices of AOife, by the Stat. 34
& 35 H. 8. c. 14. may write to the Clerk of the Crown De Banco Regis,
to certify the tirft Conviction in their own Name. But where Juftices
of one County or Circuit write to other to certity the Attainder of a
Principal, the bell Form is in the Name of the King. 2 & 3 Ed. 6.
c. 24. And by the Stat. De Articulis fuper Cbartas, c. 10. and 4 Ed. 3.
. g jj^g c.w. and f 7 i?. 2. Juftices of Aifife may hear and determine Confpira-
Statute of 7 cies, falfe Informations, and Male-procurers of Inquefts and Juries to any
R.i.cap.-. Plaint, without Writ, and without Delay; and of ConJederacies and
if the Parties Champerties, and Maintainers, Bearers, and Alliances by Bond &c.
NTp'^-^rn And by the Stat, oi' Ncrtbampton, 2 Ed. 3. c. 3. Juftices of Alfile ha\e
■^ '" ' Power
Trial. 201
Power to lieAr and deccrmine the Statute concerning Armour; Aifo totheExche-
punilh the Jullices of Peace, and others, who have not done their Olfice l^^'^'"'' '"'•'^''
in luch likeCales &c. And Jufticee ot'AHife ought twice in the Year tOyjXr'<jb«
proclaim the Statute 32 i/. 8. and other Statutes againft Unlawful Main- jums to hfe
tenance, Champerty, Imbracery, and unlawful Retainers. And by the ^]f*es, there,
3 H. 7. c\ I. Juftices of Aifife take Eail of him who is acquit of Murder '^*" f'^..
within the Year, to anfwer the Appeal of the Party. And by 33 H. 8. Z'^i] ^j'^
Juftic<is of AHile caufe the Statute againft unlawful Games to be pro- jurors may
claimed in their Circuit. And J uftices of Aifife make Execution ot the /«« out the
Statute 13 H. 4. c. 7. of Riots made in their Prefcnce, upon Pain ofWf^''^'
100 1. And by 2 //. 5. 8. Commiffion Ihail be awarded to inquire of fo'iy /je^^^.
the Default of Juflices of Alfiie, and of the Peace. And by the Stat, ot titieofi^ E.
Wcjl. 2. c. 37. and 2 Ed. 3. c. j. Jultices of Affile ought to inquire of ?//.'« -^"or-
Return, or not Return of Sherills. And Jultices of Allife to inquire ^^ "/ ''■'*
of all Points of the Statute of 23 H. 6. c. 10. concerning Sherifis, Un- f'^lf^ln
der-lherirt's, and their Clerks, Coroners, Stewards of Franchiies, Bai- Pnus, ifls
litfsof Franchifes, Bailiffs and Guardians of Prilbns, tor their Extortion, he joined ixjitb
and for delivering of them who are not bailable, and for detaining thofe ''7"ft'"o^
who ought to be bailed. 2 A^ar. D. 99. Juftices of Atiife held Plea in fj'J^£^*jtl
Appeal of Murder, by IVeJi 2. and 3 H, 7. and of Robbery by Commif- asitfeems*;
lion of Gaol Delivery. And by 23 Ed. 3. c. Jullices of Affife may in- for he is a
quire of Default &c. of Punilhment of Viftuallers &c. who fell at un- ^''■^'?^°^
reafonable Prices. 12 Rep. 31. 32. The Refolutions of the 2 Chief '^^^q^^'^I^j
Juftices and 7 Juftices, Trin. 5 jac. a Serjeant is
Serviens Lc-
gis. Bi- Nifi Prius, pi. 5-. Jnciently tvio of the Jad;;es of the Courts of Weftminfter went the
Circuits, and took Affiles &c. and delivered Gaols ; and becaufe frequently they could not give proper
Attendance in the Country, Power was given to Judges of Niji Prius as aforefaid F.N. 3. 177. Ac
this Day fudges in their Circuits have 5 Commiffions ; ift. Of Oyer and Terminer. 2dly. Of the Peace.
5dly. Of "Gaol Delivery. 4thly. Of Ailifes. 5thly. Of Nill Prius. Jenk. 224. pi. 82.
6. By iS Eliz. i8. IJfue joined in the Chancery^ King's Bench, Common
P/eas, or Exchequer, may be tri^d by Nili Prius in V\^eftminfter-hall.
7'he Sheriff of ^WAdlQitx, or his fitfficient Deputy, Jhall give Attendance,
'the Jurors and Parties Witne(fes bound by tbe 'Trial.
7. By 12 Geo. r. 31. The Chief J uff ices, or Ch. Baron, and in their Ab-
fence, any other Judge or Baron m Term, or within 8 Days after, may try
JJues of Nift Prius.
Sheriffs Sc are to give Attendance (3c. as by 18 Eliz. is provided.
8. A Judge of Nili Prius upon Trial of a Writ ofEnquiry.^ is only an Af-
fijiant to the Sheriff, and has no judicial Power ; and it the Parties come
to any Agreement there, the VYay to make it elFeilual is to bring it to
him to fign, and after move above to have it made a Rule oi Court j
Per Holt Ch. J. 12 Mod. 610. Hill. 13 W. 3. B. R. Anon.
(U. b. 3) Pleaded at Nlfi Prius. irhat may be. fj'.^^^f '"
I. TN Affife, Per Tank. \(VerdiB paffes for the Plaintiff, and the De- At the Nift
y fendant gets a Releafe before j'udginent, yet he cannot plead it ; K]^^^'^}^^
but if he be oufted he fliall have Affife, ad quod non fuit refponium. Br. 111"%^^'
Continuances, pi. 42. cites 43 Affi 19. PJaiTit^, anA
he releafes
before the Day in Bank, the Defendant fhall have Audita Querela. And from hence it fecms that the
Defendant cannot plead it at the Day in Bank, after the lad Continuance. Br. Conrinuances, pi. 5 5. cites
;6H. 6 24.
Fff ^0
202
Trial.
So in Pr,^r//ie qiioii redd.it at the N;Jl Prias it pafj'dfor the Dernavtiunt, nrd he, mefjie bettueen this and the
Day in Ba7ik, releafed nil his Rip-ht to the Tenant, and got 'jjadpvient, and entred, the Tenant fliai I have
Aflilc; for heliad no Day to pie.id his Relcai'e before. And fo note, that tlie Day of Return of the
Writ of Nifi Priui is no Day to plead. Br. Continuances, pi. S5. cites 5 H. ;. 40. Br. Nifi Prius;
pi. 34. cites S. C.
But it fcems, that at the Day of Nifi Prius before the Jury taken, tlie Releafe which is made betiveen
the Jward of the ff'rit of Nifi Prim, and the Day of Nifi Prius, may be pleaded at the Day of Kifi Prius j
Quod quaere Br. Continuances, pi. 27. citesai H. 6. 10.
Jnd in Dower, Per Newton, if the VV.v.mx'S releafes to the Defendmt mefnc between the Award of
the Nifi Prius, and the Day of the Nifi Prius, there, \i\.hzjin-y remains for Default of Jurors, the De-
fendant may plead this Releafe at the Day in Bank after the lall: Continuance, tho' he does not offer it at
the Day of the Nifil'riu-s. (Contra' it fcems,. if the Jury had been taJcen at the Nili Prius. Br. Conti-
nuance, pi. 50. cites 2z H. 6. i.. Br. Continuance, pi. y,. cites S. C.
Br. Protec-
tion, pi. lo.
cites S. C.
2. A Man fliall plead Plea cfter the hfi Continuance at the Day of Ad-
journment where the Parties and Jury appear at the fourth Day of the
Nili Prius in C. B. Br. Continuances, pi. 8. cites 28 H. 6. i.
3. At the Day of the Nili Prius, theDelendant pleaded that one of the
Plaintiffs ivas dead at D. in the County of N. after- the laji Continuance j
Judgment of the Writ, and the Plea recorded, and the Matter adjourned
into Bank. Br. Nili Prius, pi. 3. cites 34 H. 6, 45.
4. In Forcible Entry they were at Ilfue, and at the Nifi Prius in Pais,
the Defendant pleaded that the one of the Plaintiffs, viz. R. S. wasfx-
communicated after the lafi Continuance^ and fhewed Letters of the Bilhop
thereof And it was admitted that he may have this Plea after the lalt
Continuance well ; Quod notas for the Argument was upon another
Matter. Br. Continuances, pi. 39. cites 36 H. 6. 17.
5. In P"ijecipe quod rcddat, the 7'enant made Default after Default &c,
and came J. N. and faid that the Rcverjion is to him, and prayed to be re-
ceived i and the Demandant traversed the Receipt upon which they were
at IlTue, dnd at the Nifi Prius he who prayed to be received faid that the
Demandant had entered after the lafl Continuance, and demanded Judg-
ment fi Aftio. And no Plea per tot. Cur. becaufe he is no Party to plead
this Plea before that he was received in Faft. But it was admitted clear-
ly that fuch Plea may be pleaded at the Nifi Prius ; and the Court re-
corded this Plea, and dilcharged the Inqueft, and gave to the Parties
Day in Bank. Quod nota. Br. Continuances, pi. 34. cites 37 H.
6. 2.
6. It w^as admitted, that at the Nifi Prius the Defendant may plead
Payment of Part of the Debt after the lafi Continuance to the Writ j and the
Juftices Ihall record it, and difcharge the Inqueft. Br. Nifi Prius, pi.
26. cites 5 E. 4. I. 8.
7. After Inqueft taken by Default, the Defendant came before Judgment^
and pleaded that he and the Plaintijfput thonfehes in Arbitrement &c. after
the laft Continuance. And by the Opinion of the Court he has no Day ia
Court to plead this Plea ; and it was faid that he fhall plead no Plea in
fuch Cafe, but as Amicus Curiae; but oi Matter apparent he fhall be re-
ceived. But in Cale of the King he Ihall have this for Plea ; for he has
no other Remedy. But in the Cafe between common Perfons he ihall
h'XVQ Audita G)!ierela. Contra againft the King; Per Fineux. Br, Con-
tinuances, pi. 38. cites 21 H. 7. 33.
(X. b) Jurors.
Trial. 20C^
(X. b) Jurors. IfTues. [In tobat Caps they lofe Jffiies. ]
I. T Jf 3 full Jury appears,' pet if any are challenged out, bv which the A Jury ap-
!_ Jury remains for Detauk of furors, tljC OtIjergI tUljO 'nwfee DC= P,"''r'^„!'' „^
ftuit (tjaii loft tijctt mm. 4 1;. "6. 7. p. 12 3:a» 15, e, Lme ot'the
Jurors were
challcn<^ed and drawn, that there was not a full Jury ; and therefore the other Jurors who did not appear,
bur made Default, loft their Illues for Non-appearance. Roll R. 13. pi. 17. Pafch. iz Jac. 13. R.
ColVelow's Cafe.
2. Jf an JlTuE lie aluarnctJ to be tn'ctJ by 2 Counties, anu apanncl
iss return D cut of one Countv, anti anotljcr l^anncl out of tije otljec
COlUltJ?} antI nonCj or not lo mmy as ought, come out of one County,
buc there appears a full Inquelt of the other County, tlUt tIjCP CaunOt
XKf it, iiecaufe it ougljt to U trien by faotfj Counties, bp toijiclj tljc
3inque{l remains for Default i tlje Jurors uiljo mal^e Default from
tlje County, UiOcreof a full Jnquett appears, il)all not lafc jmies,be'
cauft tlje inqueft Does not remain bp tljcir Defaults 48 afl; 5^
CBut ClUiEre.
3. Jn iJlfllfC, if Defendant makes Default at the firft Day, upon which S. P. And
the Aifife is awarded, auD Plaintiff commanOeti to mafee Ijis Plaint, ^^jp.°'^?''
anO tbe Jurors maice Default, pct tljep fijuU UOt lOfC IffUeS, bUt Ha- VenTre Fa
beas Corpora fljall be alUarOCD* 3o2lir*i7- cias. Br.
Affife, pi. 165. cites ii AfT. 7.
4. Sif a full Jury appears, and is fWorn, cyitl after one is drawn by S P. per
Confent, tfjofe Uiljo 50 uot appear fljall not loft tijeir Itfues, \p, 12 ^^,^'""> ^'°-
2a. 15, E. andTod- '
Roll R. 15.
pi. I-. Mich, izjac. B. R. Coflelow's Cafe. Per Holt Ch. J. Comb. 250. in Cafs of Smart v.
Williams.
5. K enough Jurors appear, {o that 12 are /worn upon the IlTue, the reji Qntra'xhere
wliich make Default /'W/ not Ivfe any Iffues. Br. Ilfues Ret. pi. 16. cites '^-^^ J"'''y "•
T- "■■ °- '• Default of
furors ;
there thofe who appear fliall have their Appenrancc mark'd, and they fliall fave their Iflues ; but thofs
who do not appear Ihall lofe their Iflues. Br. IfTues Ret. pi. 16. cites 4 H 6. 7.
6. If the Inqtteji remains for Default of Jurors, and Dijirefs with Tales
is a-wardcd, returnable &c. there at the Day, thofe who appeared before
flmll not be demanded upon any Pain, unlels the Party exprejly pr.^js it, but
only upon their Iffues. Br. Pain, pi. 10. cites 4 H. 6. 7.
7. A Jury which appears, and after does not come, Ihall lofe Iffues.
Br. Iffues R.et. pi. 14. cites 4 E. 4. 37.
8. W^hen a Jury is demanded, and 8 appear, and the rcjl not, by which
they arc to lofe their Iffues, and at the fame time the Plaint if ts demanded,
and is nonffiited, this ihail fave Iffues of the Jurors i quod nota. Br.
Iffues Ret. pi. 14. cites 4 E. 4. 37. Per Littleton.
9. Where the principal Jury do not appear fully at the Niji Prius, the
Jullices lliall fwear de Circumftantibus, and there thofe who make De-
fault Ihall lofe their Iffues, notwithftanding that the Jury be full, by
reafon of the Circumftantes added to the tirft Jurors. Br. Iffues Ret,
pi. 16. cites 35 H. 8. 6.
(X. b. 2) IfKl23
204-
Trial.
(X. b. ^) Iflues loft &c. How much.
I. 27 Ed. I. r-p//£ Sheriff' pall levy no more IJfiies than he has a War-
St. I. C.2. X rant for.
2. 35 H. 8.6. Upon every JVrit of Habeas Corpora, or Diftringas, with
a Nili Prius, the Sheriff' jh all return IJJ'iies upon every Perfcn nnpannell'd at
leafi S s. and upon a fecond iVrtt 10 s. and upon the third Wrtt 13 s. 4d.
and upon every further Writ doaile the JJfues laji fpe'i/ied, on Pain of $1.
Provided., 'that upon a reafonable Excufe Jor Default of Jppearance of any
Juror., the Juflices, upon the Oaths of 2 IVitncffes, may difcharge fuch
Juror. ,
3. 27 Eliz. 6. Upon every Jirfi JFrit of Habeas Corpora &c, the Sheriff
pall return in Iffues upon every Perfon impanelFd Ten Shillings at leajt,
and on the fecond Twenty Shillings, and upon the third Thirty Shil-
lings, and upvn every farther Wnt double the IJfues lajl fpectfied., on Pdin of
5 1. upon returning lefs Iff lies.
(X. b. 3) Iflues. Levied. How. And of H'lmt.
S. p. Dal- I. TF a Man leafes his Land for 'Term of Tears, the ShtnK may return the
ton's Sheriff, J[^ Lejfor in Iffues, if he will, notwithltanding the Leafe i per Paf-
550. cap^gi- ton. And per Cot. This is true, if he will pay them himfelf; and fo
^'^" And ' ^^^ ^'^^'- ^^ cannot dijlrain the Termor during the Term, and by confequence
yet the She- if the LeiTor atiier takes Feme and dies, his Feme JTiali not have Dower
j-ifF might , during the Leafe. Br. Ilfues Ret. pi. 5. cites 7 H. 6. 9.
turn'd Rent in Iffues, but he cannot diftrain the Termor or Leffee during the Term.
Br. Iffues i2. It was demurred in Law, if the Sheriff may diftrain the Beajls of
Retorn'd, ^ Stranger, found upon the Land of him who has loft Iliues in the King's
pi. 12. cues (^pm-j Jor Non-appearance. Brooke fays, it * feems to him that he
* S P. Dal- rnay j for the Land is thereof charged. Br. Diftrefs, pi, 40. cites 5
ton's Sheriff, H. 7. I.
250. cap. 91.
But fays, it feems the Beads diftrain'd ought to be levant and couchant ; and fays, fee Do£t. & Stud.
f I 5. a. F. N. B. 101. Br. Diftrefs, dd. 5 H. ;. i Moratur in Lege.
A Warrant ilTued out of the Exchequer to levy 4 1. for the Queen, for Iffues loft by J. D, Per Gaw-
dy & Fenner J- the Sheriff may jiot take tbe Bea/is of a Stranger in the Land of him that has loll the
Iffues to the Queen. But perPopham Ch. J. by viay of D'tftrefi he 7>iay take the Bealh of a Stranger, if
levant and cDuchavt on the l^and of him that hath loft Iffues ; but not to fell them, and fo lezy the /JJues.
Goldsb. 140. pi- 50 Hill. 43 £lii. Stafford v. Bateman. Cro. £451 pi. ;S. Mich. 37 & ;S £liz.
B. R. S. C adjudg'd, that the Sale was not lawful, tho' they might be diftrain'd for the Queen's
Debt.
3. €e_fiy queUfe fhall be impannell'd in a Jury, and if he lofe Iffues,
they are leviable of the Lands in the PoffeJJion of his Feoffees. Quod fuit
Conceffum. But it was faid that it commenced by Sufferance, for the
Advantage of the King. Kelw. 42. b. Pafch. 17 H. 7.
4. If one Jointenatit lofes Iffues, and the Beafi of his Companion come
upon the Land, thofe Beaks fhall not be dijlrain'd for thofe Iflues ^ for the
Beafl of his Companion were in by Right, but the Beafts of a Stranger
are there by Tort. Dalton's Sherifl 330. cap. 91.
5. All
Trial. 205
5. All the Lands ^ "which a 'juror has at the Time of a Venire Facias fervcd
upon him, ilull be liable to his IlFues for the Advantage of the King.
And it he has no Land at the Time of the Venire Facias ferved, the
Sheriff who returns him in Iirucs,ihall be charg'd to pay fuch Ilfues him-
ieU. And if fuch Return was by his Prcdccelior, the next Sherifl'fhali
have Writ of Deceit againlt his Predecelibr. Dakon's Sheriff 330. cap.
91.
6. If the Lord of a Manor lofe IlTues being fummon'd upon a Jury, S. C. cited
Procefs iliall iliue out of the Exchequer to levy them upon the Lands cf^°^^\^'ru
the Copyholders and LeJJees for Life, and Tears, Parcel of the Manor ; lor the j^j,, d/liver-
Lofs of liiues lies upon the Land as inherent Servitude by the Law, into mg the Opi-
whofefoever Hands it comes. M. 12 Ja. B. per Cur. agreed, and that it "'on of the
it the common Praftice of the Exchequer. See Prerogative (F.) pi. 3. ^°""- ^'1'-
7. AComn.oier''s Cattle Sixc not upon a Special Inqiiifition liable to betaken b\ in'ca're
upon a Forieiture of IlTues, by him that has Paiture in the Land ^ biit of iBritton
othevivife upon a General Inquilition, for the Reafons aforefaid. Per Holt "o, <lo\i,
Ch. ]. in delivering the Opinion of the Court. Comb. 471. Hill. loW.
3. in" B. R. in the Cafe of Bricton v. Cole.
(X. b. 4) IlTues. Lands liable, after ^lienat'/on or
Death.
1, T N Error, it was faid that the Heir in 'fail iliall not be charged Ihid. pi. z-.
\ with the Iffaes loji by his Father in his Lite, nor thole Iffues Ihall cites Dnft. £c
not be levied upon the Lands in Tail ; quaere inde, for the Contrary i^^ ' " i,*'
.- LTnT,/-r>^i- i-n ^ i~>ontra that
leems to be Law. Br. Ilfues Ret. pi. 15. cites 47 L. 3. 8. it fliall be le-
vied upon
the Poffcffion of the Hcii- in Tail, and fays that the Cafe above fecms not to be Law, Dalton's
Slierirt 530 cap. 91. cites fame Cafes.
2.' Where 'Tenant for Term of Life is impannell'd upon the Jury and ^^- Dalton's
Ibfes Ilfues and dies, the Land Iliall fliall be charged with thole I'li'ues, Sheriff 3 50.
and they Ihall be levied upon the Polielfion of him in Reverlion. Br. Doft&StuT
IffuesRet.pl. 23. cites Docl. and Stud. lib. 1. 5:,38.FiiKii
59— S. P. For
when they are forfeited the whole hheritunce is charg'd with them, for wliich this Reafon isoiven that
-. . . t ,• I Ct T * I .,777'../' j.J_ 1..1 1', ..I._r I ill-__l. >i ,. I
Eep. 30S. S.P. in S. C. cites Dodt. & Stud. lib. i. cap. zz.
3. If a Afan feifed in Jure Uxoris is impannell'd and lofes Iffiies and SP.Dalton's
dies, the Lands Ihall be charg'd with thole Ilfues and they Ihall be le- Shentf;;©.
vied upon the Poflelfion of the Feme. Br. Iliues Ret. 23. cites DoSt. &. Doct* '&"^"
Scud. lib. I. Stud, 53S.
4. In Debt, it was laid that if Ilfues are return'd upon an Abhct, and ^-^ Dalton's
after he is removed and made Abbot of another Houfe or Bijhop, his Sue- ^'^^'''ff Sjo-
ff/or ihall be charged of the Ilfues. Br. Ilfues Ret. pi. 25. cites 22 H. "^C^&''""
6. 4- Finch 59.
5. A Juror was challeng'd for his Franktenement. Yaxley fiid he had Br. IiTnes
fufficient Franktenement the Day of the Pannel made and ajter he aliened ^^^- p^- ' ?•
it. Per Vavifor J. this is no Matter; for this is his own Ad,, lor the Land Da^ron^""
llmll be charg'd to the Iffues which he lofes, otherwife it is where a sherift --o
Man feifcd in Jure Uxoris.^ cr for Term de aufer f'/e, and the Feme cr Ccfly cip. i9"Vi;c5i
Gg
out
,:,„ s. c.
2o6 Trial.
que Fie dies, tbts ts the AB of God. But Davers and Wood contra j for
when he has Land he will be in Fear to be perjur'd, for his Lands fhall
be wafted, which cannot be now. Br. Challenge, pi. i6o. cites 12 H.
7- 4-
Br. Iflues (^ gut where a Man is dtftrain''d, and after ke makes Alienation.^ yeii
Ret. pi. 15^ his Land Ihall be charg'd of Ilfues in the Hands of the Alienee, of the
Dahoii's liTues pending the Procefs. Br. Challenge, pi. 160. cites 12 H. 7. 4. Per
Sheriff; 50. Davers and Wood.
cap 91. cites
s. c.
See (A. O
(Y.b) Jurors. Demand of the jurors. \Vpon a I*a'in?^
S. p. But he I, T jf n Juror appears, pct tf I)C makes Default ,when he comes to be
fliaii be de- j^ f^orn, ijc fl)flii uot bc ncmniiijcii upon a I3ntn imlcrsi tlje Party
";:,fhtif-praysit. 4JX6.7.Ciinn.
fues only
B
r. Jurors, pi. i J. cites 4- H. 6 6 S. P. Br. I(Tuc^ Ret. pi. 14. cites 4 E.4. 37 — Br. Pain, pi. (5. cites
4 E. 4. ^6. S. C Br. Enqucll, pi. 41. cites S. C. If" a Juror appears, and is adjouvii'd upon Pain,
and makes Default, in this Gale, becaufe he fhall make Fine to the Value of his Land per Annum, it
Ihall be inquired by the others his' Companions of the Jury ; for in fuch Cafe the Court cannot know it.
8 Rep. 41. a. in dPrifSllcp's Lla^c, and fays that with this accords 4 E. 4. 6. and 9 H. 4. 5. atid 20 Afl".
II.
Br. Jurors, 2. Jf t^^^o Pannels arC return'd out of two Franchifes tO ttP flU SIITUC,
pi, 26. cites ^m, oj^ pannel makes Default bp ttljICl) tijC SlnqUeft VeUiamgi fOC DC=
S C That' filWlt $Ct upon Suggeftion [that] the jurors who make Default are in
in vemrefa^ the viii, tljcp WW Ccmauticti upoii a pain* 30 aav 42,
sheriff retuvn d a Paiinel fent to him by Bailiff of the Franchife, and they A'./ not appear. Birton faid they are
in the Vill, and pray'd that they be dem.-inded upon Pain, which Thorp granted. And this contrary
to I^aw as it is faid.
3. In Aflife, the Jury were demandable; Perfey pray'd that they
they miiht he demanded upon Pain, and fo they were, and did not come ;
and becaufe it was teftified by others that they were in the Vill, the Pain
•was forfeited. Perfey fiid there are o.thers enough in the Vill who were fiim-
nion'd &c. and pray'd that they be put in the Pannel. Shard faid, you
have loft this by Reafon that the others were demanded upon Pain, which
the King fliall not lofe, and if this had not been you Ihould have had
your Prayer i and io it was done in another Aflife at the Prayer of Filher.
Br. Jurors, pi. 25. cites 30 E. 3. 3.
SceCA.opi. {^'^) Jurors. Amercement.
S P.Br. A- 1. 1 'I Pffl) j0 a Habeas Corpus agailtlt tljC 3UrOr0; if tIjC)) make De-
mercement, \\ fauh tljCJ) fljall &£ ametCCD* lO C» 4- ^P* ^1? JLlttlCtOll*
pi. 40. cites .
ioE 4. and 49H. 6. ip. per Littleton.
S. P. Br. A- 2. 31f 9 Venire Facias \st ferved after IlTue, and then the Parol is put
mercement, fjne Die by Demife of the King, anD aftW a Refummons 10 fUCH, and
pi. 46. cites .^ jj^g fanie vYrit he has a Habeas Corpus auaUtH tl)e 'im^X^, if tljC
10 E, 4 and %m\^
Trial. 207
SlUrOfS make Detuult ac the Return ol ic tljfP fljall bC amCCCCH* 10 €* 49 H 6 19.
V. TO h " perLutle-
4» *9* 0- ton.
3. But !f at tljc Dap of tijc Return m Defendant be effoign'd, m' J,^^,,^;-
tl)e3iuror0 inafee Default, m tijc 2urorjS fljall not be amerccD* lo ^ent, pi. 45.
<£♦ 4. 19. b. cites 10 E. 4,
4 3!f tlje 3111WC0 make Delault at the firll: Day, at which Day the and 49 H.
Parties may be elFoin'd, pct tljC)? fljaU IlOt bC amerceD, as in OH aiTlfC Of ^- '^^■
Darrein Prefentment, Juris ucrum, and Mortdanceltor. i ^» 3. 12. b. r\A^O
5. [So] upon a Venire facias returned, if tfie 3]UrOr0 mafee Dcfaillt, ^^°^ l^z-
pcttDcp m\\ not be aincrccn, bccaiifc tljc l^artics map be cffonVti at spb^
tlic fitit Dap ; anD fo if tSjep ougijt to appear, pecaouchture it uiouID Amerce-
b'e to no puupofe. i (£» 3. 12. ment; pi. ds.
6. Juftices Itinerants may amerce a Jury for Default ^t the common ^}^^^ ^' ^"'
Summons. And thisfeemsto beof thofe who are generally fummoned '
to ferve the Sellions, and make Default. Br. Amercement, pi. 68. cites
II Aff. 7.
7. When Continuance is taken in Bank, the Affife fliall be demanded at
the firft Day, and by Default they fhall be amerced. But in Pais bv
Continuance, the AiTife Ihall not be demanded nor am.erced ; Per Stone.
Br. Amercement, pi. 35. cites i2Alf 14.
8. Jurors in Alfife were amerc'd, becaufe they did not take the View
after Precept of View fent. Br. Amercement, pi. 59. cites 21 E. 3. 16.
9. A Juror laas challenged upon his Appearance, and tried in, and made ^
Default when he floould be fjoorn, and hoth Parties zvould ha've challenged
him, and were not fuifered j but it was inquired oi the Value of hi.i
Land per Ann. and Fine thereof fet for the Contempt. Br. Jurors, pi.
18. cites 36 H. 6. 27.
10. Decern tales returned, and the Plaintiff recovered, and Manucap-
tores Juratorum returned, and the Defendant brought Writ of Error.
Choke faid the Jury Ihall not be amerced upon the Decern tales i there-
fore need not to return Manucaptors no more than in Venire facias upon
the Habeas Corpora, they fliall be amerc'd ; therefore there fliall be Ma-
nucaptores Juratorum return'd. Littleton, and Cumberford Prothono-
tary faid they fhall be amerc'd as well as in the Habeas Corpora. And
per Choke, then ought Manucaptors to be returned. Br. Amercement,
pi. 30. cites 9 E. 4. 14.
(A. c) Jurors. Demanded upon Tmih In ^johat Cafes they Sce(Y. b)
ftiall be demanded upon a Pain.
3. TF any Of tlje Jurors appear, the Court may charge them to inquire
J[ whether any of the other ^iUCOtlS [were] within the Vill lince the
Return. 48 lElT. 5- soatT^ii.
2. gnD if they find that they were, t&c)? fljaU be HemauBeti upou a
pain, 48 air, 5-
3. anO if they do not come, tf)ep fljall be ameCCeU* 2oain II. Br. Amerce-
„ _ - . . . ment, pl.rto.
citesS. C. That if a furor is in the ViU, and is folemnly demanded, and does not come he (hall hi
amerced to the clear Value of his Land per Annum, over and above all Charges and RepriVals &c ■
Ibid. pi. 55. cites S C. Br. Challenge, pi. 109. cites S. C.
4. If 10 Jurors appear only, by which the hiqnejl remains, and Prccefs
(foer with Taks^ there at the Day the firlt who appeared fliall be demand-
ed
2o8
Trial.
ed upon a Pain, if the Party prays ic, and otherwife no:. Br. Inqueft,
pi. 58. cites 4 H. 6. 6. 7.
5. In Trefpafs the Parties were at Ifae, and at the Dijiringas Jurat.
they appeared, and made Points in the Panel as ufual, and the Array was
l-hdlkf/g'd and 7'riors pivorn &c. and the Court arafe, and. Day given till
the Morrow, and g were deinafided and appeared, and the 10th who was
prick' d before did twt appear, and the one Party nor the other would not
pray that the Juror lliould be demanded upon Pain. AndperDanby,
The Juror Ihould be demanded upon Pain to make Fine for the Advan-
tage of the King. Contra per Choke, and that they Ihall no: be de-
rnanded upon Pain, unltfs the Party prays it, and Ihall lofe nothing
but their Iffues J which Laken agreed. Er. Inquefl, pi. 42. cites 4
E. 4. 36.
6. If 8 appear upon a Jury, and others are in the Fill there, and the
Party Jays that enough are m the Hall, and prays Voire dire, thofe who
appeared Ihall be examined upon it, and the King ihall have Fine of
thofe which are in the Hall, and do not appear, and yet they Ihall
not be demanded upon Pain Nili Pars id petit, but Ihall lofe Iliiies i Per
Laicon, & Littleton concordat with Choke and Laicon. Br. Enqueft^
pi. 42. cites 4E. 4. 36,
(A. c. 2) Exempted from fervlng on Juries. JFloo are.
.A?id Remedy, if returned.
ThisSta- i.Wejlm. 2. cap. TT^NaQis, That old Men above the Age 0/ * 70, or
tute is a di- 38. 13 Ed. I . Pj f Sick, or \ Difeafed at the Time of the] i>ummons^ or
rea Pi-ohU j^^^ dwelling in the Country, fjall not be put in Juries of Petit Aj/tfes.
felf ; and . .
therefore the Party grieved may have lii: Aftion againft the Sheriff, without giving of any Notice of
the Age, or any Sicknefsj or Kon- Commorancy ; and yet the Ufe is to iuc out a Writ grounded upon
this Aft to the Sheriff, that he return them not. But without QLieftion Notice by Word is good, if
]>Jotice were requifite ; and thisfecms to be in Affirmance of the Common Law. 2 In(f. 447.
* A Man of 7 2 Years of Age w as denied by Rollc Cli. J. to be excufcd to ferve, becaufe he was of
an able Body, and had his Senfes and Undeiflandirg perfcdt. 2 L. P. R. 124. Tit. Jury and Jurors,
citesHill. 1651. B. S. Butler's Cafe.
7 &= 8 /^. 3. c/ip. 32. S. 6. Enafts, that if the Sheriff, his Bailiff, or Deputy, pall allow of a>iy Ex-
emption to any Perfov under the Age of -0 Tears, fuch Sheriff Qpc. pall forfeit the Sum of 20 /. to tl e Party
grie-veJ, or to ivhitnfoever paU fue for tie fame in any Court of Record at U epmivjler.
\ As if he be Paralytica! ov Leprous, or ifricken with any other continual Sicknefc. It alfo extended
to Men that are blind, deaf, of no found Memory, or fo lame that they cannot well go nor (tand ; and
thefc fhall take the Benefit of this Statute, of what Age foever they be. And this Pointis in Affirm-
ance of the Common Law ; for thefe be good Caufes to remove a Coroner. 2 Inff. 447.
^ This mull be intended lb infirm as he is not able to ferve ; and this is aUb in Affirmance of the
Common Law. 2lnfl.447.
2. R. E. brought Writ of the Chancery and of the Privy Seal, to be
difcharg'd of the Jury and of AfTife, becaufe he was a Baron, and ought
not to be fworn of the Jbry in x\llife, nor Recognizances, againll his
Will. And it was oppofed if he holds by Barony, and if he and his An-
ceftors had always held by Barony, and came to the Parliament as Barons,
and hefaid that he held by a Part of a Barony, and that he and his An-
ceftors had held fo always ; and alter, by good Advice, was difcharged
of all utterly. Br. Exemption, pi. 3. cites 48 E. 3. 30.
See (B. 0^2) ^^ j^ ^as agreed per Cur. that if a Man who has Charter of Exemp-
nem -!_See '■^°"' '•^*'' ^^ ^^^^ "'^'' ^*^ impannel'd upon any Jury, and pews it to the
(D.c)pl.5. Sheriff
Trial.
209
Sheriff', and yet he recurns him, that he Ihall have Aflion upon the Cafe
againft the Snerifi^ Br. Actions fur le Cafe, pi. i. cites 18 H. 8. 5.
4. If the Sheriff has return'd any Lord in Juries or Alfifes, then he
ought to bring a IVrit to the ^ujitces, reciting that he is a Peer oi the
Realm, commanding them to difcharge him, otherwife he Ihall be fvvornj
and ii he does not appear he ihall lole Iliues &c. F. N. B. 166. (E).
5. Clerks, who have Lands or Tenements by Defcent orPurchale, may Dalton's
be put and fvvorn in A/fifes and Inqueils as well as other Lay-Perfons, as Sheriff, 312.
appears by the Regilter, and it feems that the Law is fuch. But if fuch " c^'bu'"
Clerk be in the King's Service, he Ihall have a fpecial Writ to difcharge fays, that
him. And by a Writ there it appears that a Clerk ihall be put and re- this 'is now
turn'd in Pannels and Juries, if he be tiot in the Service of the King, or o"t of Ufe.
other Peribn for whom the King will write to the Sheriff that he do ^^; .^^'"S
not impannel him &c. But it the Sheriff do impannel and return fuch „/ the Tiu-
Clerks, they ought to appear i otherwife they fhall lofe I Hues, and they <//« '7'^w;/^
have no Remedy, if they have not fuch VVrit as before. F. N. B. ?^'" '^'«'-»V
-.AA. t\C\ man Attaint,
I66- C^-) and hefore
the Return cf
the Pam:el he became a Mitiifier of the Church ; and npw at the Day of the Return he appear'd, and pray'd
to be difcharg'd, according to the Privilege of thofe of the Miniftry. But the Court would not allow
of his Prayer, becaufe that at theTime of the Pamiel made, he was a Layman ; wherefore he was fworrt
pneof the Jury, 4 Leon. 190. pi. 300. Mich. 19 Eliz. C. B. Beecher's Cafe.
6. The Sheriff ought not to return Coroners, Verderers, nor Forejfers,
nor other Officers of the Foreft. F. N. B. 167.
7. tenants in ancient Demefiie cannot be impannell'd to appear at Wefl- They may
mint1:er, or elfewhere, in any other Court, upon any Inquetl, or Trial oi^^'^^^^'^nx
anyCaufe. 4 Inil- 269. cap. 58. Eff.ttt
. he do not
return them ; and all the Tenants may fue the Writ, and if the Sheriff do Contrary to the Writ, they
fhall have an Attachment againft him ; and any of the Tenants may fue the Writ in his own Name if
he will. F. N. B. 166. fF) 167. _ '
A Juror furraifcd that he was a Tenant in Ancient Demefne, and had his Charter in his Hand, and
pray'd to be exempced from the Jury, and difchargcd ; but the Court did not regard it, but caufed him
to be fworn. And Wyndham faid, That he might have his Remedy againft the Sheritf. And Nclfon
Proclionotary, faid, If he had made Defiult and loft HTues, he might jhenv his Charter in the Exchequer^
uiov the Jmercement efireated, and there he fliould be difcharged Le. zo;. pi. zSt. Pafch. 51 EHz.C.b!
Klills V. Snowballs. — Cro. E. 141. pi. 6. S. C. but the S. P. does not appear Ow. 44 S C but
not S. P.
8. Upon a Petition from the Governor and other Gentlemen of the This was
j^£ q/^W/^;^? to the King in Council, fuggelling that the Inhabitants of '^°'""^""'- .
that Ifland ought to be exempted jrom fervmg on Junes &c. //; the County as t 1,'° "''^
of Southampton, unlefs in Matters concerning Lands, and 'things, relating tc from a MS.
the faid Ifland, and this /or the better Defending the faid Ijl and. ThisofLd.Ch.
Matter was reterr'd to Sir John Key ling Ch. J. and to call to his Alfilt- ]■ Keyling,
atice Atcher J. the Judge Ci the laft Aflife there, who certified. That
they had call'd before them the Clerk of the Aliife lor the County of
Southampton, and others of great Experience, who inform'd them, that
in all tbrmer Times SheriHs have been chofen, and Grand Jurymen re-
turn'd of the Inhabitants of the faid Ifland i but that the Judges had al-
ways been caretul, upon extraordinary Occalions of Danger from any
Foreign Enemy, to excufe the Appearance ot thofe Inhabitants, when
their Attendance was heceffary for the Defence oi the Place. And they
certified, that they conceived it would be a great Inconvenience to the
County of Southampton, that the Inhabitants of fo large and rich a Place
as that Ifland is, fhould be totally exempted from thofe Duties which
are incumbent on the Inhabitants of that whole County &c. And after
this Certificate they heard no more of the Bufinels. The Cafe of the Ifle
of Wight.
H h h 9- 4£i'i
*o
2[0
Trial.
9. j^ & 5 U^. & M. cap. 24. S. 21. Enafts, Than no Writ de non po-
rendis in AlFilis & Juratis//^^// be granted^ tmlefs upon Oath that the 6'iig.
geflions are true.
10. 6 IV. 3. cap. 4. S. 3. Enafts, That every Perfun uftng and exerctftng
the Art of ah Apothecary in the City of London, or within 7 Miles thereof^
being free of the Society of Apothecaries in the f aid City, and who pall have
heenditly examined and approved &c. forfo long 'time as he jhall exercife the ■
faid Mijhry, and no longer, fhall be exempted Jrom ferving on any Jury or
Inqiiejl. And if any fuch ferfon Jhall be returned toferve in any Jury fftich
Ferfon, producing a fcftimonial under the Common Seal of the Corporation^
of fitch his Examination, Approbation, and Freedom, fjall be difcharg'd.
is. 4. Other Perfons exercifing the faid Art of an Apothecary in any other
Parts of this Kingdom, Wales, or Berwick, and laho have ferved as Appren-
tices 7 2'ears, according to the Statute of 5 Eliz. Jhall likewife be exempted
from ferving on furies, forfo long time as they pall ufe and exercife the faid
Art, nnkfs fuch Perfons voluntarily confent toferve.
11. By7 8?8^?'3. cap. 21. <?// Seamen duly regi^er^d are exempted from
ferving on Juries.
12. 7 y 8 ?f^' 3. cap. 34. S. 6. Enacls, That fio Quaker, or reputed
^laker, fhall frve on Juries.
13. g Geo. cap. 8. Enacts, That the feveral A^s for exempting Apothe-
taries from Parip and Ward Offices are made perpetual.
(B. c) Jurors. Exempt hy Charter. In ivJmt A^lo?2s
they fhall be diicharged by the Charter.
Br. Exemp- I. T jf 3 ^Htt \^^^ 3 Cljiittet of e.teuiption tijiU Ije fljaU not be put
tion, pi. 5. ^ injuratis, Afiilis, feuj^ecognicionibus ahquibus, ^Zt III VVric of
accorriingV ^'s^^^' "P"'" '^"'^^ ^"^ ^'^^ ^'^''"^ ^^^^^' ^^^ ^^^^^ ^^^ ^^ mmpteii if
-Trials per liE u tnipanneil'D ; for tjc 5oc0 not come in, in tljts Cafe, bp fucD
Pais, -,6. p rocefis a0 tijej? 50 in otijcr Cnfe0, but be i0 cboren bp tbe ©att) of 4
^sc' mmW, ano noiu be i% iw a manner SluDge uitDi0 Cafe* 39 €*
3- 15 b*
Br. Exemp- 2. jf a ^wx Uiljo ba0 fudj Cbartec of ej;emption, be impannell'D
«°"' p' 5- in an Attaint, be fl)ail uot be etcuipteD bp tlje Cbactec in tW i©rit*
circs o. ^. ,|iij; *
accordingly 29 w* 3* ^i* D*
■ S. P.
Trials per Pais 76. (S 7)
Trials per 3- 3f s 9^m^ toljo iMis fudj €Wttx. Of (Stcmptiott, be impaneirti
Pais -6. upon a Grand Inqueft UpOU 3 CommttTlOn of Oyer and Terminer, tO
s c^^Br inquire Of jfelanicjs, 'QCreafongi, Confpiraciesf, Deceits fc» be fljall
Exemption,' uot U etemptcti bp tbtjs Cbarter, becauie tije Cbarter bas net tljj0
pi. II. cites ClaUfe, Licet tangat nos & H^redes noftros ; aUH tf)tlS "BUfineflS COIV
I c.— Br. cernsi tbe Mm> 42 ^ff* s- anjungerr*
pi. 4. cites S. C. Br. Oyer Sc Determiner, pi. 6. cites S. C.
4. i6€*i* Eot, Claufarum ^emb. 3- ^rebe He iSon ponenna
JRatlUlpbO He S19* CorOnatOre in Alhlis & Juratis quamdiu intendit
Officio fuo.
5. dUietanCia de communi Summonitione ad communia placita in
Comitatu Wilts -sceftc ^0. gtc, apiiD }©ef!monafteriunn 17 Ci-
Ectiilo
Trial.
211
Kotttto Claufanini SJ9emb. 9 am tljcre ^tmb i. tlje lifee De Conv
munilnis ©uinmonitionitiuis in Cffcr.
6. AJarlb. cap. 14. $2 H. 3. Enafts, Thaty?cf^ ^j ^^jw C>^<tr/frj o/'^Ex- This Aft i,
eiiiption not to be impanelled upon Juries.^ fl^^^^t fiotwitbjianding their Privi- in Affirm-
/?9-t', he fiKorn upon great Ajjtfes, Perambulations.^ in Deeds and Writ nigs o^anccofthe
Covenants.^ (where they be named for Witnejfes') and in Attaints, and when 1^^°^
their Oaths are fo reqtiijfte, that without them Jujlice cannot he admin ijlred. Inft. 127.
^neral Charters of Exemption in Affifis, Juratis & Recognitionibus, as are mentioned in this Statute,
Hiall not be allowed <u;here the King is either foU Party, or where the Suit is tarn pro Domino Rege quam
ftio/'/^yJi, without thelc or the like Words, Licet tangat nos. 2 Inft. 130.
7. If there be not fufficient Hiindredors befides thofe that have Charters
of Exemption for Trial ot an liiue inanAifion wherein an Attaint lies y
there Charters Ihall be difallowed, becaufeSine eis Jafticiaexhiberi non
poccll j and fo in all other like Cafes. 2 Inft. 129.
(B. c. 2) Exemption by Charter. Allowed. In what SeccB.c^
Cajes. .And How.
I. TN Debt they were at IlTue, and the Jury appeared, and the Serjeant
J^ pleaded for the Mayor and Burgelies of Oxford a Grant made by
King E. 3. that he hs^d. granted to the Mayor and BargeJ/es of Oxford, that
they (hould not be fworn with Foreigners, nor Foreigners with them, and that
certain who were impanelled with the Burgelfes were Foreigners ; Judg-
ment if &c. And per tot. Cur. I'he Burgejfes who are impanelled, when
they are demanded to he fworn, may fhew the Charter, and fh all plead it, but
not the Mayor and Corporation. Quodnota. Br. Patents, pi. 19. cites
4 H. 6. 6.
2. He who has Exemption fhall he fworn in Cafe of Neccfp.ty. Quod Note, that
nota. Br. Jurors, pi. 23. the King
may grant
to a Man Exemption from Juries ; hnt if there are not others fufftcicnt, it pa'! not he allowed, for the
Mifchief of Failure of Jufti'ce ; and this Ijy the Statute of Marlebridgc 14 [which fee at (B. c) pi. 6]
Br. Exemption, pi. 8. cites 12 E. 4. 17.
There cannot be an Exemption of Perfons from being Jurors, unlefs there arc ftrfficient Jurors be-
^(/fj the Perfons exempted, to make Trials. Per tot. Cur. Cro. C. 260. pi. 3. Trin. S Car. B. R. in
Cafe of Tredyramock v. Ferryman.
3. If the King grants an Exemption to all the Freeholders of one County, S- P. For by
and to all the Citizens in a City, this is void. 2 Inft. 129. '.'^'^ Means
•^ there would
be a Failer of Juftice. Trials per Pais 77.
4. Fndiffment for a Riot at Canterbury being to be tried at Bar, and a Sid. 243.
enire returned, th '^ "' ' "' ^"^ j -/-■.... .n. •.,_ D,r,i- ..
James, J'hat the Citi
Venire returned, the Sheriff' upon the Dijhingas returned a Grant of King P^lch. 1 7
James, 'That the Citizens f hould not he returned toferve on Junes out of the ^[fj^' ^'
City, but only in Cafes ofTreafon. The Court doubted if fuch Privilege ^,^ a^j^'"/
might come by the Sheriffs Return, and thought it could not, but that i).u, <SoD^
the Party when he comes in, may excufe himlelt by it, according to 30 itcp & al
Air I. and 18 H. 8. 5. And Jones, who was Counfel for the City, ^- ^^ ^^'
feemed afterwards to agree thereto. Lev. 159. Hill. 16 & 17 Car. 2. '^^nAihftlc
B.K. The King v. the City of Canterbury. was agreed
by all, thai;
by fuch Grant they fhall not be exempt from ferving in Juries in B. R. without an expre/s Cl.uife that
they Ihall not ierv'e Coram ipfo Rege; and that fo it was adjudged in this Court 4 Jac in the Cafe of
thi-i
2 12
Trial.
this vfrv City \nd Tw ifden doubted it tlic Charter extends to this Cafe ; for the Charter is De om-
nibus Feloniis TranfgrelTionibus See. and/<Tjx not Where the Kinc is Party; ar.d the King fhall not be
exchided without expreli Words, and the Words above arc fatisfied by Appeals of Felony, and other
Trefpaff-s b-tween Parties. Hard. 3S9. S.C. argued by the Reporter ; and fays that m Patch i;
Car 2 the Court held that this Privilege did not come properly before them upon the Sheriffs Return,
but that the Jurors, being Freemen, ought to demand it fever.illy upon their Appearance upon the Dl-
iVrineas But the Reporter fays this Teemed to him a bird Cafe, that the Court fhould be of Opinion
that the Sheriff might not return the Privilege, and vet that if he did make fuch Return, he might be
liable to an Aftion on the Cafe, as was faid, and not denied by the Court. Ideo Stude bene de hoc &
de Lep:e inde.- But Sid. 244. S. C. fays the Court denied, that Action on the Cafe lies againft the
Sheriff for fummoning Perfons privileged See (A. c. 2) pi. 2.
(C. c) jurors. Exefnpt by Charters, ^^t zdjat Time it
fhall be allowed.
Trials per I- A ^ Nifi Prius tljc 'Bafliff0 of a ©ill ma? fljetu a >Srant of tfie
Pais, Ty. jl\ CvtHg, that to try Contniftsor Covenants made within the Vill,
(87)' cites the Inquell Ihali be all ot Denizens, UJitijOUt putting \\\ aupifOreigtJetlSi
^ ^- nnn tW fljall be allouictii anti ttje JFoicifincriS ouacn* 29 m. is-
ari)utigcn.
2. 3if tijcre be a Grant to a Vill bP tlje l^ina;, that the Burgefles of
the Vill Ihall not be impleaded of Land in the V ill out of the Vill, and
that the Affiles Ifiall be taken within the Vill, and the Burgefles fliall
not be put on Inquefts out of the Vill ; if a 'BUCffCfgi bC fllCO OUt Of tbe
* Trials per ©lU in Affife, anH tljC Tenant flips the Advantage Of tije Cljactec b?
Pais ;-. taking of a Continuance, yet the Burgelfes ot the Inquell Ihall have
^^'^ "^" Advantage Of tljC CbatteC, COUCta * 3° ^IT* i.
■ ■ 3. Note, per Billing J. Grant made to A. B. that he fhall not be
fworn in Alfife or Jury, Oy King H. 6. &c. --juho is an Ufurper of the Crowfiy
and King in Polfelfion, and not of Right, is good and allowable by the
King in Right ^ when he Ihall be regrelled ; which appears in the Cafe of
Bagot. Br. Exemption, pi. 4. cites 9 E. 4. i. 2.
4. At the Ilfue juror appeared by Diltringas, and faid that he was of
Norwich, and that the King had granted to them that they fhould not
be put in Inquefls out of Norwich, and prayed to be dilcharged ; and
the Charter was fhewn, and it was, that the King had incorporated theid
by Name de Civibtis S Communitate ; and after in the Charter, Cone c/Ji nuts
Civibtis prxdictis, qitod non pnantur in Juratis &c. omitting this Word
Ccmmanitate . And after ic was enaSed by Parliament, that all Grants
made to the Citizens and BurgeJ/es, fljall be good according to their Contents.
And by fome, the fecond Grant of Exemption from fury is void, becaufe it
does not agree -with the Jirjl W'ords of the Corporation. But feveral agreed
that it had been good if it had been Folumiis, quod Cives fhall not be fworn,
without Concedimus. And if the Grant be not lufficient, the Act of Par-
liament fhall not aid it; for it is Secundum eorum Contenta, which, if
the Patent be not good, the Aft is not goodi and that if the Grant be
good, every Citizen may take thereof Advantage particularly, and this
notwithftanding that he does not come at thefrfi Day, but at the Day in
which he fhould be fworn. And the fame of pleading Ancient Demefne
or Cinque Ports, but contra of Conufance of Pleas. Br. Corporations, pi.
65. cites 2 1 E. 4. SS- 56.
5. But if the Juror of N. he fworn, and after the Inqtiejl remains for
Default of Jurors, there, at the other Day the Juror of N. fhall not have
Advantage of the Charter ; for he was fworn before. Br. Corporations,
pi. 65. cites 21 E. 4. 55. 56.
6. Note
Trial. 2 1 3
6. Note per Cur. where the Citizens of N. have a Charter, that they S- f- ^ In**
j*?;^// «of ^tf impanelled in any Jury extra Civitat. f/iam, and one of them is ^^°'
impanelled, and appears in Bank, and pleads this Matter, this Jhall not
ie allo'j^cd nor tried till a fall Jury appear^ neither in Attaint nor in other
Aftion i for then it may be tried whether he be a Citizen of the llimeVill,
and not before. Br. Exemption, pi. i. cites i8 H. 8. 5.
(D. c) Jurors. Exempt by Charter. How to be
allow'd. JVbere ^johhout H'^rlt.
r. T JT a i^iin fie impatindl't! of an Jnqucff, if Ije fets forth to the s. p. see
X Court a Charter Of ^KUiptlOlt of the fame King, in whofe Time ijl^ f^'^^-
he ihews it, it fljall lie alloiu'o uiitijout Wzxt, 39 €♦ 3* 15* b* Br S^mV
tion, pi. 5.
cites S. C Trials per Pais 77. (Sj) cites S. C.
2. In Attaint one of the Grand Jury pew'd Letters Patents of the
King bearing Date Mefnc between the Pannelling and this Day See. that
hepoiild not be put in Jury nor Inquejl., and pray'd to be difcharged.
Wangford faid, He was impannell'd before the Date of the Patent, there-
fore he lliall be fworn. Per Prifot, fome of my Companions thought
that he Jhould be difcharged^ and therefore it is bell that both of you
challenge him ; and fo they did, wherefore he was drawn. Br. Ex-
emption, pi. £. cites 35 H. 6. 42.
3. If a Man has a Charter of Exemption, and Jhews it to the Sheriff,
yet notwithltanding he may return him ; for the Sheriff is not to judge
of his Charter, nor to allow or difallow thereof: But if he will have
the Effect of his Charter, he mttji fue out a Writ of Allowance of his Char-
ter, and deliver the Writ to the Sheriff', and pew his Charter to him; and
then if the Sheriff returns him, he may have his Aftion upon his Cafe
againll the Sheriff, and fo mull our old and other Books be intended.
2 Inft. 130.
(D. c. z) Ltjls of Perfofis to ferve on Juries return d,
and exhibited. How. And hoijo the Famjel is to be
made.
I. 7 y 8 ?f' 3."|7>Na6ls, That Confiabks &c. at Michaelmas yearly pall
cap. 3 1. r J return Perfons qualified to fer-ve on Juries to the Sef/Jons ;
and that a Copy of fuch Lifts pall be delivered to the Scf/tons, and that the
Sheriff' pall return no other.
2. 3 y ^Ann. cap. 18. Direffs Juftices of Peace, at the General .Quar-
ter Seffions after Midfunimer, to iffuc Warrants to Conjlables to make Lifts of
JurorSy which Lifts are to be returned at Michaelmas Scjftons on Pain of
10 1, for Default of the High Conftable., and 5 I. for the Petty Conftable.
3. 3 Gey. 2. cap. 25. S. i. Enafts, That the Perfons required by >] ^ 8
W. 3. cap. 32. and by a Claufe in 3^4 Ann. cap. 18. to groe in, or who are
by this A& to make up. Lifts of the Names of Perfons qualified to frve
I i i 0/;
214
Trkl.
on -f lines, JJjjU (c« Ktqiujt tu any Furijh Ojjiccr, ivhojhall have tri his Cttf-
tody any of (be Rates lor the Poor or Land-Tax) have Liberty to itifpe^
fiich Rates, and take the Names of ftich Perfons qiialiped dwelling ivtthin
their PrccinSs ; and floall yearly, 20 Days at leafi before Michaelmas, upon
2 Sundays, fix upon the Door of the Church, iviihin their Precintis, a
Lijl of all fiich Pcrfons intended to be returned to the Quarter Sefftons ; and
Jea\ e a Duplicate of fiich Lifi with a Ch'arch-Warden or Overleer of the
Poor : And if any Perfon not qualified fioall find his Name mention'd in
fuch Liftj and the Perfon required to make ftch Lift jh all rcfufe to omit him^
the Jitficcs at their Qj.uirter Seliions, on Sattstacl ion from the Oath of the
Party ccmplain:ng, or other Proof, Ihall order his Name to be ftruck
out.
S. 2. If any Perfon required to give in or make tip any fuch Lift, pall
wili'uUy omit any Perlon whofe Name ought to be inferced, or inferc
any who ought to be omitted, ox fly all take any Reward tor omitting or
inlerting any Perfon, he Ihall, for every Perfon fo omitted or inferted, tbrfeic
20 s. on Convidion before one Jufiice cj the County &c. -ivhere the Offender
fijall divell, on t he Conj effion of theOJfender, cr Proof by one IVitnefs on Oath,
one half to the Informer, the other half to the Poor of the Parifh &o\ for which
the Liji is return d ; and if the Vsnahy flail not be paid within 5 Days, jt
Ihall be levied by Dillreis and Sale (if Goods, by Warrant from one Jtijiice;
and the Jufiices before whom fuch Perfon fb all be conviifcd, pall certify the
fame to the nest Quarter Stf/tuns, which p: ill dirciJ the Clerk of the Peace to
infert orftnke out the Name. Jnd Duplicates of the Lilts, when delivcr'd
at the Silfions, and entered by the Clerk of the Peace, pall duriP.g the Sef-
ftons, or within 10 Days after, be tranimitted by the Clerk of the Peace to
the Sherilt, and the Shenp pall take care that the Names be enter'd alpha-
betically, with their Additions and Places of Abode ; and every Clerk of tht
Peace negle^tng his Duty therein, fh all forfeit 20 s. to fuch Perfon whofoall
profecute for the fame till the Party be convicfed ttpofj an Indiifment at the
Quarter Sejpcns.
S. 7,. If any Sheriff or Officer pall fummon and return any Perfons'to
ferve on any Jury before the Juflices of AJJife, Niji Prius, or 'Judges of the
Great SeJJions in Wales, or of the SeJ/ions for the County- Palatine, whofe
Name is not inferted in the Duplicates tranfmitted to him by the Clerk of the
Peace ; or if any Clerk of the ^'ijife. Judge's AjJ'ociate, or other Officer, fhall
record the Appearance of any i^cvion fo fiimmo?i'd and return'd, who did
not really appear, then any Judge of Affife, Nifi Prius &c. pall, upon an
Examination in a fummary IVay, fet fuch Fines upon fuch Sheriff ^c. for
every Perfon fo fummon' d and return'' d, and for every Perfon whofe Appear-
ance pall be fofalfely recorded, as the f aid Judge jh all think meet, not ex-
ceeding 10 1. nor lefs than 40 s.
4 Geo. 2. S. 4. No Vax'Loris fhall be return'd as Jurors at any AJftfes or Nift Pritis,
cap. -. S. I. £;v_ yyi-io have ferved within one 2 ear before in the County 0/ Rutland, or 4
Enafts, that jg^j^^ j,, ^^^ County of York, or within 2 lears in any other County, not being
\blll mtex- a County of a City or Town ; and if any Sheriff jhall wilfully tranfgrefs
tend to the therein, any Judge of Ajftfe Sc. is required, on Examination and Prorf of
County of fuch Offence, m a fummary Way, to fet a Frnt upon fuch Offender, not ex-
TXs:.. ceding 51.
VO Perfon n II r
(lyall be returned to ferve as a Juror at Nifi Prius in Middlefex, ivho hits been return'd at Nift Prius in thefaid
County in the 2 Terms or Vacations next preceding, under fuch Penalty upon tie Si.eriff &c. as might have
been infixed for any Offence againfl the Jaid Claufe.
S. 5. Every Sheriff ^c. ffjall regifter the Names of fuch Perfons as fliall
he ftimmoned, and lerve as Jurors at any Affifes kyC. alphabetically, and the
times of their Services ; and every Perfon fo fummoned and ferving, Jhall^
upon Application to the Sheriff' kJSc have a Certiticate, teltitying his At-
tendance, which the Sheriff Sc is to give without Fee, and the Book Jhall be
tranfmitted by the Sheriff k3c. to his Sticctffcr,
S.6. No
Trial.
.5'. 6. No Shcnff or other Pcrfoti jhall take any Reward to excuie any
Perfon from icrving on Juries ; mni vo Officer appointed to fmmnon Juries
ihii.U lumnion any Perlbn other than llich who(e Name is fpeciried in a
Mandate lign'd by the SheriiF&c. And if any Sheriff orOjjKer pall isoil-
pilly tranfgrefs in the faid Q'/cs, any "Judge (f yijjife ^c. viay^ on Exnmina'
tion and Proof of jiich Offence^ in a [ummary Way^ Jet a Fine on any Perfon
fo offending, not exceeding loi.
S. 7. It fhall be fiifficient for any Conftables, Tithing-men, or Headbo-
roitghs, after they have corn-pleated the Lijls of their PrecinCfs, according to
7 fc? 8 IVill. 3 cap. 32. and 3 ^ 4 Ann. cap. 18. and this AH, to fubfcribe
the fame in the Pretence of one Jtiftice for each County ^c. and at the fame
ftime to attelt the T'riith of fuch Lifts, upon Oath, to the befi of their Know-
ledge or Belief ■, and the Lifts floall (being ftgn''d by the J lift ices) be deliver'' d
by the Conftables &c. to th; High Conftables, who are to deliver in fuch Lifts
to the J^itartcr ScJJicns, attefttng, upon Oath, the Receipt of fuch Lifts from
the Gonfiables ^c. and that no Alteration hath been made ft nee their Receipt
thereof.
S. 8. Every Sheriff ^c. in England ftiall, upon the Return of every
Venire Facias, (unlefs in Caufes intended to be tried at Ear, or where a
fpecial Jury Jhall beftruck by Rule of Court) annex a Pannel to the Writ,
containing the Names, Additions, and Places of Abode, of a competent
Number 0/ Jurors named m fuch Lifts, the Names of the fame Perfons to
be inferted in the Panel, annexed to every Venire Facias for the Trial of Iffues
at the fameAfftfes ; which Number of Jurors floall not be leis than 48, nor
. more than 72, without Diretiion of the Judges appointed to go the Circuit,
or one of them, by Order under their Hands ; and the Writs of Habeas Cor-
pora, or Diftringas, fubfequent to fuch Venire, r.eed noi to ha.ye inferted in
the Bodies of fuch Writs the Names of the Perfons contain'd in fuch
Pannel i but it Jhall be fufficient to tnjert in fuch IVrits, Corpora feparaliuin
PerJfbnarum in Panello huic brevi annexo Nominatarum, or Words of like
PiUport \ and to annex to fuch Writs Panne Is containing the Names returned
in the Pannel to the Venire j and for making the faid Returns and Pannels,
and annexing the fame, no other Pees Jhall be taken than what are now al-
lowed.
S. 9. F.very Sheriff or Officer, to whim the Return of Juries in the Court
0,'" Grand Seliions in any County of W 3i\^s pall belong, pall, at leaft 8 Days
before every Grand Sejftons, fummon a competent Number of Perfons qualified,
out of e\erv Hundred and Commote within fuch County, fo as fuch Num~
her be not lefs than 10, or more than 15, without the Direilion of the
Judge of the Grand Sefjions by Rule of Court ; and the Officer fljall return a
Lift, containing the Names of the Perfons fo fummon' d, theft'rft Court of the
2.d Day of every Grand Sejftons '■> and the Perfons fo fummon d, or a com-
petent Number of them, as the Judges fliall diiett, and no other, ihall
be named in every Pannel, to be annex d to every Venire, Habeas Corpora,
and Diftringas, for the Trial of Caufes in fuch Grand Sefjions.
S. 10. Every Sheriff or Officer, to whom the Return of the Venire for the
Trial of Caufes before the Juftices of the Sefjions for //;c Counties Palatine of
Chefter, Lancafter, or Durham, doth belong, fhall, 14 Days at lefft before
the Stfjions, fummon a competent Number of Perfons qualifted, fo as fetch
Number be not lefs than 48, nor more than 72, without the Direction if
the Jtidges ; and fhall, 8 Days at leaft before fuch Sefjions, make a Lift of
the Perfons fo fummon d, and fuch Lifts fhall be hung up in the Sheriffs Of-
ftce ; and the Perfons named in fuch Lifts, and no others, ftyall be fummon\i
tofeerve on Juries at the next Sefjions ; and the Sheriff is to return feuch Lift
on the Jirft Day of the Seffions ; and the Perfons feo feummond, or a compe-
tent Number oi' them, as the Judges fhall dire£t, and no other, Ihall be
named in every Pannel, to be annexed to every Venire, Habeas Corpora, and
Diftringas in feuch Se/fons.
6". II. The
2 1C.
2 r 6 Trial.
— ^..^ ■ ■" -■ ' ■ ■ ■ ■ -*
S. II. fT/j'tf jS'-ame of each Perfon j'uiiiinond and tnipanelPd, with his Ad-
dition and Place oj ahode, lliall be writcen in diltinct Pieces ot Parchment
or Paper ot equal Size, and pa// l>e deliver d to the Marjha/ of the Judge
i^c. by the Uiiderjbc;-iff.y and fha/l by the Direciion of the Alarjhal, be rolPd
up all in the fame Manner and put into a Box or Glals, and when a
Caiife is brought to be tried^ fome indiilerent Perfon ihall in the open Court
draw out 12 of the Papers ; and ij any of the Perfons drawn jha/l not a'p-
pcar^ or be cha/lengd and Jet ajide^ then a flirt/e'er Number 'tt/l iz be drawn
■ivlco pal/ appear, and iht faid 12 Perfons fo firll drawn and approved,
their Nanus being being mark'd in the Panne/ ^ and they being [worn, Ihall be
the Jury to try the Caufe, and t/oe Names of the Perfons [worn jha/l be kept
apart in fome other Bos &c. ti// the fury have given in their Verdiif and the
fame is recorded, or ti// the Jury be difcharg'd, and then the fame Names
fha/l be ro/rd up again and return" d to their former Box Sc. andfo toties quo-
ties.
S. 12. If a Oiukpall be brought on to be tried, before the Jury in any
other Caufe pall have brought in their Verdict, or be difchargd, the Court
may order iz of the Relidue to be drawn as bcjore^ for 'T'riai of the Caufe.
S. 13. Every Perfon whofe Name pa// be draitn, and who Ihall not ap-
pear, Z'W/i^ ca//ed 3 'Times, on Oath made that fuch Perfon had been fttmmon^ d.,
ihall forleit for every Defati/t (un/efs fome reafonab/e Caufe of Abfence be
proved by Oath to the Satisfaction of the Judge) fuch Fine not exceeding 5I.
nor lefs than 40 s. as the Judge foa// think reafonab/e.
S. 21. This Acffja/l be read once in every Tear, at the Quarter Sefjions to
be he/ d for every County or P/ace within England and JFa/es, next after the
Zj^th of June.
This A£"t is made perpetual by 6 Geo. 2. cap. 37.
(E. c) Challmge to the Array., JVho mafy take it.
Bi-. Chal- I. T il5 Affife, it tlje Tenant anfwers by Baily, $IjC Baily may chal-
JO. Bailiff in Affife may have all Challenges to the Array and Polls as his Mafter might; quod nota
bene. Br. Challenge, pi . 1 59- cites 9 H. 7 . 24.
2. After Iflue join'd, the P/aintif tender'd a Challenge that the De-
fendant was Couftn to the Sheriff, and pray'd a Venire facias to the Coroners.
The Defendant denied the Challenge ; and How the Plaintiff might have
an indifferent Trial, the Challenge being true, was the Queftion. And
the Juftices faid the Challenge lies not on the Plaintiffs Part ; but if he
mifdoubts the Sheriff, he mufi ft ay till the Sheriff is out of his Office. Cro.
E. 844. pi. 29. Trin. 43 Eliz. in Cam. Scacc. Green v. Dennis.
(E. c. ^)
— ■>» — —
Trial. 2 1 7
(E. c. 2,) Challenge to the Hm?dred. fp^jat.
1. T -& is an ancient Latu in Plea of Land if jfliic Ijc tafeen bctloecrt
1 Iparties, tuat tycrc (Ijal! be 4 Jurors ot the Hundred III tlje iaaic
Panncl. 19 ip. 6.48.
2. 7 H. 7. cup. 4. Jti^raiutljat of lano; time itijn^ been ufen in sin?
JirilC to be trieD within the City oi London tO be ilDUIltteD a ^033
Cijallcnfie (Nothing within the w'ard) fo tljat tto Iffue uuiyijt be trtcii m
anj) Jl^atD Unler^tljere were 4 Perfons having Lively hood to the Value
0I40S. *a Year inhabiting within the laid Ward, tiJC tijC J©atD i0 in '''**^
jOaturc of a DunbreD m otijec Counties, ana tbe faib Cljallenge * 1:^1^'^)
for tIjC InCOnbCniCnCe oulted by the laid Statute. L^-'^v^^v.y
3. jjfan JnCjnCft comes de Corpore Comitatus, Upon anWUe of No Br. Chal-
fuch \ ill before allciyeD, tijcrc fijall not be anp Cljallenge to tije i)un= '^ 'ge, pi 59.
brCb, beCaUfe No Place is limited whence the Country Ihouid come, j""^-
but luijctc tije Sljctiff plearc* 8 jp. 9. 3 2. b. ,uodTddat ;
Per Prifot,
v;lere the fjfiie is No fitch fi/ne, or No fuch Place, the Panncl fhall be of tlie Bodv of the County, and
there it is no Challenge to fay that the Juror has nothing within the Hundred. Br. Challenge, pi 87. cites
5; H. 6. II.
4. Jtt Aflife, if tIjC Sheriff returns that there are not any fufficient Br. Chal-
Jurors in the Hundred but fuch as are within the Fee of the Plaintilf '^''S'^'l^'^-
no CijaUcnse tliall be taUen tljat tljetc is not anp IpunoteDot m tljc where ~
one
l^auel, 45 air. «. aUjubgcn* ot the p^rt.cs
is Lord of tli
Hundred ifhere the iffne arifis, the Pannel pall he of the Hundred next adjacent, and of the Body of the
County ; and there is no Challenge for the Hundred Br. Challenge, pi. 8;. cites 57 H. 6. 11.
S. P. Co. Litt. 157, a. That there needs no Hundredor be retura'd at all.
S- 3if tbe S)betiff returns that there are no more of the Hundredj be fljall "^ ''■*'*" P^''
tnfee of tlje rpunbreb abjoinino; aiS many as fljaU be fufficient. 19 Jp.6. ^f' '^<-
4S. ^'^>
6. jf a Cballenge be tljat tijcre is not anpDunbrcboc ccturnco, it f' chai
map be averr'd to the Court that there is not any fufficient in the Hun- ; ^.^i c d
dred who is not within the Fee of the Plaintiff tbO' it bC llOt tetUmCO Fi^h tir"
bp tbe ©Ijenif i anb it map be tricb h\> Criers, anb if it be founti challenge,
true, tbe arrap l^jall be affirmeb. 45air. i. abjubijeo. Dubitatur p' '^^
3 p. 6 CballenSC 19- according-
Trills per Pais 127. (156, 157)
7- ijf tbe King be made Party by Aid Prayer, auU nOt fUfflCient "^''a'^ P^*^
founUrcbors appear nor are returneb, pet tbe J^annel fljuU not be T'" \^■■
llUalbeH, but a Tal^s of the Hundred fljall be gtantCO. 25 (£. 3- 43 •
8. But it feemS between common Perfons UpOU fUCO CballeUQC, tOat J"^'' P"
tbcrc are not fufficient rpunbrebors, tlje panncl fljall be quaiifd, anb ,, "!!^'"
it fljall not be a Cballcnse onlp to tije ipolls*, 25 e. 3 • 43 ■
[9.] An Information was upon the Statute of Plurality of Farms, that
the Defendant has 7 Farms lying in 7 feveral Vills in F.liex, and that tbe
Vills were in i\ feveral Hundreds. It was agreed in the Exchequer by the
Juftices of the one Bench and the other, that if 4 of the Jurors have no-
thing with any of the 4 Hundreds^ nor dwell within any cf them^ this is
fufficient Challenge for the Hundred. D. 61. b. pi. 32. Pafch. 38 H.
Anon.
K k k (E. c. 3) Hew
2 1 8 Trial.
^r/^nd ^^ (^* ^'3) ■^^■'^ ^/^7;^ PeiTons are fufficient Hmidredors.
(E. c.4)pl.
W '5- .
By the [i] 9. npime ougljt to be 4 ^^unnrcuor^ at leafi. 71^,4.46.
Common B n(^ "7.
P/'Im,/', [2] 10. Four 3apimiirCt!0i:|Si are Sufficient. 2ie*4.59-U* 7 ^♦4-
Mixt, Md 4^- pi* 7*
perfonal,
there ought to be 4 of the Hundred (where the Caufe of Aftion arifes) returned for the better Notice
of the Caufe ; for Fichii Vuinoritm facia frisfumuntur fcire ; and now (incc Littletoi wrote, in a Plea per-
foualif* 2 Hundredors<7;i/i?<?r, it fufficcs. Co. Litt i 57.3. — S. P. But in real Attions there muft be
6, or elfe Remanct pro dcfedu Juratorum. Trials per Pais 14.8. {1-6)
* This is by the Statute of zjEliz. cSp. 6. which fee at (E. c. 4) pi. [5] 1 5.
[3] II. But 48 e, 3. 3d. tijete OUgljt to be 6, orjatleall. 48
Br. chai- j-^j j2. 3!it Attaint, tufjete tijere arc 24 jurors, pet if tljere are 4 of
iT.l'itcs 7 the Hundred, it 10 fUffiClCnt. 7 1)'^ 4 4^. pU 7-
H. 4. 47. In Attaint, altho' the Jurors arc double, yet the Hundredors are not double. Co
Litt. 157. a.
[5 ] If the Caufe of ABion arife in di'verfe Hundreds^ yet the Numbei
fhall fuffice as if it had come out of one, and not feveral Hundredors out
of each Hundred. Co. Litt. 157. a.
(E. c. 4) From ijohat Place.
See (x.d)- [i] 13- TJf ait3inqueff comegi out of 2 Counties to trj) an Wue, tija'
Br. Chal- X tljCP COUie by 2 Venire facias's, pct 2 Hundredors of the one,
lenge, pi. 46. and 2 from the other, are fufRcient* 1 1 1), 4. 63. curia*
cites S. C.
If the Juror [2] H- 3Itt Annuity againft a Parfon, if tljC JITUC bC upon the Pre-
has in the fcription, the Church being in one Hundred, and the Seilin in another,
one Hun- jinU tfjC Venue comes from both, if tljE JtiroriS IjalJC @)UfFiCienCp 0f
dred or in fraitfetcncment lit tfje one l^un5reti anD tijc otljcr, it i^ rufficient* 20
tnc otncr| it yw • \\
fuffices; and V- °- ^3- 0.
fo it feems
that the Vifne was of the one Hundred and the other. (Btit this does hot appear by the Book) by which
the Juror was fworn. Br. Challenge, pi. 1 1. cites S. C.
SecCE.c. ;) [3] 15. By the Statute of 27 El. cap. 6. it is ordained, that upon
the Trial of any Slfllie )OinetI ttt anP pCrfOlial ^(tlOlh no Challenge for
the Hundred Ihall be admitted, if 2 lutlicient Hundredors appear upon the
Trial of fuch Iflues.
(E. C. 5)
Trial. 219
(E. c. 5) Challenge to the Hundred. In ijuhat Cafes ^
and the jcveral Sorts.
I. A Jury being ready at the Bar in B. R. the Array was challenged
f\ tor Wane ot Hundredors. To which it was anfwered. That
ibc ^tirj hy Rale cf Court was returned by the Secondary^ and that the Hun-
dredors li^ere firuck out by Confeut. But the Court held it a good Chal-
lenge notvvithftanding the Confent. Sty. 233. Mich. 1650. (or 1649)
B. K. Anon.
2. It is again ft the common Courfe to take a Challenge for Want oi Hun- Butznln.
dredors^ when the 'frtal is at the Bar upon a Jury returned at the Dcnomina- j?™ g"°'J, °^
tion of an Officer cf the Court, where there are but 24 left by the Parties jno-fo be ^"
themlehes ; Per Hale Ch. Baron. Hard. 228. pi. 2. Trin. 14 Car. 2. in tnedatBar,
Scacc. in Caieof the Attorney General v. Pickering. ^l wasmov'd
^ ^ that the De-
fendant might not challenge for Want of Hundredors. Sed non allocatur ; for per Cur. tho' the P/aiw-
tiff may he cieprhed, becau\'e. he brinfjs it to be tried at the Bar, ^c« the Deiendant may r.ct, the' each
Party by Rule llrike out 1 2 of the 48 returned ; and fo the Defendant, by ftriking out Hundredors,
may prevent the Trial ; yet it being a Privilege allowed by Law, the Court cannot deprive himof Chal-
^lenjje. And it was denied. 3 Keb. 740. pi. i. Pafch. ipCar.. 2. B. K. The King v. Kiffia See
pi. 4.
3. ThQTQ were 2 Sorts of Challenges for Default of Hundredors, the one
to the Array, where the Stieritt" returned none ot the Hundred ; the other
to thi Polls, where none of the Hundred appear. But it this Challenge
be taken to the Polls, it mult be taken prelently, and the i'peciul Caule
affign'd, viz. Want of Freehold there. Per Hale Ch. Baron. Hard.
228. pi. 2. Trin. 14 Car 2. in Scacc.
4. In an Information in the Nature of a Qiio Warranto againft the s Mod. 245.
Detendant lor acting as Mayor of Tiverton, the Defendant entered into Pafch. 10
the common Rale by Confent, for the Maflcr tofirike the Jury, who accord- Geo 1725.
ingly ftruck 48. The Detendant ftruck out 12 of thefe, and the Profecu- ?"9 ?-'^'^°f^-
tor Itruck oft 12 more, and the Sherift' returned the remaining 24, as the in°this ^(^fe
Jury to try the Caufe; but the Defendant having artfully Jlruck out all was cited
the Hundredors named by the Majicr, and at the Afpfes challenged the Array the Cafe of
for Want of Hundredors, the Court held that the Challenge was good, ^'l^o^'^S
but that the Rule being made by the Detendant's Confent, this Challenge by the Name
was a Contempt of the Court ; and granted an Attachment againft the of The King
Defendant for the fame. Trials per Pais 158. 7th Edition, cites Trin. ^- '^''S"-
10 Geo. B. R. The King v. Burridge. Cart which
fee in the
Note to pi
(F. c) Challenge to the Hundred. What fhall be faid ^^^ -
a good Challenge to the Hundred. u^v\j
JVho is a \^fuffcteni\ Himdredor.
I- T.f tljC Juror has fufficient Land in the Hundred, tho' he is not com- Trials per
1 moranc in tljE jDunOteo, Pet |)e iiS a fufficient J|)un5renac* 9f,to'^'d
?^» ^- 66» fays that'.t
is the fame,
tho' he dwells in another County.
2. His
220 Trial.
2. His Challenge for the Hundred is not Jimpluiter, but Secundum quid -^
for tho' it be tound chut he has notliing in the Hundred, yet lliall he not
be drawn, but remain prseter H. that is, belides the Hundred ; and al-
beit he dwells, or have lain in the Hundred, yet mull he havefufficient
Freehold. Co. Lict. 157. a.
3. It' he dwell or have Jffets within the Leet, Rape, Franchife, or
Vill where the Venue is, he is a fufficient Hundredor. Trials per
Pais 128. (157)
4. It he has yl/Jets in Rent, Common of any Sort, Market, Fair, Pif-
cary, 7oll-paJJage, Leet, Ojfice of Bailnvtck &c. he is a fufficient Hundre-
dor j ocherwiie of an Advovvlon &c. Trials per Pais 128. (157)
(F. c. 2) yit 'what Time [he fliall be faid an Hun-
dredor.]
Trials per [i] 2. D* 15 €U A Siufor in tfje €i:c|)Ciiua', Mja was not Hun.
Pa's 12.8. 216. 3. jf\ dredor at tne Return of the Venire Facias, but
^''"•^ is become Hundredor at the Return of the Diitringas Juratores, UJtlSS
cljallcnncu foL* tije ir)unorcD, auti tije Court Dautitcl! luljetljct: it lie
fufficient Cijallcnec* Ci5ut op Iparijet anu tljc Clcitgi in oaanfe, it ijs
jI3ot, bccnufe m Cijailcmjc 10 not eutet'D m ti)c pr.^tct ^enfe, but
w. tl)C j^reftnt ^enfCi tljat 10 to lap, Biljil Ijabet nee connnotatuc
(tc* oaut Diet to tije contratp, becaure in tlje mmt Jfacias tlje 3D
fue i0 nicntionn lip tljc Coutic of iDantt, anQ tlje sB Patt of tljc
%m^ m%\)t to Ijalic Conuiiince of tljeCrutl) of tije fatter,
i5r. chai- [2] 3. 21 %). 6. 39. aojungeti, tljat it iy not a poo Cfjallentye tQ
lenge,pl. 65. j-^p ^|j-,j- ^ Juror, being at another Time Iwoni, has now nothing in the
R«TiFone Hundred, tljO' \)Z has alien'd his Land withm the Hundred, becaUfC
is chaiie.g'd U)t\\ Ije tua0 fiuorn, it tijall be intcntieD tijat be baa Conufancc of tDe
forhf.ffici- Chatter, ano tbiss Conutance cannot bp ijigi alienation be Oebeftea
er>cy of Frank- j^j ^f jjj^ l^Ztim>
tenement, zna ^^'' ^ " >- _ _
the other fays that At another Time fivorn, there it is a good / lea to Jay that after this the Juror has fold his
Land or had nothing but in Jure Uxoris, and his Feme is dead, or had nothing hut for Term de aitter Vie, and
Cefty \ue fie is dead. The' fame Law fceitis to be, to fay that he had upon Condition, and the Feoffor hai
enter'd, or that his Land is recovered from him.
Br Chal- [3] 4- 3!f a 3!UtOr vvas an Hundredor at the Return of the Venire
lenRc, pi 71. Facias, bc fljall bc fiuotu a0 l:)un5teoor, tljo' afteriaarusi, before he
cited S. C— jg fworn, he aliens his Land, Ot changes his Commorancy ^ fOC bp tljtSS
llelr^afier W JT^otice i0 uot iuipaitU D. IS ei» 316. 3. bp Diet. 14 ip, 7.
he b/re- 2. bp jf ineiijc*
ttirn'd, fell
away his Land within that Hundred, yet fliill he not be_ challenged for the Hundred ; for thnt this No-
tice remains. Otherwife, as hath been f.iid, for his Infuificiency of Freehold ; for his Fear to offend,
and to have Lands wafted &c. which is one of the Realbns of Law, is taken .iwny. Co. Litt, 1 5 j . a.
[4] 5. If at anotljcu ^ime !jc ijan been fiuorn, \}z cannot bc cfjal^
leng'D fOt tbe ipUUOl'CD, tho' when he was fworn, 4 were fworn betoro
him, fo that then he could not be challeng'd. 4 ^S* 4- i-
(F. c. 3) What
Trial. 221
(F. c. 3) Jf^jat Jhall he f aid the Humlred.
[i] 6. T jf a Juror \)^^ notljino; Uiitljin tlje ]^unt>r£ti, pet if Ije \M * ^' chai-
£ UHtljin tIjC Leet, to which JL^Ct the Hundred comes, it i£i ^"S«' P'-
fufficiciit, far jurorjs njail not iiz compeiro to come to tlje JLeet, uu- ]Ve ??
lefs tljep n)all be compell D to be faiorn togetljer* * 19 C* 4- 5- b* if a furor
1 1 IX 4. 2. b* j'^ ^^h^'-
leng d tor
the Hundred, and tlie Triors fay that he is not of the Hundred ; but fay further, ihat there are 5 Hnn-
dreds, tL-bkh come all to one Court, and that he was witliin one of them, this is good; and the Juror was
fworn. Br. Challenge, pi. 2S. cites 2 H 4.(5. S. P. Co. Lict. 157. a.
W7
Jf be has Lands within the Hundred, and DttJell^ in another Br. Chal-
Hundred, bC fljall bC flUOrn* 21 C. 4- 74- &♦ *.1|.''ciKs
s. c.
[3] 8. So if l)C fljall dwell Ulttljilt tbe ]^)UnlireD, and has no Frank- Br. ChaU
tenement in the Hundred, but has within the County in another Hun- 7s"f%ices
dred, be tljall be fuiant* 21 e* 4- is- s. c.^nd
fays that lb
the PraifVice is at this Day. TzAA. pi. 210. cites S. C. — His dwelling within the Hundred is fuffi-
cient, tho' he has no Lards there ; and this is the daily Praftice. Br. Challenge, pi. 10. cites p H. 6.
66.. S. P. Co. Litt. 157. a.
[4] 9- Jf tbe Wue be in Plea of Land, iui)erc tbe lanH lies in ^ or sr. chai-
4 Hundreds, if tlje '^lirOr has Lands in any ot' the Hundreds, or lliall '^"S^' .?'•
dwell in any of the Hundreds, it fumCCgi* 4 S19a» ©CCt. 480. \\l "[j"„j
nota, by the
Exchequer and both Benches, in the Time of E. 6. and Trin. 4 M. i.
[5] lo- 31f a Juror be of another Hundred adjoining tljCtetO, and * Br. Chal-
botn Hundreds are within a Rape, and twice in a Year all the Hun- ''r"o^> ?!, 44-
dredcrs in the Rape come together to a Leet, to inquire &c. yet * if ^'"nIa/^
each Hundred has a Leet by itfelf, and none of the Hundredors f are \ Kol 636.
fworn with the others at this Leet, or all together, but are fUJOm feve- L^^'V^^J
rally, eac!) bj? IjimfClf ; and it a Lord has Return of Writs of all the
Rape, pet ije 10 not fpuntirebor tljerein* 1 1 Cp. 4 2. b.
[6] II. 3|t a ^an be of a Rape, but does not come to the Rape to be Br. Chal-
fworn, together witli thofe of the Rape, but is of another Hundred, '^"S^'.P'-
where they have a diftintl Leet, Ije i0 UOt ft)UntirCtlOr Of anOtljCt JpUlV' s c ^'^'''
nreb tuitbin tbe Eape* 10 1), e. 5* goiubgeo*
[7] 12. 3if Ije has nothing in the Hundred, yet if there are divers * Br. ChaU
Hun.lrcds which come all to one Court, (whereof this is one, ajS i|5 tO '^n"F' -P''
be uitcubeb) Ije iis usitbin tbe ^unbreu, 2 Ip. 4. 6. aojutigeo* * 10 '1% ""l^'^
iOt 0. S- all amounts
to one Hundred only.
[S] 13- 3If f)e has but half an Acre Of JLauU within the Hundred, it Br. Chat-
is fufficieitt* i6e*4-8- |e"se,.p'.
172. cues
S. C, S. P. Co. Litt. 157. 3.
[9] 14. 31f tIjC Juror has any Land in the Hundred, it iS UOt UUIte^ Br. Chal-
rial of bon) itttlc aDalue it iSi for it fljall not be inquircn, 9 D. 'tTi''^ '°
-^ V.11CS o. y.^
6. 60.
[10.] A Juror was challeng'd for Default of Hundred j To which the
Plaintiff faid, that the Juror, at the Time of the Array, inhabited in
theVillofNN". which is, and Time out of Mind was within the Hun-
L I 1 dred
2 2 2 Trial .
dred ot M. The Defendant fkid that the Vill of W. is exempted from thi
Hundred of M. The Challenge was not allowed. And Bronaley Ch J;
faid, that fince it is confefs'd that W. once tvas . -within the Hundred of M.
and is exempt within Time of Memory, it mull be fliewn how, and bv
what Means. D. loo. a. pi. 69. Trin. i Mar. Anon.
[11.] In a fecond Deliverance Challenge was taken for the Hundred,
and i t appeared that the Hundred of Fevcrpain in Kent was within the Lathe of
Seraj, and that there never had been any Court in the Hundred of Feverjhani^
hut all the Inhabitants of that Hundred always went to the Court of the Lathe
of Sray, All the Juftices held, that the Challenge ought to be taken for the
Lathe, and not for the Hundred, becaufe no Court had been holden in
the Hundred. 2 Leon. 109. pi. 141. Trin. 29 Eliz. B. R. Stainsby v.
Hales.
(F. c. 4) jlt nsohat Time [the Challenge is] to h
tahn,
trials per [i] 15. A Fter 4 Jurofs are fworn, tljCre CauUOt &£ il CfjaHeitgC i^
Pais 1 28. /A. anp for tljc rpunUreD. 4^.4. pU2. aonmteo* il}*
lenge, pi, 60. cites S. C.
[2] 16. After a Challenge to the Polls, tljcre CaitttOt bC aitP Cf)iil=
\Z\m to tlje ^UltUreD* P» loSia, 05. bCtlUCen Woodgrave and More
3. A Challenge that the Place ^c. is in D. which is within the Hundred
of K. and that all thofe who are fufficient within the Hundred of K. are
•within the Dijlrefs of the Plaintiffs ought to be taken before the Venire jacias
iffiies i for if the Venire facias ilfues returnable in another Term, or at
another Day, there the Plaintiff Ihall not have this Matter at the Day of
the Return. Quod nota. Br. Challenge, pi. 187. cites 22 E. 4. 3.
4. In Ejeftment for Lands in SulFex tried at Bar, the Defendant chal-
lenged the Polls for Default of Hundredors,_ but did not pew it tbrCaufe
till the Pannel was pernfcd ; and the Plaintiffs Counfel alleged that this
Caufe of Challenge ought to have been iliewn upon taking the Challenge
to every of the Polls, and not afterwards. And it was faid that this
Challenge lies not againft the King. Sed non allocatur ; for it is a Chal-
lenge at Common Law ; and cites Keilway 102. a. and the Jury was
thereupon difcharged. Hard. 228. pi. 2. Trin. 14 Car. 2. Scacc. At-
torney Gen. V. Pickering.
(F. c 5) Challenge to the Array .
Trials per 1. TC l^ it ffOOTl CljallCniJC, tljilt tI)C 3rra)> is made and returned bv
Pais 114- I 2 Coroners oniv, toljece tijcce are 4 m tije Countp, * u 3tr.
the Pannel . •,/,.,.
■was returned by four Coroners, and it wa^ challenged, becaufe one of the Lonners was oj J£imty iviih the
Fl.iiiitiff-
Trial. 2 2^
P/aintijf. Haldc iliid that two other of the Coroners made the Array, abfqiie hoc that this Coroner in-
termeddled ; and yet becaufe •whe/i it is returned in the Names of the four Corotiers, it jhall Le intended that
all m.ide the P.imiel, therefore it was quafh'd, and Writ fcnt to the 3 Coroners, fo that this Coroner
Ihould not intermeddle. Br. Challenge, pi. 157. (bis) cites S. C
2. Jf tl3C WXXt be tJirCCtCU to tIjC sheriffs of London, \t I'S a gOOt! Trials per
Cijallniijc tljiit tljc i3rrflp 10 returnen by one only. 3 1 ain 20. J^'^ i'4-
In an Indebitatus AflumplTtfor loo 1. the Defendant challenged the Array, for that the Venire was 6.1-
V(Ct,-d to Sir Dudley North one of the S.ierifts of London, on a Suggeftion that the Plaintiff w.is the
other Siieritf; whereas it was allcdged for the Defendant that the Office was but one intire Thing, tho'
excrcifeaSle by two; but the Cliallcnge was faved to them by allowing a Bill ot Exceptions. 2 ti'how.
262. pi 268. Hill. 54& 55 Car. 2. B. R. Rich v. Player. Ibid. 286 pi. 283. Pafch. 55 Car. 2.
B. R. S.C. argued, but adjornatur ; but (ays that afterwards Judgment was for the Plaintiff
3- It 10 a ffOOtl CljallCnirC, tijat tlje arcap Ueinff returned by the Trials per
Builirf'of a Franchile, Ije (jaS returned People which are not within the P^'s ii4-
Franchife. 32 aflV 6. aDjUDpH* B? ChdT
lenge, pi.
15S. cites S.C. If the Bailiff of a Liberty returns any out of his Franchife, the Array fliall be
quafii'd. Co. Litt. 1 56. a.
4. [As] if an Slrrap fie to ht retunt'5 of Ipeople out of a Franchife, Trials per
and ot Guiidabie, it lu a tjaoQ CijalleitiTC tljat tl)C Ooailiff of tOe JTcan^ T'l^'ili
cljifc W rcturuen tljem i foe ttje ^Ijeritf ousljt to no it, * 32 M, 6. ;„^Uror it
was agreed
Arguendo, that where JJJife is brought in three Fills, ofivlJch the one is Guiidabie, and the others Fran-
chife, that in this Cafe the Sher'ff ought to make the_ Array as to one Fill, and tie Bailiff of the Tmvchife by
a Mandatiim fhall make the refl ; but if the Sheritl" commands the Bailiff to make the whole, which he
does accordingly, this is Error, if the Party challenges it ; but if the Afilfe paffes without Challenge,
Writ of Error does not lie, becaufe it is not Matter apparent. Br. Pannel, pi. i. cites 5 H. 4 5.
♦ Br. Challenge, pi. 158. cites S.C.
5- 3!t 10 a ffOOB Cljallenge to tlje arraj?, that fome of the Pannel Br. Chal-
were returned by the Bailirt" of a Franchife, where all the Pannel is re- lenge, pi.
turned as arrayed by the Sheriff i fot OtljeriDifC tijC l^Witm fljall lOK 1;°^ "'f
tljeir Cljancngejs to m artap mane bp tlje OSaiUff. 17 aiT. 1 1. ao= that an 1-
JllUgCO, 17 €♦ 3- 5°- ray ill in
Part, is ill
;„ toto. S. P. Br. Pannel, pi. Ti. cites ii Aff. ii. Trials per Pais 114. (144') But if
the Sheriff returns a jfury within a Liberty ; this is good, and the Lord of the Franchife is driven to his
Remedy againft him. Co. Litt. 155. b. S. P. Trials per Pais iiS.
6. If an artap be quafli'd for Malice between the Under-flieriff UlIjO
tiiane tlje i^anuel, and the Party, aitu tljeitupon tlje i©r(t is ntrectcD
to tije Coroners, atltl tljCP return the lame Pannel, DEt tl)I0 99attCr
fljall not be anp Ctjalicnp, (Jfoc peratJUcnturc tbe Coroner^ fee tljat
tlje lurorjs are intiiffeceiitO 25 e» 3. 37. b, aoiuQgcB.
7. ^J/ffe of Cotnmon in F. appurtenant to his Frankteneuietit in C. and be- Br. Chil-
catife F. was wtthin the Franchife of W. which had full Return of Writs^ lenge, pi. 9S,
and the Sheriff made the F'annel of Foreigners, the ./ifftf'c remained, and the '^"^■'' ^"^
Sheriff was commanded to fend to the Baililiof the Franchife, and now
the Sheriff' had ferved the Writ all of Foreigners, and of them was the JJ/lfc
taken. The Reafon feems to be, inafmuch as it is mist between Franchife
and Common Law ; for thofe Franchifes cannot take Coniifance if he pall have
Common in F. appendant to his Franktenement in C. or not. Gkixre. Br.
Pannel, pi. 5. cites 1 1 Aff 5.
8. Where Bailiff' of Fee or Franchife returns a 'Pannel ta the Sheriff, and
he puts in other Names, and returns a Pannel of himf'elf, this fliall not be
oulted at the Prayer of the BaiJift^ but they Jkall te put to their JtJicn
agaih'if
224- Trial
a?ranft the Sheriff. Quod notaj for the Court is feifed of a perfcfil Re-
cord. Br. Pannel, pi. 6. cites 30 AIT 5.
9. In Affife the Array was challeng'd, inafmuch as itwasw^^e hy J.
B. -duho was aidnig, and of Comifcl wttb the Plaintiff ; and this was found,
by which it was qualh'd ; and after the Sheriff' returned another Pannel,
btit Part of the People who were tn thefirji Panml were in the lajl Pannel ;
jind the Sheriff returned that there were no more fufficient tn the Hundred.^
and the Array was challenged again for the Sufpicion, becaufe Part of
the old Pannel were in this Pannel ; Et non allocatur. Br. Challenge,
pi. 139. cites 33 Ail; 12.
10. An Array was challenged becaufe it was made hy one who was not
Bailiff of the Franchife of D. to whom the Sheriff' had fent his Precept to
ferve the Writ, nor he had not Warrant to return the Oifo Tales, and there-
fore it was qualh'd. Br. Challenge, pi. 207. cites 38 Aff. 13.
11. It' the Plaintiff prays J^'enire Jacias to the Sheriff, he cannot Chal-
lenge the Array for any Catife in the Shtn)^ of which he might have Conu-
fance at the Time of the Ventre facias awarded to the Sheriff'; for upon fuch
Caufe Ihewn he may have Procefs to the Coroners, but it may be that he
Jiad not Conufance of Confanguinity, Affinity, or fuch like, in the
Sheriff between him and the Defendant ; but of fuch Caufe between the
Plaintiff:' and the Plaintiff ought to take Conufance. Note the Difference
ipertot. Cur. Br. Challenge, pi. 77. cites 15 H. 7.9.
S. P. And 12. The Challenge to the Array isinRefpeffoftheCaufcof*Indiffe-
the Rea(bn yency or Default of the Sheriff or otlier Officer that made the Return, and
why they ^^^^ ^^ Refpetl of the Perfons return d, where there is no Unindifferencv
lcn-/'the or Default in the Sheriff &c. For if the Challenge to the Array he found
Pannel is be- againjl the Party that takes it, yet he Jhall have his particular Challeng^e to
caufe that t^g Polls. Co. Litt. 156. a. b.
not appear on Record, and therefore they have no other Way to take Advantage of it ; and that too i
the Reafon of Challenge to Polls; per Attorney General. 12 Mod. 58S. King v. Warden of Fleet.
Trials per 13. Art Array return d hy one that has no Franchife Hiall be qualh'd. Co-
Pais 119. Litt. 156. a.
(149)
S. P. G.Hift. 14. Two Strangers made a Pannel, and ?wt in favourahk Manner for the
of C. B. 80. Qj^g Party or the other, and the Sheriff return' d the fame ; the Array was
^'''iVgood' challeng'd for this Caufe , and adjudg d good. Co. Litt. 156. a.
and fliill not
be Quafh'd ; and therefore it is common f A- the Officers of the Court, by the Direftion of the Judges,
to eive a Pannel to the Sheriff, whicii he retarns ; fo the Court feems to have Power to compel the
Sheriff to make this Return, but they can fine him if a fufficient Jury does not appear, according to
the Precept of the Writ.
15. The Jury appearing at the Bar, the Defendant would have chal-
leng'd the Array Ore tenus, becaufe it was return dhy the Sheriff 2 Days
after he had a Writ of Difcharge ; But the Court faid he could not chal-
lenge it for that Caufe, becaufe it would be a direft Averment againli:
the Record, it being return'd by him as Sheriff, and the Return ac-
cepted j but by their Advice he made his Challenge to tlie Array as fa-
vourably made, and return'd in Favour of the Party &c. And all this
being given in Evidence upon Ifiue join'd, the Court direfled the Triors
that it was not duly made and return'd, it being without Warrant. And
fo the Array was quafh'd. Cro. E. 369. pi. 6. Hill. 37Eliz. Hore v.
Broom.
16. A Challenge was ofFer'd to the Array, for that it was made hy J.
S. as Sheriff ot Bucks, w^o was made Sherifiin Mich. Term 1687, and
had continued in the Office jor more than 3 Months and not taken the Oaths
required by the Acl of 25 Car 2. and fo his Office was void before he
made the Return of the jury ; but it was difallow'd by the Court, lor
he muft be taken here as a Sherif!"De fafto ; and if fuch Challense fliould
be
Trial.
be allow'd, no Trial could be had unlefs the Party were ready to fhew
that the Sheriff" had taken the Tclt. z Vent. 58. Trin. 1 W. & M. in
C. B. Anon.
17. Array challeng'd, for that xhe ^iwy potild have come fro7n a Diffc-
reiit County is no good Caufe. 12 Mod. 337. Mich. 11 VV. 3. £. R. the
Kino; y. W'ardcn of the Fleet,
225
(G. c) Challenge to the Array. /Hjat Challenge fliall
be /';; Rcjpeci of the Ferjo}i qvJjo makes it, Scilicet,
that He is Peer of the Realm,
1./^£>X0, 117- Jit Affife brOUffljt bP Neivdigate tXmV&t\iZ Earl 0/ In fuch Cafe
V^ Derby, aiiU % %. (t lUiiis aDjuDscj a goou challenge taci,;deNovo
tijC ktriViP for tljC Cad ta fa)) UM tljCCC iS no Kmght rccumd mtOC r^v^y^^o
jiJanml, ann fo D. 4 ^l- ^os is. * tije Strap nuafljcn rjjr tJjc fame * F01.65:.
CaUfC tip toe i^^'yloj Hnrmngton^ t 27 jp. 8. 22 b, aClOiQUtglp ; atlB ^/'''v^-N^
tljere id cttcD 1 3 ^» 2- ^cc |?. 40 ei. CI5* E. * avzw ofuorccjhr to tlje ^"i ''f '-
contraiP, the f,,^^ in
Cafe oi aBi~
pop. Jenk. II. pi. ip. See pi. 4 Infra, in the Notes.
+ 3r Challenge, pi. 5. cites S. C.
:|; Cro. E. 605. pi. 2. S. C. but S. P. does not appear.
2. D» io €1 ^6s 4. Jn Debt agiltllOt t\)Z Lord Cobham, tIjC PaunCl
i«as nuanjeD bccaufcno Knis^ht m& rcturnentijcrein»
3. D. is€l 310- iS. Jn a Writ ot Enny, aDUltttCtJ tljSt If btit
one of tljc parties Ijan been a lorb at tIjc tmic of tlje oDcnire aioatHeD
iinn rctitrn'ti, aim tljis tuioiun, it Ijao been a gooo CljaHengc tijat
tijere luass no Knight in tlje li)anncl.
4. D. 8 CI 246. 70. cijc 15itI)op Of ^.t;-«;« cljallcns'ti tbc iSrcap in Q-'^a'-eimpe-
Replevin againft him and others; ailO pOB pet CUtiam* lewbThfu
a Peer of the Realm, and therfbre Knights fhall be of the Jury, and becaufe there were not, the Jury-
was quafh'd. Br. Jurors, pt. 4S cites i; E. 5. and Fitzh. tit. Challenge 11 5 Br. Tri.Us, pi. i^i.
cites S. C. Br" P.mnel, pi. 14. cites S. C- S. P. Br. Enqucft, pi. 100. citts S. C But between
the King and the Bijhop of Rochefier 2; H. 8. for Treafon he fliall not liave K:iights in hh Jury ; but
ijuxre lirether it aas chaiktisied ; for between the E.xrt of Derby and Nudifiaie in AfTifc in Kliddlefex
the Exception was taken for the Earl and tv.tj allciv'd, and ot'ier Proccfi. made for other furors, ib d. — —
ThisCafeoftheCrarl Of ©trbpl). iiiCh^Diratci-sin PI. C. I1-. I\lich. I & 2 P & ISI. And it isthere
fa'd that upon tlie Cafe of Mich. 15 £ 5. which was the only Cafe found in all the Rooks to this Pur-
potc, and which v.a'; the Cafe of the Bifhop of Exeter and others Defendants wlierc ihe P^innel w.'is
quafh'd, becaufe no Knight was return'd, the like Judgment was given in the princip.d Cafe.
D. 10-. b pi- 27. S. C accordingly ; but the K.epoi-ter adds a Qu^re if the Peer be Plaintiff and will not
challe ige for this Cuufe, whether the Defendant fhall have it, and f.ivs that it feems he fhall not
Trefpafs was brought againrt the Bifhop of Coventry, who challeng'd the Array becaufe he bsinrr a
Lord of Parliament no Knight was return'd &c. upon which the (Queen's Counfel dcnlnrr'd in Law,
but at lafl for Expedition &c. the Court dcliver'd to the Counfel of the Bifhop a Bill ic.il'd t<j fd^e iiim
the Advantage of the faid Challenge. This Matter was many Times argued, and at laif bv the better
<)pinion of the Court the Challenge was held good. I Le. 5. pi. 9. Mich. 25 & 26 Eliz. B. K. Lord
Pflget V The Bifliop of Coventry.
■ If a Venire F.icias be againft an Archbifhop, it fliall be Tam milires quam alios liberos Sec, becaufe
he is a Lord of the Parlismenc. Brownl. 94. Anon.
5- 2Dt 15 (£1.318. 10. Eiirl of Kent being reputed but an Eiquire,
brought Writ of Entry by the Name of Efquire aijainlt Ip* C« UlUffljt,
anb tlje 13annCl tCtUrn'b, and at Chiillmafs the IMaintiir' was declared
bv the Heralds to be an Earle, and alter this the Tenant is made a
Baron Of jaavliaiuent; anb tlje I3)lalntift' (;tjallenc;cb ti)c pnnnci tc
CaUfC no Knight return'd. 'J3Ut It lUaS llOt altOlU 0, L^CnUiC tiJC Ad-
M m ni niittunce
226 Trial.
mitcance of both Parties l^ tO tijC COIlUarp, attO 110 DCtaiUt in tfje
^Sl)cnffuil)ol3no no Baticet!)ercof*
S. p. Trials 6. It' a Peer of the Realm or Lord of Parliament be Demandant or
perRiis.iiS. p|.^jj^^j|j-_^ Tenant or Defendant, there muft a Knight be return'd of his
Reifonofth'isJ^''y) ^^ ^^ Lofd Spiritual cr Temporal, or eile the Array may be
was for the qualh'd. Co. Litt. 156. a.
Security of
the Commons ; for a Knight v/ns prefumed tn be a Man of Courage and not afraid to look a Peer in the
Face; Per Holt Cli. J. 11 Mod. ibz. I'ilich. l'o6. 5 Ann. B. R. in Cafe of the Queen v Soleby
& al'.
S. P. Trials '7. But if he be Return'd, tho' he appear not, yet the Jury may be
per Pais, I iS. ja^j^n of the Relidue ; and if others be join'd ivith that Lord oi Parliamentj
' yet if there be no Knight return'd the Array iLall be qualh'd againlt all.
Co. Litt. 156. a.
Skin. 229. 8_ j[^ Kjcciment in Ireland, o/j the Demife of Lady Coirjuay, at the
inclv^'^br' ' '^^'^^ ^^^ Deiendant challenged the Arrray, for that the Lellbr of the
>j'ame' of the Plaintiff being a Coiuitef's there, and the E)e6lment was to try her Title,
Countefs of and that Ihe bore the Coils of the Suit, and profecuted the fame i and
Conway's [[^^c the Sheriff had made that Array, without returning any Knio;ht.
But MS ""^'^ ^^'^ Plaincitf demurr'd ; and upon a W^rit of Error in B. R. here.
Tab. Tit. t^he Court held, that the Deiendant might take Advantage of 2 Knights
Eieftment, not being return'd as well as the Plaintilf, notwithllanding the Opinion
pi. I. Jan. ill Dier i and that it might be in Ejectment as well as in any other Ac-
betvv'een^''' '^'°"? ^^^ Lelfor being the Real, and the other only the Nominal Plain-
If olboni ^'^') ''^^^ ^^ appears upon Record to be the Lady Conway's Demife. 2
aiiD ©a* Show. 422, j.23. pi. 390. Hill. 36 & 37 Car. 2. B. R. Alleway v,
j5wa(oii, it Rowden.
is faid, that
whei-e a Lord is Leflbr of Plaintiff, there is no need to have a Knight upon the Pannel.
9. In an Li format ion for a Rict again Ji fever al, at the Trial a Challenge
was ofter'd on the Behall of the Lord Greys being one of the Defendants,
who was a Peer, that no Knights were return'd on the Pannel ^ and was
received by Saunders Ch. J. lor he was of Opinion, that to have Knights
of the Jury was the Privilege of a Peer inCnminal as well as in a Civil
Cafe. 2 Show. 262. pi. 267. Hill. 34 Sc 35 Car. 2. B. R. The King v.
Pilkington, Shute, & al'.
10. Hz Peers fue as Gentlemen, and admit themlelves fb in Pleading,
it is no Challenge to fay No Knight is return'd ^ for the Sheriff is in no
Fault. Trials per Pais 118, 119. (149)
(H. c) Challenge to the Array. Bj/ what Perfo?i a
Challenge jor Conjanguinity will qualh the Array.
What Ferfon may challenge.
Trials per I. TJf tljC Defendant fues the Writ of Habeas Corpus with Provifo, at
Pais, 115. j^ tjjg j^etiun of it tlje Plaintiff map cljanenge tlje 9trap fat Ca»
^^'^^^ finase bettoeen tije Defendant ano ^tjcciff; D. 15 CU 319 13-
(H. c. z)
Trial.
227
(H. c. 2) Uhit Confangulnlty is fufficient.
to 2. /n£D^. Vcyuoj! and Manners, 0,2$. f D. 15 €L 319 I3- "SbljC Trials per
\^ fame Cnft luljeit tljc arcai? mis qunfljQ, tija' tijc SaerittPais, uj.
was the ninth HI DcfCCllt, and the Tenant in the 7ch Delcent trom the C144)
Ancellor iVom whom thev both defcended.
[2) 3. It t£> a ffOOO CDallCnse, tJjat tIjC sheriff is Coulln to one Par-
ty. 20 \X 6. 39. fljClOiniJ How-.
[3] 4. 1% 10 clcarlj) a ijaoD Cfjallenp of tljc arrap, tljat tlje Sheriff Tri.is per
is Coulin to the Feme ot tne Delcndant, tho' the Feme is not Party tO t{)C '^'''^ ' " 5-
mm. D* 29 IX 8 37. 47. Pec Cuctanu '^'440 145)
[4J S- 3t t.6 a gOOO CljaUeUge, tljnt tfjC sheriff took to \Vife the
Coulin ol'the Detendant at the Time oi the Fannel. 2^» i ^a» 9i. t ■ i
[5 J 6. ©0 if tljC Feme be dead, if there be Ilfue alive. D; i ^^. Pa?s i,^.'
91. 14. C145)
[6] 7. 31t 10 a poo CijallCngC, tljat tIjC Raily of the Liberty, who * And the
rCtltlit'tl tljC Pannii, has mamed the Coufin of the Plaintiff, who is ^'''•'y ^'^^
alive, or that he has Ilfue by her. 22 (£♦ 4. 2. * 29 M. z, SUljUOff'lI* he^did'no'*'
ftcw How
Coufin ; and it was alfo found that there was no Default in the Bailiff, and fo fee that it is a Principal
Cliallcnr.e. Br Challcrge, pi. 151. cites S. C. -The Cofmage was luch, that the Wife orChiJdrea
of the B.iiliff mis^ht be Heir to the Plaintiff, tho' the Bailiff himielf could not inherit to him ; and be-
caufe this ^.m-.e. i3ailiff may continue the Plaintiff's Bailiff for Lile, therefore Procels with Non omittat
was awarded to the Sheriff; Quod nota. Br. ChaUef;e, pi. iSd. cites S.C.
[7] 8. But if fije be not alive, nor he h.is Ilfue by her, It 10 llOt 3
principal Cljalieuijc* 22 e* 4- 2.
[8J 9- Sit 10 a pan (E^ijaliCntje, tijat tlje sheriff is CouIln to one Par- The Arrav
ty, tho' the Eaily ol tne Hundred has made the Array, InljO 10 011001 ^j^^^'i'J'fii'J.
nnO UnOUJlI, * and the Sherifi' only returns the Writ (Jt fceU10 tjC * '^^^C'fT*
luns not "Bailp of a ifcaitcljife, but of tDe eDetiff.) 31 M, 7. ^^^^
aOjllOgCO* anJ Writ
awarded to
the Coroners. But Birton faid, that the Array was good. Br. Challenge, pi. 197. cites S- G.
■ [9.] A. brings Trcfpafs agaitij} B. who is Feoffise totheUfe of C. The
Sheriit' is Cotijin to B. but not to C. The Plaintiff may challenge the
Array made by the Sheriii! Jenk. 164. pi. 15. cites 2 R 3. 12,
10. Challenge to the Array was, becaule it was made by H. the Sheriff^ In an Aftion
and M. his Viidcr-Jherijffy which M. was Cou/in to the Plaintiff', viz. Son o" the Cafe,
of T. M. who was Son ot R. M. who was Brother of Jane M. who was "po" a Sur-
Mother of T. M. the Defendant. And this was allowed for a principal p/armiff"'
Challenge. Bendl. 163. pi. 225. Hill. 17 Eliz. C. B. Davis v. Lamb. that theW
dir Shfnff
was the PWnitiff's Ccttfn, and fliew'd how ; and becaufe the Defendant did not deny it, the Venire wa.';
awarded to the Coroners. It was infifted, that this was not any principal Challenge; for the S'leriff
might have executed the Writ, and the Admiffion of the Cofinage by the Defendant is no Caufe to
award the Venire to the Coroners. The Judgment was iield erroneous, and not aid»;d by the Sucutc.
Cro. J. 547. pi. 6. Mich. 17 Jac. in the Exchequer, Symonds v. \>'a!fh.
11. In Ejeftment &c. upon a Leafe made by Sir John Digby, after S. C. cited
Not Guilty pleaded, a Surmife was made that the Sheriff was 6o«y}?/;- '*''°- ^^J- P'-
^tiinem of the LeJJor of the ilamttff', and confefs'd ; and thereupon a Vc- ^-^f^.,^ Jf
nire Facias was awarded to the Coroners. But afterwards the Challenge Kedferae v.
was adjudg'd inliifficient, and a Venire Facias was awarded to the She- Dandy.
liif
2 28 Trial.
J,. C. (E. d) rili: Huct. 25. in Cafe of ClXZ ^, 15mnt^ZVi cites Hill. 44 Eliz. Rot.
Inf. pi, 29. j^Qg_ Bedforne v. Dundy.
cited bv the
IName of
Kedfallie v. Digbv. Cro. J- H"- pf <•• '" the Cafe of ^vmcni55 b. WicAUh cites S. P. in Ejca:-
ment between theLeirce of ^ir C". itiugflon and the Teriant of the Carl Oi BciDglnatfr; and that
becaufe he did not conclude to the Favour it was adjudg'd ill, and to be no principal Challenge-
Hutt. 26. inCafe of (rireb.liJanntUtr, cites Trin. 14 lac. Rot 2284. S. p. Craddockv. Wenlock.- —
JMo. S96, S97. in S.C. cites it bv Name of traDOfk i). '^Oni'3, Leffee of Sir R. Cotton, and that the
Cofinacje wa.^ allef;ed in the Wife of the Leflor, and averr'd her Life, and that the Defendant confels'd
the Coifinage; yet it being a Challenge only lor Favour, the Judgment was arrefted.- Brownl. 150.
Ji. C. and that a Venire P'acias dc novo was awarded to the Sheriff.
In Ejcclmeiit it wa-. faid by Coke Ch, J. That it is no principal Challege that the Sheriff is Coujir? to the
LeJJor of the Plaintiff ; for the Leffor cannot hinder the Aftion of the Lcffec, and that lb is the 9 H. 7.
But the Reporter litvs, he knows tliat fomc Books are to the contrary. Roll Rep. 32!^. pi. 54. Hill.
1 3 Jac. B. R. Guclt v. Bridgman.
SeecH.c.2) (I. c) Challenge to the Array. For Afimty. To ojohom.
I. Til5 Appeal by Feme of the Death of her Baron, it {0 a KOOU Cljilt
jI ICllii'Ctljilt tije Sheriff is allied to a Coulin of the Baron. 10}^,
4- 5-
Trials per 2. Alliance to one Party fjS a SOOil CljilIICUtJC* 20 lp» 6. 39. U.
Pais 115.
(145) If the Affinity fcn//>«e^. Co Litt. 156. a. (a)
Br. chai- 3. jn AiTife, It iss fl gooo Cljallcnp to tijc arrap, tftat tijc sheriff
lenge, pi j-j^s dpoufed the Plaintiff's Sifter. COHtta 26 I^IT 21. aOlUtlSCO,
1 16. cites 16
AfT 21. but fays. Quod niirum ! Qusre, if he had faid that the Sheriff had Ifiue by her alive; bur
fays it feems that if he had no liVue by her, yet he might have IlTue.
4. Jt 10 not anw CfjaUcnge in Affffe, tljat pending the Writ J. s.
has purchas'd the Land in Queftion, the which J. S. has elpouled the
Daughter ot the Sheriff 21 (ij» 3. 5. !)♦ i^DjUrigCtl*
5- B 10 a 0005 CiiallCnSe, tfjat tfjC Shenlf is Coufin German Of tl
Jpartp* 20 tp, 6. 39. In
6. So it 10 a ffOOD Ct-nllfUgC, tljat tljC SljCriff is Godfather af a
partp. 20 D. 6. 39. b.
7. :^t 10 a ffOOH CfiallCnire, tljat one of the Coroners UjIJO \M rc=
tUrnCti ti)C IIBrit, is of the Atfinicy of one Party, tIjO' 1)0 OOC0 llOt
tiiahc tijc 3rrai> but tljc ot}jcr0 ; foe tlje USrlt iDa0 Dircctco to all, atiD
It 10 fCtUrttCO'bj) all 31 3ir. 20, aOjlinSEO* 3tlO it is the Aft
of all.
8. So Qfnm'tP between the Sheriff and one Party, 10 a gOOf Ctjal=
icncc, tIjo' tijc ^Kw^ tua0 maoc bp !)i0 iinocr^^Ijcriff* 3 1 aiC 20.
9. A Challenge to the Array was, r/b<r?? the Sheriff was Cotiftn to the
Dcfendcmt himfclf, and in the Ihewing how the Coulinage was, he cok-
cliided that the Sheriff was Coujln to the Feme of the Defendant, ^ and fo a
Variance between the Challenge and the Conveyance. This was the
Doubt of the Cafe, and the Jullices doubted thereof ^ but neverthelels
their Opinion was, that the Array was qualhable, notwithftanding the
Variance. D. 37. b. pi. 47. Mich. 29 H. 8. Marlhal v. Eure.
Trials per lo. Affinity betivcentheSon of the Sheriff' and the Daughter of the Pari).,
Pais 119. or econverfo, or the like, is no principal Challenge, but to the Favour.
^'^9) Co. Litt. 156. a. (n)
IX. It
Trials per
Pais, 114.
(•45)
Co. Litt.
156.3.
Trials per
Pais T 15.
t'43)
Trial. 229
10. If the Sheriff' jnarry the Daughter of either Party, or econverfoi this
Is a principal Challenge, or the like. Co. Lite, 156. a. (n) ^ ^
(I.e. 2) ^t fwhat Time.
[i] 9. T Jf tIjC Sheriff taa0 allied at the Time of the Pannel made, tljO' Trials per
X \)Z U)il0 dead at the Time of the Challenge taken, pct it i& 3 ^^^^ "5-
gooti Cijallcitgc* i o % 4. 5* i- '45)
[2] lo, Jf a Sherift returns the Pannel, and after the SherifPs Son
marries the Coulin of one Party, and then the Sheriff returns the Di- ^f^^^^'^*^-
ftringas, wt It (0 not a 0000 CftaUciip, inafmucl) asJ tl)c pannel tuass Tg^r^'at
maoc bctorc* 38 <£♦ 3* 9» ^DmittcD* the Time of
making tbc
Array, altho' he be not Co afterwards, the Array cannot be challenged. Jenk. 310. pi. SS.
' [3] "• It iss not a goon Ciiancnge to tlje accap, that all the ju- Jf \\^'"
rors S3f tljCPannCl are ot the Affinity ot the other Party ; fucf)e OUgtjt (14$)
to cljallcnp tl)c Jurorg for it* 2 e* 3 5°- b* ati)iHiQ;eii.
4. The Plaincitt and Defendant are at Iliue, a Jury is returned, and it Hob 25 y.
»o? l^eifrg full, the Plawttff prays a 'Talcs, the Jury by the Tales is re- Vicars v.
turned full, xhQ Platntijf challenges the Array for Kindred between ihtShc' ^"B '"^
riff' and the Defendant ; it is fo found by the Triers, and the Array is
qualh'd; a Venire facias iffuesto the Coroners to try the faid Ifluc, the
Plaintiff has a Verdi6l for him, and Judgment afHrm'd in Error. Jenk.
310. pi. 88.
(I. c. z) For * Favour. See(X. c)
^ -* ^ * He that
takes Chal-
[i] 12. -rpAvourably made ijp tljC StjCtiff, iSi a ffOOH CljallengC* ArfaVfor'''*
X; t 20 C* 4- 2- b* Favour, TO«jJ
flew in c&t-
t3.\n the Name of him that made it, and in whofe Time, and all in Certainty. Co. Litt. 156 a (n)
This Kind of Challenge being no principal Challenge, muft be left to tte Difcretion and Confcience
of the T'riers. Co. Litt. 156. a. (n)
f Br. Challenge, pi. i;8. cites S. C. — Trials per Pais 115. (145)
[2] 13. It \% not a principal C!)aUenQ;C, that one Party is Tenant Trials per
to the Sheritf who return'd the Pannel; for tlji0 COCSS nOt impOCt an? f*''' ""^
JFaDour* 273^.28. atijuDg«i» s'r^'c^^
Litt. 15?;.
a. [n) For the Lord is in no Danger of his TenantJ But e converfo it is a principal Challenge ; bat in
the other he may challenge for Favour, and leave it to Trial. S. P. Trials per P.us 119. (149)
But it is a principal Challenge, that the Sheriff is Lfjfor of the Plaintiff. Trials per Paisj cap. 9,
114. (144) cites Trin. 1657. B. R. Lord Brooke's Cafe.
[3] 14- ;jt 10 a goon challenge, t^at tljC sheriff is within the Di- Trials per
llrefs of one Party. 20 ^, 6. 39. U. 27 aiT. 2S. Pais 115.
S P. Co. Litt. 156.3. Cd)
[4] 15- It i!3 not a principal Cljallenge, that Plaintiff is Servant tft Br. Chal-
the Sheriff 21 C* 4. 67. 1), W«, pi-
1 8;. cites
S. C Trials per P*is 116. (145) Cro. J ai. p! I. Hill i Jac B, R Jt^ntOttJc iJ. ^Dffl^
N" n n ' f OCk,
230 Trial.
rCCfe, in Ejeiftment the Ven. fac, was awarded to the_ Coroners, upon SuVmife that the LetTor wns Ser-
vant to the Sheriff, wliich was alle<^ed to be no principal Challenge, and then the Writ is not well
awarded ; the Court much doubted whether it were a principal Challenge or not ; and if it were not,
whether it were holpen hy the Statute. But Coke the King's Attorney (who was of Counlel with
the Defendant) faid, that in z- Eliz. in ^ac&intiton's Cafe, it was refolved, That it was not a princi-
pal Challenge, and that the Venire facias awarded to the Coroners was ill, and not aided by the Sta-
tute. But tlie Court doubted whether there were any fuch Precedent. And Croke J. faid he knew
^hat in ^pU'Cr's Cafe it was refolved otherwife, and Judgment given for the Plaintiff, notwithftandm?
this Exception. Wherefore, the Court not being refolved in this Point, advifed the Parties to bcin
de novo, and to have a new Trial, which was done accordingly.
Trials per [5] 16. But it I's a poti Cljallcuse foc JfnMtr* 21 e» 4. 67. u.
Pais 116.
(1^.5) Br. Challenge, pi. iS;. cites S. C.
S. P. Co. [6] 17. Jt 10 a principal CljallcntJCj tijat tIjC sheriff is Ser\ant to
fd)—^ the Plaintiff * 21 €, 4. 67. b.
Trials per Pais 115. (145)
* Br. Challenge, pl.iS^. circs S.C. For the Servant is at the Command of the Mafter, but the Mafler
is not at the Corr.m.ind of the Servant; and it may be that the Sheriff will do nothing for his Servint,
[7] 18. B i$ a principal Cljanensc, tljat tfje sheriff is of the Robes
of one Party, if i)t \mU$ tlje panUCU * 44 ^* 3- 44- 38 C» 3»
Trials per ■^S- "♦
Pais 1 1 5
(145) — S.P. Co. Lift. 156.3. (d)
* Br. Challenge, pi. 24. cites S. C. In Allife it is a good Challenge t!\7t the Array ivas nuiAe hy the
Bailiff of R. who zvas of the Fee ar.d Robes of the Defendatit, notwithltanding that he does not (ay tliat the
Bailiff was of the Counlcl of tiie Defendant in this Alfife, as well of Things touching his Office as of
other Things. Br. Challengs, pi. 95 cites S AiT. 12.
Pannel ; fOC tlje COUtt 1)30 ttO 13,Zm^ Of IjiUU
)Ulin;cli»
Trials per [ic] 21. Jt fijall bC a gOOtJ CljalJcnSC to t\)Z SlrraP, that the sheriff
Pais 115. was Arbitrator to tl)c oiic |3artP, iu tljefuuie ^amict a0 ije fljall be
ifte^I^nil to a 3iuvor* c^iJCfcfore fee tiji^ tijcre) 20 ip, 6. 39. b*
Arbitrator,
and treated thereof. Co. Litt. I ?(S. a. TfintheCaufe in Difpute, the Sheriff was ^ci/zr/r/or for the
Plaintiff' or Defendant, it is a princioal Challenge to quaflr the Array returned by the Sheriff' to try the
Iffue joined in the faid Caufe. }&r.k.6^. pi. 23.
Trials per [11] 22. 3^t 10 a ffOOti CijaliCntje, tijat tIjC sheriff is Procurator and
Pais 115. Maintainer of one Party. 17 C* 3- 5°- 73- lj»
''^■}'\^^ [12] 23. 3t i0 not anp Cljallensc tljiit tOe Under-fheriff is of the
rl-T. n'i Robes ot one Party, if ij'e does not make the Array, bUt anOtljCr ISikV
119. cues
S C.
M bp appointment of tljc ^Ijeriff ijimrelf. 26 afl; s^. "aisjuriijeii*
124. cites
S.C.
Br. Chal- [13] 24. So if tIjC Deputy of the Sheriff and Under-flieriff fends tlie
lenge, pi. A^ynt to a Bailiff, and he makes the Array, bllt tljC HlHlCr=fljeriff SOCS
not mcotJlc u«tij it, tljo' Ije oeUUcr^ tljc i©rit to tljc 31itfticc0, ^zt it
10 not anp CljaUcngc* 28aff» i6. ^iBjuupD*
[14] 25. 3t is a goon Cljallenge to tlje Strap, tIjat itiuas made
by the Bailiff of the Franchife in Favour of the other Party. 31 ^{f^
10. auniiificii*
[15] 26. jt i0 a Booti Cljanenge ti^ t\yt arrap, tijat it ttia0 made
by the Bailiff of the Sherift in Favour of ihe Plaintiff, 31 ^iT* 10. 130^
[16] 27. jt i0 a goon cijallenge tijat tlje attap m$ made by b.
the Minifter of the Sheriff, which B. was aiding and Counfel to the
Plain-
Trial.
2^1
"phimiF. 33 air. 19- snjuinffeu* CBut fee tijc 130011 mzt^)tt it
hz not, CO.it 13 a Cijallcngc of jfa^cur i for tl)erc aftcruintDis fucJj
CljaliKtuxc Id tnUen, nuo foimo tljat tlje aruai' [uia^J uieU mane, ano
fo tijc Inqueft taUcnO
[17] 28. In this Cafe, if UpOIl the 2d ^V'^ic the Sheriff impannels any
Of tfje Jurors, which were in the firft Pannel, t!)t0 fijall be a ffOOD
Cljallctip to rlje arrap i for aU tlje firll 3Jurorsi ace fiifpicious(» 33
air. 19-
[18 J 29. But m tlji0 Cafe t!jc paimel fljall not be quanj'D, if tIjc
©IjCrifT returns that there are no more fuiiicient in the fame Hundred
33 air. 19. aumtjpD.
[19] 30- ItilSaBOOtJCIjallcniie, that the Founder was sheriff, an5
t!jc arra)) maoe b)> ijim or W Bailiff, for the Poifibiiity to baue tfte
3Lani30, tf all tlje s^oitfeg tliaiisn Die. 21 e. 4» 63. b.
faoj 31. It IS a ijooa Cljailenge, tijat tljc arrnp mas made bv the * Br. ciul
Pkintiir' himfelf, bcmg Sheriff. 8 |). 6. i2« 9 IJ. 6. 11. * 14 I). If "S^; P'-
6 ' ^ '^ ab. cites
♦ 2* S. C.
.We by R.
S, of L:!nd in the Franchifc of S. and the Plaintiff in the AflifL; was Bailiff of the Franchife, andre-
turn'dthe Pannel himfelf, by which it was challenged ; and two of the firft Jurors were found fufpici-
ous, by which all the Pannel zuas oi<fl?d, and tie Sheriff commanded to enter into the Frar-clife &c. Ec
concordat in Idn. Not. Herle faid, That he might have femed it by another Bailiff. Br. Challenge x>\,
94. cites 7 Aff. II. '
[ci] 32. 3Ill Tndiament Of PUCCljafiltC; CCttai'n {^miOtS bPCham-Br. Chal-
perty. It iS a gOOtl CljallCnge t&at tljC Sneritf has purchafed P'arcel of '=^2=. P'-
the Land comprii'd m the Indiftment. 44 (JJ. 3. .38, ^2. cites
Trials per Pais, 116. Ci45)
[22I 33. It \^ a gOOnCljallengC, tIjat tlje Tales was retum'd by the
Sherm, being Piaiutiif 29 c. 3. 19.
[23] 34- ^0 It is a SOOO Cljallcnse, tljat tlje Plaintilf was made
Sheri;!: alter the Return of the Venire Facias, and before the Diltringas, ]
•and that he himfelf return'd the Diltringas 29 (Q^ 3. 19*
[24J 35- In Aihfe, If tlje 'Snenant pieans tlje jfcojTiuent luitlj i©ar= sr. chau
rant}) of tlje anceltor of tije piamtiff, to tljesi^apot aito Com> '="se,.pi.
iricijiaitp of D. loljo Ijaue leafeD tije laiiD to tjnn fui: Ijis life, ano s^^ ''""
tije 'M\z 10 iBijctijer anp -^i^ljins PafS'O $c. it is a gooo Cljallense to
tlje acrap, tijat it is niadc of the People oi the Commonalty, who have
the Reverlion ot the Land. 28 aiT. 18. aOntOSetl.
[25] 36. It is a goon Cljallcnae to tlje airap, tljat it mas made
by the Bailirt of the Franchile of the other Party. 26 aif. 22* aU=
jutitje5.
lenge, pi. 117. cites S. C Trials per Pais, 116 C14})
26. In Affife the Array was challeng'd, hecanfe the Plaintiff was Sheriff
of Fee of the fame County, under the Lord Clittbrd, Sheriff' of Wejlimr-
land^ and R. is hisUnder-Sheriff of his Fee and Robes , and by R. was the
Pannel array d, and the Country lummon'd. To which it was faid that
R. was Sheriff, and fworn to the King as Sheriif, and amerced as She-
riff, by which the Jultices took the Aiiife. But upon Bill thereof al-
lign'd, it was afterwards reverfed for Error for this Challenge, Quod
-nota. And therefore the firft Matter is a good principal Challenge. It
feems it had not been reverfed, if the Bill alfign'd had not been for Mat-
ter in Fa£l, Br. Challenge, pi. 97. cites 9 Alii 8.
27. T'he Array was challeng'd becaufe it was made by the Son of the
Plaintiffs who was Bailiff of the Franchife ; and it was found that he was-
Ste'-joard of the Franchife^ and another was Bailiff' there^ and is nnt revio've-
abk by him^ and made the Pannel-^ and therefore the Challenge not al-
ii'M\\l ;
hr. Chai-
232
Trial.
low'd ; Quod noca bene. Br. Challenge, pi. 99. cites izAff". 12. & 23
Air It.
28. AlTife by A. againfl: B. the Array Was challeng'd hecanfe it was
made by the tenant of the Bijbop of E. and by the Comfet of the Eipop they
■were impci>iHell'd^ivbereasthe Bijhop is Uncle to the Plaint i^\ andbecaufe the
Biihop was not Party, non allocatur as a principal Challenge, but Ihall
fay that they were procured to fay otherwile than Truth. Br. Chal-
lenge, pi. 100. cites 12 AH; 23.
29. \i Sheriff upon Re-dtjjeijin makes ■s. favourable Pannel &c. the Party
ftall not have Challenge thcreotj hut pall have Writ of Error ; for the
Sheriff /J Judge and Officer. Br. Error, pi. 197. cites 8 H. 6. 21.
30. The Defendant challeng'd the Array, becaufe the Sheriff was
Coiifin tothc Plainttff\ which was coniefs'd. But it vj2iS faid, that the
Sheriff was as near a Km to the Defendant. Upon which it was de-
jiiurr'd, and by Advice the Array was quaili'd. Cro.Eliz. 23. pi. 7.
Mich. 25 Eliz.. C. B. Audley v. Sutcrell.
31. In Trefpafs, the Jury were ready at the Bar to try the Iffue, and
it was moved that the Sheriff' by whom they were return 'd, held certain
Lands of the Manor in ^tieflion., and cf which the Defendant was then pof-
fejfed, and Itkewife held other Lands of htm for T'ears. h was objected that
the Defendant ought to take one Caufe only. Eut per Cur. he may al-
lege both, for the Challenge is, that he is within the Dijlrefs, and the
Allegations are only Evidence to prove it. Goldsb. 91. pi. 2. Trin. 30
Eliz,. Blunt and Liller v. Delabere.
32. If Pannel were returned by a Sheriff'^ being a Party concerned, gt
being a Member of a Body Politick concern' d^ it would be good Caule of
Challenge j but we don't take Notice upon the awarding the Venire fa-
cias of any fuch thing, if we are not appriled of it by Suggejiicn of Party ;
and IWurt of Proper Venue was never yet a Challenge to the Array ^ if he
were akin to either Party, or interejhd^ or not qnalijied by Law to make
a Return, or had made it at the Reqticjl oj either Party., or if the Caufe
did concern the Corporation ot London, the Venire ought to go to the Co-
roner at firft i Per Holt Ch. J. 12 Mod. 338. Mich. 11 W. 3. B. R.
in Cafe of the King v. VV^arden of the Fleet.
(K. c) Challenge to the Array, Denomhiatton,
^-Hais pel- I. T €; iis n gooti Cljancnge tljat tl)c ^Ijeriff pittsi anp lutot \X[. tijc
Pais, 116. J[ pannel nt tlje DenOUUnatlOn ot any of the Parties, to the Intent
Vr^Vh 1 ^^'■'^^ '*- "^^y rather pais tor the one than the other. * 21 (£, 4. 74. il*l)»
ienge,pi..V4. Cutia. 34- ^^ Cutia*
cites S. C. —
1 Brownl. 195. c)- t-
* Br. Chal- 2. But it ilS no CijaUenge if ije does not intend any Favour to any
icngc PU84. Party, * 21 c. 4. 74- 1)» Contta iWHeiu a* 22 c» 3. 12. ij, <iur* 49
cues s. c. ^^ ^ J j,^ (twxva. 49 aff. I. Ciina* 22 e. 3- 12. b»
Br. Chal- 3- 3t ii5 a gooQ cijallenge tijat tlje et)criff mane tIjc pannel at tlje
Iengc,pl.25.2;)en0minatl0tt of one Partp to the intent to pats tor him. 21 «j^.
cites 49E^ 4. 24. b*
The Array
■was challeng'd becaufe it was made by B. Under Sheriff, Cmjin to the Plaintiff, at the Nomination of the
Plaintiff, and fiew'd How Coujin ; and by 5 Juftices the Cofinage is not the Caufe only, but whether
the Intent was that the Jury Ihould pafs rather with the Plaintiff than with the Defendant , Eur Brooke
fays. Quod Mirum mihi ! for in Princijjal Challenge the Caa/e pall be tried orly. Br. Challtnge, 18 1,
cites S. C.
4-3it
Trial. 233
4- 3t i?S a 5005 CljallChgC if tlje S)I}enfFpucs any juror in the fan- S- P. Co
nel at the Denomination of any Party. 7 I), 4. 10. 21 Qlf* 25. a. (a!)'
Trials per Pais 116. (145)
5- 3it Ij) a gooti COallensc tljat ti)c Array tdas maHe at tlje Dcna^ f ■■ <^''f -
ttlinattOn of the Servant of a Party who is put in the fame Pannel. 7 p^ |f;"|,^^ P^;- 5^"
4- I Or Trials per
Pais 1 1 6.
6. 3!n €)£irc jfaa'a0 upon a EccoQ;m?ancc for tl)C peace, for ^'-^5. 146)
Breach of the Peace f C* It 10 a pOD (TljailCniJC tO tlj£ ^tUW tljat It
iuaG niaoe lij? i^* auticr^^ljcntf at tije Denomination of b. to whom
the Forteicure is granted by the King UJitljOUt HWV C{)artCC Of t^C
l^inij tljercof* Diibitatuu 13 !D» ?• ll^elloujap 39 b/
7. It iis a tyooD COailcngc ti)at tije ^rrap luag mane at tljc Dcno-- Br. chai-
tllittatiOn of a Maintainer, 17 (£♦ 3- 73- ti* •^"S^v P'-
cites 15 Aff. I. Trills per Pais, 116. (145, 146)
8. 3it (0 a 1X005 Cljallcnirc tijat tljc^rrai) ms maUe bv tlje 15ailiff Br. chai.
of fuel) a IpUnOl'CB, at tijC iOcUlCe of J. S. who was of the Counfei of Ienge,pl.i4(;,
a Party. 43 M, 36. aD)Unptl» ^i!" .^-C-
9. Jt 10 not a gooo COallense to tlje arrai), tIjat tIjc g)I}eriff or pVis ilT"
1]3atliff matirit at tDeDenouimationofalpartp, if the Sheritfor (145,146)
Baililf did his Office duly without having Regard to the one or the
other. 26 ?tir. 42. €um. 28 ^If* 23. 26 (£. 3. 62. aOlllIffCDr
IP. 3it i0 not a ijooo COaUenge t!)at tljc arrap ina^ inaue bp 15, * sr. chai.
tlje OBatUff of tlje %i)txm (to toliom tIjc g^ljerjif \m fent) at tlje ^^'- '^"s^.p!
tice anti Denomination of tlje 19lainttff, if Ije noes not i'^iy that it was Tmis per
made in an ill Manner by Procurement * 27 Sfl"» 65. 28 iJfL 23. atl= Pais, nd.
niogcti. contra 25 €♦ 3- 42- b. (Hu^re* (145. 146)
11. But It ijao been a goon Cljallenge if tl)e ^rrap Ijan been mane ^r. chai-
inan ill Manner bj) tljc OBaiUff Of tlje gjljenff, tbo' tlje Eetum be in •<:w'','3-
tlje Ji^ame of tlje ©Ijeriff, Ije not bcinn; a Xailitf of anp Irancljife. Fo?a, to ;
27 gir* 65. a5)uoseo« 28 m. 23. Baii.tf of
Fee the She-
riff will wiire to liim as of Guildable and not as to BailifFof Franchife, and therefore fhall not mentioa
him in his Return neither fhall a Non omittas be awarded by his Default. And afterwards the Chal-
lenge w as tried ; Quod Nora. And cites iS All 24 accordingly.
12. Jt 10 a goon Cljallenge tljat tlje pannel m$ made by the Bai- in Adife,
liffof a Franchife, of whom the Sherilf has made no Mention, but has ^^^^ Array
return'd it as of himfeif ; fot if it appear0 tljat tlje ISailiff returnen it Tented']"
tlje pattp migljt Ijaue CljaUcnjjc to tljc QBailitt; 17^,350.73- b, cn./e n J«x
made ly B.
Chief Bail ff cf IF. at the Dencminaiiev of tie Plaintiff; & non allocatur; by which he f.iid Jt the Deiicf
avd Dow'iinaticii of the Plaintiff in a favcurahle AJanr:er, and the SI eriff return'd it as if he had made it
of himfeif , and upon the Ex-an^ination of him he faid that the laid Bailitf upon his Precentto him directed
made it, and therefore a good Challenge. Br. Challenge, pi. lij. cites 28 Afl" 24.
13» 3!f 2 Strangers make a Pannel, and not in a favourable Manner S.P. Co Litr-
fOr tlje one Partp or tlje Otljer, and delivers it to the Sheriit; who re- '^^-a-Cl)
turns it, it 10 goon i not [being] at tlje Denomination of anp partin p 'i':''','';'
6E,2.cfjaliengcio2. -^ ^7;;/;%
14. 3if a L^annci bp g)Ufferance of tlje ©Ijeriff be made by Affent
* of the Parties,pet tt 10 gooo, ann fljaU not be cljallengen, tljo' mane
at tl)e Denomination of tlje partte0. 6 JR, 2. CljallcusTe 102
15. Jit 10 a goon Cljallenge tljat tlje arrap iua0 mane up tlje 'Bailiff Br. chai.
Of tt)e ifranCljtfe, at the Denomination of one D. who was Procurator lsnge,pl.i26.
(tc. 28gfi;22. amiingen, "•'■■-^
Ooo 16. S-v
234-
Trial.
Br. dial- 1 6. So tt {0 a 1^003 CljallCngC to n!I tljC 3rraP, that 5 Perfons were
i^nge, )>i inip:ineiied iw tl}z I5aiiuf cf ttjc jfrnncljife at tfje D£nomtnatiou of
Ir "^" one D» VJljo tuag procuror, all tlje arrai' fcmg inane bp tlje fame
■ ■ ismidi. 28 m\ 22. aniunaco*
Br chai- 1 7- ^o tt is a iTOoti Cijafienffe to nU tJje Slrrap, tbat 5 Pctfonss
len-e, r' ttcte iniuancilED tp toe cijicf OSailiff of tljc jr rancljUe, at tlje DcnonU'
126. cites iiQtlOn ef one '£). lOijO VJA0 ?3rDCUr0r, tl>o' all the Remnant was re-
He^piah^^ft- '^"'"'^^ ^° ^'^'^ chief Baiiiii by tijc QSaiiiffof tlje jftandjife, Uiljo Ijati not
cannot have Hctutit [tu atiQ tU cljicf loniiiS wckJ but tlje Coa^cpor* 28 m, 22.
newAiTde ClJjjUtlGXia.
ofthellcm-
rant. And Procefs Ihall ilTue to the Sheriff to make a new Pannel, Ita quod Ballivus non fe in-
tromitatt.
18. But OtljerirSifC it Ijan been, if tlje Array had been made by direrfe
Bailiffs. 28 M. 22.
19. Tf a Partv prays the Sheriff to make the Pannel of the better
Peopie-Qf the County, anti tlje ^Ijerlff Henianujj UJljom fje tuouinijaiie
inipannellcti, anB tlje part)' fap0 tijat Ije uiill name no jQanie to ijini,
tut tljat ComaiToiu Ije uitU tielitjer Ijnn a €)trotul of tljc Sl^amm of
50 Of 60 of tlje better people of tlje Countp, ann \itnp$ ijim to talsc
HJljiClj of tljeUI Ije IDIU, and after delivers him a Scrowl accordingly, in
which 50 of the molt Valiant were named, of which the Sheriff returns
the Pannel ; tljid Pannel 10 ffooti, ann not mane at tlje Dcnominn^
tion of tlje Partp. 41 ^* 3- CbaUenp 99-
2.0. The Defendant challenged the Array becanfe is ':>: as favourably made
hy W. N. Sherif[\ at the Denvuiination cj J.S. Clerk of the Sheriffs fa-
vourably for the Plaintiff; and in Evidence he [aid that it was made by
Denomination of the Bailiff' of the Franc hife. And per Boefe and Need-
ham, his Evidence is not agreeable to the Challenge which (peaks of the
Clerk. Per Danby, The £ffe£t is, if it was favourably made by the
one or by the other, ^luere, lor they pafs'd over. Br. Challenge, pi.
93. cites 38 H. 6. 9.
(L. c) Challenge to the Array for Malice. A^iom^ [&c.]
5. P. Co. I. T ^ is not any Cljallenge, that the Coroner who made the Array
Litt. 1 56. a. J^ j^ag Action of Debt pending againft one Party, tUljiClj ltia0 brought
pej'plri 1(5 belore the Array made ; for tlje LaiO noe0 nOt llitenH $?9aUCC fet DC'
f,46) — : manning ljt.0 Dutp* * 1 1 j£)» 4. 26. b* annmsen*
* Contra, if
it was an Adlion of 'frifpnfs ; for this implies Malice. Br. Challenge, pi. 45. cites S, C.
s. P. Co. 2. But it toculti be otijeruiife, if tbe '3ittm Ijan been brought againft
,^'"'^'^ ^- the Coroner iuijo maue tljc Slrtav i for tbere i^alice map be intcnoeD
* But per in l3im, becaufe tlje otljer Bemannj? Iji^ Debt of Oinu (Cljiss 10 true
Hank, upon St tljIjS DaV) * III), 4. 26. b.
filch Chal-
lenge the Party lliall fliew the Record. Br. Challenge, pi. 45. cites S. C.
S. P. And/o 3. 3[t 10 a goon CbaUengC, that he who returned the Array had Ac-
ift^eP'^'"- tion of Battery pending at the Array made againft a Party i fOt tljCtl
fend°ant have ^^^^^^ ^^ \\\tt^mx^ fot tlje osattet^ 1 1 ^* 4- 26. b.
fuch j4Bkn •
agahijl the Sheriff . Co.Litt. ijC?. a. (c) Jenk, 284. pi. 15. Jenk 18. pi. 3J. cites 20 Affi
pL
Trial. 235
pl. 11. -o H. 6. 7. 58 H. 6. •. S. P. l\-r Fleming Ch. J. Brownl. 240. in Cafe of the £.ui
of Rutland v. the tarl of Shrewsbury.
4. It 10 a POB CljallCltgC to tlje arrap, that there is Debate be- Trials per
tvvcen him and the Sherirf, becaure the Sheriff killed his Servant. 24 ^-^'s n<J-
'€* 3- 37. C146) .
5- Jt't\)t Sheriffowes all the 111 or Malice pofFible to a Party, yet if ^^"^ ^'" "'
he makes the Array truly U)itljOUt atTJ> JTa^JOUC fljCUm tO tIjC o'tf)CC, tljC
array is ffuoQ. 20 fix 6. 40.
6. But III tIjiS Cafe, if \)t puts in one Juror fufpicious, aitll UOt frt^
UiffLTcnt, ali U)c Cirrap fljall be qitanj 0* 20 ii). 6. 40. (3it mm it is
to I1C iUtCllDCtl tljat UZ knew him noc to be indifferent.)
7. 3t 10 a (vooD CljaUcuije to tljc arrap, tOat it uias matic Dd tlje see pi. 4
HiltlCD^StlCriff, bttmzm lUijaiU ailQ fjim lUa0 a Debate, becaule the
Under-Sheriff killed his Servant, tho' the W rit was returned by the
Sheriff himfelt: 24 (£» 3. 37. ^DjUOpO.
8. In Affile, ihit Batlijf' agauijt '■jjhom the Plaintiff' had a former Affife
made the Painiel in the prel'ent Aliiie j and therelbre the Array was
qualh'd. See Br. Challenge, pl. 208. cites 39 Aff 2.
9. It was agreed in a Prefcntiuent taken before Jafiices in Oyer and 1'er-
viiner^that ths Juror was his LidUlor; quod nota, ihzt upon ^raverfe or the
ludiflment^ be it Felony or other Matter^ the Indiftor may be challenged.
Br. Challenge, pl. 23. cites 44 E. 3. 43.
10. In an Aliife &c. the Tenants challenged the Array, for that one Bulft. 4.
of them had an Acfion of 7'refpajs lejore the Aj/ffe, and then depending Hill. - Jic.
iigainjl the Sheriff'. Crooke and Williams J. held, that this is a principal ^^- ''^
Challenge ; but FlemingCh. J. and Yelverton J. held, that it is noprin- the £^1° of
cipal Challenge ; and Fleming put this Diii'erence, that if one brings ^[]xt\x>U
Affife, and has Trefpafs againil the SherilF/or entering into the fame Lands fcurp v. the
far -which the Affife was brought^ there it lliall be a principal Challenge ^^^'■' °^
to the Array ; but if the Trefpafs is for entering on other Lands not in ^" q." j!
Demand, it is otherwife. 2 Brownl. 229. Pafch. S Jac. £. K. Earl ofj.heldita
Rutland v. the Earl of Shrewsbury. principal
Challenge;
but Williams, Yelverton, and Fleming e cortra ; and Fenncr J. faid, That in this Cafe the Sheriff
was no fit Perfon to return the Pannel ; [but did not precifely declare his Opinion whether it was a
principal Challenge or nor.]_ And Fleming Ch. J. faid, That Trefpafs for entering into Land is no
principal Challenj^e, becaufe in Trefpals there is no Land to be recover'd, and no Damages but to the
Value of the Trelpafs. Brownl. 240. in S. C. 8 Rep. 5 5 . S. G. but S. P. does not appear.
11. An Action brought for every Debate will not be the Caufe of a
principal Challenge, unlefs it be in fuch Aftions in which there is e'l-
iher Malice, Grief , or Revenge. In fuch Cafes this wiil be a principal
Challenge, but not otherwife; Per FlemingCh. J. i Built, 10. in Cafe
of the Earl of Shrewsbury v. the Earl of Rutland.
12. Or il an Aftion be brought in which the good Name and Fame of
the Party be touched, this will be a principal Challenge ; per Fleming
Ch. J. I Bulft. 10. in Cafe of the Earl of Shrewsbury v. the Earl of
Rutland.
13. In Aftions which concern Life^ Honejly^ Maym, to fay that he has
fuch A£lion hanging againft the Sheriff, ffiall be a principal Challenge i
per Fleming Ch. J. Brownl. 240. in Cafe of the Earl of Rutland v. the
.Ear.l of Shrewsbury'.
(M. c)
Challenge
Trial.
64^ (M- c) Challenge to the Array. Ho-zv, and in what
Manner the Challenge is to be ttike;?, \or Jhenan?^
This W3S I. T-ST is 110 gOOB Cljallenge to fav. That at the Time of the Chal-
theCafe of ^ Icnge taken, the Sheriit' was Coulin to the Feme of the Deiendant;
Marfliaii v. fp^. jj. „^-,p jjj, jjj^^j. j|jj; Dcfcutiniit tooii tiji^ J©onm5t to iBife aftct
tjjcl^iinncl \vmz, Crgu* D> 29 fp. s. 38. 49. bp tlje Court ati=
jUDgCC.
2. But tlje Cl^tlllCngC OUgljt to tic Quod tempore Panel li prEdifti
Arraiati, tljc ^ijciiff uiiigi coiifin to tijc jfcmc Of tl)c Deffntiant,
C)* 29 ip, 8. 38. 49. Pec Curiam.
3. But it 10 a JJCOD CijallCngC to Tap That the Defendant himfelf was
Coulin to the Sheriff at the Time oi the Pannel made, tiCCaUfC Dp 3!n=
tcuDmcnt tljc Cofinagc of Q51oon tua^ betluccu ttjem bcfoc:* D* 29
I), 8. 38. 48.
4 Jit 15 not gOOU to flip tliat tljC Sheriff took the Coufin of the De-
fendant to Feme, if \)z ooejs uot allege tljat Ije took Ijer to if erne be-
fore the Pannel made.
This was 5. But in tijigi CJjaUenfVe if IjC fays that he has IfTue by her, who is
the Cafe of alive, and that he is a Knight, it canuot be inteuticti but tijat \)Z Uiajs
HucSn''' warnctJ to l3cc before tljc l^anncl, anO tljerefore i^ gooU. Oubita^
■ turD. I. ^a. 91-
6 Jf aCijallCngebe, tIjat a. sheriff of tlje COUntp, is married to
the Defendant's Couhn, aUD QOC^ UOt allege that he was Sheriff at the
ferving of the Writ, pct it i0 ROotJ, if It map appear bp jRecorn tbat
tijc fain 3. returns tlje J©rit, otljerttife not» Sec D, i. $l9a.
91- 14-
Trials per 7. jf c&allcngc fac tal^cu, tljat tlje ©bcriff bag marricu tbe Coufin
iTll^ ''^' of tljC Partp, it ISS not IJOOH, if be Bees not aver that the Feme is
Br Chal- alive, or that he has Ilfue by her. 22 C, 4- 2.
lenge, pi.
186. cites S. C. and the S. P. is there admitted.
Trials per 8. 3]f Cljallcnsc bc talicn for Cofinasc, Ije ougljt to fhew How
Pais 117. Coulin. 21 C 4. ^3.
(146)
Br. Chal- 9. jf a Cballcntxe bc to a juror, bccaufc Ije i0 Coufin to tlje
lenge pi. jr^^^p qj- qj^j, [i)artp, IjC nCCQ not Ihew How Coulin. 8 tp, 6,
50. Cites •* li ^
S. C. accord- ^J* 0»
ingly. But
fays. It leems clearly that he out^ht to fliew upon the principal Challenge How Coulin.
(N. c) Challenge to the Array. Comter-pka. What
Counter-plea of the Challenge will be good, and Hoio
it fhall be pleaded^
Trials per i, np||)(25 Manner of the Cofinage allCljetl Itt 3 CfjallCttgC is not tra-
^ff^A''- JL verfabie. 19 $p. 8. 7. pet Cutiam. D, 15 €U 319- I3- pcc
Ihere the Cutiauu 9 €, 4- 6. bp ^clbcrtou*
Conveyance
of it is formal, and not material, as where the Conveyance was Son of J [^0;;] of W. Brother of the
Plaintitl,
Trial. 237
Plaintift', where the Triors found it to be Son of J. [ D.iughter} of W. Brother of the Plaintiff; for the
Eticct of the Challenge is found, and therefore ihe Array was quafli'd. Br. Challenge, pi. i cires
19H S. -.
2. 0. 29 ip, 8. 37, 47. Plaintiff cljaucnfrcn tijc ^rrap Sccmifc tijc
Sherirt'was Coulin co the Defendant, ailD COnClUllCD tljtlt i)C ttJilS COU^-
flU to the Feme of the Defendant, pct pet CuriaUl, nOttUltijltaUDinff
this Variance tlje^rraP ftiaiS quafljabie, bCCaufe tlJC Conveyance l^ nOt
material*
3. So tIjc Conucpance of tlje Cofinarte in a Challenge to a juror i^ Br. chau
not traucrfablc. 7 €. 4- 4 ^* lenge pi^^;;
cites S. C
and that no more fhall be tried than whether Counn or nor .-Js where a Man h challenged becaufe he
holds of a Party, it fliall not be tried ty what Service or Tenure he. holds, but ivheiher he holds of him
crmt. And fo where the Challenge is for being a Gojjip, it p.ill not Le inquired to what fnfa?it he was God,
father.
4- JD* 15 ^l» 319- 13- ^^''fiOH plaintiff allgQICD Cofinage between the Trials per
Sheriff and Tenant; tljC Ccnaitt traverfed tlJC COfinagC Prout &c P^« i^'-
WlitfjOUt Modo & Forma. '^''^^^
5. 3!f CljallCngC bCtabCn that the sheriff has purchafed Parcel of the r">s>A>0
Land,comprifed in the Indictment of Champerty,Of tljC DCfeuDant, if it F°'- <^49-
tie founu tljat Ijc purcljafco it of anotljct $0an, j?ct tlje arrap fljall tic^;:''^^'
quailjeu. cif or it lua^ not material of loljom it ujais purcljaicn*) 44 lenge, pi 22.
(j^» 3. 38. cites S. C.
6. ,h\ Attaint a Juror "Jtias challenged, and the Plaintiff faid that he
•was at another time fwortt ; the Dejendant fitw'd Catife of later time,
and good j Quod nota. Br. Challenge, pl. 91. cites 21 H. 7. 38.
7. Where a Man challenges the Array and does not 'verify hts Plea, viz. Br. Aver-
Et hoc Paratus eji veripcare, yet his Challenge is good i tor the Entries ""ent, pl. i.
are not that he ought to verify his Plea, and they will not vary from ^:^- (5"^"
the Entries. Er. Challenge, pl. 3. cites 27 H. 8. 12. per Cur. ['Butitftould
be2-H.8.i5.
b. pl. 5S]
(p. c) Challenge. Counterplea. What Ihall be a good
Counterplea of the Challenge.
I. T B a Monfirance de Droit bp % %> atjainft tIjc lAing fot lanti in ^;°- E/^?-
i UBarn ; if tljc parties; are at Jttiic ano tijc mm cfjallcntje^tlje ^ ; IheNa^c
jarrap, bCCaUfe tlje Sherilf was within the Diltrels of J. S. It 10 nO ot the ?l£)*
Counterplea of tlje CbnllCnge for 31* S>. to fay that he is but Tenant i^unfDon
in Tail of the Manor of which the Sherilf holds, the Reverlion whereof iJ> Baktr
is in the King, and alfo that the Sherift" holds another Manor of the ^'^'i,°'H'"S'y'
King in Capite ; fOt tljC fitft CballettffC fljaU ftaUO* P» 41 <£!» ^'H* wards by
betlueeu tbe J-ord Htmfdon and the ^leen. Confent of
the Counfel
the Ld. Hunfdon waved the Plea and confefTed the Challenge, whereupon the Array was quaih'd and a
New Venire facias awarded.. Mo. 553. pl. 746. Ld. huadidon's Cafe S. C. accordingly.
2. Jftlje Defcnnant cljallenges tlje arrapbecaufetfje sheriff is Cou- co. Litr.
fin to the piaintitr, it tg no Coiintetplea of tlje CljallenKc tljat tlje ipYiaw ^Zr
^Ijeriff is Coulin alfo to the Defendant; bllt tlje ^trap fljall bCp,,?!,-
quaflyu becaufe tlje Defendant firft took tlje Cljallenge. p. 41 €l, ck63
p P P 5^ ©a
238
Trial.
Trials per 3. @)0 tf tljc Dcfeittiiint cljallenffcg tlje arrap bccaufe tije SherifFis
Sr ' " within the Diltrefs of the Plaintilf, it 13 110 COlUttCrplCa fOt tljC CailfC
^ ' afOrefaiD, that he is alfo within the Diltrefs of the Detendant. 1E)» 41
4. In Affife, the Array was challenged becatife it was made to come ly
the Under-Sheriff'-juho was of the Fee and Robes of the DiJJeifor, & non al-
locatur i for at another time the Affife remained at another Day, at which
[D^jj'J he accepted the Array, where it remain'd pro Dete6tu Recogn.
where it was laid to the Sheriff that he Ihould not make another to do
his Office in this Writ, and that the Underllieriff Non fe intromittat. Br.
Challenge, pi. 96. cites 8 Alii 31,
5. If the Plaintiff' names 6 Perfons to the Sheriff or Underllaeriff ?t) /)«?
into the Panne/, and delivers to him their Names, and a long time alter
before the Return of the Pannel he countermands this by Letter, and de-
lires that he will not put in thofe upon any Account, if the Sheriff' ac-
cepts the Countermand and puts others into the Pannel, this is good ; bat
if he puts any of thofe into the Pannel firll named to him, this ts not good^
but qualhable notwithlhanding the Countermand. Agreed per tot. Cur.
Dal. 24. pi. 3. 4 & 5 Ph. & M. Anon.
see(N,b.7) ( P. c ) Challenge to the Array. At nsjhat Ttnie
CN-b.'?) they may challenge the Array for IP' ant of Medietas
Lh/giue.
*Br. Pannel, i. T"^ 19 (^\^ 357. 45. Spinola. ^JH tm ^CtiOU Of Debt againft an Alien,
pi^citess c. YJ» n General aDenire faciasi luasi aiuarnco, anD at tljc Cnal tlje
perPai^zIs SUcit cljallenBCU tlje arcap bccaufc Ueuias alien, ann prap'D to \mz
(215) cites si3cnictntcui ltnn;iu« ; init aciutiKcH tljat Ije fljall not Ijat^e it, tiecauft
S. C. accord- jj y^^t^ jjig jLaClje^ tljat ijC Ijatl not inlorm'd the Court of it before the
ingly, that it ^^.^.d of the Venire facias. Contra * 21 H. 7. 32 b.
■withftanding Stamford's Opinion to the Contrary, atid the Books by him cited in his PI. Cor.
tbl. 159.
z Hawk PI. 2. m)txz an Jffuc \fi )Gin'ti bctteccn a Denizen nnli an alien, aim
C410. cap. a iOcnice facias aiuaroeD pro $?9erJietate linpse, ann tljc sheriff re-
43- S- 43- turns 12 Denizens and 12 others for Aliens, wherein Truth there are-
not 12 Aliens nor 6 Aliens return'd. Jn tljilS Cafe It feem0 tfjat tlje
alien ma)) cl)aucngc tlje arrap, fot otijertoife Ije Ijajs no Kemelii> if ije
fljall be concUiQcti lip tlje Ecturn of tlje Sljcriff ; fot a 99an map
cljallenge fot Default of ipunnrcisofjs tljo' tlje S^ljetifFvctutn^ftiffi--
cient for $piiniireriov0. \p, 9 Car* 15. K» bcttueen Jyicway and shi/-
img, it [being] moiico in arreft of juBsmenu
(P. G. 2)
Trial.
239
(P.c. a.) Challenge to any of the 4 Knights. Taken and See(P.d)
tried, before whom, and How. p";^ \^-
pi [6]
I, T N Writ of Right, the Parties "were at Iff tie upon the Right ^ and at Br. Chal-
J[ the D('y of the Return of the Venire factas returnable by the 4 Knights^ lenge. V^^l-
the 'Tenant chalkng\i one of the 4 Knights. And per Choke J, he fliall noc '^""^- ■""
have the Challenge before us, but before the Parties in the Houfe when the 4
Knights are making Eletlton of the Grand Affife, by which it was a-
warded accordingly, and the Tenant oulted of the Challenge. Br.
Droit de redo, pi. 12. cites 15 E. 4, i.
2. And it any of the 4 Knights are challenged there, thispall be tried by Br. Chal-
the other three, and if another be challenged, it (loall be tried by the ether two. '«"ge, pi. d;.
Br. Droit de refto, pi. 12. cites 15 E. 4. i. per Choke J. citesS.C. —
3. And if the Knight be found favourable, he ihall be flruck out. Br. gr. Chal-
Droic de Re&o, pi. 12. cites 15 E. 4. i. Per Choke J. lenge, pl.d;,
cites S. C.
4. And if three Knights he challenged, then another Writ to caufe to Br. Chal-
come 3 Knights, lliall be awarded ; for no Challenge can be tried but by '^"S^; ?*•
two at the kaji. Br. Droit de Refto, pi. 12. cites 15 E. 4. i. Per vfo^^
Choke J. ' ■
5. Challenge to the 4 Knights mujl he made npn their Appearance; for
when they are fworn they are not challengeable. Per omnes Julticiarios.
Dal. 68. pi. 36. 6 Eliz. Squirrey v. Read.
(Q^ c) Challenge to the Array. Before ixihom It may be ♦ Foi. 644.
taken. o'^'^r^^^
I. T B Writ of Right CbnllCnge map be to tIjC 3ttaP before the 4 Br. Chal-
X Knights. 7 5)» 4. 2o» zz^.y \%. ''?"g^' P'-55-
(R. c) Challenge to the 'Jurors. Befre ndmn it may be
taken.
k. T B Writ of Right CMICngC WW 6C tO if^Z JUtOrg before the 4 g^ ,.,,^,_
X Knights. 7il)«4. 20. lengcpl 35.
ciies S C.
(S. c) Chal-
240 Trial-.
(S. c) Challenge to th Army, At ivhat Time it
may be.
After the I. T JO Writ of Right, If t\)Z \^t\mt\ bC return 'd by the 4 Knights,
Ketum made ^ j jj^ I3artic0 fljall iiot ijiiHc Ctialietitje to tijc ]pm\\t\ after, b£=
5:;i^h,J the caufe tijci? uiigljt mz taUcn it before t(jc 4 lAntsijtg* 7 »;♦ 4- 20.
P.u-ties fliall .
not have Challenge either to the Pantiel or the Polls. Br. Challenge, pi. 5 5. cites S. C. Trials
per Pais 142.
The 12 befoi-e aty JJTetit, may be claUenceti before the i^ KTiights EkEfon-^ but after Allent or Return of
the Pannel before theJulHccs, there fliall be no Challenge to the Pannel nor to the Polls. Co. Litt.
294.. a.
2. 3in AfTife, if tlje arrnj) be djaliengeti anti affitm'ti, anti remains
for Default of 31UUOl'0, anH aftet dilcontlnued by the not coming of
the Jultices. Ilpoit tljE Re-attachment ttjC ^ttap lliap be challenged
again ; fot t\)t ftttt Cijallenge t>oe0 not appear ot EecorH, but onip
tbe Original anb tlje ii5annel* 1 3 ii). 4- iq- a* b*
Br chai- 3 • Jf a principal li^anncl anb 2)cto 'QDalciS are rcturncb, after chal-
lenge, pi. lenge to the Polls ot the Principal and Tales, and this tried, UO Cljal-'
T40. cites jf „(jf f jii^ t,£ tQ tije rjrraj? of tbe oao Tales. 34 aiT* e. anjubscD,
Browni.127. 4. 3]'f i\yz Plaintiff, before any Venire faCihS awarded, [fays] that he
^ptr ^- is of the Blood of the Sheriff, Ot an)? otljet principal Cballcngc be=
s c thi; tincen Ijim anb tbe €)beriff, anb upon tl)i0 praj»0 a iDenrre faciass to
Challenge tljC COrOUCr^, anb tlje Defendant denies the Caufe ot the Challenge,
^vas adjudg- flnb fo tl)e w>K\t 10 aiuatbcb to tbe €>beriff, tbe Defenbant fljall not
ed naught by jjjj^g jjj^ j-^,^^^ cijallenffe to tbe 3rrap, lobicb uiais before ailegeb bj?
Judge!— tbe Plaintiff^ anb benteb bp bimfein
Hutt. 24.
S. C. fays that Hobirt and Winch held this Denial not peremptory to the Defendant ; for that the
Time of Challenge is not till the Jury are fwom; but Hutron lays he held the contrary, becaufc he
might have confels'd the Surmife, and fo have had Time.
5. But in tW Cafe tbe Defendant niay challenge tbe 0Ctap for
* s. P. held * other Caufe, ^ if tbc J^laiutiff allcgeEi a Confanguinitp betinecn
bv' vv indi ^Ji^ oujn Jfeme anb tbe ebcnft", anb tm i? benieo bj? tbe Deten-
and Hobart, Daut, aub upou tijis I3rocef0 goes to tbe €)beriff, tbe Defenbant
but Hutton map after ci}allcnn;c tbe 3rrap for ConfangninitP bctluecn tbe I3lain=
econtra. Mo. tiffijiuifcif aub tbc ^bcnff ; fOr tbi0 10 anotber Caufe tban tbat uibicO
iL^g Evre ^^ allcwb bp tijc piaiittiff ; anb tbo' tbe Defenbant migbt at firft
V Baniiier Ijanc [^ tbe iBrit to tbe S^bcriff, pet inafmucb as it is not to ac^
and Wen- unoiulcbgc a jFalfitp, anb be cannot babe it iaitbout Conufance of a
lock, S.C. fnlfitp, befijall not be eftoppb total^e tije dTballcnge. S^icb, i6
3!a.05* umtmAier and Banijhr, bp Epubatb aub JiBnicb, but ipUt'
ton e contra^
Trials per 6. jf upou tbe Ectutu Of tbe aurp tbep bo not appear, bp lubicb
f^'\''u I, tbe plaintiff praps a Cale0, anb after the jury is made tuU by the
r^S-^Taies, tbelplanftiff map aftcruiarbs, betbreany Juror fworn, cbal=
*Fol.645. lenge tbe UlljOle 15annel * for an Exception to the Sheriff; fOt tljCre
<^^^y^^ can be no ej:ception to tbe J^annel or tbe polls till a full ^urp ap^
235 pi ^97- pjarji . fotbat tbc Jurp not appearnig full, tbere toas a Jl^ecelfitp to
Hawk PI c babe a ^ales, or otberioife tbc Cbailenge couio not be tahen. pfx^
412. cap. 45. bart'0 Eeport.Sj Cafe 296. between vuars and Langb.vn abjubgeb*
S.I.
7* '2^e
Trial.
241
7- Cljcpiaint(ffnmvcl)ancn0;ctljel3iiniiel an the Return tijcwaf Hob. 255.
for Conliinguinicv, Athnity or dec. to the Defendant, auBl 10 HOt P' -9'- —
Effopp'D bv fuino; out of tijc iDcnire imm to tnUc tljis Cfjallcnsc* c""'"'' ^'•
ipOlJart'jS KepOCt.Sl, Cafe 296. Uetluecn Vicars.cwd Langbam 43 s'.^i.''''^'
8. ^ijtcr the Return of the Pannel made by the 4 Knights^ the Parties
fliall not have Challenge to the Pannel, nor to the Polls before the
jultices. Br. Droit de Refto, pi. 6. cites 7 H. 4. 3. 30. & fimiliter. 39
E. 3. 'z.
9. It feems, that after CbaUeiige to the Array tried, the Party cannot
challenge the Array again for another Caufe ; for then it lliould be infinite.
Br. Challenge, pi. 155. cites 4 H. 7. 8.
10. In Trefpafs Iflue is joined at the Nifi Priiis, the Defendant makes
Default^ this Detiiult is recorded ; at the fame Nili Prius a Proteftion is
calt for theDetendant, and recorded alfo upon the Return of the Pollea;
the Protettion was difallowed in C B. At the 'trial of this Iffiie after-
•xards, at the Prayer of the Plaintiff, the Defendant fhall lofe his Chal-
lenges to the Array and the Polls ; for he has made Default, but his
Evidence has not. By the Jullices ot boch Benches. Jenk. 119.
pi.. 38.
11. The Array cannot be challenged after a Juror is pmcru. Tenk. S- ^- Sty.
loo 0 J J J J,,, Mirh
310. pi. 88, ''j'- ^^"C"-
•' ^ 1650. or
I»Iicb. 1649. Anon.
T2. If the principal Pannel do once appear full, then the Challenge
mull be taken to the Pannel before any be fucorn, or elfe it comes too late.
Hob. 235. pi. 297. Vicars v. Langham.
13. SvhexexhQ Plaintiff' fucs his Venire Facias to the Sheriff, he is not
eflopp'd thereby to challenge the Pannel for any Caufe that was before
the Venire Facias. And tho' a Juror may be challenged for a Caufe which
has happened Jincc he was fworn, yet the Pannel cdnnop be fo ; lor no ill
Afleftion of the Sheriff, ariling lince the Jury fworn, can make the Jury
fufpectedj that was impannell'd before. Hob. 235. pi. 297. Vicars v.
Langham.
14. Challenge may be after a 7'ales pray'd ; for no Challenge can be
until the Jury is full. Trials per Pais 115. (145)
(T. c) Challenge to the Jurors. JFho may take k:
The Court.
!• TJf ait SlbbOt recovers in a Real AQiion, upon which a Quale Jus
1 iflues, aim tl)e Jiuri? [10] rctiirit'n, tIjc Court fliall elect 2
Crior0 of tljc laannel, ano ft)aU cljarge tbcm to inquire of c^erp
one of tI)C EefltmC of tlje Jurors, J^ljCtljer IjC \m fufficient Frank-
tenement, aim VDfjCtljer Ije i3e within the DlHrefs of the Abbot, auD
Urt)etljet Ije tJC favourable. 20 j|)* 6. 38. b*
Q^q q (U. c) Chal-
24,2
Trial.
(U. c) Challenge to the Jurors. //7jo may take it.
Be. Chal- t Jj[J5 Affife, if tljC Tenant anfwers by Baily, t\)Z Bailv \m\> Cfiat
loTcites 1 Icnsctlje3uror0. 2oair. lo.
S. C. Jnd he flialL have all Challenges to the Array and Polls as his Mafter fliall have. Contrary
of an Attorney. Br. Affife, pi. 5S3. cues 9 H. 7. 24.
2. In Trefpafs by Husband and Wife, the Defendant pleaded Not Guil-
ty ; and the Husband only raade a Challenge, That he was Servant to one
of the Sheriffs, and prays a Procefs to the Coroners ; and the Defendant
denies the Challenge ; and therefore, notwithftanding the Challenge,
the Venire iffued to the Sheriffs. And after a Trial Exception was
taken, becaufe the Woman did not join in the Challenge; and it was
held, that the Husband and Wife Ihould join in the Challenge, altho'
the Caufe of Challenge proceeded from the Husband only ; but after
Trial it was aided by the Statute of Jeofails, and Judgment given for
the Plaintiff' Brownl. 234. Hill. lajac. Wright v. Mounfton.
Sefcci.d.2) (X. c) Challenge. Between what Ferfons the Ifliis be-
ing, a Challenge may be. J-Fhcre the King is Farty.
Trials per I. T X T ]^) (£ E C tlje %m IS Party to an Ilfue, nO CDillIenffC fljaU
\^^l ll]\^_ V V IJC to the Array. * 38 m, ip-
* Br. Challenge, pi. 141. cites & C. per Green, but adds Quaere ; for no Anfwer was given to it, and
that in the fame Year, pi. 22. the Defendant, in Iflue between him and the King, challeng'd a Juror,
and was compell'd to fhew his Caufe immediitely, bccaule the King was Party.
T^ote, at the 2. Anciently Upon Mi\t% tDljetc tlic 1^1110; tua0 Piittp, aCljallcitge
CormnonLaiu, tttlgljt tiC taUeit tO tljC ^ttiip, oi to the PoUs, Without Caulii Ihewa.
\f'V^l anCimcof (£. 1. 83.
I the AW 3- But otijeruiife it is at this Day. Cime of €* i. s 3. %m to be
^.ight have agrccB bj? mws anti CounctU %tt tlje statute in i^affua Cijatta,
rhaiie^ged fQi 132. £3110 Cucntatio hc Jnquifitiomtmsi*
feremptorily,
ivithout fhewing Caufe, but only that they were not good for the King, and without being limited to
any Number. But this was mifchevious to the Subject, tending to inhnite Delays and Danger, and
therefore it is enaited ^<od de cetera licet pro Domino Kege dicatur, tjuod Juratores &c. non funt bont
pro regc j non propter hoc remaneant Inc uifitiones &c. fed ajfignent certain Caufam CahnmiU &c. where-
by the King is now reftrain'd. Co. Litr. i56.b.(,qj o. i'. Prials per Pais 14.8.^1;;)
Br. Chal- 4. Jf Ft IJC prefented that J. S. has done a Nufance to London, and
lenge, pi. ^^^ People, ano an 3iiru z \% tljereiipon between tlje ^\m ann Ijini, it
S. C. " ilS not anp CballengC to tOe Array tijat it was made by the Sheriff^ of
Trials per Middlefex, who is deputed and remo\'eable by the Commonalty of Lon-
Pais 1 1 7. don, becaufe it \^ tije Suit of tije i^ing. 19 afl; 6. aojuDficU.
(147) —
Cro. E. 663. 5. 31tl a Monftrance de Droit btOUgljt aijatnll tl)e ClUCCtt for Land
z^^^"!^ '" ^^'"'^ °^ ^^"^^ Cliieen, bp tljc l5onaiTc of % %. if tfje 10arties are
+ Fddl? at 3iirue, it is a goon Cljalicngc to tlJc Array for tljc Ciuccn, rijat tijc
Sheriff; U)t)0 ma^e tlje i^annel, vvas t within the Diftrefs of the Plain-
tiff,
Trial.
24-3
lift; tW tXitx^ ©iibject otoesi gtcatcriFaiJour aim SDbeUience to tlit l^ HTi.nr-
^uccn, lip reaton of iiiss iaucLTiaiicc, tljan to aiiplocD bp rcaron of ^°^''^^''=*'»
Ijtg Ccnmt* 19, 41 (El* 15* E. betuiceti tDe lorn i:/««/^o« an^t the cordingiy -
^'/^f«. Trials per
Pais 117. (147)
6. n^IjCre tllC mino; is fole Party tO flit JfTUC, PCt t^C OtIjCt map * Br Chal-
tafee a principal ciialicnirc* Contra * 1 9 air, 6. i^nge. pi-
'^ 107. cites
S C
7- W an JfTiic be umztn tlje J^ino: anti anotijcr, upon a Prefenc sr. chai-
nient tJjat IjCijaS UOttC 8 Nufance to London, and other People of the 'enge, pL
Kingdom, tljC DCftnCant map tljallCngC a juror tijat IjC was one of ^*^^ <^'"«
the Prefentors. i^ SllT* 6.
8. s^icf). 2 ip» 4. 05. E. Eot. 30. an Array 10 Quaflj'D, bccaufe It
toaS made by the Sheriff in Favour oi the King, who was Plaintilf ia
the A£tion.
9. But it isi not am> Cljallcngc to tlje 3rrap, tDat tlje SljcrtfF fti= ^ 'v ^°;'^''^
Hour D t!jc mine more tljan tlje partp, became ije oiigijt fo to Oo, bp Tnair'per
tcafonoflji^Obcmencc. 22^.4. Cfjallcnec 63. Pais 120.
10. Jn a Quare Impedit by the King apmll % ©. If tljCP atC atCi5o)
jmtc, it is not anp principal Cbailcnge to a Juror tor tlje Defenoant,
tijat \)Z was of the Livery of the King ; but IjC ought to conclude, and
,fo tkvourable. 3 !lX 6. CljaUcn^e 17-
II. itpon anjlfue bcimeen tljclBkino; anH aitotljcr, it is a goon s. p. co Lin.
CljallCngC tijat t|}e sheriff was Valet of the Crown oi the King, or fuch LJ^- f- C")
menial Servant. 22 (2c» 4. CbaUcnge 63. K 11^'
120(150)
12. Traverfe againjt the King. They were at Iffue, and the King* It is no
challenged^ inafmuch as the Sheriff who viade the Pamiel was Cojhi of the Challenge
Plaintiff i ^n<^ 't^ "'^s admitted a good Challenge, and yet it was faid where the
that a Man cannot challenge * againft the King, to fay that a Juror is p^',"^ '^^
Servant or favourable to the King. Br. Challenge, pi. 154. cites 4 H. 2. Uy that the
Juror h 'Te-
nant to the King, or tliat lie is favourable to the King, becaure every Man holds his Land mediately or
immediately of the King, and all Subjcfts ought to bear their Favour to the King. Kelw. 102. a. pi,
3. Mich. 24 H. 7. a Nota in the Cafe of Genney v. Brand. S P. Trials per Pais 149. (i 7 ' )
13. By which the PlaintifF/)r^j)'V Venire Facias to the Coroners^ and faid
that there were feven Coroners^ and three were his Coujins^ and prayed Venire
Facias to the four, fo that the three jbould not intermeddle , and it was
awarded accordingly ; h\ix.hepall pew how Coufin^ and fo he did. Br.
Challenge, pi. I54. cites 4 H. 2.
14. And if the Serjeants fiy that they were not Cotijins^ the Pannel fliall
be made by all, and the King Ihall not have Challenge to it after. Br.
Challenge, pi. 154. cites 4 H. 2.
15. But tiiQ King may pew other Matter to challenge the fame Coroners.,
cr may ihew other Cojinage, which the Party fhall not lliew, as it was
faid j but ^i^re. Er. Challenge, pi. 154. cites 4 H. 2.
16. IJftie between the King and the Party (or breaking the Peace^ and the But a Man
Array was challenged jor the King, becanfe it was favourably made at the '^'''''" "°t
Denominatton of the Defendant. And it was agreed that the King may rt^n'^'^i'
have fuch Challenge, and he may challenge the Polls for Favour i quod ac'lh^ftThe
noca. Br. Challenge, pi. 155. cites 4 H. 7. 8. AV;;^ Br.
Challenge,
pi. 155. cites 4 H, 7. 8.
17. The King may challenge the Array for Favour. Co. Litt.
156. a. (o)
18. Where a Subje^ may challenge the Array for Unindifferency, there ^- P- Tri.,ls
the King being Party may alfo challenge lor the lame Caule, as lor Kin- PS''^^ais 149
dred/'''^
24-4- Trial
dred, or thac he has Pare of the J-and, or the like. Co. Litt;
156. a. (e)
19. It is a good Challenge to fay the Sheriff' or Juror hears Grudge or
Malice to the Dcjcndantj where the King is Party. Trials per Pais
149- C177)
(Y. c) Challenge, frhat Perfons may he tm^annelT d,
\In rejpdi of their Quality or Degree.^
ArA becaufe i. T jQ Q Writ of Right ^ Baron of the Realm OUffllt llOt tO OC \\W
he was re- j[ paitncU'ti Of tljc Sunncft i but it fijaU be gaoD Cljallenge to tx-
juTy.h"" citfc bun. If be be nupanneUti. 22 e, 3- 18.
brought
Writ out of Chnncery that he was a Baron, and upon Examination it was found that he and his Anceftors
had held Part of the Barony Time out of Mind, and therefore he was difcharged by Jud;^mcnt, by
good Advice. Quod nota. Br. Challenge, pi. 21 1. circs 48 Aff 6 Barons who are Lords fhall
not be impannell'd upon Inquefts nor Affiles &:c. if their Prefence be not neceffary ; but they ftiall have
a Writ unto the Sheriff to difcharge them. F. N. B. 165. (D)
trials per 2. OC fame laU) in Other Writ. 48 ^CT, 6. aHJUUgetl*
Pais 118.
(147).
In a Writ 3. Jll fl Writ of Right tbe 3]UqUCtt ought to be all of Knights. 22
of Right 4] ([i;^3. 18. 39 (Jj. 3. 2. b.
Knights were , , . . i
i-eturn'd, who afpeand at the Bar ■withmit their Swords ; but the Court told them, that they ought to be
Gladiis Cindi, and that it was a good Challenge, if they were not ; whereupon they went from the Bar,
and put on their Swords, and came back, and were fworn to make the Pannel, and the next Day they
came Gladiis Cincti, ard put in the Pannel. Mo. 6;. pi. i8i. Trin. 6 Elii. Squire v. Read Dalt.
Sher. 6S. pi. 36. S. C. accordingly.
Trials per 4. 3in a jjBrit of Eigbt, a Banneret map be impaneneti of tbe 3iit=
Pais 1 1 s. M\z{!i, anil i)t fi)aU not be crctifeu becaufe be i^ a X'sanncitt* 22 e*
<'''^'-' 3. 18. atint5o:EO*
It was ad- 5- 3n a J©rit of Eigbt, a Serjeant fljaU uot U impancirti of t\)tM'
judged that qncff^ if there are Knights Covenablc. 22 C» 3. 18. 39(£*3. 2. b.
where a Peer ^ But OtllCttUtfC tt t^, if there are not Knights Covenable. 22 (£« 3.
j£K: x8. 39e.3.-.b.
fendant 2 or more Knights muft be returned of the Jury. And it was faid that in Cumberland there
■was but one Freeholdcr\vho was a Knight, bcfides Sir Richard Store, a Serjeant at Law. And the
Court were of Opinion, that rather than there fhould be a Failure of Juftice, a Serjeant of Law ought
to be returned a Juryman ; for this Privilege would not extend to a Cafe of NccefTity. 2 Mod. 182.
Hill 28 & 20 Car. 2. B. R. Northumberland Countefs's Cafe.
7. Droit. The Parties joined the Mife, ajid Procefs to the Sheriff to caiifetd
come 4 Knights to chiife the Grand Jijftfe^ 'who returned 2 Knights and 2 Ser-
jeants, and that there were no more Knights in the fame County^ which were
not of the affinity of the one Party or the other. And per Thorp, the Re-
turn is not fulHcient; for the Parties may challenge, if it be fo j and
after they were admitted Ex affenfu Partium &c. But it feems, if the
Sheriff' returns Gentlemen, and calls them Knights^ this is fufilcient, and
not traverfabk whether they are Knights or no ; lor the Attaint is 24 Mili-
tes, and yet they return Gentlemen, and after they chufe 16 Knights of
themfelves Gladiis cin£los, according to the Form of the Writj and for
Want of Knights they may chufe others. And fo it feems of the Return
of
Trial. 24/;
ofthc 4 ; and fo it is laid per Thorp, That it' he returns 2 Knights and
h others, where there arc no more Knights in the County, this fuffices.
And {o foe 16. fo that the Grand Jury Jhall be always more than 12, as it
feems ; and if the Parties will challenge they may ; and if they chal-
lenge any of the 4Knights, this fhall be tried by the other 12 Knights;
and after they went aljde,and chofe a Jury, and certify'd it to the Court,
and the Parties affented to it. Br. Droit de Refto, pi. iS. cites 39
E. 3. 2.
8. In Writ of Right, Writ ijfiied to the Sheriff' to return 4 Knights to chafe Br. Droit de
the Grand Jfftfe returnahk tali Die, and the Sheriff returned that there RcAo, p\.6,
ivere m Knights but Bnrgcffes, by which another Writ iJfiied returnable im- cites 7 H. 4.
mediately ; by which the 4 Knights 'were demanded, who came to the Bar 5- ^°-
Gladio ctnilos Sec. And fo it feems that he may return them Knights tho'
they are not Knights. Br. Retorn de Efiefs, pi. 106. cites 7 H. 4.
(Z. c) Challenge. JThat Perfoiis ought to he impanelled.
I. T5i5 JtU Attaint upon a Recovery by fiilfe VerdiSt in an Affife, fijlllE Co. Lut.'
1 Knights ougljt t^ be rctunicD in tije l^annelt 17 €.2, ^t=^'J^f^~7
taint 69. Pa'is'iis"
('47)
2. 3ntl if tIjCrC ate not any Emn;l3t0 in the Hundred where the Land Trials per
lies, they fliall be returned out of the County. 17 (£♦ 2, SlttatUt 69. Pais iiS.
('47) —
The 4 Knights us'd to chufe id Kniglts of therr.relvcs, and of others to have tried the Grand Affife, and
Writ iffued to the Sheriff to caule them to come, who anjivered that thercwere not fo many Kniglts there ;
by which the 4 Knights were rerummoncd to chiife Knights from the Coutiiy next adjacent. Br. Jurors^
pi. 45. cites 53 E.3. and Fitih. Trial 97. Br. Vilne, pi. 102. cites 93 £. i. and Fitzh. Trial 97.
(Z. c. 2) Challenge. Freehold Jiece^ary^ or not. In see (a. d, 2)
what Calcs.
I. T) Y the Statute 8 H. 6. cap. 29. Jnfufficiency or Default of Franktene- s. p. 2 H.
J3 ^nent, is not any Challenge to Aliens who are impannelkd with En- Hift. PI. C.
glip; ^//? yet it feems to be a Challenge ?o the £;;^///?' who are impan- -'4- "P- 9|J-
nelled with the Aliens ; for the Words of this Statute rely all upon '^q .f^ '"
Aliens. Staunf lib. 3. 160. b. cap.43.S.35,
2. 4 H. 8. cap. 3. Enaftsj'that the Sheriffs of London are imptwercd to im~
pannel Perfons, being Citizens, who have Goods to the Value of an Hundred
Marks, who jhall'be fworn and ad as other Perfons who have Lands to the
Value of 40 s. per Ann.
I" 3. 23//. 8. cap. 13. Ena8:s, That cy^rj' PtT/o», being a Freeman of anj Baznozv.ith-
City or Totvn corporate, and worth in moveable Goods and Subjlance to ^Z?,? ftandin^ this
Value 0/40 /. fuallbe admitted in 'Trial of Murders and Felonies in every Sef- ^^j'^f ^l
/tons and Gaol Delivery to be holden for ftich Cities and Towns corporate, al- routrhs, and
belt they have no Freehold, provided that this ACl do net extend to any Knight Towns Cor-
or Efatiire abiding in or refortin?: to any fuch City ^c. poratc, there
' <^ ■> o ■> ■> -^ IS no e.vprefs
favirg of any Trial contrary to the Purview of this Statute, and made good by fome other; and there-
fore It may be arj^ued that the Trial ot Felonies in Towns, bv Jurors worth .\o 1. in Good'i, by Virtue
of this Statute, is no longer lawi'ul, it not being a Trial bv Ul'.igc but bv Statute, "^ericeirig 4 & s
Krr ' ' VV.&:
"\
2^6
Trial.
W & M feems pkiinly to have a View to Trials in Counties only, and the Statute of 16 Sc 1 7 C-ir. a.
cap - wliich is penned almoft in the very fame Words, was taken no Way to alter the former Method
of Tri-ils in Towns, leaft it fliould caufe a Failure of juftice ; and it being generally impra&icable to
eeta fufficient Number of fuch Freeholders as the Statute requires in Towns, it feems a reafonable Con-
rtruftion of 4 & 5 W. & M. that the Trial bv 2.5 H. 8. ftill continues Lawful, as before ; but it hath
been acreed That for Trials in London for HighTreafon, every Juror ought to have fuch Freehold
or Copyhold as is required by 4 & 5 W. & M. z Hawk. PI. C. 41 7. cap. 43. S. 24.
4. In the Arraignment of W. T. ior T'reafon, for Compafling & Imagin-
ing the Deathof rheKing, it was agreed by the Juftices, that tho'he was
an Efquire, he might and ought to be tried by common Merchants, or other
hone ft and lawful AJen^ who could expend 40 s. of Franktenemenr, or if he
ht worth 100 /. in Goods, he might be fworn for Treafon &c. And fo
the Statute which fpeaks of People of his Condition, has always been
put in Ure. D. 99. b. pi. 67. Pafch. i Mar. Thomas's Cafe.
5. In Inferior Courts it is needlefs in the Diftringas to return the Jurors
Quorum quilibet habet fo much, becaufe the Statutes only include the
greater Courts, i Keb. 189. pi. 170. Mich. 13 Car. 2. B R, Heller v.
Gray.
Skin. 01. 6. In an Information in the Nature of a ^ao Warranto againji feveral Ci^
3ri)fiRmg tizens oiWorceii^r^ for ufingfeiieral Liberties m-id. Franchifes in the faid
^f m ^'^'' ^^^y-> ^"^'^ Counfclfor the Defendant challenged the Polls, for that the furors
crttfr^s' C. had net any Freehold within that City. The Judges debated this Matter,
fays the and feemed to think it no good Challenge, becaufe the Statute 2 H. 5.
Court feem'd ^.^p^ ^ joth not extend to Cafes wliere the King is Party ; and theSta-
^othi*^ PoTnt ^^^^ 3-? ^- ^- '^'^^- ^- ^^^^"^^ "°^ ^° Cities and Corporations, but to the She-
it°beingina't' n§s of Comities at large ; for if a Pannel made in Corporations mull have
City which Freeholders, ic mult likewife have 6 Hundredors, which cannot be in
was a County jjny Corporation ; and fo 27 Eliz. cap. 6. Therefore the Jurors in Corpo-
i^lfTndfent rations muft not be as at Common Lav/. It is true in Cro. Eliz. 413.
to C B. to 'BlUllt's Cafe, it is faid that there ought to be fome Freeholders, but
know their that cannot be intended in Corporations^ becaule in many there are no
Opinion, Freeholders at all, and fo there would be a Failure of Juflice; and fuch a
which was, (Challenge was never made in any Trial at Nifi Prius in Guildhall, Lon-
Xm Chal- don ; and it would be inconvenient after fo long Pra£lice to the contrary,
lengc; and to admit fuch a Challenge. Raym. 484. Hill. 34 & 35 Car. 2. B. R.
that hereby 'p[-ig YA'dg V. Higgins.
might happen a Failure of Juftice. And Ibid. tc6. pi. 5. Pafch. 55 Car 2. B. R. the Court com-
manded Judgment to be entered, and refufed the Counfel to argue whether Want of Freehold be a
Challenge to^the Polls, having by Opinion likewife of the Juftices of C. B. over-ruled it at tiie Trial.
, Vent. ;66. The King V. Higgins, S. C And it being moved in Arreit of Judgment upon
this Point the Court would not admit ciie Matter to be debated, tho' diverfe Precedents of like Na-
ture were offered, becaufe they laid they declared their Opinions before, and the Redrefs might be up-
on a Writ of Error.- 2 Show. 287. pi. 2S5. The King v. feveral Aldermen of VVorcefier, Pafch.
35Car. 2. B.R. theS.C. accordingly.
7. It was refolved by Lord Pemberton and lo other Judges, That
"Want of Freehold was no Challenge in a Trial for Treafo?i, much leis in
a Corporation. 2 Show. 310. pi. 322. Trin. 35 Car. 2. B. R. The King
V. Lord RulFel.
8. sGfo. 2. cap. 25. S. t8. Ena8:s, Th.^t any Perfon having Land iit
his own Right ot" the yearly Value of 20 1. over and above the refe-rvcd
Rent, being held by Leafe for the abfvlute I'erni of 500 Years, or more, or
for 99 Years, or any other Term determinable on one or more Lives,
the Name of every fuch Perfon jball be inftrted in the Lifts and in the Free-
holders Book ; and fuch Leafeholder may be fummoned to ferve on Juries as
Freeholders may.
S. 19. 'The Sheriffs of London fhall not return any Perfon to try any Ifftte
joined in any of his Majcfty's Courts of B. R. C. B. or Exchequer, or to ferve
on a Jury at the Sefjions vf Oyer and Terminer or Sejftons of the Peace to be
held for the City, who fhall not be a Houfekeeper within the City, and
have
Triai ^2^y
liave Lands &c. or perfonal Eftate to the Value of lool. And the fame
'Caufe alleged by Way of Challenge, and founds Jball he admitted as a princi-
pal Challenge, and the Pcrfon challenged may be examined on Oath of the
Truth of the Matter.
S. 20. 1'he Sheriff's or Officers pall not return any Perfon toferveon a Jury
for the 7'rial of any Capital Offence who would not be qualified to ferve as a.
Juror in Civil Caufes ; and the fame Matter pall be a principal Challenge.^
^.nd the Perfon fo challenged may be examined on Oath of the 'truth of the
Matter.
9. Of Geo. 2. cap. 7. "S". 3. Ena61s thzt. All Leafe-holders upon Leafes^where
the improved Rents fjjall amount to 50 /. per Ann. over and above Ground
Rents or other Refervations^Jhall be liable to ferve upon Juries.
(A. d) Challenge for Jflofi-Suffjc'temy of Frmik'temment. Foi. 64:
In <what Actons ftm'ply.
1. A Cfialfcnffc fijt Jl2on=®ufficicnc)) OF jfranlttcnemcnt tua^ al- As to file
r\ lou)ct5 gooti ; nnQ XW tricD Dp Crior^. 3 Jp* 4- 4- ti, Xut \'^^Zta{
JIOC0 not appeac \\\ iul)at laction it U)ag» FranLtene-
menti the
Party JI}a!I be fivorn whether it be ftificknt or rict- Br. Challenge, pi. 90. cites 21 H. 7. 29.
2. Jn an Mim of Debt, Bon=Sufficicncp of JftanMenement 10 ^r. chai.
!tot a gooD Cljaiienp to a 3!uror, bccaufe ttje ifranU-tcneniEnt is not '^"s^jpi -o*^-
in Demanli tljcrclip* 17 aiT* 15- aujucgctj*
3. 3In Affife, farOUlXljt by Tenant by Elegit, or tenant llD Statute
Merchant, l3an=g>ufRc!cncp Of jf uanU tcticuicnt is not anp Cijalicnije
to a 3!iitot, bccaufe tlje irt:anU=tcncmcnt is not m Debate* Slu-^ce
17 Sir, IS-
In (what ABiojiS.
4. 3!tt Replevin, DeftnCant a^ouis far Rent Service, plaintiff
pleans Hors de Ton Fee, tlje Jucocs ougijt to tjaBc fufficient jfcank^
tenement* 16 rr). 7. i4.b*
s- So in Eepieliin, if DefcnUant a^oitis fat Rent Arrear, anti* ^r. chai-
piaintiff fays Riens Arrear, upon uj'oicl) tljEj? are at ICTue, tlje Jurors 'l"^f'sP^_
ouixijtto !ja'.3e g^umcienc}) of jfranU^tenemnit; fortOo' at firtt tbc
artton iuas l^erfonal, pet bp tijis Jfllie it is Ueal* *4 ip, 6. 28 b* ^^■-
niDseo ioJp»6. 8.
6. So in EcpleiJin, if tlje parties arc at 3liTue upon Mifnofmer of
the Vill and alio the Defendant avows to have Return i tljO' tIjC "^^WZ
be not upon tlje Eent, pet Ije ougljt to Ijane fuffecient ifrank^tcne^
nicnt ioip*6. 8. ar>)ut«o;eu*
7- [So] in Eeplei3in, ifOeftntiaitt abotus for Damase Feafant tlje* ^'-chai-
S'urors ougljt to Ijabe gaifticicncp of irrank=tenement ; for tljiS 3fliie cS c ~
maizes it Eeal, ann tlje laeplebin trencljcs altuaps in tDe Kealti), :^ibid piso
* 7 ii), 6» 25. aQjungcb* (3it feems tljat ijc intcnus tijat \)z aboio D cites s. c.
for iDamaije ifeafant as in his Frank-teneinent.) CiUaere + 4 S)* 6. 28. ^hei-ea Dif-
ll f fintra ference was
U. LUnCCtl* -taken by the
P.eporter, that in the Cale of Avowry for D.'.mage Feafant the Replevin is perfonal, but where it is for
Rent Arrear it is Real.
8. In
248
Trial.
Br. Chal- g. Jn Trefpais, U" tl)Z i^ue be upon the Frank-tenement, tljO' tl^
'e'^ge.pl. 57. Damages are under 40 Marks, ))Ct \)t CUgljt tO IjillJC ^UfftCICllCJ) Of
Bm'adf; lrattU=tcnem£nt. 7 ID* 6. 44- b>
Quaere 9- JU il Q^^^e Jus bp fl jBriOt upon a Recovery in a CefTavit by De-
■ fau It ; It 10 a ffooo Cijallengc to a 3iuvoi' tijnt fie \m not €>ufftcicnc))
of IrauU-'tcncment, tljo' it be ijut in J^atuit of an I;niiucft ofC>ffice;
19 1% 7- iaeliotuap. 54- i5» Uiibitatur*
* Br. Chal- 10. 3it tUa0OnC of tljcConltltutionsof H. 2. made at Clarendon, Quod
lenge, pi. 60. nullus juret luper Jegales & liberos Homines qui non habet 16 Marcatas
cites S. C. Yel 10 Marcatas in Catallo. 3|anU!3 $ln5lOrUm. 121. 95-
II. 3!fthe Damages in the Aftion are 40 Marks, it i.d a gOOU Cf)al=
ienge ttiat tlje 3\Utot cannot c;cpenTi 40 g* pec 3niu otijerMe toljere un=
Her 40 ^arfesi -, nnn tW i^ ^v tije ^tatutcis* is c* 4. 13- * 19 ip»
6. 9. ,
(A, d. 2) Tfhat Jhall he Sufficiency of Frank-tenement.
*. Br. Chal- [i.] I2.T;CT l)tXt f^e Damages are to 40 Marks, tIjC 3!UVOl'0 OU0i)t tO
S^s c:- V V Ija^efufficicntjfranlvtcnemcnttotijca5alueof4os. isip,
t Ibid pi 6. 7. b. 18. b. * 19 $;. 6. 9. b. ©tOctiuifc inljcre it ijs unnet 40 ^arl^^*
90. cites cci)is> Cljalience 19 Op tljc g)tatutc of 2 h. j. cap. 3. 1 21 jr 7. 29.)
s. c. —
Trials per Pais, 114. C'55)
[2] 13. %\\ Detinue for an Obligation of 20 1. to the Damage of 20 1.
t!]o' atl togetljct i)c more tljan 40 a^aritss, pet m an Jffnc faetiueen tljc
A^ m t^ plaintiff anti ©arnifijec, it 10 fufticient if tOe Jiirot W lranlit^nc=
Aftion the mmt iQ tlje lvalue of 20 s. or of a Mark, becaufe tije ©urn in tijc
piaintifF Obligation is not in Demants, not in Ciueftion, but tlje Daniascisi
fer^othb^ 0«J^ lo^.6.7.b.
more than the Writing, viz. the Obligation itfelf, and Damages for the Detinue. Br. Challenge, pi.
1S9. cites S. C.
Trials per [^] 14. Jj^ Account upon Receipt of iocs, (f PMltifF counts to
\TLV^' *^^ Damages of 200 1. a^B dxt at JfTiie Uiljetljct etjec IjijS Eccei5jet^ if
* Br Chal- tlje 31UVOC IjaS) Jfranlitcueuient to tije 3^alue of 20 s. anD not 40 s. it
lenge, pi. [0 fuffiicienti Decaufc tijo' Ije counts of Daniages^ wt Ije lljall not
192. cues recoucc anp Damaws, ann tlje principal S)um is Imt loos* lufjicfj
jcco'ZZJ ^^ "''^ ^i^^iJ"^ t!je ^s'tatute. * lo i^* 6. is. b*
Receipt of iS /. to the Damage of 12 /. ■zriiif^ is more th.xn 40 Marks, and a Juror .was challenged becatifc
lie could expend bu; 20 ,s. and yet lie was fworn, becaufe a JSIan fhall declare of Damages in Accountj
and yet hcjhall not recover any Daiytages in Account. Br. Challenge, pi. 152. cites 2 H. ;. 1.
[4] 15. In Pleas Real fje ouffljt to Ijaijc fuffici'ent JFranftteneinent,
to tlje a^aUie of 40 s. 4 p, 6. 28. b, 10 ip, 6. 18. (Cijis is bp tljc
Statute of 2 H. 5. cap. 3.)
Any Free- [5J 16. ^Jll Trejpafs of Damages under 40 Marks, if tljC iJlTue bC
fi°i'^ *co "PO" f ^J^ Jf tanlitenemeut, if tlje 3urot Ijas not ^ufficiencp of jf rank*
Litt! 2-2 tenement, but of lo s. ije fljau be nrauin* 7 P* 6. 44. b*
b. Cn)
And fee (A. d) pi. S.
Br. Chal- [6] 17. 3!it a forcible Entry tlje Siiu'ors ougljt to f)al3e jfranlttettr'
i'lTs ^p' w^nt of 40 s. a ^ear, Oecaufc none can ija^e tijis nH>rit but Cenant
Trial. 249
fpr life at leaft, ano tijc mxit i$ Crpulit f DiflciftUit, aitti fa tljiss in ^.tes lo h.
it,£i Jaatuic 10 real, m P* 4- h- Up iDa^afor* .' i* cBut
1: mould be
14 H. 7. 14. and fo are the other Editions.] — S. P. where the Damages were to lol. it was ai-
low'd a 5^ood Challenge, ^fo. 5. pi. 15. Mich. 55 H 3 Anon. Bcndl. 28. pi. 42. S.C. andfays
that fuch Challenge was allow 'd, Hill 4 & 5 E. 6. B. R. in the Cafe of Lane v. Andrews.
[7] 18 3Ilt a Replevin, whatfoever Avowry is made, tlje 3!UrOriS ^"<1 •" this
ougljt to Da^e Jfranfttcncntent of 4° «• a ^ear i fot tW in it$ Ma- ^^i°" '^^
turc IS real. 14 ip^ ?• 14- bv mWou comtK-
bate. Br.
Challenge, pi. 190. cites 10 H. 6. S. Arg Gibb. 295. cites Finch 516. 5 Rep. 104. Godb. 6;, 64.
[8] 19. 31n a Replevin, if tlje Jfllie 6e Hors de fon Fee, pet t^e 3Ill= ^'- ^hal-
rorioi oiiQljt to ijaue iftanittencnient to 40 s. a l^ear. 9^*1- i- I'j^'dtcs
s. c.
[9] 20. 3if a $?9an IjaS Eftare for Life, rendering Rent upon Condi- The Cafe
tion of Re-entry, tl)i0 defealible Eftace 10 fufficieitt iTranhtCnemcnt* '^a^. that
n IX 4- !• ft. Contra. OSiit fee ifitjlj. CUallenp 158. aijriBginffT'ff"^"^^^'^
tl)i0 contrary to tlje IdoUk* verfi'on w
■ the Feme
of the Juror, leafed to the Juror and his Feme all his Intereft, rcndring Rent ; and for Default of
Payment to re-enter, and the Challenge was allowed. Quod mirum ! Br. Challenge, pi. 34. cites
-H. 4. I.
[10] 21. 31n a Replevin, if tljC WUC bC Riens Arrear, togCtC t!)C Sr. Chal-
aboU3n)toa0 for Rent, tlje3uror0 ousljt to Oatie 40 s. jrranfetcne''^"se.pi-8o.
tiient, becaufe tlje auoiurp 10 in tlje Kealtg. 4 |)» 6. 28. {2)er'""
Ctirtam.
[11] 22. jn an Attaint tlje 3!uror0 ouQ;I)t to Ijatje futficient Jfrank^ J"*"'' ?=•-
tenement, to tlje ©aliie of 20 1. a ^ear* 36 1). o. 23. c .T4) "
In Attaint in the City of York a Juror was challeng'd, hecaufe he could not expend %ol. a Tear, accord-
ins; to th' Statute. Catesby faid, The Statute excepts Cities and Boroughs. Per Pigot, This is intended of
Cities and Boroughs which are not Counties in themfehes, as York i.s ; and the Challenge was difallovv 'd,
becaufc the Exception in the Statute is general. Br. Challenge, pi. 170. cites 1 2 E. 4 15. Br. At-
taint, pi. 116. cites S. C. Br. Jurors, pi. 44. cites S. C.
[12] 23. 3'n a Replevin, if tl)e atJOtUrp be for Damage feafant, Seepl.;. and
£iu«rc* 4 1% 6. 28. '''^ ^°t"
[13] 24. iin a Quale Jus tlje3luror0 ouQiljt to Ijabe niffincnt jrranlt= Z7li o
tenement, to tDe ©aUic of 4° «. 19 ^. ?• JS^eUouiap 54- b. ^ ^
[14] 25. Jn an SCtlOn of Debt for 10 1. to the Damage ot 20 I. the Br. Chal-
3iUror0 ouffljt to Ija^e jfranlttenement of 4°s. a^ear^ fot it i0''"s'' p^-
iOitljin tlje g)tatUte of 2 H. 5. 9 Jp. S- S- for tlie Statute is not as the IV and
Book intends (Debt Or Damage,) but Debt and DaUiagC, becaufe this
is equally
mifchievou"!, therefore he was drawn by the Equity of the Statute ; for the Letter docs not ferve it,
the Debt being but lol. and the Damages 20 1. fo that the one nor the other amounted to 4oMarks.-^
Co. Litt. 272. a.
[15] 26. 3!t feem0 before the Statute of 2 H. 5. jfranfetenement of Tnalsper
anp©aUieU)a0fufficicnt; for tbere ifranfetenemcnt to tlje ai)aUie of, 7," '"+
i s: a £^ear U)a0 fiifficient. 3I). 4-4b* s«'^pi[2i]
[16] 27. :jfan Affile be retum'd by a BailifTof a Franchife, anQ t\}t
3!uror0 are cljallcngeo out for Default of if ranfetcnement, anb tfjere
are not Jurors within the Franchife vvfho have Sufficiency, a Venire Fa-
cias ftiall be awarded to Foreigners. i8 C» 3- 51-
[17] 28. Jf in an Attaint fome are challenged bCCaUfC tljCP CannOt
ei;penb 20 !♦ a ^ear, and one makes Default who can expend more
than 20 1. al^ear, noneiljaU be ftnorn luljo cannot crpcnb 20 1, a
i^ear, till ije uiijo can, 10 tioorn or cballcnscb out* 36 li).' 6. 23, b,
'Bp all tlje :jufticc0»
Sf f [18] 29.
2c;o
Trial.
[ j8] 29. But it all had appeared, atlU fOUlC CljalietlSen becaufc tljCp
Foi, 649. fj-jnnot OCpEUU 20 1» il l|>Car, ^md there are not others to mike a full In-
>;-';;:^?Q;;r^ queit, tl)ore luljo cnnnot c,c{3etiti 201. a,|^car, fljaUnot befuiontttu
clial^crecd tljC Sherilf return.-i that there are not others more luriicient, or that ic be
iv4>inich as lo Ibund by fomc ot the Inquell. 36 Ji), 6. 23. b, iDubitatUt*
expend 10 1, by v/liich 1 2 f/i/fj /^(-(y, and the Sheriff returned that there were no more in the County viht
could expend zo I. by wliich Decern t.iles ftaii alias ijj'ued to return thofe who luere nearefi 10 I. accovdin;^ to
the ■'Statute. Tfcmailc :,d [ullicc ftid tiii; i^ of tliole who can c::pcnd 19 1. per Ann. and no others. But
tota Curia ccontra ; ior njhall he {<) I. iS/. arhifo to 10 I. or hfs, if there are no others in the farm County.
And one waschallcii'^cd bccaufc he could not expend 12I. and there wer; divcrCe others who could
expend more per Ami. tl-.an tliis Juror, by which another Writ ilTaed to return them. And if there are
rut cnouch of ! 2 /. another I'/'ritjIuill ifj'ne to thofe ivho are under I 2 /. And \'o note that the Party that I not
Kvant atrial ; Jvr then he fballivant 'Jujlice, which is Contrary to Law. iJr. Challenge, pi. 91. cites 21
H. 7. ;S.- ■ ■ " '"
-Br. Attaint, pi 45. cites S. C.
Scrjc.nt
Hawkins
lays, That
tiio' it is
cnattcd by
the Siatmes
of Wcft-
ininfler 2.
^S. and 21
Ed. I. Dc
Ins qui po-
[19] !■} F.. I. c.'Jp 38. Enafls, xhM if JJifii ii;id Juries he taken out of
the S/.'irc, fwuc Jhall pafs in them that have not 40 s, a fear at leajt^ except
thnfe "who are U'nnffcs to Deeds.
[20] 21 K. I. i-naiSts, That no Sheriff', Under-fkenff, or Bailiff.^ pall
iiiipanncl any upon Junes to ferve out of their proper Cuutittes or Batlrjuicks,
luilefs they ha've 5 /. a J'car in Lands at kafl, and none fhall he impinnelled
to ferve in their proper Counties., itnlefs they have 40 s. Saving that hefore
Jiiflices Errant in their Circuit, and alfo in Cities, Boroughs, and other
uMarket 7'oivns, where Recognizances, -/ifftfes and Juries, or Inqiiejls, do
ncndi lunt >^ w_j ^^^^^^ Addt.ers touchun the [aid Cities ^c. it (hall he done as has heen
ill Affifis, ^ n J
that none aCCUjioMcd.
in AfTilis or Juries, except in Cities, Burghs, or Trading Towns, who have not Tenements to the
yearly Value"of 40s. &c. yet it lecms to have been generally agreed, that a Juror can neither be chal-
Icneed by the Panics for bein}!; returned contrary to the Adts, nor allege fach Matter himfelf for his
Dilcharpe, hux i/mjl take his Remedy by JHion againft the Shn-itf, or iy IFrit of Privilege for his Dif-
charce. '2 Hawk IM C. 4.16. S. 14.
By this Statute of 21 E. i- and alfo by the Rcgifler, it fecms to be ;]dmitted, that at the Common
Law there was no MeccUity that Jurors fhould have any Freehold as to luquclls before J u(li:cs in Eyre,
or in Cities or Burf^hs. Alio it litems agreed. That the Common f^.iw doth not require that a Juror
fhould in any Cafe have a Freehold of ai;y certain Value. And upon this Ground it hath been adjudged.
That a Freehold worth but 20 s. or 5 s. or even a i'enny, is ftill a fuilicient (.Qualification for a Juror
inl'uch Cafes as arc not within the Statutes wliich require a Freehold of a greater Value. Alio it hatfi
been adjudp-ed, that the Common Law did not require that a Juror fhould in any Cafe have any Free-
hold. But this is not only contrary to what feems implied by all the Authorines [there] above cited,
•ivhich in faying that the Common Law did not require a Freehold of any certain V.ilue, plainly fccm
to fuppofe that it required fomc Fre.-liold, but hath been alfo contrad.dt-rd by many c.xprefs Authorities;
airreeably to which it feems to be lettled at this D.iy, that the Wantot Freehold is a good Challenge of
a luror in all Cafes not othcrwife provided for by J>lJtuic, and conlequently in a Tri.il for High Trea^
foil iu London, as well as in any other County. But it fecms agreed, that wherever the Letter of the
Common or Statute Law requires that a Juror fliould have a Freehold, the Meaning is fully fatisfied by
his havin" the Ufc of a Freehold, and that it is not material whether he have it in his own or hij
\\'ife's Right, or whether it be abfolute, or upon Condition, or an EUatc of Inheritance, or only for
Term of one's own or another's Life, fo that n be ui tlie lame County wherein the Suit is brought, and
aftually continue in the Juror till the Time when he is fworn. 2 Hawk. Pi. C. 415. cap. 4;.
S. 12. 13.
* That is to [21] z H. 5. cap. 3. Enafts, That no Pcrfonpa'Upafs in any Inqueji, tipdh
fay in C.ipi- q\^al of the * Death of a Man, or hetiveen f'arty and Party, in Plea real or
^H^H'ft' pcrfonal, where the Debt or Damage declared amounts to 40 Marks, if he
\\ C 2-2. have not f 40 i. a Tear above Reprizes, if he be challenged.
in the Notes
there (a)
jral one, /'»f ?w/r5«w """""""' v. ',.j^. „...., ^,. j^. .-^ ...^..... , --. .— . . - , «'
the Death of a Man , nor in any Inquell between Party and Party m Plea real or perlonal &.c.
PI C 416. S. 16. , ■ ,, r,
Celh uue lie flail be fworn lipon InqUefts and Juhes. Br. Jurors, pi. 14 otes 15 H. ■;. 14. Per
FrowikeCh.l. S. P. Br. Challenge, pi. 165. cites 5 F.4.7- S P. Kcilw. 42. b. Pafch. 1 ; R
. So of Feoffees feifed to the Ufe ; and this by the Statute. Per Frowike Ch. J. Br. Jurors, pi.
14 cites 15 H. •;. 14. Br. Challenge, pi 202. cites S C. • Serjeant Hawkins fays it feems
aci-eed that a Ceft) que L^'e of any F'rcchold in the lame County, of the yearly Value of 40 s. is a good
° ' ' J uror
-It has been adjudged, that this Statute extends as well to a collateral Iffue as to the gene*
t to an Indiihnent or ln\orni.Wonfor a Crime not capital ; for the V\''ords are upon Trial of
Trial. 251
luroi- within this Stature. And (bme have holden that the Law is the fimc as to the Feoffee of Ibch
I^inii ill 'fnijt for another, or a Remainder-vi.tn of a SxMc of Freehold cxpefiant on a Lea fe for tears. But
this fl-ems not to be maintainable, becaufe the Statute in requiring that a juror {hall have Lands of the
vearlv Value of 40 s. above all Charf^cs, piainl)' fcems to intend that he ouglit to have Lands of the
clear Income, whereof at the Time he can expend lb much. But a Man cannot expend any thing out
of Lands wlicreof he is infcofl'ed to the Ufc of another, or wherein he has only a dry Remainder. 2
Hawk. PLC 416. S. 17.
t iiy the Conftrudtion of this Statute, I ft. It mud be Land of that Value in the fame County. 9 H. -,.'
I. b ':dly. He wnji not only be feijc.i thereof at the Time of the Pannel mide, but alfo at the I'ime
that he ccmes to be fworn, otherwilc he may be challenged. 12 H. 7 4. a. 2 H. Hill. PI. C. B. 272.
2-:;. cap. 56.
This Statute was introduftive of a new Law only with Rcfpcft to the Quantum of the Freehold ; for
by the Common Law it was requifue that a Juror lliould be a Freeholder; fo that tho" this Statute be
repealed by the general Words of i & 2 P. 8c M. ca-.). 10. as to Treafon, yet fomc Freehold was ftiU
necclT.iry ;' and lb it was allowed in ;Jf it3l)arriS's Cafe, by Pemberton Ch. J. See State Trials, Vol. 5.
p. If!;, notwithftanding it was ruled otherwile, in the Cafe of Lord KnOfel by the fame Judge. Stare
Trials, Vol. ;. p. (5^4 And in the Cafe of Col ^IDIICP Ibid. p. 7-6. which laft Relolutions were de-
clared to beillegalby fcveral Afts of Parlian-.ent. See ^ W. & M. Sell 2. cap. 2. 7 W. 3. cap 3. Sec
alio Sir folin Hawles's Remarks on thoic Trials. State Trials, Vol. 4 p. 169. and p. 1S9. 2 H. Hift.
n. C. 2;';. in the Notes there. (2)
[22] I 1?. 3. cap. 4. No Bailiffs or other Officer^ pall return ifi any Pan-
'ticl, niiy Perfcm upon any Inquiry at the Sbenjf's Tiirn^ but fuch as have
Lands and i'enements in the fame Qjunty^ viz. Freehold to the yearly Value
oj 20 J. at leaji.^ or Copyhold to the yearly Value of x I. 6 s. h d.
[23] One laas challenged for the Hundred^ that at the 'ftme of the Pan-
nel made he had Lands there^ but he aliened them after ; and yet this is a
good Hundredor, and was fworn. Br. Challenge, pi. 71. cices 14
H. 7
[24] A Man fcifed of Land to the Value of 40 s. ivithin the County of
Mtddlefex., and of Land to the Value of 12 s, ivithin the County of Suffey,^ and
grants a Rent-charge 0/40 s. ilFuing out of all the fiid Land to a Stranger
tn Fee., the Grantee has IbiEcient Freehold to be a J uror in both Counties.
Trials per Pais 125. C'55) cites Williams's Reading upon the Statute
35 H. 8. cap. 6.
[25] 27 Eliz. cap. 6. Enafts, That in all Cafes where Jurors ought to Tliis exteWt
have Lands of 40 s. a Tear, they pall from henceforward have Lands of the ''J'^*" ^ff""
Value of ^l. a /ear. And if the ^Sheriff return any Per fen who hath not 4 /. '^'"^ "r r,
per Ann. he fkatl forfeit 20 s. Excheijuer,
of Jffife; fo that it reaches vot to Trials of Felons before jfu/fices of Gaol -de livery. Oyer and Terminer, or of
the Peace ; but thele Trials Hand as they did by the Statute of 2 H. 5. as to the Value of [urors See
Stat. 55 H. 8. cap. 2;. 2 H. Hift. PLC. 27;. cap.jS.
[26] This Freehold mull be in his own Right., in Fee-Jtmple, Fee-tail, If a Man
for Term of hts own Life^ or for another Man's Lite, altho' it be upon '"^^ ^'^="
'Cundttion., or tn the Right of his Wf'e out of Ancient Demefne i for Free- xcfm H^
hold in Ancient Demelne will not ferve. Co. Lict, 156. b. (c) AutcrVic
.-..,. tif is felled
in his Wire's Right, and is returned on a Jury, yet // after he is returned Cejly que Vie, or his IVite dies,
he may be challenged. Co. Litt. 272. b. (n)
[27] He mull have Freehold in that County where the Caufe of Aftion
arifes^ and tho' he has Freehold in another County, yet it fuffices not.
Co. Litt. 157. a. (d)
[28] W after his Return he fells his Land, or any Entrv be made for If after the
Condition broken, (o as his Freehold be determined, he may be challenged Return the
for Infufficicncy of Freehold. Co. Litt. 157. a. (e) Lands be
^ J / V y evitted, he
may be
challenged. Co Litt. 272. b.
[29.] In an Information for an h!trujion^z]\xror was challenged for In- S.P. Trials
fufficiency of Freehold. Upon Examination it was found that he had a ?" ^*'^ '49-
Freehold
2^2
Trial.
Goldsb. 156. Treelrcld to the Value of 15 s. per Ann. It was luled by the Court, that
pi. 59. S C. jJ^q' 5y jhe Statute H. 5. he ought to have 40 s. per Ann. and by the
Fenner and gj^j^-e ^^ YX\x. 4 1. per Ann. yet thofe Statutes fpeak only between
doubted, Party and Party, and extend not to the Queen. But it was ruled that
but Popham he ought to have Tome Freehold i and therefore one that had no Free-
and Clench y^q\^ ^^^ challenged and withdrawn. Cro. Eliz. 413. pi. 4. Mich. 37
I'he'sSL «Sc 3S Eliz. B. R. Sir Chriltopher Blcnt's Cafe.
did not bind '
the <^'ucen ; and by the Common Law, if he had any FreeW.d it was fufhcient; and the Juror was
fvvoin by Command of Pcpham againll the Opinion of Fenner.
By thisSta- 30. 4 £5' 5 W. S M. 24. Enafts, That all Juror i (other than Strangers
•ute it is not upon 'trials per M"^(iietat. LingUit) returned Jor Trials of JJfiies joined m the
hifficient King's Bench., Common Pkas, or Exchequer, before Jtijiices of Ntfi Prius^
b"a FKe-"'' Ojer and Terminer, Gaol Delivery, or Genera! J^iiarter-SeJ7i'cns,pa// have m
holder, but their own Name, or tn Tnijl jor them "jcithtn the County, 10 I. per Annum
he miift aifo above Reprizes, oj Freehold, or Copyhold Lands and Tenements, or of Ancient
hiTve ivithin J)g,fief„^^ or in Rents, or tn all or any of the faid Lands, Tenements, or Rents
CoJt"Fne- '«-f'''^5 Fee Tail, or for Life. And m Wales 6 I. per Ann. as af ore/did.
hold Of And if any of a Icfs hjiate and Value be returned, it pall be a gocd Caufe
Copyhold of Challenge on his own Oath of the Truth of the Matter.
Lands to the yj^j^j ^j,,^ sheriff, Coroncr &c. fhall not return any to ferve who have not
rThJenol 1°^- or 61. per Ann. as ajorefaid, on Pain to fcrfat $ I. to the Crown for
And the' " every Perfon otherwife return d.
this S:atute having to Cities and Boroughs, and Towns Corporate, their ancient Ufage
fcems prill- ^ returning Jurors of fucb Lflate as heretofore.
'^e'' ardCoun Provided itjball be lawful to return any Perfon on a Tales who pall have
tiJ at large, 5 I. per Ann. in the County as aforefaid, and m Wales 3 /.
yet it has
been aliow'd to extend to Trials in London for High Treafon- 2 H. Hid. PI C. 272, 273. in the Notes
there (a) cites ;JfranCta'jS taff, Stat. Tr. Vol. 6. p. 58. and 5!LaptT'0 Caff, Stat. Tr. Vol. 6.
r *45-
31. A Man feifed of the Manor of Dale infeoffs a Stranger upon Con-
dition to pay yearly to J.S. and his Heirs 40 s. Rent. J. S. dies lei fed ot
this Rent, and then "his Heir takes it, yet the Heir has not fufficient
Freehold. Trials per Pais 125. (155)
SfcCH.e)^ (A. d. 3) Challenge. * [Prlnctpal or~\ i Peremptory to
cipaichau the jurors. /fJjnP fis.]
lenge is ot -^ u J
2 tiorts,
cither by
Judgment I. + A Prutcipal CdaHcnffe 10 no otlier but fuch Matter which
of Law, jl\ proves evident Favour in the Juror, or Enmity between them,
AaTof hC ^^^ ^^J^" ^^ appcctamsai to tlje 3!Ufticcis to Hcatn i)im out* 21 e« 4-
orbyjudg- IT. b* 2.1 (E, 4. 21.
ment of
Law upon his own Aft. Co. Litt. i 57. a.
■f A peremptory Challenge is fi called becaule he may challenge peremptorily upon his own Diflike,
without Ihewing of any Caufe ; and this is only in Treafon and Felony, in Favorem Vits. Co. Litt.
156. b.
4: Br. Challenge, pi. 180. cites S. C. Co. Litt. 156. b. Trials per Pais 122. (152)
Bendl. 15. 2. It is not a principal Challenge, that a Juror is in Debt either to
pi. 15- SC. fj^g Plaintiff or Defendant. Mo. 3. pi. 6. Mich. 26 H. 8. C. B. Anon,
accordingly. .u j .> r 2 It
Trial. 253
3. It is faid that a principal Caufe of Challenge is where there is ex-
pnfs Favour^ or exprefs Malice. Co. Litt. 157.
4. If one -jo'ttkin Age cf zx be return'd, it is 2 good Caufe of Chal-
lenge. Co. Litt. 157. a. (k)
5. /// an Attaint one of the Grand Jury was challenged, for that he was
a Captain, and one of the Petit Jury was his Lieutenant ; but this was ad-
judged no princip.il Challenge. Godb. no. pi. 130. Mich. 28 & 29
EYiz. C B. Hoodie v. Winfcomb.
6. When the Challenge, that the Juror is of the Blood of the Plaintiff'^
appears of Record, it is a principal Challenge; But when it is only by the
Jhcwing cf the Counfel, as in the principal Cafe, it is only a Challenge for
Favour i per Glyn Ch. J. 2 Sid. 155. Paich. 1659. B. S. Lacy v.
Berry.
(A. d. 4 ) Challenge peremptory in Criminal Cafes.
How many.
I. TF a Man in Cafe of the Crown challenges three Inquejis, then he re- * A SubjeB
X f'fes the Law, and pall be put to Death. But fee now by the Sta- ""'^" '^^
tute f 22 H. 8. that hejhall not challenge above 20 peremptorily, as here ; but ^^Jl"^^, "-^ay
jor Caufe he may challenge * as many as he will ; quod nota. Br. Chal- in Cafe'of
lenge, pi. 104. cites 17 Air 6. Treafonor
Felony,
challenge for juft Caufe as many as he can. Co. Litt. 156. b. See the Notes at pi. 3.
2. Appeal by a Feme of the Death of her Baron, the Defendant challenged A Man was
a Juror peremptorily ; and it was admitted there, that a Man may challenge af^'gn'tl o^
f^^ peremptorily in Appeal ; quod nota. But at this Day only 20 by the Sta- cImI^'T
tute 22 H. 8. Br. Challenge, pi. 50. cites 9 H. 5. 7. pereivptorily
3. In Appeal the Defendant challenged peremptorily 35 Jurors. Quod 35 Jurors;
nota, that there is a contrary Opinion elfewhere, which fays that it ="id all the
ihall not be but at the Suit of the King ; but there is as good Reafon both'BMches
that he may challenge 1$ at the Suit of the Party as at the Suit of the agreed that
King. Br, Challenge, pi. 74. cites 14 H. 7. 7. hej),oMbe
hanged, and
he was not put to Penance, and it was agreed that this Order fiall be held before them in their CircuiL
But Huffey faid, That in the Time of E. 4. the contrary luas ufed Br. Corone, pi. 1 5 5 . cites 3 H. 7 . 1 2. —
Br Pain, pi. 5. cites S. C. -And afterwards in the fame Folio it was faid, that a Man arretted of
Felony challenged 56, and the Opinion was that ha pall be pit toPenance, as he who refufes the Law.
Br. Corone, pi. 135. cites 3 H. 7, 12. S. P. per Cur. Br. Challenge, pi. 211. cites 3 H. 7. 2. —
But perKeble, the Statute of Weftminfter i. is taken at the Suit of the King, and not at the Suit of
the Party ; and concordat. Lib. 2. Do£t. & Stud, that he may by the Common Law challenge 5 5 ; but
if he challenges 56 he fhall be Iiang'd, and concordat. 7 H. 4. and the JulHces above did not fay that
he might challenge percniptorily in Appeal ; but that if he challcng'd 36 he fhould be put to his Pen-
ance -, quod nota. — See 2 H. Hift. PI. C. 26S. cap. 3 5.
By the Common Law the Prifoner upon an IndiBment or Jppeal might challenge 35, which was under
the Number of 3 Juries ; but now by the Statute of 22 H. S. the Number is reduced to 20 in Petit Trea-
fin. Murder, and Felony ; and in Cafe of High Treafon, and Mifprifon of High Treafon, it was takea
away by the Statute of ^5 H 8. But now by the Statute of i & 2 Phil. & Mary, the Common Law
is revived for any Treafon ; the Prifoner lliall have his Challenge to the Number of ; 5, and fo it has
been refolved by the Juftices, upon Conference between them, in the Cafc of Sir ffiUatftT JKaltiglj
anO (ffiicorge 15r00bS» But all this is to be underftood when any Subjedf, that is not a Peer of the
Realm, is arraign 'd for Treafon or Felony. Co. Litt. i 515. b.
In capital Cafes, at Common Law, the Prifoner could challenge 3 1; peremptorily ; and this was be-
caufe the Trial by the Petit Jury came inftead of the Ordeal, the Petit Jury of i2 being after the
Manner of the Canonical Purgation ; and becaufe the whole Pares were not upon the Jury, but only
a feleft Number were brought in and chofen by the Criminal himfelf, as was ufual among the Cano-
nifts; therefore they took a middle Way, and gave the Defendant Liberty to challenge peremptorily
T t t any
254-
Trial.
any Number under ; T"' ies, 4 Ju"es being as many as generally appear'd to make the total Pares of
the County. G. Hift.^ot C. B. So.
Bendl. 42. 4. In Appeal of Manflaughter, it was agreed that the Defendant might
pi. 7-.S. C. challenge 20 -peremptorily, as well as upon an Indi£tment. Moor. 12. pi.
!^And 4?''i 4^- 'T""- 2 & 3 P. &M. Newman v. Punter.
I04. '^UUi
tiX b, iaetoman, S. C. but S. P. does not appear.
$. If the Prifoucr upon the firfl: Pannel had challenged, for Inftance,
1$ peremptorily, and then the Jury remains ibr Deiault of Jurors, and a
Diltringas with a Forty Tales is granted, he pall challenge peremptorily no
more than will fill tip his Ntinwer, viz. in Cafe of Felony at this Day 5
more, and in Cafe of Treafon or Petit Treafon 20 more, to make up his
full Number of 20 peremptory Challenges in the firft Cafe, and 35 in
the lull, z H. Hill. PI. C. 270. cap. 35.
(B. d) Challenge to Jurors. What fhall be a Peremp-
tory Challenge. Upoji Records.
S P.Co.Litt. I. T ^ 10 n goon Cfjailtnse to a JUCOr to rap, that at another Time
A^'fi r 'f -»■ he paired againft him upon the fame Matter which was rev&rfed
afterverdift for Error, ano fljeiusi t^e Eccotn, 8 1), 5. 1 1, aim * ziti.^- 1- nnmtt
the Judge- teU* 21 (£♦ 4- 74' ll»
ment was ar-
retted. * Br. Challenge, pi. i 5. cites S. C. but that he did not fliev/ the Record, and fo the Ju-
ror was fworn. Ibid pi. 38. cites 7 H 4. 1 1. But by Choke this is no Challenge without-
concluding to the Favour, unlets he fiiewi the ilpforrf exemplified hy which he wai pworn., and then it is
a principal Challenge, Quod non fuit Negatum. Br. Challenge, pi, 18^. cites 21 K. 4, 74. But
Ibid. pi. 85. cites 9 £. 4. 16. That it is no Challenge that the junr faffed with the Plaintiff upji an 7//«e
upon the fame Matter between thofe two Parties ; for a Man fhall not be challenged for fpcaking the
Truth.
S. P.Co.Litt. 2. So if 1)0 IjaU pafTed againft another upon the fame IlTue for Parcel
*^r" Vh\~ *^^ ^^^ ^^"^^ ■'"^"'^ '" ^^rn^'^*^* * 7 5^* 4- 1 1- b*
lenge pi 58. cites S. C. So tho' the Demandant was not Party ; for the Juror is favourable to the
Title ; and therefore it is a principal Challenge, and was oufted by View of the Record ; and hence it
fteras that Record ought to be fhewn in iuch Cafe. Br. Challenge, pi. 197. cites S. C.
See pi. I. in 3 . But if IjC tlOC0 HOt Aiew the Record It (0 llOt petemptOtp. 8 ^.5.
the Notes.- „ 33 p^ 5. j. jtq;; jjg mjjQ groiuitigi 3 CljallcHge upon a HccorD,
Pa", ?" owgljt to Ija^je it reaop, 33 ij). 6. 55 21 c* 4- 74- iJ» Clje EecorJi
/,6o)-^ OUfiljttO be exemphfied. 21 C» 4. 74. b*
In the Cafes
above or other like Cafes, he that takes the Challenge muft fhew the Record, if he will have it take
Place as a principal Challenge, otherwife he muft conclude to the Favour, unlefs it be a Record of the
fame Court, and then he muft fhew the Day and Term. Co Litt. 1 57. b. (ra)
Br. Chal- 4. Jt f0 a BOOtI CljaHCnge of a 3IUtOt that he was attainted in an
lenge, pi. Attaint; 8115 ib in a Writ of Confpiracy. 33 D* 6.S5- aSteCO tO be
S^C andSP. ^nmm*
by Prifot;
for Attaint and Confpiracy are ancient Adions. Trials per Pais 130. (i<Jo)
/
But
Trial. 255
f 5. But AttaintlCr in WVX of Forgery of Falfe Deeds 16 nOt a POU Br. Chal-
€l)iillciin;c, bccattfc tlji^ attaintiet; iis fii^cn of late %mz bi* Statute* 'f"s'='. p'-
33 0*6. 55- amnsco. s.c
Trials per
Pais 150. Ci6o)
per
150.
6. 1\\ WXXX. Of Maintenance, tljC DcfCttUant CljallcnCCH a SiUrOClJC^ Secaufe the
CaUfclic vvas impannell'd upon the Aftion in which this Maintenance is J"™' ^'^y,
fuppofed, and palled for the PkintifFi anO ttOt anpCOlOUC Of jfaUOUr. bl'he'irin
35 D» 6. 6 3 . 1). aOjllOplI* cipal Affife,
in which the
Defendant is fuppored to maintain ; Sed non allocatur; For this is no Colour of Fayour, but it fhall be
intended that he paffed as his Confcience directed him : And Maintenance lies, tho' the Verdidi be true ;
For it is not lawful to maintain a juft Caufe. Br. Challenge, pi. 19. cites S. C.
7. jltTrefpafs, tf one juftifies His Frank-tenement, and the OtljCl'tljC ^- ^- ^'o'' ''V
lauicrand his Commandment, aUU tije one Ilfue is tried lor the Mafter, J|,'f "^"Jf^^
ailU at another Day the fame Jury is return'd to try the lifue between 35 jheyVaid^
the Plaintilf and the Servant ; tl)C firft Trial 10 HO pVUlCipal CljallCltgE before; but
to tl)€ arrap, but ouffljt to concUine, $!uo fo faiioiiralile* is c. 4. "'^•^'-'^•'/^ ^^
ll would be//
^^- ^* _ the Lift De-
fevdaiit had fh,-.ded Nat Guilty ; for this ftands indifferently. Br. Challenge, pi. 175. cites S. C.
'Trials per Pais, 150. Ubo)
8. Jtl an Oyer and Terminer againft two, if tIjC one pleads NotBr.Chal-
Guilty (it feCUljS it t£i Of a Trelpafs of Battery) auO tlji0 10 found 'e^ge.pKi;:.
aaainlt him, and Damages taxed, nittl aftCt tijC other pleads Not Guilty, ^-^'^"^j "~
if i0 not a n;00tl CbailEnge to a 3Ur0r that he was one who pafled Pais \
againlt the other Defendant in tt}C OttjCt MtC, anO tateO tijC Da^('6o')
ttiaffC0, of tiJijicD Damages Ije fljall be djargcO if ijc be attantt ; foe
pciaDUcntuuc Ijc map be faitno Jl^ot »J5uiitP» 29 ?»(r. 3 • aojubgeo*
9. :jn5©nt of Confpiracy, it 10 a principal Cljallcnp to a 3!uroc f/„„^^''f-
that he was one of his Indiclors of the iame Indiftment whereof he was dre's^s^'c''^
acquitted, and whereof he brings this Aftion. 8 |)* 4. 2. b. at!)UllO;elI* Trials per
Cljo' nou) tljc Crial 10 upon tlje Confpiracp, ano not tljc firft ipoint, p^'^ '3°-
(Scilicet, tljcjrclon^) ^'^°)
10. jn a VBnt of Confpiracy, (t 10 uot aup Cballcnffc to a 3iuror r^j*.>n
that he was attainted of the fame Confpiracy by the fame Juror, with ^°^- 5*0-
others, in au JnOictment at tlje €>uit of tOe JC^mn;, becaufc tlje Juroc ^r'PC^'
Hio it upon 1)10 £)atlj. 27 3fl» 13- abjuogeo. this is no
Prerumption
of 111 Will ; but it is a good Challenge if he concttuies to the Favour. Br. Challenge, pi. 120. ciies
S. C.
11. Jt 10 not a goob Cballengc to a Suror that he is outiaw'd,
Ihewing forth the Capias Utlegatum, without fetting forth the Record
of the Outlawry. Jg)» isJia^'B* bCttUeen Comjfcn andGudgin^ pCC
Curiam*
12. The Sheriff return'd a Pannel in Writ of IVaJle agalnJiEaron and Feme^
and iVaJle was found i and this feems to be by Writ cf Inquiry vfWaJie by
Default &c. And the Ferne came and pray'd to be recei'^d, and was re--
ceived, and pleaded No Wafte done; and upon this the Sheriff returned
thofe ivho were returned in thejirft Pannel which paffed before^ by which
the Defendant pray'd that thofe Ihould be oufted, and fo they were, and
had a new Pannel i and the Sheriff amerced. The Reafon feems to be in-
afmuch as they would not fay contrary to their lirft Verdict. Br. Pan-
nel, pi. 13. cites 7 E. 3. and Fitzh. Challenge, i.
13. 25 £. 3. Stat. S-cap. 3. No IndiSor fhall be put in hique/fs upon De- Exception
Hverance of the Indiffces cf Felonies or H'refpafs, if he be challenged for the ^^'^^^^ '^ ^^'
fame Caufe by the Indiaee. ror that he
-' ■> ■' found an In-
dirfmcnt a-
gainft the Party for the fame Caufe; hath been adjudged good, not on!v upon tl-.e Tri.il of fach In-
du'.tn-iCP.t,
c^6 Trial.
2
diftment but alio upon the Trial of at.other Indictment oi- Action, wherein the fame Matter is cither
in Queftion or happens to be material, the not direttly in IlTue z Hawk. PI, C. 418. cap. 45. S. 2;.
Yet in - Ed. 4. 4. pi 1 1. abridg'd Bro. Challenge, ♦ 166 Fitz. Challenge 55. It is holden tobe
no principal Challenge in Trefpafkr In the Year- Book of 40 Affifc, pi. .10. abride'd Bro. Challenge,
+ 142. An Indictor being return'd on the Petit Jury, and givins; a Verdift, ivas fined becaufe he did
not challenge himfelf; vet 27 AIT. pi 13 abridf^'d Bro Challenge, i- 120 and Fitz. Challenge, i:;;. 'tis
liotallow'd tobe a principal Challenge, even upon the Trial in the fame Indidraenr. Hawk. PLC. 41S.
cap. 45. S. 27- the Note in Marg. (g)
* See pi. 14- the Note.
-f See pi. 14-
4; See pi. ic.
In Trials 0/ 14. A JiiroT vjho vjzs one of the IndiSors of 'frefpafs, was after made.
Felony, n is pgyi;,,^^,, fipon Iffue m Atiion of the fame frefpafs, and becaufe he and 10
agoodChal- ^^^^^ ^^^^ ^^^-^^ Verdi£t before the twelfth was agreed with them, and
w^Vnetfhis becauie the Foreman did not Challenge himfelf, becaufe he was one of
hdiaiirs,h\ii the Indiftors, therefore by Award he was commanded to the Marlhal-
covtra in fg^ 3,-,^ made great Fine. Br. Challenge, pi. 142. cites 40 Aff. 10.
Trial of '
'frefpafs upon Miament ; note the Difference. But Brooke favs the Statute of 25 £. 3. cap. 5 de Prodt-
iione, /peaks as well of 'frefpafs as of Felony. Br. Challenge, pi. l6rt. cite>. 7 E. 4. 4.
One maybe challenged that he wa.s Indidtor of the Plaintiff or Defendant,eitherofTreafon, Felony,
Mifprifion, Trefpafs, or the like, in the iame Caufe. Co. Litt. 15;. b. (n) See pi. 9.
15. Jfter IJftie join'd a Superfedeas was awarded, hit the Judge of Nift
Prills not knowuig it, proceeded to try the Caufe, and the I/fiie was tried
for the Defendant ; atterwards the Plaintiff pray'd a new Nili Prius upon
the fame Venire facias, the Trial upon the firlt being void, the Juftices
Power being tcli'd by the Superfedeas ; a new Niji Prius was granted,
hut the Jujlices caution'' d the Plaint ff net to have any of the principal Panned
which pajed in the Jirft ^rial ; tor it will be a principal Challenge than
he was in the firlt Trial. Cro. Eliz. 33. pi. i3.Trin. 26 Eliz. B. R.
Long's Cafe.
So it ;.■; a 16. Upon an IndiQ:ment of Battery &c. a Juror was challenged by
good Caufe the Defendants, becaufe he was one of the Grand Jury that found the In-
ofChallenge^^Y?OTt'«? againft them for the fame Matter, and the Challenge was al-
pelketo I'ne low'd. Sid. 244. pi. 4. Pafch. 17 Car. 2. B. R.. the King v. Pcrcival,
of the Jury, Godfrey, & al.
that he was
me of the Grand Jury who found the Bill againft the Appellee, upon which he was indited at Kingfton
Aflifes; per Holt Ch. J. 11 Mod. 228. Trin. 8 Ana. B. R. Young v. Slaughterford.
17. The being of the Coroner's Inqiiefl is good Caufe ofChalknge by
the Appellee; per Holt Ch. J. 1 1 Mod. 228. Trin. 8 Ann. B. R. Young
V. Slaughterford.
18. It hath been adjudged to be no good Caufe of Challenge, that the
Juror \\^.t\\ found ethers guilty on the fame IndtHment ; for the Indictment
is in Judgment of Law feveral againft each Defendant ; for every one
inuft be convifted by parti,cular Evidence againft himfelf. 2 Hawk.
PI. C. 418. cap. 43. S. 29.
(C. d) Chal-
Trial. 257
(C. d) Challenge. Prlmlpujl to the Jurors. JVithin
the D'tjlrejs of lahom.
I. TC iiS a goou CDiiUcnp to a Jutoc, tl)at Ije 10 toitljin tljcDiRtcfiS M:. nj.
j[ of one ot the Parties. 9 Jp, 6. CfjailettgC 27. CUllat P'-?S.
Pais 151.(160)— But if either Party be ivithin the Diftrcfs of ewe of the Jurors, this is no prindoal
Challenge but to the Favour. Co. Litt. 156. b. r V
2. Jit Trefpafs Defendant juftifies as Servant to A. for his Franktene- *It is a good
menr, ailU ti)0 Ilfue is upon the Franktenement, it 10 a 0005 Cljaltotge P"nc'pai
t\)dX a Jiirot IS ttJttljin tlje Dtatef^ of a. becaufe De fljall \mz istm- S-rh"f '
fit bpCrtaf, tho' he be not Party ; i)Ut if \)Z had Aid of him, it fjatl Needham '
ftent more cleats * lo <£♦ 4- 12. pec curiam, t ly e» 4. 18. ao= and uttie-
jlRjljeO. ton. in a
Note But
Brooke fays, the Law Teems to be otherwife, becaufe A. is not Party to the Record, but he may conclude
to the Favour. Br. Challenge, p!. l68. cites S C.
f Br. Challenge, pi. 68. cites S. C. Trials per Pais 151. (161)
S- DC in Reverfion [is] refceived, auH at Wue It IS a QOOti €W- 'trials per
ienge tijat a 3uroc is UJttljin tlje Dtftcers of the Tenant for Life. lo f'i\ »3i-
€.4.12. ^'^''
4- If a 31UrOr does Suit at the Leet of the Plaintiff once a Year, By all the
without other Tenure, Ije IS tDitljIlt tlje DiftrcrS Of tlje IplatUtiff, Hm J"'^''^"
prater Wefton and Corbet
tljcrefore it (S a principal CljaUenge. D» 2. eu 176. 27. ' °f^„^°'^^^
5- 3if a Juror beCuftos of a Foreft for his Life, by Grant of the King, Br. Chal-
and the Pkintitf [tie] the Matter of the fame, j)et It IS llOt a principal ''^"°^' P''
CDallenge. 16 e« 4- »• &» s.'c. where
the Plaintiif
is Mafter of the Game. Quod nota. Where one of the Grand Jury <was Mafier of the Game,
and one of the Petit Jury •was Keeper of his Park, it has been holdeu no principal Challenge. Cited by
Windham. Godb. no. in Cafe of Hoodie v. Winfcomb.
6. 3in Aaion bv Dean and Chapter, f^itljIU tljCDiatefS of the Chap- in EjeBment
ter is a goon €tiallenge. 21 e. 4- 33- b* the Defen-
7 [So] jn action &p Dean ano Chapter, within their Diitrefs is a '^""'/"s-
coon Cljallenge to tlje Juror* 21 e. 4 ^2. m S if
the Plaintiff
is Lejfee of Dean and Chapter, "xithin tvhofe Diftrefs the Sheriff, to whom the Venire Facias fhould be
awarded, is, and therefore they praf d Elifors ; which was awarded, and Judgment given accordingly ia
County Palatine of Durham. And now it was affign'd for Error, that this is no principal Challenge,
and lb the Venire Facias ill awarded, and cites 9 H. 7. 22. And per Curiam, had the Title of Leffor of
Plaintiff been a'-j.'arded Dehors, it had been no principal Challenge; contra here, where it is induced
Tvith the Plea itfelf on the Roll. Judgment aflSrm'd, Nifi. Keb. 553. pi. 64. Trin. 15 Car. 2. B. R.
Duncombe v. Dale.
8. So, mtW tlje DittCefS of one of the Chapter iS a gaOU Ct)al= Br. Chal-
lenge. 21 e. 4. 21. ;-f..p';
S. C. Trials per Pais 151. (.161)
9. WXtW. tlje DiffreljS of the Brother of the Party, iS UOt a gOOH
CijaUenge. 21 e. 4- 33-
u u u 10. jn
2^8 Trial.
(E. d. 2) pi. lo. Jtt an Aaion by Tenant for Life, It 10 a gOOU CljallengC WitlM
[p] 21. S. C. fUp T)iiixtiii of him in Reverfion. 21 (£♦ 4. 63.
leared liis Manor foi- Life, and afterwards an Aftion is depending between the Leflbr and another, it
is a p-ood Challenge that the Juror holds of tliis Manor whereof the Party has the Reverfion ; and yet
it was faid, that a Villein, regardant to a Manor, may be fworn between him in Reverfion and a
Stranger, during the Leafe. Quasre. Br. Challenge, pi. 220. cites 10 H. 7. 20.
1 1. 3lf a chanon brings an Action, oc [Action] be brougljt againff
Ijint for any Tenancy which belongs to the Prebendarv, it 10 a ffOOD
CijaUCngC within Diltrefs of the Chapter. 21 (!!;, 4. 63. b*
♦ Br. chai- 12. in Attaint jt 10 a princtpal Cijallcnffc to a Grand Juror, tljat Ije
lenge, pi. j^^jj^g certain Land of one ot the Petty Jury. * 22 (£, 4. i ^OjUOgO^
1S5. Cites jr^
S. C and 14 ¥• 7- 2.
that it is fo , . r
■without alleging Favour ; for in fuch Cafes the Law intends him favourable, and it is always 3 prin-
cipal Challenge.
S. P. For 13. So it 10 a principal CljallenffC, that one of the Petty Jury holds
if the Land of huTi, and is within his Diltrels ^ fat if It bC faiUtU asailKt tIjC lp2ttV
?n7!£r' 3urp, tf)eit lanti ajail be laartcn, luljlclj mill be a ptouuicc to tlje
tvardsei-" JLotD. 22 €* 4- i- ^ii tijc Iiiiaice0 Coutta 14 Jp. 7- 2.
cheats to the
Lord, or comes to him in Ward, the Lord will have lefs Advantage of it than before. Br. Cliallenge,
pi. isV cites 22 E. 4. I. — Br. Attaint, pi. 95. cites S. C. A Juror was challenged ljeca»Je a
Petit Juror held 4 Acres in D. of this grand Juror ; and it was held no principal Challenge. Br. Chal -
knge, pi. 91. cites 21 H. 7. 38.
14. 3if Feme Tenant by Refceit vouches, and the Voucher is traverfcd
by weitm. 2. Upon the iifue it 10 not a ffoon Cljaliengc to tlje
3ur0r that he is Tenant to the Vouchee (becaUle tlje aDOUCljee 10 nOt
partp to tlje IlTue, a0 QSrocIie 0iijc0 tljc Eeafon in abctUgment of
tl)i0, 'Otitic CijaUcnp 34) 7 D* ^- ^h. aojutigcD*
Br Chal- 15. But in tiji0 JlTue It Ijan Uzw a gooo Cijallense that he is Te-
lenge, pi. 34- nant to the Tenant. DUbltatUt* 7 fp* 4- i- &.
cites S. C. _
but without any Dubitatur.
1 6. 3it 10 a goon Cljallenp to tljC 3;Uror, that he is Tenant to the
one Party, and has done to him P'ealty, tho' he be feifed to the Ule of
^ ^, , - another ; fot Ijc 10 Ccnaut in Laiu to Ijim. 3 1). 6. 39. b. Curia.
fence pi 9 17- So It rccm0 itnjall be, if Ije has not done Fealty tO IjiUT i fOt IjC
cites s. c. 10 iitenant in laiu to Ijim. Contra 3 V* 6. 39. b.
But per
Martin if he had done to him no Attendance of Service.";, he fliould not be challenged. Quaere in.
de; for if he be within his Dijhr/s, he may diftrain Mm, and take him for his Tenant at his
Pleafure.
Br. Chal- 18. 3t 10 a ffOOQ CljallCngC, tljat a JatOr is Tenant to a Party. 4
lenge
So. c
s.c.
lenge, pi. Jj^ 6. 2<. 6*
So. cites "^
19- "St 10 a goon Cljallemje, tljat IjC is Tenant of the -Franktene-
xnent to a Party. io3|). 6, i8. b.
R Thai 2°- 3foi\t be Tenant pur auter Vie, anti roto0 tlje lanli, anO aftcc
lenge, pi 79. Ceity que Vie dies, it 10 uo goob Cljallcnge to ijini beinfl: a juror,,
cites S. C. that the Corn is yet growing upon the Land i fOt IjC 10 nOt lOitljUl 1)10 1
and qu=ere ; £>iftref05 but tlje Caiifc of tijc Diftrcf0 10 betermineD. 4 |)» 6. 25.
caufe feveral others appeared.
21. 3t 10 a ffoob Cljallenge, tljat tlje Juror is Tenant at win of a
Party, lo p, 6. i8,b. 36 p, 6. ci)aUcnP46- atiKibgeii,
22. It
Trial.
259
£2. If A. is difTeifed of a Manor by B. and A. the Diffeifee brings Jf-
Jife^ and a 'ttnant who holds of the faid Manor js impanelled^ it is a good
Challenge for the PlaintilF to fay that he is within the Diftrefs ot the
Defendant ; Per Harper J. to which Brown J agreed ; for B. is now in
PolielPion. But Dyer and Welton J. contra ; for tho' one of them ne-
celfarily is the Lord, and this is now to be tried, it cannot be intended
that the Tenant will be more partial to the one than to the others be-
lides that the Tenants may chule whether they will become Tenants to
the Dilfeifor, or not ; and if they are diftrained to come to the Court,
they may fet forth the Diffeifin for their Difcharge : So that it is no
Challenge ivithotit faytvg they are become his Tenants^ or have pxorn Fealty
to him. But Harper and Bendloes contra j for if the Diileifor holds a
Court, the Tenants being warn'd Ihall be compell'd co come to it, be-
caufe the holding a Court is a lawful Act, which any one who has Pof^
feiiion may lawfully do ; for if the Tenant be dideifed, and the Lord
grants the Seigniory, and the Dilfeifor attorns, this Attornment is good,
and will bind the Dilleilee when he re-enters, he being compellible by
Law to attorn. And alter Ex affenfu Partium, ic was inquired whether
he dwelt in the Hundred, or whether he ever became Tenant to him in
Poifelfion, or not. Dal. 3 \. pi. 14. 3 Eliz. Kempe v. Markewill.
23. If a Juror be under the Diltrefs of him in --johofe Right the Avowry
or Jii/tification is made^ this is no principal Challenge, becaufe he in
whofe Right the Avowry or Jultification is, is not Party to the Record.
But otherwife if he was made Party by Aid, Receipt, or Voucher, and
yet the Caufe of Favour is apparent. Co. Litt. 157. b. (c)
(D. d) Challenge to Jurors. Within Diftrefs, //^jc^seecc.d)
Jhall be J aid to be njoithin the Dijirejs of a Party. p-4 2°-
E
X>tKV Juror tnljD I£i within any Leet or Hundred of a Party, 10 Co. Litt.
_ mm 1)16 Dlftrcf0, ano 10 a gooD CDallenge, 9 !>♦ 6. Cljal^ wi;^^";;;.
Icngc 27. iS)ec Cunann seigniory of
either Party
Mcitnfcly or Immediately, is a principal Challenge. Co. Litt. 156. b. (h) Trials per Pais 1 57.
(166) See pi. 6.
2. 3if a3iUrOr holdsof J. S. and y. S. holds over of a Party tO tIjC* The Cafe
Ifliic, tlje Juror 10 toitijin f)t0 Diftrefgi, ano fijall be ouffea bp C6al=:7''^'^' ^
icnge* * 38 e* 3. 25. abjuugeo* 22 e. 4- Cljallense 61. y„,^,j-f '
brouQ,ht by
the Earl of A. a^aivft the Bipop of C. they were at Iffue, and fome were challenged becaufethey held of
f. laho held ozer of tie Earl \ and a good Challenge, tho' they did not hold itnmediately of the Earl ; and
all were of the principal Pannel. Br. Challenge, pi. 52. cites ;8 E. 3. 25.
3. Jf a lUrOC holds certain lanlj of B. as of his Manor, and B. holds
over of the Manor of one of the Parties i tljtgitS a POB CljallengC, fae^
caufe Ije map Diftratn iu tljc lanti of tijc Juror as uicli as \i it IjaQ
Ijecu a 99eftic m grofss uiitljout an^ ^anor* 22 e, 4. ciiallsnge 61 .
4- 3if a Juror beinteotf'd by a Stranger to the {]{& of the fame J?"''^ I'.^
Stranger at Common Law ibcfore au? @)tatUte Of l!ft0, and this Land ^ ^ ' ''"**
is held of one of the Parties, and tljC JUtOr has done Fealtv tO IjiUt fOt
It, Ije fljall be trratnn , for Ije tis ui(t|m W Diftref0» 3 If), 6. c6ai=
icngc 19- anjutpD.
26o Trial.
5. So it tuais a Qao^ Cljallcnse ac Common Law tijnt 31. 8>> a
Stranger, was enleoHed to the Ufe of the Juror Of CCrtatll £ailDijClb Ofs
a partp* 9 V* ^- Cljallenge 27. ati)iHige5» \
Br. Chal- 6. 3if a Pdrty tO tl)Z liffUC has a Hundred, to which I^WnHtCtl a Juror
lenge pi 52. ought to come, \)t ig imtljin W Diftrcrg tljo' Ije is lint W tenant,
cues 6. t.. j^j^j, f^^j^ij jj^ p^jg^j, i^p Q^{jajjcnp. 3 8 C » 3- 25. aniiiogeti*
Br. Chal- 7. Jt" Lellee for Years rendring Rent grants over his Eltate, ailll aP
lenge, pi. fct ait ^Etioit 10 Uvougijt, it 10 a pan COnliengc tijat Ijc is uiitljtn tbe
s'c' But S^iftrcrs of m Leifor j foc \)t i0 tuitljiti Ijis Dittrefs, bccaufc ije uiaP'
Brooke fays fliiotu upoiT ijitii, ot \)au Slction of Debt foe tf)c Ecnt 44aff» 23".
Quod Mi- 44 (£, 3. 5. aOjUDlJCtl*
rum of this
Judgment. Therefore ^<<sre, and alfo that it does not appear if any Rent be Arrear or not. ,
Br. Chal- 8. jt i'0 not gooti tljat a 3iitror is mw t\}z 3Di(lrers of a laartp^
6S^1p.' by ReafonofaRentCharge. 38 (£» 3. 25. C^UstC.
cites 15 E. 4. iS. and fays Nota, • ■
9. A Juror was challeng'd becaufc the Defendant is Steward of a Ma-;
nor of the Juror ; and this was not tai<en for Challenge any more than to
fay that the Defendant is within the Diftrefs of a Juror ; but it is a good
Challenge that the juror is witbtn the Dijirefs of the Party, which Fi-"
neux and Rede affirm'd. Br. Challenge, pi. 71. cites 14 H. 7.
10. If a Man leafes his Matter j or Lije, it is a good Challenge in ABion
ietiveen the Lefjor and another that the Jtiror holds of this Manor of -which
the Party has the Reverfion. Br. Challenge, pi. 220. cites 10 H. 7. 20.
11. If in I'refpafs the Defendant _;'///?//?« as Servant to the Lord^ and by
his Command, 'tis a good Caufe of Challenge to the Juror to fay that
he is Tenant to the Lord^ tho' the Lord is no Party to the Record. BrownL
12. In Ejectment, upon Not Guilty pleaded, a Juror was challeng'd
for that he was Tenant of a Manor to which there was a Court Leet, whereof
the Plaintiff' was Steward o^ ih^ii Court ; the Court inclined, that it was
no principal Challenge. Allen 29. Mich. 23 Car. B. R. Lawrence v.
King.
Y6i7]P (E. d) Challenges Principal to Jurors. For Conlangui-
nity. ff'hat Conjangiitnlty.
Trials per I- (^ ©ufangiiiuitp of the Haif-Biood i{S a ffooo Cljallcnge. 21 e,4
Pais ]
(161)
I. (^ ©ufanr
Pais 131. \^ 31- bf
2. Cpnfaiitjuiniti) is sooti Cljancitgf , tho' tbcte be No Poffibiiicy
to inherit by it. 21 ([£♦ 4- 33-
Trials per 3 Coiifangiututp alleged fit tlje Juroc iuljo is Baftard, is not a
(^59)^!!— ffoon CbaUenge* 2 1 e. 4- 3 1 • b*
So ifhis Jnceftor be Baftard. But if the Juror and Party, to whom this Kindred is, defcend both from this
Bajiard after the Marriage of this Baftard, it is then a good Challenge ; for as to them he is not a Ba-
ftard. Jenk. 4;. pi. 9°- A Baftard can't be akin to any, and therefore it can^be no principal
Challenge. Co. Liit. 157- a.
See pi. 9.- 4. 3|f t|)e JUrOt be Cofin to tbe Patt? in the ninth Degree, if he can
PaTl^r ^^^ ^^^ ^°"'^"' ^f ^^ ^ SooD cijailcittre. 21 c 4-63 • b*
[161) .The feveral Degrees were fe't forth exprefsly; but becaufe the Father of him who was chal.'
lenged
Trial. 261
lent^ed -of-is B>ijl>jrJ, therefore Non allocatur; but was difallowd j Quod nota. Br. Challenge, pi. 10.
cite.'i 41 £ 3. 9.
5- Coiifanuuinitp allegjD in the Father Of ti)e 31iirat, t«3 not a goon
6. jt 10 a ffooD Cljiillcrtp tl)at a luror 10 Coufin to tlje part? * Br. chai.
within the Degrees ot Marriage. * 7 i|)» 6. 40. 41 C* 3. CftallCnffC ^'"S^t pl-
„„ 56. cites
99- S. C.
". So tho' they are paft the Degrees Of S^atnaCC Contta 41 €. 3' See pi. 4.
8. It 10 not anpCOallcnp, tljat a 3iUrot in Coufin to a partP in a Br. chai-
very long Degree, of the Part of the Mother, where the Land in quef- •enge,pl.i45.
tion is of the Part of the Father i fOC tljlS Cm nelJCC COltie tO tI)C"'"^-^-
'Bloon Of tijc B5oti)cr. 4031^20. aDniDgcD.
9. jf a Canon l3£ Plainti/f or Defendant tor any Tenancy which be-
longs to che Prebend, it 10 llOt a GOOU CljallCngC that a Juror is Cou-
lin to another of the Canons. 21 C* 4. 63, b, iTor tljCIC lS»OflCiriOn0
arc RUeral*
ID. 2n A6lion by Mayor and Commonalty, it 10 a gOOU Cljallcnp Trials per
tijat a Juror 10 Brother to one of the Commonalty. 21 (£» 4. 63. ]}, bp T^'^ ^'i-
all tlje Jiifticc0» ^'^'^
II. Jn Action by Dean and Chapter, (fall the Canons are dead but Trials per
one. It 10 a ffOOll Cijalienge that a Juror is his Brother. 21 C* 4- 63. Pais 151.
bp all tijc Juitice0. ^'^'^
" 12. Jn AlHfe by Dean and Chapter, it 10 a gOOti CfjallCttgC tliat t\)Z * ^r. Chal.
Juror is Brother to T. who is one of the Chapter, tljat 10 tO fap, 0110 •^"ge,pl-i 80.
Of tljE Canon0» 17 €* 4- ?• * 21 €. 4- ^^- U» 20. ti. 3 1- f 63. op all This chai.
tlje J!uaice0, anu atDUDscn* lenge at fira
was not al-
low'd, by which the Defendant made a Bill comprifing this Matter, and the Juftices fealed it, accord-
ing to the Statute W. 2. ; i. And the Jury pafs'd for the Plaintiff, and he had Judgment to recover,
by which the Defendant brought Writ of Error upon this Bill and Challenge ; and upon great Argu-
ment the Judgment in the AlTife was reverfcd, and fo lee Judgment icverfed for Error in Challenge.
Br. Error, pi. iSi. cites 21 £. 4. ii. zo. 51. 63.
(E. d. 2) To <whom.
[1] I3-T Jl5 Action by the Abbot or Abbefs, it 10 a OOOH CljaltotffC ♦ Br Cha!-
1 for Confanguinitp of tlje Juror to a Monk or Nun. 7 e, '="se, pi. 14.
4. 5. 17 €* 4- 7- * 28 i^* 6. 10. t 2.1 C. 4. ri. JJ» 21. 33. fi* 63. ^"^* ^■^■
[2] 14. Jn action by Bailitis and Commonalty, It 10 a gOOH Cljal^fenE; pi
Icngc for Confanguinttp of tl)C Juror to one of the Baiiiifs. 21 e, iSo dtL'
4.31.13, &c. —
r, If a Body
Politick or Incorporate, fole or aggregate of many, bring any Affion that concerj?; the Botiy Politick or In-
corporate, if a Juror be of Kindred to any that is of that Body, (altho' the Body Politick or Incorporate
can have no Kindred) yet bccaufe th9fe Bodies confilt of natural Perfons it is a principal Challenge
Co. Litt. 157 a- (c)
[3] 15- Jn an Action by Dean and Chapter, it i0 a ffOOD CljallCttJJC Where any
of a Juror tljat IJC 10 Brother to the Deaa. £)Utittatlir, 21 e» 4- °^ ^lr"u°
ju ^ any of their
^ ■ ^* Body are 10
go upon the
Jury, It is a good Challenge, tho' the Body Corporate are not direftly Parrv to this Suit. Per Hobart
Ch J. in delivering the Opinion of the Court Hob. S-. in the Cafe oi'^sy )3. .S>al)at!e; and he cited
X ,•< .\ J - K ,1
262
Trial.
i^ E. 4. 15. 28 Aff. 18. 21 E. 4. II. where a Dean and Chapter bringing an Aflife, a Juror was
challenged, becaufe he was Brother to one of tie Prebendaries.
Br. chai- [4] irt. 3jn nn Action by 2 Executors, it tg n goot! COiillcngc tijat Ije
lenge.pl.iSo. jg Coulin CO one of them. 21 (£, 4. 63.
cites S. C. "^
Br. chai- [5] 17. 3itt an sctiou brought as Executor, it I'g fl poo Cljallcitge
lenge, pi. {-q j-jjg Tjuroi* tlltU IjC IS Brother to the Plaintiii, yet it is cii aucer Droit.
180. cues ,,s ,„' u „
S.C. per 21 e. 4- 12. 20. b, 32.
Treniayle J. _
Br. Chai- ' [6 J 18. 3if FeofFee to the Ufe of another at Common Law be im-
lenge, pi. pleaded, Coitdwguinttp Of tljc 3!uroc to him 10 a Boou C&allfngc*
21 (£»4. 12. 20. i\ 31. 6* 32-
[7] 19- 3iU Trefpafs Defendant juftifies as Servant to A. tipOlt tuljicl)
tljcp arc at JfTuc without Aid, j)et it 10 a soon Cijallensc tijat a 3u«
tor is Brother to A. 21 (£♦ 4. 31. tl» DUtHtatUr 63. h*
[8] 20. 31n an JffUC between Vouchee and Demandant, it 10 a gOOH
CljallCngC tJjat tijC 3^UrOt 10 COUfiU, at allied to the Tenant. 21 (Q*
4. II. b* 31 b*
[9] 21. So in Precipe quod reddat, in JfTUC between Tenant for Life
and Demandant, it 10 a gOOtl CljaHcnSC tljat a 3lUC0t 10 Coulin to him
in ReverJion. 21 (!;♦ 4. 11. b» 20. b* 31. b, 63.
See (C. d)
pi. 10.
Br Chal-
]enge,pl.lSo.
cites S G. '
If a Juror be of Kiidred to him in Reverfion or Remainder, this is no principal Challenge, becaufe
he in Reverfion or Remninder is no Party to the Suit. But otherwife it is if they were made Parties by
Aid, Refceipr, or Voucher, and yet the Caufe of Favour is apparent. Co. Litt. 157. b. ^c)
Br. Chal-
lenge, pi
180. cites
S. C.
Br. Chal-
lenge, pi.
180. cites
S. C.
[10] 22. 3in an Oction it i0 a ixooti Cijaltenffc tIjat a Bitot is Bro,
ther to the Feme of the Party i fQl OoatOn anD JfemC atC OttC in latO*
21 (£*4. 32.
[11] 23. But it 10 not a ffoon Cljallcnge, tljat ilje 3!urot is Brother
to one who has married the Silter of the Party. 21 (Qt. 4. 33.
[12] 24. @)0 Brother to the Servant of one of the Parties, i0 nOt 3
0ooti CljailcnijCv 2 1 e» 4* 3 1 lJ»
[13] 25. 3in a Monllraverunt by the Tenants by Cultom, where fome
are not named at tIjc JlTuc, it 10 a gooo Cfjallcntjc tIjat a 3^uror is
Brother to one of the Tenants not named j fOC ijC 10 tO IjaHe 'Benefit b?
tt 21 (S A- ^2.
*[iAJ 26. 3in anSftiOlt againft Parfon of a Church, it i0 a gOOtI
CljallCngC tIjat a 3lIfOC is Coulin to the Patron.
-Trials per Pais 131. C'^i)
2ie»4- 63-
Trials per [ i ^] 27. "jix Attaint, it i0 ttot a gooD Cljallcngc to a Juror tljat Ije
Pais. 131. y^^^ c,,y|in to one of the Petit 12, who is dead, bCCaUfe IjC tUljO iS UeaO
BrciiT i0no]?artp. 34 ^W. 6.
]enge, pi. 140. cites S. C.
Br. Chal-
lenge, pi.
140. cites
S. C.
Trials per
Pais 131.
(161) but
now in our
feigned
Ejeftments,
it is other-
wife, be-
[16] 28. [But] in attaint, it 10 a poo Cfjallenge to a 3I«ror tljat
\)Z is Son and Heir tO OnC Of tljC l^Ctit 12. UlljO i0 HeaQ ; fOC it i0 a
prefumption tijat Ije lutll not fap agama tljc £Datlj of Iji0 JFatDcr, 34
m* 6. arj)ittisco»
[17] 29. 3jn an Ejeaione firms upon Not guilty picaoeu, it i0 not
anV CljallCnge to tljC arrap tljat tlje Sheriff is Coulin to the Lelfor of
the Plaintiff^ foc It noc0 not appcat tljat tljc 'Witlt of Ijim in Eeucrfion
fljaU be in Ciucifioni for pcranuenturc tlje Leafe is not Uicll mane,
or no ejectment coiuniitteti, ann Ije in Reucrfion i0 not any part?
to tlje action. 99iclj. i6 3;a» 'B* betiuccn -^/^r tlje leflce of g)ir Av/a;.?rrf
Kempjhfi againft Bamj^er. anjuOgcti pcc Curiam upon a Dennirrer,
tlje
Trial. 263
tljc Wl3tcl3 Jntratur Cr. 16 3!a» Eot. 1999- W- 44 €1 13. Hot* "^f'e ^h^ •
120S. uctiuecn * Reciijaiiie aitH i5/:f/y' aujuogcii* D* ^r» h 31a, 05* ££if =
J^OU 2385- tiCtlUCen + Craddocks ailO j^o/zj^j aDjUOSCO* D. 13 CU only in
300. dUatC* QuelHon.—
* See fupra
CH. c. 2) + See fupra [H. c. 2)
X18] 30. So \\\ tlje fain Caft, it njall not be any Cljallengc, tljo' it
appears to the Court by Averment that this Leafe was made only in
Trult, andtotrv the Title of the PlaintiftfOC tljC CatlfC afOrCfaiU, i\X
ti)c fain Cafc of ^/^r, jpcin ftp button,
[19J Where the 'Teiiant for Life fc?c. prays in jiid, ft is a good Chal-
lenge that the Juror is Cou/iii to the Prayee in Jid, and yet he is no Party
to the A£Vion, but he is to have a Lofs. Br. Challenge, pi. 180. cites
21 E. 4. II. 20. 31. 63.
[20J In a Writ of Rightj when the 4 Knights came to the Bar^ the d. lor b.
'Tenant challenged one of them, viz. one Pawlet Knight, becaafe he had pi. 9. S. C;
married the Daughter of the Demandant^ and then the other 3 Knights tried according-
him out ■■, and alfohe challenged one Oxenbridge for Favour, and he was /g,^ s„^
tried indiiferent. Bendl. 42. pi. 75. Mich. 2 & 3 Ph. & M. The Lord mons award-
\\'indfor v. St. John. ed to fum-
mon another,
and Habeas Corpora of the Refidue.
[21] Being of Blood or Kindred to either Party, is a principal Chal-
lenge, becauie the Law prefames that one Kinfman will favour another
before a Stranger, how far remote foever the Kindred is. Co. Litt. 157.
a. Cb)
(F.d) What Ihall be iald a Challenge principal for A^^
finity. ffhat Affinity,
1
% i£i a BOOH Cljailcnw tijat tlje %\x^x, is Goffip to tlje paintifFj co. Lut.
ann tlje plaintiff Q5diTip to Ijiuu lo i), 6. 24. ti» ]^\-^^ (o>^
Pais 132. Ci^O
2. Spiritual Affinity, a0 tfjilt tljC SlUtOt is Godfon Of tIjC PaCtp, llS
a goon cljaUengc* 21 €♦ 4- 63.
3. So tljat a 3lui:oc ig Goffip to the Party, % a goo^ Cljallcnge* 21
<£.4- 63. 19 $3. 6. 66.
4. So tljat a JiUtOt i^ Godfather of a Party. 7 Jp. 6. 40. Br. Chal-
lenge, pi. 5(J,
cites S. C. but it feems there as if Babington did not allow of this Challenge; for he directed the
Triers to inquire of the Cofinage, and not to inquireof the Compere.
5. 3if tlje 3iUtOt IjaS &CCn COnipatet (tljat i0 Godfather) totheS.P.Co.Litf.
Plaintiff's Child, it iss a goon Cijalicnge* * 2% 4- ^s- t ^9^-\^\l^^_
6- 66. lenge, pl.31.
cites S. C. — ■
\ Ibid. pi. 62. cites S. C. that a Juror was challenged becaufe he chriften'd the Infant Ad Sacrum
Fontem ; and it was agreed to be a principal Challenge. And per Paflon, Godfather and Godmother
cannot inter-marry. S. P. Mo. 5. pi. 10. Trin. 2S H. S. Anon. And I remember Sir Paul
Rycaut, in bis Hiftory of the Greek Cliurches, tells us that the fame Strictnefs was ftill oblerved
there.
6. So
264.
Trial
6. So if tlje plaintiff IjiUl) been Godfather to the Juror's Child. 2 to>
F0I.654. ^_ j_y_
Br!challenge, pi- 31- cites S. C. For this and the former is great Affinity. S. P. Co. Litt. ijr.
b. '(n)
fir. Glial- 7. ®0 tt i.0 a goon Cijaliense tfjat tlje Partp is Curate of the juror.
Ihefs^c — ^^ (!i;*4. 63.
8. 3it 10 a Boon Cf)a«enn;e to a luror tijat fjc was Godfather to the
Son ot the Party, tho' the Son be dead • fOC tljC Spiritual ^ffinitP tf-
niainisi. lo j;. 7. 7- twU proUc tIjiiSi for it i& aCijaUenge to^tijc
arrap*
Br. chai- 9. Jit Attaint, it iis not anp Cljallenge to a lurot tijat &c is God-
lenge, pi. f^^j^gj. ^^ ^^^ ^j ,.^6 Parties. 40 ^ff^ 20. faOjUOgCO*
145. cites ^ 'J
S. C. But fays, Quod Mirum ! and that the contrary was z H 4.
10. It is no principal Challenge that the Son of the Juror had cfporrfed
the Daughter of the Plaintiff' ■, but there he fhall conclude to the Favour,
becaufe the Efpoufals are not between the Parties, as where the Juror hhn-
felf had efpoufcd the Daughter of the Plaintiff, quod nota j by which the
Juror was tried in and fworn. Br. Challenge, pi. 161. cites 3 £.4.
14.
11. In Wafte, it is a good Challenge that the Plaintiff is Compere to
the Son of the Sheriff'^ without faying that the Son is yet alive. Br. Chal-
lenge, pi. 218. cites 10 H. 7. 7.
12 Contra to fay that the Plaintiff^ has efpotifed the Coufin of the Sheriff
without y^j)7»f that the Yeme is yet alive ; note the Diverfity, for the Affi-
nity is determin'd. Br. Challenge, pi. 218. cites 10 H. 7. 7.
1 3, Being Uncle to the Appellee is good Caufe of Challenge by the Apel-
lant. But the Apellee denying him to be any Relation, the Court di-
refted it to be tried on a Voier dire. 1 1 Mod. 228. Trin. 8. Ann. B. R.
Young V. Slaughterford.
(iF. d. 2) To ^whom.
Trials per \ l^ lo.T ^ tS HO Cljallenge tIjat a Juror is Brother to one who has
Pais, 132. J^
(162) —
married the Party's Siller. 21 (£♦ 4. 33.
Trials per [ 2^ 1 1- 3t 10 HO Cljalleilge tljat tlje Son of the Party has efpoufed
Pais 1 31. the J uror's Siller, becaufe tlje)? ate not ipattieis to tlje artion. 2 1 e* 4-
J:§\he Sen 63. tJ*
ffhIZlld the Daughter of the Plaintiff, this is no principal Challenge but to the Favour, becaufe it is
not between the Parties. Co. Litt. 1 5 T • a. (.e)
If a Juror's [3] 12. But it llS a gOOtI CljallCngC tljat a Juror has efpoufed the
■Wifeisof Party's Sifter. 21 C»4. 63.1)*
^tJL rhePlaintiff or Defendant, it is a principal Challenge ; joy this Wife or her IJfue may happen to
Kir to the Sy in the Caufe. Judged by all the Judges of England. Jenk. ^6. pi. S;.
TaI 13. 31t 10 a gOOt! Cljallenge tljat tlje Daughter of the Juror's Un-
cle has married the Uncle of the Party, j s ]^. 6. 6. aOjUOgCtl.
[5] 14- l!t
Trial.
265
[5] 1 4' It ISi a iTOOn ClnlllCniXe tijat a Juror is Coulin to the Feme
of a Party ; tor tljc Mit Of tljc L^artp iimj bz ipcir to tlje :jutor, 6 p,
6. 15. u, isa)u5eEr!»
[6] 15. Jii Attaint, tti'sa goon Cljallcnffe to a Juror, tljat ije has it.isnot a
nuirried the Silter of one of the Petty Jury, if Die be alive, zi C 3. ^I'aSe
41. b, !at))urin;c5. that Iv
tie Petfy
Yiiry nr.d one of the Grand J'lry married fwo Sifters, notwithlTandinc; the Affinity ; and therefore hep-ill
j'.iy .t/Jj that he <ii:u procured ; And the Affinity being found and the Procurement not, he wasfworn.
Br. Challenge, pi. I'l: cites 4.3 Aff 46.
[7] 16. "SHjC fame jtatU iF llie be dead, if they have Iffue between
them alive. 21 (JJ» s- 41- b» !atl)Ut!0etl»
[8] 17. Jti^ apOQ CfjaliCngCtO aJUUOr, tijatlje has married Tria's per
the Siiter of the Wile at one of the Petit 12, fOr tlje ^lUtinCe* 41 (£» Pais 151.
3- Cljallcngc 99- Contra 43 M,zs. aoiuUij'D* 46 anniOB'S* oaut^j^-); —
5OC0 not fai) tijat flje 10 aWoz. r ^'"'"
j.;v cites 4.5 AfT 25. th^t this Challenge was not allowed without faying that he was procured, Ouod
niirum pluribus, that the Challenge was not allowed ; tor Brook fays, it feems a principal Challenge.
[9] 18. ijt 10 not any priucipal Cijancnceto a Juror (in «it Ejec-
tione Firms) tljtlt IjC has married the Coulin German ot A. who was the
Wife of R. from whom is defcended H. from whom is defcended B.
who is to have tlie Reverlion of the Land inQuellion after the Death of
Ijis C^atljcr, to!)o tia-3 an (£ftate for life ; tiji5 (0 not anp principal
COallcno;e, becaufc tljc (Sftate of Id* noesi not appear m tlje Eccocn,
anti ijc Ija0 not tlje inimetiiatc Ec^jcrfion* \x i6 ja* 13. Si. Ga-
hriel Dennis'^ CafC atljUQlJCtl.
[lo] 19. 3!t is a ffOOD CtjaliCnge of 2ffinitp between a Juror and a It is no
Party by Marriage, tho' the Feme be dead, if tliey liave Ilfue between principal
them. 21 e* 3- 41- &» ^rDUOffcn* Saf't'he^''
[11] 20. But it IS not any CljaUcnSC if the feme be dead without i^^^v has
ifTue i for nolo tljc Caufc of tije ifa^our is uetcrnitncti* * 21 e* 3* ""'»■">'/ 1^^
41. b» Curia* Mtierofiu
Defendant,
if pe be dead, and he had no Iffue by her ; for the Caufc of Favour is determined. Br. Challenge, pi. 71
cites 14H. 7.
So of him who marries my Coufin, luho may be Heir to me ; this is a principal Challenge during their
Lives. Ibid.
But centra if the Feme be dead ivithout Iffue. Ibid.
.-■ffinity or A.\\\ji^'-:c by Alarriage, is a principal Challenge, and equivalent to Con(anguinity when ic
is hetiveen either of the Parties ; As if the Plaintiff or Defendant marry the Datighter or Qufin cj the Jiirory
or the Juror marry the Daughter or Coujin of the Plaintiff or Defendant, and tne fame continues, or Iffue
be had. Co. Litt. 1 57. a. (e)
* Br Challenge, pi. 54 cites S. C. Jenk. iSo. pi. S5.
12. In J^ffife the Plaintiff challenged the Array, becaufe J. S. who
had married the Daughter of the Sheriff., had pitrchafed the Land fending
the IVrit, and did not allege Default in the Sheriff in the Return thereof, and
the Triers found the Matter above^ and no Partiality in the Sheriff' ; upoti
which they were adjourned into Bank for Difficulty ; and there, becaufe
it is not alleged by the Party, nor tound by the Verditl that the SheriiF
did otherwife than his Office was, therefore by Award xhe Array was
affirmed ; and yet it feems a principal Challenge, unlefs becaufe the Affini-
ty was between a Stranger and the Sherifl', and not between any of the
Parties to the Affife and the Sheriff. Nota. Br. Challenge, pi. 53.
cites 21 E. 3. 5. «
13. In Attaint the Plaintiff prayed Decern talcs to the Sheriff^., and had it
by Award, and at the Day Qc. he challenged the Array of the Tales, becaufe
the Brother of the Feme cf the Defendant had efpoufcd the Daughter cf the
Yyy ■ Shtriff
266 Trial
Sheriff who made the ^aks ; and the Defendant corifefs'd it^ by which the
1'ales ivas quaftfd^ and another 'Tales awarded to the Coroners. And yet per
Conllable and Butler, this is no principal Challenge clearly. But per
Cur. ha pall fay that the Brother oj the Feme of the Defendant^ and the-
Daughter of the Sheriff'^ were alive at the Time of the Array of the Tales
made. Br. Challenge, pi. 77. cites 15 H. 7. 9.
i chaiiena;e (G. d) Challenge Principal. For * Favour. Juror
Propter af- P/irtV
factum is of ■'^"' V-
2 Sorts, ci-
ther work- •' ,. '
Wa princi- 1. TjOTrefpafs, if Defendant fays that it is the Franktenement of Jl
pal Chal- J^ g arifj 2 others, and juftifies by their Command, flUlI Plaintiff
ihe Favo'u? traverfes the Franktenement UpOU U)l)(C|) tljCP Hit at Mue, it i0 a gOOH
Co. Litt. CDancmjCtOtlje Juror tliatlje IS one of them in whom the Franktenement
157. a. is alleged ; fcr \)t 10 lu a wiannct l3Jartp» Contra 1 7 ^» 6. 44. b*
■\ Br. Chal-
lenge, pi. 57. cites S. C. that becaufe no Franktenement is to be recovered in Trefpafs, it was awarded
to be no principal Challenge.
rvjv^^n 2. jn Wtxt of Attaint, it i0 a goon Cfjallenge to a 3lutoc tljat Ije
Fol. 655. .^^g j.j^g Lelfee tor Years of the Flamtitf againit whom the Kecovery was,
p^fJXi^w which Land he loll by the firlt judgment. 21 (g* 3» 4i- aOjUDgCD*
be remitted
to it by this A£tion, and fo in a Manner is Party. Br. Challenge, pi. 54. cites S. G.
See (L. d) 3. ^ Cj^an fljall not Ijalie fuch challenge to a Juror, which will be
P^' '■ fufficient Challenge to the Array, after he has affirm'd the Array. 49^
rtF^ a. 2. b»
See cL. d) 4. [As] it i0 uot a BOOU Cljallcnsc to a luroc, tijat \)t was put in-
pl 2.- — - — to the Pannel at the Denomination ot the other Party ; fOC tftlS Ijab bCCll
knge pi Z5. fwffici^nt C&aUengc to tlje ^rrap, tijc UJljicIj Ije Ijag acccpteD* 49 e*
cites S d' 3- I- tl*
Br. Chal- 5. jt i0 not an)' Cfjallcnge to a Jurotj tIjat Ije was procured by
lenge, pi. the Plaincirt, tljC Plaintiff being an Inlunt. 27^.45. aUnHlfiell,
S.C. Br.Coverture and Infancy, pi. 37. cites S. C.
Trials per 6. 3if a JUtOr promifes a Party to pafs for him, t[)i0 10 ttOt a ptillCl'
Pais 132. pjii cijaUeusc but for ifauour* 3 Sp» 6. 38. b,
(162)
* Br. Chal- 7. 3jf a Juror declares the Right of a Party, or fays his Verdict be-
lenge, pL 25. forehand, tljiss 10 a pruicipal Cballcngc* * 49 €. 3- 1- b» 11 49 3fC i.
ti'm^chSr (Jit feem0 it 10 to be mtenbeb tijatlje faio that he would pafs for him,
lenge,pl.i5o. not regarding Right)
cites S. C. — ■
Trials per Pais 132. {.i6z)
See (I. d) 8. Jf a Juror fays 20 Times that he Avill pafs for the one Party, tbi0
tn- "-^rT 10 not a principal Cljallcnw -, for it map be tljat Ije rpeaU0 it for tlje
lenee pi r, ^otice tljat \)z 1)30 Of tijc mm "i JfTuc, aiiD not for affection. * 7
cites s. c ]^. 6. 25. 20 jap. 6, 40. Curia.
in the
Words following, vix. If a Juror fays 20 Times that he will pafs for the one Party /or the Notice whiiO
ht
Trial. 267
le h/is of the ALttter and of the Truth, he is indifferent ; but if be fays Co for any Jffellion of the Party, he
is fevoui-able ; Per Babington, and charged the Triors accordingly. Quod nota.
9- If a Jlll'Ot be of Counfel of a Party, and of his Fees, it i|5 3 ^'■- '^^^^-
S. C. Trials per Pais 15S. (16S) S. P. Co. Litt. 157. b. (r)
lo, Jf tIjC Plaintiif be recain'd with a Juror, and has of him 20 s. a Br. Chal-
Year for his Fee, tW i& » principal CDallcnipe to t!)e :jutoi:* 2 i="ge, pi.
c ■ ... So if a Ju-
ror be Servant, or of the Robes of either Party, it is a principal Challenge. Co. Litt. 157. b. (r)
11. 3if a 3itirat takes a Sum of any Party, it i0 a CljanCltge* 49
12. [So] 3|f tl)Z Part? gives any Money for Eating and Drinking to Br.ChaU
any luror tor the Matter in queftion. 13 30), 4. 13. lenge, pi-
S. C If any, after he be return'd, do eat or drink at the Charge of either Party, it is a principal
Caufe of Challenge. Co. Litt. 157. b. (f )
13. So if anj> Stranger gives any Money for the Eating and Drinking
of the Juror fOC OUC PaCtg fOC tlje S^attCC ilt qUCffiOn, tho' it be with-
out the Affent of the Party, })Ct It IS a gOOtl CllilllCngC ; fOi: tf)C JUrOC
inmm tljat it i& Qi'ozn of W ISJait, aiiD tljcvcfait it 10 intcnDcH tljat
l)c uiiil bt more fa^jouraWc to tljijs partp* 1 3 jp. 4. 1 3 .
14. In Rtplevin &c. the Defendant avo-ju'd for Rent-Service^ and the Bendl. ly.
Plaintiff replied Hors de fon Fee. The Plaintiff' challenged one of the Ju- ?'• i:-.S. C.
rors, hecaufe he was Steward to the Avowant of his Manor ^c. and ad- accordingly,
judged a principal Challenge. Mo. 3. pi. 7. Trin. 27 H. 8. Anon.
15. If the * Plaintiff' labours a Juror to appear^ and pafs according to his * ^^ ''*^^''
Confcience. tho' the luror was never fummon'd by the Sheriff, nor his ■"■'''^ •'''''»
■K f • 1 !•• /-I/- 111 IT '...It IS no
Minilters, to appear, this is no Caule to challenge the Juror as Ipecially Challenge
laboured ; per tot. Cur. D. 48. pi. 19. Hill. 32 H. 8. Anon. at all, but
lawful for
him to do it. But if either Party labour the Juror, and give him any thing to give hit Ferdiif, this is 3
principal Challenge. Co. Litt. 157. b. (w)
16. That the Juror is a Fellow- Servant of either Party, is no princi-
pal Challenge but to the Favour. Co. Litt. 157. b. (x)
17. A Juror was challeng'd, for that he had bought Land of one of the
Parties in the Suity (viz.) of the Lejfor^ and that the Lejfor did owe to his
Juror 10 1. Notwithftanding this Challenge the Triors found him to
be indifferent ; otherwife it had been, per Cur. if the Juror had owed
Money to one of the Parties. Bulll. 20. Pafch, 8 Tac. Odill v.
Tyrrel. ' .
18. Note, It was granted that foi/je of the Grand Jury who found the
Bill might be of Petit Jury. 12 Mod, 305. Mich. 11 W. 3. in Cafe of
the King v. Kirk & Cage. '
19. If the llfue be Whether fuch a County is hound .to repair a Bridge,
one of the County is no good Juror, tho' he may be a good Witnefs,
6 Mod. 307. Mich. 3 Ann, B, R. The Queen v. the Inhabitants of the
County of Wilts.
(G. d. z)
;68
Trial.
(G. d. 2) Challenge to Jurors. \_Favo&r
CommiJJiouer . ]
Arh'ttrator^
* Br Chal-
lenge, pi. 7.
cites S. C.
\.'J,%\$ not il pOtI CCJjallCngC tijat tljC 3ilU'0i: was Arbitrator in the
X llime Matter cholen by both Parties. 13 3|)« 4. 13- * 3 |)+ 6.
24. 1j»
2. But OtljeClUifC if \)Z tua0 chofen by one Party, and another for the
other Party. 20 !)♦ 6. 39. Ij,
It was agreed that it was a principal Challenge, Tliat a Juror was Arbitrator for the
Br. Chal-
lenf^e, pi ;
S. P. cites
5 H. 6. 24.
Party. Br. Challenge, pi. isS. cj^tes 7 H. 7.10
intended h
becaufe he
Jac. C. B.
e will incline to that P.irty to which he inclinM before
is eleftcd indifferent. Godb. 195. pi- i;6. Per Coke Ch. J. nemine contradicente, Trin
Fortefcue v. Cooke.
S. P. if it be in the fame Caufe, becaufe it is
But contrary of a CommifTioner,
Br. chai- 3. So if an Arbitrator &e chofen b^ one l^artp, anti aitotljet bp tljc
lenge, ph 7. Qflier PattP, as indifibrent Arbitrators, It IS a pOU CballenW agatltft
ifT juror bim bj> \D!)om ije lua^ cbofeu. 3 1). 6. 24. b, aojungen. 20 ra.
has been an 6. 40-
Arbitrator,
chofen by the Plaintiff or Defendant in the fame Caufe, and has been inform'd of, or treated of the
Matter, this is a principal Challenge ; otherwife if he never was inform'd or treated thereof Co. Liti.
157. b,(p)
■4. But it i0 not a CbaHcnge to tbc Arbitrator, if be \m Arbitrator
in another Matter ibr the Party, anU nOt \\\ tljC faUie ^attet in qUef=
tiom 2oi>6. 39.b*
5. As in an Attaint, upon a EecoDet)) in a forcible €ntrp, it isi a
gooti Cbaltcngc tbat be uiajs Arbitrator of one Partp, for the taife
Oath. 20 Jp. 6. 39. b*
6. But OtbertUlfe it is if be tUaS Arbitrator for the Title of the Land j
for tbi0 10 anotber %\ym tban tbat tubicb \^ nofti in Ciueftion in
tbe Attaint* 20 1). 6. 39. b»
7. ®0 in Debt, it i0 no CballengC tbat be iOaiS Arbitrator for one
Party in a Trefpafs. 20 Ji)» 6. 39. t)*
8. 3it isi not a goon Cballenge to a*3;uror, tbat be was a Commif-
lioner in Chancery of the Denomination of one Party to take the An-
fWer of the other for the fame Land, and between the fame Parties.
S^icb* 1031a. 'B.E. betuieen oidfwonh and "Thorpe per c«tiam> Ali=
jubscb.
one of the
Parties for Examination of WitnefTes in the fame Caufe, is no principal 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 Caufe
be challenged for Favour. Co. Litt. 157. b. (q) 9 Rep. 7 1. a, in ^cacccfe's Cafe, Ld. Chancellor
cited S. P. as refolved in C. B. in Ld. Dyer's Time ; and faid that with this agrees 7 H. 7. 10. b. 9 E. 4;
46. 3 H. 6. 24. b.
See the
Notes at
yl. 2. •
So a Com-
mifTioner
chofen by
(H.d)
/
Trial. 269
(H. d) Challenge to Jurors. What lliall be Principal
Challenge for Malice. What A^io^is.
I. T JF tljcrc lie fuch mm tiepcnlims bettncen a partp atin tfjc J\X' Tmi per
1 rOr, which implies Malice between them. It Igi a gOOlI Cljal'/^"' '52-
lensc* QautotljcrtDifcitisieContra* 38^*6.7. sp.ui^fs
they be
brought by Covin, either before or after the Return; for if Covin be found, then it is no Caufe of
Challenge, Co. Litt. i 57. b. (t)
2. jt is a ffoon Cfjancnire tijat tlje partp has Appeal pending Trials per
againft a 3luroc. 2 1 e» 4- 12.33. ?^'A\ ' 5 ^•
3. So if a 3!uroc \m againft fiiim 21 e» 4. 12. 33. ^'""^
4. 3it 10 a ijoou Cljflllenjjc tljat a 3lutoc ijass Action of Battery Trials per
apinft a partp* 3^ fi> 6. 7- p^is 132.
5. cijc fame latu if tf)c partp Ijas a 'SCrcfpafgi of OBatterp penning ^'^'^
agninft tlje Juror* 20 air* i r. aomitten.
6. Odut It 10 no Cljailenge tljat an Action of Debt i^ tiepenninry J'.'*'* p*^""
Ijcttuecn tljem ; foe it implicisi no ^alice* 38 $p* 6. 7. ^,J!'j '"•
Ibid. 159.(1 68) Aftions which do not imply Malice or Difpleafure, are but to the Favour. Co*
Litt. ij;. b. (t)
7. Clje fame Lain of Trefpafs of Clofe broken* * 37 1^» 6. 7. Trials per
Pais, i;:;.
(162) ■ In Afiife, a Juror was challenged becaufe the Tenant had a Writ of Trefpal's depending
againft him of elder Date than the Affife, and return'd before the Aflife ; and to he is favourable. The
Tenant pleaded that tlie Writ of Trefpafs was purchafed by Covin. See Br. Challenge, pi. 92. ;S H,6.
6. where it feems admitted, that were it not for the Covin, the Challenge is good. — Br. CoUufion, pi.
22. cite.s S. C.
* This feems to be mifprinted, and that it fliould be gS H. 6. 7. a. at the End of pi i 5.
8. C0ntta2iC*4- 12. 3 3- tDljiCljfpCnl^S of Trefpafs generally.
9. 3ft\)t DCfCnOant Ija^ a CrelpafS of Battery pCnDlng againfl a The Proeefs
Juror in Affii'e, of later Date than the Affife ^ pct tljIS fljaU lie a gOOll Grand Di"
CtoUenjje* ^ nrefs, and'
10. Contra 20 aiL n. 'But tijerc ft iecm0 tljcOSooK is; mifprint- the 7efie of
cti; foe it ijs tOat tlje affife Uia^i of iatet Date* anti anjutipB no '^^.^ O"/"';'
CDaUengc for tljiis Cauft, iJ/ff;,
the Teftejif the IJ'i-H of JJpfe ; and therefore it was fufftchus ; and the Challenge was oufted quod mi-
lum, unlefs the Telle had been after the Aflife. Br. Challenge, pi 109. cites 20 Afl! 11,
1 1. 3!t iis a goon Cljailenge 6p a partp, t{}at Ije anti a 3iuroc are at sr. chai-
Debate. 30 M. 24. anuUtteD* 50 m. 4- aOmittCO. chef s c.ll'
Trials per PaLs, 132. (162) 30 Afl". 34.
12. jt iis a pon Cfiallenge in Attaint to a 3lutor for tlje Cenant, «■• chai-
tljat tije Juror and one of the Petit 12 are at Dcb.ice. 50 ^tl* 4. ci"ef s^ C '-^
13. In Attaint, it iis a ffooti CljaHentje to tlje Juror for tlje plain- Br. chai-
tifF, tljat l)e has a Writ upon the Statute againlt him for maintaining the !enge,pl.i47.
firll Quarrel, tl)C lUljiCl) IJBrit tOaSS purchafed belore this Attaint. 43 cites S. C.
3ir. 46 aniuogcti.
14- 15Ut otherwife it iSi, if Ije tOejS not fay that the Writ was pur-
chafed before this Writ. 43 9ff» 46.
15. If a Juror has a Suit at Law depending againft the Plaintiff, ir
feems admitted to be a good Challenge. See Sty. 129. Mich. 24 Car.
B, R. Lovediiv's Caie.
Z z z (H. d, 2)
270
Trial.
(H. d. 2) By njohom.
Trials per [ I ] 1 5. T '9D 10 110 CljallenffC, tijat tlje Brother of the Party has Aaiorl
Pais 155. J[_ againft a J uror. 21 C* 4. 33-
(261)
[2] 16. In Attaint it i-s Hot mt}? Cljallenffc to a Jttrot for tl)C
paintiff, tljat Ije ija^ an Action upon the Statute asaintt Ijim for
5- r, , -' maintaining the firlt * Quarrel, tUljiCl) tPa^ purchafed betore this Writ,
knee Pi 147 if it tDa0 brousl)t b? caution againfl tlji^ Jurotann 30 mm, to
cites s. c. ija^e tW CijaUnige, 43 ^IT* 46- aojutigeii*
(H. d. 3) Challenge Peremptory to Jurors. Jurors ought
to be free.
s. p. ut 1. T® i0 a fiooti Challenge to a 3^urot, tljat \)t is a viiiein. * 9 c*
videtur. Br. I . i6. | 26 ^^, 28. aOjUOgCH* COUtta * lo |). 7. 20. ^tl"
Challenge, «*i<.j.«j,
pi. 64. cites IUIH«'W*
21 H.6 30. .
* Br. Challenge, pi. S 5. cites S. C.
+ Br. Challenge, pi- 118. cites S. C. And the Bailiff was amerced for returning the Villein in the
Pannel ; Quod nota bene, and Non omittas was awarded.
So to 'a Champion In a JVrit of Right, it is a good Challenge that he is Villein, ut dicitur; for he muft
be a Freeman. Br. Challenge, pi, 196. cites 5 H. 6. 55.
± Br. Challenge, pi. 220. cites S C. That it was faid that it a Villein be regardant to a Manor, he
may be fwom between him in Reveifton and a Stranger during the Leafe, Quaere.
2. He that is of a Jury muft be Liber Homo, i. e. not only a Free-
man, and not Bond, but alfo one that has fuch Freedom of Mind^ that
htjtands indifferent, as he ftands unjhvorn. Co. Litt. 155. a. (d)
*TheWoia (H. d. 4) Ought to be * Legales Homines.
(Legales)
means, that
they fhaii j-j-j ^ j^ j^ ^ ggj,^ cijallcnge to a luror, tijatije was bom out of I
l^Tull Ex- 1 "^he Ligeance of the King, tIjO' I)C mm IHtO CnglanO tUijCn
ceplor!. 2 H. I)etua0 an :jnfant, anH Ija^ altua))0 aftet continucoijccc, anDljnjsliccit
Hilt. PLC. iifiuorn to tlje JRingi for notttiitlillanliing tt)i!5, i)e conttniicsi an
n H'isll^ng a««^* I4l)>4-19.
been fivom . t o - c r^
in Leets and Juries, does not make him a Liegeman of the King. Br. Challenge, pi. 40. cues S. C. —
Trials per Pais 133. )i63)
Br. chai- [2] 3. 3It 10 a gooti Cljallenge to a Juror tijat Ije is outlawed ^ foe
6^"^cite^i' ^^" ^J^ ^^ ""^^ legalisi ]|)omo* 21 ^* 6. 30. ij,
S.C. S. p. Trials per Pais z-6. If a Man be eiitl/ined in 1'refpafs, Debt, or any other
Airion,
Trial.
271
Action, tliis is a priiicipal CauCe of Challenge ; for he is Exlex, and therefore is not Legalis
Homo. Co. Litt. 158. a. (e) And the Statute ri H. 4. extends to Perfons outlawed in Per/oxal
JHhns, becaufe an outlawed Pcrfon is not accounted Probus & Legalis Homo to be fworn in an In-
queft, and may be challenged for that Caufe. By the f;reater Part of the Juftices at Serieant's-Inn,
upon Conference there. Cro. C. 154. pi. 9. Mich. 4 Car. Sir William Withipole's Cafe. — |o. 198. S. C.
—S. P. 2 Hawk. PI. C. 41 7. cap. 4;. S. 25 but fay.s it fccms it is not a principal one, but only to the Fa-
vour, unlcfs the Record of the Outlawry be produced, if it be a Kecord of another Court, or the
Term &c. fhewn, if it be a Record of the fame Court.
3. Every Juror that is returned for the Trial of any Iflue or Caufe,
ought to have 3 Properties, ill. He ought to be d\aeUing moji near to the
• Place where the Queftion is moved. 2dly. He ought to be moji fuffi-
cicHt both, for Underjlanding and Competency oiEJiate. 3dly. He ought
to be leaft ftifptcious, i. e. to be indifferent as he Itands unfworn, and
then he is accounted in Law Liber & Legalis Homo , otherwife
he may be challenged, and not fuffered to be fworn. Co. Litt, 155.
a. b.
4. If the Juror be attainted or conviSed of 'freafon or * Felony^ or for if a Man be
•any Offlnce to Life or Adc77jher, or in Attaint for a falfe Ferdiff, or for attainted of
Perjury as a Wicnefs, or in a Confpiracy at the Suit of the King, or in Felony, and
any Suit (either for the King or tor any Subjeft) be adjudged to the ^gi °not' ^
Pfl/ory, 'Tumbril, or the like, or to be branded or to htjligmatized, or to afterwards
have any other Corporal Punipment, whereby he becomes infamous ^ (for be fworn of
it is a Maxim in Law Repellitur a Sacramento infamis) Thefe, and the ^^^^J '/"'^
like, are principal Caufes of Challenge. Co. Litt. 15S. a. (e) nofprobus
& Legalis
Homo ; for Poena mori potelf, culpa perennis erit ; and therefore fuch a one fhnll not be fworn of an
Inqueft ; and this is a good Challenge to a Juror returned to ferve, that he hath been before attainted
of Felony, and tho' pardoned for the fame, yet he is not a fit Perfon to i'erveof a Jury. Per Coke Ch. J.
2 Bulft. 154 Mich. II Jac. in Cafe of Browne v. Crafliaw, cites 11 H. 4. fo 41. b. S. P. Brownl.
54. Anon.
S. P. And £0 o£ Forever J on 5 Eliz. 14. And Serjeant Hawkins fays, it hath been holden. That fuch
Exceptions are wt fahed by a Pardon. And yet he (ays it feems that none of the above -cited Chal-
lenges are principal ones, but only to the Favour, unlefs the Record of the Judgment or Conviftion be
produced, if it be a Record of another Court, or the Term &c. be fliewn, if it be a Record of the
fame Coutr. 2 Hawk. PI. C. 41;. cap. 43. S. 2j.
5. The old Books have faid, that if a Man be excommunicated, he could S.P, 2 Hawk,
not be of a Jury, Co, Litt. 158. a. (e) P'- C. 41 ■■
cap. 45.
S, 25.
(H. d. 5) Challenge to a Jaror,
I. T-Sn is no CljallenSC to a Jurat in Bank, that he was not fummon-
X edof 15 Days. 17 C. 3- 73- b»
2. It is no Challenge in Quare Impedit, that the Juror is a Paripjio- So in Aflife.
ver ■ for the Right of the Church is not in Debate. Br. Challenge, pi. ^'- ^'^^'-
/ ■ \H- o J r ienpe 112.
I06. cites 17 All. 15. cire!22 AfT.
25. — ■ —
So in Debt, or any other Action, where the Right of the Chitrch comes not in Queftion, a Parijljimer
is no principal Challenge. Co. Litt. 15;. b. (t)
But in a Caufe where the Parfon of a Pariflo is Party, and the Ri<;^ht of the Church comes in Debate,
a •P<ir(/ij«D»er is a principal Challenge. Co. Litt. 15;. b. Cc) Br. Challenge, pi. i So. cites 21 E.
4. 5 2. Per Nele Juft.
3. If the Juror hath Part of the Land that depends upon the fame Title, In Ejeft-
it is a principal Challenge. Co. Litt. 157. a. (";) ""="!. ^.'^■
^ ^ ° -> ■ \oJ tl.,g Parties
were at IlTue, and the PlaiiitliF challenged one of the Jn'-y, becaufe he LeU Land Hndtv the f.mie ^itle as
the
272
Trial.
the Defendant did, which was proved by a Witncfs produced for the Plaintiff, and thereupon thejuror
was withdrawn. 2 Le. 40. pi. 55- Mich. 50 Eliz. in the Exchequer, Green v. Everard.
4. At a Trial at Bar the Queflion was, Whether the Fair call'd Way-
hill Fair Ihould be kept at WayhiJl or Andover. One of the Jury, who
lived at Waybill, was challeng'd, for that the Fair would occafion Ma-
nure to improve the Ground. On the other Side it was confider'd, that
the Fair occalion'd Trampling of the Grafs ; and this being a Challenge 1
to the Favour, 2 of the Jurors was fworn to beTryers, and their Oath I
•was. Ton pall well and truly try zvhether A. (the Juror challenged) Jlands 1
indifferent between the Parties, i Salk. 152. pi. i. Trin. i W. & M.
Anon.
5. It has been allow'd a good Caufe of Challenge, on the Part of the
Prifoner, that the Juror has a Claim to the Forfeiture which fhall be raifcd
hy the Party's Attainder or Convjftjon. 2 Hawk. PI. C, 418. cap. 43.
S. 28. cites State Trials, Vol. i. Ibl. 502.
6. It is a good Challenge to a Juror to fay that he is return' d by a
•wrong Name. Trials per Pais 146. (175)
spCG. d) (I. d) Challenge to jurors. For Favour. What fhall be
good Challenge. \_fFordsJpokebyaJi{rorastotheCaufe.'\
Seei'G. d) I. Tif a JUrOt fays that he will pafs for the one Part, tl)(0 10 9 0OOtl
Sl- f\ 1 CljallenfiC RlC JfaDOUr, if he laid it in Favour of him. * 7
Trials per ji. •?' „ , '^ •" '
Pais 153. V^ 6- 25-
(r<S5)
* Br. Challenge, pi. 5 5. cites S. C- Such Saying is a good Challenge. Br. Challenge, pi. 50. cites
21 H. 7. 29.
Br. Chal- 2. But If ijC 13000 ItOt fay it m Jfa^JOUt, lUlt for the Conufance which
lenge, pi he had of the Thing in Iflue, it 10 llOt a tJOOO CljaUcnge fOC Jf aUOllC*
25. CltesS.C. ^ ji. A ne
2 Hawk. 7 V* 6. 25.
PLC. 41 8.
cap. 43. S. 28. S. P. Trials per Pais 133. (163)
Trials per 3. [And] % 10 HO COaHcitge to tljc Slutoc, tijat \yt faiH tijat Ijc
TiT -J ^'' ^°"^^ P'^^^ ^^^ ^'J*^ °"^ P'^ttP, Unlef0 it be found by the^cior0 Ot tIjC
^ COllCt, that he laid it more for Favour than for the Truth of the Mat-
ter. 20 ^» 6. 40.
4. Upon a Trial at the Bar a Juror was challenged, for that he faid
unto one of the Parties, Provide you to pay, for if I am fworn, I will give
my Verdiif againft yon ; and that this is true, the Party to whom the
Words were fpoken did offer to depofe the fame, if he may be fuffer'd
to fwear i and whether he fhould be fuffer'd in this Cafe to fvvear to
prove this, he being one of the Parties, was theQueltion. Fenner J.
laid, He may well be fworn in this Cafe to prove the Challenge good ;
and by the Court he was allow'd to be fworn, to make good the Caule
of his Challenge j which being proved by his Oath, the Triors found
him for this Caufe not to be indifferent, and therefore he was with-
drawn. Bulft. 20. Pafch. 8 Jac. Odill v. Tyrrel.
5. In Evidence to an Inquell it was obferved, i. The Iffue being a
Way or Not a Way, a Juror was challenged, and being for the King,
Caufe was Ihew'd prefcncly that he had faid that it was a Way, and if it
proved
Trial.
proved ctheriuife it would be a Prejudice to tbeConntry i which being prov'd,
he was fee alide. Keb. 71. pi. 41. Trin. 13 Car. 2. B. R.. The King v,
the Inhabitants of Cheveny.
6. If a Perfon be indiiSted of High Treafoit, and one of the Jurors be
challenged tor having /"r/V/ that He ivas guilty^ or that He would be hang'd,
this is a good Caule of Challenge. i Salic. 153. pi. 3. Cooke's
Cafe.
273
(T. d. 2) Challenge to the Juror for Favour. \_fFJjere
the lOug is Party.^
I. TiI3 itn Aclion brought between the King and another, tlyt %)i\\y)t^ See (M. d)
1 cannot tafee anp Cijallenire to tIje3'.urot foe ifa^our of tl)EP' ^.s.c.-
part of tlje J^mg, 13. is Ja. 03* E» in 'Totterfors Caje. pct^r,''^
Curiam* Tmls per
Pais 155.
t\^>) ^^ '^"^ ^^^^ ''^^^ ^'^^ Subject cannot take a Cliallenge for the Favour againft the King, becaufe
every one is bound by his Allegiance to favour the King. But if no more be meant by thefe Books
than that fuch ^. Challenge is not good, without JJjisa'/w?^ /jots aiiual Partiality in fuch Sheriff or Juror,
or forne parti.uhirCanfe in refpsil whereof the Ktiif, may ivjiuence them, it (eems not clearly (ectled how the
King in this RetpeCt hath a greater Privilege than the Subject ; which yet it feems agreed that he
hath. 2 Hawk. PI. C. 419. cap. 45. S. 32.
2. As in an Indiament of J. S. of Barretry, tIjC DCfCnUant CannOt '^'■"'s P^''
tafee anp Cljallcngc to tOc Iiiitor of jfauour of tijci^art of tljcl^ingv f"'' '55-
P» 15 Jia* QoanCO lACglSJ, Totterfol's Cafe, atl)UDPfCU, ''"^'^
3. The Subje£l may challenge the Polls where the King is Party ^
and if a Man be outlawed cfTreafon or Felony at the Suit oi the King, and
the Party for avoiding thereof alleges hnp-tfouinent, or the like, at the
Time of the Outlawry, tho' the lUue be joined upon a collateral Point,
yet Ihall the Party have fuch Challenges as if he had been arraign'd
upon the Crime itfelfi for this by a Means concerns his Lite alio. Co.
Litt. 157. b. (d)
4. In an Information for' a Forgery the Defendant challenged one of
the Jury, tbr that the Profecutor had been lately entertained at his Houfe ;
and this was admitted a good Challenge to the Favour, tho' againlt the
King. Vent. 309. Pafch. 29 Car. 2. B. R. Anon.
5. It hath been ruled to be a good Challenge of a Juror on the Part
of the King, that he hath given his Dogs the Names of the King's IVit-
vc/Jes, 2 Hawk. PI. C. 418. cap. 43. S. 30.
(K. d) Challenges. How they are to be tiike/j of a
Record.
I. T B Attaint, if tlje paintiff cjjatlcngcjs a lucoc Ijccaiifcljc \m an Triau per
X Aftion pending againll him in the lame Court, tor maintaining the Pais 135.
firtt Quarrel, UJljtCij lOaS purchafed before this Writ, 1)0 need not ihew J°'' then the
the Record tO tl)C COUVt, DCCailfC It 10 \\\ tljC faUlC COUtt* 43 M. I^nd'for "the
46. Record.
Br. Challenge, pi. 1 4-. cites S. C.
■ 4 A 2. But
274 , JTrial.
2 But Ije OUQl)t to iKew the Day and Term Of tl)C EeCOtH, tt)0' It
be in tljc fame Coutt* 43 ^ff* 46-
Br Chal- I. But ittije EeCOl'D be in another Court, \)Z OUgl)t tO fiietD it tOtlje
lenge pU4:- coutt, otljecttJife it IS! not a principal Cl)aUenge3 43 M« 46.
cues S. I- ^ . ■ .• ,
That he ought to Ihew it immeaiately.
(L. d) Chalknge to the Jurors. ^/ w/W Time it may
be /j/t^;/.
SeeCG. d) i- A F T ER the Array 1)5 affirm'd, a ^HH IljaH nOt have fuch Chal-
pi. 5. S^\. lenge to a juror, which would have been fuffiicient Chailengs
Trials per to ^^e Array. 49 €. 3- 2- b* 49 ^ife i- CUrtO,
Pais 153.
See (G d) 2. As it i0 not a gooti Challenge to a Jurot tijat Ije was put in the
pi 4- Pannel at the Denomination of the other Party; fOttt)i0i)aD beCn il
: ^' ^l"^^" ffnntj CJjallense to tlje attap, tlje mijiclj Ijc \m accepten bood. * 49
S^riteV' <&, 3- !• i3* * 49 ^ff» I. Ciitia*
s. c. .
Trial per Pais, 15;. (163)
:^ Br Challenge, pi. 1 50. cites S. C.
Trials per 3. Jiffl ^an challenges a JUtOt for Non-Sufficiency of Frank-tene-
Pais 133. inent, and this is adjudged againlt him, yet he mav challene;e him, be-
^^^3) caufe he is lavourable tO t|)C OtijCt Pattp ; anD XW Ajall bC ttlCD. lo"
% 6. 18. b*
4- 3if tlje Inqueft remains for want of Handredors, pettljC PattiCS*
tnap afterU)aCb0 ija'ue Challenge to the Polls for other Caufe. 22 (S«4.
J Cijallengc 62. pec Cnciain*
Trials per ^_ 3i|f tijC Jury upon finding of the Principal do not tax the Damages,
Pais 134. fQj which a Venire facias llTues to the fame furors tO tat tl)e DamagCjS,
^^ tbe parties! cannot ta'ke anp Challenge to the J urors for a Caufe before
the firit Trial 22 <&. 3. 8. b*
Jenk. 10^ 6. But tI)CW niap tahe anp C!)anenSe for a Caufe arifing after. 22 c*
Trials' per 3- 8- b»
Pais 154- (13*5)
Br. Chal- 7. In Affife, if after 8 are fworn the Aflif?; remains for Default of Ju-
lenge, pi. fors, upon which a Tales is granted ; at the Return of it t!)C IpattieS
s'c "'^' niaV^Cballenge tlje firit 3iUtOriS, for Caufe arifen of later Time. 28 aflf*
Becaufethe 44.U0UlB5e0»
yUror -was at _ _
another lime ftvorn, and the Juf) renm'ir'd, it was awarded that kepould befeaorn ; for now he Jtiall not
lave any Challenc^e but that which ccmes of later lime ; and no principal Challenge, Quod nota. Br. Chal-
lenge, pi. 50. cites 9 H. 5. 7 Jenk. 510. pi. 8S.
Br. Chal- 8. But tftCP CannOt CJjallenBe t5em for any Caufe tt!l)iC!) 10 not hap-
lenge, pi. pgn'd of latef Time. 28 l^IT* 44.
i**© Cites
s'c. . Brownl. 275. Mich. 7 Jac. C. B. Anon.
Trials per 9. ©0 tfte King cannot cl)anenge a Jutot aftet be iis nuorn, iinteW
Pais 134- Jt be fOjC Caufe happening atter he was fworn. Jp, 16 3!a, 'B* pCC
ffie;rre Cutiant.
indiHed of ^ , ■>_
JUnrdtr, and eleven of the Jur^ only appeared at the Trial, and were fworn ; but one of them w.is i halltnged
:'■'■ 7^!~--^-^r... -,^-
Trial. 275
iy the Prifoners. A 'faks was awarded for the ^leen, and the Trial put off till another Day when the Jury
^tpear'd, and then otie of the jurors ivho appear d the firfi Day and was /worn, was challenged for the ^een-,
for a Caufe in ejfe at the frjl Day, but not then known to the ^een, viz. that he was within the Dijirefs of
the Mafter of one of the hidiBees. The Juftices of B R. being in Doubt, Tent to C. B. whofe Opinion
were, that the Qiiecn could not have that Challenge now, anv more than fhe could have had it the firft
■Day after the Juror was fworn, tlio' the fame Caulb was ftiU continuing. Yelv. 25. Mich. 44& 4J
Eli/- B. R. Wharton's Cafe. Noy. 4S. S. C. but not S P.
10. In B. R. at the Venire Facias, all the Pannel was challenged by the
Parties, and the Decern tales was challenged by the Defendant ; by which
it was awarded that one challenged by the Ph'.nttff, and another challenged
by the Defendant, potild be 1'riors ; and the Defendant challenged hitn who
was chofe for the Plaintiff, and pew' d how he was favourable to the Plain-
tiff: And therefore he was ftruck out nocwithftanding the firft Award
ot the Court. Quod nota. Br. Challenge, pi. 5 1. cites 9 H. 5 11.
11. A Man wzs arraigned of 'Treafon, and 8 K'ere fjuwn, but it rm^/«W 2 H. Hift.
for Default of furors, and at another Day he challenged part of them who ; ^'°'
were fworn at the former Day peremptorily, and part for their Frank-tene- (;c^_
went ; and both Challenges allow'd i the one in Favorem Vitas, and the If a Man ia
"other becaufe it may be that they are insufficient of later Time. Quaere if Cafe of
the like Ihould be in Action between Party and Party which does not ^^'"^^1^^°"^^
touch Life. Br. Challenge, pi. 193. cites 32 H. 6. 26. foTcauiltand
he be tried
indifferent, yet lie may Challenge peremptorily. Co. Litt. 158.3.(1) — So a Juror i?7yi'p/'e/r/ was challenged
for Caufe and found indifferent ; and the Jury remain'd for Default &^C. by which 7'aleswas awarded re-
turnable h a7.other ^erm ; and now the Defendant challenged the fame 'Juror who was fworn before peremp-
lorily. And awarded a good Challenge per Fineux and Cur. for he ma) Challenge for Caufe again for
'Caufe coirihig of later 7inie. Br. Challenge, pi 7 5. cites 14. H. -. 19.. S. P. Ibid. pi. 1 94. cites 2 R. ■;.
1-.. 2 H. Hift. PLC. 270 cap. 5 5 . cites fame Cafes. S. P. Co. Litt. 158. a. (I) Bnv contra if he
had challenged for Caufe, and the Juror found indifferent, ar\d fworn, there at tl is Day he cannot Chal-
lenge him peremptorily, but contra at another Day ; for now it [liatl be intended that he had Caufe to chal-
lenge him peremptorily coming of later Time. Br. Challenge, pi. -5. cites 14 H. 7. 19. But if a Man
challenge him for Caufe, he muft fhew a Caufe happen'd after the former Swearing. 2 H.Hill. PI. C.
2-0. cap. 55.
So where /t Man arraign d of Felony upon hdiBment Challenges all the Jurors for Caufe, xhexe. when it
comes to the Perufaibf the PaVvel, he may relinquifli it and challenge pereruptorily. Quod nota. Per Cur.
Br. Challenge, pi, 86, cites 57 H. 6. 8.
12. If a Juror is challenged for Favour, and found indiferent ; after and
before that he is fworn he cannot be challenged for the Hundred. Br.
Challenge, pi. 83. cites 9 E. 4. 16.
. 13. If tha one Party challenges a Jaror, and the other not, and after he The De-
who challenged releafes his Challenge, the other may well challenge i Per mandant
Cur. Quod nota. Br. Challenge, pi. 83. cites 9 E. 4. 16. 'ajur";!id
w hen the In-
queji was perufed, and they came to him, the Demandant releafed lis Challenge ; and then the 'fenant chal-
lenged him who did not challenge him at the firfi, and yet good, and he had not loft his Timif, and io his
Challenge fhall be tried; by the Opinion of the Court ; quod nota. Br. Challenge, pi. 86. cites 57
H. 6.S.
So if one be challenged by one Party, if after he be tried indifferent, it is time enough for the oiLeii'
Party to challenge him. Co. Litt. 157. b.
But where a Juror is not challenged by one Party who had fufficient Caufe of Challenge, and after-
wards is challenged by the other Side, and afterwards the Party does releafe his Challenge ; in that
Cafe the firft Party cannot challenge the fame Juror again, becaufe be did foreflow his Time of Cha'-
Icnge, and he had admitted the Party for to be indifferent at the firft. Godb. 254. pi. 525 Mich 11
Jac. jn C. B. Candcn v. Symmons.
14. If the Party does not challenge on the prjl Pertifal of the Pannel, he
Ihall not be fufter'd to challenge it afterwards. Quod nemo dedixit. Br.
Challenge, pi. 2. tites 27 H. 8. 2. per Fitzherbert. Quod nota, fays 37
H. 6. 8. was contra.
15. Yi^i Jury in Attaint ht in Part fworn, and in Part not, by which
they remain, and at another Day one of thofe who was firfi fworn is ch.Tl-
knged, he need not fhew Caufe of later Time immediaiely^ till ail the Pan-
nel
276 Trial. J
ml be pmijedj and then the ihewing of fuch Caufe Ihall be time enough.
By all the juilices in C. B. Dal. 11. pi. 10. Pafch. 7 E. 6. C. B. VVy-
born's Cafe.
If the dial- 16. Defendant challenged the Jnay, ilahich was affirm'' d ; he Ihall \k
lenge to the not now challenge the Polls, v^'iihontpewing Canfe at the Cummencemeiit^
Array be ^^^ ^^^ Plaintiif may i per Cur. Dal. 24. pi. 3, 4 & 5 P- & M.
found againlt ■' ^ i i .^ i -
the Party ' . ■
that take^ it, yet he fliall have his particular Challenge to the Polls. Co. Lift, i 56. b.
S. P. For 17. Challenge to the Jurors of the Grand Ajjlfc fliall be taken before the
after they Ji^turn of thcm^ (viz..) when they are elected by the 4 Knights ; per
^nL''cou'n, omnes JulHciarios. Dal. 68. pi. 36. 6 Eliz. Squirrey v. Read.
there cin-
not be any Challenge taken to them. Co. Litt. 15S. a Cm)
18. In Replevin the Plaintiff" challenged a Juror for the Hundred, by
>vhich it was tried that he was not a Hitndredor, and the Clerk wrote
(printer H.) upon his Head in the Pannel ; and after this Trial the De-
fendant [aid, that this Juror -was at another timefworn in this Matter, and
pew' d the Record; and yet he was not received to lay this, becaufe he
faid it too late, and the Court ex Officio cannot aid his Negligence.
Eendi. 263. pi. 274. Trin. 17 Elii. C. B. Waters v. \\'allh.
19. A Juror was put hy after he was /worn, becaufe of Kin to the
Plaintiff' &c. Clayt. 78. pi. 130. Spoford's Cafe.
20. He that has divers Challenges mult take them all at once, and the
Law fo requires indifferent Trials, that divers Challenges are not ac-
counted double. Co. Litt. 158. a. (g)
21. There can be no Challenge to the Pannel or to the Polls, till
there be a full Jury. Rcfolved. Hob. 235. pi. 297. Vicars v. Lang-
ham.
22. A Pcrfon indiBed of Buggery challenged one of the Jurors, who
was the Foreman, and was fworn, and inarlid fworn by the Clerk before
the Challenge was heard by the Court ; and becaufe the Attorney-
General would nut ajjcnt to alter the Record, the Challenge wasdifaliow'd.
'Ci-o. C. 291. pi. 2. Hill. 8 Car. B. R. Hopeftill Tylden's Cafe.
23. If the Defendant does not appear at the Trial when he is called, he
lofes his Challenge to the Jurors, altho' he does afterwards appear.
Trials per Pais 146. (175)
24. All Challenges mull be taken before the Jurors are fworn. Trials
per Pais 145.(173)
Challens;es. In what Caies he who challenges
*o
ought to JIxw the Cauje immediately.
Trials per i. Tif tIjC 2)Eftnt!iint challenges the Array which is found againft him.
Pais 154. \^ anU tljC arcaP affirm D, and after challenges a Juror, t)C Ollffljt
* Br chai to fl)Clu tljcCaulc imnieoiatelp. * 33 D. 6. 21. 27 3^. s. 26. '£>, 3 €U
lenge pi i6. 20I. 66. 7 l|)« 4. 41. Ij. 46. 2o ^ff. IS- ^9 Sff- 6. aIl)UDffCD» 43 <£» 3.
cites s. c._ cijallenge 93- 22 c* 4. CdaUcnrje 61. 7 j^, 4. 41. ij, 46.
S. p. But
contra if he challenges thePolls, withut having challenged the .4iray before ; for in fuch Cafe he fl-all ftay
till he has pcrufed to the End of the Pannel. Nota the Difference. Br. Challenge, pi. 14-. cites 45
Aff 46.
2. cf)e
Trisil.
277
^ ■ I 11 -■' -■ !■ ■ ' '* " ■ — — ^
2. C-fjC T'lme LilU), it aker the Challenge taken, and before Trial, Trials per
he releales his Challenge ; fot tW 10 Ul UatUrC Of 3 ^tlal, ttiafmilCl) f.f !x '*
asi Ije confcfTcs l)i.3 Cljallcngc not goon» * 27 Jl)* s. 26. Conrra 17 1 Br chai-
j), 7. 3a»4I.b* ^ lenge,pl.6.
cites S. C S. C. ciied Biilft. 1 14. Pafch. 9 Jac. in a Now.
3. But if tIjCtC arc 2 Defendants, aitU one challenges the Array, and Trials per
after he and the other challenge a Juror, tIjC OtIjCC fl)all llOt fljClU IjtS T.''^^'''^
Caufeimimriiatci}?* * 33|).6. 2i.u» ♦Brchai,
lenge, pi. 16. cites S. C.
■ 4- Jf 9 of the Jury are fworn, and 2 are challenged, tho' there is noc
anv other Juror, fo tljat It appcat?! tJjat tljetc caunot bt n full lurp,
jjct tljc Caufe of tfje Cl^allciujc ougljt to tie fljetiin iinmcniatclp, be-
caufe tIjc fame Jucorsi arc to uc rcturnco again, anti tijen tljep can=
not be cljaUcnpo for tIjc fame Caufe, but for anp Caule after* ^»
II J'fl. 13* B, bttWmBoveraf!dHorJemajji\1i]llHQtp,
5. 3if ibnie Jurors are fuorn, and there are not fufficienr, bv which Trials per
a Tales is granted, and at the Day of the Return one of the iirit Jurors ^*'^' ^'
is challenged, ijc ouffljt to fljcioCaufc Of Cfjallcnsc immcDtateli?, ijc i ^VvT^r
be(nsfu3orn at anotljer Cime* p* i6 3a» Id. E. betioecn Gai^ne/, mLedhy
Dennis, and Dame Relic aQ jUDSCU* Jt). 40 (Jcl* 0l5* E. bCt'O^CCU CltJJord Challenge
andCavendtlh. when y/r
■', were Jworn,
and therefore 7<i/ci w/jy atuarded reuirnahle &c and iif the Day the Defendant challenq'd one of them wha
was challenged before. Brian and Vavilbr faii, Then you ouglit to (hew Caufe immediately, and al/a
Caufe anftng of later I'ime. Br. Challenge, pi. 75. cites 14 H. 7. 6.
6. 3!n an A£lion between the King and a common Perfon, CJc} fj| jjj] See (Id. 2)
Indiamentof Barretry, tljC DCfCIlOant, if IjC CljallCntXCS aUV JUtOr, Sl ", "
ouolit to OjetD Caufe immcDiatelin LS), 15 la. 3" E. fotterfdi'^ PalM"
Cafe aontogcD, becaufe it iss apinif tlje Einn;* £0* n Ja, 03. K* (164)—-
Scmi^Ca^t aDjIlDgCD. The Detent
7- So in an Attachment upon a Contempt againK a ptlOt, fOt nOt f "' '" ^f"'
rcceibinn; to a Coronp Ijmi to luljom tljc %Mm Oajs mW\ it, in an r„7JL" kL
Mm upon it betmeen tije iRmg anb tfje iprior, if tIjc ^i^rior c!jal= challenged /
Icna:cis a Juror, Ijc ougljt to fljclu Caufe immebiatclp, becaufe tljc J"'or, and
Kinu 10 J^artp* 38 an; 22. ^jDmbgcD. ' was com.
8. tCfje li'.me JLam in a Preleutment of a Nufance. COUtta 19 M. ^el hk
6. l^Dnnttell. . Caufe im-
9. But in an Inquell between the King and a Stranger, if tljC^ttantJCr mediately,
ctaUniecsi a Juror, be ig not compellable to fljeiu Caufe iinmeriuue= t?''"^^ '^^
IP; for in tljiis Cafettje i^ino; 10 not but as a common Ipecfonof tljc p'^"? ""tr
^calm* 6K- 2. Cballenge 105. i2)ecCunanu challenge,
pi. 141. cites
5S Afl". 19. Where the King is Pjrtv, if the other Side challenge a Juror, he ought to pew the Caufe
ci his Challenge immediately, and two Triors fhall be chofen, viz the 2 Foremen, which are fworn;
and they are to inform the Court whether for that or any other Caufe, the Jury challenged is indif-
ferent or not. I Built 194. Pafch. 10 Jac. Anon.
When a Prifoner challenges for Cauie, he ought to fliew his Caufe prefcntiv, beciufc it- is the
King's Suit. I H. 5 10. b. ;8 Aff. 22. But fome Books are, that he fhall not fhew Caufe till the
Pannel be perufed. 6 R. 2. Challenge 105. But he muft fhew all his Caufes together per 24 Eliz.
C B. BradvCt'bCafe 2 H. Hifl PI. C. 274. cap. 56.
10. 33 Ed. I. Stat. 4. Ena£ls, That cf Inqiieji- to he taken "wherein the^^ an Infor-
Ktng is Party, not"<aithJlanding it be alleged that the Jurors or fome of them ™"°" °f
be not indifferent for the King, yet fuch Inqnefis jhall not remain ttntaken kTup^.s^' ^ *
/or that Caufe ; htit if they that fiie for the King will challenge any of thofe Counfel
Jtirors, they jhall affign a Caufe, and the 'fruth of the Challenge pall ^^ challenged a
inquired of ■] according to the Cufiom of the Court. Juroi", atid
'■ ■' ° _ ■' ■' were prefs d
to fhew the Caufe ; for this Statute takesaway the general Challenge, Quia non funt bnni pio Rci'e.
Bu: all the Court, except Wylde, who feemed tob- of another Opinion, ordered the Pannsl to be ftril
4 " gwns
278
Trial.
gone thro" with, and that if there were enough, the King is not to fhew Caufe. Vent. 509. 310.
PdfcVi. 29 Car. 2. B. R. Anon.
In an Information for taking away the Ld. B 's Daughter, the Counfel for the King chalhngeA feme
tf the fury ; and it was infiftcd for the Defendant that this Statute requires that the Caufe of Challenge
ought to be fhewed prefently, and to inforce the Counfel for the King fo to do, the Defendant's
Counfel challenged Touts paravaile. But refolded per tot. Cur. That by this Statute the King ought
to lle-LV Caufe of his Ch.xllenge, but mt before all the Jurors are called over ; for if there are emugh befides
thofe who are challenged, then 710 Caufe pall be Jhetva of that Cballeiige. Thereupon the Defendants re-
linquiflied their Challenge, and the Jurors found the Defendant guilty. Raym. 475. Mich. 34 Car.
a. B. R. the Lord Grey's Cafe. Skin. S2. pi. 25. S. C. accordingly ; but that the Defendant
muft fhew Caufe immediately, and the King muft fhew Caufe before the Jurors are drawn, and can-
not challenge * peremptorily. 2 Show. 218. pi. 225. S. C. but S. P. does notappear.
* In an Iiidiftment for Murder, 5 JulHces of B. R. held that the ^een might challenge peremptorily
viithout Caufe fhewn, but upon fending to C. B. the Juftiees there were all of a contrary Opinion^
Moor 595. pi. 809. Pafch. 55 Eliz. Savage v. Brooks.
It feemsto be clearly fettled at this Day, that this Statute being general, extends as well to all Cri-
minal as Civil Caufcs: However, if the King challenge a Juror before the Pannel is perufed, it is
agreed that he need not fliew any Caufe of his Challenge till the whole Pannel be gone thro', and it
appears that there will not be a full Jury without the Perfon fo challenged. And if the Defendant, in
order to oblige the King to fliew Caufe preiently, challenges Touts paravail, yet it hath been adjudg'd '
that the Defendant fhall be firft put to fliew all his Caufcs of Challenge before the King need to fliew
any. 2Hawk.Pl.C. 415. cap.45. S. 5.
•j- So it is in Keble's Statutes, but in Raftal it is (After the Difcretion of the Juftiees)
Note, where n. Nota by the Court for a Rule, that if after the Challenge taken to
^A^ ^^^v."~ ^^^ Array, and two Tfriors are eJedted, and fxjorii, and the Jury returned
challenge found to be indifferent, afterwards the Defendant who challenged the Ar-<
the Array, ray challenges the Jurors by the Polls, he ought then to put in, and toftjeiv
two Triors the Caufe of his Challenge prefently. Other-wife it is ivhtre there are no
arechofen Triors fivorn ; there he is not to Ihew the Caufe of his Challenge until
andVworn"' ^^^ Other Jurors, which are not challenged, be fworn. Bulft. 113. Pafch.
and find ' 9 Jac. in a Nota.
them indifte-
rent, afterwards the Plaintiff challenges fome of the Jurors by the Polls, he is not to fliew the Caufe
of his Challenge prefently, bur to ftay till the Pannel be perufed, and all the reft fworn. But if the'
Defendant dochallenge by the Poll, he is to fhew the Caufe of his Challenge prefently ; and fo is the
Courfe and Prattice, and fo the Difference is where the Plaintiff challenges by the Poll, and where the De-
fendant after the Array challeng'd, and by the Triors found to be indifferent. Bulft. 114, 115. Pafch,
J) Jac. in a Nota.
The Defendant firft challenged the Array for Confanguinity in the Sheriff to the Plaintiff; and this
was tried againft him. Then he challenged the Polls ; Sed non allocatur, without fliewing Caufe im-
mediately for every one as he challenged him. Mo. 846. pi. 1145. Mich. 15 Jac. Luke v. Gierke.
(N. d) Challenges, ^t whit Time he ought to ftieW
Caufe.
See (M.d)
(S.d)
Trials per I- 13 ©tUiccit commcsit perrons, if tijc one partp cijaUcnircei a 3itt^
Pais 195. Ij tor of tije priiicipnl I!3annel, Ije omxljc to fljciu €n\\k before
C164) the Tales ftiall be peruied. ^. 22 3ia. 15. % betlUCCil tlje King and
Stare affCeCll.
2. [So] in a Traverfe of an Office, toljicl) tnaS fOUnU fOt tfiC King, if
tlje J^iitn; cfjnllenn;egi a 3ttcor of tije principal pannel, it fcemjs tljat
Ijc ougijt to fljeu) Caufe before tlje Calcsi fljall be perufen* 90. 2 1 3ia*
15, E. betuiccn tlje King and sttire. tljis U)a0 3 Doubt i but tdcre
for tljc prefcnt one of tljc -^Dale^ tua^ fuiorn UJitijout njcujiuo; Caufe*
(O. d) Chal-
Trial. 279
O. d) Challenge to a Juror. Drawn. In what Cales
he Ihall be cira^fi 'without Cauje Jhewn of Challenge,
X T if Defendant challenges the Array for Favour, and Plaintiff alfoBr. Chal-
' I challenges, without Ihevving Caufe OfCljaUCUSC, tljC SttavfljaU |f"f/'sP}.'^^
be qiifJ^)'!'* 8IP.4. 22. u, anitmscOi but tijc Odoou faps, Qpod^b^t fays,'
mirum. . ^ ^ ^ ^ _, Q-^od No-
ta, inftcad or Quod rnirum !]
2. If tIjC Challenge of one Party and of the other be peremptory to jf ^oth
a luror, ijc fljaU bc otaum inimeriiatelp* 3 ih 6. 38- b, 20 aCT* 1 3- Panies chai-
*^ lenge a Ju-
ror, he fliall be drawn immediately. And nota. That Challenge may be releafed for the King. Quod
nota bene. Br. Challenge, pi. no. cites 20 Aff, 13. Trials per Pais 135. (164)
3. So if tljC CballCnge by the one be for Favour, and by the other Br. Chal-
be Peremptory, \)Z fljaU U ^imW. 3 Ih 6- 38- b» chfsYc
Trials per Pais 1 5 5 (.164)
4. Jf one Party challenges a Juror for Non-fuiiiciency and for Fa- Br. Chal-
vour, and the otlier challenges him becaufe he has nothing in the Hun- ^'^"^^^g^v ■
dred i tljo' tb(!3 laft Cljallcucc be not peremptorp, fdc tljo' it be And that i™
fount!, pet Ijc iball not be ouftcn of tljcl^anncl, but t)e OjaU be Dratnn, fuchCafe
becaufe ije is cbaUanseb bj? botl) l^Jartiejs* 3 rp» 6. 38. b* 39- Curia* ^^';^[^^'jj*
by both Parties, he fliall be drawn without being tried. And fays. Sic vide, that a Mari fhall have z
or 3 Ch,-!tlep,?es together ; for Chal lenge j;;.7// not be fnld double ; and it is the common Praftice to take all
tl;e Caufes together. Quod nota.
5- %t an Iiiqueft be taken by Default of the Defendant, and Plaintiff* Br. Chal-
chaiienges a Juror, be fljaU uot be btatun loitljout Caufe fljeinn ; fot J-^efz^i'f
t!;e Court ij3 tbe sb Perfon inbiffcrent, tljo' S>efcnbant ba0 mabe ,4. s c
5:)cfault, *2 5X4i5- abjubffcb* Contra 1 28 aif* 42- That /;;?«,/?
■was awarded
for Defiitdt of the Defendant, upon which the Plaintiff challenged federal Jurors, and the Clerks would
have drawn them without Trial, becaufe the Defendant had loft his Challenge. And the Court
would not futfer it, but tried them ; by which feveral of them were ouiied, and fcveral fworn.
Quod nota.
t It was faid by 4 Clerks, viz.Prothonotaries,as it feems, That he againft whom Affife is awarded by
Def3ult,'fhall not have Challenge to the Affile. And there it was agreed, that in this Cafe if the Plain-
tiff challenges any Juror after the Affifc awarded by Default againft the Tenant, he ftiall be drawn
immediately. Br. Challenge, pi. 129. cites S. C.
6. Jf a Juror be challenged by one Party. for Favour, and theRefi-
due of tIjC JUrp charged to inquire of the Favour, if tIjC other will
after alfent tljat'ljC fljall be btailin, \)Z fljail be drawn before any ^"er-
dia gibCn. !?♦ i6 31a. 05* E. Gahrld Dennis's Cafe, abjUbgCb.
(P. d) Chal-
Whei-e In- 6. Where Inquefl is awarded by Default of the Defendant, he fhall not
queft is j^^yg Challenge, or fay any thins; in Evidence. Br. General Iffue, pi.
Defluk,/ 10- "^es lo E. 3. 32. and Fitzh. Enqueft, 47.
j4Biou per'
fonal, there the Defendant has loft his Challenge ; but he Ihall give in Evidence as well as the Plain-
tiff. ' Br. Generallffue, pi. 40. cites 5 E. 4. 3J.
see(Y.e. 3) (Qd) Challenscs. h luhat yi^iojis.
pi. 2. \ ^v^ -/ o
Br. Chal- i. T|5 9 Certificate upon Affife, if it bC taken by the firft Jurors, \\Q
jenge pi. j^ Cljalleiige map He to tljem, faecaufc it ijs tlje fame Inqueft, aiiD
s.'c a"d in fuel) pugijt ass tfjep toere ctjarscn before* 12 1|). 4. lo.
lays Ideo
Qusere, if any of them were attainted upon other Suit. Br. Challenge, pi. 200. in abridging thi.s
Cafe fays, that in a Certificate of Jjf'fe, which ought to he tried by thefirji furors, and by others, the fir fi
"furors maybe challenged by Matter coiitiiig of later 'Time, as by Attainder after, or fuch like ; per Norton,
and by fome econtra; for they fliall be as Arbitrators of the firft Verdidt, and Ihall only be join'd 10
the Inqueft.
2. In
280 Trial.
( P. d ) Challenges; Vfon ijohat hqiiefl Chalknge
may be.
Br Error, j. T j^ jjjt 31nciUeIl before the Sheriff to inquire ofWafte, tlje Array
g.d''""' 1 map lie djaUengco. 2|),4. 2.ij.
The Writ fliall be, That the Jurors be not of Affinity either to the one or to the other. And the
fame Law in Rediffeifm. Br. Challenge, pi. 27. cites S. C. Trials per Pais 135. (165)
See Co. Litt. 2. And fo Cfjalleiitje map De to the Poiis. 2 1^, 4. 2. b» JToc the
ButwhT;; ^^^"ff isj mnz tmzm.
Writ of Inquiry of IVafle is awarded by Default oF the Defendant, a Man fliall not have his Challenge id
the Polls, and yet Attaint lies ; quod noca. Per Newton & Pallon J. Sc Markham & Portingt. Serjeants.
Br. Attaint, pi. 39. cites 21 H. 6. 56.
Trials per 3. But {n jjn Inqueft of Office as Writ, to inquire of Damages, HO 1 i
0 5) ' ' ^' Cljallenge map be to tlje arcap ot poll^* 2 i^, 4. 2. b»
Br. Challenge, pi. 66. cites 21 H. 6. 56.
4. 3!n Writ of Right a Cftallenge map be to tlje poll0 of tljc 4
Itntgljtsi retunt'D* 39 €♦ 3- 2. b.
Trials per Pais 135.(165) The ^ Knights, Elelfors of the Grand Jjjlfe, are not to be challenged ; for
that in Law they are Judges to that Purpofe, and Judges or Jufticcs cannot be challenged. Co. Litt.
294. a.
Trials per 5. Jjt Affife, if Witnefles come to try the Deed, ttO Cfjallettp Of
ff'^ ■?5- collunge map bctad'cii to a ttBitncrs, bccaufe tJjc ©cctiift fljall not \
The ver- be tccnueti ftom tljc Jtaitncac^ of tlje amfc* 23 m. n. anjuogeo* '
dia fliall be
given by the AiTife, and not by the Witneffe.s. Br. Challenge, pi. 1 1 5. cites S. C. ■Br.Teftmoignes,
pi. 12. cites S. C- S. P. Co. Litt. 157. a. (i)
Trial. 281
2. In a Proprietatc Probanda.^ and a Writ to inquire for IVaJie, the Par- Trials pet
ties have been received to take their Challenge. Co. Litt. 158. b. ff^M^'"'
(R. d) Challenge. Vpoji njofjat Ijjm a Challenge may piea belongs
U„ not to this
'-'C. TT 1 1 ...
Head, but
rather to
(Z. d) or
I. T JT one of the Challenge of the Demandant, and another of the (Y. d. 2)
I Challenge of the Tenant, are chofe to trv the Challenges, tlO T'^^P'^'"
Cijallcnijc can be to tfjofc %xm% * i rp, 4- 1- U» hTZ°s,L
Challenge
to the Triors, in what Cafes.
* And tho' it was ohjefted, that he of the Ch;illenf;e of the Demandant was kis Son and Heir, vet non
»llocatnr, becaufc it was upon the Trial, and not upon the liTue ; and yet the Tenant took Bill fign'd
thereof to have Advantage of Error. Ciusre Ideo. Br. Challenge, pi. 55. cites S. C.
• ( S. d ) Challenges. Trial. At what Time.
Immediately.-
I- T if a Party challenges the Array which is affirm'd, and after chal- * Br. Chal-
X lengesajuror, IjC OUgljt tO fljClU CimfC imUICtliatClP, aim It 1<-:"K<-' pM!^
njtHl be tncD tmnictiiatelj). * 7 !)> 4- 41- b. 46- 43 ^IT. 64. aoitiHs'O* T,-iai7ue;"
-2e.4- Cijallcnsc 61. P.US.55.
C165)
2. But OtljCtUJifC it is of the other who does not rake the Challenge. * Br. Chal-
' 7 D» 4. 46. 43 aiL 64. 22 e* 4- CljallCngC 61. lenge.pl.^a
circs " rL. 4^,
41. Trials per Pais 195. (165)
3. In Account the Plaintiff challenged a J'Jror, hecaufe he icas Tenant
to the Defendant, and -ivithin his Diji/cfs. The Defendant faid^ that all
ivho are in this Hundred are hisTenants, aud-'juithin bis Dijlrcfs^ by which
he prajd that tire Decent Talcs might be a-j^arded of the Hundred next ad-
ijoining i and by feveral this ihall come by Return of the Sheriif after-
wards ; and yet, upon great Advice, it was a-juarded that itpould be tried
'immediately; and fo it was, and the Triors faid that there were enough in
the Hundred who were not Tenants to the Defendant. Br. Challenge, pi. 9.
cites 3 H. 6. 39.
4. yit the Venire Facias ^ Alias the Jury appeared, and all were Jlruck
Mit^ except a few who made Default ; and the Defendant would have had
'thofe who appeared to hai'e tried thofe new who made Default^ if they were
fiifficient i & non allocatur j for they fball not be tried till they appear : For
' it may be that fome are now fufficienr, which will not be luiTicient at
.^ the Day ; quod nota. Br. Challenge, pi. 13. ciccs 27 H. 6. 4.
5. A iaior zcas challenged for A/alice, and Jound indifercnr, and when
he was coming to the Bar to befworn, he faid that tho' the Plaintiff had been
a falfe Harlot, yet he would fay the Truth again/} her; by which ffje prayd
■■that he might be fi ruck out. Per Fitz.h. He has been once iound indiife-
rent, fo that \\q. cannot he tried again-; by which he was fworn. Qiiod
nota. Br. Challenge^ pi. 4. cites 27 H. 8. 21. " " -' ' '
4 C ('J', d) Ch.d-
;82 Trial.
* See cx. d) (T. d) Challenge. Triers. [Trial.] * Hoiv it is to be
made. [Which lliall be tried firft.]
Trials per I. T jf one Challenges for Favouf, and the other becaufe he has no-
Pais 135. Jl thing within the Hundred, (admitting tl)at i)e fljaU ItOt faC
^''^J) uraiuit) tlje CijaUcngc of fjtm uiljo fica tooH tlje Cljallcngc fljall be
tried firll. 3 i|), 6. 3S. b.
(U. d) Challenges. In what Cafes a Chnlhige or ^J^
jirmame by one ih^WJer'ue for others. \
S.P. Br.Chal- 1. T Jl5 Treffiafs againfl 2_who plead to MTue, aitU a ©CltfrC faCl'aSi IlS
lenge, pi. 26. 1
hamTcJuod ^^^"^^ challenges tljC attaV, and found for him, tl)i0 fljaU quafl) tljC 9t-'
jenge.pl. 26. Jj^ IGtUtlVU, tijO' One Defendant accepts the Array good, pct if the
_es
non ne^-"" ta)? agatitft all. 4 ^» 4- 4-
tur.
Trials per Pais 136. (166)
In Jpfeal a- 2. "$}% Appeal againfl Principal and AccelTory, who plead to Iflue,
iigainfi /eve- ^^f^ Qng j^enitC ftCiajS i!3 return' 5, (f tlje Array be qualh'd by the
''f' Tj°k' , Challenge of the Accelibry, the Principal i'aying nothing, it {Ijall b0
&fty,anc, m^ aPlUft faOtlj. 4^-4- PU l8. lO f). 4. 5.
returnable againfi all, and one challenged prempmly. And by all the Juftices of both Benches, the Ju-
Tor fliall be drawn againft all, becaule it is a joint Venire facias, but if it had been a feveral Venire
facias he might belworn againft the others ; note the Diverfity. And yet Covin may be in the Phin-
lifF and one of the Defendants to Chalknge peremptorily, to the Intent to keep the other in Pi i-
fon Br Challenge, pi. 84. cites 9 E. 4. 2-. Br. Venire facias, pi. 32. cites S. C. And fays thar
afterwards the Plaintiff challenged the Array, and it was quafli'd. S.P. Co. List. 1 56. b. S P. 7.
Hawk. Pi. C. 40- . cap. 41 . S. 9.
Jnd fo fee clearly that a Man may Challenge peremptorily in Jppenl, and jj a Juror is found fa-vciir-
ahk a^n'mft feme of the Ph'wt'tffj, he f»all be liraiin aeainfl all ; jor their Title is joint. Contrary it is of
the Defendant ; for he may be favourable to the one and not to the other. Br. Challenge, pi. S4. cites
But at the Gaol Delivery, if feveral are to be put Upon an Inqueft, and one challenges premptonly,
thisfhall not ferve for the reft ; for tiie I 'enire facias is 7:ot betnveen any Per/on certain, Br. Venire ficias,
pi. 32. cites 9 E. 4. 2-.- S. P. 2 Hawk. PI. C. 407. cap. 41. S. p. But the Serjeant fays, he does not
find that thiscan be done in any other Cafe.
3. "S'W Praecipe quod reddat againft 2, if tfjC one pleads in Abatement
of the Writ and the other to the A£lion, tIjO' one Of tljC DCfcnDnntlS af-
firms the Array, pct tljE OtljCt 1118? CljailCHge It i fOt tljC OllC CnitUCt
ntfinljcrit tljc otDcc bp lji0 pica. 9 P> 6. 48. b.
This Chal- 4. So in Formedon by 2, if tljep ate at Wiilt U|30n CIIC Jffllt Ulitfjtlje
lengeandthe i^j^gnaUt, aUt t()C one will have a |uror to be Iworn, pet if tljC ether
Sfbeex challenges him ije fljaJl beHtatoni ifac Iji0 Companion cannot oirin^
amined by Ijetit |)im* lo p,6. 16.
the Judges ;
and if the Caufe be good, he fliall not be fworn. Jenk. 1 14 pi. 22 cites S.C.
If the one Defendant challenges a Juror, and the other fays, be he fjuorn ; yet if he be found favourable
againft the one, he jhall he ftruck out, and fhall not be fworn ; no^vithftanding the Prayer of the other.
Br. Challenge, pi. 16. cites 53 H.6.2I.
< So
^-' •• • (I ■»■ ■ ■ ■ ^.^— I ■ , ■■II. ■■ _ ■■ i.^M.
Trial. 283
5. So I'll ti)i0 JIUlC, if tljC Tenant challenges a Juror, and one De- &. Chal-
niandant agrees to tijc Cljalleiigc to tl)Z Jntciit tM \)t fljall bc l>tatun,;-"ef f C-
yet the other Demandant may fay that it is by Covin bCttDCCU tIjC '^Z- jenk 114
nant anti Ijis Companion, ano tijc Coutn fljali bc tncD -, foe Oiss Com^ pi- ^z.citcs
panion cannot tiiQnijcrit ijmn lo rp» 6. 15. b. bp aU tIjc 3ufticc0* s. c.
6. But in Appeal by 2, ifDefciibaiit cfjalleiiffes a luroCvtiitHtbe sr. chai-
oncl^Iaintiffaiircc^stott, tljc otljer (ball not berecciijen to fap tljat ^™se. pi-
it is bP CoiJin , but tljC jf;UVOt fljaU bc HiaUin in Favour otche Lite Of s'c. ^
<l$l3aiU 10 |). 6. 15. b» So in Appeal
ofRobbery
againft two. Jenk. 114. pi. 22. Trial per Pais, i;6. {166)
7. Jtt Precipe quod reddat by 2, if tbC^ atC at JflliC, ailU'Ccnant Trials per
CljaUcngejJ tbC arrap bCCaUfC tbC SheriH" is Golfip to one Demandant, !*■"' 'jf;
anb the'one Demandant conlelles the Challenge, yet the other lliall fay '^' '
that it is not io ; ailtl it fljalt bC tttCD* 10 I), 6. 15. b»
8. 3in an action Of Debt againits. If tljc j.S)artic0 ate atjfllic, anb Br.chai-
one of the Delendants quallies the Array againlt him, becaufe it was made '^"S^> P'
lavourably againft him for the Plaintilt i but it liOa0 not fabOUtablp s C '^""
inabC againft the other Defendant. ^Ct bCCaUfC all iS bUt OttC mmz
facias, anb tljc arrai' niabc bp tljc fame C!3ailiff, ano tljc fame l^eo--
plc inipanneU'D, anb at tlje fame Dap, tlje aitap fljall betiuaflj'D
ajjainft tljc otljcr atfo, 43 3^* 36. abjubgeb*
9 3n Allife againft 2, if tljC one takes upon himfelf feveral Tenancy For otber-
of Parcel, aiib cljallcnscs a 3iutoi:, anb it 10 founb ttuc, Ijc fljail bc ''!Sm''!^,L
oitffcb tljo tbe otljec uioulb babe bim fujotn. 33 aiT. 4u ab= dive.re Ar-
)lttlfiCb» i'des upon
one Original,
ivhicli mud not be. And Stouffe faid, that if he who challengeH, and the PlaintifF, agree to cult ihe
other of this Challenge Qusere what Keraedy, and if it be (-onfpiracy. Br. (..iialknge, ul. 1:54.
cires S. C.
10. Jfa.bCintTS 2 feveral Writs of Debt againft 2 fe\eral Men, upon
bJljiCb tljep ate at IJlfUC, anb tbe sheriff returns 2 feveral Pannels at one
and the fame Day, and the fame People tUbO iOCtC impannell'd in the one
Writ were impannell'd in the other alfo ; ailb tljC SttaP in tlje Cne!©rit;
CballCnSCb anb llUalb'b, becaufe (t lUaiS made by the S'herirtac the De-
nomination of the Plaintiff; tljc otljct l^anncU fljall be quaflj'b alfa
luitbout CljallenBC m to tbat» 43 €♦ 3- Cballenoe 94-
11. In Aiiioii agamfi three ^ if the Liquejl be a-joartied by Default again (i
Vdco of them, they have loft their Challenge ^ and yet if the r/w(r/C/W-
lenges a Juror ivbo is dra''Jou^ hejhall be drainn againft all. Br. Challenge,
pi. 84. cites 9 E. 4. 27.
12. If there are 2 or more Defendants, and one challenges a Juror, and '*'Io '"-pJ-
Ihcws Caufe, and the other 'will not challenge him ; yet if the Challenge 1^" ^" ^''
be found true, the Juror fliall be drawn. And lb it happen'd upon an bal ;- pi
Indiftment of Felony in B. R. where 2 were indi£ted, and the oneii.s. Cby
would challenge the Jurors and the other would not upon the Arraign- ^^ ^^"■'e r-f
ments. Bendl. 58. pi. 95. Mich. 4 & 5 P. & M. Anon. ^dS'^^'
that in Jppeal in Trefpnfs, mid in Afftfe againft 2, who plead /e'Vei-nliy, and ojie "Joint t'enirc ftuiasis at^ard-
ed, if one Defendant challenges a Jitrot who is drawn ngaivfl hsm, he fhalfbe drawn aTlb againll tlie
others, when it is the Suit of the Party. Otherwile it is in Indictment, which is the Suit of the King, and
is feveral in itfelf. D. 152. b. pl.S. 2rl)innolbP auD (Sra^'s Cafe, three of the Jurv wereYworn
againft both, and Thymolby challenged others without fhewing Caufe or (.tying pcrcni^uir:]-,- and
Gray would not challenge them, whereupon T. was taken from the Bar, and ihc 4 challenped b'v T.
were fworn againll G. and alfo fo many more as made up 12. who found (i. Guilty. I'he JulHces of
both Benches thought the Trial good, no Judgment being given that the (uiors challenged ihou'd be
drawn, but that they fliould ftand afide for a Time, and were not difchaigcd by the Court. And the
I'en. fac. for the King differs from the Fen. fac. in Jppeal ; for tic lafl is S^tu juilla pffnii^le aStingnnt the
Plaintiff nor the Defendants &c. but for the King it is not To. And cites tlie Cafe of i H 5. 10. b.
that it was ruled by the Opinion of the Court, that a juror upon an Indirtnicnt n:ay be chnl enTd by-
one Defendant, andlland againft the other See. becaufe they are feveral i'.ji licl.'s aiid I'li-uclt^ i^ Lniv.
284.
Trial.
And if the ore of them had appe:ir'd in this Cafe, and the other Defendant liad made Default, yet
the Court may proceed againft him v, ho appears ; but otherwife in Appeal, ut dicitur.
(X. d) Triors of Challenges, //^/jo fli all be the Triors
of the Chalknge oj the Principal PannsL
Trials per I. T jf tljC Venue be of 2 Counties, and both Pannels challenged, tIjC
Pais 155^ 1^ cijoofci'is fijall lie one of tijc one pannci, anft tfte ot|)cc of tljc
V bV. chai-" otljcc panncu * -i^l). 6. 36. aojuoscti, u ii), 4' 63- Contra t n ji),
lcnge,pl.l7. 4. 63.
cites S. C
■f Two of the one County tried the Array and Polls of that County, and z of the other County tried
the Array and Polls of the other County ; and fhail not join till they arc fworn upon the Principal.
Br. Challenge, pi. 46. S. C. Br. Jurors, pi. 9. cites S- C.
Br. chai- 2. w\)m tlje A rray {$ cfjaiienijcti * it 10 ufual fcr tlje l^nnnel to tW.
I'^T'cite- '^'^^^^^^ i^"*5 If eberp one of tije 3'iiror0 be cijallcnsco fot one Caufc
s! c — or otijcr, tljcn tljc Iitit!cc0 tcmann of tIjc Parties uiijctljcr tfjcp M!
At the iiTue Ijiiise tljc 5^'^ ^"^d 9th to ttj), anQ If tljcp 50 net agcec in it, tljcn tW
ths-pLmniff ocuian'a of tijcm tuljetljer tIjc ^d and vch, and fo on ; ann iftljci) miil
7\ ^'"Id "^"^ '-^'^'^"^ ^^ f"^^J ^nnnci- of election, tfjc Court fliaii eiea. jFoc If
ftJZin one pattp lljali be fuffct'D to elect one, ana tlje otljcc anotljcc, tijiss
<ryhrs, by iuiU u i\ ^can0 tijnt ciicrp one lljall ijaiic Jji.s Cljampion. i6 e. 4.
which the «, J|^ 8.
Court faiif,
irke the third antf the Jixth in the Famiel out of ihofe S Perfom, and fo they did ; by which thofe tzi'o tried .
the Jrray and affirm'd it, and nfter tried thePol/s. Br. Challenge^ pi. 164. cites 4 E. 4. iS.
* Orig. is, Le Panne 1 ferra ufe d'eflier &ic.
Br. Chai- 3. Jf tIjc arrap be cljatleniixtJ, annpamtifForDefcnliantcIjal^
/-T'ciVes "itiw^ all, tlje Juaice0 uiai) ocner, tijat tljc Plaintiff ihaii chuie 3 of
s!c. And t^he Challenge of the Delendanr, and Defendant 3 of the Challenge of
zoftheju- the Plaintift, and ttjCn tIjC Plaintiff out of the 3 which he has elected,
rorsv;ereof fhall chufe one, and lb the other lljall chufe one, [ailDl tljCP fljaU ttP
SLt'and tijearrap. x8e.4.^8.
the one is fummoned and the other not ; both were fworn to fey the Truth which of them wa<; fum-
moned and which riot ; for the Party laid that he who firll appeared was not he who was fummoned.
Quod nota.
- Trials per 4. Or fit tljlS ^-^^Z, tIjC dTOUlt tO tl'J) tljC ^ttaP UtaP chofe 2 Triors
Pais, 195. according to their Dilcretion. 7 0^4.46. * 19 JJX 6. 9. 20 ^flf* 15-
S.P. But tf there he any -who are nit challevged ly eitlcr Party, the one P.irtv fliall chufe one of his
Challenge, and the other another of the Challenge of liis Party. Br. Challenge, pi. 40. cites;
H, 4, 46.
* Br. Challenge, pi. (5o. cites S. C.
9 Rep. ;i ^. in Cafe of the Abbot of Strata Marcella, cites S,)me Cafei, and. 9 E. 4. 5.b. 15 E. 4.
25.3. 4E 4. iS. iSE. 4. 18. a. 16E. 4-.b. 14 H. 7. i. b. 19 H. 6. 4b'. b. But that Trial of
any of the Grand Jury fliall be taken by the four Knights.
5. 3!f 2 Inquefts come lipOU an JlTUe out of 2 Counties, and both
challenged, tlje Ctial fljall nOt be by one Trior of one Inquclt, and
another of the other jtiQueft, becaufe tlje 0trai?0 are federal, anti
from tii^crfe OTountie^. 1 1 $). 4. 63.
6. But one of the Inqueft UtaP hZ fUlOm by Affent of the Parties, anH
tlje Court map COmmanO him'to chule 2 to thofe of this Array i and
they Ihall try it. 1 1 Jp, 4. 63.
r.And
Trial. 285
7. And of the other ^rrap, t!)C Court may chufe 2, anH tljCp ttjall
trnljl0 array, n rp. 4- 63.
8. 3|n a General Alfife, (f tljC ^Uf\\> l)C Cljallcnptl It fljall tJC ttieU '^,'' Aflire.
per le Circumftantes. 32 $> 6. lo. tl. l)p iFortCfCUC* cL'^S.'c.
9. But in a fpeciai AfTife, tf tfjc ^tray be cl)allcnn;cti ft OjaH be tticti bi-. A(nre,
by thofe who are impanelled only, ailO b^ UO OtfjCtSl* 32J[p» 6. 10. b- P.' 4°'-
Dj? ifOrtCrCUC, BTchall^
lenge, pi. 81.
S. P. cites p E. 4. 28. Bagot's Cafe.
10. 31ftl)e Array u cljalleitgcti, tt fljaltnotbe trfcti bp otfiecis tBait whether k
tIjOlC who are impanelled. 29 aff* 3- j^Ct CUtianU and"Sr/
miner, or in Kifi Prius. Br. Challenge, pi. 152. cites S. C. If the Array be challenged irt
Court, it fliall be tried by two of them that are impanelled, to be appointed by the Court. Co. Lite
l5S.a!cq)
1 1. Upon an 3i(fUC if tljC SherifF returns one Pannel, and the BailifFBr. Chaf-
of the Francnile another J^amleI, and both paunClS are challenged, it'™g'=>.P'-
iljall be trictJ bp faretgn miatjS, uiljo arc not ofettberof tlje I3an' s c"'"
ncii5» 31 air. 10. annioseo*
12. Jn Writ ol Right, if the 4 Knights are challenged, ftiliCet, 2
for Confanguinity and 2 lor Procurement, tbC 2 CljaUcngCU fOt J9r0=
ciircmcnt map be mabc 'Wmx^ of tbc COallciigcs of tbe otljcc 2, anD
tte otljcc 2 fljall be mane 'SCtior.s of tije CoiUfliisuimtP* 22 e*
3- 18.
13. Jn Attaint, if all the Jurors are challenged, tljC COUtt tttap
elect 2 janifjljtji of tlje pannel to be Prions, anD tljej? niaj? elect to
tijcm one mntgijt an5 a Serjeant. 34 aiT* 6.
14. @)ee 20 air. 10. a Cijallenge to tlje Array tuas tcien by the Co- pc chai.
roners. ^cooU CljallcnQe io8. fa^js €luoD mlrum ! 2iafl;26. A",|y'°'J*'
hiecaufe it was made by the Sheriff, who was of the Fee of the Plaintiff, and at his Device. And it is
faid Quod mirum videtur ; for it ought to be by Triors of the fame Pannel. Br Challenge, pi. io8.
cites 21 AflT. 10. And Ibid. pi. ill. cites 21 AIT. 26. that the Array being challenged as made at
the Denomination of the Plaintiff, was tried by the Coroners. And fays, Sic vide, that at this Day the
Coroners were Triors of the Array ; andthat 22 E. 3. it appears by Shard, that when the Array is
challenged for Default of the SherifF or his Minifter, the Coroners Ihall try it ; and when by Defaulc
of Bailitfof Franchile, the SherifF Ihall try it, or Triors elected by the Sheriff.
How mmiy Perfons,
This Title"
15 %^z Crial Hjail not be by more than 2, unlefs by Agreement Of belongs on-
tijei^artiesj* *2ie.4-59-b. 'Jnlt^J:
)enge, pi. 182. cites S C. S. C. cited BullF. 1 14. Pafch. 9 Jac. in a Nota. S. P. But when the
Qurt names 2, it may, for fome f^ecialCaufe alleg'd by either Party, name others. Co. Litr. 1 5S. a. (q)
16. |©ljen tlje Array {0 CljancnpH for the Mifprifion of the Office of Br. Chal-
the Sheritf or his Minillers, tljC COtOncriEi fliall ttpit* 22 aif. 3- ^^F'J^
17. [So] tDljen tlje acta)? ijs cljallcngeO for tlje ^ifprifion of tbe s. c thus.
Office, or Default of the BaililF of the Franchife, tljC €il)eriff fljall tt? viz. when '
it* 22 am 3- \"7 '\
challenged
in Affife for Default of the Sheriff or his Officers, it Ihall be tried by the Triors; but when it is
challenged for Default in the Bailiff of the Franchife, the Sheriff, or Triors chofen by the Sheriff,
Ihall try it. Quire inde at this Day. . -
4D is^mm
286 Trial.
if the M~ 1 8. J©i)Cn t|)C 3CCap ijS C!)anengCtl by reafon of any Matter touch-
ray be ch.i- ij^g the sheriii, it map be tcieo bp tije Cocanei;0. * 27 gir^ 2s.
r ""f^'ti e » 9- ^^'^ i^ «^s? ^^ ^i^^ ^'^ ^'J^ €ciar0, * 27 ^fl; 28.
20. An Array was challenged, and was tried by the firfi Juror, the
lafi^ and 071C of the M'lddk. Br. Challenge, pi. 205. cites 23 All! 18.
iTie Array 21. It' the Defendant challenges the Array ^ and ■will not agree to try with'
was chal- j^ i^juq JYominations, the Court lliall chui'e Triors of the Pannel, and the
V^n*f^^ Party fhall not contradifit it i and if after that the Iriors are [worn the
dant, and' Defendant releafes hhChalknge^ yet it he challenges the Polls, htJhaHpezv
two ^Triors Caiife immediately, as if the firft Challenge to the Array had been found
chcjen by the againft him, and thofe Challenges lliall be tried by the firft Triors ; and
'h"'^Iir° '-"^^ lo note that the Releafe of the Challenge, after the 1'riors fzvorn, pall not
and tQe' waive the prji Matter. Qtiod nota. J3r. Challenge, pi. 6. cites 27 H.
'itviors •were 8. 26.
challenged ;
theCourt ncminnted two other Triors, which were likewife chalk»gecl. FItzherbert and the Court Jaid
they would jiominate 2 o/fef Triors, and that they were to he alloiv'd, without any Exception to be takeri
to them. Bulrt. 114. I'afch. 9 Jac. in a Nota, cites S. C.
In Trefpafs &c. the Jury were ready at the Bar to try the Iffue, and it was moved, that the Sheriff
who return'd them held certain Land of the Manor then in queftion, and of which Manor the Plaintiff was
then poffefj'd. Thereupon the Plaintift" replied Not within the Diftrefs ; whereupon the Court appointed
Triors ; and the Defendant objefted, that all the Jury were favourable, and therefore pray'd Triors
de Circumftantibus. But the Court faid, they could not appoint other Triors in this Cafe but 2 of the
Jury ; and then order'd the 4th and the 7th to be the Triors ; but faid, that Defendant might refuCe
them and take others, if he would ; and he refufing the 4th, the ^d was appointed, and they found
the Array favourable, and fo the Pannel was quaih'd. Goldsb. 91. pi. a. Trin. 30 Elii. Blunt & Lifter
V. Delabcre.
22. It was faid, that a Challenge to the Array is no Part of the Re- ,
cord, but ought to be determin'd whether it be good or not hy the Jiidg^
hefore whom the Trial of the Caufe ftiould have been, if the Challenge
had not been taken, and that it hath been fo ruled upon ferious Advice m
C. B. And it was then likewife faid. If there be a Demurrer to a Chal-
lenge at theAfJifes, the Judge of Affile may determine it there, or over-
jrule it, or adjourn it to be heard at another Time. Style 464. Mich,
1655. Serjeant Bradlhaw v. Profter.
23. If 6 are fworn, and the refi challenged, the Court may allign any s
of the 6 fworn to try the Challenges. 2 H. Hilt. PL C. 275. cap. 36.
(Y. d) Triors of Challenges. J^^ho fliall be the Triors
of the Challenges of the Tales,
S. p. Bf. I. rTp]^(S Triors of the principal Pannel, if they affirm the principal
Challenge, J^ panncI, fl)aU trp all tbe ^^t%, 14 ?)* 7- 2- &♦ pcc 2, 3 3 ip.
^E 4. S'- 6- 21- b* 'mmm 34 jp* 6. 36.
S. p. Co.
Li:t. 158. a. (r)— loRep. 104. b. in Denbawd'i Cafe, in a Nota of the Reporter.
s. But
Trial. 287
2. But if they quafli tljc principal Zxtav, tljeii ti)ttz fl)alt 6e 2 neui f- ^ co.
Cnorsi of tijc Calcs cDafcii from tfje 'Wnlt^, 14 l;>» 7 2- b* crfpof now
it is as if there had been no Appearance of the principal Pannel. Br. Challenge, pi. 85. S. P.
cites 9 E. 4. 46. S. P. Rep. 104 b. in ©EnbalfO'^ Ca!e, in a Nota of the Reporter, cites j E. 4.
46. b. 14 H. 7. 1. b. and 55 H. 6. 25.
j 3. But 19 D. 6. 48. b» tijcp tuija qiianj'J tIjc principal men tlje ^nd tho-ic
vhen the principal Pannel is quafli 'd, the Triors of this Pannel are as Foreigners, and therefore canroC
try tiie Tales ; yet non allocatur, but the Trial of the one and the other held good. Quod nota. Br.
Clwllcnge, pi. 61. cites S.C.
4 Jn Aflife, if any of the Pannel are fworn, and after the Affife re- Br. Chal-
mains tbr Det-iuic of Jurors; Upon tUljiCf) a 'SDalCjS i0 aUiarOCl!, at t()C Jf^^JYc '"'
HCtnni of UJljtClj the hrll J urors are challenged for a Caufe lince, and alfo
the Tales are challenged ^ tljC 3UftiCC0 ma? CljllfC OHC Of tljC Ct)al--
icnije of tlje plaintiff, ano anotljer of ttjc <f ijallengc of tlje Dcfeiv
Uantj to be Crioris. 28 M. 44.
5. The Array of the Tales in Attaint was challenged, becau/e it was
favourably made at the Dcfwnu>iation of one of the Petit Jtiry^ and a good
principal Challenge i and the 1'riors of the principal Pannel tried the Ar-
ray of the 'Tales and the Polls ; for they were fworn upon the Principal
before, and therefore if there are feveral Tales they fliali not have other
Triors i quod nota. Br. Challenge, pi. 71. cites 14 H. 7,
6. Ti-efpafs agatnft three^ and the one challenged the principal Array y and
it v.'zs found agaiiiji him ; and then he and another challenged divers of the
Polls, by which he, who challenged the Array before, jhe-w'd his Catifes wime-
diately i but the other pcrufed the Pannel, without Jhewing Caufe, becaule he
had not challenged the Array 3 and alter the third Defendant challenged
the Array of the T'ales, and the Jirfi 'Triors, who tried the principal Pannel
and the Polls, tried the Tales, and not new Trim's ; Quod nota. Br. Chal-
lenge, pi. 16. cites 33 H. 6. 21.
7. When after the granting of Decern Tales, and O^o Tales, the prin-
cipal Pannel is quap'd, there the Trial may be only of Tales. lo Rep.
105. a. Mich. 10 Jac. in Denbawd's Cafe.
(Y. d. 2) Who Ihall be the Triors of the Chalknges to See (2. d)
the Jurors.
[i] S' TJF 3 Jury be return'd out of 2 Counties, and a Juror of one
X County is challenged tor Non-fufficiency of Franktenement,
apd fome 3!ttror0 are fworn of both Counties, tljiSi fljail bC triCO bp all,
bccaufc tijeir ©ertiict fljall not be febcral, tljo' tljcp \\i tfie otljer Coim-
tp cannot ftaue Conufance of tlje ifranfetcnemcnt tljcre* 4 ip,
4» I*
[2] 6. 3!f 10 Jurors are challenged by the Tenant, and one by De- Br. Chai-
mandant, and the 12th is fworn, ||)e tDljO i^ flDOm, antl tl)C OnC Of tbC ^^"^e. pf ??.
Cljallenoe of tlje Deniaimant, anti anotijec of tije CljaUciTgc of tlje s" p co-
venant, fljaU ttp it* 7 V^ 4- 1- Litt. 1 58."
. a. (u)— —
Trials peif Pais 145.(174") So wh ere the Plaintiff challenges 10, and the Prifoner one, then he
that remains fhall have added to him one chofen by the Plaintift'and another by the Prifbner, and thev
three fliall try the Challenge. 2 H. Hift. PI. C. j- 5. cap 6.
[3] 7.
288 Trial. '~^
[3 ] 7. And m tlji^ Citre tU QLomt map comnianu l)im, tuljo isJ
fujorn, to elect tljcm. 7 P* 4- i- t)*
Br. chai- [4] 8. And ioljen t\jz 2 CriocsJ Ija^e trieB one of ttjcntj all 3 fljau
60"^ dt« f"^?^ ^'-^^ ^^''^^ Cijallenge* * 19 $^> 6. 9- 20 air. 15-
s c.
Br. chai- [^j 9. And tD!)en in tl)i0 Cafe t'jep f)a^e trieti 2 of t\)m, tfjcn tfie
6o^cues ^' ^^° '^^'■^ challenged, lliall be ouikd, anD tljC OtilCt 2 fljaU ttptdeit
s, c. €!]anenD;e0 ann tlje CljalJengris of :t!)e EcBtiue. 7 ^* 4- 1- iJ. * ^9
ip. 6. 9. 20 air. 15-
Br. Chal-
(Y. d. 3) //7j^; Challenge they Jhall try.
[ij 10. TF an Aftion be depending between the Juror and one of the
\^ Parties, and he is challenged for this, and the other fays
that it is brought by Covin, tljC * %X.m^ lijall ttp It ; fOt tljO' tlje 9C=
feng'^ITf 9z. tton (Si of Eecorti, })et tijc Coijin i^ not. 38 Ih 6- 6.
cites S. C.
That in J§[e a Juror was challenged bec/tufe the Tenant had Writ of Trefpafs pending againfi him of elder
Late than the Jjj'ife , and returned before the Jjffe, and fo he is favourable. Choke laid the Writ of
Trefpafs was purchafed hy Covin, to the Intent that the J:iror pould not be fworn ; for it bears Dare jd of
April, which is in Principio Termini Pafchse, and it was returnable Octo Trinitatis.and the Return of
tliis is only 5 or 4 Days before the Day of the Affile, and is againft 4 Jurors, and againft no others, and
is of a Clofe broken in M. whereas the Jurors never came there, and prayed that the Covin be tried ; and'
fo it was, and found that it liviJ by Covin, and that the Juror was inditfcrent. By which Prifot put them
apart, and fwore other furor^ ; for it was doubted if there might be Covin or not, becaufe the Writ
of Trefpafs was returnable before the Affife, and not pending the Affife ; and therefore they could not
know the Names of the Jurors at the Time of the Trefpafs brought. — Br. Collufion, pi. zz. cites S. C.
. Trials per Pais 196. (165)
So if the Tenant and Vouchee are at IJftie, and Challenge by Covin, the Demandant, who is a Stranger tit
the Ifue, way for his Inierefi pray that tbe Covin be tried, and it fliall be tried 5 Per Littleton, but Moile
J. illud dubitavit. Br. Challenge, pi. jz. cites jS H. 6. 6. Br. Collufion, pi. 22. cites S. C.
See(X.d') [2] ii. 3if ^^^ ^^ Jurors are challenged by one Party or other, t\)Z
pL 4_and in ^attie^ fljall elGCt one of ijiis Challenge, anO tiie otljec of fjisi Cljal-
Ser?"'" lenge. 7$;. 4- 46- 13D.4-3- i2i!).6. i.b.
[3] 12. And tijej? fljall trp it, tijo' tl)e one parjp ium not agree
tijereto. 12 j|). 6. i. b.
K- [4] 13- But tijc)D fljall not elect eaclj one of tljem tof)om W 3tiijer=
fatp Ijas cljallenscn i foe tljiis map be iji^ beft iftienOt 13 V*^'
4. 12. b.
S. p. Trials [5 J 14. No Challenge map be to a Trior. 7 ]^. 4. i . !?» COntta 21
per Pais 145. ^^ 6. cOaHenp 38- Contra 43 C 3- Cljallcnsess-
(174) —
See(R. d) pi. i. in the Notes there.
If the 4 [6] 15. 3if a Cballenrje. be taKen to any of the 4 Knights returned
^'f'v " in Writ of Right, tlje Eeaoiie of tfje 4 i^ntffl)tsi fliaU trp t&e Cfjal^
S be ienge. 39 C. 3- 2. b.
challenged,
they fliall try themfelves, and they fliall chufe the Grand Jjpfe, and try the Challenge of the Parties.
Co. Litt. 158. a. (x)
[7] ip- 3!f one Party challenges all tf}e IJUtOtlS but one, and he is
challenged by the other Party, tljC 3iUftlCe0 map teftlfC tlje One Of tfjC
Cbatlenfiesofonepartpototljcr, to be -STrioriS, but tljep mai) aP
fip tlje 35 ^ 9tb. for peratiDentureljc tuljo tDajsc^aHengcObp tlje one
Ijjattp
Trial. 289
part? tuflsi fa\)aucalilc, anti tljifi m^ oane bp Jiaaj? of Cauttan, to
tfje Jiiitcnt tijat \)z fljall &e. of one of t!je €;rioc0» 21 ip, 6. C!)al=
lensc 3S.
[8] In Attaint cue of the Grand Jury alleged that he was Baronet and
Lord of Parliament^ and had a Phce there, atid fo ought not to be [worn ; * AH the
which was tried by 6 Triors, and yec Non allocatur ; for all the Court 3^g'"°1^ , '
held that they ought to be afcertained of this Manner of Challenge by ^ejii- "/ \^^ j^ '
ficationbyWrit, and by Mutter of Record. Br. Challenge, pi. 18. cites fhould be 55
* 36 H. 6. 46. H.6.46.a.
' ■ pJ. 8.
(Z. d) Challenge. Triors. Who fhall be Ttiors of the scs{Y.d.z)
Chalkngs to the Jurors.
s. p.
I. T Jf a JUCOt be CljalleniJCri, it fljall not be [trietl] by the Coroners, See(X. d)
I and a jury who is fvvorn. COlltCa 20 l^ff* 10. pl- i4 and
■*■ ■' •' the Note
there.
2. m\)m a Cljancngc is to tbc Array, antj tlji5 is trieb bp 2 Triors, if the /r/?
tijofc triors fljall tcp tljc Cljaltcngcgs to tljc ted till 2 arc ftuorn* 20 "f^^f^^^ ^^««-
yfl* 15- hnged, there
triors Jhall
be eleBed andfaorn, and if another be fzvorn upon the Principal, and after avcther is challenged, he jhall be
tried by the Triors, and the other who is fiuorn upon the Principal ; but when two are [worn upon the Principal^
and after others are challenged, they HiiU hi tried by tho(e who are fworn upon the Pi-incipal, and then
the two Triors fhall be put out, and (hall try no more. Br Challenge, pl. 203. cites 20 AIT 15.
S. P. Co. LitMsS.a. (s) S. P. 2 H. Hift.Pi.C. 274. 275. cap. 36.
3. If the Plaintiff challenges the Array of the Principal, add the Defen- Br. Chal-
dant the Array of the Tales^ there the one of the Principal and the other ^^P?>^-> p'^^j-
of the Tales Ihall try both Arrays, Co. Lict. i;8. a. (r) ^'^^'^^^ "'
(Z. d. z) Triors punljhed for What, and How.
1. T N AJfife the Array was challenged, and 3 Triors fworn, who continued
X all the Night, and would not agree. Per Cur. It they will not
agree, we mull take the Verdi£fc of 2, and command the 3d to Prifon, as
inCale of Inqueft; which Brooke fays does not feem to be Law. Br.
Challenge, pl. 133. cites 19A1C 4.
2. Inqueft was join'd between A. B. C. and others, and one challenged
the Arrjiy becauie it was made by M. Bailiff' of C. at the Device of M. who
was of Cotiiiffl with A. one of the Plaintiffs ; and two were fworn to try the
Panneland could not agree, by which they were conimanded into Ward. And
after came Thorp, and laid, that inafmuch as they were not fworn upon
the Principal, they ought not to be retained in Prifon ^ by which he lent
for them, and elefted new Triors. Br. Challenge, pl. 146. cites 43
Afl: 36.
3. Two Triors were all one Night in trying xf a Poll, and the next Day
gave their Verdiff, and took Meat and Drink by Affent cf the Parties. Br.
Challenge, pl. 12. cites 20 H. 6. 24.
4 E 4 The
290 Trial.
4. The miie was, whether the Lands in Queltion were Parcel of the
JManor ot A. or of the Manor of B. and the Court aivarded, that the Jury
Hiould have a Vieiv^ but that no Evidence potild be given to them ttpii the
Vicii) ; but yet Evidence was given to fome of them, and when they came
into Court to be fvvorn, they "xere for that Reafon challenged; but thofe
Avho had not heard any Evidence were fvvorn, and two ot them were ap-
pointed Triors, to try whether thofe who were challenged were indi/le-
rent or not. And the Court direifed thofe Triors, that thofe could not be
indifferent J becaufe thcj had heard Evidence before their Appearance in Court;
and afterwards it was demanded ot them one by one, whether every one
of them were indifferent ; who, notvvithltanding the Court's Diredion,
faid that they were. And io every one upon his being fiid to be indiffe-
rent was fworn, and added to the others to try the Refidue ; and when
the Jury was full, the Court committed the 2 /irfi 'Triors^ for faying they
were indifferent, when the Court had direBed that they were not, and faid,
they would fet a Fine upon the Jurors who went contrary to the Direc-
tion of the Court ; but upon Submiffion they were difhniHed, and the
Plaintiffs were Nonfuited. Palm. 363. Pafch. 21 Jac. B. R. Sir Joha
Dalllon V. All-Souls College.
^"Sa^zo. (A. e) Trial of Challenges. Evidence. By ^hom,
r^M^p'-'- \(wd How.']
sn the JSote. L J
Trial per i. T jf 3 Juror be challenged, ijCfljall IjeflUOm tOfflTjC €WmtZ\)m
Pais i^e. ^ c^if j-Q (.jjg i^xiQ}[0^ in fuel) cafe where the Challenge does not
s' P Co.Litt. found in Reprieve[Reproach]or,Dilhonour of him. * 49 ^♦3.2. t 49$l(r+i.
i58-b.(y)
♦ Br. Challenge, pi. 25. cites S.C. and ; H. 4 ic. 4: Ibid. pi. 150. citesS. G
Trials per 2. 3if 3 JltVOC U CWltlWB for Non-Sufficiency of Frank-tenement,
fifV^^^' ^^^ ^^^^ ^^ Cj:amlnen upon a Voier dire. 3 p, 4. 4. 19 1), 6. 9.
The 'furor Jliall he examined if he has Frayik-temment of Charter Land, }?ot Ancient Demefne for Term of
J is Life or of another s Life in his cxn Right or in Right of his Feme, or in Fee, or in Feel'ait ix;tthi]i the
fame County; and fo lee that it ought to be within the fame County. Br. Challenge, pi. i 57. cites
9H. 7. I-
3. If a Juror he CljallCngCH becaufe he is Tenant to one Party, Ije
liuil) be CCamtnCt! upon Voier dire. 3 i% 6. 39.
4! [So] if a ItirOt be CljallCngetl becaufe he is Goflip to the PlaintifF
and the Plaintiff Goifip to him^ ijc tiiap bc cicmnincD upoit 3i)o(er uice*
10 jp. 6. 24 b»
5. So if a Juror be djallcniyctl becaufe he is of Counfel, or at the Fee
Of a 19artp, Ije map bc fioorn upon a a^oiec DirCr 49 ^> i-
*~Br. Chal- 6. But OtljerlUtfC it i.S e contra. * 49 C» 3- 2. t 49 M* i-
lenge, pi. as-
cites S. C and 7 H. 4. 10. ^ Ibid, pi. 1 50. cites S. C.
,. As if a Juror bc CballcngCH becaufe he has taken of one Party
Challenge, certain * Monies &c. or is procured by one Party, ijC fljall llOt bCltUOItl'
i^Oier Dire, brr .lUfe it founds in Dilhonour. + 49 M^ i.
* S. p. Br. 7.
Challenge, certain -^ ivionies e^cc. or is procurea oy one rarty, yi, ujiui 11
49 E.' ?.T WPOtt ^Oier Uire, httmit it founds in Dilhonour. + 49 ^IT*
and 7 H. 4.
10. t Ibid. pi. 1 50. cites. S. C.
8. '^Ifi
Trial. 291
8. COC Triors flCC not bound by the Oath of the Juror himfelfi *3 |)» T';ials per
. . • . (165)
* Br. Challenge, pi. ;2. cues S. C.'That the Jaior was fwom titon I'oire dire, -who /aid that Lis
Trunk-tenement ii-as not 'n'orth 5 /, and the I'riors [aid that he was fii^cient of Frank-tenement, by vvliich
he was Iworn upon the Principal. Quod nota.
A Juror upon a Voire dire nffinnd that he had not 40 s. a Tear, and others, his Neighbours, affirm'cl
upon'their Oaths that they knew his Land, and that it was worth 4 1. a Year. Whereupon the Jul-
ticcs committed the Juror to the Fleet. Mo. 657. pi. 900. in Cafe of BuUeii v. Sullen and Gierke cites
10 £lii. C. B. 6ir Geo. Calverley v. Rifhley.
9. djC CtiOrS, after they arefworn may go at large by Aflent Of tfjC Trials per
parties, till auotljec Dap» * 7 V^ 4- ^o- ®ec 2, i^, 2» ctjatlcngcfi'^'^.'s^-
io^- * Br. Chal-
lenge, pi. ; 6.
cites S. C. That t-xo "Triors nvere fiiorn, and becaufe they could not arree they went at large, becaufe ic
•wai the Vigil of a great Saint, and Day given to them to keep the lame D.iy in Court Sec.
10. One was challenged, becaufe he was chofc Arbitrator hct'-jocen the
Parties &;c. and not exprefs'd tor which Party ; and yet a good Chal-
lenge and htwas examined therecf ttfon a Voire dire ; nota. Er. Challenge,
pi. 85. cites 9 E. 4. 46.
11. The Record of Attainder, Conviffion, Excomftntnication, Otttla'-jory
&ZC. or a Copy thereof ought to be produced, to prove the Cauie of Chal-
lenge thereupon. Trials per Pais 150.
12. One being indited of High Treafon, and the Jury called,
he orter'd to ask the Jurors in order to challenge them, if they
had not faid he was Guilty, or '-ji-on/d be hanged. Et per Cur. this
is a good Caufe of Challenge ; but then the Prifvner mufi prove it
hy Uttiicj/esy not out of the Mouth of the Jurymen, i Salk. 153. pL
3. Cooke's Cafe.
13. A Juryman may be asked upon a Voire dire, whether he hath any
Intercjl in the Caufe ? Whether he hath a Freehold ? for thefe do not make
him criminal i but you Ihall not ask a Witnefs or Juryman whether he
hath been whipped for Larceny or Conviif of Felony, or wlicther he was ever
committed to Bridewell for a Pilferer, or to Newgate fcr Clipping and Coining,
or whether he is a Villain or Outlawed ? Becaufe that would make a
Man difcover that of himfelf which tends to Ihame, Crime, Infamy,
or Mifdemeanor. i Salk. 153. pi. 3. Cooke's Cafe.
(B. e) Ventre Facias niDtth Provifo. What Ihall be good
Cauje to grant it.
I. T jf t!)C Plaintiff delivers the Writ to the Sheriff fo late that he can^ Trials per
X not ferve the Writ after, t!)C DcfcnOant fljall IjalJC H UBtlt U)It(j ^/'^ 53- C^)
ProWfa* * 8 j^, 6. 6. D, 4- <£t 2 1 5- 5 1 • * E Pro
2. But at tl)C fame time t&e Plaintiff may have other Writ alfo, auU cefs pi 56.
tijc €>ljer(ff mai> return U)l)tcl) of tljem Ije pleafes? at W election* 8 cites s c.
0, 6. 6. D. 4-^1 2IJ. 51. that both
a Writ with Provifo, but that the Sheriff fliall rcturti only the one ; Per Cur. Qiiod nota.
3. 7 Will. 3. cap. 32. S. I. Enacls, That if any Defendant or Tenant in
any Ad ion in the Courts at Weflminfier, fjall be minded to bring to 'trial any
Ijhe, when by the Coiirfe of the Court he may do the fame by Provifo, fuch
Defendant
292
Trial.
Dejenddiit &c. Jhall of the ijjaabk I'erm next preceding fuch intended Trial ^
fue out a ne'W Venire by Provifo, and profecute the fame by Habeas Corpora^ or
Diftringas with a Nift Prins, as tho' there had not been any former Venire
filed cut or return d^ and fo toties quoties.
If the Plain- 4. If the Plaincift' will not enter his IfTue, or, if enter'd, he will not
tiff, after If- carry down the Caufe to Trial, the Defendant may by Rule compel him
^-'^^°'"'^'" to enter it ; and if it is enter'd, the Defendant may carry it down by
ny theCaufe Ptovifo, and that this is the Itanding Rule of the Court. 3 Salk. 362,
thefirft Af- 363. pi. 5- Pafch. 1702. B. R. Anon.
fifes in the
Country, or the firft Term in Middkfex or London, the Defendant is at Liberty to bring down the
Caufe bv a Provifo,; for both the Plaintiff and Defendant having put themfelves upon their Pares, the
Plaintiff's Laches lliall not prevent the Defendant's discharging himfelf from the Adtion, and there-
forfe the Procefs is open for him as well as the Plaintiff G. Hift. C. B. 74.
5. If the Defendant will bring on a Trial by Provilb, he mtifi firfi
give the Plaintiff a Rule of Notice ; or t\k, it the Defendant [PlaintifFJ
be nonfuited, fuch Nonfuit will be fet afide as irregular, 11 Mod. 237.
Trin. 8 Ann. B. R. Rice v. ^V'ilmer.
6. A Rule to fliew Caufe why a Nonfuit at the Sittings on a Trial by
Provifo fet afide, was difcharged, tho' it was urged that the Defendant
could not carry down the Caufe by Provifo, till a pill Term intervened after
Jffiie joined ; for the Court faid the Handing Pra&ice was to make up the
Record by Provifo, upon one Default being fnade, the next Term after
Jfl'ue join'd. Rep. ot Praft. in C. B. 101. Ealt. 7 Geo, 2. Williams v.
Jones and another.
s«CR.b) (B. e. 2) Procefs ivhh Provifo.
CR.b. 2) \ J J J
Trials per 1. Mp ^ (£ IptOVstfO OUQiIjt tO liC Quando duo Brevia funt in eodem
Pais 54. J[ gradu & qualitate. D» 15 Clt 318. 10. [The Earl of Kent v.
^ ^^ Sir H. Crampton.]
Trials per 2, 3if tIjCtC bC tl Default in the Plaintiff after IfTue in the Profecu-
Pais 54- tion of the Venire Facias, lip iuljtcl) tljC DCfeUliant 1)30 a mWiXZ jfa=
See D -u ^^^^ ^^^'J l^rOUifO, pet tljC Oelendant cannot have an Habeas Corpus
b. pi.V>- w*'^'^ Provifo, wirhouc fo me Default ill tljijji J©nt alfo» %t.s- 3!a»
Trin. 4 Eliz. 05, J^» bCtUlCClt Major and Throgmorton, aDlUUijeD ; fOC Ije OUgljt tO
Browne J jjjj^g o,||y ({jg * fjjjne jproccfsi uiitl) protiifa, m wljiclj tljerc UJaiS a
Hdan!" default ot m Plaintiff Hcforc. '
fliould have 3. 33f tlje Defendant has a Venire JfaCia^ \if PrOlnTO, upon Default
it. But ibid, of the Plaintiff, ^ et he cannot have a Nil] Prius \y^ f^rOlllfO, without
pi. 52 Dyer Q^her f Default Of tlJC Platlltiff* ^. 4 la* %. K. bCttUCCn May and
tufdLt! ^hrogmorton. PCU CUtiam.
becaufe the
Writ with Provifo was not return d; but the Writ, which the Plaintiff fued, was ; but that it had been
otherwife if the Writ with Provifo had been ferved ; and that it fo fcem'd to Leonard, Chief Clerk ;
but if the Plaintiff will not fue the Nifi Prius this Term, the Defendant may fue it with Provifo at
Lent. And Dyer faid, that it feem'd to depend much upon the Dilcretion of the Court; but that for
the mod part, it is not grantable for the Defendant, unlefs he be Aclor as well as the Plaintiff, and that
there be fome Default or Laches in the Plaintiff.. If the Plaintiff will not file his' Venire, the De-
fendant may take out a new one, and try his Caufe by Provifo, as was agreed per Curiam D. 215. pi.
51. Keb. loi. pi. loi. Trin. 15 Car. 2. B. R. Anon.
* S. P. 2 Hawk. PLC. 407. cap 41. S. to.
■f S. P. And that happening in this Cafe, the Defendant, by the Opinion of the Court, may fue a new
Venire Fac. by Provifo, reciting in that That the firfh erronice emanavit. And fo it was ordcr'd, Paich. 4
Jac. B. R Noy 113. Mich, 4 Jac S.C. byNameof Strake v. Throgmoitou.
4- 3f
Trial 293
4- 3if tJ)f Defendant has an Habeas Corpora Juracorum ftp PfQ^jifiJ,
anO after tljC Jury remains for Detauk oi" llundredors, pct tl)Z 'Dtkw
bant lliall not have a Diftringas Juratores, with a Decern Tales with
proviio ; iiecaufc tlje Dcfcnonnt fljall not ija^c a Decern -^balejs bp
]2!ro\jiro, till n Detault or tljis Eequeft of tlje Cales appcaris in tDe
paintUL D* 15CU 318- 10.
5. Avowry was made ^j' Tenant in Tail of the Seigniory, and f^eia'dCon- Sec tlieNotej
I'cjance &c. upon the Tenant of Fce-Jiinple of the Land^ as upon bis Tenant ^^ P'- ^■
of the Manor, and this upon the Baron and Feme in Right of the Feme, and
divers othersjuilified the coming in Aid of the Avowant. The Plaintiff
[aid that Hors dc fun Fee, and the Defendant econtra, and fo to Iffue, and
Venire Facias returned, and the fury did not come, by which came the
Avowant, and prayd Decern Talcs, and had it -duthoiit Provifo ^ for he is
no's as Ail or ; quod nota bene. Br. Avowry, pi. 5^}. cites 21 H.
6. 22.
6. A Venire Facias with Provifo was returned ferved, and put upon the
File, and 2 Hours aiter a Venire Facias (which was after fued out by the
Plaintiff) was return'd, and filed alfo. Each Party fued out a. Hal;.
Corp. which were return'd. The Plaintiff fued no further, but the De-
fendant did. The Court faid, that the Continuance of the Jurata of the
Defendant ferved for the Plaintiff as well as for the Defendant. D. 217.
pi. 6r. Trin. 4 Eiiz. Anon.
7. In a Replevin the Parties were at IfTue, and the Plaintiff fued aVen.
Fac. returnable fuch a Day ; but the Sheriff did not return the V\^ric at
the Day. \\"hereupon the whole Court, upon Motion, granted a Venire
Fac. Ibr the Avowant. Het. -79. Hill. 3 Car. B. R. Dolbin's Cafe.
8. Error In Faft was alfign'd of a Judgment in Dower, viz. That the 2 Saund.
Tenant was an Ideot, and appear'd by Attorney. Upon Illue as to the'''- ^^•
Ideocy, the Plaintiff gave Notice of Trial the firlt Aiiiies, and then !f °''^e"l''^'
countermanded it ^ whereupon the Defendant in Error carried it imme-752. pi. 10.
diately to the fame Aflifes, without trying it by Pfovifo ^ and held good JiFra3icr fa,
per Cur. for fhe is Mlor in the firft Suit. 2 Lev. 5. Pafch. 23 Car. 2. ©E""'^.
B. R. Dennis v. Dennis. ^- '^•/'^^,,
Court held.
That in Kc-
f .'ei;n both Parties, the Plaintiff and Avowant, may carry it down the firfl: Time, bein<T both Aiftors •
bur in all other Cafes there can be no Trial by the Defendant by Provifo, till Defiult made bv the
Plaintiff; but the Doubt was, whether in a Writ of Error both Parties may trv the firft Time which
is not fo much by Provifo as by Original And pcrTwifden and Raynsford, This differs not from s
Replevin, but may be tried /^p/r/? Tw/c Serjeant Hawkins (ays, that in thefe and fuch other
Afitions, ivUrehi thf Dejendar^t is an Jflor as well as the Plaintiff, as in ^Mi-e Iwpedit againlt the
Patron only, or Prohibition &c. the Defendant may either take out Procefs by Provifo, with-
out any Default in the Plaintiff; or may, it he think fit, take it out in the fame manner as the
PlaintiiF, without any Claufe of Provifo. 2 Hawk. 1^1. C 407, 40S. cap, 41. S. 10.
9. Serjeant Hawkins fays he takes it to be agreed, That Procefs by
Provifo, (viz. with a Claufe that if 2 Writs come to the Sheriff, he Ihall
execute one of them only) may be awarded in any Appeal, whether capi-
tal or not capital, in the fame manner as in other Aftiona, after the Ap-
pellant has made Default in relation to the very lame kind of Procefs;
and therefore if the Appellant, after lifue join'd, either negkifs to take out
any Venire the fame Term &c. or takes one out, but doth not get it return'd,
it feems that the Defendant may take one out by Provifo &c. And fo if
the Appellant make the like Default in fuing out an Habeas Corpora, or
other fubfequent Procefs, the Defendant may fue out the like Proceis by
Provifo. 2 Hawk. PI. C. 407, 408. cap. 41. S. 10.
10. Where the Defendant hath fued out any Procefs by Pro'vifo, there
are Authorities that the Plaintiff is to fue out the proper f!i[?Jequent Procefs
upon it in the fame Manner as if he had fued out the firft. 2 Hawk. Pi.
C. 407. 408. cap. 41. S. 10.
4F • II. Ir
294-
Trial.
II. It kems agreed, That neither in Jifiofis "wherein tke King is fule
Party nor in IndUlnmits, there can be any Procefs taken out by Provi-
fo becaufe no Laches is imputable to the King. Alfo it hath been
queftioned whether there can be any fuchProceft in Informations qui tain,
becaufe the King is in fome Sort a Party. 2 Hawk. PI. C. 407. 408.
cap. 41. Se6t. 10.
Fol. 66-.
(C. e) Prccefs upon Ijjues. Vetitre facias. IFhat fhall be
a good Award of the Vt/jire facias.
Hob. 66. pi.
70. S. C —
Two IfTue
were
and in the
I. T JI5 Trefpafs againft 2, if tIjC one pleads, and upon his Plea 2 IfTues
1 are joined, and 2 other Illues alio joined, aUtl t!)CCOlH:talI3a*Cl!0
,(r tl Venire ad triandum Exitum ilium quam pr^di£tum alium Exitum bC'-
ointd tftjceit tije piniittiff ann tlje otOer DcfeuDant (tc* ^1)10 10 a ffooa
^nu .n the ' aujaru, tijo' tijcrc are felicira! jilTuejs betiucen tijc l>>latntiff ann m\)
awarding Defcuoaiit^ ; bccaufE tljc JiDorti Exitus map be tar tlje uiljoJe Eelilien=
fa'ia^""/i Hofinffula finguli0» lpobnrt'0 KepartiS 21. betiueen Ledjham and
wTds,Y\z. -^oa-e, and Mudgc ^^)m\JZly.
^uoad trian-
ttum tarn Exilum ifum ^tiam frxdiclitni alium Exitum /uperiiis jiinB. vjere emitted. After VerdiA' it was
moved in Arrert of Judgment; but the E.^ception over-ruled, and held good, notwithftanding tlie
Omiffion. Browni. 55. Anon.
Jenk. ;<J. 2. In 7ri?//)ir/j the Defendant pleaded Not guilty, and a Ven.fac. '•<i:as
57. pi. 70. awarded to try the Iffae before the Jiiflices of Oyer and Terminer, but did
^'ulHdarTir "^^ exprefsly mention before what Juflices the W^rit was returnable. But
isfufficient, notwithltanding this and other Objections, the Jadgment was affirm'd.
tho' the D. 315. pi. 99. Trin. 14 Eliz. Anon.
Writ did . ^ .^
not mention their Chriftian Names. And in Marg. there it fays, Note, in this Cafe the CommilTion
was to ieveral, Quorum H. Green unum efle volumus, and the Venire facias retui^nable Coram JulVi-
ciariis de Oyer and Terminer, without naming of H. Green, is good; for they are not Juftices with-
out him.
In this Cafe 3. \vv\trefpafs hy S. and T. againji A. and B. Judgment was againjlj.
Williams J. ^y j^^ didt, £. pleaded Not guilty. A Ven.fac. was awarded on the Roll
o'^ Eliz"^'°" Z;f/a;tfe« the Parties, as well to try the IJftte as to inquire oj Damages ; and
Dyer, Sir the Plaintiff's took their Ven. fac. to try the Iffue between the Plaintiffs and
aintljonp both the Defendants, and fo was the Habeas Corpus and Dijlringas ; but
Cook and ^ being dead, the P'tMntiff's took their Record of Ntji Prills againji B. only.
0<?"whcre ^^^^^ ^ Verdift for the Plaintiff, it was objefted that a Ven. lac. to try
in Pa'rtition an Illue between the Plaintiff and 2 Defendants, when A. againll whom
againft 2, Judgment was given by Nil dicit, never joined IlFue, and that the
oneconfefs'd \y^[^ ought to have mentioned only the IlFue between the Plaintiffs and
^nd the'°"* ^- ^^^ ^^'^^ there ought to have been a Writ of Inquiry of Damages be-
other plead- tween them and A. according to the Award upon the Roll, which is .
ed to Iffue, the Warrant tor the Ven. fac. And the whole Court, except Williams
and the Ve- t_ heij it ill. Yelv. loo, Mich. 5 Jac. B. R. Ld Sands and Swaine v
^^:; ^cullard and Derby.
the Iflue ■ ■ r , f^
between the Plaintiffs and the 2 Defendants ; and it was amended by the Opinion of the Court. But
mark the Difference ; for no Damages are to be recovered in Partition. But it is othervvife in Tref-
pafs ; and therefore in (£00fe£'s Cafe it was found by the Court, that it was as if a meer Srr.mger to the
Record had been named in the Venire facias. Ibid. Browni. 2op. 31 0. S. C. and fecms only »
Tranflation from Yelverton,
4- It^
Trial. 29 c;
4. It was moved in Arreft of Judgment, that the Venire facias laantx
ihefe Words^ Et habeas Ibidem nomina Juratorum^ but the Words Venire
facias dncdiciin &c. were inferred. All the Jullices thought it was good,
and that the firil Words are fupplied in the laft, and they are aided by
the Statute of Jeofails after Verdift. 2 Brownl. 167. Pafch. 1612, 10
Jac. in C. B. Barde v. Scubbing.
5. The Plaintiff' recovered in the Court rf the Verge. It was affigned for Noy 96.
Error, that the Declaration was of a Trefpafs done in St. Martin's infra S. C. held
Jurifdi^icncm., and the Vcn.fac. was from St. Martin ptad. and did not P^*" 9^^- ^-
■)' infra Jurifditiwnem ■■, and this being a Court which alters the Limits'^°^^^'^^'^- .
cf its Jurifdiclion according to the Rejtdency or Remove of the King, it
inia;ht be that St. Martin was infra Jurifdiftionem at the Time of the
Trefpafs and the Declaration, and yet might not be fo at the Time of the
Ven. fac. which was many Months afterwards. And Doderidge and
Jones J. being only in Court, held ic Error for this Reafon. Latch
214. Pafch. 3 Car. Thaire v. Foflett.
(C. e. 2) Venire facias awarded. By (what Court.
Chancery.
r, TN Audita Querela it was moved in Arreft of Judgment, that the
Jl Venire facias iliued out of Chancery where it Ihould be out of
B. R. becaufe the Land lies in Durham; and that the Difference is when
£. R. can try. Venire facias lliall be awarded out of the Chancery re-
turnable here ; But when this Court cannot try there, the Venire facias
Hull ilfue out of B. R. And the old Book ot Entries, Audita Querela
9. fol. 99. was cited, and accordingly a new Venire facias was awarded
oatofB. R. by all the Jultices. Palm. 410. Pafch. i Car. B.R. Mar-
tin V. Blackllon.
2. When Iffue is joined in Chancery, that Court awards the Ven. fac.
returnable in B. R. And per Cur. there is no other VV^ay to give a Day
here in B. R. but by fuch Award, and it is always done fo. 10 Mod.
259. Mich. I Geo. i. B. R. in Cafe of the Queen v. Aires.
(C. e. 3) Venire facias m'tfawarded. hi Refpcci of the
Perfon returiihw it.
d
I. T F a Venire facias be awarded to the Coroners, where it ought to be to
J[ the Sheriff, or the Vifne comes out of a wrong Place ; yet if it be
Per affenfuni Partiuin, and fo entered of Record, it ihall Hand ^ forOm-
nis confenfus tollit Errorem. Co. Litt. 125. b.
2. In 'Trefpafs for taking his Cattle at H. the Defendanty«/?///V^ for that Mo. S93. pi.
H. was within the Hundred of H. and the Sheriff's T'oiirn of the faid Hnn- '^5i- ^^\
dred ; and that at fuch a Leet within the Hundred, it was prefented that the tut s^p ' '
Plaintiff ought to repair a Highway, and that a Fine zvas there affefs'dfor does not ap-
not repairing it, and lb jullified the Taking. The Plaintiff jtaW, that ^e.^^
"^ ' ffjg z RoU Rep.
296
Trial.
76. Hill. 16 the Bipop of jr. '■Jcas fcifed in Fee of the Manor of H. and prescribed in hi i,i
y^^- \ p" and his Prfdece[]ors to have a Led there &c. abjqtie hoc that it was within
does not' ^^^ ^'^'^^ '^f^^'^ Hundred. The Plaintiff had a Vcrdift, It was moved in
appear. Arreft of Judgment, that the Van. fac. was mifawarded, becaufe it was
, to the Sheriff" who was concerned in Interelt for his Tourn and Leer
and therefore ought to be awarded to the Coroner. Sed non allo-
catur ; tbr being award'ed to the Sheriff himfelf, it is no Exception, it
being done for his Advantage and Favour j but that peradventure the
Plaintiff' might have taken the Exception. Cro. J. 551. pi. 13. Mich.
I7jac. E. R. Loader V. Samwell.
Jo. T95. pi. 2_ _^n Inferior Court was he/d before the Mayor and tivo Bailiffs., and the
' J- -|„f,?" Ven.fac. to try the Ilfue was awarded to the two Bailiffs to return the Jury
'° before the Mayor and Bailiffs., Secundum Confuetiidmem. After Judgment
it was alfigncd for Error, that the Bailiffs, being judges of the Court,
could not be Officers. But all the Court (abfente Hide) conceived it
might be good by Cullom , tor the Bailiffs are not the Judges alone, but
the Mayor and Bailiffs ; and one may be a Judge and an Officer in di-
verfe Refpefts, as in Rediffeiiin the Sheriff" is both Judge and Officer.
And the Judgment was affirm'd. Cro. C. 138. pi. 12. Mich. 4 Car.
B, R. Crane v. Holland.
(C e. 4) Venire facias mllawarded; in RefpecS: of the
§lualijicaU07i of the Jurors.
'•E'
'Rror of a Judgment in FjeBment in IVales was afiign'd, that the
Ven. fac. was .^iionim quilibet habeat i\.l. whereas the Statute 27
Eliz. cap. 6. extends not to Wales, but only to the Courts at Wefl-
minfter and the Aliifes. But it was anfwered that this was no Fault at
Common Law., it being for the Party's Benefit to have a better Trials but
if it be, it is helped by 32 H. 8. of Jeofails. And of this Opinion was
the Court, and affirm'd the Judgment. Cro. E. 257. pi. 32. Mich. 33
& 34 Eliz. B. R. Morris v. Thomas.
a Roll. Rep. 2. The Parties were at Ifftie in Chancery, and a Ven. fac. was awarded
55 '• "^''l."" out of that Court, viz. \G)//orum quilibet habeat quatuor libras 'Terra See. Ic
iFilcottb ^^^ moved in Arreft of Judgment, that it was not well awarded j for it
:JfielO, S.G. ought to be Quorum quilibet habeat quadraginta folidos Terrae, accord-
adjornatur. ing to the Statute 35 H. 8. which appoints that every Juror ihould ex-
~\ir°u'V^' pend 40 s. per Ann. and it ought not to be Quatuor libras Terrs, accord-
Tac'^B R ^"S ^° the Statute 2."^ Eliz. cap. 6. becaufe that Sta.iute fpeaks onlyofB.R.
6. C. And C. B. and the Exchequer, or before J-uJlices of JJ/tfe. And Doderidge and
all the fuf. Haughton J. held it a plain Cafe, that the Ven. fac. ought to be ac-
tices held cording to the 35 H. 8. becaufe the Statute of 27 Eliz. fpeaks nothing
goo^'And of the Chancery. Godb. 334. pi. 427. Trin. 16 Jac. KK. Philpot v.
Ley Ch. J. Fielder.
thought that
the Words (Iflue joined) are a Parenthefis, and that the [Word] (Courts) refer to Trial ; and that
fo the Senfe is, That the Ven. fac. for Trial of any Ilfues in Courts &c. fliall be of fuch as have
Freehold &c. to the Value of 4 1. a Year. And to this Doderidge accorded ; and that this was the
Intention of the Statute.
Palm. 585. Mich, zi Jac. B R. Jfllpott b.;JfielDcr, S. C. And the whole Court held the Writ
well awarded ; and Lea Ch. J. and Doderidfje licld that the Statute 27 Eliz. cap 6. extends to tliii
Trial ; for the Words are, If^here anj furors to be returned for Trials of IJfues joined in the Courts of tht
King's Bench &c. which is to be intended of the Trials there, be the Iffue joined where it will ; and
that thofe Words (IfTues joined) are a Parenthefis between the other Words. And the Plaintiff had
Judgment.
Trial.
91
Judt^ment.- Ci-o.J.672. pi. 4. is, C. fays it v\ as aj^reed bv ull the Juftices, upon Perut^d of tlie
Statute, that the inlcrtiiig tills Claulc was not warranted by thcvStatute; but diverle Precedents were
fliewn out ofChancerv, tliat all their Pi-eccdent.s are lb lince 2- Eli?.. And Chamberlain f . l^iid that
fo are the Precedents in Chelkr and VValc% when he was Jullice there. And if it had been a Quef-
tioii whether it were j^ood at the Common Law, yet it is clearly now nude good by the Stat, ot 32 H.
S of Jeofails. And lb Judgment was given for the Plaintirtl
3. Information for confpiriiig to indi[l the Duke of B. for Buggery. The
Deiendancs were found guilcyj and it was moved in Arrelt of Judg-
ment, that the Ven.fac. was Probos ijj Legalcs Horaifies quorum qaitibet,
may expend zo I. in Lands ; which, if allowed, might keep the Defen-
dants long in Prifon for \Vant of Jurors of that Value; and therefore
the Statutes 35 H. 8. cap. 6. and 27 Eliz. cap. 7. direfts the Form of
this Writ. And tho' thefe Statutes of themfelves extend not to Criminal
Cafes, yet the Stat. 4 & 5 Ph. & M. cap. 7. direfts that 35 H. 8. Ihall
extend to fuch Cales i and therefore that P'orm mull be followed, efpe-
cially lince 16 & 17 Car. 2. cap. 3. is expired. But it was anfwered,
that it was for the Defendant's Advantage to have a fubftantial Jury i
and that belbrethe Statutes it was, and ftill is in the Power of the Courts
to award a Ven. fac. of Perfons of what * larger Eltates the Court * ^ro. J.
pleafes. And for thefe Reafons all the Court, except Raymond J. held ^f jcNhjinnt^
this Writ good ; and his Doubt was, becaufe if the Court had that ^ /^^dtr.
Power, then the Defendants might be kept in Prifon for Want of Jurors S. P. admit-
of that Value. Judg.ment was given againft the Defendants. Raym. ted, where
417. Mich. 32 Car. 2. B. R. Blood's Cale. h of g'eac
Confequence, but tliat they cannot appoint of Icfs Value than the Statute limits.
(C. e. 5) Venire facias betnjoeen a Party /?;?i a Stranger.
X. T N fome Cafes a Venire facias fhall be awarded to make an Inqueft
J[ betwixt a Stranger to the Writ, and lifue, and the Party ; as upon
the Statute of Weftminller, 2 cap. 6. If a 'Tenant being impleaded 'votich to
Warranty^ and the Vouchee denies the Deed, or other Caufe of the IVarranty
&c. that the Demandant may not hereby be delay 'd, he may fue out a Ve-
nire facias to try the Iffue befween the 'Tenant and Vouchee. Trial per Pais,
52. (59)
(C. e. 6) \'enire facias returnahU at zvhat Time.
I. T N Criminal Caufes which concern the Life of ATan, if a Man be 9 Rep. nS.
_£ iiidiiied (f Treafon or Felony in tbc County where the B. R. does fit, b- S. P. re-
the Venire facias for the rerurning of the Jury need not have 15 Days be- ^"^"^ "^l'"-
tween the Tefie and the Return.^ nay the Entry may be Ideo immediate ^andiiit^s '
venit inde Jurata &c. But if the Indiftment be taken /// any other County., Cafe.
and removed into B. R. there ought to be 15 Days between the Telle of ^^ P- aHawk.
rhe Venire facias and the Return. 2 Inll. 568. ' ^'* ^ \^^-
■^ cap. 41. i> 5.
fays it fcems
ag-ecd, whether the Trial be for a Crime committed in fiich Countv, or for Treafjn Sec- beyo"d Sei.
4 G ' Buc
298
Trial.
But that for the Trial of Iiidirtments removed thitlier by Certiorari from other Counties, there oucrht
to be I 5 Days between the Telle and Return of every Procefs, And S.4. fays, it is agreed rhat Jtiftkes in
Ene or of Gael Delivery may order a Jury to be return'd immediately for theTrial of a Prifonerarriicn'd
before them. And that it is clearly holden by Sir Edward Coke, and hath been often adjudged, that
Tuftices of Oyer and 'Termir.er, for the Trial of any Illue join'd before them, might award a Venire re-
turnable the' fame Day on wliich the Party is arraign 'd. And. that it is holden by Sir Edward Coke
and hath been adjudg'd, that Juftices of the Peace may do the lilce; but fays there are very ftrong Au-
thorities to the contrary, unlek-. the Crime amounts to Fe'ony, or the Party confents to be tried immedi-
diately. But S. 5. makes a (^isre hoiv far the Law is alter'd as to thefe Points by 4 & 5 W. & M. 24.
and 7 & S W. 5. 32. which, by requiring that Jurors fliall be fummon'd 6 Days before they are to ap-
pear, feem to make it neccffary whenever a Venire or particular Precept is required for the Return of
a Jury, that there be (ix. Days between its Tefte and Return.
Ithathbeen 2. N. was /W/V7f?/o,^£^nTfr)', and found Guilty. It was affign'd for Error
adjudgVi, jj^ g j^ j)-,,^;. ^j^g \en. fac. (which was awarded to Hereford Allifes) was
before Tuf- rctiirnablii fiich a Day certain {which Day happened to be the Day on which
tices of Oyer the Next jijjifes commenced) and that it ought to have been made returnable
and Termi- Ad proximas Ajjifas generally. The Court were of Opinion that it ought to
ner returna- j^g j-everfed for this and other Errors therein affign'd, and therefore it was
ccrtain'iseZP''^y'*^ for the King that Diminution flaould be alleged to the Intent that
toneous, un- the VV^ant of Continuance Ihould be thereby fupplied &c. But it was de-
lefs the nied per Cur. becaufe it appears that there were 2 Commiflions. Sid.
Seffions^ 2^S_ pi, 14. Mich. 19 Car. 2. B. R. The King v. Nurfe.
Jiavrbe'en 3' Exception was taken that the Ven. fac. in the Record on which
adjourn'd to Perjury was affign'd was returnable the 6th of JMarch, Coram\J ujliciariis
the fame pnedittis of Oyer and Terminer, and that this was Coram non Judice ;
Day ; be- £m- pgr Cur. the Coram Jufticiariis prasdiftis is aided by the Statute of
"i'li\°fl!aTr ^ E. 6. cap. 7. But ocherwife the Ven. lac. lliould be yld proximas AlJifas
not be in- generally^ and not a Day certain, which is ill, tho' the Aififestall out on
tended that that Day, but however this is but Error and not like the Cafe of the
their Com- j^^jig ^^ j^urfc* 2 Keb. 854. pi. 6. Hill. 23 & 24 Car. 2. B. R. The
hnucTtm"' *^'i"S ^'- Serjeant and Hannis.
fuch a Day,
and if it did not, their Aurliority to try the Iffue v/as determined. But it is admitted that fuch Venire
may be made returnable at the next Adifes, and then tried by Virtue of i E. 6. 7. 2 Hawk. PI. C. 406.
cap. 41. S. (5.
And it hath been adjudg'd that the Award of a Venire returnable at a certain Day before Juftices of
of Oyer Sec. needs not expreGly mention before what Juftices it fhnll be returnable; for it cannot but
be intended that it ought to be before the fame Court which awards it. 2 Hawk. PI. C. 407. cap. 41. S.
7. And in the Marg. cites 29 E. 5. ;o. b. 51. a. and that in Dy. 515. pi. 99. the fame Cafe is taken No-
tice of, and it is there faid, that the Venire itfelf needs notfhew before what Juftice it is returnable ;
but this feems not to be warranted by the Book at large. Vide 2 Keb.. S 5 5. pi. 6.
4,. Whether the Return of a Venire may be upon a Dies non jnridicus
as Afcenlion Day ? See Frcem. Rep. 94. pi. 108. Pafch. 1673. in an In-
lormatiun in the Exchequer Chamber, Bunt's Cafe.
(D. e) In what Cafe there iliail be om or more Venire
facias.
Hob.64.pl. I. T i9 Replevin againft 2 ol a Taking at H. in S. if tljCone Dcfen-
65. 2lruiu \_ dant pleads Ne Prill pas, and the other avows the Taking at H. in
Dei^ Cafe, jjjg p^riih of D. Cijigi \xm bctricD bp oncaDcnirc fticiagi frotu ftotfj
ri^'plfch places, fCillCCt, g»« antlD* m^% 13 IJa* ^* IJCtUieCU .irunad and
15 Jac S G. Blanchard. QtljUOSeU, il)OUart'.S JRCpOtt^, 38« ^, C.
according:/. ^
Trial. 299
2. 3111 an !?vCtt05t of i©!ii!C, if VVulte be aliign'd in D. S. and U^ and Hob. ^7.;^
feveral lllucs join'd, fCSllCCtj one in D. another in S. and another in U. 45- S. C. ac-
tljo' tljcrc map be fzmal mniiz facinjs'si to try t})cfc3^irue,£i,'aui3ti)en Tbid"SV~
EUcrp aDemrc^fadajsi fljaU come from ti)C place iui)cre tljc particuUii: i.vsd "
3iiruc auifCiS, pet in tlji^ Cafe ouc mimt taciass mai> be gcanteti to ^^^ s p docs
m all for atiointnn; of {^iiltipiicitp ; but tijcu tljisi ©cnirc facias ;^ "pp'.7;
ciurijt to come from all tlje paces from tuDiclj all tlje 3!ffuc0 arifCp, ,,V
i^onart'jEj Reports, 51, s^.btt^an Cmnkr/und afid Cumberland, pCC Hill la Jac
(!i:unanu > ^'^c and
3. Trefpafs at E. aga'nifi 2, the one pleaded Not Guilty and the other S- P-
pleaded Release at A. and\enire fiicias ifl'ued of the Vifp.e of B. and there-
lore the Defendant pleaded in Arrelt of taking the Inquelt, and all was
quaih'd, and Vifne awarded oi both Places ; quod nota. And yet per
Hill, 2 Venire facias's ought to have ilFued i But per Eelk. where 2 plead
feveral Iliues, Venire Ihall be of one and the fame Place by one Venire
facias, and one Inquell Ihali try all. Br. Vifne, pi. 29. cites 50 E
3. I-
4. 'V\''here the Patron and Incumbent are at one IJftie with the Plaintiffs
and the Ordinary at another IJl-'u; there may be one Venire facias upon both
Iliues, if it be in one and the fame County, or he may have 2 Venire fa-
cias's at his Election. Er. Ven. fac. pi. 36. cites 8 R. 2. and Fitz. Quare
Impedit. 199.
5. Trefpais [againfl 2] the PlaintifF after the Bar intitled himfelfto
the Land by Deed of Leafe if the Ancejior and Releafe, and the [one] De-
fendant rejoin'd that Not the Deed of his Ancefhr, and Witnelies were in
the Deed, and thcrelore Procefs was againlt them, and was againft 2.
Afterwards came the c//jeT i>c/'(?»rt'i?«? and pleaded to IJJiie as above, and
the heft Opinion was, that he ihall have Procefs likewife againft a Jury ;
for each is a Stranger to the other's lilue, and the one lliall not be concluded
by the Ifliie of the other. Br. Teltmoignes, pi. 22. cites 11 H. 4. 30.
6. In frefpafs, if all the D fondants plead Not Guilty together, one Ve- So inTrefpjfs
nire lacias Ihali Iffue, b/it if they ple-j^d at feveral iTimes it feems othervvife. ".^'^'"A If^'"'
Br. Vifne, pi. 54. cites 21 H 6. 22. ^iad Not'
7. And it was faid that the Plaintiff may have one Venire facias or feve- Guiliy,
ral Venire facias's in the firll Cafe, but the Ancient Courfe was where which is a
they plead all at one time to Ilfue, to have but one Venire lacias againft f'^^.'-'';'|p .
all,' and the Caufe that he ihall have feveral Venire tacias's now is /o j',^gpy^,/,j,,-g-
avoid Delay, -which might come upon a Venire facias in Cafe that one Defen- takes om
dant cafls'Proteifwn. Er. Vifne, pi. 54. cites 21 H. 6.22. Joint Venire
facias, he
fliall not clianf^e it after it be return 'd, fervcd or not ; for he Jliall rot after have feveral Vettire facias's ;
for the Record makes mention that one Joint Venire facias was awarded ; Quod nota, per Cur, Br.
Ven. tac. pi. 15. cites 22 H. 6. 3.
8. ^itare Impedit againjt J. N. and the Bipop. J. N. pleaded a Plea tri-
able by the Vifne of D. and the Bipop pleaded another Plea triable by the
Vifne of S. and the Plaint if took Ventre facias of the Vifne cf D. only where
it Ihould be of both Vifnes, and therefore ill. G)!iare if one Venire facias
pall ferve, for it was ftted by the Plaintiff, and rehearfd both I[fiics, and
therefore well as it feems there ; but it is not exprelsly adjudged. £r.
Ven. fac. pi. 3. cites 27 H. 6. 6.
9. Where there are feveral Defendants in Appeal, and a Joint Venire S.P. zHHift.
facias illued againft them, and the Array was attervvards qualh'd upon ^■^■ff'^T
the Challenge of the Plaintiff, the Court denied to grant him a Si^"^'eral f^f"ff-^^(f^
Ven. fac. bccaitfe he had chofe a Joint one at thejirft i But othcrivife it would like againit
be if the firfi Ven. fax. had been ill awarded, as of a Vill which is not in feveral, if
the Record. But the Plaintiff' pray "d it at his Peril. QuL^re. Er. Venire "'^^ ^P"'y '^"
,-.,•17 cas IS lued
facias, pi. 32. cites 9 E. 4. 27. ^^^ •, ^^^ ^^_
turn A, the
Plaintiff fhall not have feveral Venire facias's. Nor v\herc lie takes feier.xl fet:. fac at frj> lihiihatc not
reluri'A,
Q^OO
Trial.
^etiirti'd he cannot have a loint Venire facias ; tor le camiot alter the Record. Br. Venire facias, pi. 35.
tite.s z-'w.6. 4 and Fii7-.h."Tir. Procefs, 94. Br. Venire facia.s, pi. 2. cite.s S C, And becaufe the
Plaintiff took firft one Venire facias, and afterwards leveial Venire facias's, therefore he could not have
ludfment, but all i^as reverfed, and he commenced again, andfued his Venire facias according to the frft
J'ward. Br. Venire facias, pi. 2. cites z- H. 6.4.
Seri. Hawkins fays, it feems agreed that where /cBcr/r/ Perfovs are arraign d iifcn tie fame Indictment or
Jppeal, and federally flcad Net Gvilty, it is in the Elcftion of the Prolecutor &c. either to take out Joint
Venires agamff them all, or feveral aj^ainfl each of them. But in ^m Jfpeal, if o>ie pleads Not Guilty, and
the other pleads a Releafe m'i\ie at A. it fecms that there muft be feveral Venires. 2 Hawk. PLC. 40;.
cap. 41. S. 8. And S. 9. fays it feems agreed, That after an Apellant hath taken outaywwf Venire againfl
all the Appellees, he cannot afterwards take out feveral ones, tho' the firll be never return'd ; and the
Keafon feems to be becaufc it would amount to a Difcontir.uance.
10. JJfiimpJit, fuppofed to be in the Parip of St. Mary h Bow in Lon-
don, the Deiendanc pleaded to Part Non afjamyftt^ and to the other Part a
Rekafe in the Parijh of St. Magnits ■-, one Venire facias de Vicincto de Bo:^
was awarded to try both IJfiies. The Opinion of the Court was, that in-
afmuch as the A'enire facias was awarded lor Trial of both lifucs, it was
a Millrial for all, and cannot be good for one. Cro. E. 171. pi. 13. Hill.
32 Eliz. B. R. Johnlbn v. Tucke.
11. In Trelpals of Battery, one Defendant pleaded Not Guilty, and IJfite
•was join' d on that Pica. The other jnflijied ; and as to him, the Ifftte --ji'as
De Injuria fiia propria. One Venire Facias was awarded to try both
thefe llfues. Alter Judgment for the Plaintiff^ this was affign'd tor Er-
ror i fed non allocatur ; for ic is ufual to have one Venire only. But
for another Error it was reverfed. Cro. E. 866. pi. 47. Mich. 43 & 44
Eliz. in Cam. Scacc. Comb v. Carew and Day.
12. There never ihall be feveral Venire Facius's to try feveral Iffiies in
me County. Relolved per Cur. Cro. J. 550. pi. 12. Mich. 17 Jac, B. R.
Dance v. Eckden.
13. 'Trcfpafs againfl A. the Mafter, and B. his Servant, for breaking his
Clofe^ \_in C.] and taking his Cow in D. in the County of S. A. plead-
td ISot Guilty. B. pleaded, that the Plaintiff holds of A. as of his Manor of
D. in the County of S. aforejdid, and for Services arrear he feifed the Cow by
the Command of A. The Plaintiff traverfed &c. One Ven. Facias was
awarded out oi both the Villages. It was moved in Arreft of Judg-
ment, that 2 Venire's iliould have been awarded, the IlFue being of
Things in feveral Places ; lor il there are feveral lifues in one Place, one
Jury only fliali be impannell'd ; but if in feveral Places for feveral
Things local, feveral Juries Ihall be. But the whole Court held, that
one Jury only ftiould be impannell'd, and one Venue only ftiould be
awarded out of both Places, and it is all one as if it had been in one
Place j but it had been otherwifc if in feveral Counties. Brownl. 229.
Mich. II Jac. Fuller v. Pettefworth.
14. li A. B. C. and D. be mditlcd for one Felony, or Murder, before
any Juftices, they may ilfue one Venire Facias, or may ilfue leveral Ve-
nire Facias's, or Precepts, or Awards of that Kind. 2 H. Hill, PI.
C. 263.
15. If the Sheriff^ and another he joint Obligees [Obligors] in a Bond, and
one pleads Non ejl PaBiim, and the other Conditions perfornid, and Procefs is
awarded to the Coroners, and llfues tried upon one Venire, it Ihall be
good ; per Saunders Ch. J. Skin. 106. in the Cafe of the King v. the
City of VVorceller.
16. There is 'gxtxt Difference between 2i feveral Plea and & joint one ^
for where many join in a Plea, there goes but one Venire Facias i but if
they fever, there Ihall be feveral Venire Facias's i or if there be but one,
it inuji le fpecial, and it muft be mention'' d to be /or the Trial of feveral If-
fues j per Holt Ch. J. 12 Mod. 654. in Cafe of Gree v. Rolle.
(D. C. 2)
Trial. 301
(D. e. 2) Special Jury. And of Juries Jiruck hy the
Majler ^c.
I. r~T~iHE Court was moved, that th e Secondary might return a Juryj
t upon Affidavit that the Plaintiff, in a former Trial between the
Parties, had jVaJlcA 4 (>f the Jttr')\ and had alfo fealled fome of the Jury
that are return'd upon this Trial. Glyn Ch. J. Let the Freeholders
Book be brought to the Secondary, and let him return a Jury. Sty. 477,
Mich. 1655. Pooly v. Markham.
2. A Rule is made, That -juheti a Majler is to Jirike a Jury, viz. 48, S. P. 12
out of the Freeholders Book, he pall gti)e Notice to the Attorneys of both 1^°^- 94-
Sides to be prefent ; and if the one comes, and the other does not, he that , ^iLhyUn'a
appears ihall according to the ancient Courle ftrike out twelve, and the b, ^rab
Majler jballjlnkc out the other 12 /or him that is abfent. Salk.405. pi. i. and feem's
Trin. 8 W. 3. B. R. Anon. tobeS C.
, That in fuch
Cafe the Jury Ihall be ftruck Ex pane, and the iSecondary fliall ftrike 12 for him that does not
attend.
3. If by i?///^ of Court the Matter is ordered to _y?r//^i? ^ y«r)', in cafe
it be not exprefs'd in fuch Rule, 7'hat the Majler /hall Jirike 48, and each
of the Parties pall Jirike out 12, the Mafter is to ftrike 24, and the Par-
ties have no Liberty to ftrike out any. Salk. 405. pi. 2. Mich. 8 VV. 3.
B. R. Anon.
ij,. The Attorney-General moved for Leave to amend an Information
againft Defendant, wherein the Name of a Commiifioner of Excife was
miftaken ; and granted ; and that the Mafter might ftrike a Jury ^jV Con~
fent, which was alfo granted, being only a Cale of Mifdemeanour, but
not in capital Cafes ; for then the Prilbner would lofe his Challenges, and
it was never ask'd to replead upon mending thb Information. 12 Mod.
224. Mich. 10 VV. 3. I'he King v. Duncomb.
5. On a Motion tor a Special Jury, in the Cafe of tIjC S\illg tl* ^xH-
IkaittlCP, Trin. 2 Geo. i. for the Murder of the D. of Hamilton, it was
held by Parker Ch.J. That there cannot be aSpecial Jury in Cafes oi'trea-
fon or Felony ; for the Party muft have the Advantage of challenging 20,
without Cuufe Ihewn. In Cafes of Special Juries there are 48 brought
before the Mafter, and he takes 24 ^ fo there cannot be a Rule for a good
Jury, nur for a Special Jury in this Cafe of a T'rial at Bar ; tor the Jury
will be the fame with or without fuch a Rule, for they are all good Juries
in Middlefex, andfo in all Cafes of Jurors at the Bar ; and if there Ihould
be a Special Jury, it would take away the Advantage the Party has of
challenging peremptorily, but indeed it would not of Ihewing Caufe.
So no Rule was made in this Cafe, for fear that the Sheriff in all other
Cafes, when there is no fuch Rule, thould not return a good Jury. Per
Cur. MS. Rep.
6. If there be no legal Exception againjl the Sheriff, the Court cannot
flip him, and order another to ftrike a Special Jury, without Confoit of
the Parties, to try an Ilfue at the Alfifes j but if there is any lawful Ob-
jeilion agamlt him, and it appears to be fo upon Affidavit made, then a
Special jury may be itruck by the Matter of the Oliice, without Confenc
of the Parties. But a Special Jury may be granted to try a Caife at
Bar, without Conferit of the Parties ; but never at the Niji Prius, unlefs
good Caufe ihewn. Per 3 Juftices, contra the Ch.J. S JMod. 245. 248,
Pafch. 10 Geo. 1725. the King v. Burridge.
4 H 7. 3 GVt'.
go2 Trial.
7. 3 Geo. 2. cap. 25. S. 15. His Majeftfs Courts of B. R. C. B. and
Exchequer at Wejiniinjlcr., (upon Motion 7iiade in Behalf of his Majejiy.^ or
on the Motion of any Profccutor or Defendant in an Indiciment or Informa-
tion for any Mifdtmeanom.^ or Information in the nature of a ,^110 llarranto
in B. R. or in an Information in the Exchequer^ or on Motion of any Platn-
t iff or Defendant in anyCaiife depending inthefaid Courts) are required to
order a Jury to be Itruck betbre the proper Officer, for the Trial (>f any
Iffne, in fitch manner as ipecial Juries are ulually itruck in fuch Courts
upon Trial at Bar.
S. 16. The Perfon who fhall ix^^ly for fiicJo Jury ftall pay the Fees
for Jinking it, and jhall have no AUifjjance for the fame on Taxation of
GJls.
S. 17. Where a Special ]uty pall be ordered by Rule of Court, in any
Catife ari/ing in a County of a City or Tvwn, the Sheritt fhall be ordered by
fuch Rule to bring the Books oi Perfons qualilied toferveon Juries within
the fame., in like manner as the Freeholders Book has been ufually ordered to
he brought, in order to the Jinking of Junes for Trials at Bar, and the Ju-
ry Jhall be Jinick out cf fuch Books.
8. 6 Geo. 2. cap. 37. S.2.. fTy:;^; Juftices of the Seffions or Aflifes for
the Counties Palatine of Chelter, Lancafter, and Durham, upon Motion on
Behalf of his Maj-.Jiy, or of any Profecutor or Defendant in any Indiftnient
or Information for Mifdemeanor, or on the Motion of any Plaintiff' or Defen-
dant, may, in Caie they think fir, order a Jury to be llruck before the
proper OHicer of each Court, in fuch Manner as fpccial Juries have been'
■ufually Jlruck in the Courts vfWeJlminJler upon Trials at Bar.
(E. e) Procefs upon Illaeo. To 'vohom they fhall bi
direBed ormfially.
I/'
■^ Br. Venire I. T jf AH WHC be tlpOIt il Thing done in the Palace of Weftminfler,
facias, pi. 91. X iU mmu fljail ilTiie to t!jc Careen of tljc palace, ann not td
d"''^A^«, tljc ©Ijcriff ; fot tlje aaarocn 13 tijc tnimeDtate Si5imiltc totDe Court,
Hals *2l^.6. 7. b. B 0^.4.16. 13,
Br. Venire 2. @)0 tit Trefpaf^ in Middlcfcx, fOt '^TrefpafSj done within the Pa-
facias, pi. lace, (f'OefenBtintpIcatisiiQotsuiltp, tJjciDeuire faciagi fljaU be td
51 cites - - -~ - ..._..-
S C. for t..w -
Sheriff can- 2 3p» 6. 7. 0*
not ferve it
in the Palace, nor make a Mandate to the Warden of the Palace.
-'c.'' for the tlje iBartien of tfjc palace, tt)a' ttje Original ffoeis to tljc %\)zm.
3. If Sheriff dies, Procefs does not ilTue till another is made, and
ihall not goto the Coroners. 12 Mod. 22. Pafch. 4 W. & M. The King
V. Warrington.
4. In a Mandamus to fwear a Common Council-man for a Ward in Nor-
wich, ic was moved to fhew Catife why the Venire fhould not be directed
to the Sheriff of the County of Norfolk, hec-dufe the Sheriff of the City^
and likewife the Coroners and Freemen who would be of the Jury (if the
Venire be direded to an Officer of the City) were all Parties interejled in
the Election ; for a Common Council-man tor one VV^ard, is likewife io
for the whole City ; and Co every Freeman muft be interelted. It was
anfwered, that if Partiality was fuppofed in the Returning Olliccrs, the
other
Trial. 303
other Side Ihould apply to appoint Elifors to llrike the Jury. And a
Rule made was difcharged. 2 Barnard. Rep. in B. R. 24. Trin. s
Geo. 2. Anon.
(F. c) Procefs upon" IfTues, To fwhom it lliall be dire(3:ed
upon a SuggeftioTi.
'1- Tif ttlt Inquefl: remains for Default of the Rapers, by which a De-
\ cem tales is awarded, and Defendant fays for his Deliverance that
he is Lord of the Rape where &c. and that all there are within his Di-
iireJs, aim therefore prap0 a Wxit to tlje nect iDimnreD ; tfie Court
ni.ip trp tfjis \sf Cnoi'si immeoiatclp, UJitljoiit lACtiim of tlje %\)Z'
riff i anti if it be true, map auiarD to tlje nctt iDunOrco* £)tljeruiife
tf It lie falfc. i% 6. 39. t3*
2. In JJ/ife againji a Prior, the Bailiffof the Prior for the Fraiichife of
the Prior reTiirn'd the Pannel and the Challenge. By which Wilby
awarded that Non omittas Jhotild not ijjne , for theBailift'did as he ought,
when Precept came to him from the Sheriff But IVrit ijj'ttid to the She-
riff ft cat alias ita quod Balliviis Libertatis non fe intromittat. Br. Chal-
lenge, pi. 117. cites 26 Air22.
^3. Non omittas ws.s dwirded to the Sheriff at the O^o tales to e?iterthe^^- ChaU
Tranchife and ferve the Writ, becanfe the Bailif of the Franchife had '^^"^cites'
return d the principal Pannel, Part of the Tenants of the Plaintiff, andl,'c.
Part of the Tenants of the Defendant who were challenged out. Br.
Procefs, pi. 51. cites 38 E. 3. 25.
4. In an Information in Nature of a, ^ito JFarranto^ againft feveralPer-
fons of the City -of VV. and the Sheriff was one of the Defendants, it was
urged that the Injormation ivas feveral, tho' but one Roll, and that the
Olience was foi and that therefore, altho' as to the Sheriff' the Venire ought
to go to the Coroners, jet as to the reji the Sheriff' ought to retttrn it, and efpe- '
'/..'//;■ as to 8, agaiiiji 'jjhom the 'Venire facias was granted long before this
lait Venire. To which the Court anfwered, That thofe 8 pleaded to Iffuc
long before the others, and then the Sheriff' was net one of the Defendants.
But Saunders Ch. J. laid, that if 8 only plead to Iffue, and the Venire
is awarded to the Sherirf^ if after it tall out that the Sheriff is a Defen-
dant, the Venire Ihall go to the Coroner, tho' the Sheriff hath not yet
pleaded ; and as to the feveral Venires, they over-ruled it. Skin.
105. pi. 4. Pafch. 35 Car. 2. B. R. The King and the City of Wor-
ceiter.
(G. e) Proceis. Upon the Suggejllon of (lahom they fhall
be dire^ed to others than it ought de Jin's.
I. TTfTHere the Procefs is to be awarded to the Coroner, tijCPlain-
V V tiff cannot fuggeft that the one Coroner is his Tenant, JJUtl
ija^e tlje Wxxt to the other, till it be cljanengeo b)' tlje otOaParti?.
38 e. 3-25.
2. ^^'here
304. Trial.
Where the 2. Where tlje Wxit IlS to be atUnttJCH to the Sheriff;;t!)e Plaintiff may
Pl.m:t:ffft<g- fjjy ^■^r^^ tiie Sherirt is his Coulin, and pray a Vvric to the Coroners, bC'
^stn,it,s caitft otijcrtDtfc it fljnil be qualljcti bv CbailcnBC upon tbe JKcturn,
;;,. co.fw, U)ljici) uiiti be a great Deiaj? to ii)z piaiutiit; cautta 3 s e* s- 20.
Pm-f/( ^wi^ie Coi-crcrj, he (hall have it, if the Defendant does, not contradia the Suggeftion. If the
Defendant conti-adi6ts it, he fntll not challenge the Array for this Caufe ; hut if the 6herift be Couftn
to the Def'emiijnt, he cannot pray Procefs to the Coroners ; for the Procefs to the Sheriff is to his Cou-
fin, and for his Advantage, and does mt huvt him. Jenk. 1 1 5, pi. 2S.
3. 3!nan Ejeaione firms againft 4, U)I)0 plCaU BOt pUtp, iTtlJC
Plaintirt I'uggefts that the Sherirt is ot the Athnity ot one of the Defen-
dant's iiiewing how, aiiB upoit tlji0 prap0 a aDenite facias to tbe Co^
roneris, ann tljc Dctijntiant bocjs not neap it, nno upon tijiiei tt)e
=Demre faciajs 10 auiarneo to tlje Coroner0; tljigs 10 tweU niuatnen i
for tljo' none of tije Dcfcnnant^ map cijallengc tl}e arrap, becaufe
tlje ©(jeruT i§i of tlje affuutp of one of tlje DcfCiVoante, pet tlje |^5ain=
tiff oiuTljt at tlje Crial eitljer to djallcnge tljc $lrrap, anu fo oelap
ijnrifelf, or Ije ougljt not to trp it Oiirino; tljeCime tijat Ije iiS eijcrift,
iDljiclj U)iU be a great Dclap* p» 1 1 Car* m tbe €rcljeiiuer Cijam^
Ijir, upon iJBrit of (Error upon a Jungnicnt in tljc Cjrtljequer, bp tlje
2 Cljicf jufiices, upon a Reference to tljcm bv* tlje Court in tlje <&%--
cljequer Cljamber, ano after tije liUCgment affirni'H accorniugl)) iit
tlje Cjtijcquer Cljambcr, betujeen Vo^ anu ctljergi againft shepherd.
4. 3n an AHiIc by B^aon and Feme againlt diverie, tlje Plaintiffs may
furmiie that the Slieiifl'is Coulin to the Feme, and that one of the Coro-
ners is a Servant to one oi the Defendants, auO tljereUpOU prap tIjat
tlje asrit map be crecuteti bp tlje Reiidue of the Coroners, fa djat
neitijer xH ^Ijeriff nor tlje fnio Coroner intttmctitile ; ano it \%
aiuarlscB accorbiusli>. CljigiiiE) iseli aiuartscU, tljo' it be an ©riginal,
nnD tijo' tlje faic Coroner be of tlje Mi\ of one of tijeDefcnUants, bp
toljicb tlje Dcixnnantjj cannot mafec ani' Cljailenge -, for a Jurp outjtjt
to be returneti upon it to trp tljc Crsule* Com* ^yivibtjh and wu-
loi'.ghby 74*
i Show. 5. An Information in the Nature of a ^_«o Warranto was brought
2S7. plaSf. againft feveral Perfons of the City of Wcrcejter ; and the Jury being at
Pafch. 35 gjjj.^ ^ Challenge was taken, for that the Jury VJZsrcTiirncd by the Coro-
^^S C but '''^^•^5 whereas it Ihould be by the Sheriff"; as alfo that it was but by one
S.P does Coroner, when it liiould be by both, and it was indorfed as by both-, but
not appear, the Reafon was, for that the Sheriff' was one cf the Parties againft whom
-Vent, the Scire facia.s in Nature of a Quo Warranto was brought. They that
|im« b. ^°'^^ ^^^ Challenge laid there were feveral Ofences tor v/hich the Parties
ifiggins, were to anfwer, and fo feveral Actions in their Nature; and that tho' as
s'^C. but to the Sheriff' hi'itifelf, Procefs ought to go to the Coroners, yet as to
S. P. does ^.j^g others, the Sheriff' ought to return it. Saunders Ch. J. and the Court
^V^m^""' feemed to think otherwiie ; but a Bill of Exceptions was filed. Skin.
484. S. C. 91. pi. 8. Hill. 35 Car. 2. B. R. The King v. Cityof Worcefler.
fays the Court unanimoufly refolved that the Challenge ought not to be allowed, becaufe it appears by
the Record itfelf, that both did return the fame, and that no Challenge contrary to the Record ought
to be allowed. ,
2 Show. 6. Aclion was brought by one of the Sheriffs of Londoii, Procefs wds
s.6z. f\.2-6^- grafted to the other Sheriff', ft was moved in Arreft of Judgment, that
I?- "~ the Venire facias ought to have been retiinud by the Coroners. But Judg-
S c"i^-^ ment was given lor the Plaintiff:: Show. 2S6. pi. 283. Pafch. 35 Car. 2.
So in an In- B. R. Rich V. Player.
formation t^ /- . ir - «-
for a Riot in Chefier, it was fuggefted on the Roll, that tne of tie SJ eriffs was a Dejendavt ; a Venire fa-
cias was direfted to the other 6herifi". The Jury found the Defendant guilty. It was in/ifted in Ar-
reft of Tudtrncnt, that the Venire facias ought to have been direfted to the Coroners, becaufe both
Perfons make but cue Sheriff Sed non allocatur ; tor tho' one is challenged, the other may execute
the
Trial. 3^5
the Writ in the Name of both ; Thit the Coroners are not the proper OScers of B. R. but where the
SherifF is abfolutely improper, and not where there is no Sheriff at all ; for if he dies, the Coroner
cannot execute the Writ. In the Cafe of iCoroncrs, if one is challenged the other may orecute Writs,
yet both make but one Officer. So where there are 2 Sheriffs, if one is challenged the other muftaft.
I Salk. 1 52. pi 2. Pafch. 5 W. &M in B. R. The King v. Warrington. — ■ 4 Mod. 65. 66. S C.
adjud';cd accordingly. Carth. 214 S. C. adjudged l^afch. 4 W. 5. by the whole Court, that the
Ven. f.ic. was well awarded. -Show. 527. S. G. adjudged accordingly. Comb. 191. S. C.
accordingly.- 12 Mod. 22. S. C. adjudged accordingly.
(H. e) Procefs upon IfTues. For 'what Canfes it ought
to be awarded to the Coroners. Upo?i Suggejl'ion.
r-W -2 CU 367.40. Plaintiff in Ejeftione Firmse, UpOlt ^ifllie "^'^a's per
1_^« )OtU'0, iuggells that he arid the Sheriff", and one of the Core- ^^'^ 3^
neii, were all of the" Livery of t\)t eatl Of J^atCeffet, ailtl tljCrCfOte s c cited
prflDSi ©CltirC lactam to the other Coroner, ^tiltltt tftat It 10 ItOt a 5 Rep. ;6.
Hinclpal Cijallcufvc, ant> tijcreforc tijc Dcfentfant migljt croCcs tils ^- •" JSajm*
:3i'ai)cc If Ije tuoulD, pet tuafmucD n^ tjc confeffes ii, (t xsm tuell S^^"^^£"^^»
aU3articti to tlje Cotonet* ch.j And
the Reporter
fays, that in the Cafe of (1500Dil<in ll» Jfrailkjpn, lately adjudg'd in B R. and in which he was of
Counfel, this Cafe in Dyer, was held good Law ; becaufe theVen Fac. was awarded Ex aflcnfu Partiuro.
2. \Vhere it is to be awarded to the Coroners, Plaintiff fuggefts that Trials per
the oneCOtencr is retain'd of Counfel with him, aiiU ptaps Pl'OCCfjo f^'*> "5-
to t!je otljet Coroner, if Dcfenoant icill confd's it, fjc fljail tjaue tt, i'^R^TTT
otljcrtuifE not, but [fljalltjojto botD,b£caurt' it issuot a principal CijalMen-^'e pi i-s
Icnsc* * 2.0 c» 4- 2. ti» cite" s c' ■
And the At-
torney of theTenant ivotiM not corfefs, by which the Court nvciild not grant it Itit tohoth Coroners; for the
Levant may have his Cljalle>:ge if it be favourably made.
But if the Plaintiff had faid that the Sheriff had been his Relation., or other fuch like principal Challenge, he
ought to have had Procels to the Coroners, becaufe this r.iatter came from the Plaintiff himfelf ; but
in the other Cafe it cannot be tried but by ConfelTion of the Party himftif Ibid.
.^nd in the principal Cafe, if the Defendant had faid that the Sheriff had not been favourable, but an in-
different Man, there he Hiould not challenge for Favour, unlcfs htzjheiv'd Caufe of later 'fime. Ibid.
A Venire Facias was awarded to the Coroners, ita quod B. who was one of the Coroners, fe non intro~
mittat, becaufe he was tl^e Servant of K- who vjas Sheriff. It w is laid the fame was no Caufe of Ch.il-
lengc ; but the Court conceived it was, becaufe contef's'd. However it was but a Mifconveying of Pro-
cefs, which was aided by the Statute. Befide the IF^rit was direBed to ff. S. W. G. and R B. tribus aliis
Ccronatoribus Com. Berks, ita quod B. non intromittat ; and was net d'n^£tcd Caron.ttoribus generally, and
yet awarded good, becaufe it fhall be intended that there were no others than thofe 3 ; behdes it is af-
ter Verdict. Mo. 623. pi S53. Higgins v. Spicer.
3. 3If tlje Plaintiff make<S ©UUffeffiOn to tIjC Court of a Challenge
which does not comprehend a principal Challenge, but only of Favour,
it (0 not fufficient to amarti tlje ptoccfss to tUc Coroner^* D* 13 ilSn^
CU 300- SS' Pais 3 J.
(41)
In Debt the Plaintiff pray'd a Venire Facias to the Coroners, becaufe the Sheriff a-as his Mafter, and the
Defendant confefs'd it. Thereupon a Venire Facias iflued accordingly, and tiie Plaintiff had a Verdidt.
The Defendant moved this in Arrcft of Judgment, becaufe the Ven. Fac. ought not to go to the Coro-
ners upon any Suggeftion, unlefs it be a principal Challenge. But the Court e contra ; and the Plain-
tiff had his Judgment, tho' he did wo/ conclude to the Favour. Moor. 470. pi. 6-6. Mich. 39 & 40 Eliz.
Cane's Cafe. Cro. E. 581. pi. 5. CljaiTl b» SKattljtio, S. C accordingly; for as much as if the
Sheriff had return'd this Pannel, it had been good Caute to quafh the Array, and lb the Plaintiff to
avoid chat Delay, might well flicv. it, and have Procefs to the Coroners.
4 I 4 If
3o6
Trial.
Trials per 4. Jjf tijC i'iiiintirt'lhevvs a principal Challenge in the Sheriff, as Affi=
•Pais,5U40 nitv bCmUlX IjUn anti tlje @)l3enff, and Defendant confelTes it, tt fljaU l3C
j'^^';S?' aw^rueri to tlje Coconcrsi* * 9 €♦ 4- 6. 20 c* 4- 2. b* 10 jp, 6. 19.
158. a. (o)
* Br. Venire Facias, pi. 21. cite^S. C— S P. Br. Chaljenge, pi. ijg. cites 21 E. 4. 3'
So if the Plaintiff Ihews that his Feme is Coufin to the Sheriff See Br. Traverfe per &c. pi. 125. 9
E. 4. 6. where this Point is admitted.
S. P. And it 5. But (f tljE Defendant will not confefs it, ttetJDn't fljall 1)0 fllUatllCti
wd b"' to tlje Sljeciff. 9C»4.6.
Venire Facias, pi. 21 . cites S. C. S. P. Br. Challenge, pi. 179. cites 2*1 E. 4. 51. Trials per
Pais 55. C41) 140. (le?)
S. P. Br. 6. And in fuel) CHfC t!jC Defendant Ihall never challenge the Array
Challenge, f^j. ^j^jg q ^^ * Q €. 4- 6.
pi. 179. cites ^ ^^ ~
21E. 4. 91. Trials per Pais 95. (41) HO- (I'Jp)
* Br. Venire Facias, pi zi. cices S C. and fus, Quod nota ; and alfoQuEre, How this Matter ap-
pears to the Juftices of Nifi Prius, if the Iffue be tried in the Country,
Trials per 7. So if he prays Procefs to the Coroner for Favour in the Sheriff, if
Pais 55. Defendant fiys that he is not favourable, \)Z nCUCC fljaU CfjalleitgC fOC
^'^'^ lanour, unicfs of f^uifue '^Diiue* 20 ec> 4. 2. b.
In Deht the 8. jf tljC Slierilf be Plaiiitiri: in tlje ®lU't, atltl tljt Defendant prays
Defendant ^j^^t the Writ be awarded to the Coroner filC tW, pCt tt fljaU ItOt be
Iht'pSmiff ffrantcB ; foe \)z inaj? ija^e tljc Cljallense to tijc Ketutn* Contra*
fjwifelf is 2 !)♦ 6. 7. b*
Tudfrment of the Writ ; for he cannot find Pledges to himfelf; and becaufe the Under-Sheriff may take
the Pledges, and return the Writ, therefore the Writ was awarded good. But -when they come to IJfue
the Deferida77t may peiv this Matter, and fhall have Procefs to the Coroners ; and if the Sheriff himftlf
ferves it, the Array is to be quafh'd ; quod nota, the Writ good by the Opinion of the Court. Br.
Brief, pi'. 237. cites 14 H. 6. 1. & 2. Br. Office & Off, pi. 17. cites S. C.
S P. Keilw. 9. But if the Plaintiff himfelf fuggefts it, and Defendant cannot deny
9f. j'- pi-i- it, tbc t©rit njad be atnartietJ to tfje coroner^, bccaiifeif Ijimfelf rc-
7. sir'eS t»i^«!3 tije arrap it 10 quafljable* * 14 1). 6. 2.
jnont 3;m#
tip i). 0K JRobcrt BranD, cites iS H. -. Rot, 152, and 6 H, 7. pi. 3.
♦ Per Cur. The Attorney fliall be examined if this be true or not, and if he confeffes it, a Writ
fliall go to the C oroners. Br, Challenge, pi. 89. cites £. C.
&"
S. P. And 10. But if tljC Defendant denies it, tljC UBUt fljaH U alUatUClI tOtfjC
It fhall be g^ijeciff, anb tijc Dcfcnbant fljall nebct cballcnge tbe atrap foe t^isi
S[ie;g?- Caufe* 14 ^5. 6. 2. b.
pi. 89, cites
S. C. Trials per Pais 1 1 J. (145)
ti. But if tljC Defendant fays not the one or the other, but fays that
he does not know the Truth, dUsetC lUljat fljall bC OOtte* 14 V*
6. 2. b*
Trials per 12. 3if tljC Array be quafh'd, becaufe it U)a0 rnade by J. the Minifter
Pais, 35. of the Sheriff, who was aiding and of the Counfel of a Party, tljC UBcit
'*'^ fljall not be atuarbeb to tljc coroners, but to tlje ^Ijerift, com-
manning ijini to nialic tlje llt'annel bp anotljer Si9imfter* 3 3 ufl; 19.
ab)urjgeB»
13. 31f tlje Demandant fays, that pending &c. theSherifl has efpoufed
E. theCoulin of the Tenant, anH ptapiS tlje MWitt Sfi\tm<S tO tfje CO-
ronet0, pet it fljall not be gtanteo* 2 e. 3- 62. b» atijimgetJ^
Procefs
Trial. 307
Procefs upon Iflues. To 'whom.
14- 3if tIjC Array be quafli'd for Favour in the Under-SherifF tUljO Roll's Rep
TCturn'D tijc Ip^anncl, a neui ©cititc jTaciasi maybe auiamti to the 2- 2 pi. 45.
Shen.,, 3itai]iioD tlje Hnoe^aijcnff t>oe0 itot intermctimc, UJitljout ^- 'i'~r
TituarDiniT it to tije cocoitec^* ^iclj» 13 Jia* a5> 15* betiucett Waiter p,.i-;r, :t
am Walter, ^a ClU'iam* 155 cites
iS £. 4. ;.
and iS E. 4. -,. accordingly, hy all the Juftices.- S. P. But not e contra, per Cur. Br. Chalknjre''
pi. 173. cites 8 H. 6. 12. Trials per Pais 35- (39)
15- IT a principal Ii?annd be return'D, tuljiclj remains^ e3c
Default of I|UtOr0, if tljC Sneriff who is Plaintitt" returns the Tales,
tm it 10 c^iiaflj'o for tijijs Caufc, ail iljall be feitt to tlje Coro-
ners, a^ melt to iiiat^e tije principal Jpannel a^ tlje Calejj* 8 ip,
U 12.
i6. So it Iljall be tUljere it ilS for other Default of him. 8 ^» 6. 12.
17. J|f a Tales be qualh'd for Affinity between the Sherift'and Party, ^ - ,
but not the principal Pannel becaitfC it lua0 bCfOte tlje affimtpj tljCte p'is -V"^
all fljall be aujaroeo to tlje Coroners, fcilicct, tije Diftrtnijad of tlje (40 '
1t5riniipal, ano tljat tljcp Ojall return a neiu Cale.s, for tljcrc njall be
but one Officer* 38 <i£» 3 9- b* aouiDseti*
18. 3Jf tlje Array be qualh'd for Alliance in the Sheriff at the Pannel
Tnade, tl)0' it be determin'd betbre a new Writ awarded, pct it lljall bC
auiarccti to tlje Coroners anH not to tlje fame ^Ijeriff* 10 iD. 4. 5.
19- 31t tbe IBrit be once awarded to the Coroners for Default in the ^L^'-'i'J?*'^''*
Sheriff, tbe Procefs fljall not be aujartjen to tlje Sljeriff again peim- Removed and
ino; tljiis plea* s ip, 6. 12. anind<fe.ent
SherifFclect-
ed pending the Procefs. Br. Procefs, pi. 73. cites 14 H, 7. ;i. S. P. Br. Octo tales, pi 9. cites 14
H. 7 2. — S. P. For the Entry is ^lod vicecom. fe non intromittat without any >Jame. Br. Procefs, pi. 155.
cites 18 £ 4.3 Br. Challenge, pi. 17?. cites S. C. S. P. Br. Procefs, pi. iiS. cites 18 E 4. 7.
S. P. Br. Procefs, pi. 1S3. S. P.Co. Litt. 1 58. a. (o) — S. P. Mo. 422. pi. 5S6. Mich. 37 & 38 Eliz,
t.nifonU. BaraDSC— Trials per Pais 143. (172)
So where the Coro»ers are changed, Procefs fiiall ilTue to the Efliors. Br. Process, pi. 15J. cites 18 E.
4, 3.. Br. Chalknge, pi. 173. cites S. C.
Upon a Challenge to the Sheriff, a Venire facias was awarded to the Coroners, and at the Nijt Priiis a
7'ales aas return d by the Sheriff, and this by the Command of the Justices as the ufual Form is ; and a Ver-
dift and Judgment for the Plaintiff. But it was reverfed in the Exchequer Chamber ; for when the Pro~
cejs is once awarded to the Coroners, they pall ferve all other Procefs in that Caiife. Yel v. I 5. Mich. 44 &
■45 Eliz,. in Cam. Scacc. Corne v. Plaltow Cro. E. S94. pi. 1 1 . S.C. The Return of the Tales was by
a new Sheriff, and held to be Error. Yelv. 213. Hill, p Jac. B. R. Ld. Cavendifh v..Sir Geo. .S.^vil,
5. P. 8. P. Cro. £.574. pi. I 5. Trin. 39 Eliz. Morgan v. Wye. — Mo. 3 56. pi. 482. S.C. accordingly.
S. P. Cro. E. 5S9. pi. 16. Mich. 39 & 40 Eliz. B. R.Gregory v. Booker.
Tho' a New Sheriff comes in before it be return d, yet the Coroner fliall proceed in the Execution thereof.
Arg. Vent. 319.
cordingly,
and lays Quod nota bene.
21. Procefs Ihall not Iffae to the Coroner's but where Default is in the
Sheriff himitl^. Br. Challenge, pi. 139. cites 33 All^ 12. and fays that
fo it feems from the Cafe.
:zi. la
3
o8 Trial.
22. Nili Prius remain'd for Default of Jurors, by which 0£io fahs
was awarded, which was arrafd by another Sheriff, and the Array of
the Tales was challenged becaufe the Son of the Sheriff' had efpoufed the Cviifiit
of the Tenant, by which Kirton pray'd Difirefs to the Sheriff againft the
firfi Jury-, and OtJo tales to the Coroners. Per Monibray, you Ihall not
"have diverie Officers upon one and the fame Iffue to ferve your Procefs j
then Kirton pray'd Dillrefs and Oclo tales to the Coroners. Br. Procefs,
pi. 49. cites 38 E. 3. 9.
23. In Jffife, the Parties were at Iffne, and the Array was qtiafh'd for
the Default of the Sheriff, and Venire facias awarded to the Coroners ^and af-
ter Habeas Corpora, and ati:er the Parol was line Die by Depofition of
King E. 4. and the Reattachment was againjl the Party and againji the
Jmj, and fliall be dircffed to the Coroners ; per Littleton ; for the Sheriff
ihall not make to come a Jury return'd by Coroners. Br. Re-attachmenr,
pi. 26. cites 10 E. 4, 13.
•24. In Trefpafs the Defendant jujiified in Right of A. and by his
Command for Rent due, by which he dijlraind, x\\^ Plaintiff traverfed the
Title. Wood pray'd Venire facias to the Coroners becaufe A. had Retnrna.
brevitm there ; and therefore there ftall be a principal Challenge. But
Brian contra, becaufe A. is not Party to the Suit i for where A. juftifies as
Servant of B. and are at Illue, and B. is Sheriff, Procefs of Venire lacias
fhall not ilfue to the Coroners but to the Sherifl', becaufe the Sheriff is
not Party ; and Townfend accordingly. And it was -awarded that he
ihall have Venire facias to the Sheriff, or Ihall be Nonfuited. Br. Pro-
cefs, pi. 106. cites 3 H. 7. 2.
25. In J^iare Impcdit, the Defendant faid that the Sheriff is Coufm to
the Plaintiff, and pray'd Writ to the Coroners. Per Brian, he lliall not
have it tor he Ihall have it by Challenge, and this fhall be Delay to the
Plaintirt himfelf. And it was touch'd that the Defendant ihali have it ;
for the Defendant is Aifor in this Cafe, and may recover the Prefentmenc
againft the Plaintiff ; but he could not have it. Br. Challenge, pi. 153.
cites 3 H. 7. 5. rr -t
26. Array was quaff d, and it was confefFed that one of the Coroners was
of the Km of the Party, and Procefs ifiued to the other Coroners yo that
he of Kin Non mtromtttat, and this was between the King and the Party.
Br. Procefs, pi. 161. cites 4 H. 7. 3.
27. In Replevin, the Defendant made Conufancc as Bailiff of A. L. and
they were ar Iffue upon the Title of Avowry. Keble faid, the Sheriff is
Tenant to A. L. and within his Diflrefs,and pray'd Procefs to the Coro-
ners. And per Brian, Vavifbr, and Fineux, fie ihall not have it, becaufe
A. L. is net Party, nor Aid is not pray'd of him, and therefore if no Parti-
ality be in the Party he fhall not have it j but if the Bailiff had pray'd
in Aid ot hrni, and it had been granted, and they were at Iflbe and this
Exception contefled, he flwuld have Procefs to the Coroners. Br. Chal-
lenge, pi. 158. cites 9 H. 7. 2. 3.
28. It a Man snakes Title by Feoffment of J. S. it is no Caufe to have
Procefs to the Coroners, becaufe the Sheriff is Coujm to J. S. Br. Chal-
lenge, pi. 158. cites 9 H. 7. 2. 3. Per Brian, Vavifor, and Fineux.
B t per Cur. 29. An Array was quafh'd becaufe the Sheriff was Tenant to the Defeti-
if it be dant at the Time of the Array made ; now the Procefs fhall go to the Coro-
quajVd be- ners, unlefs the ?].i.mi\S^ alleges that the Sheriff has aliened the Land after ^
caufeitwas Cj- fj^ de confimilibus, which are Matter in Fa£l. Br. Challenge, pi.
made favour- . t t ait.
7ly by the ']S. Cites 15 H. 7. 9-
Procefs ihall not go again to this Sheriff; for it if fhall not be intended that the Favour fl)an determine.
Ibid.
30. A Ven. fac. was awarded to the Sheriff, and at the Day cf the Re-
turn it was entred, Quod Vicecomes non miffit breve ; the Plaintiff pray d
a Ven. iu. to the Coroners for Cofmage letwia him and the Sheriff, which
was
Trial. 309
was a\varded accordingly ; and at the Day of the Trial the Detendant
made Detaiilc, and Judgment was given &c. It was aHign'd lor Error that
alter the Piaintift'had admitted the Sherilt'to execute the Writ, he could
not pray a Ven. lac. to the Coroners without fome Caufe de puilne temps.
Scd non Allocaiuri becaufe there was fwtktiig done upon thejirft iVrit^ and
it is not now material, the Delendant having made Delault. Cro. E,
853,854. pi. 13. Mich. 43 & 44 Eliz B. R. VVi Hough by v. Egerton.
31. It was moved in Arrell: ofjudgment in Ejefclment, that the Ve-
nire facias was to the Coroners, ■without any Siiggejiion at all of any Challenge
to the sheriff' &UZ. which is not aided by the Statute of 21 Jac. cap.
13. And per Curiam, This is not aided by 16 & 17 Car. 2. cap. 2.
tho' the Right be here tried, and the Court cannot mend this Direction
of Proccfs to a wrong Officer. And therefore. Judgment was llayed;
lor the Court cannot examine the Truth without a Suggeltion. 3 Keb.
624. pi. 4. Pafch. 28 Car. 2. B. R. Hancock v. Wayman.
32. When Procels hath been a-wardcd to the Sheriff', and aftcvjoards one
of the Defendants is made a Sheriff, that Procefs ought to go to the Co-
roners ; for that now the Sherili'is a Party not indifferent j Per Cur.
And Sawyer Attorney General put this Cafe, viz. If an Action be award-
ed againft J. S. and Procefs is awarded to the Sheriff, and after J.S. is
made Sheriff, he ask'd if Procefs againll J. S. lliall not upon a Surmife
entered be awarded to the Coroners ? Skin. 105. in Cafe of the King \.
the City of Worcefter.
(I. e) Procels upon IlTaes. What fhall be good Qwfe }iot
to azvard it to the Coroners.
■I
f 6ne Coroner be allied to the Partv, attH tljC OtljCrSi ttOt, ft fljall ^"^ ^-'";
be atUitrOCD to thofe who are not allied. 10 ^, 4. 5. _ Trials
per Pais 143. (172)
2. The Array of the 7'aks was ferved ly a new Sheriffs therefore the
Venire facias denovojball ijjrie to the new Sheriff immediately ; and foit did.
Br. Challenge, pi. 85. cites 9 E. 4. 46.
3 . But if the principal Array had been quaff d in the Time of this Sheriff
who return d it, then the new Venire facias fliould ilFue to the Coroners,
and not to the Sheriff. Quod nota, Br. Challenge, pi. 85. cites 9 E.
4. 46.
(K. e) Procels upon IlTues. Upon ^vhat Caufes the
Procels lliall be takejt away fro??i the Coroners.
I- Tif ait Array be quafli'd, becaufe it tDa^ made but by 2 of the 4 Co- Br. Chal-
1 roners tnijo arc in tljc Cotmtp, tlje Iproccfjs l^aU not ljctaltenl^wi'57.'
ato)) ftom tl)e Coraiict js, but fljaU be .auiarticD to tijem again* 3 1 d es s c -
aiTt 20. ajJUngCD* Co. Litr.
158.3.(0)—
; Trials per Pais 143. (172)
4K 2. If
^lo Trial.
Br Chal 2 3if an l^Vrap be qUaflj'D beuxufe one of the Coroners who made the
lenge.pl 13-. Array is ot Affinity ot one Party, Wt tljt \pWttT& fljilU bC tO tljC OtIjeC
lart Part, (£orouer0, tta quon tije faiu Coroner Do not intetmeimic* 3 1 afl»
Trials p'^r; ^°- SiOUOffetS,
'"" ' ■ ^ 3. Where Procefs iffiies to the Coroners upon Challenge for Default in the
Sheriff and after the Parol ts ivithout Day by Demife of the King, Re-at-
tachment Ihall iflue to the Coroners againll the Jury, and not to the '
Sheriff^ for the Sheriff lliall not make to come Jurors return'd by the
Coroners ; Per Littleton for Law. Br. Challenge, pi. 169. cites 10 £.4.
49 H. 6. 13.
4. In a Scandalum Magnatum the Plaintiff made a Suggejlion upon the
Roily that inafmnch as a Brother of the Dejendant's was one of the .Sheriffs
cf London, that theretore the Coroners might return the Jury. The
Plaintiff fxid he would confide in the Indifferency of the Sheriff j but
the Court faid the Suggeftion being upon the Roll, and not denied, the
Coronermuft return the Jury. Skin. 102. Hill. 35 Car. 2. B. R. Lord
North and Grey v. Elliot.
(L; e) Procefs upon Iflues. To <ivhom it fhall be
a'Lvarded for Dejmh of the Sherijf and Coroners.
Ejliors.
Trials per i. T Jf Default be in the Sheriff and Coroners, tljC COUtt ttiap CiCft 2
Pais ?6. (42) I (gfltor^, aUti if tljC Parties can fay nothing why they Ihall [UOt]
p^^ctftf pi. iic €nior0, tljej? fijall \mU tlje panue!. * 8 ip. 6. 12. t is e*
5S. cites 4. 3' ^•
+ Br Challenge pi 1-4. cites 1 8 E. 4. S, S. C. And the Parties fhall not have Challenge to the
Array, but they may challenge the Polls, and fo no Mifchief. Co, Litt. 15S. a (o)
See pi. 5.— 2. But the ItBnt Of Diftringas fhall not be direfted to them; fOC tljC
Trials per ijiQ^xxt cnnuot uiakc ©fficei^ to BiHcain tlje licgcgi of tljc i^ing, but
Pais 56. (41) jjjg £.jj^g; 113,-jll xiXA^z tijCm, 8 ^. 6. 12.
Br. Chal- 3 jif tlJgCC be Caule ot Challenge m the Sheriff and Coroners, tipotl
lenge, pi. fljeiuing roctcof to tfje Court, tije Court tmU elect 2 Cfliorgi to matie
?c"ndthetljepannel. 15^^.4- ^4-
cias to the 2 Efliofs recites all the Matter. Br. Procers, pi. 7 1. cites S. C. Br. Venir: facias
pi. 14. cites S. C.
4. JfOr Affinity in Sheriff and Coroners, ft ttia? be aU)aC0ell to the
Juflices of Affife by Affent of the Parties, bUt ttOt U)it()Ollt tijeiC MmU
io$)»4. 5- ^
See pi. 2.— 5; 31f a Pannel be made by Efliors UpOU Default Of t\)Z ^IjCTifTantl
Trials per (j[;(j,;oner0, get tlje Difiringas njall not be tiirecten to tOe efliors, for
Pais 36 (41) jjjj (jj-om-t cg„„(,j. n,j({.g (jpfficetgi to Diftcam s^en, but tlje mxz, s
^,6.i2.b* Dubitatur*
Br. Chal- 6. tB^ttl 3 Pannel is made by the Efliors, they Ihall after-
lenge, pi. /yvards ferve all the Procefs that comes upon it, aS" tIjC ©Ijerlff
fljoum
Trial. q 1 1
fljoulQ DO if t!)C Process ijiiD iflticu to ijim* 15 e. 4. 24. is 69- cites
* ^' 4- 3. 8. ^3^^—,^
pi. 71. cites S. C. Sr. Venire facias, pi. 14. cites S C.
* Br. Challenge, pi 174. cites iS £. 4. S. S. C.
T. If a Tales be quafli'd becaufe the Sheriff is PlaintiiF, and after for Br. Procefs,
Delauk in the Coroners the Pannel is made by Efliors, tIjCP fijil!! [llOt] ^'c^a""
U mane to come hv ti)C @)!jctrtff in W ount Caufc i fdc pcratiijentiire r-^j,^^
l)c uiill not oiftram Out tijofe UjIjo arc Ijis jfnenois, * oc return pet=* toi. 671.
tp jmicjEi upon tijolc luljo are not IjtiS IvicnUS'* s fp» 6. 12. ^u^^^^y^
li»e-«Mif l<i)stneAl-
UlUlllH* fi(e was ad-
journ'd for Difficulty to whom the Procerf fhould ifTue to fcrve it ; for it cannot ifliie to the SherilF,
nor to the Coroners, where they are once found in D^tault, by wliich &c.
(L. e. z) Taks. l^Hjat it is, a?d Ho-zjd by Common La-vo,
and by Statute.
t. A Tales is a Supply of ftich Men as were impanfteird upon the Re-
J^\_ turn of the Venire Facias, grantable, when enough of the princi-
pal Pannel to make a Jury do not appear j or it a lull Jury do appear, yet
tf fo many are challenged that the Rejidiie ivill not make a Jnry^ then a Tales
may be granted. And this at the Common Laiv was by Writs of Decern
7'ales^ Odo Tales &c. (out of the King's Courts) one of them after ano-
ther, as there was Need, until there was a full Jury. But now, by the
Statutes <f * 35 H. H. 6. 4 ^ 5 P. & M. >]. 5 Eliz. 25. ^ t i^Eliz. 9. the * See (M.e)
Jultices of Aliife and Niii Prius, at the Requeft of Plaintift or Deman- ^!;,f/'jf.'.^^
dant, Defendant or Tenant, or of the Profccucor tarn quam, if two, or | ^^.g />^ gj
more, or but one of the principal Pannel appear at the Day of Niii Prius, pi. 2.
may prefently caule a Supply to be made ot fo many Men as are want-
ing, of them that are there prelent ftanding about the Court i and here-
upon the very Aft is called a Tales de Circnmjlafitibiis. Note the Differ-
ence between a Talcs at Common Law and Tales by the Statute ; the Jirji
called only (Tales,) the 2d (Tales de Circumjlantibus ;) the laft of which
cannot be granted at a Trial at Bar, which is a Trial at Common Law ; for
there it mult be only (Tales,) by Writ annex'd to the Venire P'acias.
But Tales de Circumltantibus is given by Statute to Trials by Affife and
Niii Prius, per Stat. 35 H. 8. 6. Yet fuch a Talcs to an Inditl:ment in
Wales was out of that Statute, and helped by the 4: 4 & 5 Ph. & M. 7. -^ Thisfc-ems
Trials per Pais 61. (68, 69) to be mi(-
printed for
5 Eliz cap.
25. for which
fee i M. c)
pi. 7.
(M. e) Tales. In <whcit Cafes fhall be granted.
I' Tif an Iffue be to be tried by 2 Counties, and a full Inqueil appears Trials per
X from one COUUtp, but tlje 3inqueff remains for Delauk of Jurors Pais, 62.
of the other CountP, a €;a!c0 fl)ail ue atnarQeti to tljc Coiuiti' uifjcre ^^9) —
tl)e Default 10, tiutnottotijcotljer; tot oftijcm tljetc are aireaop Lrnrf**
fUfflCient* 48 C. ^. 30. b. 49 e. 3- l- &* there were
the one County fworn, tho' there were 6 of the other, the Inciucft was not taken ; but Ocio Tales
awarded of the County that made De&ult. Br. VilnL-, pi. 77. cites 49 All i.
2. After
312
Trial.
Trials per 2. After an Inquell fworn and charged, it anv Juror dies before Ver-
pais .^ ^ig^^' ^ rgj^^-jjej- (ijflij i0-iie^ amj not a neiu 5:>emvc jfaciais* 12 ]^. 4. i».
s,p/2H. Ciua^re.
26V1. cap. ;4 a^d that fo it is, if a full Jury appear, and one of them dies before they are fworn, a Tales
Ihall be granted. Cites S. C. and 20 E. 4. 1 1. b.
3. In Attaint the yz/rj' /«/7^/V/W hy Challenges, by which the Plaintiff'
pray'd 12 A'lcliores. Wilby fiid, ?o« may have 18 Meliores if you will.
Quod nota. Br. OSo Tales, pi. 2. cites 21 E. 3. 43.
* Sec(O.e) 4- 35 -^- S. ci^p- 6. Enacts, That /tr the more fpecdy 'Trial of IJfiies to he
pi. ;. tried by 12 Mat, tn every Writ of Habeas Corpora, or Dtfiringas with a Nijl
t The y«/- Pritis, where a fill 'Jury pall not appear * before the Jtijiices of JJftfes or
iices of Nijl j^^y- pyjii^^ Of. g'lfg aj\(f Jppcarance of a full Jury by Challenge the Jury is
fufficient ^'^^ fo remain mitaken for Default oj Jurors, the utfr ices, upon the Requeji
Authority, of the Plaintiff or Defendant, are authorized to command the t Sheriff, or
by Statute Q^j^^y Mtnijler or Minijlers to whom the making the f aid Return fi:} all apper-
^" ';5 5] H. fijii,^ fo appoint fo many other able Perfons of the County, then prefent at the
to award AJfifes or Ni/i Prills, toferve, as floall make up a full Jury, who pall be
Tales de added to the former Pannel. And the Jufiiccs may proceed to the Trial of the
Circumftan- i^]ig rjj^ifh thofe Perfons that were before impannell'd and returned, and with
nbus to the ^ ^j^fj-^ newly added to the former Pannel, by virtue of this Aff, infuchwife
for Favour ^^ they might or ought to have done, if all the faid Jurors had been returned
in the She- Upon the Venire Facias,
riff, by the
Words, That he or they to ivhom tie Return of the 'Talcs pall appertain, may make Return Sec. Per Cur.
D. 376. b. pi 24. Pafch. z; Eli?,. Anon. S.C cited 10 Rep. 105 . b. in Denbawd's Cafe.
f thirteen Jurers appear'H, all of the principal Pannel hut one are challen^ffed off, fo that om only teas
fivorn. The Plaintiff pray d a Tales ife Ciramiflantiitis, and had it ; and this was held well in Bank,
tho' the Statute 55 //. S. ca-p. 6 is in the plural huniber, (viz ) they lliall proceed with {thofe) added ;
and yet if 1 1 of the firft Pannel appear, one more miy be added de Circumltantibus. And Browne held
that if 2 of the principal Pannel only appear, and at the Prayer of the Plaintitf <i 'tales of I 2 de Circiwiffan-
tihus are returned, and then the tiuo Principal are challenged out ; now the Trial fhall be by the I 2 Tales
only. But the Reporter m.ikcs a Quajre if it may be \'o by the Stature ; but fays that at Common Law
the Tales (hould pafs in Trial without any of the principal Pannel. D. 245. pi. 64. Mich. 7 & S Eliz
Anon. S C. cited 10 Rep. 105. b. in Denbawd's Cafe.
A Talcs 5. By 4 y 5P. y M. cap. 7. Juflices are authorized, upon Requeji made for
"'^y ''^ ■ ^^-'^ ^'^^"K-) °^ h' the Party that profecutcth as well for the King as himfelf, upon
Treafm by P^"^^ Statute, to Command the Sheriff' to appoint (where there ffjall not be a
virtue of juU Jn^y) fo many able Perfons, then prefent at the Affifes or Nift Prius, to
the Statute he added to the former Pannel as Jhall make up a full Jury. And every Claufe
4 S^5 Pli- in the aforefaid Aif of 35 H. 8. fhall give the fame Advantage to the Crown
-. -ivtie're^' iind fuch Perfons as Jhall profeciite for the King, as the Plaintiff' in any other
the King Aif ion might have ly virtue of the faid Aif .
i.s Party.
Raym. 5(^7. Pafch. 32 Car. 2. B. R. Sir Miles Stapleton's Cafe. See (O. e) pi. 5.
5 NelCAbr. 6. In a Writ of Entry it was moved in Arrefl: of Judgment, that a
^''i- P'- Juror appear d, and his Appearance was recorded, zud he not being dif-
and fay.s,' charged by Challenge, or other reafonable Excufe, was fworn of another
that it was Jwy-, and to f apply the Place of him and of two others who did not appear,
held good; j Talefmen were aided to make up iz of the JirJi Jury, by which theCaufe
^"^ 1/° O'^-f tried. D. 158. a. pi. 31. Hill. 4 & 5 P. & M. Drew v. Marrow.
not oblerve . ^ "^ .7
that the Court faid any thing to this, or any other Objeftions made there.
7. By $ Eliz. cap. 25. the AH of 35 H. 8. 6. for granting a Tales, is ex-
tended to Wales, the Counties Palatine of Chelter, Lancaller, and
Durham.
loRep. 102. g_ ^t the t^'ifiPrias one Juryman only appear'd. A Tales de Circutn/lan-
bk^'s'cafc ^'^'" ^^-^ awarded, and 1 1 Names were return'd, and 1 1 jworn. This wa.s
' aliign'd
Trial. 315
alTign'd for Error i for if the Juftices had Authoricyj when one only ap- S. C and
pear'd, to affign to award a Tales de Circumftancibus, they ought to ''''''• '°5- 2-
award Decern Tales and 0£lo Tales, and noc upon Decern Tales to re- jhe^'ludo--
turn 1 1. But all the Judges and Barons faid, they might award Tales menc was
de Circumlhintibus to make a full Jury, when One only appears i and affirm'd by
the Tales ihall not be Ten Tales, and afterwards Eight Tales, as in ^^^"^^ °^
Banco, but generally a Tales deCircumftantibus ^ and here the Return ti<;es'of(^ ig
of the Pannel being thus, viz. Nomina Decern Tali um de novo appolit' and Barons
the Addition of Decern is void, and ought to be llruck out, and then it of the Ex-
is well enough. I: was ordered to be amended, and the Judgment was chequer. —
affirm'd ; and they faid the common Courfe in all Circuits was to award P'i °",'^
Tales, where one Juror only appear'd. Cro. J. 316. pi. 19. Mich. lOgppear'd ^
Jac. B. R. Denbaugh v. Woodley. upon the
Ven. Fac.
and the Court held, that a Tales might be awarded deCircumftantibus, and cited loEiii. Dyer, to
prove the lame. Godb. 205, 204. pi. 291. Mich. 11 |ac C. B. Norton v. Lyfter.
At Wickam AfTifcs in Bucks, 1684. only one Juror appear'ii, wlio was challenged ; but before he was
fit upde, the Court granted a I'.iles ; by Alountague Ch. Baron. Trials per Puis, 6j (72) in
J»Iai|jme.
9. In no Cafe, where a 7rial is at the Bar, fliall any Tales de Circum- A Day be-
ftantibus be awarded. Adjudg'd, and fiid that all the Precedents are '"g appoint-
fo. Godb. 203, 204. pi. 291. Mich, ii Jac. C. B, Norton v. Lyfter. ^ ^f^ \
pire Jury, the Sheriff, by theOnkr of the Plaintiff, rounlrrmandrd a!! the Jurymen, ajainft the'Gree of the
Defend.mt, who now prav'd a Trial, wiiich was now imroOible ; for the Court, in fuch Cafe, will not
fuppiy the Jury with a Tales de Circumftantibus ; but offer'd to noniuit the Plaintiff on Record. 2
Sid. --.Pafch. i(5s3. B. R. Hunt v. Hollis.
A Trial at Bar being appointed, but 10 of the [ury appeared, and the Court would not grant a Tales
de Circamrtantibus, (b-.;ing by Origmal) but granted a Tales returnable on the next Return. Cumb.
S51. Pafch. 6 W. & M. B R. Anon.
10. There were 24 ret urn d upon the Venire Facias, and but 23 on the
Habeas Corpora, and the Jury did not appear full. A Tales was awarded,
and tried tor the Plaintili, and good i becaufe the Venire Facias was re-
turn'd full. Brownl. 183. Trin. 12 Jac. Trinbone v. Smith.
1 1. An IndUhuent was for not repairing a Way, and a Venire Facias was n Mod.
awarded, returnable at the next Quarter-Seliions. Upon the Return of '^6. p'. 5;.
the Venire only Part of the Jury appear d, and thereupon a Tales dcCtrcutn- ^'^^ ®U£fn
Jiantibus was awarded, and the principal Pannel and Tales tried the Caiife, ij^h t'-^nrs*
and the Defendants were found Guilty. Holt Ch. J. took an Exception of ^trat^:
that here was a Miftrial^ for a Tales de Circumftantibus cannot be fcrD, S. c.
granted upon the Venire Facias. And lor this and other Exceptions ^^^ ^ ^■
the Judgment was reverted. 2 Ld. Raym. Rep. 1170. Trin. 4 A.rtnie, °;^"°'^3?-
The Queen v. the Inhabitants of Stretford.
12. It is faid to have been held by Raymond Ch. J. in delivering the
Opinion of the Court, in the Cafe of tlje MtO; ll» Jf raulilpil, in Hill,
or Trin. 5 Geo. 2. That the Statute of 3 Geo. 2. cap. 25. does not exclude
a Talcs de Circumftantibus i but that fuch a Tales may be ftill granted
upon Special Juries.
13. It great Pcrfons are concern'' d, and hy their Labouring the Jury dcth
net appear, and' Talefinen are prepared Jor ihcir Turn, and there is a great
Tumult de Circumftantibus, the Juftices of their Difcretion inay deny a
Tales, and adjourn in Bank, notwithftanding the Statute. Trials per
Pais 62. (70)
14. The principal Pannel mtift Jiand, or elfe there can be no Tales.
Trials per Pais 62. 63. (70)
15. If the Tenant ^ or Lije prays in Aid of the King who has the Rever-
fion, the Juftices cannot grant a Tales de Circumftantibus, becaufe the
King is concerned. Trials per Pais 63.
4 L 16. Ic
_v±_
But Ibid, in
Alarg. fays
there is an
Inftance in
Keilw. 17(5.
pi. 10. of
the Tales
awarded in
an Appeal
before fome
JulHces.
And the like
was done
Plowd. Com.
loo. upon an
Indiftment
of Murder.
Trial.
i6. It hath been queftioned whether any Tales be grantable by Jttftices
of Oyer and 'Termitier ; and it hath been holden. That it is not grantable
by Jultices of ff^o/-I)e/wr/7. And therefore if a Trial before fuch Juitices
be put off for Want of a fufficient Number of Jurors, it feems the iifual
Praiiice for the Court not to order a Tales, but a larger Pannel, whereon
the former Jurors Ihall be returned in the fame Order as before, and called
to be fworn as theyftand, without any more Regard to thofe who were
fvvorn before than to the others, which is the Method likewife to be
obferved in the like Cafe, as to the fiuearhig of a Jury returned with a
Tales. 2 Hawk. PI. C. 409. cap. 41. S, 19.
(M. e. 2) Granted in what Cafes, and How.
Br. oao
Tales, pi. 14.
cites S. C
Br. Attaint,
pi. 45. cites
21 H. 7. 58.
s:p.
I. A Sfife remained for Default of Jurors in B. R. and 6 Tales was
^^~\ awarded returnable Crajlino dte^ becaufe the Land lay within two
Allies, and the Court was to remove the fourth Day after. Br. Procefs,pI.
150. cites 23 Alii 17.
2. In Attaint 22 were fworn, and others were chalkng'd out,"and the reji
made Default, and xhsPlaintiff prayed 1'ales of Men under 20 /. Land, becaufe
it ihall be intended that there are no more of 20 1. per Ann. in the fame
County. And becaufe it was furmifed that one who made Default was
a Man of 20 1. Land, and that it fhall not be intended as above quo.
ufque &c. therelore 16 'Tales were awarded of furors of 2.0 1. Land pei
Jnn. Br. 0£lo Tales, pi. 13. cites 36 H. 6. 23.
3. Where there are not enough of Jurors of 20 1. he (hall have Procefs oj
19/. and after of 18 1. and after of 16/. lol. and 8 1. Br. O6I0 Tales,
pi, 13. cites 36 H. 6. 23.
(N. e) Tales. /i7j^t Perfofis may have [//]
Trials per i. "|~> 20 (QU 359- 2. UpOlt Pluries diftringas 3 only appeared, piallt-
Pais62.(69) 1^, jj-ff p|;f,j)05 another Diltringas, UMtljOUt prapimjC a CalCS ; if)
Delendant pravs a Tales, tljC COUtt OUgtjt tO gtailt It. ^110 fO It 10
tljere aniiitise'rs,
14 Eliz. cap. 9. t?, I. En;;cls, that where the Plaintiff or Demandant
2.
may have, upon his Rcqucjl to the Jujlices of the NiJiPrius in England, or to
the Jujlices of Oyer or of AJftfes of the 12 Shires of Wales, and the Counties
Palatine of Lancajler, Chefier, and Durham, a Tales de Circumjiantihus,
in all fuch Cafes the Tenants, ABors, Avowants, and Defendants (if ths
Plaintiff's or Demandants pall forbear to pray the fame) may, upon their
Requejl, have by the fame Jujiices the Tales unto them granted, in like
Manner as the Plaintiff or Demandant may.
S. 2, In all Popular Anions in the ^teen's Courts of Record upon Penal
Laws, wherein any Perfoit pall fue as well for the ^leen as himfelf, the
Defendants fhall be admitted to pray a Tales de Ctrcumjiantibus.
3. Plaintiff profecuted a Dillring. Jur. and only 11 of tht Jury appear^
ed, and the Inqueft remained for want of Jurors, and neither Plaintiff nor
Dc'
Trial. 315
Defendant dejircd a Talcs. Afterwards the Defendant in another Term
•prayed a Tales of that Writ which the Plaintiff' had p-ofecuted. But the
Court denied to grant it, becaufe he did not pray it when the Dillrefs
was return'd-i and it" he would have a Tales, he mult purchafe a new
Plur. diltring. and it'then the Jury fill not, the Defendant may pray a
Tales, and the Court ought to grant it. Brownl. 35. Cumberland v.
Dorler.
4. Upon the firft Habeas Corpus the Defendant pall not have a Tales^ It feems that
hut in Default of the Plaintiff. Brownl. 35. Cumberland v. Dorfet. '^^ Defen-
dant cannot
rcgulai-ly pray a Tales till there has been a Default in the Plaintiff, a Hawk. PI. C. 408. cap;
41. S II.
5. The Plaintiff" is not hand' to pray a Tales, but only to bring in the
Record for Trial ; if he does not pray a Tales, the Defendant may. Per
Holt. isMod. 204. Mich. 10 W. ^.B. R.. Anon.
6. If the Defendant f lies the Writof Nifi Pritis hy Provifo, yet the Plain-^
tiff' may have a Tales &c. Trials per Pais 63. (70)
7. It may be prayed by Attorney (altho'the Statute doth not mention
an Attorney) as well as in proper Perfon Trials per Pais 63. (70, 71)
8. The Vouchee in a Praecipe quod reddat may pray a Tales, tho' he
be be neither Plaintiff nor Demandant in the firft Action. Trials per
Pais 63. (71)
9. It' there be 3 Plaintiff's in Replevin &c, and one of them makes De-
fault at the Nil! Prius, the other 2 cannot pray a Tales. Otherwife of 2
Copartners. Trials per Pais 63. (71)
10. Mayor and Commonalty in their proper Perfons cannot pray a Tales. '
Trials per Pais 63. (71)
11. A Bfhop or Abbot may. Trials per Pais 63. (71)
12. If a full Jury appears not in an Appeal., whether by Reafon of the
Death of fome of the Perfons returned, or tor any other Caufe, or it lb
many be challenged and drawn, that there do not remain enough to
make a Jury ; or if alter the Jury is charg'd one or more of them dies,
the Appellant may pray a Tales in the fame manner as a Plaintilf in
other Aclions, and alfo may the yf/)/)c//^f, if the Appellant negletts to
pray one the fame Term &:c. 2 Hawk. PI. C. 408. cap. 41. S. 11.
(O. e) Tales. In <what Cales \_Aci'to}is'\ it fhall be see (N.e)
granted. td'^i'^1
I. T J13 Attaint, if all the Grand Jury makes Default, a CilIC^ fljall bC Trials per
X atoattieti* 37 O* 6. 12. Pais 62 (69)
2. In Avowry at the Venire facias the Jury did not appear, and after
the Avowant had Decern tales without Provifo ; for after Avowry made he
is Acfor. Br. O6I0 Tales, pl. 5. cites 21 H. 6. 22.
3. In Affife, if fo many Recognitors make Dehulc that there are not in Affifeof
12, x.)\Q Jujiices of Affife cannot award a Tales de Circumftantibus ; for Dare ign
tho' Juftices of Affile are named in the Aft of 35 H. 8. cap. 6. as "'ell ^^''^1^^"^^^"^
as Juftices of Nili Prius, yet inafmuch as the faid A6t does not give Sg^ons j^"
Power to the Juftices of Aflife or Nili Prius, but where the Trial Ihall the County
be by 12 Men, in every Writ of Habeas Corpora or Diftringas with of Pem-_
Kill Prius, which cannot be in Affile, becaufe Affifes muft be taken in broke, it
their proper County, and never can be taken by Nili Prius in the proper ^^^^'2^"^"^.^^,
Countv,
3i6 Trial.
affirn'd for Countv, and no Expolkion may be made againfl the exprefs Words.
En-or,that j>^^^ ol fuch Opinion was Catlyn Ch. J. in his Time, and Gerard Attor-
Tales dc General, and afterwards of VVray and Anderfon Ch. Jufticcs of
Su^^af"' Aflife in Norfolk Circuit. loRcp. 105. a. b. in DfJlbaWs Cafe, in a
awarded, Nota of the Reporter.
nn''t'wbe"fn Affife but by Nifi Prius, wl.ich was held a manifcft Enw, if it bad been fo ; but upon
View of the Record it was not Tales de Circumftantibus, but (^uod habeat Decern Tales fecundum for-
rrn.n Statuti • for it is intended by their Petition that they took their Afiife in the Grand Seliions, which
rappo nted by the Statute of 54 H. 8. cap. 26. Cro Car. 34,. pi. 6. Hill 9 Gar. B^R^Cort y. the
Bifhop of St. David's, Owen and Pritchard. Jo. 530. pi. 4. %OXt i3. tl)C ©lOjOp Of g)t. Ba^JlD'S.
6 C. but S. P. does not appear.
4. In Debt Upon a penal Statute, a Tales was prayed becaufe the Jury
was not full. But tor the Defendant it was objetted, that it cannot be
■without a fpecial Warrant from the Attorney General. But per Hale
Ch. J. It may well be in this Cafe without fuch a VV^arrant, becaufe of
the hitereji which the Profeciitor hath ; but it is ocherwife in liiditfmcnts
&c. which are the King's own Suits, Lev. 223. Trin. ipCar. 2.in
the Exchequer, Verney qui tarn v
Tht Statutes 5. In Crown Cafes xhcK cxn be no Tales without a Warrant from the
•which au- Attorney General. Arg. and not denied. 6 Mod. 246. Mich. 3 Ann,
l^T*^ c B. R. in Cafe of the Queen v. Sir Jacob Banks.
Juftices or ^ ''
Isifi Prius
to award a Tales de Circumftantibus, extend as well to all C.tfifal Crfes., whether of Treafon or Fe-
lony, as to others. But it feems that fuch a Tales cannct be prayed for the Km" iifon an Indiiimevt or Cri-
minal hiforriiatkn, ni'itlvut a Warrant from the Jttorney General, or an exprefs Jfjlgnment from the Court
before which the Inqueft is taken. 2 Hawk. Pi. C. 409. cap. 41. S. iS.
(O. e. 1) ^f njohat Time.
Trials per [i] 2. \ CfllC^ CiTimCit 1)0 CnntCO at the Dity of the Return of the
Pais62.C69) /\ Venire lacias. 34 IK). 6. 2 1. aOlUOffeD*
— S. P. Mo. -^ "^ '
528. pi. 698. Trin. 38 Eliz. ISrOllgllfOil ij. JRailDall, if none of the principal Pannel appears ; But
otherwife at the Diftringas, or at the Habeas Corpora. Cro. E. 505. pi. 24. S. C. & S. P. Per Cur.
But it was then urg'd, that this was altogetlier the Courfe in Wales, where the Caufe was ; and the
Tudpment was given to award Talcs in luch Cafes. And per Cur. if it be fo, then it is no Error ; for
the Cullom of every Court is a Law in that Court. Noy 64. S. C. but S. P. does not appear.
Br. Procefs, 2. At the Venire facias returned fcrved the Plaintiff prayed Habeas Cor-
^' r'—^'pf* /""'^ '''"^'^1^ -Decein ^alcs and Ntji Prius, and could not have it j for he
Nifi Prius Ihall have only Nili Prius before the Names of the Jurors recurn'd 5 but
pi. I . cites* if Habeas Corpora with Decern tales be returned, he may have Dijlringas
S. C. with Niji Prius as well againfi thofe m the 'Talcs as a gain ft the frji Jurors.
Quod nota by both Benches i for zhcjirji Writ returned is a Habeas Cor-
pora againfi thofe of the Tales. Br. 0£lo Tales, pi. i. cites 27 H. 6. 10.
3. In Information in the Exchequer they were at Ilfue, and Vefi. fac.
returned; and the Plaintiff prayed DilUefs and Tales, and it was re-
turned. And fo it feems there that the Tales jhall ijfue with the Difirefs
before the Jury have appeared and remained for Default. Quod quare, or
it it was becaufe the King is Party in the Information. Br. Ofto Tales,
pi. 12. cites 37 H. 6. 12.
Br Ofto 4- ■'•" -^PP^^^ they were at Iffue, and the Plaintiff did not fiie Venire fa-
Tales,pl. iS. «VzJi by which the Defendant filed it, and it v,as returned fcrv'd^ and
cites S. C. then the Plaintiff prayed Tales upon the Venire facias of the Dejendaiit, and
Ad" f f ^'' ^^^ '^ ^^ Award in Spight of the Defendant j for it was faid that it was
the
~ ■ — — — '' .
Trial. 3 1 7
the common Courfe in this Place, viz. in B. R. Br. Ven. fac. pi. i8. tliatthe
cites I J H. 7. 9. T^les^as
upon the Venire facias, and before the Habeas Corpora and Diflrefs. Quod nota.
5. As to the Time of granting a Tales, 4 Things are to be confider'd.
I ft, It is to ht upon Default of fo many of the principal Pannel, that there
cannot be a full Inquelt. 2dly, That the prineipal Pannel h^fianding at
the 'time ; tor Tales is a Vl'ord iimilitudinary ^ And therefore if the Ar-
ray be quafli'd, or all the Polls challeng'd and drawn out, no Talcs
Ihall be awarded, becaufe now there are no C^ales ; but a new Ven.
fac. fhall be awarded. But if at the Time of granting the Tales the
principal Pannel is ftanding, a?td afterwards is quafi'd^ yet the Tales
ihall lland ; for if there were Quales at the Time, it is fuificient, as
appears in 34 H. 6. Tit. Inquelt 30. 3dly, He that is merely a Defen-
dant cannot pray a Tales till the Plaifittjf has made Default. 4thly, In
fome Cafes Tales Ihall be granted after a lull Jury appears and is fworn ; '
As if a Jury is charg'd^ ^W afterwards before Verdiit given in Court, one
dieSf a Tales ihall be awarded, and not a new Ven. fac. And fo is 12
H. 4. 10. a. So if any Jurors wipannell'd die before Appearance, and this
appears by the Sherirt's Return, a Tales may be awarded, if Need be.
10 Rep. 104. b in 2!)CnbilU3ll's Cafe, in a Noca of the Reporter.
6. If a Juror be withdrawn after a Trial is commenced whereon a Tales
de Circumjiantibus was awarded, and atterv\'ards a new Habeas Corpora is
taken out with a Tales, it ihall appoint fuch Tales to be added to the furors
returned on the frfi Venire, and aljo to thofe returned on the Tales de Ctrcum-
Jlantiius, becaufe the Court above will take judicial Notice of what is
done at Nifi Prius being entered on Record. 2 Hawk. PI. C. 409. cap.
41. S. 17.
(P. e) Tales. fVhat Jloall he done of the Tales ^johe?! the
Ventre facias is challenged and quafhedy and <when
the other Procefs. When the Habeas Corpora is
qualhed.
I. TiTtljE Venire faclaiS be good, and the Habeas Corpora, and all Trials per
1 the Procefs after not good, (f tlje principal [iJannCl tC tlfficm'il, P-'is6z.C(5;)
pet tfje ^am return'D (ss Moia -, far in €tftrt it is oulp a Venice fa>
tiaiS rctucneD, ann tijen no Calcs. 34 J!^- 6. 20. b. abiuogcD*
2. It was agreed in C. B. and laid to be adjudged in B. R. that where D. 78. pi 41.
a Sheriff returns a Pannel which remains for Delault of Jurors, and the ^^'fll'^^'^'
fame Sheriff returns alfo a Tales and afterwards the prtnupal Pannel is J"'^ uukles
quap'd for Ccftnage in the Sheriff' i now by this without other Trial the ron'sC. fays
Tales Ihall be qualh'd, tho* the Tales be made by another Sheriff; be- it wasmucK
caufe this Tales depends on the firll Jury. Dal. 11. pi. 13. Palch. 7 £. 6. J,°"^Cou^f
Anon. b'/t at ""^^^
the Peril of
the Plaintiff, as well the Tales as the principal Pannel was quafh'd. But Ibid, pi 42. cites KaDfOtO's
Cafe in Appeal of Murder, where the principal Pannel was quafh'd for Favour of the Sheriff, and yet
the Tales ftood and Diftringas awarded againft them, and a Precept to add 10 Tales de Novo to the
other 10 Tales.
The Quafljing the Array of the principal Pannel doth not quafh that of the Tales, but the Inqueft
ihall be taken on thofe return'd on the Tales, if there be enow, and if not others (hall be added to
them by a new Tales, Yet it feems agreed, that if all the Perfom return'd on a Habeas Corpora be chat-
• 4 M knged
3i8 Trial.
U>'s,ed ami draun, there fliall not be a Tales awarded, but a new Venire facias ; for the Word Tales
V'lainly refers to Ibmc others, to wlioin the Perfons rcturn'd are to be like. Alfo it fecms agreed, that
if thc/fiT? H,ibeas Corpora hzqKnjVd, the Habeas Corpora with a Tales cannot but be quafli'd with it,
and the rarty muft go on in the lame Manner as if the Venire had been only return'd and nothing done
upon it ; for where a Procefs isquafh'd, all that follows it and depends upon it leems of Courfc to fall
» kh it. 2 Hawk ?1. C. 409. cap. 41. S. 14.
(P. e. z) Tales njoith Provifo.
See CO. e)
pi 2. I ."pv I5CI, ^18. 10. 3if tl)C Defennant lja0 a Ipabeasi Corpora
Trials per ^J ' '^wutQxwwx wM) I^^qMq , ^zt 11)0 '^^\z% oiigijt Hot to bc
Pais 54 c^o grautcti luitl) pro\3ifa at tije Kequeit of tije DetenCant before a De-
■^ ^ taulc in this Requelt of the Tales appears in the Demandant. 15p ti)£!
S)pmion ot tijc Clcrl^jJ*
2. In Second Deliverance, they were at IfTue, and at the Fenire facias
the Jury made Default.^ and the Avo'-jd ant fray d 10 'Tales ivtth Provifo, and
becaufe the Defendant after Avowry made is become Aftor as well as
Defendant, therefore he had his Petition and Decern Tales without Pro-
vifo ^ Quod nota bene inde. Br, Otlo Tales, pi. 17. cites 21. H. 6..
22.
3. A Tales with Provifo was denied hecanfe there was no Default in the
Plaintiff i for he was ready to fue with Effeft ^ Quod nota. Br. Octd
Tales, pi. 8. cites 14 H. 7.7.
4. In Ejeifment the Parties were at Ilfue ; only 5 Jurors appear'd,
whereupon the Defendant Jhem^d to the Court, that H. the Lejfor, by hts
Friends &c. had labour d the Jury not to appear i and that for the further
Vexation of the Defendant, who had 4 Verdifts in Affirmance of his
Title, H. to procure the Jury not to appear, hadfalfcly furmifed to them
that he and the Defndant were in Coiirfe of an Agreement. And all this
was depofed in Court, upon the Oath of the Defendant himfelf, and of
one of the Jurors i upon which the Court granted to the Detendanc a'
Decern Tales with Provifo, for his own Expedition, i Le. 72. pi. 46.
Mich. 29 & 30. Eliz. Heydon's Cafe.
(P. e. 3) Tales. Challenge to t\\Q Tales, and Excej}tiof»
to the Return &'c.
I. T N J^fiare Impedit by the Earl of A. againfl the Bipvp of C. they were
\_ at Vfue, and the Defendant challenged the Array of the OBo Tales
after the Challenge of the Polls of the principal Pannel, becaufe at the Ventre
facias he return'd Mandavi Ballivo Epifcopi de C. and nm) he has return'd
that he himfelf return d the 06 0 Tales. And becaufe upon the Venire facias
fome were return'd becaufe they were Tenants of the Bi/kopy and fame becaufe
they were Tenants of the Earl, therefore upon this Caufe return'd, and be-
caufe there were none within the Franchife bat thofe who were Tenants
of the one or the other i therefore this Challenge was difallow'd. Er. Chal-
lenge, pi. 52. cites 38 £. 3. 25.
2. The
Trial. 319
2. The SherilFhad returned a Panncl^ and afta a DecetJi T'ales, iht De-
fendant challenged the Array inafniuch as it was 7nade by B Under-SherifF,
at the Denomination cj the Plaintiff'. And per Ports, by this the Array ot'
the Tales is affirm'd j for this ihall be intended the principal Pannel, and
not both Panneisi and therefore he ought to have faid that he chaileng'd
the Arrays i but Newton contra, therefore qusere. Br. Challenge, pi.
63. cites 21 H. 6. 22.
3. The Array of the Tales in Attaint was challenged becaulc it was Br. Odo
favourably made at the Denomination of one of the Petit fury., and a good T^'^^' P'- '•
'Challenge, and the Triors of the principal Pannel tried the Array oj the ^l^^^^l^^^'''
'tales and the Polls ; for they v\ere I'worn upon the Principal betore, and Hiculd be 14
therefore it there are feveral Tales it iLall not have other Triors ^ quod H. 7. 2. a. b-
nota. Br. Challenge, pi. 71. cites 14 H. 7. pl 6.] S. C.
I. , . — It ieems
by tfie Statute that npie of the Parties can challenge tie Arra) cj the Tales, but only to the Poll. Trials
per Pais, 64. (.7 0
4. .5)' 35 H. 8. cap. 6. 'The Parties may have their Challenges to the Hales
in the fame ALinner as if they had been impannell'd on the Venire facias.
5. judgment in Dower was given in Wales, and Error brought in Cro. E. 502.
B. K. The Error affign'd was, that a Tales was a'xardcd upon the Di- P'- ^4- Mich.
firingas luherc none of the principal Pannel appeared., notwithllanding which £j|^ „ ?.
the Judgment was affirm'd by all the Jultices upon Conference with the s. C. that at
Clerks. Mo. 528. pi. 698. Trin. 38 Eliz, Broughton v. Randall. the Return
of the Ven.
fac. none of the Jurors appear'd ; But upon a Habeas Corpora with a Decern Tales a Trial was had with
Part of the principal Pannel, and Part of the Talcs. The Error affign'd was, becaufe a Habeas Corpora
with a Decern Tales was awarded where none of the principal Pannel appear'd. But all the JuiHces
held that if upn a Habeas Corpora ayid Diftringas none of the Jury appear, yet a Decern Tales jhall be
awarded, tut not upon the I'en.fac. and that this is the ♦DitFerence, and therefore as this Cafe is It is er-
roneous. And afterwards it was rcverfed.
* The fame Difference is taken in M0.52S. Noy. 64. S. C. but S. P. does not appear. .Sec
(M. e) pi. II.
6. It was moved in Arrefl: of Judgment that the Sheriff'" s Name KSiias
not endorfed upon the Return of the Tales ; fed non allocatur, becaufe this
is not like a Return ot the Ven. fac. for the Statute which gives the
Tales does not provide for fuch Return, but only that the Tales re-
turn'd ihall be added to the former, which is done in the Face of the
Court ; and fo there can be no Doubt but that the Sheriff made the Re-
turn. Moor, 846. pi. 1 144. Mich. 13 Jac. Roe V. Wood. ^
7. There were only 23 return d on the Ven. fac. and the Habeas Corpora ^''o- E. 278.
was againfi tkofe 23, and one L. was added ; and the faid L. and 1 1 0/ the P'* ^^ -^'"^^
principal Pannel werefworn, and found for the Plaintiff, and he had Judg- 5 q accord-
ment j but the Judgment was reverfed ; for the whole Court held it ill, ingly.
and not aided by' any Statute, becaufe one was fworn who was not re-
turn'd by the Sheriff Jo. 302. pL 6. Mich. S Car. B. R. Fines v.
Korth.
8. In an Aftion of Trefpals for taking away the Plaintiff's Money,
one ot the Tales was challenged, becaule he was a Common Fofterer of
Thieves., and divelt in afafpicious Place., and of ill Fame ; and held a good
Challenge. Trials per Pais, 64. (72)
9. A Challenge may be taken to thofe of the T'ales de Circumflantihus.
Trials per Pais, 148. (177)
10. By 7 y 8 JK fc? yl/. cap. 32. i?. 3. Tales Men are to he taken out of
ether Juries retiirnd., and either of the Parties fhall have his Challenge.
CP. e. 4)
C^20
Trial.
(P. e. 4) Frocefs ferved. By ijohom.
i.TTCTHERE the Sheriff' returns Dijfrefs -Ji'ith Taks, the Bailiff of
y Y the Franchife ihall not ferve the Tales^ tho' the Jury of the
firfl Pannel dwell in the Guildable, and thofe of the Tales in the Fran-
chife. Br. Procefs, pi. 162. cites 2 H. 4. 1.
2. Error being aifign'd, viz. That the Tales de Circumftantibus was
returned by the Plaintiff who brought the Aftion by the Name of Sheriff oi
the fame County ; and therefore Judgment was reverfed. Cro. E. 654.
Hill. 41 Eliz. B. R. in Cam. Scacc. Stanton v. Suliard.
( P. e. 5 ) fFhiit Perfons may be ifnpa?imird upon
Talcs.
J. TN Error upon a Judgment, upon the Statute of Hue and Cry, it wa.s
\^ afiign'd that at the Ntft Pnus 5 only appear d of the Pannel^ lay which
7 deCircuiiiflaiitibus "-iVere fworn^ and alter two of the Pantiel were drawn
byConfent, and at the Return all this was certified; and one Towes, who
was one of the de Circumftantibus fivorn at the Nifi Pnus, was [worn in
C. £. where by the Statute he is to be oppofed for Trial before Juftic&s
of Nifi Prius, & non allocatur, for the Statute docs not fay that he can-
not be fworn here, and common Reafon is againft it j- for he ought to be
added by the Words of the Statute to the firll Pannel. And Haughton
J. faid, that by Confent thofe of the Circumftantibus cannot be drawn at
the Nifi Prius, but only thofe of the principal Pannel ^ and Judgment
was affirm'd, if no other Caufe be Ihewn. 2 Roll Rep. 394. Mich. 21
Jac. B. R. The Inhabitants of Chelmsford v. Harvey.
2. The Sheriffs upon the Tales de Circumftantibus may impannel a
Priefi or Deacon, if he hath fufficient Freehold of Lay-Fee ; but not an hi-
fant, nor one of the Age of 80 Tears. Trials per Pais 64. (71)
3. He may impannel Coroners, Capital Minijlers of any Corporation, Fo-
refiers. Men blind, mute, (if they have their Underltanding, but not deaf
Men) excommunicated Perfons, but not Outlawed or Attaint, not Aliens^
nor Clerks attainted, nor Perfons attainted of falfe Verdiiis. Trials per
Pais, 64. (71)
4. The Coroners may put the Sheriff^ on the Tales. Trials per Pais,
64- (70
(Qj^ e) Procefs
1 ViaL ^21
(Q. e) Proceis upon Illues. Tales. How many Jurors see cm. e)
Jloall he return d upon the Tales.
1. 11 Egularly tljCtC fljati not bt To many in tU CalCiS as were in the * Br. oao
Iv principal Pannel. * 37 tj» 6. 12. Tales, pi.
S.C. Br.OftoTales, pi. I5.cites47 AlT 10. Ibid pi. S. cites 14H. -. - s. P. unlefs
i: be in Cafe of Jj^peal. loRcp. 104. b in lDt'nbaiuD'5 Cafe, in a Nota of the Reporter.
In Capital Cj/es a Tales may be granted for a larger Number than the frfi Procefs, as for 63 or 40, or
any other even Number that the Court think.<; proper, in order to prevent the Delay which may be oc-
calioned by the Defendant'.-: peremptory Challenges. And in this refpeft the Law, with regard to a
Tales in capital Cafes, is diffn-eyit fom what it is in any other Cafe, it being an allow'd Rule, that in all
other Cales the Tales muft be for a lefs Number than the firft Procefs. 2 Hawk. PI. C 408. cap 41 S
li. S. P. 2 H. Hift. PI. C. 266.
2. In an Attaint tljCCe fl)ilU llOt U ^^ 40 Tales. 37 |), 6. 12. Br. Ofto
Tales, pi.
II. cites S. C.
[So] 3in an attaint tijcre fljall not be a 24 %dXz% UecauCe it 10 s. p. and la
m\f ajJ arc m tlje i^nnctpal* 37 ip« 6. 12. ot'^^'- ac-
3-
tions, where
the Venire Facias is of 12, there the Tales muft be under 12. 10 Rep. 104. b. in Denbawd's Cale, in
a Nota of the Reporter.
4. But tijerc map be a 20 catcis in an attaint ; fot tlji^ iis untiec ^r. oao
tljc Bumbec of tl)e principal ii)anneu 37 1)« 6. 12. Tales, pi.
"^ II. cues
S. C- It is not in E.xperience, that a Man can have 12 7ales, iwkfs in Jtta-.r.t. Br. Cfto Tales, pi.
15. cites 4- Aif. 10.
5. Part of the Jury vjas return' d by Bailiff of the Francbife, and Part by
the Sheriffs becaufe Part •was in the Guildabkj and Part in the Franchife ;
and oi tlie Franchife 6 were Avorn, and of the Guildable but 4, and the
reft were challenged, and the Plaintiff durll: not take the reft of the
Franchife, viz. 8 of the Franchife and 4 of theGaildable ■■, but pray'd Tales,
and had it, viz.. 6 Tales of the one, and 6 Tales of the other ; and fo
it feems that in this Cafe, and where the Jury is de Medietate Lingua?,
where an Alien is Party, the Plaintiff is not bound to take Jury but by 6
of the one and 6 of the other. Br. Challenge, pi. 56. cites 7 H. 6. 40.
6. It feems that the Tales jhall always be an e'ven Number^ and not an 10 Rep. 105.
odd one, as 7, 9 &c. Br. 0£i:o Tales, pi. 11, cites 37 H. 6. 12. =* cwsS C.
But i'iv<i,
that now upon the Aft of 5 5 H S. a Tales de Circumftantibus may be granted as well of an uncertpia
as of a certain Number, and this by Force of the Words of the fiid Aft, viz. fo many &c. as fhall
make up a full Jury.
Jt Common Law {except in Jppcal) the Tales might be of an odd Niimher, as Quinque Tales, or Novera
Tales ; but now fince the Statuce of 54 H. 8. the Tales may be even or odd, as pleaieth the Party; Per
Cur. Godb. 204. pi. 291. Mich. 11 Jac. C. B. in Cafe of Norton v, Lyfler.
7. A Man was arraigned of Felony, and of making of Money, and Br Ofto
pleaded Not Guilty, and challenged 31 furors peremptorily ; by which the Talcs, pi. 6.
Inqueft remained for Default of furors, and 40 Tales was awarded, re- "^"^^ ' ^'
tamable z Days after ; quod nota. Br. Challenge, pi. 70. cites 15 E.
4- 32.
8. In Jppeal for Jlealing 8 Pigs, and fo of Murder, the Defendant ^" Appeal
pleaded Not Guilty ; and at the Venire Facias return 'd, he challenged ?f ^''^"'>'^'^'='
20 Perfons, by which the Inqueft remain'd for Default, by which ,.1':,,^'^""',
JDiJtrejs was awarded, and 24 Tales -^ quod notaj cc non excipirur. fo that the
4N The
322
Jury
which the
Trial.
■y i-e- The Reafonfeems inafmuch as in jlppeal the King has Interefi. Br. Ocla
'P'.'^V^y Tales, pl- i9- cites i6 E. 4. 5.
wiiich the 3 r -' ^ -t -'
Plaintiff pray'd 40 T^i/fi, and had it, becaufe in Appeal of MwAer, R.rpe, or Felony, v;here Life is in
jfeoparHy, there hejhall have as many in the Tales as he ivill, by reafon that the Defendant may challeno-i;
peremptorily ;5 Jurors. Bat in all other Actions betiveen Party andParty, he fliall not have Tales But
ut 14,1 lip 1^1 iij -,7 juiv^ij. j^..t XI. "I* v^kixi-x .*-^.^i.-T t^w.ivwt-f. * *.r.y *./.n. •*'*/» »'^ ..j.*ii ijiji ii«v4, j.ai-^s UUC
upon the firft Number, viz. where 12 are return'd, then under 12, as 10 Tales, 8 Tales, 6 Tales 4
Tales &c. Br. Ofto Talcs, pl. 8. cites 14 H 7. 7. 2 H. Hill PI. C. 266, citesS. C,
A Man pall not have 1 2 Tales, unlefs in Jppeal, which is there infa-jorem Vit<e ; per Juftices of B. R.
Br. Ofto 'I'ales, pl. 16. cites 18 £. 4 6.- The Appdla u may have a Decern Talcs, or a I'iginti, or a
^fadyapinta'i'aXQS.. i Bulft. i2l.Parch, 9 Jac. Vicandf^e v. Gelfe.
The Reafon why more m-iy be granted in /Appeal of the Part of the Plaintiff, is becaufe the Defen-
dant may challenge peremptorily ; and if Default be in the Plaintiff, then the Defendant may prav a
Tales ; and the Keafon is in favorem Fitx, and tJiat he may expedite and free himfclf of Ve;:ation, and
QuelUon of his Life, for fear leaft his Witneffes niay die ; and vvitli this accords 14 H. 7. 7. a. 5- H,
6. 12. a. iS E. 4. 5. b. (f). b) 16 E. 4. 6. b. and fo it fcems that the 4S £.3. i. is mifprinted. 10 Rep.
104. b. 105. a. in Denbawd's Cafe, in a Nota of the Reporter.
9. In Attaint the Jury rcmain'd for Default &c. and the Plaintiff
pray'd OtJo I'ales, and had it, quod nota. Br. O6I0 Tales, pl. 7. cites
14 H. 7. I.
10. The SheriiF may return 24, 40, or any Ntimher upon the I'ales de
Ctrcumltantibus, Trials per Pais 63.
(Q^ e 2) How the Tales are to be returned with the
principal Jurors.
I. T7 Jeclmentupon Deniife at T. in Devonfliire, of Lands in W. in the
r^ lame County. The Venire facias was from T. and at the Caufc's
being carried down, and a View granted, there being a Jury, and a
Decern tales, at the Trial a Paniicl was returned promifcuoiijly of the
Jury, and Decern tales ; and now lor this Irregularity a new Trial was
granted. 6 Mod. 265. Mich. 3 Ann. B. R. Gree v. Sharp.
2. Holt Ch. J. faid there is a Difference between the Praftice of C. B.
and B. R. in Cafe of Fnws granted. If upon a full Jury in C. B. the
View be granted, and a Juror withdrawn, an Entry is made of this, and
Procefs continued againlt the Jury, and a Decern tales awarded on the
Roll ; and there may be a Command of a Talcs de Circumftantibus be-,
lides. But in B. R. it a full Jury appear, and a View is granted, and
a Juror be withdrawn, they take no Notice of it by Entry, but only
grant a new Diltringas againlt the fame Jury, except the Juror with-
drawn; but if there be a Decern tales awarded here, and a Jury appears,
and a View is granted, there they niuft take Notice of it by Entry, and
continue Procefs againlt the Jury and Decern tales ^ otherwii'e the De-
cern tales would be difcharged, and the Diltringas of the Decern tales
mull be the fame Decem talcs return'd upon the firll Writ i and to mix
the Perfons returned on the principal Pannel, and the Decem tales in the
Pannel that tries the G?rt/e after the View, is irregulaf; therelore the
Verdi6l was fee afide. 6 Mod. 265. Gree v. Sharp.
(R. e) Tales.
Trial.
323
(R. e) Tales. U'hat Tales ihall bs granted.
I. A T the Common Law liefOlt tljC @)tatUtC, bv Cuftom Of a (COUtt '^'"'•^^ P^""
/\ a 'SCnIcs de circumitantibus uiinfjt ijE grrtntct) ; foc It loao a _''^^^(^'°^
gooD Cuaom. 2:)ubitatur. p. 16 Ja. 03* E. bctuiccn Cocdyere cuitoms
^«,'^ Eliatn. (la) pi. 15.
S. C. fays, It
is not a good Cuftom in an Inferior Court, which is not within 5 2. [j 5] H. S. [cap. 6.] to grant a Tales
de Circumftantibus, becaufe this was againft the Law. Dubitatur.
An Aclkn was brought on a Policy oflnfurance hi the Mayor s Court of Tlrrful. The Plaintiff had a
Verdiftand Judgment. On Error brought it was infilled, that a Y"''y being retttrnecl, and fmte 7iot ap-
tearias;, fiieofeiiiTK^.iim cor.fmttidinem Curia pncdicf. a Jury is m.zde out De circumjiantikiii feciiiidinn Statu-
turn ill ttiH cifii provis'. whereas the ^^tatute 5 5 H. S. c.6. extends only to Trials by Kifi Prius 5 and
therefore a Tales is not gr.intable at a Trial at Bar. Nor can this be made good by the Cullom ; for
the Statute is relied on ; and befides, the Cuurt is fet out tn be held by Paten:, which dellroys the
Cuftom. But it wasanfwercd, that the Cuftom is made the Warrant for awarding the Tales, and then
thcSeiundum formam Statuti is Siirfhifatte. Mow the Court is trom Time immemorial, and then the
Patent is a Confirmation of the Juriihitlion and of its Cuftoms. And fo held the Court. Gibb. 274. pi.
iS. Pafch. 4 Geo. 2. B. R. Bill v. Knight.
2. 23 H.2. cap. 3. S. 7. Enafts, Th^t fo'r Want of fiifficient Jurors in one
CoHiity a -tales jhall be awarded into another County.^ at the Difcrction of the
Jtijiices.
3. Ac the Nifi Prius 12 Jurors appeared^ but no Hiindredor ; and upon S C. cited
Challenge all the 12 were found Pr^eter Hundredum ; whereupon '^he ^° |^_^^^°^^°5-
Plaiiitijff prayed a Tales de Circiimfiantibiis 0} Handredors ; and ^Hundre- (j^g jj.jn.
dors -were returned., and joined with thefirji 8 oj the principal Pannsl ; and dredors
it pafs'd for the Plaintiltl Qusere if it be a lawful Trial, according to ^^c': '■e- ■
35 H. 8. cap. 6. D. 338. b. pi. 42. Mich. 16 & 17 Eliz. Anon, and [j!^"^^^,^,^!!!
cites S. P. Mich. 7 & 8 Eliz. Lady Maltravers v. Powell. j^jo ,28.^ pi.
698 Trin.
38 Elii. I3rOUal)fon t, I'liJnDall, has a Nota at the End of the Cafe, that Judgment was affirm'd by
all the Jurtices, upon Conference with the Clerks, tho' no Hundrcdor appeared. But it fceras that
Tales may be of Hundredors.
But Mich. 45 &44Eli'Z. in Trefpafs 15 'Jurors appeared, and all •acre challenged Propter Hur:dredum ;
a I'ales de Circumflantihus was azvarded, and upon it 4 Hundredors 'luere fworn, and then b of tie principal
Pannel \ and found for the PlaintitF. And it was now moved in Arrelt of fudgment, that by t'.ie Sta-
tute 27 Eliz. there needs only two Hundredors ; and fo the Trial ill, tjierc being fulficient of the prin-
cipal Panne], and forthis Caufe refolved to be an ill Trial ; and a Ven. fac. de novo was awarded. Cro.
E. 849. S50. pi. 4. B. K. Hutton v. Hun.
4. The Tales ought to be of the fame Quality as the Principals are ; See Cro. E.
and therefore if the firil are P>.^r Mediecatem Linguni of Englilh and M-'^i'^'i^l' c.
Aliens, the Tales ought to be the fame. . 10 Rep. 105. a. in S^cnbaiUG's ./"'Eli?'
Cafe, in a Nota by the Reporter. R R. Dr.
• Ciefar v.
Curfing. Poph. 35 S.C. loRcp 105.3. S. C cited in Deiibawd's Cafe.
5. So if the Principal come out of a Franchife ; and whatever is required
by Law in the Principals, is required in the Tales. Ibid. And cites 3
E. 4. II. 7 H. 6. 40. a. 30 Alf. 42.
6. In an Jppeal, tftheVenirefaaas be joint., the Tiles luufr be joint. 2
H. Hift. PLC. 264. cites 27 H. 6. 5,6.'
7. It feems that in the Cafe ci an IndiBment, tho' it be at the King's
Suit, tf once a Venire facias ifues joint, there caiinct ijlae a feveral
Venire facias, nor a feveral Tales, which in many Cafes may much de- •
lay, if not frustrate the Trial. But before Jujiices of Gaol Ddi'very., '■jshere
there is no Precept, but only an Award, tho' at firlt the A\\ard be joint,
and
324 Trial.
and the Pannel accordingly returned by the Sheriff, and the Prifoners
challenge peremptorily federally, whereby there are not enough leli:
upon the Pannel to try them, and a Tales i^s awarded returnable the
next Day, yet the Court may fever the firft Award, and alio the Tales.
And cites Plow. Com. 100. a. b. Sali&liUry's Cafe adjudged. And Ld
Hale thinks this was in Cafe ofJullicesol'Gaol Delivery, where there is
neither Writ nor Precept, but a Command Ore tenus i and when an
Award is made up, then an Award upon the Roll, which the Juitices
may model as thev pleafe at any Time before the Trial, and requires
not iuch lbi6t Formality as a Writ. 2 H. Hilt. PLC. 264. cites 4 H. 5.
Inquelt 55-
8. At Common Law there ttfed to he returned 24 upon the Venire^ and
afterwards a Habeas Corpora with a Decern tales ; and il a lull Jury did
not appear, or were challenged, then a Diftringas with an Otio taleSy
and fo to the Duo tales^ if there were not a lull Jury. And this was the
Courfe until the Statute 35 H. 8. which gives the Tales de Circumltan-
tibus at the AHifes &c. and by the Stat. 5 Ph. & M. cap. 7. where the
King, Queen, or Intbrmer &c. are Parties. Trials per Pais 148.
(S. e) Tales. How many Jurors fliall be returned upon
the Tales. Taks after Talcs.
As firft to, 1- T Jf a ^alcis I)a0 been Dtantcn, anti after anotljetCalesisi txrant^
thenS, (5, 4, j[ t^i tljetC OlUjljt not tO \SZ lo many jurors in the 2d Tales as
2 and the were in the ill, UUt fCUiet, 'BrOOU ©ttO -^ale^ 15-
ii M ekes 2. As If a 12 c^alejs ija0 been ijranteQ, tfjeue (ijali not be scanten
47 Aff. I o.- afterioatugi a 1 2 'STalcs aijauu 47 atr. i o.
Ibid. pi. -. 3. [But] if a 12 calcgi tic grantcDj tljetc (IjaU aftetiuarH.s bcgtant^
s.R cites gj, ^ loCale.s* 47 an; 10*
14 rl. 7. 1.
Ibid. pi.
8 cites 14 H. 7. 7- lo Rep 105. a. in Denbawd'.s Cafe, in a Nota or the Reporter, that alwavs
in every new Tales the Number fhall be dimitiifh'd ; and cites Br. Otto Tales, pi. 15. & 14 H. -. i. ii.
& 47 Afl! 10. But that if the Talcs be awarded, and afterwards is ^a.ijIjV hy ChaUenp^e, he may have a
new Tales of the fame Number as before, and that with tliis accords 20 H. 6. 4. a. — Every ftihfe-
quent 'fales in capital as well as in all other Cafes, r/rufi be for a lefs Number than the farmer, exce^'t tbt
i'ormer Kerl Cjua(h'd ; in whicliCafe the next m.iy be for the lame Number. 2 Hawk. PI. C. 40S. cap.
■'^i. s. 13. -S P. 2 H. Hift.Pl. C. 266. cites 20 H. 6 40. a.
*The feve. 4. After thofe of the Inquefi "was challenged^ the Array oithe Ocio tales
ral Editions ^^^ challenged, and qualh'd, and Writ lent to the Coroner for * 10
tSrr^-i^s^-. Nota. 5H. 5.X.PI.2.
10 Tales;
but Brook in abridging this Cafe, Tit. Procefs, pi. 46. mentions only a 6 Tales.
If a Tales 5. If the T'aks do not amount to an Inquefi, a Tales may be granted to
iffue and fupply the former Tales. 10 Rep. 105 a. Mich. 10 Jac. in S^CUDn'OIJl s
Sar°fuTi; Caie, cues * 36 H. 6. Tit. Enq. 30.
or be chal-
lenged oft", fo that thofe that appear upon the principal Pannel and Tales make not up a full Jury, ano-
other Tales may be granted. 2 H. Hift. PI. C. 266. cites 14 H. 7. i. b.
* Fitzh. Enqueft, pi. 30. cites Pafch, 54 H. 6 but no Page, and lb this fcems mifprinted. ■ And
Staunf. PI. C. 1 5 5. b- cites P. 54 H. 6.
(T. e) Frccefs,
Trial. 325
(T. e) Procefs upon Iffnes. Returns of Procefs. fFhnt (^
Ihall be a £Ood Return.
o
I. T if il Venire fjICiil^ bC awarded to the Coroners and 2 Coroners re- Hob. 70. pi.
\ turn it^ and 3 Coroners return the Dillringas, whereas at the time ^5- but held
of Return there were 4 Coroners i ft (0 llOt ffC05, bCCflUft all tlje C0= 'J,ade"ood
roncrjj oiigijt to innlictljc Kctiint, anU to join in it, tljcp being ^i- by the sta-
niftccs ano not lungeis* |)obart'si i^cports, 97' betioeen Lamb audiu^c of
nijtMciii. agicco. >°^'''- —
-' -' . lenk. 295.
p]. ^^. Ibid. ;;8. pi. S5. S. C. This fhonld have been taken by Way of Challenge at the
Trul, and therefore ftiall not now be aflign'd for Error. But admitting 'twas Error at Common Law,
yet now being after I'eydici 'tis aided by the Statute which aids Mifreturns and infufEcient Return,";, antl
this but a JMifreturn; fo the Judgment was affirm 'd in Cam. Scacc. per omnes praeter War-
burton. Cro. J. 3S3. pi. 12 Mich. 15 Jac. Cam. Scacc. Lambe v. Wifeman. . Trials pcr
P-is 5'- C5S)
2. Jf one Sheriff of London \m^t^ a ECtlim iUitljOUt 1)10 COUlpa^ l^^^'s per
nion, It i,s not goon* *!pobatt'is Kcpott^, 97- J^'s'' ^''
♦ Kob. -o. pi. S5. that this is not holden by the Statute as being no Return at all, or a Returii without
the Sherift's Name fublbribed ; becauie the Court knows that one Shenii' there is 2 Penbns • but ic
api^ears not to the Court that there are more Coroners.
5,. In JJ/ife, the Sheriff return'd the Pamiel, and J. Bailiff^ of the Fce^
came andj/jezv'd Ifidentttre lahenhy he rettirnd certain Names to the Sberi^.,
and the Sheriff' had return'd other Names in Eleiiiijhment of his Bath^^ and
pray'd that the Inquelt be not taken, & non allocatur. And fo it Bailiff
ot Franchiie was in I'uch Cafe i but he Ihall have A6lion againft the Sherilf.
Br. Retorn de Briefs, pi. 73. cites 30 Alf 5.
4. In Writ cf Right, the Sheriff return d 2 Knights and z Ser- But Reium
jeants hecaufe there -were no more in the fame County who were not cf "/ ^ ^"ights
Affinity with the Parties ; and an ill Return becaufe this ought to ^", ^ V'
come in by Challenge of the Parties. Br. Retorn de Briefs, pi. 121. 'aiufe'thele
cites 39 E. 3. 2. are ro more
Kviphts in
the fame County is a good Return, as it is faid there Br. Retcrn dc Briefs, pi. 121. cites 39 £. 3. 2.
5. I'he Sheriff' ret iini'd Venire facias in an Appeal^ if the 'Vifne of 7'. and
after at the Dijlrtfs a new Sheriff came in^ and Dftrcfs with Decern 'Tales
ijl'iied to him, and he return'd the Dijlrefs fer'ved and the Decern tales, and
that there was no fiich VtfneofT. in the fame County. And well per Cur. for
he may return the Diltrefs ferved, be there iuch' a Vifne or not j tor the
Names oi the Jury are in the Writ. But to return Decern tales of the
Vifne of T. where there is nofuch Vifne, this cannot be, and the Return
of the one Sheriff pall net conclude the other. Quod nota. Br. Retorn de
Briefs, pi. s cities 3 H. 6. 56.
6. The Sheriff return'd in Iffties at the Diffrefs 1 2 d. \vhere the Writ is
13 d. and becaufe he return'd a lefs Sum in Iffues than the W^rit is, there-
fore per Fortelcue, in Trefpafs he was amerced. Quxre tamen i tor, per
Pailon, the Party may take Averment that the Sneriff might have re-
turn'd greater Iifues. Br. Retorn de Briefs, pi. 120. cites 19 H.
6. 8.
7. Decern ?tf/tfj- was awarded, and in the Return there wanted Manti- Js in Mfe,
captores Jurat' and the Verdict palfed for the Plaintiff, and Verdici was ^''■.c Writ
given and Writ of Error thereof fued &c. And v.here the P.utv cu^ht V-'Y ^.^^"'
4 O to
Q26 Trial.
moil' and jo have the Jury here, there Manucaptores ought to be return'd, per Lic-
therefo'.e it j^eton J. Br. Kecorn de Briets, pi. 53. cites 9 E. 4. 13.
returned Manucapt. Summonitor. &c. Br. Retovn de Briefs, pi. 55. cites 9 £. 4. 1 5.
Jtici fu in Decern 7ales, the li-^rit is Jppnas Decern Tales Qp ilks habeas hie, but in the Venire facias
the Writ is Hdbcas ibi nomina Summon' £cc. & Adjornatur. Br. Retorn de Bricls, pi. 5;. cites
9E. 4 13-
8. Habeas Corpora Jurat, the Shenff may return that every one of them
are dead^ and Wflli and it Dijlrefs --^il^ Dccera tales tjfi es, he may return
that others of them are dead, andfo upon t'oery Writ &c. Br. Retorn de
Briels, pi. 114. cites 20 E. 4. 11.
9. Ventre jacias^ the Sheriff return'd the Names of iz only upon the Bae'k
cf the Writ and net m a Schedule as ufual^ and he return'd Venire feci, and
not h'.sccutio ijitus Irevis. And all the Jultices of both Benches agreed
that they would not change the ancient Courle tor Alifchief which might
come, lor if 12 only pall he return'd.^ none foall have Jury ivtthout a Tales
if any be challenged, by which they caufed the Sherillto amend the Re-
turn in Pain of Amercement 5 and yet the Writ is Venire facias 12 li-
beros & legales Homines &c. Br. Retorn dc Briefs, pi. 84. cites 2 H.
7-8.
10. In Habeas Corpora^ the Sheriff ought to return Attachment, and not
Quod habet Corpora eorunu Br. Ketorn de Briets, pi. 84. cites 2 H.
7. 8.
11. In Diflrefs per omnes terras fiias, it a quod Habeas Corpus ejus, the
Sheriff ought to return Iffues S quod ccpit terras, or ^iwd non ctptt Corpus
&c. Q^uod nota. Br. Retorn de bnels, pi. 84. cites 2 H. 7. 8.
12. If the Sheriff returns IJJues upon iz and )iot upon the refi and the
Jury be taken, this is not Error ; tor the King has no Lois, and the
taking of Manucaptores is to the Lie of the King, per Huliey Ch. J.
But Brooke fays, J^Utere tnde ; becaufe it feems to him that it is Error
if the Return be not good, notwithftanding the Appearance. Br. Re-
torn de Briets, pi. 86. cites 3 H. 7. 8.
And per 13. In Trefpafs, the I£iie ivas found for the Plaintiff , and it was pleaded
¥"^^1^^' Jn Arreft of Judgment, that upon the Dijirefs the Sheriff' return'd Manu-
SherifF had '^^P^- ^"^ "'^^ Nomina I'kgtor. Manucapt. and the Sheriff' was examined,
return'd, No who faid that his Intent -was that the Procefs pould be -vuell ferved, by
Writ of Di- which by all the Juftices of both Benches it was amended, and the
firtis, and Plaintiff recover'd. Br. Retorn de Briefs, pi. 86. cites 3 H. 7. 16.
the y/o-y had
atteard, they pculd have been fwor}i ; for they had Day by the Roll, for no Party is in Damage. Br.
Retorn de Briefs, pi. 86. cites 5 H. 7. 16.
So upon Capias or Diftvfs agamfi the Party, per Huffev quod Townfend concept, otherwifc it is upon
Default. But Fairfax, Brian, and Suliard e contra. Br. Retorn de Briefs, pi. 86. cites 3 H. 7. 16.
14. 3 Geo. 2. cap. 25. S. 8. Enafts that the Writ of Habeas Corpora 6^
'Difiringas fubfequent to the Venire need not have inferted in the Bodies of ftich
lints the Names oj the Perfons contam'd in fuch Pannel ^ but it jhall he fuf-
fc'ient to infert infuch Writs Corpora Separalium Perfonarutn in Panello huic
brevi annexo nommatarum, or Words of like Import ; and to annex to fitch
WritSy Pannels containing the Names return'd in the Panne I to the
Venire.
(T. e. 2)
Trial. 327
(T. e. 2) Notice of Trial, and Countermand.
r. T SSUE was joined in 'fri/iitj Term 169 s y smA. Notice then ^/-ww /or If a Caufe
\^ 'Trial nest Jffifes J but }to jarther nor other Proceedings till Trinity ^^^ '''''" ^^
Vitctitioii 1696, and then the P hint ijf gave a new Notice ot Trial, viz. 14 g^d^no Pro-'
D.iys Notice for zicxt Jjjifes, when he accordingly tried the Caufe, and ceeding,
had a Verdicl ; but becaule there was no Proceeding within a Year af- t'nere mud
ter the firll Notice^ it was fee alide. Sed nota, Notice within the Term l'^ ** f '•'
had been a Proceeding within the Tear., and made Notice for 14 Days ^ood i'^'^"l-V-°i
•,Tr-,-i ^11 ^ i,»<-i -^.rii I, T^'. ,"',"■, tii-e or i. rial.
Notice ot Trial. 2 Salk. 645. pi. 6. Mich. 8 vV ill. 3. B. R. Hatchell v. cxcuding
Grilfiths. the Term
where!'. If-
fje wasjoin'd. 2 Salk. 650 pi. 2S. Mich. 2 Ann. B. R. AOiwin v. Corbill. S. P. 6 Mod. 18.
l^lich. 2 Ann B. R. laid to be <j Rule oF Court, and feems to be S. C. But Notice of Trial at any
Time within the Year, tho' afterwards countermanded, is a fufficieiic Proceeding to bring the Pliintitf
out of the Rule.
Wh-.:re Proceedings had ftaid for 12 Months a Verdift was (et aCde, becaufe Notice of Trial was
not gii'en before the ElToin Day of the Tenv» preceding the Trial. See Barnes's Notes 202. Pafch. 6
Geo. 2. C. B Geule v. Chapman.. Rep. ofPract. in C. b. 65 S. C. but not S. P. A Rule
was made, Pafch. 13 Geo. 2. in C. B to explain the old Rule forgiving a Term's Notice, and order'J,
That from and after the laft Day of that Term, in all Cafes in which there have been no Procecdinrs
for 4 Term^, exclulive of the Term in which the laft Proceeding was had, the Party who defi'-cs to
proceed ao;ai'i, fliall give a Tcr:'.'i Notice to the other of fuch Proceeding ; that fuch Notice fhall be
given before the hlToin-Day of the 5th o- other fub'eiiusnt Term ; that a Judge's Summons, if no Or-
der be made thereupon, fhall not be deem'd a Proceeding ; but that a Notice of Trial, though after-
wards countermanded, fhall be dcem'd a Proceeding within the Meaning of this Rule Rep. ofPract.
in C. B. Eaft. 15 Geo. I.
But where [Jfue was join'd more than a Tear pa fl, but the Defendant had May' A the Trial by his Prizi'
U?e of Parli.mieiit, the Court held, That in I'uch Cafe the PLintift is not obliged to give a Term's No-
tice any more than where Defendant ftaid Proceedings by an Injunction cut of Ciancery ; in which
Cafe it hud been adjudged that he need not. Sid. (;2. pi. 15. Mich. 14 Car. 2. B. R. Sir Hu Povy's
Cafe.
2. It was held by Court and Clerks, that the right and ancient Courfe On Motion
was thdt fourteen Days Notice ot Trial was the Old Rule, where the Af- '°J5? ^'''^=
fifes did not happen within 14 Days after Term ; but that now they ufe to \^ h Affifa
give but 8 Days Notice, tho' the Caufe lay ever fo remote, which the for that the '
Court i'aid was very milchievous, and theretbre it was order'd to obferve Defendant
the old Rule. 6 Mod. 18. Mich. 2 Anns, B. R. Said to be a Rule of ^'^"'^ "^'"'^
Court. f '^f'
Jrom the
Place where
ileTrialwas, and yet that there was not i^ Days Nolice ei-jen. TheCh. J. laid, Thzt fuch Kctice oi
Trial is cnly requifite to be given where the Caufe is tried in Lari^on or Middlcfex, and the Defendant lives
at 40 Miles diftance from that Place. And lb the Motion was retuled. 2 Barnard. Rep. in B R 415
Pafch. 7 Geo. 2. Anon. '
3. A Rule was made. That where a Ne Rccipiatnr is enter'd, the
Plaintiff muft give Notice the fame Sittings^ and before they are over^ that
he will proceed to Trial the next Sittings ; and it was faid that if a Caufe be
not enter d 2 Days bejore the Sittings^ the Defendant may enter a Ne Reci-
piattir. 2 Salk. 653. pi. 33. Mich. 4 Ann. B. R. at the Sittings, High-
more V. Walker.
4. Four Days is only allow'd for Countermand of Notice of Trial
when the Caufe is in Middlefex, and 6 when it is in LonJon. 1 Barnard.
Rep. in B. R. 221. Mich. 3 Geo. 2. Hilcock v. Humphrys.
5. In Michaelmas Vacation the Defendant received Notice of Trial for
the jirfi Sitting in Hill Term, ifi of February ; but on that Day received a
Countermand, with a Continuance of the Notice/or the zd Sitting, the ']th
of February. On the 5/^ he received another Countermand, with a Conti-
nuance for the laji Sitting, on the 10th. On the ^th he nxeivtd a Cvunter-
mand
C^28
Trial.
■tnand lor that iikevvile, inith a Continuance for the Sitting after Term ; and
then the Plaintiff brought on the Caufe, and the Delendant made no
Defence. On Motion the Court made a Rule ^o llievv Caufe why the
Verdift lliould not be fet alide ; and afterwards made it abfolute. 2
Barnard. Rep. in B. R. 125. Pafch. 5 Geo. 2. Harris v. Myers.
Where a 6. An Ejeiiment was to be tried at Warwick, and the J^/fe Diiy was
CaiifeKlMd the i^tb ofAuguftlaft; hwt th& Countermand was only given on the
,n London, j^^^_ 'pj^g Court dire6^l:ed the Malter to allow the Defendant his
TJ'^of^'it Cojls, for want of a fufficient Countermand. 2 Barnard. Rep. in B. R.
there muft 2 1 3. Mich. 6 Geo. 2. Throgmorton v. Norton.
piven for the Gountermand ; bid where the Caufe is laid in London, and arlfes in it, there need only be
i Days ; per Cur. Said to be the ftanding Rule, a Barnard Rep. in B. R. zi . Trin. 5 Geo. 2. Coffe:
V. Freeman.
But where 7. Notice of 8 Days was given of a Trial. It was moved to fet the
the Defen- Verdict afide, for that the Defendant's Witmffcs lived 125 MiLes from the
ofJhodJZls ^^^^'^^ where the J[pfcs were held ; fo that it was impollible lor him to
■/i/v/toX'^^ have them there at the Trial. However the Motion was refufed. 2
eioht Days Barnard. Rep. in B. R. 238. Pafch. 6 Geo. 2. Anon.
Notice of
Trial was held to be bad ; and the Verdict obtain'd by Plaintiff without Defence was fet afide. Barnes's
Notes in C. B. zio. Mich. 8 Geo. 2. Gorman v. Boyle.
8. Notice of Trial jor the Jajr Sitting '■ii^ithin Eafler Term was continued
till the Sitting after that I'erm, and atieiw3.Tds continued till the ^rjl Sit-
ting withm Trinity Term. Defendant urged, that the Notice could not
be regularly continued a 2d Time 5 and having made no Defence, moved
for a new Trial, and obtain'd a Rule Nili. Upon Ihewing Caule the
Court was ol Opinion, that the Plaintiff cannot continue his Notice a cd
Time i that is, he Ihall give ihort Notice but once i but this Notice i.s
obiefted to only becaufe it is a Continuance, the full Time being given
by it ; and had the Iford (Continue) heen out., Defendant agrees the No-
tice would be good i io that Word Jhall not vitiate the Notice, the full T'tmc
being given, efpeciaily as it is fworn by Plaintiff's Attorney, That De-
fendant's Attorney rcquefted him, after Ealter Term, to continue the
Notice till Trinity Term. The Rule was dilcharged. Barnes's Notes
in C. B. 203. Trin. 6 & 7 Geo. 2. Boyes v. Twilt and others.
9. Proper Notice of Trial -was given, and countermanded. A zd Notice
of Trial was given ; but therem the Name of the Caufe was omitted. The
2d Notice was ajterwards continued, and the Name of the Caufe was inferted ,
in the Continuance, and thereupon the Caufe was tried. The Court was
of Opinion, that the 2d Notice being bad, could not be help'd by the'.
Continuance, and let alide the VerdiiSl. Barnes's Notes in C. B. 211.
Eaft. S Geo. z Jacob v. Marlh.
Hep. of 10. PlaintirPs Attorney gave Notice as follows : I hereby countermand
Praft. in ^uy Notice of Tfnal given for the id Sitting within this 'Term, and continue
C. B. 145. fije fame till the fd Sitting ^c. The Defendant made no Defence, and
cordinglv moved to fet alide theVerdift. Per Cur. After a Notice is counter-
manded it cannot be continued i the VerdiS mull be let alide. Barnes's
Notes in C. B. 216, 217. Hill. 11 Geo. 2. Smith v. Hoff.
1 1. If the ARioH be laid m London or Afiddlefex, and the Defendant
vefides within 20 Miles of London, the Notice to appear is to be within 4
Days; and if the Defendant refides above 20 Miles from London, the
Notice to appear is to be within 8 Days. Rep. of Pra6t. in C. B. Hill.
I J Geo. 2. Reg. 3. ^
(T. e. 3)
Trial. 329
(T. e. 3) Trial pnt off orjiopt. In wHat Cafes.
1. T N an Information for Extortion an Iflue was join'd ; and the Day the
X Jti^y "'^'■^ return'd, the King feut a Writing under his Sigti-Mafiual
to the Clerk of the Crown, to enter a CeJJer of Profecutton. And Palmer
Att. General affirm'd, That the King might ftay Proceedings ; yet the
Court proceeded to fwear the Jury, and laid they were not to delay for
the Great or Little Seal i whereupon the Attorney enter'd a Noli Profe-
qui. I Vent. 33. Trin. 21 Car. 2. B. R. The King v. Benfon.
2. The Day hejore a 'Trial was to be at Bar^ the Plaintiff moved to put it
off, hccatfe he isuanted a iVitinfs to prove a Deed. The Court denying the
ivlotion, the Attorney the next Day refttfcd to bring in the IVrit, it being a
Contrivance to prevent a Nonfuit. Whereupon the Court ordered the Roll
to be brought in, that they might take notice there was fuch a Writ ; and
that being done, the jittorncy was committed ; as was formerly done by
. Hale Ch. Juft. 4 Mod. 367. Mich. 6 W. & M. B. R. Jones v. Earl of
Bath.
3. In an AS ion by an Adminijirator it was moved to put off the Trial, ?,-^f°c' ''*"
till a Suit pending in the Spiritual Court, concerning the Right of Admini- , 'salisburir
Jiratioft, was determined, which was ready for Sentence. But it was v. Proctor
denied ; for B. R. cannot take notice of Suits in thofe Courts. 2 Salk. is a D. P.— .
646. pi. 10. Hill. 8 W. 3. B. R. Salisbury v. Proaer. S° '° ^f-
^ ^ ^ fumffit the
IlTue was, Married or Not mnrrkd ; and iht farm ihivfy was depending, and ready to be determined iri the Spi-
ritual Qtirt. This was held no Caufe Co put oft the Trial ; for the Court cannot take notice of that.
; Salk. 649. pi. 22. Anon.
4. Affidavit for putting off Trial was, that one of the Defendant's Wit- Reynolds J.-i'
ficjjcs -was gone to New-Tor k, and the other was lately become a Bankrupt, ["f^ *". *°""^
and abfconded. It was objefted, that the Defendant ought to have fvvorn impoffible ^*
when he believed his Jirfi Witnefs would be back, and that his zd would ap- to fwear,
pear ; for at this Rate a Trial might be put off tor ever. But the Ch. when he _
JuJlice faid, as this was the firll Time the Defendant had moved to put ^''^^^ ''^
it oft", he did not fee but fuch an Affidavit would do. But for fome other win "be*
Defect in the Affidavit, the Court did not grant the Motion in this Cafe, back; as
I Barnard. Rep. in B. R. 39. Hill, i Geo. 2. Anon. was in a
Cafe the
other Day,' uhen a Trial was put off upon account of one of the Defendant's Witnejfet
being crone iiith Sir Charles Imager's Fleet ; in which Cafe-, he faid, it was impojJlhU to fwear lihe/i a
jUan ietteves he would be baik, unlefs you could know what the Orders from the Governnjent were
Ibid
5. It was movd that the Plaintiff' might not go on to iVml without frfl
paying the Cofts of a former Notice. The Court feemed to think tj:iat the
Defendant ought to have applied by way of Attachment lor the Piain-
tift's not paying Cofts. But it appeared the Plaintiff was already in
Cuftody, fo that the Attachment would be but oi little Service, the
Court made a Rule to fhew Caufe, and afterwards made it abfolute. i
Barnard. Rep. in B. R. 44. Pafch. i Geo. 2. Smith v. Lidcote.
6. A Motion was made in Eafttr Term to put off a Trial to Mich. Term ; ,A like Mo-
but denied as a Thing never done i for with the fame Reafon it may be tion was
put oft' tor ID Terms, and at that Rate the Plaintiff might be delayed '"^de, and
for ever : But on ftiewing a Precedent in a Caufe between H!)in*I)tCIU litttl cordin'^1^'^
ClliSi, Mich. 12 Geo. i. where a Trial was refpited from Michaelmas upon fteV
.to Eafter Term, and upon urging the Neceffity of the Cafe, the Court ing Caufi?, '
granted a Rule to Ihew Caule ; and afterwards the I'riai was refpited ^'lo' it was
4 P accord-
330
Trial.
declared 'the accordingly, but at the Peril of paying Cojis, if the Defendant then de-
common j-jj.g(j turcher Time. Rep. of Praft. in C. B. 45. Trin. 2 Geo. 2. Wil-
Prafticc was ^ YvCVich.
onlv to put
off Trials
from one Term to another. Rep. of Praft. in C. B. 119. Trin. S & 9 Geo. 2. Stratford v. Marfliall.
. . This was granted upon jfida-vits that a material t-Fitnefs for the Defendant u/as gone to Sea, and
was fiot expected hiime till Jugujl next. Barnes's Notesin C. B. 319. Palch. 8 Geo. 2. S. C.
7. On Motion to put oif a Trial, becaufe a material Witnefs to a Deed
was beyond Sea^ it was obje£led that this might be proved by Parity of
Hands. But the Ch. Jultice denied it, becaufe the Delivery oi a Deed
muft be proved. To which it was faid, that it was only an ordinary
Writing. But the Court faid it was all the famci and the Motion was
granted, i Barnard. Rep. in B. R. 346. Trin. 3 Geo. 2. Smith v. Cap-
tain ....
8. Affidavit to put off Trial was, that one of the Defendanf s material
Witneffes was taken dannroiijly ill this Morning ; Jo that he could not attend
at the Trial. He hud an Affidavit likx-jjife^ that Notice of this Motion was
left at the Attorney s Chambers. But the Court faid. As it does not appear
that any Body was in the Chambers, tliat Notice was not fufficient. Ac-
cordingly the Motion was difallowed, Ch. J. abfent. 2 Barnard. Rep.
in B. R. 58. Mich. 5 Geo. 2. Anon.
TheAfBda- 9. Affidavit ioT putting off Trial for the Abfence of a VYitnefs, was
vit men- only that the IVitnefs ivoiitd not be back till Aiigiijl, but not when he would
^vtntA, that jjg \)3,c]<;_ certainly ; and lb a Rule made was diicharged. But upon pro-
tice°of Tr°ial ducing another Affidavit, that it was verily believed the Witnefs would be
"■iven, the back in September, the Court held this Affidavit to be fufficient, and made
"Witnefs a Rule for Ihewing Caufe why the Trial ffiould not be put off, on Pay-
•went over to Yc\tr\x of Cofts. They faid that thefe Rules are always drawn up on Pay-
NoraWy ment of Colls, whether there be any Colts that the other Side are at,
But the ornot. 2 Barnard. Rep. in B. R. 294. Trin, 6 Geo. 2. Elliot v. Crifp.
Plaintiff's
Counfel obferved, that Roan v/as not much f)nther off than Tork; and therefore the Plaintiff might have
had him over by the Time of the Trial, if he had thought proper. Judge Probyn faid the Plaintift"
could have no Proccfs to bring him hither ; accordingly the Kule was made ablblute. 2 Barnard. Rep. in
B.R.' 305. S.C.
I o. A Motion to put off a Trial was uponAffidavit of fever al IVitneJfes be-
ing wanting, who were fworn to be material Witneffes, as he believes.
The Motion wae denied, becaufe it is not fworn poJitively that they
are material, which is always required ; for that the Court will not de-
lay the Plaintifi' without manifelt Caufe. Rep. of Pra6l. in C. B. 81.
Mich. 6 Geo. 2. Welberry v. Lifter.
A •'d Per- 1 1- Rule was made lor Plaintiff to fhew Caufe why a Trial fliould
fon made not be put ofF upon the Affidavit of Defendant's IVtfe, that Defendant was
Affidavit, ^f^fjg lo ^gff J ^fi^ yi 2}. a material Witnefs, as pe believed, with him. Court,
Knowleee "P°" ^^^wing Caufe, difcharged the Rule, the Affidavit not being fuffi-
A. B. was a cient. Barnes's Notes in C. B. 314. Eaft, 7 Geo. 2. Gray v. Hakon.
material _ _, ^ ,
Witnefs for the Defendant. And thereupon it was moved to put off the Trial ; but the Court rcfaied
to make any Rule' upon this Affidavit, becaufe none but the Party him/elf can /wear to any f erf on' i being a-
materiallVitnefs. Barnes's Notes in C. B. 515. Mich. 7 Geo. 2. Carter v. Uppington.
Soon a Motion to put off a Trial, upon the Defendant's Attorney's Jffidaiit, th.%t l". M. was a mate.
rial IVitnefs, and was beyond Tork ; and that he could not have him in London Time inoite,h to give his Eui-
dence upon the "rrial. The Court faid the fettled Rule is, that the Defendant muft make Affidavit him-
felf without which the Trial is never put off ; therefore the Motion was denied. Rep. of PraCt. in
C. B. 96. Hill. ; Geo. 2.. Price and another v. Warren.
Barnes's 12. On a Motion to put off a Trial, it was declared by the Court,
Notes inC. That all Motions for refpiting Trials fhould be made 2 Days at leaji before
the
Trial. 331
the Day of Trial i and in the prefenc Cafe, the Motion being made but R-5'3- S. C.
one Day belbre the Trial, it was denied. Rep. of Praft. in C.B. 98, J^'^'^^'J"'
99. Eaft. 7 Geo. 2. Roberts v. Downes. /^^'„ ^^^.^.
to fet off a
Dtbt, and ihe ff'^taefi fworn in be abfent vjns materia! as to that Matter only. The Court were of Opi-
nion, that that being a Collateral Defence, and as no Trial had been hitherto put off upon that Ac-
count, the Rule mull be difcharged — Such a Motion was denied, becaufe by the Courfe of the Court
thefe Motions muft be made at leaft z Days before the Day of Trial, ana becaufe it appeared by the
Affidavit whereon the Motion was grounded, that the IFitnefs -^ent out ofTown after Notice ot I'rial
gtveii ; fo that had the Metion been made in proper Time, it could not have been granted. Barnes's
Notes in C B.. 512. Trin. 10 Geo. 2. Bourne v. Church.
S. P. Barnes's Notes in C B. 9 1 5. Trin. 7 & 8 Geo. 2. Roberts v. Ld. Hillsborough. S. P.
Rep. of Praft. in C. B. 105. Trin. 7 8c 8 Geo. 2. Agar v. Hill. S P. Barnes's Notes in C, B. 525.
Trin. 1 1 & 12 Geo. 2. Sellon v. Chamberlayne. -Rep. of Praft. in C. B. i 50. S. C by Name of
Sellen V. Chamberlain. Barnes's Notes in C.B. 325. 326. Hill. 12 Geo. 2. Martindalc v.
Shipman.
(T. e. 4) Trial Put off or Stopt. In what Caies, tho'
th Jury arc ready.
I. TiNT Treppafs after Ifftie, the Defendant has Aid and Venire facias Br. Venire
\ againlt the Jurors, and Procefs to warn the Prayee, if at the Day facias, pL 9.
the Sheriff returns the Jury^ and returns the Prayee Nihil^ the Inqueft fball '^"** ' '
not ftay till other Procefs againft the Prayee, but Ihall be taken imme-
diately ; and fo it was. Br. Enqueft, pi. 13. cites 7 H. 4. 31. 3s.
2. Enqueft was fworn between the King and a Felon upon an IndiSment^
and becaufe the Roll thereof was not ready m Court^ they were fufter'd to
go at large; and the next Day, when the Record came, they were fworn
again, as if they had not appeared before. Br. Jurors, pi. 6. cites 7 H.
4- 39-
3. W^here the Jury appear full, the Parties by Affent cannot have Day
given over to the Jury ; but may have them demanded again, and caufe one
to make Default, and then Day ihall be given over. Nota. Br. Jurors,
.pi. 15. cites 4 H. 6. 6.
4. Precipe qundreMit by 2 againft A. vj^ho are at IJfue, and at the S.?.'mCo-
Day of the Inqnefl the Tenant pleaded a Rdeafe of the one of all Aifions, and fmage; for
prayed that the Inqueft fhould ftay againft the other. Sed non alloca- '*": ^'^^ J*
tur; toT the one may be fummoned and fevered ; and therefore the Releafe fvi(,jgt„ Uj.^,
lliall not prejudice the other* Br. Enqueft, pi. 87. cites 10 H. ^d. 9. 10. Inqueft, pi.
70. cites 10
H. 6. 9. and Fitzh. Inqueft, pi. 14.
5. Note, it was held, that where EJfoin was cafl upon Bill in Cufiodia
Marefchalli at the Alias Venire facias y fo that the Court would advife for ^ .
Doubt, there the Jury Ihall not attend it, but ihall depart and Ihall * come ^^J.f^J^^.
again by Procefs at another Day when they are relbived And it ieems
that Day pall be continued againji them by the Roll. Br. Enqueft, pi. 36.
cites 5 E. 4. 70.
6. In Trefpafs againji 2, the one pleaded Not guilty, and the other plead- So where
<d Excommunication in the Plaintiff after the lajt Continuance, Judgment if ""f^y^'^^e-
he ihall be anfwered, there, notwithftanding that the Jury be ready "po" {/"^^"o,,,.
the IlFue, itfliall not be taken, but Ihall be refpited till the Difability of ia^yi„ffjs
the Perfon be tried. Br. Trefpafs, ph 165. cites 15 E. 4. 25. Per Choke P/<,/>;//f
and Littleton. ;'/'"■. "^^ ^"fi
Lonttnuance ;
for /iv/e P/e.« ^0 ro <t« rer/on ; Per Choke and Littleton. Br. Trefpafs, pi kJj cites 15 E 4. 25.
But
332 Trial.
But where the one pleads to the IJfue a Plea which goes to Panel, and Procefs continues to the Habeas Ccy-
f:iS, and then the other appears and pleads a Plea which Foes to all ; yet the Procefs fhall be continued
againft the firft Jurors, notwithftandiiig the Plea goes to all ; Per Choke and Littletoli. Br. Trefpafs,
■pi. 165. cites 15 E. 4. 25.
7. 7'refpafs. upon 5 R. 2. they were at IfTue, and the Plaintiff and the
Iiiqueft- appeared, and it was Jhewn for the Defendant that he "was in Prifon
in London upon Plaint, and prayed Refpite till the next Day : And be-
caufe it was true, and the Matter great, it was granted en affenfu Partium
t? Juratornm. Br. Inqueft, pi. 46. cites 21 E. 4. 18.
8. No Exception ihali be aJlow'd \ot itaying the Inqueft unlefs it be
an apparent Fault, and -not a Doubt only. Arg. 3 Le. 237. pi. 326. in Cafe
ol Broughton v. Prince.
* Br. Pan
rel, pi 15
(TJ. e) hqnejl. In njohat Cafes the Inqueft remains for
Default of Jurors.
I. T jf ait Iffue be to be tried by 2 Counties, if only one of one County
. • - \^ appears, tho' a lull Inqueft appears trom the other, J)0t tlj6 Z^iX-
TrLu vtr qit^ft fl>ill rcuiaiii for Default ; tdi* tljcp cannot trp tW uiljicD ip in
Pais 71. tijc oti)ec Count}.'* 4S €* 3- 30- * 4^ ^iff* s- arijUDgeo*
(81)
Trials per 2. [And] n^ijcn ou llTuc i^ to U trien bp 2 couittiesi, tliere ought
Pais 71. to be 6 Jurors of one County and 6 of the other tO tip It* 48 (£♦ 3- 30.
* Br Vifne, 49 ^* 3- I- 0* 4^ SIT, S- * 49 m I. aUjUtigetl*
pi. 77. cites
S. C. And the Inqueft fhall not he taken till fo many of the one County and fo many of the other
appear and are fworn. Br. Enqueft, pi. 66. cites 49 Aff. i. and 50 Aff 42.
3. But fee Contra 4 1>* 4- 1- Ciu^te Uiljctljec 4 of oneCountp an5
tlje EcfiDue of tbc otljer uiiii feme*
Trials per 4. And fcc 7 J)* 6. 40. aunuttcti tijat tulictc oue 31nqucff itia^ rc-
?^'^ V- turn'd out of a Franchife, and the other out of Guildable, tIjat 4 Of tIjC
there ou'ht ©uUnablc auti 8 of tlje Irancliifc arc fuffcient* But ttjere Ije prap'D
to be 6 "^ a 6 'QDalc.s, faecaufc ije oavco not to taUc tlje iaeinnant*
out of
the Franchife and 6 out of the Guildable.
5- Jf an JtiqUeff he retum'd for Land in Guildable, (fit nppCatg 6j>
(JCJCaUiUiatlOn tljat Part of the Array was return'd by aBailih'ota
Franchife, bv which it is quaih'd, bCCaUfe tlje ^IjCtlff DOC0 UOt niCU^
tion it, all tfjc 15»annel fljall lie quanj ia, ano tbe Iinqucft not tahen of
^ tlje ixefioue* 17 ^* 3 5°- - .
Er. Enqueft, 6. 3if 2 Pannels are return'd in Affife by feveral Bailiffs of Franchifes
pi. 63. cites j0 f jp j;j^ JfTUe, and one Pannel makes Defiult, tlje JlfUe fljall UOt UC
TrTaiT^r trleO W t\)£ otljer pannei onlp i for tlie Iiirotsi ui one jTrandjifc can=
Pais 7 1! not make tljc aDieui in tlje otDcr Jf rancljife* 3 o air* 42- aujuupti.
(81)
7. If Affife remains for Default of Jurors, there if the Plaintiff te^i-
Jies that the Jurors are tn the Vill which were fummon'd to be in this Affife,
and proves it by Oath of the Bailiff, they fhall be fworn notwithfandtng
that they were not firji impanneWd j ^lare inde at this Day. Br. Jurors,
pi. 24. cites 26E. 3. I.
8. If
Trial.
333
8. If a Vmin' is awarded^ and they don't go to Trial the next Affifes, 5 New. Abr.
but K lies for fcveral Terms, the Continuance may be made by a Vtcecomes non ^4"- aj-ethe
tnijit breve ; but it' a Nife frius be awarded, and feme of the Jury appear, ^Yords"'^
and the Pannel be not full lb that the Trial is not carried on, they only
enter thofe of the Jiiry that appeared, Et alii non venerunt ideo refpeSuentur
to the next Term, pro defeffri Jur' j and at the Day in the next Term
they award an j^lias dtjfringas to the next AlTifes with a Nifi Prius till
the next Term. G. Hilt. C B. 66.
(X. e) Jurors. Inqueft. Ho<w many Jurors ought to he
returtid. And by Iwjo many Jurors the TJjue ought
to be tried.
I. T il3 Attaint, if the IlTue be upon a Matter out of the Point of the Br. Trials
X Attaint, as UpOlt a l^ICil 0f Non-tenure, tlje %m\ fljall bC bp 12 P'- 5?-
3!wtoi-jS. 2 1 e. 3- 10. b. T?!'^, ~'
the Jury in
Attaint called the Grand Jury, mull be 24. Trials per Pais 72. (S2) cites Finch. 412. and 485.
2. J\\ a Writ to inquire of Wafte, t\)t @)IjCrifFmap iltqUirC of It by Cro. C. 414.
i^ Jiiror0; fot it is but an a^naueft of ©fficc. i^iclj. 1 1 Car, 15. E* F' '^c^!"^
bCttneCtt VUch and Kinge, aOltlOgCtl \\\ tlBtlt Of €Uiil a0 tO t\M \^mU Midi ' 1 1
3!ntr amr* 9 Car, Rot. 2 1 3 . ca,.. b. r.
S.C, and S P.
affign'd for Error ; for that it is not like to other Writs of Inquiry, where it is ufual to have more than
f 2 at the Sheriff's Pleafure, becaufc that is but a meer Iniueli of Office ; but here it is a Verdict and
in Nature of a Verdidt, whereof an Attaint lies and cites 5 H 6. 29 Sed Adjornatur, nothino- being
fard to it by the v_ourt. Ibid. 452. pi. 24 Hill. 1 1 Car. B. R. S. C. but nocijing insntion'd as^to thi*
Point.
3. [And] apon fuel) USrit, tljc ^IjcrifFiiiay ituiitirc by 6 or s ju- r^v^/v-^n
rors, or any other Number under 12. iflt?!), Jl3a» loXt 107. (CO ^°'- '^''^■
4. "M a Writ of Right, if tIjC Iflue be join'd upon the mere Right, * Cro. c.
tIjC 4 Knights who are the Elilors, may "ele£l and return 20 more to JJ.''P'-J-
themfelves, tho'the VV rit Of a^CnitC faC(a0 is to eleft de leipljs & aliis 1 2 Car b R*
&c. for fo it is in ctiecp orntnarp mwvcz facias 12 (jc* atiD pet 24 are s c. and'
iifcQ to be retiiriVU, p, ijCar, OB.E. betiueen * tljc Kwg and Dnden, «• p ^ut
an0 otbcrs. I2)er Curiam aojuorD poa, auutijcu Biliers prece= f "''°^ '''^.
Cents fijcinn accoromijlp, fcilicet, 13* 31 €1. bctuiecii I'tgot andCtap. ad^fe'—
man 15, R, 94. S^tCl), 43 f 44 CU 15. betVUCeil Jindrcws and Cromwell. Ibid. 574. pi.
Rot, 176. 22 CI, tljC DiffrmgaS between Foltambc and Leeke. SDIU •'^- Hill I J
CH5ooh of entries, 103. Droit ne auDouifon, s- s'c^bS"
S. P. does not appear. Ibid. 5S5. pi. 10. S. C. but S. P. does not appear. Jo. 452. p], j. Hill
15 Car. The Jjling i), ilstmSlmiU, ^repOtn, & al. S. C. but S. p. does not appear. '
5. But ©10 entries 'iJitleDifcIaimer 2, [tlicrefljallbe] onip 16 Mtlj to makea
tije 4 Cfliors, fcilicet, 12 to ttjenii ano tljerc 'sacttie Droit i. ©Dc ^'■y •" *
Cfliors elect to tfieni 12 $c» ano lo mt% Droit 66. r^'i'„°*
which is cal-
led the Grand Affife, there mull be i(J (viz.) 4 Knights and 12 others. Trials per Pais 72.(82)
6, 3ln a i©rit of Wi^^^t, if tlje Jlfuc be join'D upon tl}e mere se= the
3Riffl3t, tljCre mav be any Number of Jurors fworn above 12, not eX- ^o^''' <>"•
ceeding 24 (as it feenis) to trp tijc Jfliie, 10, 15 Car. 1% Xk. bctuiccn ^ *■
4 Q. tijc
334- Trial
tije Ki>}f and Dridcr,, auti otl}cr0, III WxM Of Eicbt Of anijotofon,
ti)€ 4 l^.iualjts electors, nnn 12 more ot tlic pannEl, in all 16, rujocit
to tip tije 3 true, aiiD tijep trteu it accortJingij) i ano aDjungcn goou.
Jntratur»
7. And tDe Court fain if tijcce ate only 12 fmoni tijcp map trp it,
^\i^ fo if more than i6. 15Ut tf)C ufual Courle is to try it by i6.
8. Inqueft cv^^/v? ^o be fail wahotit the B 'iHicJJes, and if any of the
AVicneli'es are returned upon the Inquelt, they Ihall be oulled ; and if
the Inqueft and the Witneffes cannot agree, the Verdift of the In-
quelt only ihall be raken. Br. Enquelt, pi. 6i. cites 23 Afl'. 11.
9. Grand Jury jhall be always more than 12, as it feems. Br. Droit dc
Redo, pJ. 18. cites 39 E. 3. 2.
10. In AlFife it appears that "when Vifne is awarded of two Counties,
that each Sherijf Jhall return 24 ; for it is faid there that the Sheriffs of
both Counties Ihould have return'd a full Pannel, and of the one County
came 16, and ot the other County came but one ^ and io it feems that
each Sherirf' iliall return 24 i and it appears there, that 6 of the one
County and 6 ol the other County Hiall be fworn to try the Iflue. Br.
Pannel, pi. 15. cites 48 All. 5.
S. P. Jenk. 11. In Venire Facias the Sheriff return'd the Names of 12 only, upon the
111' A ?'^.'a ^•-''■^k of the Writ, and not in a Schedule as ufial, and he return'd Venire
of Tud'^mcnt -^ ''"i ^^^ ^'^^ Exccutio ijlius brevis ; and all the Jultices of both Places
Ex-cepnoii agreed, that they would not change the ancient Courfe for Mifchief
was taken v/hich might come ; tor if 12 only pculd be returned, none ponld have Jury
Sh'^ "ff^K A '^''"^''"■^^ ^ Tales, if any were challenged ; by which they caufed the Sherilf
rttmmd a '^^ amend the Return in Pain of Amercement, and yet the Writ is Ve-
Pa- nel of 12 nire-Fac 12 Liberos & Legales Homines &c. Br. Retorn de Briefs,
only; and n]. g' citCS 2 H. 7. 8.
held well t^ ^ '
enough ; foi- the Statute fays the Sheriff jhall retmn >io more than 24, and does not fay he Jljall not return
lefs ; and before that Statute the Mumber was indefinite, and not afcertained. 2 Show. 309. pi. 51-.
Ti-in. 55 Car. 2. B. R. Stopford v. Haughton.
But Bend- 12. The 4 Knights ought not to return of the Grand Jffife more than
iiThaVfecn " Per^ns befides thtmfehes ; by all the Jultices. Dai. 68. pi. 36. 6
14 return'-d E^'^^- Squirrey v. Reade.
of the Grand
Affife, befide.sthe Efllors. Ibid. 69. Mo 6:. pi. iSi. S. C. that they ought to return 12 only,
befides themfelves; and that Bendlowes faid he had fecn 14 return'd.
13. In the Ven. Fac. there were 25 returned, and at the Nifl Prius 12
•were [worn, whereof the z^th Perfon was one. It was held that this was
a Miltrial, and not aided by the Statute of Jeofails ^ but if the 25th Per-
fon had not been fworn the Trial had been well enough, and aided by
the Statute. Cro. J, 647. pi. 14. Mich. 20 Jac. B. R. Calthrop v,
Newton.
Cro.C 22;. 14. Upon the Ven. fac. 23 only were return'd, and a 7'aks was awarded,
P'-.y ,• ^^^j and iz fworn. The Plaintiff had a Verdict, and it was held well^ for ac-
was by 10" cording to CittCl ailD (©atDineC^ Cafe, S Rde. [37- a. J if 12 of the prin-
of theprin- cipal Pannel appear'd, the Trial had been help'd by the Statute i8 Eliz.
cipal Pannel and there is no Difference in the Tales, becaufe it is the Default of the
Tales°^And ^^^"^' and the Verdia is by 12. Jo. 245. pi. 4. Trin. 7 Car. B. R.
Crooke J. SanckiU v. Stocker.
was of Opi-
nion at firft, that where the Trial is by 12 of the Principal, it is good ; but if 12 of them were not
fworn, it is not good. But afterwards, upon Conference with the Judges, the greater Part of whom
conceived it to be only a Mifreturn, and aided by the Statute of 18 Eliz. and zi Jac. it was adjudged
for the Plaintiil.
15. Ao
Trial. 335
15. An IJfiie in Debt, in an infmvr Court in Cornwall, was tried only by
6 Jurors., and upon a Writ of Error brought it was iniifted, that the
Trial was return'd to be made fecundiim Confiictatiinejn Curiae a tempore
&c. and lb no Error. But all the Court held the Cullom void, and
againlt the Common Law^ and Jones faid, That tho' in fame Parts of
Wales fuch Trials are by 6 only, chat is by reafon of an aU of 34 H. 8.
which appoints that Trials may be by 6 only, where the Cultom has
been fo i which proves that when they were united to England, and to
be govern'd by the Laws here, fuch Trials could not be, unlefs pro-
vided for by Parliament, and lb Judgment was reverfed. Cro. C, 259.
pi. 3. Trin. 8 Car. B. R. Tredymmock v. Ferryman.
16. Error upon a Judgment given in the Court of Newcaftle, Excep-
tion was taken, That the Venire Facias is awarded to return 24 Jurors,
and 12 tried the JJfhe. It was adjudged per Cur. that this Trial was law-
ful, and if 23 had been return'd, and 12 tried the I Hue, this had been
good ; and Judgment aifirm'd by Barkley and Croke, (abfente Jones)
and he confented to it. Jo. 357. pi. 7. Hill. 10 Car. B. R. Gibfon v.
Linly.
17. On a Writ of Error to reverfe a Judgment in AlTumpfit, it was
affign'd tor Error, that there were 18 return'd upon the Jury, and but 2
of them tried the IJJtte i and Judgment was reverfed accordingly, Nili
Caufa &;c. Styl. 33. Trin. 23 Car. Chadly v. Scinch.
18. If 13 Jurors are by M i ftake /a'or», the Swearing of the laft of
the 13 is void, and the other 12 lliall fer\e. 2 H. Hill. PI. C. 296. '
19. If o«/j' II he p-joorn by Miftake, no Verdift can be taken of the 11,
and if it be, it is Error j and lb in a Preientment. But if 12 be re-
corded fworn, no Averment lies that one was unfworn. 2 H. Hilt. PI.
C. 296. cites Lamb. Juftice 395.
20. 3 Geo. 2. cap. 25. S. 8. Enafts, That the Number of Jurors to be
return'd for Trial of IJfues at the AJfifes in England fhall not be lefs than 48,
nor more than 72, ivithout Direilton of the Judges appointed to go the Circuity
or one of them, by Order under their Hands.
S. 9. That in the Grand Sefftons in Wales the Number pall not be lefs than
10, or more than 15, -without the DireBion of the Judge of the Grand Sef-
ftons, by Rule cf Court.
•S. 10. That in the Counties Palatine of Chejler, Lancajler, and Durham,
the Number fhall not be lefs than 48, nor more than 72, without Dtreiiion of
the Judges.
21. The Sheriffs oiWorce^er hid returned to the Venire facias the Rep. of
Names of 24 Jurors only, though 48 at leaft are required by the Statute ^^^ft. in
3 Geo. 2. But before the Habeas Corpus returned perceiving their Miftake, ^' ,^' ,
rettrrned to it the Names of 48 Jurors, and Plaintiff proceeded to Trial. De- ^'^''"'^ '"^ ^'
fendant made no Defence, but moved to let alide the Verdift. Per Cur.
Tho' imperfeft Returns may be helped by the Statute, yet here the
Fault is in the Matter of FaStj the Return of the Habeas Corpus mult
be of the fame Jurors fummoned on the Venire facias. The Verdifl: was
fet alide. Barnes's Notes in C. B. 343. 344. Trin. 11 & 12 Geo. 2. Pen-
rice V. Jackfon.
(X. e. 2)
33<^ Trial.
(X. e. 2) ]\xvoxs fwom. \Ho^
I. fnr^Hree Jurors, in the Beginning of the Pannel, were not returned
JL by Negligence Of t|)C ®f)Cnff, and 4 alter them were fvvorn,
and then bv Advice the Sheriff puts in the 3, of whom one appears ; ^t
becaiifc tijcp mere pad tlje 3 tubo uii^re left out, tljep go on uiitlj t&e
l^aimel to 1 1. anD tljcre luece no mote after toe jQanic of Ijim tuljo
nppcar^ -, nnD tijercfore tijep began oe iQotio fcorn tije JDeao oftlje
panncl, tm tcete fuiorn, anu tijen ije luDo appcateD tnajs fuiotn alfo*
37 |p,6. 12. l)»
Trials per 2. Jf a Pannel bC return'd out of 2 Counties, Ull)en One Of Ottt
Pais 72 CS2) Count!? 10 fiDOtn, anotijet of tljc otfjct countp ihaii be iwom, anu
fO interchangeably till t6e 12 ate ftUOm* 4 l3. 41. 1 1 i|)* 4. 63.
Trials p-r 3- C^'"'] if one Pannel be return'd by the Bailiff of a Franchife,and ano-
Pais 72 (82) ther pauncl by the Sheriff, tljcce fljail U Qwt fzDoi'n Of tije iftancljtfe,
anU tijcn oftlje (SuiiOable, anD fo on (tc» 7 ii)» 6. 40.
Br Inquefl-, 4. Jf tije Inquelt be fworn, and becaufe the Roll of the Entry is not
fl,'> ^l^P in Court, if tlje 3iUtp be fuffered to go at large till another Day, tijep
L?upln an AjaH tZ ivvom de Novo. 7 p. 4. 39.
Indictment
of Felony, and the Record was not in Court. Trials per Pais 72. (82)
5 3 ^aU btingjS feveral Formedons againft one Man, of feveral
Moieties, as Heir to feveral Anceltors upon one Gift, anD tljC Iffue for
boih was upon the Gilt, auD ti)t Jutp uja0 cfjofcn, ttieD auH fttjorn
upon tOe one, ano at anotijec Cniie neniantieo upon tlje otijec Jffuc
djofen, ttica ann fuiorn* 21 (S» 4. 25.
6. A. is iiidithd of High Treafon, and arraigned upon it, and fome of
the Jurors fworn j and becaufe there was not a full Jury, they were ad-
jourft'd to another Day i at that Day a full Jury appeared i they who
were fworn before iliall be ywor« again. Jenk. no. pi. lo.
7. In Cafe of Trial by Medietas Linguae, the Denizens and the Aliens
ought to be f mm alternately, beginning with a Denizen. Cro. E. 8i8. pi.
10. Pafch. 43 Elix. B.R. Goodwin v. Mounrenaigh.
8. On an Indiftment 1 1 Jurors appeared and -were fworn^ but one was
challenged by the Prifoner, and the Trial put off. At another Day upon a
^ales one of the furors fworn before was challenged for the ^leenfor a Caufe
inEfJe thejirjl Day; and therefore was not allowed. It was agreed that
the I urors lliall ht fworn as theyjiand in the Pannel, without having any
Refpeft to thole that were fworn before. Yelv. 23. Mich. 44 & 45
Eliz. B. R. Wharton s Cafe.
(X. e. 3) Jurors. Paid by whom, and in what Cafes.
4 Le. i3; 1. TN an Aftion on the Statute of Hue and Cry, the Jurors gave afpe-
19. pi. 63. J^ cial Verdi f^, by Reafon of a Doubt which they conceived upon the
s p^but miftaking of the Parifh in the Plaintifl's Declaration i the Court ordered
that the Plaintiff alone Ihould pay the Charges j tor the Matter which
here is found fpecially, is not any Doubt, but is outof allQueilion, it
not S. P.
being
337
Trial.
being clear that the Aftion is well brought i and fince the Hundred is
charg'd, the miftaking of the Parifh fliall not hurt. zLe. 174. 175. pi.
212. Pafch. zpEliz,. C. B. Shrewsbury v. Alhton Hundred.
z. FjcCfineut was appointed lor Trial at Bar by a Jury of Wilts, and
a Venire recurn'd, and the Jury fummonedi but before the Day the Parties
agree; xht Sinnuioiis not being counter inandod, fever al of the Jury appeared.
It was moved that they might have their Charges ; and thereupon or-
dered that the Attornies on both Sides ihould pay them between them,
as was ufual in other like Calts, as the Court faid. 2. Show. 248. pi,
252. Mich. 34 Car. 2. B. R. Caldicot v. Pembroke.
3. Where a Juror is withdrazv/i, both Parties ought to pay the Cofts
equally ; but on a Nonfuit the Plaintiff pays all the Colls. Per Cur.
Comb. 75. Hill. 3 & 4 Jac. 2. B. R. Anon.
4. The Jurors that appear at a Trial ihall not have their Charges al-
lowed them, if the Caufe be not tried for Want of Jurors. Pafch. 1652. B. S.
For their Appearance isof no Benefit to any Body j and therefore it is no
Reafon the) iliould receive any Recompence. 2 L. P. R. 125. Tic.
Jury and Jurors.
5. A Day being appointed for a trial at Ear by a Dorfctpire Jtiry^ the
Skeriff\ by the Order of the Plaintiffs countermanded all the Jurymen
againlt the Gree of the Defendant, who now prayed a Trial, which was
now impoifible, for the Court in I'uchCafe will not fupply the Jury with
a Tales de Circumllantibus, but offered to nonfuit the Plaintiff on Re-
cord i and diretted that the Defendant ihould contribute to fatisfy the
3 Jurors, who appeared to the Intent that they fhould continue to be in-
different between the Parties, and referr'd ic to the Secondary to exa-
mine -and tax Cofts for the Defendant, in Satisfa£lion of his Trouble and
Expences. 2 Sid. 77. Pafch. i6j8. B. R. Hunt v. Hollis.
(X. e. 4) Jurors nxi'ithdra'xn ; In what Cafes. And of
a new Diftringas, and to what Perfons.
I. \ Juror was chalhiged, and withdrawn ; and upon a 'Tales awarded. So in Trcf-
_/~\ and Procels againll the other Jurors, he appeared amongft them, pafs Jurors
and tu^j/icoiv/, and tried the Iff ue ; and this being moved in Arreft oi?'^^^ ^ha\-
Judgmenc it was held erroneous, and,the Judgment was ftaid. Cro. the^fury^c-
Eliz. 188. pi. 15. Trin. 32 Eliz. B. R. Hungate v. Hammond. rnain'd pro
defeftu Ju-
ratof', and afterwards a new Diftringas with a Nifi Piius was awarded aj^ainft tlie fame jurors who
•were withdrawn before ; and ftme of them who were u-UbAratun /ippe.zr'd ami tried it. All the Juftices
held clearly that it was a Milfrial, and not aided by any of the Statutes of feotails ; whereuoon a Ve-
nire Facias de novo was awarded to have a new Trial. Cro. E. 430. pi. 34. Mich. 37 & 3J) Eliz. B.R,
Iiloor V. Vaughan.
2. But in Ejeclment at Nil! Prius 6 of the Jurors were challenged, and
•withdrawn, and the Jury remained pro dete£lu Juratorum. Ac the next
Aififes a new DiJiringas was awarded againfi all thefirfi Jurors ; and ac
the Nili Prius the Trial was by fome of the Jurors, return' d on the old Pan-
iiel, and by others return d on the Tales ; but none cf thofe withdrawn before
did try it. Ic was moved that the Diitringas was miiawardedi for ic
ought not to have been of any of thofe who were withdrawn. But the
Court held, that this being only a judicial Procefs which was awarded,
againll them where it lliould not, is only the Default of the Court, and
lliall not prejudice the Plaintiff'; that the Trial was good at the Common
Law, it being by lawful Jurors, and ic is help'd by the Statute of Jeo-
fails, ic being only a Milawarding of Procels. Cro. Eliz. 429. pi. 33.
Mich. 37 & 38 Eliz. B. R. Whitby v. Marlhall.
4R 3. A
338
Trial.
3. A Ji'.rcr was fit'orn, and heard Part oj the Kvidence^ and then fell
feck, and then another -was [worn byConfent of the Plaintiff and Defendant'^
and the lick Juror was withdrawn. Palm. 411. Pafch, i Car. B. R.
Jelirys v. Tindall.
4. In Capital Cafes a Juror cannot be withdrawn, tho' all Parties con-
fent to it. But in criminal Cafes, not capital, a Juror may be with-
drawn if both Parties Confent, but not otherwife. And in all Civil
Catifes a Juror cannot be withdrawn, but by Confent of all Parties.
* Garth, 465. Mich. 10 VV. 3. B. R. in Cafe of CfjCQlDiCk % t^^l^Wi
fliid by Holt Ch. J. to have been the Opinion of all the Judges of Eng-
land upon a Debate between them at the Sittings in VV'eltm. 9 Nov.
1698. in a Cafe of Perjury tried before him, between the King and
Perkins.
In thi.sCafe ^ ^ Juror was withdrawn from the Pannel by Confent of both Parties,
Cro*^E\°o ^''"-^ Intent that the Trial might for that Time go off pro defeftu Jura-
(which tee torum j and the Reafon was, that it was neceffary for the Jury to have a
fupra in the View, and fo he being the laft in the Pannel was withdrawn, and this
Marg. of Reaibn was enter'd on the Record. Upon Trial of the Caufe at a fub-
cited''arid f'^<l"^nt Time the fame Juror was-upon the Pannel, and tried the Caufe.
much relied I" Writ of Error brought on the Judgment, this Matter was allign'd;
on ; but it but the Court were clear in Opinion, that it was not Error ; and Judg-
•was an- ment was affirm'd. 10 Mod. 390. Trin. 3 Geo. i. B. R. Huet v.-
fwei'd, that t, ■ a
thatCaredif-B^'"^rd.
fer'd vaftly from thi'; ; for that wa', the Cafe of a Perfon challenged as not indifferent, and that Chal-
lenge allow'd of by the Court, which amounts to a kind of Judgment; and therefore as long as it ftood,
tho' the Caufe upon which that Challenge was founded ceafed, the Perfon was incapable to try the
Caufe ; whereas here the Juror is withdrawn from the Pannel by Confent of both Sides, for no other
Reafon but that the Caufe may be put off, pro defeftu Juratorum; and therefore a Perfon fo withdrawn
is to be confider'd as if he had never been return'd, and confequently no more unfit to try the Caufe
than any other. 10 Mod. 390, 391.
(X. e. 5) Jurors difcharf^ed, by another Ijjue bewg pleads
edy and fo the fifft Ilfue waived.
Br. Enqiieft, i. TTrTHE RE they are at Jffiis in Precipe quod reddat, and the Jury
S. d '^''^^ VV '^ppe^-rs, and the 'tenOTit pleads that the Demandant has enter'd
into Part of the Land in Demand pending the Writ after the laji Conti-
nuance, the Inquell Ihall be difcharged ■■, lor by this new Ilfue the firft
' lii'ue is waived. Br. Waiver de Chofes, pi. 23. cites 5 E. 4. 116.
2. 3ebt upon Obligation of 20 /. againlt Executors, who pleaded Plene
Adminillravit, and {o to Iffue ; and at the Ni/t Priiis in Pais, the De-
fendant faid that the Plaintiff has received 10 /. Parcel »f his Demand, af-
ter the laft Continuance ; Judgment of the Writ j and the Juftices re-
corded the Plea, and difcharged the Inqueft, Br. Enquell, pi. 39. cites
5 E. 4- 138.
3. \i four are received in Default of the Tenant for Life, and join Iffue,
and after the one dies before Venire Facias return'd, the Ilfue is not waiv'd,
but Ihall Hand, and a new Venire Facias Ihall ilfue. Br. Waiver de
Chofes, pi. 34. cites 19 E, 4. 4.
(X, e. 6) Jurors
Trial.
33P
(X. e. 6) Jarors piaiifjd for Misbehaviour.
I. 5 Ed. i.'lBaay Juror take a Bribe, either cf the one Side or the other,
cap. lo. J[_ hejhallledijahled to he in any AJJifes, Juries^ or lnqaejis,
and he imprijcn'd, and ranfomed at the King's Will ; and the Jujlice^ hefore
•whom fuch Jjftfes &c. pall pafs, are ini power' d to hear and determine the [aid
Offence.
2. A Juror return'd upon a Venire Facias appears, and afterwards If 'iy«wx
•withdraws hunfelf without Leave of the Court, he Ihall torleic for his Ot- '"'^ /''-<"•»>
fence one Year's'Revenue of his Land. Jenk. 88. pi. 71. cites 20 Aff /,"/«,7£"
P'^- ^ I- cretly, after
that they are
fciit together to tre.it ufon their VerdiB, he fliall be impii(bned, and fhall make Fine, and anochcr'fhall
be fworn in his Place. But Brooke lavs, it leems tliat at this Day another jhnl! rot be fiaorn in his Place.
Br Jurors, pi. 41$. cites 54 E. 5. and Fitih. Office de Court 12.— 2. H. Hilt. PI. C. 509. cites S.C.
and that tho' the withdrawing be before he is fworn, the Court may fet a Fine upon him at their Dil-
cretion. So it a Juryman be called, and refufes to appear ; or if he be challenged, and while the
Challenire is trynig withdraws himfelf, and the Challenge is upon the Trial dil'..llow'd, and he not prefenc
to be fworn, the Q)U!t may fet a Fine upon him at their Diicretion. 2 H. Hill PI. C. 509. cites 1,6
H. 6. z;. and fays, fee the Statute 55 H. S. cap. 6. But if a T'empejl, or fome dreadtnlJccident,com-
pels him to withdraw himfelf, he ihall be exculed. Jenk. SS. pi. 7 1. cites Pi. Com. Fogaffa's Cafe.
3. Jurors gave a true Verdiff, and afterwards took Money, and not
ly Covenant before ; every one were put to the Fine of half a Mark ; bun
were not iinprifon'd according to the Statute of Decies Tantum. Br.
Imprifonment, pi. 92. cites 39 Aif! 19.
4. If a Man that is one of the IndUiors be returned upon the Petit Jury,
and do not challenge himleif, he ihali be fined. 2 H. Hilt. PI. C. 309.
cites 40 Ali". 10.
5. In Appeal of Murder the Evidence was pregnant againfl; the Defen- 2 H Hift
dant. Eight of the Jury agreed to find him Not Guilty i but the other 4 PLC. 511.
with flood them, and would not find it but to be Murder. The next *-~*^",'*' C.
Morning 2 of the 4 agreed "with the 8 to find him Not Guilty ; and after- ^?^ p-^* ^^^^
wards the other 2 conj'ented in this manner, That theyfhould bring in and was for^thc
offer their Verdiif of Not Guilty ; and if the Court dijliked thereof, that then Coafedera-
they all foould change their Verditi, and find him Guilty. And upon this "^y ^"^ ^''^t^-
Agreement they came to the Bar, and the Foreman pronounced the Ver- "'^^V''"'!
ditt, That the Defendant was Not Guilty. Upon Examination this Verd'ia *
whole Agreement came out, and thev were fined and impriloned. Cro.
E. 778, 7-79. pi. 12. Mich. 42 & 43 Eliz. B. R. Watts v. Brains.
6. Upon an Inditfment of Murder the Jury fuund the Defendants Not Noy 45.-
Guilty; at which the Judges were very angry, and committed and fined ^^ '^y^»
the Jury, and bound them to their good^Behauour. Yelv. 23. Mich. ^^^ ^^''^''^^
44 & 45 Eliz. Wharton's Cafe. ry to evi-"
dent Proof,
and that it was fufpeBed the Jurors were corrupted by the Friends of the Prilbners. And cites feveral
Cafes where Jurors were fined.
7. T. was Plaintiff in an Aftion againft F. makes a Breviat of the This feems
Caufe, and delivers it to fome uf the Jurors before their Appearance lor their ^'^^ ^'^'T
Inftruftion. And the Plaintiii, after Evidence, was nonfuited ; and for*^ ^^'^"
that he fues them. And now refolved by the Lord Keeper and the two
Ch. J. That the Party himfelf cannot iultruct or promiie Reward tor or
before Appearance ; tor that is Embracery, a Fortiori, in a Stranger i
and the Defendants were fined and cenfured. Noy 102. Anon.
8. The
0^4.0 Trial.
8. The Judge put back the Jury twice, becaufe they ofFer'd their
Verdicl contrary to their Evidence, as he held, and fet loo 1. Fine
upon one of the Jury who had departed jrom hisCoinpanions, but after upon
Examination it was taken ott again, for that it did appear it was only
by Reafon of the Croud, and fome of his Fellows were always With him.
Clayt. 31, 32. pi. 54. Auguli 11 Car. Lee v. Savile.
f'h-"J"for 9- Leech, and 5 more ot'a Jury at the Old Baily, refufedtojindcer-
No!i-Co»tor- tatn .Quakers gtithy according to Evide?!ce, and upon this they were bound
mity, the to appear in B. R. which they did, and the Court directed an Informa-
jury at the j.jj„j ^^ ^^ drawn againlt tiiem, and they were thereupon fined. Raym.
?,[aidt7 98- Trin. 16 Car. 2. B. R. Leech's Cafe.
find the Par-
ties Guilty, tho' the Eiideace in the Judge's Op'micn was full Upon this the Court fined them loo Marks
a pic-ce, and to He impi ilon'd till they paid their Fines ; they brought an Habeas Corpus, and all this
Matter appearing upon the Return, they were remanded Kaym. i;8. Trin. 17 Car. 2. B. R. The
Kirg V. Wagftafte. Sid. 272. pi. 30. Trin. 17 Car. 2. B. R.S.C. accordingly.
ID. Jurors were fined for finding Manjlatighter contrary to the Direc-
tion ot the Court. Kelyng. 50. Lent Circuit 18 Car. 2. Hood's Cale.
2 Jo- 15- II. In "Bllfljcrs Cafe it was refolved that a Judge could not fine a
^HaM^i— Jury for giving a Verdift contrary to Evidence. And "Vaughan Ch. J.
^"^ 2^_ who deliver'd the Opinion of the Court faid, that the Jury being re-
judg'd. 2 turn'd of the Vicinage, i. The La-ja fuppofeth them thence to have futfici-
Jvlod. 218. ent Knowledge to try the Matter in lii'ue (and fo they mult) tho' no £w-
Pafch. 29 ^^^j^^ were given on either Side in Court i but to this Evidence the
between J'^'^g^ '^ a Stranger. 2dly They may have Evidence from their own
Hammond pcrfonal Knowledge, by which they may be alliared, and Ibmetimes are,
and Howcl. that what is depoied in Court is abiolutely lalfe ^ but to this the Judge
'^. ^'^^^ H '® ^ Stranger, and he knoweth no more ot the Fa6l than he hath learn'd
by Ho"ch in Court, and perhaps by falfe Depofuions ; and confequently knows
J. 12 M(d nothing, sdly. The Jury may know the Witnejffes to be lligmatized and
39t. Pail-h. infamous, which may be unknown to the Parties, and confequently to
12 W. ;_in j.j^g Cou[-[_ 4thly, In many Cafes the Jury are to have View necejfarily,
cBrtntiiUe " ^^^ '" many by Confent, for their better Information ; to this Evidence
\3, t^t (loU likewile the Judge is a Stranger. Vaugh. 147. 22 Car. 2. C. B.
lEge of
3&hVfician0. -^"^ that in Bufiifirs Ca'e it was held 1-y all the Juftices of England, except one, that
a Jury could not be fined for giving a Verdift againft Evidence, becaufe they are Judges of the Facb.
. S. P. And tho' it was inlertcd in tiie Fine that it was Contra direciiunem Curia in materia legis, this
mended not the Matter ; for it was impoll-.blc that any Matter in Law could tome in Queftion till the
JMatter in Fadt was fettled, and ftated, and agreed by the Jury ; and of fuch Matter of Fadt they were the
only competent Judges. 2 H. Hift. PLC. 915.
But Serjeant Hawkins lays that, if it fliall fhur.ly appear in any Cafe that Jurors are perfeBly fatisfied
cf the Truth of a FnH, whereupon tl ey declare to the Court that thy find it in fuch a particular Manner^ and
the Court direElly tells them, that upon the Fad: fo found, as they have agreed it to be, the Judgment of
the Law is fuch cr fuch, and therefore that they ought to give a Verdift accordingly, yet they obflmately
injili upon a FerdiH contrary to fuch a Lireilion, It feems agreeable to the general Reafon of the Law,
that the Jurors are finable by the Court in fuch a Cafe, unlefs an Attaint lies againft them ; for other-
wife they would be difpunifhable for fo palpable a Partiality, in taking upon them to judge of Matters
of Law, which they have nothing to do with, and are prefumcd to be ignorant of, contrary to the ex-
prefs Direftion of one who by the Law is appointed to diredt them in luch Matters, and is to be pre-
fumed of Ability to do it. 2 Hawk. PLC. 148. cap 22. S. 21.
And if a Judfe, for the better Direction and Information of a Jui'V, jkall ask them their Opinions con-
cerning fuch a particular Fail, and they fhall refufe to anfiver him, and ohflinately infifi to deliver in their
Verdili as they think fit, contrary to his DireHion, it feems queftionable whether they may not be fined in
fiich a Cafe alfo, unlefs an Attaint lies againit them ; for tliat it is the Duty of Jurors to take the Ad-
vice and Information of the Court in Order to be goveni'd by it, as fur as fliall be confiftent with their
Confcicnces. 2 Hawk. PI. C, 149 cap, 22. S. 22.
(Y. e) Jurors.
Trial. g^^i
(Y. e) Jurors. The Pozver of the Judge upon Dlpi gr ce-
ment ^ or other Matter. L/v\j
I. T jf II Jurors are fworn and the 12th is challenged, and the Jurors Trials per
J[ cannot agree in the Challenge, for 10 are tljflt It 10 a tCUC Cljal' ^^'' 59- ^^''^
Icnge, J»tit) tlje otljcc c Contra, tl)0' tlje Partp lufjo Does not take tlje
Cljallmixe miU not agree tijat tlje n uifjo are ftaom fljall cijoofe ano=
tljcr to tbcm in lieu of Ijim ujIjo is cDallengeD, pet tlje Court map Do
It. 29 €. 3- 33- 1)» per Curianu aujuOffeii.
2. 31f a Challenge be tai^ett to the Array before any Juror is fworn, Trials per
and Triors are chofe who cannot agree, pet tljep fljall UOt be COmUianli' P'»'^59C<57)
CD into asatB, inafmuclj as tijep tuere neijer fiuorn upon tfje princi=
cipaU 43 air. 36. aojungeii*
3. But tije court map Oircijarse tijem, auD choofe other Triors.
43 air. 36. amutifferi.
4. Jf tlje 3iUrOr0 fav upon Demand of the Court that they are agreed. Trials per
and atter luljeu tljep ate OPPOfeil, tfjep fay the contrary in any Matter, ^f'> ^''■
tl)ep map be amerced tdt itt * 29 air. 27. I ^; E„,
queft, pi. 50,
cites S, C, tluis, viz. In B. R. the Inqucft came to give their Vev.lift, Shard, demanded it' they were
agreed, who faid, yes; and t!ien demanded who fhnuld fay tlie Verdidt for them, and they faid that
W. fliould ; whereupon the Court awarded that R. fhould fay it ; to which they anfwer'd, that of this
they are not agreed. Then Shard told them that they faid they were agreed, and now they (ay the
contrary, and fhall be amerced ; Qui:rc &c and commanded them into Ward till they fliould be agreed,
QuodMirum; for the Praitice is now otherwife. 2 H. Hill. PLC 509. cites S.C.
5. In Trefpafs a Jury was fworn, and 11 ivtre agreed^ and the twelfth '^^■^''^^■
i^onld not agree ^ and the Court took theVerditl of the 11, and committed^^-^- ^°^-
the tis:elth to Pnfon y Brooke fiys, Nota, this is not iifaal at this Day.'^^^^^''^^ J_
Br. Jurors, pi. 53. cites 3 E. 3. Itin. Not. Fitzh. Verdift 40. If a Juror
•will not con-
fcr,t to lis Ccmfaviovs., the Juftices rr)ay aflefs Fines upon him &c. Br. Jurors, pi. 51. cites Dodl. and
S.ud. lib 2. tol. I2rt. A Juror nvho flay' d his Conrpar.ions ly one Day and a Night, inithout Reafen and
"j.ithout ajfeniing to them was committed to the Fleet, and after was admitted to Bail till the Court fhould
advife. Br. Imprifonment, pi. 55. cites ii AlV. 55. — Br. Jurors, pi. 21. cites S E. 5 35 S.C .2H
Hift. PI C. 509. cites S. C.
But Lord Hale fay.*^ , That if there 1 1 af^reed and but one diffenting, ulo fays he -will rather die in Prifon
yet the h'erdicf jhall not ie taken hy then, no nor yet the Refufer fried or impnihn'd, and therefore, where
iuch a Verdidt was taken by 11, and the 12th fin'd and imprifon'd, it was upon great Advice ruled, the
Verdidt was void, and the 12th Man deliver'd, anda wc.:i;/''cw;ci? irw.iii/ciY andcites 41 Afl' 11. For Men
are not to be forced to give their Verdiit againft theirjudgment. 2 H Hifl. PLC. 29-. cites P. 20 E. Rot.
45. Norf. coram Rege. — S. P. For it may be that the 12th was in the Right, yet howfoever his Conlcicncc
is not in this Manner to be forced, and therefore Precedents of this kind have been difallow'd. 2 H.
HilL PI C 309. cites 41 E. 3. 1 1. a. 41 All 1 1 but Ibid. 26-. in the Notes there (c) the Editor asks
whether it is not a Force when any of th; Jury arc obliged to comply under the Peril of beina ftarird to
Death ; for how can it be expefted that 1 2 confidering Wen fliould in all Cafes happen to be of the fame
Sentiments ? And therefore anciently it was not neceflary (at lealt in Civil Caufes) that all the 12 fhould
agree ; but in Ca!e of a Difference among the Jury, the Method was to feparate cne Part from the other
and then to examine each of them as to their Reafcns of their differing in Opinion, and if after fucli Exa-
mination both Sides perfiifed in their former Opinions, the Court cauferl both Verdifts to be fullv and
diftinitly recorded ; and then Judgment was given ex diBo Majoris fartis juraforum And cites the Ciile of
the aibbOt of feirbfltDC b. (&CtD. Pe (rpnccurt, 56 H. 3. Rot. 29. in Dorlb; and the Cafe of STriC*
tra:n b. S'lmtlUi Palch. 14 E. i. Coram Rcge.
6. If the Inqueft in the King's Bench do not agree before the remo'ving 2 H. Hiff. PI.
of the Bench, they Ihall be carried with them in * Carts i lb of a Jury ^■^9:- cites
before Jultices of f Alfife. Br. Judges, pi. 25. cites 19 Afl: 6. j^^] f"]^4^
fays that the
Judge may tnke and Record their Verdict in a foreign County. But add';, Qiioere, whether in fuch
Cafes the Sedions may be adjoura'd before the Verdict taken.
4 S ♦• S. P.
Q^2 Trial
♦ S. p. Till they are agreed, fir. Jurors, pi. 29. cites 40 E, 5. 11. S.P. Br. Verdia, pi. 49. cites
41 Afl" II. „ r^
S.P. For a Verdidl of the 11 without the 12th ihall not be accepted. Br Trial, pi. 65. cites
49 Aff. I.
7. Eleven Jurors gave their VerdiU injithoiit JJfmt of the twelfth in Writ
of Confpiracy, the Foreman who was one ot the Indictors was commit-
ted, and the other lo were fined each half a Mark^ j or giving their Ver-
(iici before they -were agreed. Br. jurors, pi. 28. cites 40 E. 3. 10.
8. The Jultices have Power when the Jury comes and gives their Ver-
dict to (ulier them to go together again to be better adviled, ij the Ver-
dict feaiis ill to thein-y Quod nota bene. Br. Judges, pi. 3. cites 11 H.
9. The Jury came into Court and {QAdit\\ey were all agreed hut one^
and he tad eat and drank, by which be "would not agree, whereupon they
were fent back, and found for the Plaintiff. The Plaintiff had his Judg-
ment, but the Juror \\ as committed, and afterwards found Surety to pay
a Fine to be fet upon him i and he was afterwards fined 20 s. Dy. 218.
pi. 4. Mich. 4 &: 5 Eliz. Anon.
SecCK.g.;) (Y. c. 2) Jurors d'lfcharged.
I. T 7^7 I; C lil(£ 14 JUrOtS are impanneird for the King, tfjC JUUffC
\' V cannot Oifcljarse anp of tljcm affer their Oath, unicfs tijep
tDtU not agree with their Companions. 20 Ip, 6. 34.
2. 3f tlje Array bC challenged, and 3 Triors chofen who will not
agree, tljcCouvt Ciinnot u\t ii imotct ftoui tljc 2 auD conmianu tlje
otlja- to l?)nlon» Centra 29 Sff. 4- 'But Slu^rc.
3. CtjC lame 5LalU IH ^iilt Of A Verdid upon an Iffue. COntta 29
^ff* 4
4. If the Jury appears, and the Sheriff' does not return the Writ, the Jury
lliall not be taken. Br. Inquell, pi. loi. cites 27 E. 3. 86. and Fitzh.
Enquell 44.
5. Upon Not guilty pleaded 12 Jurors are fzcorn to try the Iffue.
Alter their Departure A. one ot the 12 leaves his Companions, which being
difcovered to the Court, by Confent oj all Parties, B. another of the Panne/
is fworn in the Place of J. and afterwards j1. returns to his Company^
which being made known to the Court, A. is called, and examined why
he departed. He anfwered to drink ; and being examined whether he
had Ipoken with the Defendant, denied it upon his Oath ; whereupon
B. was difchargcd from giving any Verdi ff, and the Verdi^ taken of J.
and the other 11, and A. fined lor his Contempt. 2 H. Hilt. PI. C. 296.
cites 34 E. 3. Office de Coutt 12. in Trelpafs.
6. Debt againfl ^ by joint Praecipe, who were obliged in toto, and 2
appeared and denied the_ Deed, and were at Iffue without the other 2, where
they ought not to plead to Iffue upon joint Praecipe till the others come,
or that Procefs be determined againll them ; and therefore the Inquell
was discharged ex Officio. Br. Enquell, pl.48. cites 48 E. 3. 21.
7. I'refpajs in D. againft 2, the one pleaded Not guilty, and the other
pleaded a Relcafe made to S. and Vifne was returned oj D. only, and
not of S. The Inquell appeared, and for this Caufe were difcharged ;
and the fame it feems of every Jeofail. Br. Enquell, pi. 68. cites 50 E.
' 3- I.
8. Where
Trial.
343
S. Where :i Jury pA's And give Vcrdiff^ there they are difcharged. Con- Br\'cairc
W} it Teems to be clearly, it'chey had remained for Default oj Jurors. Br. f'^'-'ias, p!. 12,
Enquelt, pi. 23. cices 21 H. 6. 20. ' ciccsS.C.
9. A'/// agattijt one in Ciiftodia Marefchalli^ at the Venire facias the De-
fend.uit caji bfjoin de Servitio Regis. And by lonie, the ]my fhcill not at-
tend the difcii[jing of the Doubt, but JJyaJ/ go and come again by Frocefs when
the l^oubt is dilcufs'd. Br. Eiroin, pi. 106, cites 5 £. 4. 70.
10. IJIiie upon a Deed denied, one Jfiiror was fsjorn upon the Principal,
and the Deed was at S. Barcholoniew in Cuitodia cullodis Breuum i and
becaufe one was Iworn upon the Principal, it was faid that they cannot
dilcharge the Jury without putting the Party to a new Venire facias-
and when the Jury is fworn, then it the Deed be not come, they Ihall be
difcharged, becaufe the Deed is wanting. Br. Inquelt, pi. 47'. cites 21
E. 4. 26. 27.
ir. Note, that where it was fnrmifed that J. N. had broke the Peace Br. Lieu
at B. upon which they were at lifue between the King and him, and Sec pi. 49;
becaute/; was not alleged m --juhat County B. ivas, theretore the Jury who ''""^ ^' ^•
appeared were difmils'd. Quod nota. Br. Pleadings, pi. 73. cites 4
H. 7. 8.
12. In T'refpafs 1$ Jurors appeared. Both Parties, and the Jurors alfo,
ajjented that Adjournment be made till 15 Michaelmas next. The Protho-
notarics laid that it could not be adjourned but in fuch Manner, vii:.
Quod |urat' reman' pro detctlu Juratorum aut Hundredorum ; but ifthe
Adjournment had been at one Day in the Term to another in the fame
Term, the Cultom is to do fo IVoni Day to Days but from one Term to
another Term it cannot be, unlefs the Entry be Pro deteflu Juratorum
aut Hundredorum. Whereupon two of the Jury were Iworn. Keiiw.
167. b. pi. I. Trin. 5 H. 8. The Prior of Tunbridge v. Cooper.
13. When an Inqiufi is once fworn, and gives a VerditJ, they fiall never S C. cited
he fworn again upon the fame Iffue. Br. N. C. 2 Mar. S. 457. ^''- Enqueft,
pi. 86.
An^nqiieft difcliarged after Verdid given, and entered or difcharged before VerdiiSt, fhall not hs
charged again. Jcnk. 6.j pi. 9. cite.s S. C. Where a Jury is difcharg'd, ir caLinot be re-clurged
without a new Venire facias. Jenk. 2S5. pi. 13.
14. A Jury fworn and charg'd in Cafe of Life and Mender, cannot be But Mich.
difcharged by the Court, or any other ; but they ought to give a Ver- '5 Car 2 it
dift. Co. Litt. 227. b. was refolved
' by alJ the
Juftices, in
an Information for Forgery, That tho' the Jury becharg'd .md fwrorn in fh- Cifi of a Plea of the Crown
yet a luror may be drawn, or the Jury dilmils'd, contrary to common Tradi:ion, wliich hath been,
held by m.my learned in the L:iw. Ravm. 84. B. R. Ferrar'.*; Cile. And yet Pafch. 21 Car. 2. it
was held per Cur. that the A/w? cannot draw a Juror ajter Liiderice given, but before he may ; Or after
Evidence the Court may on his Prayer dilcharge the Jury, tho' Maynard had infiftcd th :t the Kino-
might do it as well after Evidence as before ; and cited :; H -. and tliat Nov did fo iii th-; Cafe of the Ld
£!?OllUll in the Exchequer ; and that he had a Precedent of the Hand-wriring of Hobart Attorncv Ge-
neral, of fuch a Drawing a Juror againlt all. 2 Keb. 506 50-. pi. 81. B. R. The King V Pierce
Vent. 28. S. P. infifted upon by Maynard, and feemsto be in S C. Bu: nothi'ig is mentioned as fldd by
the Court. Where one was indicted for ftealing of fcveral Things, and pleaded Not guiltv, a Ti/i-y
•was fzioi-}! to try her ; and the If'itneJJ'es not af'pe.niyicr, zvere fufpected to he tampered zvilh by the Prifon-r ;
:ind therefore the Jury were difcharged, and the Trial put olf. Vent. 6y. Palch. 22 Car. 2. B. R. Tiie
King V. Jane 1^ . . . .
Serjeant Hawkins fays, It feems to have been anciently an uncontroverted Rule, and hath been al.
lowed, even bv chofe of a contrary Opinion, to have been the gener.il Trailiuou "f the Law, tli.it a
Jury (worn .and charged in a Capital Cafe, cannot be difcharged (without the Pn/niei-s Corifeni) till
they have given a Verdidt. And notwithftatiding fonie .^uthoriiics to the contrarv, in the Rcio-n of
King Charles 2. this has been holden for clear Law, both in the Reign of King James 2. and fince the
Revolution, z Hawk. PLC. 439. cap. 4-. S. i. Lord Ch. J. Hale lays, Tli.it this was the An-
cient Law ; but vet he fays the contrary Courfe hath for a long Time obtained at Newgate ; and no-
thing is more ordinary, than after the Jury fworn, and charged with a. Prilbner, and Evidence given,
yet if it appear to the t!ourt, that fome of the Evidence is kept Lick, or t.tken off, or that there may Le a
fuller Difcitery, nt.d the Offence >:ctcrioiis, as Murder or Burcl.iry, and that the Evidence, tho' not iijf-
ficient to convict the Prifoner, vet gives the Court a great and ftrorg £uf 'icion of his Guilt, the Court
mav dilcharge the Jury of the Prifoner, and remit him to the Gaol for farther Evidence ; and accord-
ingly it hath been practifcJ in rnol: Circuits of England ; for otherwile m.uiy notorious Murders and
£'ar-
344 Trial.
Burglaries may pafs unpunifhcd, by the Acquittal of a Perfon probably guilty, wherethe full Evidence
is not fcarched out or given. 2 H. Hilt. PI. C. 295. But the Editor, in his Note on this Paragraph
(c) fays, that however this Matter was as to the Ancient Law, which he infifts was otherwife, yet that
it has however been holden for Law, that a Jury once charg'd in a Capital Cafe, cannot be difcharg'd
till they have given their Verdict ; and that ic having been done in (lillljitrbrfaD's Cafe, was thought
very extraordinary.
14 In Ejeftment the Jury was charg'd with the Evidence, and after-
wards Ward Ch.B. being Judge of Aifife, upon the Petilion and Confent
of both Parties made a Rule, that the Caufe tor Difficulty Ihould be ad-
journed into the Bench, and that the Jurors Ihould appear in Bank tres
Mich, fub poena 50 1, to give their Verdi6l, li Julliciariis ita placuerit. It
was moved that this fhould be made a Rule of Court, but denied, be-
caufe the Judge could not adjourn the Jury after they were fworn and
charg'd with the Evidence, nor could inflict a Penalty upon the Jurors.
Ld. Raym. Rep. 129. Mich. 8 W. 3. Dawfon v. Howard.
This Let- (Y. e. 3) Evidence.
ter ftems to
contain
of^fcambiing I- /^^^E {% iiot [fufftclcnt] CcmmonD bp 4^ M> s- 48 €> 3- 3°.
Pleas not \J But 2 ?0cii ^\u lufticicnt pcoof, 09 It fteni0 Up 7 E* 2» oaac
adapted to .,1. jjji^ <^x. 9 €h nccomtngi?, bp tlje 3.ucicej5 of Common
any proper na.p,.f.u
Heads, but JDtlUlJ*
huddled to- r 1 , , , , ,„.
gether under the general Title of Evidence, tho many of them do not belong to that Title ; and fuch
as do would have been more properly diftribured under different Heads or Subdivifions: So that I fliall
add no Cafes at the End of the Letter, becaui'e it would add ftill more to the Confufion. And to bring
hither the feveral Divifions of Title Evidence, to add them as Notes to the Pleas which concern fuch
Divifions, would be taking them from the proper Places to which they belong, under Title (Evidence)
and where Gentlemen will readily find them, to place them where no Reader will think of looking
for them.
2. In Gager of Law tIjCl'E fljaU llE no Challenge of Favour, nor of
Non-iufficiencv, bp jE^rifot. 3^ ^x 6. 8. ^110 tl}(0 bp jQccDljam coim=
tcrDa(l0 a lur'p, nuD Ijas no i3rocef0 aganift tijem, ano caimot coui-
pd anj) $^an to ruicar tuitl) ijim, ano tljcre are n beiides himieii.
If a Man 3. In Nativo Habendo, ni 1 it?ljci;bert 78. Ijc ougbt to brmg 2 of
purchafes a j^js Biood ; fot on£ ijs no l^toot; Xut bp 47 ^. 3- iDiUcmage 39.
a^nolhe";:^ One 1^ gOOO PtOOt;
him and his
Heirs, and the Villein runs from him, he fhall not have a Writ de Nativo habendo, becaufe he hath
no Proof of his Blood, who will confefs themfelves to be Villeins unto the Plaintiff; and if he bring
Men of the Villein's Blood, who confefs themfelves to be Villeins to a Stranger, and not to the Piaiu-
tiS, the fame is not fufBcient Proof Qii^re tamen. F. N. B. 79. (B; See pi. i. and 5.
55 H. (J. 5z. 4- ffl^ne outiaw'd fljaH not be faiU {dmm $ legaliji ^omo, [ann]
and 33 H. 6. (jnC attainted in Attaint fljall IXZUt bC fUJOtn Ul ttO COUtt Of tljC BUig,
55. relatesto ^j,^ fljjjU ^y^^^^^ Jjijg ^j^m ^ <Qgjjt;^ 33 J^^ 5 32. jj,H, 33 |), 6. 55. ^
J^e'", vr ^anattamteo m attamt or Conipiracy, fljaU not be fmorn in Court
[b. pi. 34] of tlje jams* OtljerUJlle it lis of Forgery oi Deeds. 24 C* 3- 34-
is Per
Shard That if at the Suit of the King a Man be attaint of Confpiracy, he fhall have the Villainy by
[or a villainous] Judgment, viz. That he fliall not be admitted as a V\ itnefs to reftifV the Truth, nor
approach the Court; But it is no: fo at the Suit of the Party.
<;. One
ii^
Trial.
345
5. One i^imeftf igf goon, bp athtn^. 9itD C^olte fmD t&ecc ougljt * p , . .
to be 2 at Jeail where it is tried by Witneffes, as in the Civil Law, anD , 5^v\' j
31Uror0 * fuper Vifum Corporis qjhU fap t tUljO J^illCtl IjtUl tuljerc OnC 10 to5i^^^
aCniUtt0t!i anH where W'itnefles are joined to the Inquelt, flUD t!)CP (Qjie luy
cannot agree, tlje mtUct of 12 fljall be tafeen^ anD tlje l©itnefle0 "f °" v"
fijail be tejectctJ bp 2 c 6. 12. Father mai) be a JJBitnefgi bp 19 C 2. "VhSms
II air. 409. anD m CDalleiige fljail be tahcn to tije ilDitnellc.s tuIjo to mean 49
ftali trp tlje jfart* Afl:pi.i,-
PI. C. 12.
Pafch. 4 E. 6. in Cafe of JKfnigft i). jfoplTa, it was admitted by Brooke Arg. that there ought to be
2 WitnelTcs at lead ivhere the .Ur.tler is to be tried by TVil}:eJ]'es oily, as Matters in the Civil Laiu are ; but
•where the IflTuc is to be tried by 12 Men, VVitnefles are not neceflary ; for in many Cafes Jury fhall
give a precipe Verdi<5t, tho' there are neither Witneffcs, nor any Evidence given to them. As if it be
found fuper Vifum Corporis, that J S. killed the Deccas'd, and he is arraign'd and acquitted, the In-
queft fhall fay who killed him, tho' they have no Witnefles ; fo that Wittieffes are not neceiTary but
where the Matter is to be tried by Witnefles only ; for if they were fo neceflary, the Jurors could not
wive Verdict contrary to the Witnefles ; Whereas the Law is ouite otherwife ; for when the Witnef-
les for Trial of the Faft are * joined to the Inqueft, if they cannot agree with the Jurors, the Verdift
of the 12 fhall betaken, and the Witnefles fliail be rejefted. *SeePl. C. S, b.
* Br. Appeal, pi. 42. cites 14 H. 7. 2.- Ibid. pi. 122. cites 57 H,8. S.P. Br. Corone, pi.
52. cites 14 H. 7.2. • Ibid. pi. 52. cites 11 H. 4. <ji. S. P. — Ibid. pi. 39. cites 21 E. 5
i: S.P.
As to Hov many If^itnejfes are necejfary. See Title CbiDf nC8, under that Divifion,
6. 23 Sir. 12* Cbaliengc m^ becatifc be tua^ Coufin. ct nan al= p chai-
lOCattlt* 7 ip. 4* U Soil and Heir apparent may try the Array, but 'T^cite^
fljall not pafs as the Principal. s'q
There can
be no Exception to a Witnefs who is Coufin to the Party, to hinder his Evidence in our Law ; Per
Hutton J. to which all agreed. Herl. 137. Pafch. 5 Car. C. B. in Sir Rich. Moor's Caf?.
7. 'BP tlje JU(tiCe0» '<U)Z Jury after their Departure ftOlU t\}Z Bat tO H. Hid. Pi.
inqiUrC of tbeiC i)CtDiCt, anO before Verdia, may come back again to '^'^ 'O;-
hear tijCIt Evidence ot any thing ot" which they are in Doubt; anQ fO It
tiia0 none be jOotio* 26 1). s. 5-
8. 31f a Span pleads Feorlment, !je Cait not give in Evidence fl Grant If a Man
in Reverlion ; bUt * Leafe for Years, and Releafe 19 OtljettUirC* 20 P'"^' ^
Tr\ reoitment,
*P* /■ 5- and i^ivcs in
Evidence a
Leafe for Tcrmof Life, and grant ofReverfion or Leafe for Term of Life to another, with Remain-
der to the Defendant ; Ciuaere if this is good, or Leafe and Releafe, this does not Itand with the If-
fue. Keilw. 64. a. in pi. 2 Trin. 20 H. 7. Per Fineux.
* Brown's Anal. 16. S. P. See (,D. f) pi. 5. 5.
9- IMt upon Prefcription ; .tlje Jurors fiy their Anceftors do not
know the contrary, nor have Information to the contrarv, anD finti tlje
l^tercriptian it i^ a goob a^etbtct, prifot anb Danbi? faio tljat 9t=
taint \m tljcteupon* ?4 % 6, 36,
10. 3in Dower UW}? faP Seifed that Dower, anb give Releafe in Evi- * Br. Gcne-
dence. * ii I;* 4, 83, s's JD* 6* 5u SttD Co of a Surrender bp 50 C* 't ^■^''^' ^''
3. IS. ^ 3nb fo Of an Advowlbn, or Rent granted and demanded before sx "
Day of Payment or Prefentment happened. 15pii|)»4 88.
i I. a ^an baS 2 Manors of D. atlb lebieSl a Fine of tbe C?9ailOt of* Br. Fines
O* Circumftances HJJip be given in Evidence to prove what Manor bC '^^'^'* ^'^•
mtenb0» S]9ountague» 6, 7 e« 6, 85, * up. 7, 6. ^^c!i^
Ibid. pi. 8S.
cites S. C. And fays that 4^ E. ;. is accordingly. Br. Nofme &c. pi. 63. S. P. cites 47 E. 3. 1 7 and
Mish. 12 H. 7.6. S. C. cited Pi. C. 85. b'. 86. Hill. 6 & 7 £.6. in Cafe of Partridge v-Strantre
-SeeTit. Fine ( 0.6) ^ °'
If a Man has 2 Manors of Dale, and he levies a Fine of his Manor of Dale, he fhall by Aver-
:ntafcert.iin v.hichof them it was. Per Cur. 6 Mod. 235. Mich. 3 Ann. B. K. in Cafe of Djve-
4T iz 18
ment
r.ant v. Rafter.
34-6
Trial.
PI c. 7. b. 12. 1 8 jp» 6* 1 6, jsTue m^ loincn mijet^ec tljc Defentjant holds for
Hill 4E^(?. Life, or noc, auQ Deed Of leafe foi' lifc iua0 gitjcit m Cijinenceiuljece
aRnugfr "o ^''''^''y ^'"^^ "'*^^' ''^"^ tioe^not uiavrant tljc Mnz* 2 c, 6, 7,
li. jfopCfd,
cites iS H. 6. i6. S. P. Fitz.h. Tit. Feoftments and Faits, pi. loi. cites S C.
PI. C. 7. 13. 14 C 3» upon Traverfe of the Gift in Tail, tljC Witnefles prove
b. in Cafe of ^i^^^ another made the Giti:; SUl! tljt^ tlOC0 ItCt Uiacrant tljC :jirue« 2
FogaiVa, ^* O* 7*
cites 14 E. 5.
* Oris, is 14. SltTrtfpafs * DcfetltiaUt pleat50 Not guiltv, and gives t Li-
^^'= J''^ cence in Evidence ; or tn Formedon tu ti)£ iDtfCClltlCt UpOlt €>ift m
Hili 4' Frankmarriage, Gift is traverfed, auU Deed liiewn Of a *Slft, tljE Re-
K6. in Cafe mainder over in Fee i ^Dt UpOlt Traverfe upon Leafe lor Years without
ofReniger Deed, and a Deed is lliewn in Evidences tljtlS UOeS HOt tuatiaitt tlje
V. Fogaffa. |j0yg^ 2 e» 6» i4» i;arrp'si p. 46- accoroingip, of a licence. Cou=
c^e the ti-a Eenc. 21 p. 7. 28. po> 46. contra.
Defendant
cannot fhew Licence to prove that there was no Trefpafs, bccaufe tho' the Licence makes it noTre f-
pafs, vet he fliews that Licence to an improper jurifdiction. G. Hift. of C. B. 52. See pi.
15. 2S.
See pi. 14. i_y. Jtt Trefpafs a Licence 10 pOtI lUffifiCatiOn^ TO I'tt €\)it!enCC.
'ndS'i. 2iJP>7--8. Hcoe.
2S. contra.
See Tit. 16. 20 I), 7. 4» 5. Cup Of ©Oltl [tnaS] in Pledge, anti tlje Executors
Executors [plead] that they redeemed it with their own Money ; Q^p tl)C l)CttCC
s'c^'' ^d tiie iSDpuuon [it ij5]' bood ctiiticnce, nnn Keco^evp againft tljem ougtjt
Notes^theU'? tO tlC pleaded, and not given in Evidence ; and belides this [they plead-
— See (F. f)edj fully adminiilered.
Poftea, pi.
;. and the Notes tliere.
17. 21 !i). 7. 16. [Dcfcnaant] gatoe in ewncncc, tljat Ije lieins
Sheriff, in Sction buoiiijljt againft Jjim upon tlje Statute of Ex-
tortion, took it lor Bar Fee ot one who was acquitted; auD QQOtt
CUiuence.
PI.C.412. i3. CUiOenCC fliall be applied a6 Ije iUtCnUS to his Avail, nuU IjC
TufllceT o"B&t not to fljcU) bp preaunption a Cfjinn; asainft Ijunfclf, tljo' m
Mich i; !©rit or Declaration, or nt l^leaDnis, Certamty ouijijt to be njcuiUi
& 14 Eii7.. for tbe l^artp fijall anftuer to it, auo tlje Court ougljt to )Ulige of it.
in Cafe of j^^ j^ (jF{^ Newjs agdDiJt Zrtr,^^, tUljIClj 10 tljat a Foundation upon which
ShoLftkl? ^^^ C°"" ^^^^ adjudge ought to be certain i OtljeriOlfe tlje \^m^ fljall
V. Larke. anfujer to ancertaintp, ann tlje Court fljall juijse accorDinglp.
* Orig. is 19- Poirelfion continuing, fljall make a ^an able to datrain the
(Efteant) Bealls of* one having no Title, tho' he has no Eltate in Right ; anlltl)i0
f>A-^^ 'SDaUins is in refpect t of tlje l^ofleffion ratljer tljan of a goon Citlc.
lJX^J QBetlUeen Simth and Stapktcn^ 15 (£1.
PLC. 4^.1-
Arg. Pafch. 1 5 Eliz. in Cafe of Smith v. Srapleton. See Tit. PofTenion (F) (G)
Br. Barre, 20. ^U Debt againft 2, aitU tljep plCall Non ell Facium, \t 10 f )und
pl.^ aches the Deed of the one, but noc of the other, pet IjC fljall reCOUCt. 40
See Judg- ^* 3- 35-
ment (O. z)
In Debt for 21. C)ne Ijau Leafe for Years of Laitti Of a ©trauget, rciiUcring
Re^t upon j^ent, 3110 for tlje arrearages Orougljt Debt. -Sbije Defendant pleaDsJ
fiiS the tljat be owes him nothing, autJ [ijej maj) gibe tn^)jitiencei:ijatbe
^ '• Never
Trial. 34.7
Kever was feifecl of the Land. CljtS 10 pOD dUDCnCC* But if Ije P'amtifF
plCatJS Riens Arrear, or Levied by Diitreis, fjC CmiUOt give in Evidence f^ '"5^'"-
as licforc, m it fccm0» 7 eU'SCiv 9 Jp. ?• 3- map tap Ne Lefraf;^.';,.J;7
< Defendavt
agreed to hold for one Year, renderini^ Rent of i<; !. and in FaB he was Grantee of a Reverpon expeBant upon
an Efiate for Life, nuhich Life taai dead at the Tine of the giving if the Note, nvhich Grajit. -was 40 ITears be-
fore, and he -was never in Pcjfejfion, but the Tenant for Life was all the Time in Pofleflion, dui'in? his
Life. The Defendant gave in Evidence a prior Grant of the faid Reverjion. And it was ruled by Holt
Ch. J. that the Defei:da?it in thisCaie may give in Evidence Nil haktit in l!enementis, the Plaintiff havintr
never been in Poffedion, nofwitbflanding the Note finned by the Defendant, by which he ao-reed to hold
&c. But if the Plaintiff had been in Pojfejfion, the' but Tenant at ff'ill &c then the Defenda;it could not
have given this in Evidence, without having been evifted. Lent-AlTifes, Maidftone, 15 VV. •>, i-oi.
Alto the Plaintiff was nonfuitcd. Ld. Raym, Rep. -^6. Chettle v Pound. ' ' '
22. * Leafe at Will CatltlOt lie gitJClt lit Evidence upon Not Guilty, *S P. But
antl in Alfife and Trefpafs [tljC jlUrj.'] Wtaj? gibC Verdift at large, ng f "'" f *
bccaurc tijcrc (g no Citle comprcljcnocn ; not m Refcue, becaufc €;^ ylTs Br
mirc igi conijjreljenB^D. 1 9 ^5. 7- 3- Contra in Debt, ano Kefcuc General id
nilcere* * USltllElTClS fljail fay nothing but that which they faw or heard. f«e, pi. 82.
233IL1I. cites 2 J H.
t Br. Refcous, pi. 28. cites S. C. Br. Confeflion, pi. 31. cites S, C. Br. Verdift, pi. ^S.
cites S. C.
4: B'.-.Teftmoignes, pi. 12. cites S. C. & S. P. Their Oath is to fay the Truth, without faying to their
Belief.
Ev
So upc
Bar, it fljOlUH be tried by the Bilhop &c. 7 (£^4. 16.
24. 3in Debt upon Obligation \}Z plcaQS Non ell Faaum ; lipoit tDljl'Clj ^ C. cited
tljep mere at IlTue, auti tlje UBitnctTcs fap tljat it tuas deliver^ at ^':.p '■^■
York, \vhich is another Place than where it bears Date, it DOCjS tlOt 6 'in Cafe
tuarraiit tfje 3lflruc» 2 e> 6» 7, 3 1 Jp* 6. of Kcmgtr
for the Dcliverv fhall be intended where the Deed bears Date ; but now the Witneffes fay the contra-
ry, and fo the Evidence does not warrant the liTue. Trials per Pais 976. (467) cites S. C. But
fays, that furely if this be found, the Plaintiff fhall have Judgment as well as upon a Bond deliver'd
before the Date.
25. Deed [0 pIcaDetl fit loat, anU fapsS that nothing pafs'd bp tljC A Man wh"
DeeO, l)t map gtlJe lll Evidence that it is not his Deed. XtltZ aitD P'^?'^* ^'="s
l^eblc, 5 IP* 7» 8* Contra Q5racton, fo» 3. Sed, dn!
not give in
EiAdence that Non efl F.iBum ; for by the Pleading the Deed is confefs'd ; per Brian. Quod nota, and
Quxre. Br. General llTue, pt. 79. cites 5 H. 7. 5. But afterwards in the fame Term Brian faid
otherwi.'c, viz. that he mav give in Evidence Non eft Faftum ; and fo it was held by Keble. Br. Ge-
neral Iflue, pi. 5S. ci[es 5 H 7.8. and fays, Ideo Qiiscre ; for Videtur quod non.
26. * 20 1% 6, 24, jn Account before SliiUitorg [Dcfcntiant plcang * s. c. cited
tbat] !je owes him nothing, t}e map Ijllie in Evidence No fuch Account, pertmcux,
15111 upon Eien0 arreac in Debt, t incUiDe Ccnurc tiout He Etcn|OuJ;;ho^
culpable* 9 !>♦ 7* 3* to^tranriate
this ; but the
Meaning feems to be, that the Defendant's pleading Riens Arrear includes or admits a Tenure,
i'o that he is conchided to fay he does not hold of the Plaintiff; yet he may fay that He owes him no-
thing ; fo that if Plaintiff diftrains, and Defendant makes Refcous, the Defendant mav plead Not Guil-
ty. See the Year- Book, 5. b. 4. a Per Fineux. Br. Confeffion, pi. 51. cites S. C. tliat Riens Ar-
rear is not a Denial of the Tenure ; for it is a Negative which includes in it an Affirmative. Br.
General Iffue, pi. 9. cites S.C.
27- <Sb(l3CnCe i$ not given but to inform them [the Jury] in their Br.Verdiar,
Confcience oi the Right ; [aittj tljO' ItO CbttienCC lUaS giUcn of anP P'f59- tites
part, or tijcp tDill not gi^e eijiDcnce, pet tijep are to gibe mtoia oTs p '
cue @>i9e or otljcr, 3:)abifor, 14 1^, 7» 29, " see pi. 5.
zS. Licence See (X e. 6)
pi. 11
348
Trial.
Br. General 28. Licence lUil}) ht gllieil in Evidence in Trefpafs, Upon JOOt <S"lUl-'
iffue, pi Ri. (« j^^c5c, 21 ip, 7. 28, a. Contra 14 P* s. i.
cites 25 H. '-
8. conrra, viz. that it ou^ht to be pleaded. S. P. Br. Generil Iffue, pi 46. cites 12 H. 8. i. and
therefore it feems that the 14H. S. in Roll is a Miftake.— See pi. 14. in the Note there.
*
29. CI)C Jury fl)aU be charged upon the Point tUljlClj 10 traverfed.
i3j|). 7, 11, a» Iroiuilie*
( Z, e ) Evidence, /fjjat Thing oi^^hl: to be proved in
Evidence.
S- C. cited i. TB n Trefpafs fOC CntlJ) UttO ijl'lS Clofe in Calvering, in a certain
iSa k. 585. J^ pi^^g ^^i^'j Calverfield, [abutting] on the South Part upon a Mill
A^n ' i„^ ' in the Tenure of | S. if tl)£ DefCUtiant plCaUg Not Guilty, Upon UjIJICI)
Cafe of the tfic part(c0 ate at 3iffitc, tlje plaintiff ouKljt to prouc W Abutment.
mnnn bv Jj), 37 CI. 05. JR* bCtiUCCn Nowel and Sands, pct CUdani anD COUn=
ShThl'afe fti atJUUttcD.
ivas thu^ 2. And in tl)i0 Cafe ije OUffljt to prOllC all the Abutment ; for it is
vix. India- not rufficicnt to proUe tlje^iU to be of tlje ^cutf) part, but Mz
went that ougijt nlfo to ptotic tljat t!)i0 at fonie Ciuie or otijer tuaiS in t!)c Ce=
dant fith' ""re of 3j. %. otijcruiife tt is not gooti. fp. 37 ei. -B^B* bctiuecn
others, at ^'o-Mii and Sands, pet Cutiam. Mpou Mjict) t()e Plaintiff mas non=
thePai-ifli fuiteli*
of St. Giles
in the Fields, riotonfly afltmbled, & quoddam cuhiculum cuiufdam Sars S in Dome Manfionali ciijiif-
dam Sarx James, fregit & intravit, and thirty Yards of Sruii" took and carried av/ay. Upon Evidence
it appear'd to be the Manfion-Houfe of David Jamibn, and not Jam's ; and the Ch. J. held, that this
did not maintain the Indictment like this Cafe of Roll ; for in the principal Cafe Part is local, Part not
local, the Cubiculum i.s local, the Taking and Carrying away is not local ; but then all is put together
as one entire Fadt under one Defcription, and you cannot divide them.
3. The Cafe upon the Evidence was thus ; the Plaintiff had a Legacy
given him by the Will of J. S. of a larger Ailife than the Detcndant did
li.ke of; and the Defendant, in Conji deration the Plaintiff -xoiild forbear to
move the 'Tejfator to make an Jlteration of his mil, did fromife the Plaintiff'
10 1. and he averr'd he did forbear &c. and did aver the Teftator had
Goods to the Value of lool. and he was conftrain'd to prove this as Pare
of his Cafe ; quod nota, though it be a greater Sum averrd than Hcededi
Clayt. 139. Newfom's Cafe.
4. In Cafe for falfely a.nd frat/d/ilentlj felling a Horfe to the Plaintiff, as
the proper Horfe of the Defendant, Ubi Revera, it was the Horfe of Sir
J. L. Becaufe the Plaintiff could not provethatthe Defendant knew it notto
be his own Horfe, (tor the Declaration mull be that he did it fraudently,
or knowing it to be not his own Horfe) the Defendant having bought
the Horfe in Smithlield, but not legally toll'd, the Plaintiff was non-
fuited. Aleyn. 91. Mich. 24Car. B. R. Sprigvvell v. Allen.
Skin. 66. 5. In Cafe, the Declaration was for delivering unmerchandizable Goods,
IBfbiiigfap knowing them to be naught, yet the Knowledge need not be proved in
S*? And"' Evidence. Per Curiam. Vent. 365. 366.' Mich. 34 Car. 2. B. R. De-
that'if in nifon V. Ralphfon.
this Cafe it
could not be proved upon Evidence that the Party was knowing that the Goods were unmerchatidi/.-
able, yet the PlaintifF (liould have a Verdift 5 and that fo it had been ruled in a Demurrer upon Evi-
dence. 2 Show. 250. pi. 2)6. ffitningfage \>, 3fl«l}ll)fon, S C bur S. P. does notnj.pear.
6. In
Trial. 349
6. In Cafe for refctitiig Goods which the PJaintifFhad iliJlrainedforRent^
the Plaintitf declared that he was feifed in Fee of a cercain MefTuage Sec.
and fo feifed deiuifc'd it to J. S. for a 21:ar, and fo from Tear to Tear as
long as both Parties poiild ^tleajc^ by a Parol deinife, referving Rene i
and for Ren: arrear he dilirained, and the Diftrefs was refcued trom him
by the Defendant for which the Aftion was brought. And here the
Plaintiif having laid a Seilin in Fee in himfelf, was fain to prove it. 6
Mod. £15. Trln. 3 Ann. B. R. Dod v. Monger.
(A. f) Evidence. How the Proof Jljall he made.
I. 713 it Trefpafs fOC (gntrp IJttO a Clofc in Calverlng, in a certain See (Ze)
\ Place called Calverfield, abutting on the South-part upon a Mill P^- ^- -•
&c. it ijj fUfflCiCnt IpCaOi: of tljis: abuttal, .that the Mill lies on this
Part of the Land, but that a Highway is between the Mill and the
Land l\ 37 CI. ^. E, bCttUCCH Noiwll and Sands^ J^CC CUUam
a5)Utin;cti»
2. 3ii tljC Buttal be affign'd to be towards the Eaft, tljO' It lies North,
vet it it inclines to the Eaft, tljat 10 tO fa^, if It bC tOUJatDlS tlje
CaK , it isi fuffincnt proof of tljc 'ButtaU }?. 7 :ja» 03, bcttcccn
Mildmiy and Dean ^ [3CC CUl'iam,
3- ilpon Fully admin ilk-red pICaOClI, tljC Account given to the Ordi-
nary fljall not be v.x'i^m v^ CUiQcncc, nor anp Ecfpeft ban to it. 33»
7 la. Op* ?i7)-j;6 5 Cafe, \^ti Curiam*
4. If a Man enters into a Bond for Payment of a Sinn certain at a Day* It feems
certain, the Obligee Ihall not be put to prove * the Bond. Toth. 90. ^^^^ ||
cites Novemb. 1629. Per Ld Keeper. Mainwayring v. James and Moie. j|^°j'l^g ^^'^[j
rot be put
to prove the Confideraiion of the Bond,
5. In an AiSlion on the Cafe, for the Profits of the Office of Mailer of Note, ir
the King's Wardrobe, the Plaintiff declared that King Charles the 2d was laid in
in the 23d Year of his Reign, granted him a Patent to hold the faid ^r '^'^'•^"
Office for Life, reciting a former Grant thereof to the Earl of Sandwich, j.^..^ that it
and the Surrender of that Grant. And that the Defendant, by Colour of is r.a necej-
a Patent granted to him in the firll Year of the late K. James, had en-/"') tojliew
tered upon the Office, and taken the Profits, and had deprived the Plain- ^^^''^ p^'-rti-
tiff of the whole Benefit and Profit of the Office. Upon Not guilty "^"fflhidhy
pleaded, it came to a Trial at the Bar ; and it was infilled for the De- the Defen-
fendanr, that the Plaintiff's Patent having recited a former Grant, that tlant. But
they miifi prove that Grant to have been fnrrendered. To which it was an- ^ '?/* good
fwered. That if they took Advantage of the ReciaJ, they inuf} admit all that ^^^ j^e Ds-
•was recited, as well the Surrender as the Grant. And of that Opinion mage to
was the (!!ourt. Then the Defendant produced the Earl of Sandwich's p'^'^ the
Patent; and this the Court held would put the Plaintiff" to prove a ('|^'°^^''<=
Surrender. And a Surrender was fhewn in Evidence accordingly. Vent. ,^„„;f„/"'"
170. Pafch. 2 \V. &M. C. B. The Earl of Mountague v. Ld. Preflon. ris. zVent,
i-o. Earl
of Mount ague v. Ld. Prefton.
6. It feems there is a Difference between Pleas of Performance and
Pleas i» Excnfe ; that in Pleas of Excufe he is bound to prove it as he
4U pk.viid
350
Trial.
pleaded it i But orhervvife in Fleas of Performance. See lo Mod.
303. 306. 307. Pafch. I Geo. I. B. R. ^\'eddall v. the Manucaptors of
Jocar.
(B. f) Evidence, /f'kil: Things Jhall he given hi Ev'i-
deh'ce, or Jhall be good Evtde?ic\\
to M5 pi !• T-^ 'I r^^'" devifes Land bv his Will in Wricin;^, Dp jfOrCC Of tlje
I s. c. but 1 g)tauitc oflBilli), or nt Common latu h'o Ciiilam, anti tljis
S. p. does |j9ij{ 10 proved in the Spiritual Court per Teiles, pct ti)e l^tObiltC Of
'rMt'bein^' tlj!0 i©iU, uof tljc tt^ltnclTc^ iuljo lucre fiuorn tor tl}C probati: of it,
only upon arc to be gi^cn m eBiQcitcc nt Common Lata to pro^c toe ilBiIl nno
a Prolnbi- tijC DCliltC Of tlJC Liintl ; bCCaUfC tijIS l^rOtiatC as to the Land, ttintdj
tion as to j0 ^ 93attcr of if raulucncmcnt, iuas Coram non (udice, tijo' tfjc l^ro^
iv'^wm^ bate uiajs goon as to tljC li)erfcnal CSate bcMcq bp tfjc fame liBiiI,
indieSpi- JplU. 10 Car. 13. E» bCtlUCCn ^rclt Net tar, and Stephen Brett, i^C-
rituai Court. fc!\)Cti pct Ciinauu
-91. ;o5. S. C. and S. P. S. P. Sti. 10 Pardi. 25 Car. Betrwortli v. Betfwonh. See Tit.
Prohibition (F. a) p). 9. S. C. and the Notes there. And alio fee ^E- ^) there, pi. 6. a.:ii the
■Notes.
♦ cro. c. 2. jf tlje Letters Patents Of tijc Eimt ate fljcUin in CiiiUciirc, m
;^J- p'- '• iDljici) It 19 recited tijat tJje CfJice toa9 before grantcti bp Letters l^a^
Car Vs C t£;nt|5 t0 3.S\ auti that he has iurrendered It, trJjirl) tijC King accept-
but s'p. does ed ; and tljCn in Conlideration Of tljlS S'lltrCnliCr, tijS i$A\\V, granted the
nor appear. Office CO J . D. (t i£j HOt fufficicnt eminence to ihen tljofc lctter0 lS)a'
— To. 465. (0j^{j5^ UlltljOtlt fijeUliniT the Letters Patents themfelvcs made to J. 8.
S P docs a"d his Surrender by ivTatter of Record, becaUfC It 10 HOt tO bC ttiCD
not appear, ot proxicn bj) tljc Cciinttp, but bp spatter of Hcroro, bems Cfjiniisj
-Sec (A. f)of j^ecorn* ^\i% 13 car. Od. 1\. bctiuceu ^- Sir John Meade auo
pi- 5- Sir William Leiitkaii, \\\ ail i^ftion upcn tljc Cnfc, fot tIjc ©fficc of
£i3arfljal of 15. R. RcfoliicB per Curiam, upon eiii5cncc at a
Cria! at 15ar, ann %vc Joijn a3cati noiumtct! for iIDant of pro^jino;
it. C3t fecmis it id not ncccilari) to fljeu) tOc HccorD, but it id not
fit to be pcrnuttrti to proiic it in fuel) fanner, iHitljout fljeuJino: t()c
Hccorti, or a true Copy of it. x^tit It fcemd tIjc 3iurj) mi^ijt uiell
filiD It, if tljCp brUCllC it to be true. Witnelles examined to prove a
Surmile in a Prohibition in B. R. or B. or OtfjCr COUrt Of RCCOrtl,
fljali not be iji^jcn in eminence on a STrial in anctljcr Saion iipoji t^c
lame Cuftoin, bccaufc tijc DcfcnUant in tije J3ro{)ibttion cannot
Crofd'Craminc. Spiclj. 13 Car. 05, K. fcctioccii tijc Kariof^ Salis-
bury antJ Sir Erokct Spciiccr. j^ct Cutiam, refo!VieD upon CiJiQcncc in
a Criai at 15ar.
See pi. 10. 3. 3!f upon a tt^rit of Diem claufit extremum. Evidence be given ac
II- — None the Bar in the Court of Wards, tC fillD an £>^ia fOr tfjC l.\ins, ailO
can be ad- jjj^ ^jutp nftCt €f UiOenCC are agreed to find a Verditt againft the K ing j
sivTevT but belore the Verdict gtlien they are difcharged : Jm an Action aicer
dence of foE t\)Z 'Citic Of tlje LaiHi, bctiucen t|}Ofe h\)0 imU Citic to tf)c
what was jLanll, if ^tie of the firlt Jury is brought to give Evidence that the
done at a j^j.y ^35 agreed to find againlt the King, it^fljaU ilOt bC aHmittCD
Trhrun- iBitljout f\)mm of a Copp of tf)e J©rit, or fome ©rocr for it, it beinD:
lefs the a chatter of EccorD. p. i6 cai% 15. K. between Reverts ann SirSwm
Proceedings Harcotirt, T^zt Curiaui reforoeo, but attcr atmuttcD bj? Confent.
at the fame
be proved. 12 Med. 555. Trin. 13 W. 5. Anon— And Ibid. 565. Mich, ij W. 3. One cannot give
Evidence
Trial. 551
Evidence of any Thing done at a tbrnier Trial, without producin<^ the Record of the former
Trial.
4- IJlt a Suit tit tIjC Star-chamber, \'^"itnefres were examined tO
pxou u)l)iit uiagi DcpofcD concernuts a UDill m Court Cljcittian, pet
tlCCaUfC tlje Depolicions ntE not allowed in the Sc^r-chamber taken in
another Court, tljOft DcpofltiOllS tiJCtC rOCCtCU, fig a Ctaft? DClJtCe
to mmicc Dcpofition0 apinft ttjc Kiilc* ipobart'0 Rcportei 159.
5. VVitnelies examined in Court Chrillian, jjt a ^lUt fOC Tithes, Teftimonv
tljo' t\Kv arc dead, fljali be ffi'ucn m Clitnence in an laction at cam= ^"'^'"^'i'"
tuon Laiu, uiljcrc tije fame curtam 19 in Clucftion mm) loag in wi^ch"is
tIjc Court COciftian* 99iclj, 13 Car. 15* R. bttmttn tfte Ear/ ofSa- not of Re-
iisbury ann ^>>- i^>-o/tf? -^^v/ar, pct Cutiam rcfolijco upon a Crial ™^<^' ^s the
at ^ar. spintuai
Court IS,
tho' it be /» .-iC^i/e whereof they have Jurifdiciion, Ihall not be read here ; Per Hutton J. but the other
; Juftices contra. But afterwards they agreed to Hutton; and becaufe it never had been done,
they would not make this a Precedent. Litt. Rep. 167. JSlich. 4 Car. C. B. in a Cale of
Evidence.
It was moved, that Depofitions taken in the Ecclefiajlkal Court, might be given in Evidence in a Trial
in thi<; Court ; and the Court was againft it, becauie they were not taken in a Court of Record. And
they iaid, altho' the Parties were dead, yet they ought not to be allowed. And by Batiks Ch. Juftice,
no Depohtions ought to be allowed which are not taken in a Court of Record And Fofter and Reeve
were of Opinion, that although the Parties zvouUi ajfeiit to it, yet they ought not to be given in Evi-
dence ngsinft the conftanc Rule in fuch Cafe. Crawley contrary ; for he laid, that a Writing, which
by the Law is not Evidence, might be admitted as Evidence by the Confcntcf the Parties. Mar. 120.
121. pi. 19S. Mich. I- Car. Anon
Proofs in the Spiritual Court, in crder to a Deprivation for Simony, were otFered to be read, but was not
allowed ; for thofe C)Ui-ts are no Courts of Record. But the 'Sentences of Deprivation were fuffered to
be read. Freem. Rep. S4. pi. 105. Pafch. 16-3. Philips v. Crawley.
6. 3 Sentence given in the Court Chrillian touching Tithes, Uiay DC ^^= ^'''^
giucn in etuncncc in an action at tljc Comuion Lauii for tijisljj a ^"'%'° ?'
judicial Ad. C^\i\), 13 Car. 15. H* bCtlneCn t!je E^rd oj Salisbury ax(ii 5-«'^'^"='^-
Sir Erokct Sfiencer. \f>Zt CUtiaUT.
7. Depolitions taken in the Court of the Council of York, touching Hob. 112.
Iliac [noie
thofe Depofitions were allowed and given in Evidence by the Lord Coke then Attorney General in
^6 Elii. upon an Otiicc at Carlille, taken before my Lord Chancellor then Jilafler of the Rolls, upon
the Attainder of Francis Dacres, which was alfo confirmed by my Lord Coke; yet that moved us
little, both becaufe the Cife differs much between an /?;^;/eyf of Ofice, wiiich admits a Traverfe, and
tliis Hearing, which is final. And alio becaufe it is now contradicted, and put to the Judcmcnt of the
Court, v/hich muft give Anfwer judicially, which before pals'd in Silence.
Dcpoutions taken in the Dutcky, and exeinpHfed, were offered in Evidence, but rejefted, becaufe the
Aniuerotthc Delendant was not alio exemplified; fo tliat it m.iy appear to be the fame Matter and
Title. And by this it fcems then they might have been allowed ' Clayt. 9. pi. 17. Aldbroke's Caft.
Depofitions taken in the Council of York, or Marches oflf'ales, fliall not be received here. Agreed
per tot. Cur. Litt. Rep. 167. Mich. 4 Car. C. B. in a Cafe of Evidence,
8. Depofitions tafeCn in a Suit between other Perfons, fljall UOt tlC ^o^- ir^.
gillCn in CVlincnCC againll him who does not claim under any of the P' 152- S.C.
laid Perfons. IpObaft'S KcpOrtSi, 155. lU tIjC lillD Caft of the Kt»g Sution^or'
and Lord Ho-joard. HCfOillCO. Rcalbn.- -
It wa.'j a-
greed, that Depofitions taken in a Caule <v:here Tenant for Life crlv ivas Party, cannot he ?>iaHe ufe of as
Evidence a^ainfi the Reverjioner cr Remainder-Man. And Lord Keeper declared his Opinion that De-
pofitions taken in a Suit Ci-^ere Tenant in 'fail ■zvas Party, could not he m.ide ufe of a^ainft the Ijfue of Te-
nant in Tail, becaufe he comes in by a Title Paramount per formam Doni ; and altho* Tenant in Tail
1) i_s a Power over the Eftatc, and may difpofe of it, yer if he in a Bond binds himlelf and his Heirs, the
Ifiue in Tail ij not bound; But if Tenant in Fee is Party to a Suit, the Depofitions taken in furh a
Caufr
Trial.
Caufemay be read againft the Heir. ^ Freem. Rep. 264. pi. 559. Mich. 1702. Lord Peterborough v
Lady Dutc'.iels of Ndvloll:.
In Trover 9 Depollcions tnllCn by Commiffioners upon a Commiffion of Bank-
bv AGignee j-upcs, iijnU tiot tic gtucH III (KViiDcncc in a euit, in isljic!) it couicg tit
the Bank- q^rftjo,| uiijEtijcr Ijc tufl^ QoanUciipt or not, or to prolie anp 99attct
17e>eldmit- CCpCUtimiJ npOU It, bCCaUfC tiJC Ott)Cr P^rtp CCtUO not crols-examine
ted ; but the tijc i;i)iut}> fiDOtn* Cijisi i?j tijc cosumon Courfc,
was upon a BUI of Sale of 189 Pipes of Wine to a Mnme-fake of the Bankrupt's, whether the fame
■was fraudulent or not. The Evidence offer'd was the Depolitioa of the Bankrupt himfelf before the
Commiffioners, and the Court held it good enongli. Rat this being oppofed by the. Defendant's Coun-
lel, Proof was made Viva voice, of w hat the B..nkrupt confels'd. z Keb. 548. pi. 91. Pafch. 20 Car.
2. B. R. Bents v. iMicoe.
s c pi 3. 1 1. 10. 3n nn itirormation for tIjc Einff bp \M ^ttomep-iScncral:, aftec
CViirscncc giiicn, if tIjc Jurp are agcceo Hi. grdc ttjetc a^ctoirt, ano
lUijCn tIjCp iiie ready to give cheirVerditt in COUtt, tije Atcorney-Ge-
neiul i;ud that he v\ ill nut proceed, \A\t tDlil i)a\je 3 JlUtOt OcatOn (aS
ije niap,) anti it 10 To none, anu fa noaDeroitr gmen* in a new in-
tormatlon 1}D tijC ClttOrilCJ' liDCnCtal fOL' tljC HlUIJ, none of the firft Ji^-
rora ihaii be RtmatttD upon Crial of tije 3ftiiE in tf)i0 ncU) 3ntocma«
ttOn, to i;ive Evidence that the tirft Jury was agreed to give a Verdict
a^ainit the King, bccaufc inaruuicij a0 it oucjljt iiot to 1)0 rJifcoDct'O
ar^ainlt tije l^in'X in tijc firft :jntonnacion, tip tlje fame teafon it ftall
See (Y e 2) j^^. j^,^ jjico^cr'o aiTflina tijc aiuff in tiji0 nciu Information i tor if it
>.otett't^rr fi}OiilD be, tijen no X^cncfit lucuio accrue to tOci^inn; bp l)igi prcro^
gatii3C to 1 craiu a Siivor bcfctc aDctliict* \^, i6 cai% 06* E. in an
aaion '• betlomi/^w'rit.f rt;A/&r^'yw/w/iy.zr«//r/, uponaCrialafBar,
Sato bi> SuSicc joncij to be tljc CoiirfCj aun agrecn bu @)ir ^ofjn
QSasU.s, tt;e ^atcvii£p=©cncraL
See pi 5.10. II. 3ijt tlBrttOfDiemclaulkexcremum t<y fiut) aU ©fFiCC SftCt tl)C
(Yl^r^ 1 2)catl) of a* ^. If tfjC Jury impannell'd tO fUllJ It be adjourn'd out of
'" in^t'ie the Country CO hear their Evidence at the Ear at Weliminlter, in the
Notes tiicre. Court oi Wards ; aiio tfjctc, ^Im €uttience Ijcai'ti, tljcp go tcgctljct
to confiOcr of tijcir Cbtocncc, tm after arc agreeu to giijc a ©cr--
51'Ct againft tl)C £\inO;i anO tfjen, before their Verdk't given, they are
dikharged, lo that no Verdiit is recorded ; pct OHC Of ti)C Sllltp fijail
tic aomittco to giiic eiJitiencc. tljat tJjcp tccrc agrcen to givic t^cic
aDcrOtft asainit tljc i.\mij» l^. i6Car. 05, E between i^o^mj and
Sir Simon Harccoiirt, upon 3 "^rial at 'Bar. EcfoSDct! pec Curianu
antJ t\)z €^iDcncc pecmittcu to lie iji^jcn nccorDinn;ly in tljis Action,
inijici) concern'!) tijc %{t\z of t!)e lanD bet^ueen tfjem* QStit this
Trial did not concern the King.
12. Always when a Man pleads a General IlTue, if WisEvidenceJtands
with his IJJite^ and p-roves it to all liitaits^ the Evidence is good i But if
the Evidence does mt prove the Ilfue, as where i» Trefpafs a Man pleads
Not Guilty, and lliews in Evidence a Rek^ife or Arlitremeiit^ Quaere
of this, if good i Per Fineux. Keilw. 64. a. in pi. 2. . Trin. 20
H. 7
13. In an A6tion upon the Cafe, for taking the Pro/its of the Uiider-
Clerk of the 'treafiry, a Note obtain'd by the Lord Finch, Mailer of that
Office formerly, of the Officers Sabjcription, that they "xere but Serv.uitSy
was ofter'd in Evidence, which was inlilted to be no more than fome
Parilhioners Subicription to pay Tithe in Kind, which will not bind
others ; which the Court agreed to, and refufed to let it be given in
Evidence, efpecially Part being cat off'. Keb. 258, 259. pi. 36. Pafch.
14 Car. 2. B. R. W hitchurch and Paget.
14. Upon
Trial. 353
14. Upon a Feoffment pleaded by Deed, Evidence cannot be given
without or hy ether Deed. Brown's Anal. 16.
15. Chirograph of a Fine is prima Facie good Evidence, and is Evi-
dence of fo high a Nature, as that no Parol Evidence Ihall be allow'd to
tallity it. Admitted Arg 10 Mod. 42. . in Lord Say and Seal's
Cafe.
See the fame Divifion at Tit. dJlOCltCCj with its feveral Subdiviiions.
( C. f ) Evidence. What Things may be given in
Evidence upo?i a Special JJjue.
i.TJf5 SCtlOlI of Debt for Rent referved upon a Leafe for Years, iflftheLeaPc
X DcftiiQant plear!0 Non dimiiit, ije map v,M in Cijirience that Jl« ^^.^ ^y
Lellor had nothmg in the Land at the Time Of tlje DCUllfC* CO* Ktt* Sed.'both
47- U» Parties are
concluded ;
but if it be by Deed Poll, the LefTee is not eftopp'd to fay that the Leffor had nothing at the Time of
the Leaie made. Co. Litt. 47. b.
Iflue wasjoin'd upon 3 T'ra-jeyfe of a Leafe for Tears by Parol, viz. Abfque hoc qucd talis dimifit. It
was argued, that he may fay th.it the Lrjjor had tiotSiug in the Land at the Time of the Dcmife. The
Court at tirll doubted, but afterwards thought it good Evidence. D. 122. b. pi, 25. ISIich. 2 8c 5 Ph.
& M. Martaine v. Hardy.
2. Jf mi JflllC be Whether A. and all thofe whofe Eftate he has, i\\ Br. General
a JpOUfC $C» have had Common fOC fO niatip T5eaft0 fC« tllUe UlljCrCOf ^'^"^^Pp^"^
^emarp jc. tt \% not anp a3amteiiancc of tljc prcfcriptton to gi^c ^""
ill eSVllDCnCe a Common for Cauie of Vicinage, UCCaUfe tfjiS COmmOll
noc0 not commence onip bp tlje ptefcription, but luitlj tlje l^rcicrip-
tion. anr> tlje ConfiQcratiori tijat tlje otljct (ball Ijabe Common m fjis
Lanu. 13IP. 7- 13 b,
3- Jn an action of Alfauk and Battery, if tbC DcfcnUant juftifies of See (K. f )
the Allauk of the Plaintiti' himfelf, anD tOC St^tfCljlcf lUljIClj bC bati $C» P'' '^ p
'^^ UlijICb t\}t Plainciif replies De Ion tortDemefne, without fuchCaufe; p]"",';, Vild,
Upon tUijICb IflllC l|5 )OlnD* 3if tbCtC UiaSS a Trefpafs done at another 14 Car. b.r!
Day than chat which the Plaintiff has allign'd, and which the Detbn- 2ri)0rntou
dant has allign'd upon the Plaintiff, and another upon the Defendant by ^♦^Pi^'''»
the Plaintiff,' It feemj? tbat tbe Detmct ougbt to be fannn foe tbc Dc= fhaT ilfJe*
fentsant ; for tobcn tbe Dcfcntiant makcjj a ^'pccial iiiftiftcation, anD was jom-d
[Plaintiff replied De fon 'E>m etc, if tbe Dcfenoant can prooc anp "po" the
fiicb '2Crcfpafs Bone upon bim bp tbe l^lamttff, it ouijbt to be founo D^ff^^'nt-s
for bim, tbo' it iua0 at anotber Dap tban be \m alleij u -, for the Day ^^d 'TveTa *
is not material, but UpOU fUCb ^ptCUll JUlllftCiUlOn tbe DCfCUtiant Evidence
ba^ liberty to pro^e bi£j l?lfa at anp Cime ; anD tbe Plaintiff might Airjuu and
have made a new Alfignment at another Time, auO tbCH bC tbOU!0 babe ^^^^"^^.H-.
election to probe anp SiflaiUt upon bim at anp Cimc ; for pcran'uen= z juiy 'T-
ture tbcre map be feberaiCrefpaflcsi at feberal ['fiCimes,] for tubicb car. before',
tbcDcfennant map ba^e federal ssnfiuer^ ; ano ttjerefore if fucbC^an= and that it
nee of picacmn; njoulo not be allou) Q, anu fucb (Cbiuence, tbc 'Oz-- ^'"^ '" pf^'^
fenoant cannot l^nom boiu to aiD bimfelf, nor can Unoiu foe lubat ^nce and
-ecrcrpaf^ tbc action ig brougijt* produced
4. Contra ^ICb. 14 Cat. bCtlOecn Thornton and Lifter, per CUtiailt* Witneifes
Eulcti upon Cbtoence at OBar. oaut note S'ones befitaten, anQ ^° p'7'=
biouin babe it founo epcciallp* Jntratur Ctin, 14 Car. Hot. plaintiff
843, fhew'd
that the
Battery he intended was upon tf.e pth of July, i; Car. and produced WitnclTes to prove th :r. It
4 X »\ ^
^54-
Trial.
■was infilled, that this vv.is no Evidence ; for that the Plaintitf fliould have replied Specially,
and Ihewn 'that Special Matter. But per tot. Cur. he need not; and had he fhewn another
Day in his Replic:.tion, it had been a Departure ; and his ITiewing his Evidence at another
Day, Sans fon Aifauk is fuificient ; for the Day is not material. Jones laid, if they had both agreed
on one Day, it fhould have been Specially pleaded. But Brampton held it_ all one, and as it is noiv
pleaded to be at fcvcral Days, it is clearly unneceflary. And the Court laid it was ib clear, that they
denied to have it found Specially.
In an Aflault /wrf Battery, (at the Nifi Prius in Middlefex) the Defendant jiiftified; and the Plaintift'
rethcd De Injuria fiia Pnpria, and liTnctheveapon. The. Defendant proves hisjiiftijicattonat one Time.
Now, per Thoinplbr, the Plaintiff cannot, uithctit a Special Replication, give m Evidence a Battery at
another 'Time. And the Ch. 1. was ot the fame Opinion, and therefore the Plaintiff was nonfuited.
Comb. 50. Palch. 3 Jac. 2. B. R. Anon.
5. 3!f tlje :j(rue lie ttaljCtljer a* being a Leffee for Lite of the King,
by * Letters [Patents,] lurrender'd this Ellate tO tljelaUtgi ttfCemSSlt
H„-„ ^„, map be sitieu m euineucc upon tijis IflTue, tljat tlje icffce accepted
204 'pi. 2';-. other Letters Patents, bpiUljlCt) tIjC KUlg inCanaHCrntiOn Of tijC %\\K--
Trin. 14 ' rCnUCL' of tlje (aiU (Jcftate, regranted It to A. if Of t|)I0 Surrender in
Jac. in Cafe Law is fufficient to puo^ tljc JITue, tljnt Ije fumnoec'D WCUtz.
V HoTman. DiiUitatur. ipol;ai;t'0 Hcportsi 276.
sTc. ' '' 6. 3!n an Action upon tljC Cafe, if tlje l^lai'ntiff declares that where
J. S. was indebted to the Plaintiff in 1130I. afterwards he appointed
the Defendant to pay to the Plaintili 1114I. in Part of Satistadlion of
the faid Debt ; and that after J. S. paid to the Plaintiff 1050 J. Parcel
of it ; and aftCC in Conlideration that [he would Itay lor] the faid 64 1.
Refidue of the 1114I. till J. D. ihould pay to him the faid Sum, bCing
Hue to ijiUl, alfUniCn anU promifed to pay the faid 64 1. and averr'd
Performance aCCOVDUtglP ; and alleged that J. D. paid tO tljC DefeU^
nant tljc faiti 64 1» Co luljiclj tlje £)cfenlinnt pleaDen Non Affumpiit.
3if toe pcotiufc be prolicn, tljc Dcfcnuant cannot giUe in euiDence
that J. D. has not yet paid the faid 64 1. bCCiUUe tlje Hfue is only upon
the Promife, tljo' tljete IS uot anp Caufe of Damaijc, nor of action,
if ijeljasi not receiiien tljc C^anep of 3. %, ^iclj. i6 Car* 15. E» be=
mtZW Holdttcb and Brodrtdge, aCjUtlSCD UpOU ^Wiit Of all tl)e JUf
ticess of @)erjeant^0=3!nn in Jf lect ftceet, befiries Suffice 3Ione0 airti
3LorD littleton, luljo feeui n e contra ; anu tljep fain tljat tljiss iis like
to an action of Covenant i tljo' 31 urgco, tljat in all actions tljere igi
a (general 31irue to be taUcn, uiljicl) luill put in Slffue all tlje Declara=
tion, anti tljat tljere is not anp ©eneral ^ITue but tljis to be taken i
for Ije cannot pican il3ot <i>mxv. isut of tlje otljer pact it uias faiu
tljat tljc Papnient of tlje 64 J. bp 3i* D* might be traverfed, and then
the Promife had been confefs'd.
7. In a Writ of Right ^ if the Tenant joins the Mife upon the Meer
Right, he cannot give in Evidence a Collateral Warranty ^ for he has not
any Right by it, and therefore it ought to have been pleaded. Co. Litt.
283. a.
8. 2'refpafs, the Defendant pleads that the Place zvhere &c. is his Free-
hold, and gives in Evidence a Fine with Proclamations^ it is good Evi-
dence, becaufe it is a Title. Brown's Anal. i6.
9. In Falfe Imprifonment, if the Defendant jtiftifies by Warrant made
after thtJrrefi, the Plaintiff may reply De injuria fda propria abfque hoc,
that he had any Warrant, and gi\'e the Matter in Evidence . Brown's
Anal. 18.
(D.f)
Trial.
355
(D. f ) Evidence. The Effeci of the Iffue. 5ee(D)
I. T JF Advowfon be pleaded to be granted by Deed, anD 3!irUC 10 ta=
1 l>Clt lip a Stranger tO tljG DCCD that he did not grant by the Deed.
Jf It Cilll hZ proved that he granted it without Deed, 30 it niflj) JjC
Ca0 tijcrc is fjClQ) or by other Deed, it i0 gOOD, bCCaufe tIjC Deed is
Surplus, antl tIjC effect Of tfje WUe 10 upon the Grant mio ItOt tl)e
iDceri. 43 €♦ 3- 1- ti» 2.
2. 3f an Imprifonmenc by Durefs at D. DC alleged in Avoidance of a
Deed, upon uiijic!) tljcj) aiT at JlTue, It fljall not be giiicn in euiDence
tDat De luljo 10 fupparcD to lie impnfon'D at D» neuec tt3a0 at D* foe
the Place is not traverl'able ; liUt tlje CffeCt Of tlje I'ffUC 10 UBijetljCt It
u-'a0 niaoe by Dureis. 14 f]). 4. 35. siD)iHin;eri»
3- 3in an Allife, if tlje Tenant pleads a'FeofFment matie tO Ijl'm See pi 5— -
by J. S. a Stranger by Deed, bearing Date &c. anH iplauitlff mat?e0 See(Y.e.;)
-ecitie ann trnun:fe0 luitljotit tfjat tijat 31* €>♦ enfectFcn tije Cenant Ij? inf^s
DecD, It niap be ijiben in Evidence, tljat Ije enfcoilco fjnu bp other a Feoffmem
Deed or without Deed ^ fOf tfje €.^ZC(. Of tOe Ifflie 10 upon the FeoiF- madeto him,
ment and not upon the Deed. 43 ^, 3. i. D, 2. luill ptOliC tl)(0« Con= !"<? g'^"*"
tta 12^4.4-11* fharkTas.
Fine (which
is a Feoffment of Record) it Is gcod E'videncc. Brown's Anal. 17.
4- 3in an Action againff a Gaoler upon an Efcape of a Prifoner, in See Efcape,
Execution, if ttje Jffue be iBijct'jec t!je ©aolcr imnictiiatclP after tlje^^^^p^ ='•
Cfcape niaHe freih suit after tIjc i3i:ironcc $ c. ann Coiticncc 10 giijcn one in ex
tijat a prironccefcapen fromtijci^rifon bj) JQeglipnceof tlje i^eeper, ecution goc
ann 10 iibfent by a Day and a Niglir, anD tlje li\eeper WD UOt feUOUl Of ^ Habeas
it (!jaU(ng feljctal otljec lE)tifonet0 untJct ljt0 cate) but loljen ijc IjaU S^"l'°^
Notice * of It, Ije imniematelp aftertDartJ0 niaoe frefij ^uitaftet Ijim, ♦ f^i^
ano retook him, ciji0 i0 au luniieOiate fccflj ^uit to maintain tlje o^^yr>^
jmic ; for Convenient pucfuit 10 an inimeotate fteflj ©uit in laiu* ^°^^ i^™-
-QCr. 10 car* 15, E. Ecfoiueo per Curiam upon euiDcnce at ODar '"'^•/"'^ ^^-
bettUecn Hnnon a>,d Sir John Unthall Q3atffjal Of 05- E. aitll fO upon Son°and
fuel) JlTue refolbcu. p> nCar, Od* E. betuieen aitou and Sn johun EaiWr
Lenthaii, refolDcH pcr Curiam upon Ctsiuence at Tiar, tuljerc tlje Term afccr-
CVioence iBa0, tijat Ije cfcapcD at 9 of tlje Clock in tlje iSisijt, auD ""^'-^'o^f",
tbe iQoticc ann frelt) €)Uit upon ttljictj fjc iua0 tetaaen iaa0 in tlje him "c^'in
nect s^orni'ns at 5 of tlje Clock* and in'^Aal-
on of Falfc
Imprifonmcnt ag.iinft the Bailiff, the Court held, That the frefh Suit had been good tho' he had nor
taken him in the End of the Year, if Inquiry was made after him, and confequently the Adtion not
maintainable. Godb 17;. pi. 24;. ^Iich. S. Jac. C. B. Stone's Cafe.
5. Defendant pleads a FeoiFment Utatie tO fjiUt by Deed by J. S. a See pi ^5.
©tranrjer to tijc plaintiff, anu Paintsff ma!te0 Citle to Ijim, ann
trai3erfc0 icitljoiit tbat tljat %, ^, enfeoffco tlje Defcnoant Modo
& Forma, it luap be founn in eminence tijat Ije enteolfeQ fjini bp
other Deed or without Deed ; fOC tlje CffCCt Of tlje WXKZ 10 UpOU ttje
ifeoffmcnt* Contra 12 c* 4- 4- per litt.
6. ^if a S^an leafes Lanti by Indenture dated 30 Aug. 23 H. 8. tQ And becaufc
ija\3e from tije jfeatt of ©t S^idjael nert enfutno; for 21 2^ear03 ann th<= words
tlje fame tCffOr bP SinDCntUrC reciting the /aid Leafe, and that it bore Leiib made
Date the 6th of Aug. 23 H. 8. (JCt leafes it for Years to commence from to this id
the
356
Trial.
LcfTee were the Expiration of the firft Leafe, and it is pleaded that he leafed by In-
to have to the Venture dated 30 Aug. 23 fp, 8. aS) abOViC, aitU fitter by other Indenture
End of 50 j.^,^,itin2 that he had demiled it by Indenture dated the 30th of Aug. 23
^T.lt'^A I) 8. demifed it &c. as above, atltl Jlfllie Id takCU tljat IjC Non Dimilit
ZVU'"'-^' Modo & Forma. %\)z laft 3:nticnturc map be gftcn in CWnencc tijo'
ajier the De- jug £)j^t0 Qf tjje firft Snocntuit be nuftat%cn ; for tt tis not material
,;,;/., <t;-vj /»- jj^^j. jjj^ ^jYi,^ Qf jjj^ jjTfjjj> jjj ijpQ^ tjj,, 23cmtfc. D« 2. 3- ^ii» "6.
ft='?' Ind were not to have after the faid Dewife and Indenture of the fatdf.rft Leafe fully ended ; The faid
hekc made to the 2d Leflee is good, notwnMhndin^ this falle Recital ot the 6th Diy ot Aug men-
tion'd in the laid Indenture, and that this Recital wa.as void, and the laid Leale made to the 2d Ldke
took EffVfthv the Demife and the Habendum ; And fo was the Opinion of all the Julh;es ot C IJ. on
View of all the Indentures whereupon they went to Iffue upon the Demife, and it was found with the
Plaintiff on a Verdiit at large, and he had Judgment.
Bendl. 59. Mount v. Hodgekcn. And.
pi. 5, Mount's Cafe S C.
Rr. Failure
of Record,
pi. 6. cues
s. c.
7. In Affife, xht'tencjnt vouch' d^ the Vouchee pleads that heretofore the
Plaintiff bmight an uHjJjjc againji his Father, who pleaded that the Plain-
tiff did tnfcoff' him by tis Deed, and that tt was (0 found by the. Jiffife, and
he demanded Judgment, and upon Ilfue Nul tie! Record, the Record
was, that the [aid JJfife was againft the Father and Mother, and yet ad-
iudged no Failure ; but the VerdiCf nmft not wholly depart prom the Words
of the IJfiie. Hob. 55. in Cafe ot Forlter v. Jacklbn cites 16 Al^ 19.
8 Ii a T'nfpafs be alleged to be done on the sth or the 1/ of May, and
at fuch Time no Trefpafs was done, yet if it talleth out upon the Evi-
dence that the Trelpafs was done before the Aifion brought it is fufficient.
Co Litt. 283. a. at the Bottom.
9. If the Point in Ilfue be a bare Jgreement, or fimple Contract with-
out any complex Matter, and the Evidence prove it to be an Agreement
Special, this will be good. Heath's Max. 85. cites PI. C. 8.
10. So if it be of a Feoffment Jb/ohite, and the Proof be of a Feoff-
ment Conditional. Heath's Max. 85 cites PI. C. .8
11. In Avowry, the Defendant alleged Seiftn within 50 Tears by the
Hands of J. S. the Plaintili' traverfed abfque hoc, that he was leifed
Modo& Forma. Jury/owW that he was leifed within fifty Years by
the Hands of J. D. and adjudged lor the Avowant. D. 116. b. Marg.
pi. 70. cites P. 37 El. C. B. Skinner v. Gray and Giles.
12. A Deed oi Feoff'vient without Livery may be given in Evidence as a
Re/e^y^, per Barkley J. Clay t. 32. Ballard v. SitweJl.
13 In Jffamplit tor Money due, the Plaintiif laid it in his Declaration
to be payable on Requejl, and by his Witnels it did appear that a Fort-
night's Time was given for the Payment ot it, and tho' this Fortnight's
Time was pall long belore this Action brought, yet now it was held a
Failure in the Proof of the Plaintiif 's Cafe, as he had laid it. Clayt. 115.
pi. 199. Auguft 1647. Anon.
14. On a Declaration for Words fpoken in the Prefence of A. B.
and others, in Evidence, it is fufficient to prove that they were
fpoken in the Prefence of others only. Trials per Pais 180. (390) cites
Lent Aliizes, Norfolk 1662. Per Hale Chief Baron. W'inkfield v.
Coot.
At the fame 15- Debt on Bond to perform an Award, it a quod the Award, be dc-
Aflifes, Per Jivered to the Parties. It in Evidence, Delivery be proved to the Wtfc, ic
Moreton jg fufficient for the Jury to prefume the Delivery to the Party hun-
Sve^y/o ^^^^ Per Hale. Norfolk Summer Affifes 1665. Trials per Pais iS.S.
the Party's' Tricc V. Prat.
Son is good
Evidence, Trials per Pais 1S8. Violet v. Cook.
16. Debt
Trial. 357
1 6. Debt on Bond. An Award was to pay Money /;/, or at the Houfe
cf f. S. The Plaintiff laith it was not paid at the Houfe : Which
per Cur. is well enough ; and if it were paid in the Houfe, it may be
given in Evidence on Ilfue, that it was paid at &c. Judgment for
the Plaintiff, i Keb. 753. pi. 49. Trin. 16 Car. 2. B. R. Fitz.herberc
V. Hind.
17. Where a Demife is pleaded to Husband and Wife, a Fine fur
Rclcafe to them, is no Evidence to prove the fame. Brown's Anal.
16.
18. In an AH ion on the Cafe by the Husband, of an Affumpjit made to
him, \i Evidence be given that the fame was made to his IViJe^ and that
he did agree to it, it \a good. Brown's Anal. 17.
(E. f ) Evidence. Uljat Thing may be given in Evi-
dence upon the General Ifjue pleaded.
I. TiT a S)9anpleati5 tl)c General Wue ass Not guilty, [)c cannot He muit
X ffllie m CHlDeilCe a Matter jultifiable, which will be a Contef- plead the
fion of the Aft ; fOi; It 10 COltttai*)? tO tljC Affile. 1 1 1^. 4. 6s. %cial Mat-
ter, and
then confefs
and juftify the Aft. Co. Litt. aSi. b. ad finem.
2. As iw ^refpafsi of Batterv upon Ji5ot gtiiltv pleanco, !).c can= He may
not GlbC in (SiltUCnCC tljat it was De fon Alfault demefne. 11 tij^^^^f the
-- ' lame to be
4" "J" done of the
Plaintiflf's
own Affiult, but then he muft plead it fpecially. Co. Lict. 281. b. ad finem. Br. General
IlTue, pi. 19 S.P. cites 22 H. 6. 35.
3- 3n an action of Waiie in an l)m% if Dcfentiant pleaHiS No s p And
Wafte done, ^C CannOt fflDC in (£53IliCnCe tljat it was lufficiently re- he cannot
paired before the \V rit purchafed, tiCCailfC tljC J©aftC i0 aCt^nOtUlCDpH ^ive in Evi.
atonc^imiej anu tljeitfocc Ijc ougljt to picao it m a5ar» D. lo ^.^"" '■?^;-
ei.276. 51. Ca.5. I©l)clp.ii9. b, . ilepltfg*
the Houfe
&c is, but he may give in Evidence any thing which proves it m U'afle, as hy Temps fl. Lightning,
Enemies &c. Co. Litt. 28;. a. (d) (e)— Mor can he give a Releafe in Evidence; for the Evidence
is repugnant to the Pica. Jcnk. 19. pi. 3 5.
4. Jf niJJ Servant puts my Beads into the Land of a Stranger without See Tit.
my Aifent, anti a Treipais IS brougOt bj? Ijuii asatnft nic, 3i map p!cao l^^^'" f^.
Not guilty, anti ot^c tljis i^attcu in €^ibencc ; for noiu 3 am net pr't" a„d
giultp, but mj? ^cr^ant ; foe bj) tlje putting of tljc 'Bcaffss into tije the Notes
JLanD ije im pmen a fpecial jpcopcctp* Contra 12 jg), 7. 3. b^th-^i-e
l^Uoiuap.
5. 3|n Trefpafs of Batterv of his Servant J!j)£;t QUOU Scrvitium amilit. Roll- Eep
tl)e Defentiant map plcati Not guilty, anti giue in eminence a Juftifi- ^^J/',- '^■
cation of fuch Battery, which is not any Lois of Service, as a thrulting j^c B R.
away. 3^pECpOtt^. 14 3!at I'er' Coke
Ch. J. at
• the Endof the Caleof Norris V. Baker.
4 Y 6.jn
3£;8 Trial.
6. Jn a Paico fracio, if Defendant pleaug Not guilty, t)e map (Ijcuj
F^^^. 'ill eOtaClTCe tljat it is not any Park. i8 Ip» 6. 21. fj,
Bi- General IITue pi. 94 cites S. C. and Firzh.Aaion fur Statute 4^ Brown's Anal. 15. S. P.—
lnc\ith'.s Mas-. -7. 'cites S. C. S. P. 19 H. 8. 9. a. pi 2. it was objedted that the Trial Ihould be
between the King and the Plaintiff in a Qiio Warranto, whether he had a Park or not, and not be-
tween the Parties ; as in Trefpafs for Entry into his Warren, it is no Plea to fay that he has no War-
ren but he ouffht to fay Not guilty, and give in Evidence th.u he has no Park. But Englefield held
it all one.
s»eCY e O 7- 3in Debt open Arrearages of Account, if DCfenUailt pieatl0 tijat
pi" z6-^ — " IjC Owes him nothing, \jt UiaP gilie III ^'atOeUCe tOiit tljCrC Never was
Br. General jm^h AcCOUnt, 20 |), 6. 24.
liTiic, pl._7-
cites S. C.
Per Newton. So in Debt upon Account before Auditors. Br. General IfiTae, pi. 59. cites 9 H. ;.
-. Per Fineujc, [who cited the Cafe of 20 H. 6. 24.]
See Tit. 8. 3in Debt Upon Obligation, if DcfCllBaUt p!catl]3 (5CUCl*alIp Non
S"h °f o> ^^^ tiittum, i)z nuj> 0rtic m cmtntt fpecial flatter to ptoue ti)at
BrGer.cral tWMZ'^Zt XHA^ IjIS Otfi), US tO fdp 'l~hat he iealcd it, and commanded
Jfl^je.pi. 25. B. to keep it till Conditions periorm'd, and Plaintiff took it before
S P. cites Conditions periorm'd i fOC It IXZ'OZt tOaSi W ^CZ'iJ* 9 |)* 6. 3S.
14 H. 8. 28. £^^iserj;»
* Br. Deti- 9. M a Detinue of a Pledge, if tiJC DCfCiiaaUt plCaHlS Non.detinet,
tinue, pi. 19. ije iijail not gitic tii ^StiiBencc How it is his Pledge i for tlji0 iss fpc= -
cites s.c- j-j^j ^^■jjtj.f. 20 ix 7- 5- * 22 i|). 6. 33. b. 9 lp> 7. 4. b. JFoc the
. £t may"" pcoptTtj) cciutuiuc0 gcuctall? in tije l^IeDger,
pive in Evi-
dence a Gift from the Pliihit'ff ; for that proves that he detains not the PlaintiiFs Goods. Co. Litr.
285. a. in Principio.
In an Infor- lo. 3^n ^ Mm UpOtt tX Penal Law, if tf)e DCfCnSaUt plCanS Not
mation upon guilty Contra lurmani Statuti, if })C bC difcharged by any Provilo in the
the Statute ^.^^^ Statute, fjC Uiap fflUC It I'tt etHOcnCC Up^Ott tW IffUC ; tiJC !)C i0
a? for^i"^' Bot guiltp Contra focmam g)tatuti* ^. 15 Car, 05, E. f)clD b\»
groffing Bar- 31UftlCe JOnegi,
ley, the
Queftion was. Whether the Defendant might plead the General IflTue of Not guilty, and give in Evi
dence the fpecial Matter, viz. That he had converted it into Malt, or whetlier he ou;;ht to plead
the fpecial Matter. And -by Clench J He may plead Not guilty Sec. For che Provifo is Parcel, ar.d
within the Body of the Statute. Godb. 144. pi. iSo. Mich. 19 Elii,. B. R. Anon.
In an Indittmcut againlt a Fifhmonger for ingrolTing Fifb ea Intentione to fell to others, contra
Formam Statuti, the Defendant pleaded Not guilty, and found againll him. It wasmoved in Arrcit of
judp-ment, that by the Provifo a Fifhmonger may, by way of Ingrofling, buy Fifh for his Trade to
fell to others at realbnable Prices, fo as it be not by way of Forellalmcnt ; and th.it he was a Fifh-
monger, and bought them not by way of Forcffalment. But the whole Court held. That the Provifo
did not aid him, bccaufe it is found generally that he is guilty ; but fuppofing it true, the fame had
been good Evidence. Jo. 520 pi. 4 Trin. 9 Car. B. R. The King v. Pen. Cro. C. 314 pi. 6
Penn's Cafe, S. C. And that he might have taken Advantage of the Provifo, by giving it in Evidence,
■without formal pleading theieof; but fince he is found Guilty, it fliall be intended that he ingrofs'd
Contra formam Statuti. And Judgment for the King.
But 2 Roll II. Hpon an information Upon tIjC 8)tatt!te of 5 ^. 6. for Ingrof-
Rep. r- iing, if tijc DefcnDant pleaOiS tlje (general ^ffue, t)e cannot gtlic in
T""i5^w CijlOEltCC ii Licence according to the Provifo oi^ the Statute. j|9* 12.
Yt'wasdoubt- ^a. "B* bettoccn pje and Bojer, aitU faiQ to be tJjc Coiirfc of tlje
ed whether CiCCljeqUCt*
a Defendant,
on an Information brought againft him on the 2 E. 6. for Ingrodtng, miijht plead Non culp. and give
a Licence from the Jullices of PL;3ce in Evidence; for it may be faid, th.it if he has fuch Matter to ex-
cufe himfelf, he ought to plead it in Juflitication. And on the other Part it m.iy be faid generally that
the Plea is not good ; but that it fhould be Not Guilty, contra formam Statuti. But there is aifb a
Claufe in the Statute, that if he has a Licence he fhall be out of the Penalty and Provifio.i of the Sta-
tute, and therefore Not Guilty. Qu=re.
When
Trial. 3:^9
When an hiformathn or JBiov is brought tip.ni any Statute, if the Defend.mt be Aifchnrged by any Pro-
<uifo therein, he may give it in Evidence ; hut if it be any Foreign Matter, even tho' it be a Licence pur-
fiiant to a Pro-vifo of that Statute, he mull plead it ; per Turner J, and cited 2 Roll's Abr. 6S2. [which
Icem.s to intend this Cafe] Bur Hale ftid, That a Licence purlliant to a Provilb is all one as a Provifo
and lb might be given in Evidence. Freem. Rep. 129. pi. i jo. Mich. 1675. Thomas v. TolmarOi.
12 Jll ail Action of Debt upon tOe Statute Of 21 |)» 8. of taking Br General
Land to Farm by a Spiritual Perlon, if tl)C Dcfcn5ant plCaOlS Non ha- ^!^"«' P'„^-
buit feu Tenuit ad Firmam, contra fofmam Statuti, UpOJl UlljiCij 3!flltC8"2o s" P —
iss jotn'D, tljc DEtcanant ntap t^M in CiJiUcncc a (Ealunn: to if arm, codb. .45.
ior Maintenance ol iiis Houle, according to the Provifo of ti)£ ^ta= ^" P'- 'S°-
tiite; toe tijts 10 not a&atnft tlje ©tatutc, 27 1), 8. 21. b* ciench j. ^
^ cuc! 2-H. 3.
2. [but it fhould be 27 H. 8. 21. b. pi. 12. according to Roll] that it was fo holden by Fitzherbert,
notttitbftanding the Statute in the PremifTes rcftrains every Spiritual Perfon.
13. Jf an Aftion or Information bcbtOUSljt upon a penal Statute, and
there is another Statute which exempts or dilcharges him irom the Pe-
nalty Of tW Sitatutc, upon tlje <J5encral Jifue pleatien, taitijout
plcabing tlje Statute, ije cannot aiue m CUiDcnce ttjlsi Jaft Statute,
tijo' It IS m JQaturc of a }5roi3ifa, ijccaufc it 10 not m tije fame %t^=-
tiitc loljicl) Gi\3ES tijc Ii)ena{tp, but in anotljct statute, ano therefore
oun;l)t to be pleauco. ^. is Cat, 15. E, fap lonegi fiifo to be fo re=
foiucn m tlje erci)ci]uer*
14. In Relcous the Plaintiff' counted^ that the Defoidaat held of him hy
Fealty, and lo s. payable at Altchaelmas and Kafier^ and jor the Rent ^r-
rear the Plaintiff difiraind, and the Defendant made Refcoas ad Damnum^
&c. And the Defendant pleaded Net Quiliy. A Lea[e at Will cannot he
gi'vcn in Evidence, by reajb/i that the Defendant has pleaded Not Guilty.
.^iccre. Br. Refcous, pi. 28. cites 9 H. 7. 3.
IS- In an ^JJtfe, if the Tenant pleads No Tort, No Diffeij^n, he cannot
jive in Evidence « i^f/t'^y^ after the Diifeilin i I'l'/i' he mav give in Evi-
Idcnce a Releafe bejore the DiJJcifin ; for then upon the Matter there is no
^iileilin. Co. Litt. 283. a.
16. In Trefpafs brought by the Warden of the Fleet, and Not Guilty
pleaded, it is good Evidence to fay that he is not Warden. Brown's
Anal. 16.
17. /// an Action on the Cafe, founded upon an Injury done by the Dejen- ^""P'" ^o"
dant to the Plaintilf's Damage, every ^hing that jheias that the Defendant ^"^"'^^^l^^_
did "jvhat he might lawfully do, may be given in Evidence upon Not Guil- fit, or Non
ty pleaded i lor that proves that he had done no Injury i Per Holt Ch. detinetbemg
J. Comyns's Rep. 274. Pafch. 4 Geo. i. in C. B. in an Anoninious '" I'^"^'
Cafe. e^erythi^g
may be given
in Evidence <ujhich dif.t-ffirms the Cor.traH ; for that goes to the Girt: of the A<9:ion, fince there be no
Contract to be performed at the Commencement of the Action, there could be no Trefpafs for Non-
performance of it ; and therefore a Releafe goes to the Gift of this Adion ; for it fhews there was no
Contrad: at the Time the Action was commenced ; for as in Trover hemuft have a Right to the Thing
declared on, therefore every thing that (hews the Contratt to be void, as Nonage, or more Money loft
at Play than the Statute allows, may be given in Evidence on the general liTue ; for on a void ton-
traft the Plaintiff has no Right to any ; therefore this and the like goes to the Gift of the Action.
Note, that the Gift of the Action is the Fraud and Delufion that the Defendant hath offered the Plain-
tiff, in not performing the Promile he had made, and on relying on which the Plaintift" is hurt; and
therefore what goes to fhew that there was no Contract, or that it was performed, or paid, or releafed,
or that there was no Confideration, anddifcharged, goes to the Gift of the Action ; becaufe there could
be no Delufion or Fraud to the Plaintiff at the Time of the Action brought, nor could he rely on that
which had no Being ; and therefore thefe Matters need not be pleaded, but may be givefi in Evidence
on the general IfTue. G. Hift. of C. B. j 3 . 54.
(F. f) In
36o
Trial.
( F. f ) In what Caies a Special Matter may be given
in Evidence, tipoji a Qmeral Jjjue,
If I deliver I. T B ^WtXt Of Account as his Receiver, if t!)C DeftltHailt pICiltliES
Goods to dc- J^ Never his Receiver &c. \)Z CtinnOt gllJC III dliQCItCC that the
liver "'■'^^^ Plaintiff bailed to him the Money to deliver over to J. 8. the which he
does not do has done accordingly &c. 'a[;i)O''tI)t0 ©pecml ^tXlUl prDDCSi tljSt IjC
it, he is ac- is not accountalile, becaufe upon tlje DeUtierp ije laag accountatiSe
countable to conQittonalip, uljat 13 to fap) if fjenrci not '^t\.i\Mi it oljcr* 0. 3 €U
hT 'delTvers 196. 43- ilCtUlCCil ^'r GcO. %^//:f a-,id Hangertord.
them over
he is not ; for he may plead this in Bar of the Aftion, and that fo the Defendant might have done in
the principal Cafe where in Account again ft C. as Receiver of 200 I. d^pofited by B. on a VV'ager,
which he had deliver'd to A. fuppofing A. Jiad won the Wager, B. bro\ight Aftion for it, C. pleaded
Me ungues Receiver, and might have given the Special Matter in Evidence. Per Roll. Gh J. Sty. 353.
555. Mich. 1652. Baynton v. Cheeke.
Hob 72 pi. 2. %^ ^. recovers Debt or Damage againft B. who dies, autJ a Scire
^'^ — jJ'-'"'^- Facias is after lued againll the Tenecenancs, ailB tbC Sheriff returns C.
-95' pl- 45- j^ Terretenanr, aUti COUiegi aUt! p!cat!0 That before the Judgment given
B. enteoft''d him of tlie Land, aDlque hoc, tljat 15, tua0 fClftH Of tlje
ILanB '2CCnipOlt 3jUt)iCU -, aitD Plaintiff" maintains that he was feifed &c.
Hpan tijis liilTue it map be giuen in eiJiQcncc, tljat tlje ifeoiTmcnt
niaDC before tijC 3lU0ljmCnt was made traudulently, to defraud the
Judgment, tijO' It UiaS ilCt pICaBCU i fOt tW WWZ UpOtt tIjC ^AtUl
\^ m tSJcneral 3ifftie i iot tije iffue is not upon tije Jfeoffmcnt, but
upon t!)£ ^cifin, ano tije jfcoffment onlD allcgeD bp map of ^nrnicc-
mcnt* * C^* isJa* Ti5* betuicen HambirjhncandHowgiU^ at>)Uli0cri.
j;obart'0 Ecport0, 99- ^amc Cafe,
Hob.72.pl. 3. But Ot|)CCU)lfe it Ijati been, it the IlTue had been upon the Fcoff-
8()-jenk. nienj jjg mjjjj afiteeD in tije fa id Cafe QfHumberjhm. n^obart'is lRc=
* IMich 32 4. %\\ an !3^CttOn of Debt upon an Obligation againft an Heir, if "JOV
&53filiz. fffijjgiit: pJci^iJg Riens per Dilcenr, auO Plaintiff^ maintains that he ha-s
t^e^nRous ^ifets, It utap lucU bc fiiijcn in emocnce tljat tlje Dcfcnnant, before
and Goch the >Vrit purchaied, alien'd the Alicts by J^'raud and Covin to defeat the
-s. c cited Plaintiff, nnB fo it IS ijatu bp tljc statute of 13 €L tljo' it iaas not
Hob. 72 in picatica, becaufe it 10 upon tlje (General Miiz> Co» 5. Goocbe's Cafe^
Humberfton 60. aojUDu'ri* * ^^^ 13 3a» 05* ati3refaHi» agcecnpecCuciam*
V. Howgill.
If the Dijferfor aUfns to Pevfons unkno'^n, and in an Ajfife brought againft the Diffeifor, he pleads N"
tenant of the Franktenement named in the IVi-it, &fi trove nefoit, Nul tort, mil Drjjeijin ; the PlaintiriFmay
give in Evidence that the faid Alienation iv.ts made to defraud the Plaintiff of his Action, and that the Dif.
feifor took the Profits., in which Cafe he is to be relieved by the Statutes of i R. 2. 4 H. 4. and n H.
6. 2lnft. 445.
This is 5. 3jn miction upon tlje Cafe againft an Executor, upon an Aflumpfit
JBa"E«'5f made by the.Executor himfelf to pay tlje Debt Of tlje '^CffatOr in CCC=
flTac B R- tain, if the Debtee will not moleff him till Michaelmas ^ if DelenOatlt
S C ■ cited plea0£S Non Affumplit, auU ti)e CrUtl) be tljat tljece was not any Debt
Vent. 121. due ; ot if tljcte uiass a Debt, anD tlje Creditor had nothing in his
pafch. 23Car. pj^^j^jg ^^ ^^^ Time of the Promiie, !)e iiiap i(,m It lu Cijioeuce, auD
Cafe of '" fljall be aioen* Co* 9. R^^» 94 bpCoUe* (33t feemsi tljis is not
but the Court refolved that it is not material whether the Defeadant had Aflets or not at the Time
of
Trial. 361
of the Promife ; for the Pi-omilb caufed the Plaintiff to defirt, wlio peradventuie at that Time was
prepared to prove Aflcts; and the relying upon the Promife might prejudice him much, if he could
not afterwards recover upon it. But the Ch. J. laid, if it had appear'd upon the Declaration that
there were no Afiets, the Plaintiff by fuch Shewing would have deftroy'd his Attion.
Sec Tit. Aaions (U) pi. 53. Mich. 14 C.r. B. R. 3;ol)nfon i). (UlljltrljCOtt, contra to Banes's
Cafe.
By the 29 Cir. 2. cap. 3. fuch Promife will not charge the Executor to anfwer it out of his own
Eftatc, unlefs it be in Writing.
6. M an dCtiOlt of Trefpafs for taking of a Stack of Corn, (f tlje "Dt'-
fCnUant pIcaDS Not Guilty, anD tijC Jury finds him Guilty of 5 Quar-
ters of Grain Provenientibus of Parcel ot the faid Stack, tljtjci 10 HCOOtl
eniticnce, anti a goon mmct. ^X lo car, 'B, E* betwzzn^agni/b
and Met hold, at)}u5ij'0, It bcino; Hioijeti III ^rrca of 3!iHignient Cijc
Declaration Uiass, Cijat Ijc took iinitm acenjum fiUgmis angUce a
(25oaU"eltcaric or S^tack of Rpc. 9nD tijc Jiirp, ais to s Coiuijcsi anti
2 iDiifljcIiS €)iliffini0 DC intrafcripro Scctijo rilminig in J^arrationc
rprcificatosj, fotinn tlje Dcfcnoantg giuitp, ann for tljc tlefioue ji^ot
giuitp, ano tljt^anuiOffcn gooQ (S^iucncc, ano a gooti ©crmct; nna
tijis aftcriuarts, Crin. 1 1 Car, affirm D m i®nt of error lu tljc €p
cijcciucr Cljambcr li]? tljc luijolc Court,
7. Jn Debt againlt Extcurors, UlIjO plCaU Riens enter Mains tO \^t Kelw. 5S.
anmmiifrcD, upon uiljicl) Jfftie 10 )oiiin -, tljc Dcfcntiants map gibc^ p'-- f^'"-
ill ComcnCC, T hat the Teilator gave a Cup of Gold in Pledge for 20 1. gnj^jbiV
and the Executors with their own' Goods redeem'd the Pledge, t))) ^" b pi " ■
U)\i\) t\)t picDijc id tijcir ouin ©0000, aiiD not tljc ©0050 of tljc Trin. 20"'
Ccftator I for tW Cludcncc 10 not contrarp to tljc Wm, inafmuclj « ■ s p.
a0 tijofc 00000 arc not to be ariminiftrco, tbo' tljcu mere tlje ©0050 ^5^ ^^e opi-
ot tijc Ceftator, tijc |3lca licinn; -^Tljat t!)C)) \m notljing to anminillcr. Tester Pa>x
20 ip, 7. 2. b. 4- 5- bp all tlje 3!Uffice0, 21 c, 4. 22. of the juf-
tices in the
Exchequer-Chamber accordinj^ly. D. 2. a. pi. 3. Mich. 6 H S. ^(Langffonf I), "©pilf, in the Ex-
chequer-Cliamber, S. P. and 'eems to be S. C. And Ibid pi. 4. feys it was adjudged per tot. Cur. that
the Evidence for the Execator.s was good. S. C. cited PI. C. 1S6. a. Trin. 5 Mar. in Cafe of Wood-
ward V. Lord Darcy. See (Y. e. 5) pi. 16.
s. So Upon JFullp anminiffcr'D plcaticD, tljc Cj;ccutor map gibe in "ob. 127.
dlibenCC, ThatXcltacor was indebted to him fo much, ailD tljat IjC 5l"-'^°'
rctani'O fo niuclj of tlje <JpooD0 of tljc (L'Caator to pap Ijimfelf ^ for Tac"fuc'h
tljc Lam cljangc0 tijcl^ropcrtp of fo mucij of tljc *J5ooO0, fo tljat tljep piea by an
arc not tlje C5ooo0 of tljc -^Dcftator, 20 ip, 7. 2. b, 4. 5. Adminiitra-
tor was al-
low'd good. In Debt againft an Adminiftrator he pleaded the Gme Plea, and the Plaintiff de-
ir.urr'd, becaufe it amounted only to the General Ifiue of Fully adminifter'd. But the better Opinion
of the Court was th it the Plea is good ; befides it is lome Matter of Law, which has been allow'd al-
ways to be pleaded Specially, and not left to a Jury. Hob. 127. pi. 160. Sir H. Warner v.
W'ainsford.
9. But upon fuUpanminiffrctiplcauctJ, tljc Cmutot cannot gibe
in CllillCnCC a Recovery had againll him by another; bUt IjC OUttljt tO
p'CnO tljc ECCOilCrp, ann fap fUrtljCr that except for fo much recov ered
he has fully adminiftred ; ti3r tbCtC, tljO' tljCtC \:'Z a ECCOUcrp, pct
tlje <Soor>0 arc tljc €^0000 of tlje Ceftator to be atsnnniifer'D, 20 ^^
10. 3if pending a'n Aftion againft an Executor, a Debt due by the
Teftator to the Executor becomes due, and payable, ClU^rC lUlj'ctljCC
tlje Cjtccutor upon jfullp atiminilfcr'O plcaQcn, may gitic it in Cbi=
Hence bJttbout plcaoing of it fpcciallp,
II. Hponlullp aominiftrcD pleaocD, tlje Executors map gibe inco. Litt,
dllbenCC Payment of Debts or Judgments of their proper Goods and -£5-^ (»)
Retainer, * Of fO mUClj (SOO50 Of tljC CCffatOt in llCU Of Iti fOt tljI0 ^^^^T^
alter0 tlje ipropcrtp, 21(15,4.21. 201^,7.5. l.x-v-O
S p. And he
need not plead it fpecially. Ufon fach Plea the Defendant gave in Evidences Judgment agjinit his
4 Z Tefla-
3^2
Trial.
Teftator ; Roll Ch. J. thought the giving this Judgment in Evidence, cannot ftand with the Plea of
Plcne Adniiniltravit ; for now he fliews an Adminiftration in another Way than he pleaded, upon a new-
Matter alleged. And at another Day, he laid they muft rely upon the fpecial Plea of Plene Admini-
ftravit and not vary from it, by fhewing new Matter. Sty. 5-S. Trin. 1655. ^-ewman v. Alaffey.
' Ai to Cafes of Executors See Tit, Executor CM. a)
12. When a Man cannot have Jdvantage of the fpecial Matter, hy Way
of Pleading^ helhall in the Evidence ; asforlnftance, the Rule of Law is,
that a Man cannot jiijfijy the Killing or Death of another ; and therefore in
that Cafe he pall be received 10 give the fpecial JVLitter in Evidence, as chat
it was Se deiendendo, or in Defence of his Houfe, or in the Nighc
againlt Thieves and Robbers &c. Co. Litt. 2S3. a.
13. li Attachment and Condemnation be before a Writ ptirchafed^ it may
be given in Evidence on a general lllue, becauie it is an Alteration of the
Property before the Aftion brought, i Salk. 280. pi. 6. Pafch. j W. &
M. Brook V. Smith.
See more at Tit. CllitlCnCC, under this Divifion, (viz.) What muft:
be pleaded, or may be given in Evidence,
(G. f ) JJ'^ttmfjes. Ferfons hiterefied.
But tvheria I- TiF 3 Man makes a Feoffment to one, and after UlilfeejS jFCOlfmcnt
Prebendary ^ to another ot the fame Land, and therein makes diverle Covenants
made Le.fe that he was feiled in Fee at ttjC CimS Of t!)!5' leoffmeitt iinn Otljer CO-
cfaReaory ^^^^^y^i^^ for the quiet Enjoyment Cfit, nuD aftCC m JiffUC \% tilbClT
withufuii upon tijc fivft ifeoffmtnt, fciiicet, IJSfjrtijec djccc toa^ anp fuel)
Covenants, jfEoffttiEnt, tljC Feorf'or n)aii not be fiDorn to prone tijat tf)ctc iaao;
in a Suit by j^gj-^ liECuUfC tljCll IjE fijall flueac foe ijimfClf to ihve his Covenants. J^.
-ainft^A ^5 3'''» '^♦1^* UmZZWSerle ^W .iVr/e tCfClbCD, m^ aOjUQECtI UpOU
daiming by Cinticncc at Idu.
an ancient
Leafe and in Poffeffion, the Father (hein^ then m/rrle Bipopof the fame Diccefs in which) was allowed
to be fworn, tho'it was objefted, that in the Leafe he liad covenanted for the Son's quiet Enjoyment.
Sid. 75. pi- 6. Pafch. 14 Car. 2. B. R. Gie v. Rider.
iz Rep. 6S. 2. 3in an information UpOU tljE Statute of Ufury, tfjC Party to the
s.c. at the ufurious Contract fljail uot be aQnutteo to be a USitnefgi atjaina tfie
Cafe intitkd Hfurcc ; fot ui Cftcct tljcu ije fljoultJ be Cefti^ m ?S5rcpt;ia Caufa, anu
Court Eccie- OjaU atioiD Ijij} oiDU %oim atiD afliirance^, anii (Ijail mfcDarge Unv
fiafticai Pro- ftif Qf tljc ^oiiep bottoiuD bp Ijiuu an5 tl;o' commonip ije raiTegs
hibition.— jj„ jnformei to etljibit tlje JniOtmation, pet m CrutI) be bnnfelf 10
f showlo tl)c pattp* 'Wu 8 3a. 15. smitb'^ cafe, ^st Cutiam, upon ebt=
in Cafe of MUZ to a Jutp , tDijiclj Uc Co. Litt. 6. b.
the King
V. Drake. S. P. Per Cur. Hard. 552. Trin. i 5 Car. 2. in Scacc. in Watr.s's Cafe.- S. P. Per
HoltCh. J. Ld. Raym. Rep. 39(5. b. Mich. 10 W. q. in Cafe of the King v. Whiting.
j^fter the Money paid, the Borrower may be a Witnefs ; Per Twifden ). Raym. 191. Mich. 22 Car.
S B. R. fays it was fo refolved in one Long's Cafe. S. P. 2 Hawk PI. C. 455. cap. 46. S.24.
S. P. 2 H. Hift. Pi. C. 280.
The Party was allowed to be a Witnefs <JeJe»e E/e by HoltCh. J. Far. up. Mich. 1 Ann. at Nifi
Prius in Middlefex, The Queen v. Scwell, alias beaus.
2 H. Hift. 3, 31f 3 feveral Men upon a Suit in Chancery depofe, that J. S. made
P1.C.280. fuch Arbitiement, auH UpOU tW tt)C J0attp gtlCiJeU btinglS 3 feveral
Actions
Trial. 363
A£tions againll them upon the Statute of 5 El. of Perjury. CiJEfP one c"" S. C—
Df tl)cm ninll be a competent U^itncrs for the other in tlje fcijccal a^ soif a.b.
tl'OnSi* \^, 40 <i^l '23* bCtUJCCn Gii»/one and Dowries aOjllUpn. ll"4rally In-
difted ^or
Perjui y in pvoving a Bond, A. ti-avei-fcs the Indiiftment, B. and C. tho' indifted for the fame Offence,
yet not being convicted, may be Witneifes for A. to prove the Bond fealed. Ibid, cites it asadjudged P.
19 Car. I. B. R. in the Cafe of Billmore, Gray, and Harbin.
4- 3!f 3» be indiaed for Perjury UpOn tlje StfltlltC Of S (El MjiC!) S. P. Per
tDilS COniniittCD upon Evidence in an Aftion brought by B. againft C. Cur. Hard;
in ttjisCnfe c who profecuted the inditiment agatnff tDl)om tljc ©er= "^ ^'■'"••
met iua3 KliJcn in action upon tfje e^mence of a. ousijt not to te scacc'in '"
rccciticD to be a a^itncfgi upon tW Jnbictment to protie a» ffiultp watts-s
of tlje perjurv, bccaufe be 10 bj.) tbc Statute to tecolici: bP action c^fe —
20 L be bann; tbe Party grieved, aitn tbc SiiiblCtment beUlO; Ad grave J^ p^ ^
Damnum otthe faid C. * ^icb* 1650. ggrCCnpCC CTUtiam^UpOU aU JlV Ld RavnT"
ntctmcnt of pcnutp agauift one "Bacom Rep. 5 96.
Mich. 10
W. 5. in Cafe of the King V. Whiting. S. P. 2 Hawk. PI. C. 45;. cap. 46. S.24.
* S. C cited 2 H. Hift. PI C. 2S1. And yet it feems he fhall not recover the 20 I. upon the Indidt-
ment, but muft bring hi.'; Aftion upon the Statute. 2 H. Hift PI. C. 281. S. C. cited Arg. 2
Show. 491. in the Cale of the King V. Drake. — ■ S. P. Per Curiam. Sid. 2;:. pi. 5. Hill. 16 & 17
Car. 2. B. R. in Cafe of the King v. Povey, Lambert, & al'. But there the Cafe being an fnformation
in the Name of the Mafterof the Office againft the Defendant's, fot-pocuripg one D. charged in the J/ar-
Jlial/ea for ;ooo 1. at the Suit of one Linch, to lie dif charged ivithoiH fpecial Bail, under Pretence and feign'd
Search, that there had been no Profecittion againll him for 5 'T'evnn ; and the Information concluded^iVZ)«w-
mim de Linch of fuch a Sum &c. Upon this they were tried at Bar, and Linch was admitted to be a,
Witnefs, tho* the Conclufion was Ad Damnum of the faid Linch, fuch Conclufion being only Matter
of Courfe, and he is neither a Gainer nor a Lofer by it.
5. 3!f a ^an be indiaed for an Aflault and Battery upon J. S. J. S. S. P. Per
«ia}? be receiDeo ais a IJBitnef^ to probe bim guiltp, becaufc it is not ^^"^ ^^""'e
tbc ©tut of tlje ]p3att}? but of tbc Mm '2I^Disi is tbe comnion €,%-- „„ sTnefit^
pCriCnCC* by t.he Ver-
di(fl: in ano-
ther Suit, and the Caufe is of fmall Moment. Hard. 551. pi. 7. Trin. 15 Car. 2. Watts's Cafe.-
Tho' the Ort'ender be convidled at the King's Suit, yet this fliall not be Evidence in an Ad:ion brought
by J S. for the Affault ; and therefore he may be a W itnefs for the King. 2 H Hift. PI. C. 2S0.
' In Indictment for Otprejfion, Battery Qpc. the Party opprelTed may be a Witnefs ; Per Holt Ch. J. iz
Mod. 512. Palch. i; V\ . 5. Anon.
♦ S. P. And generally any other Perfon to whofe Damage a Criminal Information concludes, is good
Evidence to prove fuch Battery or other Mifdemeanor, notwithftanding the Ob^ei'tion that he may luvc
an Action. 2 Hawk. PI. C. 435. cap. 45. S. 24.
6. 3!n an Aftion againft an Hundred upon the Statute of Winton Of Sec Rob-
i)llt anO CtP, If a Man has Land UrftbUt tbC l:)UnbretI, but is not any bery (T)-
inhabitant iuitbin tbc ^xuibteD, but betore tbe action brau«Dt basi de- 1" ^^ ^c-
mifed it fot bi^jerfe ^ux^ pet to come, for an annual Eent to % ^. THuldred
tDbo mbabitiEi upon tbe Lanbi tljcLeifor may beai©itnef!3 in tbiiSthe //«. '
Cafe to prove any Thing for the Difcharge of the Hundred, bCCaUfC It «"'■'» ^^he-
appear0 bp tbe Statute of 27 ei. cap. bp ujbicb ^ ContrUuiti.m ''f "^ ,
10 appointeb bp all tbe Imbabitantgi of tbe Ipunbrco, [tbattbis W] I1-- Rd7fl Zs
mitcb to tbe 3 nbabitants in tbe aDills, parinjes. anti Ipamlets, atm ^-.ihn the
not ncnerallp upon tbe Lanbss oc Certenants i anb it is not realbn= ^««rf'^./of
able tljat tbc LelTce being an Jnbabitant fljallbe cbargcb, anbaifO:!^- °''"°^»
tbe Leffoc in Eefpect of tbe Eent, tubo is not anp Inbabitant* foivedth^t
S^tCb. 1650. bCttUeen Benet and tbe Hundred of Hertford, IW tbC COUUt^ if one has
Of tetforb, per Curiam tuleb upon Cbibcnce at cidar, Lands, bu:
does not
dwell in the Hundred, bdt had let them to a Tenant, he may be a Witnefs ; but if he lives there he
cannot, tho' he docs not pay Taxes ; becaufe he is bound to keep Watch and Ward, z Sid. 2 Mich.
165;. B. R. Oliver v. Wallington Hundred.
In
364-
Trial.
In an A6tion on the Statute of Hue and Cry againft a Hundred, none of the Hundredorscan be Wlt-
reffcs, becaufe any of them are liable to pay the Debt after Judgment is given againft the Hundred. 2
Show! 47. The King V. Carpenter. .But now by the Statute S G^a. z. Inhabitants may be lFiine£es
pr ';/,« Hundred.
The allow- 7. In fuch Aaion attaint nn !pUn53l*Ctl, lirOUgljt by the Mafter, be-
ing the Evi- jng ^ Carrier, UpOU a~Robbery COnimitteH upon his Servant in tljC $^tJ=
^^::^XA' fence cfi}!5 99after, fi:iuaretj)l5ctijet: ttje Maiter, Dcmn; tlje Jplainttff
* Fol. 6S6. in tl)0 Action, map be a * a<ncfg to prove that he delivered the Money
L,/^-NrN^ of which his Servant fvvore he was robb'd, DefOlX \0 %U\idXit, tUent Ott
Party.oi.bM jjjgj^iournep jji jyjjjj.j3 jjj, iyagtobb't!, becaufe it map be proneo bp
,',"000 the °" fonie otijcr, anQ no l^erfon 10 to be a mmz\^ in \m m\\ Caule twi
smtute of tor JSecemtP i ag iflje ijunfelf bati been robb'B, tljo' be be )81auitiff,
Hue and pct \)t Htap Bc a ijooB UBitnefgi to pvoise bunfelf to be I'cbb'io, ano of
C'-y' '^ luljat ©lun, oc <:ir!}uuT0 i ano alio to prolie tijat be gabe jl^otice to
onTheNe''" tbc nctt 3DUI, anQ icto l:)ueant! Ctp, becaufe it 10 of Becemtp foe
ceffity of the i©a«t Of oUjev putiof. 'But after to pcobe tljc DtliijerD of tbe 90o=
Cafe, and ncp to ijio €)cri)ant before tbe Eobbcrp, anti before be luent \m imz-
that only ; j^pj,^ jjjj^ ^^^p^p {jg pj-g^jg ^^p ^j^p ofjjf [, fjjj UJCH jj^ bp blUt, t^ It 1030
ch' T ^ lo"" cbjccten tbat \t Uia0 not fate nor ufual for ^cn to cail i©itiieire0 jDben
jMod 195. be Ccuiicr0 C^onep to carrp in a Iicurncp for tbe Danger of Dtf
The Queen coUcrp^ ^HD upou tbi0 Ecafoii ^ct Curiam, againft mp £)pinion,
V. Mufcotr. i|. jjj^^g j-jiigj, tjjjij; }jr ^yj^^ {q jjj; recciDeti a0 a i©!tncf0:i anu fo be uia0
fVBOrn aCCOrBinalp* SlQtCb* 1650. betUlCeU Bcna and the Hundred of
Hertford^ i\\ tbc Count^ Of iB^ettfcru*
8. He i£ho has purchafed the Land in ^nejl-icn, fhall not beaWitnefs,
if he claim under the fame Title ^ Per Curiam. And Richardfon fiid,
that the Conieyance may be proved by other Circumltances. Het. 137.
Pafch. 5 Car. B. R. Mericke v. King.
9. One ought not to be admitted to be a Witnefs to prove an Obliga-
tion or other Deed, ivhich he takes in the Name of another. 21 Car. i.
B. R. For if he might be fo admitted, this would be upon the Matter to
fuftfer him to be a\V itnels to prove a Bond or Deed made tohi?nfe/f. which
is not reafonable; for every Man is fuppofed to be partial to himfelf z
L. P. R. 250. Tit. Obligation.
A Qucftioii 10. Tho' upon a Trial one who is a Legatee by a Will, may not be
was inChan- j^^rnitted for a Witnefs to prove that Will, yet he ?nay be examined as a
T^^ Tic- Witnefs to prove a Deed or other Thing, -which hath not Relation to the Will,
/tI/L could in relpefit of the Intereft which he claims by the Will ; Per Roll Ch. J.
be a wit- 3 Sty. 370. Pafch. 1653. ^- R- Anon.
nefs againft . ,. .
a Will ''■ Et per Cur. upon Debate, the Reafon why a Legatee i.s not aWitnefsi fcr the Will, is becaufe
he is prefumedto he partial in fvveanng for his own Intereft. But the Legatee, whc„ he /wears agamfl
the U' ill, he fwcars againft his Intereft, and fo is the flrorgeft Witnefs. 2 Salk. 6yi. pi. 4. Oxenden v.
Penerice.
In Deceit for foriririi^ a Will, a Legatee was allow'd and fworn as a Witnefs in the Trial for the For-
gei-y ; for this makes nothing to the Probate of the Will, or Recovery of the Legacy in the Spiritual
Court,- nor do they take notice of it. Trials per Pais 240.
In C^fe ap/iir-ft an Executor, upon his .-iffumpfit, for Burying the Teftator, and declaring againft him as
for his own Debt, ti Legatee was ofter'd in Evidence to prove the Proraife ; but not admitted, as being
interefted in th^Caufe ; For iTiould Judgment be given upon his Evidence againft the Executor, it be-
ing a Charge againft him in his own Right, he muft anfwer Dc bonis Propriis, and i'o the Affets not
touch'd, but remain to fatisfy his Legacy ; whereas if Judgment fhould be for the Executor, another
Aftion mit'htbe brought againft him in Right of theTeftator, whereby the Allets might be aficdtcd.
At Sittin"-s, M. 12 Geo. 2. Coram Lee Ch. J. B. R. Hafledine v. W^eftcombe.
InEjeftment n. In Ejeftment, Exception was taken that tht Witnefs to prove the
brought for ^^^y^ gj- Ejel^ment had the Inheritance of the Land demifed ; but becaufe
tance it^was ^^^'^ ^^^ Plaintiff and Defendant claimed under him, he was admitted to
hTwon a^ be fworn. Sty. 482. Trin. 1655. B.R. Fox v. Swan.
that tho* one who clmms a particular Eftatt in the Land in Queftion as an Eftate for Life only is not Oc-
cupier
Trial.
365
aipier of the Lavrl, nor lias been ever fince the Ejeftment brought, but another by his Ccmniavdment ; the
Court will not ;illow his Evidence, becaure if Verdidt paffes againll his Title, he that occupies by his
Command may charge him in an Attion on the Cafe. But it appearing upon Examination that fuch
VS'itnefs his Cl.uni of the Ellate for Life beitig Paramount both 'Titles of Plaintiff and Defendant, he was
admitted to give Evidence. Sid. 51. Mich, 13 Car. 2. B. R. Wicks v.Sraalbrook. Keb. 154. S.C.
by Name ofFitx v. Smallbrooke.
12. A Copyhold Tenant that has nothing but a Kiddel (i. e.) a Weare A. was refu-
in the Sea between high and low Water Mark, may be a Witnefs to^*?.^^^^^
prove, if there be a Cujfotn in the Manor lor a Copyholder to cut Trws clw^be-
withoiit Licence or not. 2 Sid. 8, 9. Mich. 1657. B. R. Chamberlaine v. clu'e 'he
Drake. claims by it ;
bur any Te-
nant of a Manor that claims not by the Cuftom is a good Witiiefs \z Mod. 24. Pafch" 4 W. & M.
In a Trial on the Cuftom of the Manor of Bray.
13. In Information oi Forgery for publiihing a Forged Deed, know- S.C cited
ing it to be forged the which imported a Revocation of a Will, it was '^^Iod-340'
held per Cur. upon a Conterence with the Judges of B. R. to whom one -yy _' j„
of the Barons of the Exchequer was fent, that no Legatee or other Cafe of flje
Per/on who is or may be a * Lofcr by the Deed^ or who may receive any Be- Jtting b. i\'\t
nefit or .idvantdge by the Verdi tf being found for the King can be a VVit- ^''5?''.'L°^
nefs. Hard. 331. Trin. 15 Car. 2. in the Exchequer, Watts's Cafe. But there*
it is men-
tioned Thit in that Cafe one who had been prejudiced hy the Will was admitted Evidence to prove it
forged. But Holt denied what was urged, that at Common Law the Party whofe Deed was forged,
or to whofe Prejudice the Ptrjiiry was, could be a Witnefs ; and that the Statute had made an Altera-
tion, ibid.
• S. P. per Holt Ch. J. Ld. Raym. Rep. 569. Mich. 10 W. 5. in Cafe of the King v. Whiting.
14. In an Aftion of I'rover hy JJJtgnce of the Commiffioncrs of Bank-
rupts, x.ht ^iiejtiun was on a Sale of i8o Pipes of Wine by the Bankrupt
to a Relation which the Plaintiif inlilted was Iraudulent, the Defen-
dant excepted to a Witnefs becaule he was a Creditor, and may come in
before a Du ilion j but after 4 Months after any Dividend he is a good
Witnels, for no other Dividend Ihall be intended ; but here no Divilioa
being made he was fet alide. 2. Keb. 348. pi. 31. Pafch. 20 Car. 2. B.R.
Bents V. Micho.
15. In an hijormaticn on a negligent Efcape, the Party who recovered
was produced as a Witnefs. And per Cur. he neither gains nor lofes by
this Trial, efpecially if the Money be paid. 2 Keb. 384. pi. 54. Trin.
20 Cur. 2. B. R. The King v. Sir John Lenthall.
16. In Evidence to a Jury in Ejeffment of 'Tithes on a Leafe of the
Dutchefs of Somerfct the Plaintiif excepted againll a Copyholder in Re-
^•erfion after an EJiate Tail to prove the Boundary of the Pariih of Pre-
ihot, and he was fet alide for the Pofftbility which makes him partial.
2 Keb. 435. pi. 75. Mich. 20 Car. 2. B. R. v. Hitchcock.
17. In F.je£iment of the Manor of Studham, on an Ilfue direfted out
of Chancery to try the Number of Acres, the Defendant excepted to a
Witnefs that had been a Trejpajfor, as a Servant to my Lord Lee in the
Lands in Queftion, and an A6f ion being depending in the Court kt him
afide, and thereupon the Plaintiff was Nonfuit. 2 Keb. 435. pi. 76.
Mich. 20 Car. 2. Tucke v. Sibley.
18. On a Trial at Bar upon a Scire facias to avoid a Patent of the Of-
fic« of Searcher, exception was taken to a Witnefs that he was to be De-
puty to the Party who would avoid the Patent. And by the Opinions of
the 3 other Judges, contra Twifden, he was allow'd j becaule the Suit
here is between the King and the Patentee. Mod. 21. Mich. 21 Car. 2.
B. R. Owen Manning's Cafe.
5 A 19. If
366
Trial.
i?j. It"a Man fmntfcs another that if he recovers his Land the otherpall
have a Leafe ot ir, he is no good WitnefSj perTwifden J. Mod. 21. Owen
Hanning's Cafe.
Seijeant 20. A Queltion was, Whether one E. who was Bail for the Plaintiff
Hawkins againji 'whom a Judgment was had, quod computet, fhould be allow'd as
fays, It teems j^^j^g^^g for him in the Court of Chancery, becaufe he fvvears to dif-
Kikd'R'ule charge himleif in Cafe the Plaintilf proves infolvent. The Order was by
in all Ciifcs Conlent, that the Plaintilf putting in another Bail Ihall be allow'd as E-
ivhfitroevei-, yidence, as tar as by Law, he may. Finch. Rep. 247. Hill. 28 Car. 2.
that it is a Calchani v. Spatman.
good Excep- ^
tioti aniiinft a
■Witrds, that he is either to be a Gainer or Lofer by the E-jent of ihe Catije _; whether fach Advantage be
dire£tand immediate or ronfi<jue7!ti.il only. And this fccms to be the Re.ifon v/hy he w^hois Bail J or the
De(er:M)it cannot be an Evidence for him without Confcnt [as well as in Icveral other Cafes there cited.]
2 Hawk. PLC 433. cap. 46. S 24.
It was ruled 2 1. One that laid a Wager was admitted to be a Witnefs, he having
yer Holt Ch. Qvvn'd the Wager loft, and paid it ; otherwile not. 3 Lev. 153. Mich.
Prius b'' 35 Car. 2. B. R. Relcous v. Williams.
Middlefex,
That where a Man makes himfelf a Party in hitcrejl (iftcr a Tlainti§ or Defendant has an Interejt in his
Teliimony, he may not by this deprive the Plaii tit} or Defendant of the benefit of his TelHmony.
Skin. 5S6, Ti'in. 7 W 5. Barlow and Vowell. Js if a Man be a U^itnefs of a IFager, and after
tetis, this fliall not be a Pvcafon to except againll his bcirg Iworn to prove the Wager. Skin. 5S6,
Barlow and Vowel.
So where one was produced as a Witnefs who had lirid a IFager tthut ihe Merits cf theCnitfe, yet it
■was faid that a Witnefs can't by any Act of his own deprive the Party of his Evidence, but it influences
his TelHmony very much, whereupon the Witnefs was examined upon a {'cire dire and denied that he
"Ot or loll, and then examined as to the principal Matter ; per Holt. Conib. 540. Trin. 7 W. 3. B. R.
\x\on. Laying a Wager in a Caufe is no Hindrance to his being a VS' itnefs ; for the other has an
Intereftin his Evidence which he cannot deprive him of; per Gould J. 7. Mod. 31. Trin. i Ann.B.R
George v. Pierce.
. 22. In Cafe againfi the Officers of the Cujlom-hotife for rcfujmg to dear his
Ship and re-deliver his Cockers, the Quellion upon Evidence was, if the
Owners of Goods aboard might be iWorn as Evidence to prove him AJaJier
&c. it was urged that they might as well as one Mariner to prove Wages
due to another ; but anfwer'd that there the Contrafts are feveral, and
faid that one Commoner cannot be Evidence to the Right of Common
in an Aftion brought by another, and thereto anfwer'd that the Right is
intire, and that he fwears a Title to himfelf, and fo here they are all
concern'd in one Bottom and in one Adventure, and therefore could not
be fworn ; and of that Opinion was the Court. Skin. 174. Pafch. 36 Car.
£. B. R. Sandys v. the Cuftomhoufe Officers.
23. But the Plaintiff having declared as fole Proprietor of the Ship and
Tackle &c. and the Witnefs fjoore that at the 'Time of the Atlion brought^
he was equally concern'd in every Thing, but that he longfmce had fold his
Interejij fo that now he was not one Farthing concern'd in the Confequence of
the Caufe 3 yet the Court held that he was no competent Witnefs, and
that for the other Reafon the Plaintiff fhould be Nonfuited, and io he
"was. Skin. 174. Sandys v. Cullomhoufe Officers.
24. Under t\iQ. Statute of Dijtributions none of the Children of the Intef-
tate can be admitted as Evidence ; per Jeffries Ch. J. Skin. 223. Hill.
36 & 37 Car. 2. B. R. Palmer v. Alicock.
25. If a Reward be promifed to a Perfon for giving his Evidence before
he gives it, this, if proved, difables his Teltimony. 2 H. Hilt. PI. C.
280.
26. And fo Ld. Hale fays, for his own Part he has always thought,
that if a Perfon have a Promtfe of a Pardon if he give Evidence againft
one of his own Confederates, this difables his Teltimony if it be proved
upon him. 2 H. Hilt. PI. C. 280.
27. If
Trial.
27. If Tenant robs his Lord, or the Lejfee for Ltfe the Reverftbucr^ or a
Rejiant the Lord of the Franchtfe, that hath bona Felonunij theie may be
Witnelies upon an Indictment or Trial of the Felon, notwichflanding
the confequential Advantage that accrues by the Attainder or Conviftion
of the Party, yet the Credibility of their Teltimony is to be left to the
Jury. 2 H. Hilt. PI. C. 281.
28. But li A. has a Promife or Grant of the Goods of B. arrejied ofYelony^
in Cafe he be convifted, Ld. Hale fays, he ihould never allow A. to be
a VVitnels to convitt B. for he by his own Aft aker the Felony commit-
ted acquires the Interelt, and fo ads and fwears lor his own Advantage.
aH.Hilt. PL C.281.
29. It was proved at the Trial that the Mother had made a Bargain
with the Leflor of the Plaintiff, that in Cafe he recovered ihe fliouid have
a Thoafand Founds and the Thirds ot the Ellate, and therefore Ihe was not
admitted to be a VV itnefs. 3 Mod. 84. Mich, i Jac. 2. B. K. Hicks v.
Gore.
30. In an Information on the Statute of Deer Stealing, Exception was ta- 2 Show 4S9.
ken to a Witnefs becaufe he was Party and Profecutor. And by the Ch. J. S. C. fays the
the Mifchief of the Party's being like to torfwear himfelf for Gain, ^""" '^^'-"^
might have been a good Objection to the A£t before it was made, but it^^is Excep
is none now. And the Exception was over-ruled. Comb. 35. Mich, tion, and
2 Jac. 2. B. R. The King v. Drake, Herbert Ch.
J. declared it
unreaibnable it fhould be fo ; but here was a particular Law which made the OfFence and creates a Par-
ticular Form of proceeding^ and afterwards the whole Court deliver'd their Opinion that it was well
enough ; and difallow'd the E.xception.
31. A Patron in Ejeflment is never permitted to be a Witnels to
maintain the Title of his Clerk. 4 Mod. 17. Pafch. 3 W. & M. B. R.
in Cafe of Jones v. Beau.
32. Upon Capture of a Prize, one Part was agreed to belong to the Maf~
ter, and the other two Parts to the Owners ^ the Mdiier difpofes of 100
Chejis of Lemons to A. B. for to be fold, they hoxu^bonn Peritura, and at- •
ter brought an Action of Account againfi A. B. and upon Evidence at
Guildhall a Mariner was allow'd to be fvvorn, tho' it appear'd that he
was to have a Share of the third Part of the Mailer ; for per Holt Ch. J.
the Matter is accountable to the Mariners for their Share, the which they
fliall recover of the Matter whether he recovers in this Aftion or no.
Skin. 403. Mich. 5 VV & M. B. R. Anon.
33. Holt Ch. J. faid, that he was not fatisfied that a Perfon interefiei
can be Evidence in any Cafe, tho' in a Criminal Matter. Comb. 360.
Pafch. 8 W. 3. B. R. The King v. Dean.
34. A Perfon contraifed is no Witnefs on a matriniotiial Contra^, nor Where the
in an Information thereon. Comb. 360. Pafch. 8 \V, 3. B. R. King v. Point i" I''-
Dean. ^"^ ^3'>
ivhetler A.
B. was mar-
ried to C- D. lepore he hjd married E. F. or no, C. D. was ofFer'd to be produced a Witnefs to prove that
ihe was not married to A. B. but the Court would not admit it. 9 W. B. R. L. P. R. jj(J. Tit.
Evidence.
35. In an Information for a Cheat, the FaQ: was thus; A Mother in i Salk zS^.
Latv agreed to give her Son in Law 5 /. and he by fome 'frick impofing upon P'- '^-.^ ^•
her, obtain' d her Hand to a Note of 100 1, for which he was now inditted, !!^''* 5^'^'
and upon the Trial it was a Doubt whether the NV^oman Ihould be ad- As a Mo-
mitted to give Evidence. And Holt Ch. J. held, that Ihe being in fome tive to in-
Meafure concern'd in the Conlequence of this Suit, it being fome Means ^'^^"'^'^ ^^^
to difcharge her of the lool. Ihe ftould not be admitted to give E.vi-J^^^' which
dence ; for tho' the Verdift in this Information could not be given in be prevented
Evidence in a Trial upon the Note, yet doubclefs they would * mention tho' in Law-
it. Ruled by Holt Ch. J. at the Sittings at Guildhall. Ld. Laym. Rep. " ^e no Evi-
3S6. Mich. 10 Will. ^. Tlie King v. Whiting. " e;"'^^- J; ,-,
- o o Havvk PI. (_,.
36, Actioii s. 14.
"266 Trial.
nO. Jtlion on Agreement in Writing was brought in C. B. a'ndVerdift for
Plaintirt'and loo 1. Damages, an hiformation was brougpt for the Forgery;
x\ov.' the Defendant below was denied to be a Witnefs to cohvift him.
Cited 12 Mod. 339. In Cafe of the King v. Warden of the Fleet.
37. Ori/ifial Drawer, who was offer'd as an Evidence in an Allien
upon a Bill of Exchange to prove that be did not draw the Bj//, was de-
nied, becaufe at laftthe Burden mult liill upon him. 12 Mod. 345. Mich.
li W. 3. Anon.
38 Two Perfons claiming feveral Rent-Charges by the fame Deed,
can't be Witnelles for one another, becaufe concern d in hitereji ; but if
one of them rekafes his Rent Charge, and that is proved, he may be ex-
amined as a Wicnefs. 2 Vern. 375. Trin. 1700. Ld. Culpepper v.
Fairfax.
39. The Queflion upon Evidence was, Whether every Hoiife in the Mar-
ket round had not fo many Feet of Ground toward the Market belonging to
It? A Houfekeeper who pretended the like Interejt belbre his Door, tho' he
derived his Tide under another Perfon, was denied to be a VV^ituefs. 12
Mod. 372. Paich. 12 W. 3. at Nifi Prius coram Holt Ch. J. Farmers of
Newgate Market v. Dean and Chapter of St. Paul's.
40. One Creditor may be a Witnefs to prove JJJets in an Aftion by an-
other Creditors per Holt Ch. J. 12 Mod. 385. Pafch. 12 W. 3.
Anon.
41. In Information for building of Locks upon the River Thames, it is no
Exception to a VVicnets here mat ne contributes to carry on the Suit, or
that this publick Kuiance was to his private Nufance^ per Holt Ch. J.
12 Mod. 615. Hill. 13 W 3. The Rex v. Clark.
42. y/. t)eing indebted to B. gives him a Note in a feign' d Name for the
'Debt. Alter the Wije of B. runs away with another Man, and takes the
Note with her i ji. pays the Money to B. The Perfon with whom the Wife
ran away fues A. for the Money in the leign'd Name • and at the Trial
B. offer'd to make Oaih or all this, but was-reje£ied by Holt Ch. J.
for it was to prove a Right in hmvielf to the Money received from A.
for which otherv\ile ht was uccounrable to A. 12 Mod. 564, 565.
Mich. 13 \V. 3. At Nil] Pnus belore Holt Ch. J. Anon.
^3. Mr. R. Vaughan fent a Box^ with 100 Guineas &c. in it, by T. the
Bath-Garner to London ; upon which Box the Diretlion was only, f?o Mr.
Vaughan, Member of Parliament. T. carried the Box to London, and upon
his Arrival C. an Inn-keeper in Piccadilly, came to T.'s Inn for Goods diretted
to be left at C.'s Houfe. Afterwards this Box being loll, Tiley pretended
that it was delivered to C. among other Goods. Upon which T. brought
an A£tion ol Trover againfi C. And at the Trial at the Sittings at Welt-
minfter, belore Holt Ch. J. Mrs. Vaughan, the Wife of Mr. Vaughan, was
produced to be a Witnefs, to prove what was in the Box ; and Holt Ch. J.
relufed to admit her to be a Witnefs i becaufe whether T. recovered or
not, this Verdift might be given in Evidence by Mr. Vaughan, in an
Aftion to be brought by him againft T. with Oath made of what was
fworn for T. in this Trial. Ld. Raym. Rep. 744. 13 Feb. 14 VV^. 3.
1701. Tiley v. Cowling.
44. A Trial at Bar concerning Boundaries of Lands. The Lands lay
in 2 Parifhes. The Parfon of one of the Parifhes was refufed, becaule he
might enlarge his own Parilb, and confequently the Tithes. But one
that about 7 Tears befors had taken the Pro/its, under the Title of one of the
Parties, was received as a Witnefs, becaufe now he might plead the
Statute of Limitations. 7 Mod. 63. Mich, i Ann. B. R. Ld. Wharton
V. Sir John Robinfon.
45. Where a Man is interefled in the Confequence of that which he
fwears for, if it be fo that the Doing the AH, which he is by his Evi-
dence to invalidate or fet afide, was a M^ans to obtain his Liberty, or an
Exemption front Corporal PuniJIjment, he Ihall be a VVitnels, (as in the
Cafe
Trial. 369
Cale ot'DnreJs, tho' ic be to let aiide his own Bond) yet it being given
to obtain his Liberty, he IhuU be a W'itnefs. Alfo where the Mature of
the Thing adraits no other Evidence, As if a Woman give a Note or Bond to
a Man to procure her the Love of J. S. by fome Spell or Charm, in an
Inditbiient for the Cheats tho' it tends to avoid the Note, yet llje fhall
be a VVitnefs j per Holt Ch. J. at Nili Prius. 7 Mod. 119. Mich, i Ann.
in Cafe of the Queen v. Sewell al. Beaus.
46. In Cafe for managing the Dcjendanfs Ship fo negligently that it ran-
cher the Platiitilffs Barge, the Declaration let forth, That he was pof-
fefs'd of the laid Barge, laden with divers Goods and Merchandizes;
and Holt Ch. J. would not fuffer the Pilot to be .a Witnefs, becaufe he
was anfwerable, if faulty in Steering, to the Malter. i Salk. 287. pi.
22. Hill. 2 Ann. At Nifi Prius, Martyn v. Hendrickfon.
47. If A. advances Money to carry on a Caafe, and has a Security depo-
fited in his Hands tor it. Part of which is the Thing in Demand, tho' the
ReJ/due of the Security, excliijive of this, /'j/w^a^;;? Security lor the Mo-
ney J yet he cannot be a VV itnefs in the Caufc, becaufe he fwears to mend
his own Security ; per Holt Ch. J. 2 Ld. Raym. Rep. 1008. Hill. 2
Ann. Norris v. Napper.
48. The Plaintiff as Executor brought an Indebitatus Affunipfit, for fef~
tators Money received after his Death to the Plaintiff's Ufe. At the Trial
the Debtor, who paid the Money to the Defendant, was produced as a Wit-
nefs to prove the Payment ^ but he was rejefted. For per Holt Ch. J.
[tho'] the Plaintiff, by bringing this Action againll the Receiver, has
determined his Election of luing the original IJebtor,- and allowed the
Payment to the Defendant ; yet it he be nonfinted, the Matter is at large
again, and he may fue the Debtor i lb th.it he now fwears to difcharge
hnniclt, and conlequently is no good Witnefs. 6 Mod. 151. Pafch. 3
Ann. B. R. At Nili Prius, Clerk v. Dealy.
49. Six thou f and Pound was devifed to A. and B. in Trufi to purchafc
Lands to be fettled on F. G. for Life, with Remainder to his Sons in Tail in
Contingency, Remainder to W. G. for Lite, with contingent Remainder
to his Sons in Tail, Remainder to H. K. in Fee, with Power to make Leafes
for the befi Rent that could be got &c. F. G. made a Leale to Crooke, ren-
dering 170!. per Ann. Rent, and died ^ and the jC)jieflioii was. Whether
the Value was 270/. per Annum at the Time of the Purchafe or not. The
Triijlees were produced as Witnefles to prove it ; and it was objected, that
they were not Witneffes, becaufe K. the Remainder-man, not joining in
the Purchafe, and who now contefted the Leafe, if the Lands were not of
that Value, it would be a Breach of Trufi in the Trultees, and they would
be liable in Chancer)- to make Satisfaclion to the Celtuy que Trult, and
theretbre they were to give Evidence toexcufe themfelves. Sed non al-
locatur per Curiam, and they were fworn, and gave Evidence. 2 Ld.
Raym. Rep. 1166. Eali 4 Ann. Kinfman v. Crook.
50. The Court feem'd to think that the Informer himfelf cannot be a
Witnefs, tho' objeOied that this would render Convictions impoffible,
unlefs Perfons had Witnelfes with them ; tor he is only nominal,
and any Body's Name may be made ufe ot~. 10 Mod. ij6. Pafch, 12
Ann. B. R. The Queen v. Bradley.
51. In fome criminal Cafes interelled Perfons are allow'd as Witnefles, * Conftant
As where the * Owner profecutes an Indiftment of Felon v ioxJiolcnGoods, Experience,
he is concern'd in Intereft ; for he will be intitled to Relfitution, and smute^Jf "^^
yet his Evidence is admitted. So in removing an Indiftment by Certio- 21 H. 8.
rari from the Seflions to B. R. tho' the Profecutor in that Cafe, if the cap u.
Detendant be convifted, is by that Statute intitled to his Cofts, yet he l'"J,.g"'."
is allow'd as a Witnefs. So where tho' a Man will, in cafe of Convic- of^ Goods'"
tion, be intitled to 40 1. yet his Evidence lliall be received. And per to the Par,
Parker Ch. J. as to the Cafes where 40 1. Reward &c. they admit of this ty profe-
Anfwer, That the Intention of thole AQ:s will be quite defeated, if fo ^^"•'J? *"
be the Reward is to take off the Evidence. The fime Anfw er may ferve ^l pelonv'
J B ' to ' " ■ '
370 Trial.
makes it to the Cales put upon an Indiftment of Felony tor ftolen Goods, and
evident that ^here the Indictment is removed by Certiorari &c. for none in the firll
he may be, q,^^^ j^^^ ^j^g Owner, can prove the Property of the Goods ; and in the
and indeed ^^,,^^^^_^ j^ ^j^e giving of Cofts ftould take off the Evidence of the Profe-
be^theVVit- cutor/that A£t of Parliament defign'd to difcountenance the Removing
neh to con- of Suits by Certiorari, would give the greatell Encouragement to them
vift the |^.j(. jg poflible. lo Mod. 193. Mich. 12 Ann. B. R. The Queen v.
Felon, tho , , ^ /
thereupon Mufcott.
he is to
have Reftitution of the Goods flolcn. z H. Hift. PI. C 281.
52. The Plaintiff brought an ABion for a Quantity of Stockings fold
to the Defendant. The Deiendant pleaded it was not he that bought the
Stockings, but his Son, who fent them to France in way of Trade j and
to prove^this, he would have call'd his Son. But by Parker Ch. J. he
* cannot be an Evidence^ becaufe here is an Advantage made by way of
7'rade ; and to whom this Advantage fliail accrue, depends intirely upon
this Contraft, and now one comes to fwear that he made the Contra6l
himfelf 10 Mod. 291. Hill, i Geo. i. B. R. Reeves v. Symonds.
S. P. cited 53. The Obligee makes the only Itving Wittiefs to the Bond Executor . —
per Serjeant The Executor was allow'd at Law to prove the Hands c^ the Witnelles.
Hooper. 2 Vern. R. 700. pi. 622. xMich. 17 15. in Cafe of Goffe v. Trai;y.
^Q^inSX ' 54- In Cafe againfi a Sheriff for a b'alfe Return of Non ell Inventus to a
Capias ad Satisiaciendum, the Bailiff' cannot he a Witnefs to prove that be
endeavoured to take him^ hut could not ; for he is no legal Witnefs, becaufe
he is ititerefted in the Caufe, having given Security for his due exe-
cuting Procefs, and by confeqaence could not be a Witnefs in his own
Caufe. 2 Ld. Raym. Rep. 1412. Mich. 12 Geo. Powell v. Hord.
SeecY.e.5) (H. f) JVitneffes. IJ^jat Perfom may be WitnQ^QS.
Hob. 215. I. T-QC fecmjj tljat tlje King cannot be a WitM^ m a Caufe Dp Iji^
pi. 271. S, C. 1^ letters under his Signet Manual. COHtta i^ObatO'|3 KCpOCt0,
J-^l^lT' 288. bettocen Abigfy ^"'i ciifton, m Cijancctp alloui'O*
allow'd upon
Proof, without any Exception. — Godb. 199 pi 285. Trin. 10 Jac. C. B. 5!Lfa b. ?lEa> that upon
3 Certificate by the King of an Agreement made between the Plaintiff and Defendant, upon a Difputc
concerning certain Lands, the Court of Rcquefts made a Decree, in the Body v/hereof the faid Cer-
tificate was mention 'd ; and for difobeying the Decree the Party was convifted, and upon an Habeas
Corpus tlie Court refuled to difcharge him ; but would advife.
If a Man be indilied of High Ireafou, the King cannot by his Great Seal, or Ore Tenus, give Evi-
dence that he is Guilty ; for then he fliould give Evidence in his own Ciufe. 2 H. Hift. Pt C. 2S2.
And/i) hi Felony, for the fame Rcafon , yet in fome Cafes the King's Teftimony under his Great Seal
is allowable ; as in an EJfoin de Servith Re?is, the Warrant under the Great Seal is a good Teftimonial
of it. 2 H. Hift. PI. G. 2S2. cites F. N. B. 17. Stat. Glouc. cap. S.
Attainder of 2. 3 9^m attainted of Piracy 10 nOt a KOOtI t^ttnefSi tO prObC anO*
Piracy &c. fijg,. ^mlfp Qf J^Qt glUltl? Of 19iiaC|), P« 15 33. 06* E* Pcc €w-
oufofEx-tiam, in one ^M'''"^'iS Cafe, upon eminence at 'Bat*
Witnefs while it continues in Force. 2 Hawk. PI. C. 452. cap. 46. S. 19. But then the Record
nuft beaftually produced in Court Ibid. 433. S. 20. 2H. Hift. PI. C. 278. S. P. Or vouch the
Roll in Court of the Conviftions alleged.
3. 3!f a ^iin upon C|:amfnatian accufes another of Piracy, and
after he himfelf is attainted of Piracy, aUH aftCt, being ptiCU'U fU biS
Con^
Trial. 371
ConfCICnCe, feimS foe tlje PartP aCCUfCD, ailO acknowledges before
\\ itneiies, that he acculcd him before fallely, and by Procurement of a
strans^er, pcc tliis Confcffioti fljall ttot Ijc tiifecn to ciifecijlc Ijts Ccfft-
uioiD' mane bctovc ijigi attainDec, bccaufe ic 10 maoe bp a 9^m at-
tatiitcD* 1^» 15 M 'B, E, iVoodford'^ Cafe, I5ct Cunaat, pcxtec
iDoocntJSC, toljo rcem'n to incUnc e contra*
4. <J Feme Covert CaiUlOtbe aUDltllCfS tor or againfl her Raron, \it= ^^""^^ re-
caufc tljei) ace one in laWi ano bp tl)i0 Difplcaftircma)) arife bctuicen '"'Yj'j^hat
tljeni, ocl^cnnvp, or otijct fitcat Jinconucnience* Co* litt* 6, u, common
Perfon, be-
tween Parry and Party, the Wife cannot be a Witnefs aj^ainft her Husband, according to Co. Litt. 6.
b. But bL-tween the King and the Party upon an Indidirment, ilie may, ahho' it concerns the Wife her-
felf Huct. 115. 116. Pafch. 7 Cr.r. Ld Audlcy's Cafe. But this Cafe was denied Raym i. Mich.
i; Car. 2. B. R. in £^arp (ffiirigg's Cafe, where it was held that flie is to be admitted a Witnefs againft
her Husband, and fo Vice verfa in no Cafe but Treafon.^ Vent. 244. Trin. 25 Car. 2. B. K. ia
40l)n ISVOton's Cafe Hale Ch. J. feems to admit ti. P. in Cafe of a Feme de Jure. But in his
Hift. Pi. P. ;ol. he fays a Feme Covert is not a lawful Witnefs againft her Husband in Cafe of Trea-
fon. yet in Ld CaiIl£l)ai)Cn's Cafe, upon an Indidtment for a Rape upon his Lady by another, by her
Hu.sband's prefent F'orce, fhe was received as a Witnefs, by the Advice of the Judges that affifted at
that Trial ; and upon her Evidence he was convifted and executed. S. C. cited by Holt Ch. J. 11
Mod. 540. Mich. 1 1 W. 5. in Cafe of %{)i %m% \i. 2C^l)e CUarDcn Of t\)i JflEEt ; And fays, that be-
Caufe it was a Rape upon her Perfon, Hie was received to give Evidence againlt her Husband.
5. 3 Feme caUHOt bC a J^itnCf^ to prove a ^m to be a Villein. (Jlfi* .^o. L'tt. 6.
ittt* 6. b* g^ -£-
Fleta, lib 2 cap. 44. [But in Selden's Fleta, it is pag. iii. cap, 51. S. i5. Mulieres ad Probationem
ftatus Hominis admitti non debent ]
6. Oftentimes a Man may he challenged to he of a Jury., that cannot be
challenged to he a Witnefs; and therefore, tho' the Witnefs be of neareft
Alliance or Kindred, or of Counfel or Tenant, or Servant to either
Party, (or any other Exception that makes him not infamous, or to
wane Underltanding or Difcretion, or a Party in Interell) tho' it be
proved true, lly.dl not exclude the Witnefs to be fvvorn, but he Hiall be
Ivvorn, and his Credit upon the Exceptions taken againll him left to thofe
of the Jury who are Triers of the Faft, infomuch, as fome Books have
fiid, that tho' the Witnels named in the Deed, be named a Dilleifor in
the Writ, yet he fliall be fworn as a Witnefs to the Deed. Co.
Litt. 6. b.
( I. f ) Evidence, ff^jat Evidence the Jury may ha-je ivhh Scecc.g)
them after Evidence given.
•I. npJ^^S 3!urp cannot fee nor carry tUl'tlj tljeUt any OtljCC ClliUCnCe, S P- And
X E.tCept tljat which is delivered to them by the Court, and by ^'^j ^^^j^'^^.
the Party himfelf brought into Court upon the Evidence ihewn. 1 1 j|), i^"^^, , J/^,/
4. 18. Efcroivl out
of Court, and
firfs fortbe Plxintiff, if thi.s appears upon Examination hy the Court, this isCaiife to arvefi the Judgment.,
(.^uodnota. Br. General Iffue, pi. b5. cites 11 H. 4. 17.
2. apon CWuence to a 3!utp to prove j. s. to be Heir to w. s. rvyv.^o
* t^e Court tutu not accept tlje t Pedigree drawn by a Herald at Arms jiT^'
for eminence, nor uiill fiiffa* tljc Jurp to Ijaue it taitl) tOcni, but 10 lATtoH^
only 3i,nformation fov Diveftto'u p* 8 3ia* ia* bctujccn ^i' Edivard raWs Books,
Plunifton
37'
Trial.
5ti uhat Pltiwptc:}! a fid Roliiifon. \p, 12 Jil, 03* llJItljOUt fllip iJStOOf bg iDfflCC,
Cafes tiKy ^^ Qj-hj;,- ftiijaauttal a^attec. pec Curiam*
fliallDcad- -^ , „ ,, , T- • , „ ,- ^ _. „ . ,
miued as Evidence, and what Ihall be tvidence to prove a Pedigree, lee Tit. Evidence.
3. Jfiin Exemplification comes out of the Chancery, of Witnefles exa-
mined there upon Oath UlfjO ate dead, tljC 3:tirp fljall Ijvl^C It Ulltlj tljCm.
1?. 10 3:a* 15* tCtlUCeU I'omhnfon ami Croke.
4. But if tijc e,ceuipltfiCutlon compitljcnBiS fome jiBitncffes loijo
are dead, and fome UlljO are living, tljC JUtP fljall lldt ijaiJC It tOIt5
tfjeUU 1?. 10 3ia* 05. bCtlUCeU TomUufon and Crokc.
5. No Deed, or Writing whatfoever, fhall be privately or iecretly
deli\ ered to the Jury, that was iivt openly (Ijewed. Heath's Max. 94.
cites II H. 4. 17.
Br. General] 6. In V/afie they were at liTue, and the Wafte was aJJJgned in feveral
Ifflie, pi. (. places.^ and the Plaintilf would have delivered to the jury a Cvpy of the
cites S. G. pi.jces ; and the Court denied it, unlefs by JJfent of Parties ; by which
it was afterwards delivered to them Ex allenfu Partium. Br. Jurors, pi.
I. cites 9 H. 6. 66.
7. No Copies of Books fliall be delivered to the Jury, but with the
Confent of both Parties. Heath's Max. 94 cites 9 H. 6. 6.
Heath's S. Note, it feemed to 3 jullices, that a Pine indented, and not exemplified
Max &i':.<)i,.f[ibSigillo &.C. Ihall not be delivered to the Jury. And Widellade iaid,
cites S. C. than jt has been often ufed to deliver fuch Part of the Fine to the Jury ;
but the contrary is ufed at this Day. And alter it was delivered to tht;
Jury, with Aifent of the Plaintitf. Br. General Ifl'ue, pi. 8. cites 34
H. 6 25.
S. p. Br. 9. Entry in Nature ofJJJife., the Party after Iffue joined gave in Evi-
General dencc an Inqitifition found before the Efcheator; and becaufe it was not ex-
IjTue, pi. 7 5. ^jjjpiifif,^ under the Seal of the Chancery, therelbre per Brian and Choke,
^^^^\]^[ '. this ihall not be delivered to the Jury i for it is no better than a Tefli-
S.P. Heath's monial. Br. General Ilfue, pi. 45. cites 21 E. 4. 38.
Jilax. 94.
cites II £. 4. 25_S£ 3S.
Any Paper lo. Writings or Books, which are not under Seal, cannot be delivered
under Seal, to the Jurors v/ithout the Afjent oj both Parties ; but being delivered by
or not under |.|^g Court without fuch Alient, neither of the Parties can avoid theVer-
Seal, may^^^e jj£^^ becaufe they were given in Evidence before. Cro. £. 411. pi. 1.
Tme'-Mt' Mich. 37 &38 Eliz. B. R. in Cafe of Vicary v. Farthing.
nothing . . _ u l /-. /•
may be delivered in Evidence to a Jury, but that which is of Record, or under Seal, but by Confent.
The Chiro^i'ip!' of a Fine may be given in Evidence, but not delivered to a Jury in Evidence. But Re-
cceery may be delivered in Evidence ; Per Witherington Ch. J. in delivering the Opinion of the Court.
Hill. id,-',, z Sid. 145 Olive V Gwin.
2 H. Hill. PLC. 907. fays, If a Vie.ce.oi Evidence under Seal he. read in Court, the Jury ought regular-
ly to have it with them ; but not if it be not under Seal.
II. R ichardfon demanded of the Court, if there 2.1& feveral Depofitions
under the Great Seal given in Evidence, and fome are read, and fome not,
whether the Jury may take them with them from the Bar .' And they
all anfwered they might, becaufe perhaps fome were not read for Short-
nefs of Time, or one was to the lame Purpofe of thofe as were read, and
being under the Great Seal, they may have them. Lict. Rep. 69. Mich.
3 Car. C. B. Anon.
(K. f) Ver-
Trial. c^yo
(K. f) FerdiuL ffhat Tlo'tng the jury may Jlnd. In
Rejpe^ of the Ttme.
I. TB COltfpiracp for a Confpiracy at one Day, tljC 3IUrp map finllSee(D f>
1 !)tm Ciuiky ac another Day j fOC tljC Dag 1)3 llUt tOC ifOtm* i:o -So of a
Ig), 6. 34. J^/««x, the
2. [So] in -SCrCfpafjS of Battery at one Day, aitl! DefcnUaUt )\\Wm good\e'it
at atiotl)Er Dap, tuitlj Cra^ierfc before anc aftec, i)e map be founo before or
^UiltP at anOtljEt DaV. 20 Ip. 6 14. b» afcertheOay
3. [So] III CrcfpaC0 of X^attcrp of a Servant, tlje Defculiant map |^ [f L b '''
be fOUnU glltltp at another Day and Year tl)an tlje Dap an5 l^Z^l ai= fore tl,e Suit
ICgeD* 39 C« 3- I- ^tl)llDn;etl. commencU
Cro. E. 55.
Hill. 29 Eliz, B. R. The Sheriffs of Norwich v. Bradfhaw.
4. [But] in Crefpaf0 of Battery fuch a Day and Year, if tfje Defen- 2 Brownl.
d'ant agrees with the PJaintifF in the Day, Year and Place, and pleads l£^-
tljat tlje TBattcrp sxm De fon Aflauk demefne, anU I91atntiff replies ^tZL
Dc fon Cort Demefne tuitljoiit fuel) Caiife ■■, anti upon tljifi tlje De= fljaS^, s c
ftnnant eiues in c^uioence tlje aifault oftlje}S)lauttiff, tlje plaintiff -^djomamr.
cannot gi^e in ©binence a 'Batteip at another Dap ; for uiljen tt)e —brownl.
Defenuant agrees initlj tlje Plaintiff in tfcc Cime aim place, anu '''skivr"
tl)e piamtiff jontis Ilfue upon it, tljis is maoe Parcel of tlje ilOiie* iher, Ic
%X. 1 1 3a* "B* betUieen Downes and Shumjbee, PeC CUtiaUU accordingiV-.
by the Opi-
nion of the whole Court. See ( C. f ) pi. 5.4 and the Not; there.
(L. f ) Verdi6}: per Pais. County. IFhere the I^ue See cf. a)
upon a collateral Thing is tried in a foreign Cozwtj'j '^"'^
by fwhom the Principal /hall be tried^ or udccejjary.
damages, \^fPhere the Damages Jhall be tried by the
fame Jiiry.~\
:i
sm Trefpafs, if a Reieafe bc pleaHcU iu a foreign Countp, anti * Br. Da-
_ tijere it is trien for tlje plaintiff, tijere it fljallbe inquiccD of tlje ^s"'-. p'
Damages bp tlje fame 3naueft, 21 m. pU 14. bj) *Srcen. * 44 €. s c'""
3. 6. b* r • ■
2. Jn Trefpafs Of ClOfC anO H^OUfC brOfeen, if Arbitrement bC plCaQ- Becaufethe
eb in anotljcr countp, anb tijere founo for tlje plaintiff, tlje fame ^t"""^" ^rs
Jnqueft fljall ta,c Damages for tlje Crefpafs. 1 1 fp* 4 57 b. 1 3 1)» bTTw
4' 7- b* ges, pi. 53.
cites 1 1 H.
4. 57. Per Thirn and Culpep. But in Jfffe, or other Plea of Land, it is otherwife ; for there the Da-
mages are not Principal ; and therefore for the Foreign Reieafe, or Foreign IJfue tried, the Damages
fhall be tried by the County where the Land lies, and the firft Adion brought. Br. Damages, pi. lo-.
cites 21 Aff. 14. ''
3- 31f in Avowry for Homa2;e Tender is alleged in other County, anb
tijcre tljellTue trfcb for t!jc Itsoioant, tlje fame 3!nque(t fljall tar 'D.v- ^^'
nuige^, II ]|),4. 57- b* 21 €, 3- 12. Ctsjutisco* 56. b. atsjubgcb, ^,y„^
5 c becaiile Ji 6. .ues'
374 Trial.
".I E. 5^ Eeciiurc m Damages are for tlje tortious tJat^ins ; anu if tljep fljall
c'rTl^ not incitiirc, it OjaU be inquircD b?? 3nqiielt of £)fticei anti fo ttje at-
oi 2S cts tnmt Ojnll fail, n B;. 4- 57 b. 44 C. 3- 6. b. C. 05. ©otu. 21 e.
J4 E 3.6. 3- 12. b. aojiiUffeti. 56* b. ^Hijiitigcli. 21 aflf. pU 14-
and lib. Aff.
4.. -S. P. Adjudged and affirmed inError. Jenk. 20. PI.3S. cites joAlT. 38.
When a 4. ijf 3 Rcicafe bc pleatFCD in foreign Coiintp in Affife j anH tijere
^d in ^a i^ J^ ^oiinti for tljc plaintiff, m fame Jnquca njall taj: Damages for
Real or tljc profits. Coiitta 1 1 ^. 4- 57- b. Contra 21 e* 3- si- 21 ac
Perfonal Ac- pi, 1 4.
tion, as Rc-
leafe &c. in foreign Cnunty, the Jurors that try it fliall aflefs Damages for the Profits of the Lands in
the other County, and fo by a Mean fhall inquire of Things local in ano:her County, which they
could not originally do ; Quia mnlta conceduntur per Obliquum, quE non conceduntur de Direfto; and
when they try the Matter of the Bar, they ought, upon pregnant Evidence, to try all Dependents there-
upon, as D.m'iages Sec. 6 Kep. 47. a. b. the 4th Refolutioii in Dowdalc's Cafe.
Br. judg. 5. CIjC fame JLaU) in UBrit of Cofinageor Aiel. io |). 6. lo. COli--
ment, pl.i44.([j-j 21 (Q, 3. 57.
cites 6. C. ^ jj^ jjj^ ^ff jpj^ Qf jjg,^}^g for ^V^afle jn ^ Vills in feveral Hundreds
in the lame County, if tljC lliue be whether one be a Vill by itlelt, or
not, and by this Vill the lliue is tried, If tljCJ) fiUtl fOt tlje Plaintiff
tljcp (Ijail inquire of tlje Damages of tbe J©afte in tDe otljer 0iil. 9
l> 6. 67. Curia,
7. :jn Treipafs, if DefenUaUt pleaHS a Releafe in another Hundred
in the lame County, antJ tljctc t\}t Jffuc is tticti fot tlje Plaintiff, tljep
fljali immt of tlje Damages of tlje Crefpafs. 9 ^* 6. 67.
S. 3u Trefpals m OUC COlUltp, if tlje Defendant pleads Villeinage
in the Plaintili, as regardant to his Manor ot D. in another County, tO
* Br Da ^Wt^l) tl3^ Plaintiff Rips Frank, anti of jfrank Cftate, ano tbiS is
macres, pi. ttieti bp Sffeut uiljere tbe ^anor is ; if f)c be found Frank by Verdia,
28. cites tlje fauie Inqucft map inquire of tlje Damages, becaufc bP tf)e pica
,\^. ^"'^ tljc Crcfpafs fuppofcQ in tije Count is not ncnieo^ but in a fanner
iib. A11.4. jicfenoujicDget!, 44 3ff. 4. 30)urigen. * 44 €♦ 3 6. b*
In Affife, if 9. JU Affife of a Rent-charge againlt an Infant, upon a Deed dated in
tbreignDeed a foreign County, ailU t\}t 'SCenaUt pleads Ne charga pas by the Deed,
is pleaded jjp ^jj^jjjjj jj j^g ji^jflnvivj, - . J, ti'p'tj agaiuff tlje Cenant in tlje foreign
fanrthere Countp. Cljc fauic Sinqucff map inquire of tbe €)Cifln of tije piam-
Foreigners tiff lu tljc oUjet Couiit? ; fot a ^eilut of a Rtnt map be in otljet
fhall try the Q^oimtp tOau tDljcte tlje laiio IS, anD fo tbe ^llfife map iaeU take
tSeifin ^otice'^of It. 26 3ff, 3. Dubitatur,
and Diifei-
fin. Br. Jurors, pi. 22. cites to E 5. 13. [But it fliould be 10 Aff. i 3] Br. Trials, pi. 67. cites
10 All 13. &. C.
5 Le. 253. 10. 3in an Action upon tl)e g)tatute of 32 h. s. of Buying of Titles,
pi. 317. S. C. jmji f{j0 Bargain is alleged to be made in Norfolk, but the Land lies in
^r. nn^.n Sutfoik i tbe^liitp itt i^otfolh, tnljo tries tlje principal Wue, fcilicet,
pear ^' ^ IBatgaiu, map alfo flnD tlje ©alue of tlje lann inljiclj is in ^uf
folk i for It IS but an Jncioeut to tbe otljer, anti part of tlje 3iiTue
cannot be trieti in one Countp, ann part in anotber* (3!C feems
tbat tbe general Jiffue tnas pleaoeo* ^♦31-32. €1 X. K* betuieen
Pike and Hajffen abiUOgeO*
II. InAifife, the Tenant pleaded a Releafe in a foreign County, by which
the Affife is adjonrn'd, and the Deed tried againfi the tenant tn Bank, and
the Plaintiff releafed his Damages and had Judgment immediately i and
therefore it feems that the Damages fhall be tried by the Jury of the
County where the Land lies i for the foreign County cannot try the Da-
mages, Br. Damages, pi. 155. cites 6 All. 4.
12. Two
Trial. 375
12. ^a'o Demandants brought an AQion in Mtddhfcx^ and after Ifftie the
Tenant f leaded a Releafc of the one m London ; yet thejirji Inqueji lliall go
on and inquire of the Damages of all, and if the other InqueJi Jind Non eft
FaBunt, theyfhall inquire of the Damage after thejirjl Verdtdf ; and Judg-
ment fliall ceafe upon the firft Verdift till the laft Verdift Ihall be
tound. Br. Damages, pi. 135. cites 10 H. 6. 9. 10.
1 3. Trefpafs of breaking his Clofc, and cutting and carrying away his
Trees, the Defendant as to the Vi & Armis and breaking the Clofe and
carrying away of the Wood, pleaded Not Guilty, and to the Cutting
pleaded Command of the Plaintiff in a foreign County, upon which they
were at Ilfue there ; and the Jury found for the Plaintiff Damages 40 s.
and Cofts, 4 Nobles. And Littleton pray'd J udgment. The Court faid. You
fliall not have more Colts in the firlf County, if the other Ilfue paffes for
you likewife ; for the firft Jury fhall give Cofts for all. And lo fee that
the foreign County tnay give Cofts for all, but not Damages j for this ftiall
be inquired in the proper County where &cc. But it feems by the Say-
ing ot Prifot, that if the Plaintifi" would have tarried till the other Ifiue
had been tried he might have had greater Cofts. Br. Cofts, pi. 3. cites
33 H. 6. SS-
14. Trefpafs in the County of N. of Jftault there, and after he counted ^^^ the
that by the fame Jfault he loft his Bujinefs in the County of N. and S. which ^f ^^here ^
is another County ; and yet well ; for this is only to increafe Damages, ^here die
Br. Damages^ pi. 87. cites 37 H. 6. 2. 3. Affaultwas.
Br. Lieu &c.
pi. ;o. cites S. G. Br. General Iffue, pi. 31. cites S. C. — Br. Jurors, pi. 17. cites-S. C.
Br. Verditt, pi. 79. cites S. C. per Prifot.
15. And where my Receiver is of my Land in 3 Counties, and is heat in Br. Lieu&c.
ens County, by which I am at a Lofs by not receiving in the 3 Counties ; the E'.^,^' '^"^
Aftion fliall be where the Battery was, and yet the Jury fhall give Da- g,. o^^al
mage in Refpe£l of the Lofs in all the 3 Counties, by tlie giving of the Iffue, pi ^r.
Matter in Evidence. Br. Damages, pi. 87. cites 37 H. 6. 2. 3. cites s. C. —
Br. Jurors,
pi. 17. cites S. C. Br Enqueft, pi. (Jo. cites S. C.
16. Jnd if a Man detains a Deed of Releafe from me in the County of Br. Lieu&c.
M. by which I lofe my Land in the County of E. there in an A£lion brought P'- i9- cites
in the County of M. of the Releafe, the Jury fhall give Damage to the \^q •
Valueof the Land in the County of E. per Prifot, Quou non negatur. Br. jn-y^ „i ,j_
Damages, pi. 87. cites 37 H. 6. 2. 3. cites S C —
Br. Jurors,
pi. 17. cites S. C. '■ — Br. Enqueft, pi. (So. cites S. C. Br. Verdi(fl:, pi. 79. cites S. C. pee
Prifot.
17. Where I[fuc is to be tried by a foreign County where the Damages are B'-, Damage,
principal, as in Trefpafs, falfe Imprifonment, or the like; there the Jury ^ q°2_^""
of the foreign County fhall try the Damages. Br. Trial, pi. 118. cites a Jury of a
21 E. 4. foreign
County,
where an Iffue is join'd that is triable there, may find Damages incident to the Aaion> for fliey are
acceffory. Jenk. 20. pi. 58,
(L. f. %)
376
Trial.
Sce(M f)
(O.f)
(L. f. 2) in^at the Jury mujijind.
Br. Attainr,
82. cites S.C.
per Tank
and Knivet
J-
I. T N Jttaint, if the D/JJcifce re-enters a fid infeoffs the Diffeifor^ and
^ after brings J^ffife agamji hini and recovers^ the Feoffment not be-
in^ pleaded but given in Evidence^ Attaint lies ; for the Jury ought
to to take Conufance of the Livery of Seifm^ but Contra of Releafe ; tor
if be not pleaded, it cannot be given in Evidence, and the Jury
cannot take Conufance, and thereof Attaint does not lie. Br. Ver-
dift, pi. 51. cites 43 Aif 41.
2. Debt upon a Leafe for Years againft J. E. and one J. E. came to the
Bar and pray'd the Court to mark him ; for he faid that there are 2 J.
E's. in the fame Vill, viz,, the Father and the Son, and the Son is he who
now appears at the Exigent, and pray'd that the Plaintiff' declare agatnji
him, isjho did fo ; to which he faid, that the Plaintijf did not leafe to this
J. E. who now appears &c. prout &c. And after it was held by the
Court that it is a good Plea for the Defendant, quod non dimiiit prout
&c. to the aforefaid J. E. and the 7'rial pall be, whether the Leafe "was
made to him who appeared or not, and if the Leafe was made to another, yet
this llfue is good for the Detendant i for then it was not made to him,
for the LawTuflers him, who now appears, to appear to avoid Vexation;
and therefore the Jury ought to confider, whether the Leafe was made to him
who appears, or to another of the fame Name, and the Jury fhall not have
Regard whether fuch Leafe was made to one of the Name who does not
appear, but whether it was made to him who does appear. Br. Mifnomer,
pi. 49. cites s E. 4. 57.
Br. Ban-e, pi. 3- ^^ Refignation, * Divorce, or fuch like are given in Evidence to
81 cites' the Jury, they are bound to find it.' Br. Jurors, pi. 34. cites 7 E.
sc. 4. 16.
* Br. Trials, ^
pi. 102. cites
4. If a Man pleads that he is net Parfon of Dak, and fo to IlTue, and
gives Refignation m Evidence, the Jury is bound to find it ; Quod nota.
Br. Jurors, pi. 43. cites 9 E. 4. 49. Per Moyle and Littleton.
5. In AlFife, the jury ihall be charged to find Condition of Frank-tene-
ment, which is given to them in Evidence in Pain of Attaint ; and yet the
Party Jhall not plead it without fhewmg Deed thereof. Br. Jurors, pi. 47.
this if Nul cites 18 E. 4. 12.
Tort be
pleaded. Br. Attaint, pi. 1 19. cites S. C. per Genny ; Quod non negatur.
Br. General
IlTues, p'. "2
cites S. C. —
S. P. And
This Care is
in Ow. 96.
Hill 51 Eliz.
C.B. Sutton's
Cafe.
Le, 20(5. pi.
z86. Sutton
V. HoUoway
and Dickfon,
S.C.
Sav. 98. pi
179. S. C. —
6. In Ejeftment, the Jury gave a Special Verdi£l that the Defendant
made a Leafe of the Land to the Plaintiff, he having Nothing in the Land,
and after he enter'd and ejefted the Defendant. It was held by Ander-
fon Ch. J. and Periam J. that the Leafe was good between the Parties, and
that the Jury were bound to find it fo, or otherwife to find the whole
Matter, and then the Court fhall adjudge it to be a good Eflate, and In-
terefl between them. Cited per Hale Ch. J. Pollexf. 68. in Cane. 1672.
in Cafe of Weale v. Lower.
- Cro, E. 140 pi. 2. S.C.
T. A
Trial. 377
8. A Verdift muft be fufficient in Matter and Form be the fame fpe-
cial or general, and therefore they muft lay Damages and Cojis where the
fame ought to be found. Trials per Pais, 259.
(M. f ) Verdi6i:. 0^oat Things the Jury may fiid. In
ReJpeSi of the Comity.
I. T B a Trcfpafs local tijc lurj) caitttot fiiitJ tl)c Dcfcittiant guiltp s p. bp.
X in nitOtljEC Count?, UUW^ it 10 local* 9 E>. 6. 63. ' General If-
lue, pi. 76
cites 2 i E. 4. 19. Per Starkey and others. Br. Verdia, pi. So. cites S. C. S P. Br. Lieu, pi. (55.
cites S E. 4.. I . The Jury ought to find all local Afts, tho' in another County ; per Cur. ' 3 Salk-
564. pi. 10. Anon.
2. a 3liitp of tfje CountP of ^Bticfetngljam cannot finti the Foun-
dation oi a Priory in the County of CCOU, bCCaUfC It is local. ^, 8.
31a» iW tljC (E,CCl)eqUet, bCtUiecn Ewer and Moyk.
3. Jin i^eplevin, if Tender of Homage be alleged in D. in another
County, anU upon tljtisi tljc Jnqucll corner from tlje fato D. tljep
cannot finu tlje Cenocr in anatljct Countp ■■, foe tljcj) cannot IjaUe ^^.^ ^^
Conufancc of tijc CcnQcc in anotljct Count}?* 21 c» 3- ix. b« ao-anv other
jUtlffCll, 56. b* Place in the
fame Coun-
ty, where the fame is alleged to be tender'd. Heath's Max. 92. cites 21 E. 5. -Br. Verdift, pi. i j.
cites S. C.
4. j\\ a Real Aaion ti)e 3iurp tnljctc tIjc sactton is broualit map finn
tljE Death oi the Defendant m a fOtCtgn COUntp ; fOC tljC PlaCC Of tlje
Dcatl) 10 not uiatcriaL 28 aiT* 17- aoiungeD, i aiT* i&.
5. ISUt tljC Jurp cannot finn, That by virtue of certain Deeds B". Verdift,
which are dated in a Foreign County, Seifin was deliver'd Of CCttaiU s c L^b"
Lann in tlje Countp of luljiclj tlje 3utp is, not can tafee Conufancc jurors, pi. '
of tije faking of tije faio Deeos* i aiT. 16. amunpti. 20. cites s.c.
6. cue Jurp cannot tal^e Conu(i\nce of tlje Time of the Death of Br. jurors, .
another in a if oreujn Countp* i air* 16. aDiuugen. p'-^°- "^"
Br Verdia, pi. 24 cites S. C. But Brooke fays, fee aVerdift iv tie County of Liticoh, which found that
the Father of the Plaintiff Med at P in theCounty ofTork, and yet he recovered, and the Verdift good; for
they had no Regard to the Place, hut if he died feifed or not ; for as it feem.s, thePhce, which comes by
fliewing of die Jury in their YcrdiityJIialt not Le enter'd. Ibid. ci:es iS E. 2.
7- Jn an Action of Debt againll an Heir, tlje 3!Urp of one COUntP SC. cited
map finn AUecs m anotljec Cotintp ; fot it is not local. Co. 6. 7 ^*7'^>:
£)ozi-daIe 47. D. 10 CU 271. 28 Ip, 8.' 30. b. pi. 25 lli!'
If it be in
Cafe of an Heir, on an Aftion grounded on a Speciilty againft him, and the Point in IRue be ^-^JJets by
Difcer.t, it will be fuflficient if he cm prove A (lets any where in England. And if it be Allots in one
County, it will be fufficient to prove Aflets in another County. D. 171. pi. 29. H^tre v. Butler.-
The Jury may find Aflets of Goods in a Foreign County by Evidence given, and fo of other Things
tranfitory. Contra of Things local, as Trees cut, Grafs fpoil'd &c. Br. Verdict, pi So. cites 22 E. 4.
19.. Br Generallffue, pi. 76. cites S. C. Heath's Max 95. cites S.C. Br. Attaint, pi.
104. cites Mich 2 M. i. that they may find Things tranfitory in other Count\', bur that thev are not
compcll'd to do it. But this was utterly denied per totam Curiam ; for they are bound to find Af-
fets in any other County whatfoever, under Pain of Attaint. And refolved. That upon every General
Iffue the Jurors ought to find all local I'hings, which are material in Law to the Point in Quellioti, iti
whatever County they lie, as Warranty and AlTets in another County ; fo where Land is exchanged for
Lands in another County, and the like, 6 Rep 4-. a. Mich. 5 Jac. C. B. Dow dale's Cafe.
5 D 8. Jf
qyS
Trial.
8 3f tlii Heir be vouch'd, who hvs chat he has nothing by Defcent
tlTc liurp of one countp map fine Aire ts in miotfjec CountP. con'
tra 28 e» 3- 9 i- b. aajutigcri»
+ Cro J. 55- 9. So in Debt ai^ninlt an Executor, tIjC iHl'P Of OttC COUntp maP
pi iS. Midi, i^j^g o|gfft;0 in iinp btijcf Countp. €0, 6. * i^c^-ce;^^//, 47. anjuogen,
kSirci-on tCCaUfC it IS HOt lOC;!!. t 22 C, 4. 1 9.
S. C accordingly. And. ;2 pi. 7 7- Paf-h. 7 E. (5. Anon. S. P —3 Le. 2. pi. 4. 6 E.6. C. B.
S. P admitted And Judgment given in Derby in Debt againft an Heir, who pleaded fuch Plea v/as
affirm'd ; tho' it was objected, that this being a private Jurildiirtion they had no Authority to inquire
of any out of it, and that thi.s differs from the Actions brought in the Kirg's Courts, which have a Ge-
neral furifdiftion. Sed non allocatur ; for this Inquiry is good enough, As an Inquiry may be of AfTcts
in Ireland; and fo the Judgment was affirm'd. Cro. J 502,503. pi. 13. Mich. 16 Jac. B. R. Bourn.'
V. Carrinp;ton.
j- Br. Verdift, pi. 80. cites S. C. Br. Jurors, pi. 3'i. cites S. C. that they may fay that AflerS
gene-ally, if they have AiTets in another County ; by the Opinion of feveral Jultices and others,
ht. General Iflue, p!. 76. cites S. C.
The finding lo. So tIjC SlUl'P UiaP fiutl ^ffctj? in Ireland. CO, 6. Dowda/I, 47.
them beyond
Sea is SurpIuCage. But refolved, that fuch Finding is finding the Subftance of the IlTiie, viz. Aflets; for
Executors fliall be charged fur Goods in any Part of the World, 6 Rep, 47. b. Dowdall's Cafe.
Cro. J. 55. pi. 2S. S. C, by Name of Kichardfon v. Dowel, accordingly.
Br, Jurif- 1 1. Wlierc Dcit is brought in London upon an Obligation, if the Defea-
diition, pi. ^^/ji: pii,^^^ Durcfs at Tur'k.^ and the Plea is removed into Bank by Writ of
29 cites 14 j.j,^^ Chunc-erv, the Bank pall try the Ijfue joui'd tn London, by the bell
' ''' Opinion ; lor it goes to the Jurifdiilion, and the Plaintiff is put to a new
Original in Bank. Br. Trials, pi. 30. cites 14 H. 4.
If the Jury 12. In Trefpafs in D. upon Not Guilty, the ^mj may Jind him Guilty
in Trej^.^ji ^^ another Vilt in the fame County, but not m another County j for this Ver-'
IwCom'ty did is void. Br. Trefpals, pi. 19. cites 9 H. 6. 62. Per Cur.
lihicb is dotie
in ar, other County, upon NotGuilty pleaded find th/it Guilty generiilly. Attaint lies. But if they fay that
Guilty in another County, the Verditt is void, and the Court ought not fo to take it. Br, Trefbafs pi. 19.
cites 9 H. 6. 62. br. Traverle per &c. pi. 14. cites S. C.
In Trefpafs of Battery in the Ccur.ty of S. per Prifot, if the Battery was in the County of N and the Jury
tipen Not Guilty f leaded fnd the Tirfp.fs, and tlie Defendant guilty. Attaint lies; for they cannot take
Conufance out of the C^ounty ; prr Prilut, But Afhton J. contra ; tor the Verdidt is true, and they
may take Conufance if they will ; but they are not bound to find it, if it was m a Foreign County. Br.
Attaint, pi. 46. cites 3g H, 6, 8. Trefpnfs of Battery, and Goods carried away, are not local, and there-
fore may be brought in another County than where the 'I'reCpjfs was done ; and if the Defendant fays
Not Guilty, the jury may fay that Not Guilty, by realbn that it was done in another County, and they
may fay tliat Guilty if they will ; for they may take notice of an ylH, which is not local, done in another
County. Br. Lieu, pi. 65, cites S E 4. i.- Br. Jurors, pi, 57. cites S. C. — —Ibid. pi. 50. cites 2 M. i.
S. P. ■-4'id fo it was agreed, M. 2. M. I. in •Trefpafs in London, of breaking of an Obligation at D. in
London, where in Facl D. was in the County of E. Br. Lieu, pi. 65. -Br, Jurors, pi. 50. cites S. C.
Br. General 13. Where Rejgnat ion is in IJfue, the Jury may find it, tho^ it appears
IlTue, pi. by the Evidence that it ivas in a Foreign County. Br. Verdift, pi. 79 cites
69 cites ^E. 4. 15. 16. Per Cur.
Br. Trials, pi. 102. cites S. C.
Br. General 14. So oi^ Divorce ; and they ought to take thereof Notice upon the Evi-
Iffue,pl.69. (i^ace, tho' they are fpirituali for of fuch Things pleaded to the Writ,
"^^t^-.^~ the Court will not v/rite to the Bilhop. Contra where it is pleaded in
priorcuesBar. Br. Verdift, pi. 79. cites 7 E, 4. 15. 16. Per Cur.
S.C.
Br Jurors ^5- •'^" ^^^^ °l^^"ft Executor, who pleads Ne unques Executor, Ne iin-
pl. 16. cite's ques admintjlerd as Executor, it he gives in Evidence that he did not med-
S. C. die, but took certain Goods of the legator, which the T'ejlator gave him at
D. in a Foreign County, the Jury ought to find this Gift in the Foreign
County
Trial.
379
County, upon Pain ot'Accainc ; Per tot. Cur. Br. General Illue, pi. 28. Bf Enqueft,
cites 9 E. 4. 40. S C — "
Heath's Max. S5. pi 92, 95. cites S. C,
16. Where the Mife is joined in Writ of Right ^ the Grand Affife ought Br. Jurors,
to find Rcleafe made in a foreign County, if hepews it to them. Br. Gene- P' ^^- cites
ral IlluCj pi. 28. cites 9 E. 4. 40. Per Laicon. Hah^
Max 95.
cites S. C. S. P. For this c.innotbe ^le.^Aei.^, nor any thing in this Aftion but collateral Warranty.
Br.Enrueft, pi. 59. cites S.C.
17. A Man was indilfed in Middkfcx, becatife he at D. in the County of
Adiddlefex, procured tu jf. S. to kill A. B. by which he ki/Ied him at S. in
the County of Berkpire, and no Exception if it was a good Indictment, or
not ; and this oi Battery and Death in another County, .^iiere ; for it
was not argued. Br. Jurors, pi. 40. cites 9 E. 4. 48.
18. Upon Ilfue in Decies tantum, the Jury * rwxy find the taking of Mo- The Jury
ncy in another County generally, viz. that he is Guilty, but fhall not fay in m^y take
the Comity of N. where the Taking is alleged in the County of M. Br. Ju- Conufance
rors, pi. 36. cites 22 E. 4. 19. by the Opinion of feveral Jullices and j^g ' ^^^ ^^^
others. bound to it ;
Per Srarkey
and .-'.fcue T and ■(everal Apprentice.?. But Brook makes a Qiiirc thereof ; for he lays it appears elle-
where, th.it they ought in Paia of Attaint. Br. VerdiCl, pi. So. cites S. C. Br. General Iffue,
pi. 76. cites S. 0.
* But Brian was aprainft this, inafmuch as the Party may he doubly charg'd ; for if the PlaintifFbrings
Attion in the other County after, the Recovery in the firft County cannot be a Bar in the fecond.
County ; but feveral econtra. Br. Jurors, pi. 7,6. cites 22 E. 4. 19. Br. VerdiCl, pi. So. cites S. C.
hut Brook fays Quiere of his Opinion ; for his Doubt was, that the Refceit in the cneCounty, and the Re-
fceit in the other County c.innot be intended one and the fame Rent. But thi<; i.s not much to the Purpofe, as
it ftem.v, when it is of a Thing tranjitory. — Br. General Iflue, pi. -6. cites S. C Heath's Max. 95.
cites S. C.
19. Foreign County Ihall try Damages in another County. Br. Trials,
pi. 93. cites 7 H. 7. 8. Per Huffey Ch. J.
20. Jury of one County Ihall find a Deed of Grant of Rent-charge in
one County out of Lands in another County. Br. Trials, pi. 93. cites 7
H. 7. 8. Per Keble.
21. Leafe and Rcleafe made in a foreign County, Ihall be tried in the
County where the Land lies. Br. Trials, pi. 93. cites 7 H. 7. 8.
22. In Ejeffment in Kent, the jury found that the Mafiers and Scholars
of Linkford were fifed of the Land in &>uefiion, being fart of the Manor of
H. in M. and that they deniifed all their Lands m M. excepting the Manor
of H. tinder which the Plaintiff claimed ; And t\\e\ found that M. did ex-
tend to Kent and Suffex i and that the Mafier &c. 'had no Land in M. but
t he Manor of H. And it was adjudged that the Jury, being only of
Kent, ought to find that they had no Lands in Sullex, as well as in
Kent, becaufe the IlFue^ Guilty or Not guilty, depended upon it. Other-
wile where a local Thing in another County is fpccially put in IHue.
Hob. 170. in Cafe of Stukeley v. Butler, cites 18 Eliz. B. R. Dorrel
V. Collins.
(N. f) Ver-
380 Trial
Verdia. What Thing Jury may find in Refpea of
the Place.
(N. f) In Refpe5i of the Place tn the fime County.
s p Br I. T B Trefpafs of Battery, if Dcfctitiant plcatis JBot ffuUtp, \}t map
Trefpars, pi X bc founO (JJuiItj) ui Biij) otUet Place \\\ tljc fame Countp. 9 1).
19. cites 9 6 63. Curia* 22<ii(r, 62.
"• ^- ^-- 2. '^rijC lame latD lit CrCfpaf0 of Goods earned away. 9 |), 6. 63.
3 Jtt Trefpafs local, as for Trees cut, or Grafs fpoil'd, UpOtt iI50t
Kiultp pleaQen, Dcfcnnant cannot be founti *J5uiltp \\\ otljec l^iacc in
tbc fame countp. Contra 8 ip, 6. 35- Ditbitatur 9 Jl). 6. 63.
In the fame County.
Or they 4. Where the Place is not material, but is put only to have a Venue,
may find it j|,j, jm-p j|^^-(p fjj^jj {jj^ (j^tjuis ut otljec piacc in tlje fame Countp*
in avy other yi^' z^, 4i
G««i i« ioip,6. 13. b.
Enehind. 6
Ref. 47. ©CltiDaU'S Cife.— Sec (M. f) pi. 7. and the Notes there.
Br. Verdia, 5 As in Debt againft an Heir, if tfjCP ate at Iflue upon Aflets in D.
pi 61 cites tijj ^iifp „ia« fii^i) (^{fetg in anp otljcr place in tlje fame Countp,
Affets oTno becaiife tijc place i^ put onli? to ijabe tije aDcnuc from it* lo p. 6*
AiTetsisthe 13- b» at>)Utlpll*
Matter, and . ^ .
not the Place where it lies ; for if he has Affets in any Place or Vill, it is luffacient.
Br. Verdift, 6. Jn Replevin, if a Tender of Homage be allegell Itt D. in OtftCC
pi. . 5. cites (f^oiint)) ; ann upon tljisi tlje 31nqucll comess from tlje faiD D. pet tbc
Jnqueft map fino tlje CenQer in anp place uiitijm tlje fame Countp.
21 c. 3 ii- b*
7. In Dti'l '^gi^infi "ft Heir^ on an Obligation of his Anceftor brought
in an Iiijerior Court ^ the Detendant pkaded Rtens per Defcent. The Jury
found AHets, but did not fay where. It was objefted that this being a
private Juri(di£tion, the Jury could not inquire of any thing out of it.
Sed non allocatur i lor the Inquiry is good enough, and Judgment was
affirm'd. Cro. J. 502. pi. 13. Mich. i6jac. B. R. in the Cafe of
Bourn v. Carrington, cites it as adjudged the fame Term, in the Cafe
of Clerk v. Broughton.
|o. 450. pi. 8. An Ad ton was brought in an Inferior Court ^ for Words fpoke vjithin
i. 3]rflanO ^j^g Jurifdidion, and alleg'd that by Reafon of the Words he loft Ciiftc-
h*Ell s''c ^"^^^ ^'^ ^ Place out of the Jurifdidioii. Upon Not guilty the Jury in the
held 'accord- Inlerior Court found him Guilty, and alfefs'd Damages loo Marks. It
ingly by 5 was moved that the Jurors ought not to have alfefs'd Damages for Lois oi
Juftices; Cullomers out of the Jurifdiction. And per Cur. The Jurors in a pri-
T^h^ld on- vate Jurifdifition have no Authority to inquire of any Matter out of the
tra. fame, but here the Allegation is only in refpeff of Da??iages, and for the In-
creafe ofthenty which they may inquire of in any Place whatfoever. Cro.
C. 570. pi. «. Hill. 15 Car. B. R. Ireland v. Lockwell.
(O. fj What
Trial. 381
(O. f ) What Things the Jury may find.
Matter ofFjhppel
I. HP f'^ ^ 3!"*^P ^"''i' fi"^ ^ Tenure by Eftoppel of the King, ailtl Br.Eftop-
I mz a ^-cncral a^cciiirt accotntittj to tije Cttoppeu 7 t). p=i. p> 58.
cites S. C.
2; Jf a Deed be deliver'd before that it bears Date, tljO' tljePatt? DC The Cafe
fdoup'Q to nlicc \u ^ct tijc 3uvp map finti it ; for tljcw arc tuiocii to TVm^'
fiiiD tl)e€;rutlj, antJ tljcrefotc fljairnot Ije ettopp^D*'' Co* 2. c?o.^ Sed be?r=
</Wj c«/tf, per Curiam refo!ti£0+ the Date of
the Bond
mide to him. But the Court refolvcd likcwife, that if the Eftoppel or Admittance be within the fame
Record in which Iflue is join'd, upon which the Jurors fhall give the Verdidb, there they cannot find
any Thing contrary to fuch Admittance, tho' it be not true; for tliey are charged ivithfiich Matters or.h
wherein the P.utics differ. 2 Rep. 4. b. Hill. 26 Eliz. C. B. S. C. and cites D. 147. a.
3. Jf a Collateral Warranty binds, and is of EfFeft, it UiapbC gltlEtt
ineijtocucc, ano fouiiD li!> tljc 3iurj)* (iL(i, lo. Scjuwur, 97. tj»
HCfOlDCD,
4. %Q tIjC JtirP may finlJ a Leafe for Years by Indenture bp ClfOp^ Jen'f- 2^4-
pel, aim ixfcr all tljc Special fatter to tlje Court, ano tlje Court ^•,4<^pT-
map aDiuoge accornins to tije @)pcciai fatter. Co, 4. Rawims, 53. ^^^^tch
Ecioiuco* 29 & 50"
Elii.B.R.—
S. P Mo. iSi. pi. 525. Trin. z6 Eliz. in James's Cafe Tho' the LefTor be concluded to fiy a"-ainft
the Indenture, yet the Jury is not ; but, according to their Oath, ought to try the Truth &c. ^And,;
iiS, 119. pi. 167. Pafch. 26 Eliz. in C^ie of Gewrt v. Sydenham.
5. JlSijerC a Collateral \\^arranty ttillbtntl, itiUCll ma? bC gi^Cll XW
CUiOcncc, anO fdnnn bp tljc 3iur}>* Co* 10. Scymonr^ 97. ii. jfoc
tijo' coiiateral ijaarrantp Doe0 not v,m a jaiflljt^ pet in lata it bar0
ann biiiu^ a Eigt)t»
6. The Jury cannot find a Thin^ contrary to that to ii'hich the Parties
are cjfopfd or bound. D. 147. a. pi. 73. Pafch. 4 & 5 P. &; M. in Cafe
ofVillersv. Beamont.
7. It was faid to have been adjudged, that the Jury mti/i take Notice S.C. cited
0/ Matter of EJiof.pel^ upon Pain of Attaint j But W ray J . faid, That this 4 Kep. 55.
Judgment was contrary to Law, becaufe the Jurors are Strangers to the^ „ "^p,.^9
Conclulion between the Parties, and are not ellopp'd as we judges are. in '^atP''
And Southcote J. affirm'd, and Catlyn Ch. J. faid nothing. 'Mo. 96. pi. luiB'sCafe,
238. Hill. 14 Eliz,. cites the Cafe of Pledall v. Pledall. ' as adjudged'
S Eliz. in
^lED?.ir0 Cale, That becaufe the Jury did not find a Leafe bv Indenture, which took its Operation
by Contlufion only, apprehending that they being fworn Ad Veritateni dicendam, ar.d that Eftoppels
conclude the Parties, but not Jurors, to fay the Truth, they were attainted, and had Judgment accord-
ingly. For the Juftices held, that the Intercft of the Land, as to the Parties and Privies, w.is in a man-
ner by fuch Conclufion bound; and noConclufion fliall be by furh liidenture after the Term ended as
Wray Ch. J. held ; and in fuch Cafe the Jury ought, if they will not find the Special Matter, and leave
it to the Judgment of the Law, to find at their Peril according to the Law ^ — S. C. cited by Hale
Ch. T- Pollexf. 6S. in Cafe of Weale v. Lower.
S.C cited Cro.E. 140. pi. 2. Trin. 51 Eliz. C B. in &)Utton'S: Cafe. And Walmfley held.That the
Jury being fworn Ad Veritatem dicendam, they fliall not find an Eftoppel ; and tliat the Jury having
Found the Matter at large, and the Truth appearing to the Court, they muft judge according to the
Truth of the Matter And Windham feem'd to agree that it fhall be adjudged according to the Truth
of the Matter ; and Periam faid, they would know the Opinion of the other Juftices ; but faid privily
there was no great Qjeftion in it.
A Jury upon \\\zGeniral Ifftte^ againft an Indenture fieivn to them in Evidence Ly ivay of Efioppsl, may '
find t^e Truth of the I\latter, and Che Court fliall judge accordingly. Jenk 261. pi. 6i.
5 E 8. Eftoppels
382
Trial.
8. Eltoppels which bind the Interell of the Land, As the taking a Leafe
of a Mans oivn Land by Deed indented^ and the like, being Specially
found by the Jury, tlie Court ought to judge according to the Special
Matter j for albeit, Eftoppels regularly mult be pleaded, and relied upon
by an apt Conclufion, and the Jury is fworn Ad Veritatem dicendam ;
yet when they find Veritatem Faft'i, they purfiie well their Oath, and
the Court ought to adjudge according to Law. Co. Litt. 227. a.
9. If one makes a Leafe for Tears by Indenture, and has nothing in the
Land^ but ajterivards piirchafes the Land, and aliens it, tho' the Leafe is
good againil the Lellbr and his Alienee by way of Pleading, and Ihall
bind them, yet the Jury may find the Truth, and the Court fliall ad-
judge it a void Leafe. Cro. C. pi. 2. Pafch. 4 Car. C. B. the 3d Refolu-
tion in the Cafe of Ifeham v. Morrice.
(P. f ) Verdi 61:. IFhat Things the Jury tnayfnd,
* Br.Vei-- I. TB Affife, if tlje Iffue be No Tort, No Diffeilln, tljepma? fiUD 3-
dift, pi 45- £ Condition which defeats a Franktenement, tl)0' It taaSi llOt plea'O
T^^r\ ^;7C5. 39 €♦ 3- 22. * 29 AIT. 4°- ^HjUCgeri : 31 M. 21. 33 m iS. 17
Foraswell ^ 20. %m tO JjC mVi^^ ■ ^I SIT, 28. 28 SIT. 48- CUtia*
as the Jurors r- r r 1 /-> j- • 1 • ■
may have Conufance of the Deed, they alio may as well have Lonuiance ot the Condition, which was
declared upon the Deed.
Litt. S. 566. 2. %\)Z fame latl) in other Aftions. 42 SIT. 6. SJUmittfl!*
In Affife it 3. So in WXz tijE 3urp map finti n Conoition to ncfeat a JFtaitk'
■wasfound tCUCUlCllt Of ILtlUQ, tho' HO Deed of it be Ihewn in Evidence. 21
that the nfr o
Plaintiff iriT >^"» ^°-
■C JT -I '\t
MpnCor.dition toitifeoffhis Son, upon Condition to find tie Feoffor Eftovers /tiid Living &c. and J. hifeoffed tie
Son and his Feme, and their Son ; and that therefore the Plaintiii who was X.\\ef.rjl Feoffor enter'd, and the
Son oujled him, and he brought JJJlfe ; -and a good Verdift of tile Condition, though it was not pleaded or
given in Evidence, and the PLiintift' rccover'd ; quod nota ; and the Iffue ivas upon Jointenancy, andtliey
found this, and alfo the Seifin and Dilfeifin, as they ought; and this they faid in the Form aforefaid.
Br. Verdi'ft, pi- 50. cites 21 Aff. 28.
Ellate upon Condition may be found by Verdift at large in Affife, and that the Plaintiff enter'd as Heir
ly the Condition, and the Entry adjudged good. But it was faid, that they ought to have Deed to prove
the Condition, and that he cannot plead the Eflate upon Condition^ without^ the Deed. Brooke makes a ^lare
thereof "J.-hen the Reve'-Jion is in him upon a Gift in 'Tail. And fo fee in Littleton, Tit. States, that this
may beVound by Verdict ; bat the Jury is not bound tofiid it, if no Deed be jhewn. Br. Verdicl:, pi. 44.
cites 33 Aff II.
[But] 3itt WXZ of a Rent, t\)t SHTlfe CattltOt find that it was upon
ition, tUtlCf^ tm fi"5 ^ DCCH Of tijC COllllitiOU, 33 M. 2.
Curia at5)utiijcn>
In Jffife the ^. So in Affife, a Confirmation in Fee to the Lellee for Years cait^
Jury faid j^^jj jjg fQimj, (g jjg ^ipflji COUHitlOn, if it was Hot by Deed. 17 M.
iS^fir^e 20. m\mt^^
leafed \o the Tenant for fears, and after confttm'ei to him in Fee, which was adjudg'd a Feoffment And fo
fee that the Jury was permitted to take Conufance of the Confirmation, and yet contra of a Releafe, tho*
this makes the Eftate ; therefore quxre Legem at this Day. Br. Verdia, pi. 7 5. cites S. C.
Hob. 72. pi. 6. 3|n Replevin lij) 3* affailtlt 15, B. avows the Taking as Commoner,
S7 And at \^zzmz tlje Idz^U Of tlje plaintiff mtz in tljc Coimnon Damage
the Ca?el f^afant in April, 1 1 Ja. aitti tl)C Plaintiffin Bar fiiys. That OtIC C. was
leifed
Br. Verdift, 4
pi. 64. cites Condi"
S.C
Irial.
•—■ ri|TmV.ifc.tM
383
feifed Of tIjC LauU tO tDl)iCi) |)C !)aD Cominoa, and demifed it to him ^Nota, that
the 26 ot March 1 1 Ja. to have Irom Lady-Day before for a Year ; aitll 'P "^'t^ *"^''^
tljC Avowant traverfes the LeafeModo& Forma; Upon UJljIClj JflltC iSSmcntofLaw
)0(lt'tl, nnti Evidence is given That C. made a Leale to the Plaintirt" 25 upon the
March 11 |a. for one Year then next enfuing. '^{)0' tljtlS llS UOt tljE ^^'"'^''^'^ '«
rameleafe toljiclj tljc piatntiff {jais pleanen, bccaiifc it commcnccn '" =* '"'""^'^
iipoit tije 25tl) i:>iWy ano tfje otm commenceu tlje Dap nejct after ; va-dia-l
fo tijat t()c Jiurj) map, upon tm <Bmma, finu ntitmp againft ttjc mo s^..
33laintiff, tljat Bon Hinnfit cpotio ^ ifoima, nnn cannot fafclp finu pi uss.
a ij?cncral a:>crnta: tot tlje plaintiff, yet tljep map fino it epeciallP.? ,^ f^/
IpObaiD'jgi iRepOUSi, iqo. mmtm Pope and Skiun^,-. Slain!
tiff; and a
Dhcrjrty was taken where the Ltafe is pleaded as here by way of Jufiificatkr!, and where it is pleaded
by way of Title ; for tlie Findinn; is fufficient to excufe the Tort fuppoied by him who diftrains. —
Brownl. 177. 4&0pC b. 5>l)Urm, S. C. accordingly. Jenk. 2y6. pi. 46.
7. But m t\M Cafe tfjC JUtP could not have found a Leafe made by r\>00
another who had Right olComliion, fot it \^ OUt Of tljC JflUC \\\ ^at= ^°^- ^^'■
m ano Jfotiin Ipobatt'is Reports loo. h^TJT^
87-
8. Jn an Affife of a Rent, if tljC '^Tenant pleads to the A/Tife, tlje Br. Verdiar,
JUrP map fintl tljat tljC Kent lUaS granted with Attornment, tIjO' nO g'v'.9, cites
g)pcl:taltP m^ fljciun. 2h aif. 3- 1)? 'S^fjorpe* ^d];; ^;^^
qu^re.
9. Jn AlTife, if tOC Tenant upon the General Iffue flievvs in Evidence Contra Br
the Releafe of the Plaintirt; tije 3iUrp Uia^ finO it tljO' it tUaiS nOt J"'-°^s, p].'
pieancD, Contra 26 m* 2. jjp g)i}arri, 1^. cites i^
In Attaint it
was declared for Law, that where Feoffment is given in Evidence in Jjpfe and is not pleaded, the Jury
may take Conuiance, becaufe the ^'H ivcs done upn the Land by the Livery ; but Contra of Reieafe
f )r this ought to be pleaded, and if it be not pleaded it cannot be given in Evidence. Br. General IlFue
pi. 3-. cites 45 Afl" 41. ■ *
In Writ of Right, the Jurors of the Grand AfTife may find Releafe which gives the Right, but net Colla-
teral JV.irranty, for this is a Bar, and extingtiifies the ilight but does not give any Right ; Contra of Re-
leafe. And (o it feems thiit Things, which ought to be pleaded as the collateral Warranty &c. cannot be
found by Jurors ; Contra of that •which may be omitted in Pleadings, and may be given in Evidence ihofc
they may find by Verdidt. Br. Verdicl, pi. S6. cites 7 H. 6. and Fitzh. AIT. 559.
In Affife, the Jury may find a Rcle.ifc, tho' it be not given in Evidence, per Anderfbn Ch. J. Ow,
06. Hill. 5 1 Eliz. in Sutton's Cafe.
10. In Affife, the T'ei/afit pleads Nnl tort, and the Plaintiff gave in
Evidetjce that the Defendant leafed to him and to his Feme for Term oi their
Li-ves, and the Feme died ; and the j^///fe faid that the Defendant leafed to
the Plaintiff' alone for 20 Tears, and after by Deed confimfd to them for
Term ot their Lives, rendring 20 1. per Annum, and after the Plaintiff'
ivaived the Land, and retook his Chatties, and the Defendant entred with-
out the Confent of the Plaintiff'^ --joho waived it for the Greatnefs of the Rent,
and that the Land was worth 20 s. per Annum over and above the 20 /. and
that the Defendant held it Jor 4 2 cars to the Damage tf^l. and that the
Plaintitf recover'd ; Quod nota. And the Defendant was imprifon'd tor
Dilfeilin againfh his own Deed i and fo fje the contrary E.vidence given by
the Plaintiff' pall not prejudice him where the AJJife found another 'Title. Br,
Affife, pi. 136. cites 8 Alf. 20.
11. Verdict in Atfife is good which finds a Divorce ^ the Reafon feems It was a-
to be inafinuch as this is not Matter of Record but Matter in FaS, of which ^^^^^ ^°'"
they may take Couufance. Br. Verdia, pi. 29. cites 19 Alf 2. Taw/t^.^/-
fife ivho give
VerdiS at targe are ?iot bound to take Conufance of a Divorce, nor they cannot by common Intendment
take Conufance of it, and they Ihall not be charged in Attaint for their not taking Conuiance thereof!
But per Trem.iinc, they may cake thereof Conulince if they will, but they are nor bouud to do it. Br.
Jurors,
3%
Trial.
Jttrors, pi. 5. cites 7 H. 4. 24— Br. Deraignment, pi. 2. cites S. C. Br. Enqueft, pi. 50. cites
7 H. 4. 23. S. C.
Br. AfiTife, 12. In Jffife, the. Baron and Feme pleaded Record and failed of it at the
pi. z(i6. j)^iy and the Feme came and was received, and pleaded to the Afftfe^ and it
cites S. C. ^^g found that the Plaintiff' was feifed and dtjfeifed, but no DiJJ'eifor named
in the Writ ; and therefore the Writ was abated by Award, tho' it was
not pleaded. Er. Verdift, pi. 36. cites 26 AfT, 35.
13. In yiffife, it was found that Land was given in Tail, and the Tenant
in Tail teajedto J. N.jor Termof 7'ears, and made to the Tenant a Charter
of Feojfmentupon Condition, that if he he oiifted within the Term that he pall-
have Fee, and that he pall hold over the Term if he will, tut that this pall
he at the iiill of the Leffbr and his Heirs ^ the JJonee died without Iff lie i the
Term incurred ; he in Remainder entred and was oufted by the Defendant ;
but nothing of the Feoffment or of the Condition was given in Evidence,
which v/as challenged, inafmuch as the Jury took Conufance of the
Feoliment and Condition, and yet the Plaintiff recover'd by Award ;
for the Manner of the Livery, viz. the Condition fell in their Conufance
as well as the Feoffment ^ Quod nota. Br. Verdift, pi. 43. cites 29
Aff. 40.
14. Affife by Baron and Feme quod diffeilivit eos ; the Defendant faid
that he himf elf was feifed in tee and leafed to B.for Life, who alien' d tot/. .
Feme and her ffrfr Baron ; tlie Plaintiff's jnade other Title, upon which
■ they were at IJhe out of the Point cf JJJife, viz. that the Leliee had Fee.
And fund for the PLmitiffs, and that the Feme was feifed and dijjeifedb.-
fore the Effoiifals, and that the Baron never had Seifui. Hache demanded
Judgment of the Writ, which is Quod DiPciJivit cos, where the Baron
was not feifed. Et non Allocatur ; but Seilin was awarded to the Plain-
tiffj for an Oiifter was confejfcd by the Delendant in his Plea beibre, and
therefore they ought not to have inquired of the Seilin and Dilieilin,
and fo the Verdifil void. Br. Affife, pi. 369. [368] cites 44 Aff. 6.
Br. Faits, pi. i j;. A Jury may take Conufance of a Deed without Date and made be-
55 cites y^j,g cf^jjji; of Memory, and find it if they will ^ but they arc not bound to
Br. 'm^, do it. Br. Jurors, pi. 19 cites 39 H.'6. 8.
pl. 4rt.
cites S. C. per Afliton.
16. Scire facias againft the Parfon of B. in the County of M. of Arrears
of Annuity recover'd &c. the Defendant faid, that before'the Writ pure ha fed
at London he had rcfignd his Benefice into the Hands of J. Bipop of L. Or-
dinary of the Church, which he accepted. Judgment of the Writ. Per
Pigot, this is no Plea, and only Argument ; tor he does not traverfe that
he is not Parfon, and he might be Parfon after. And per Jenny, the fame
of a Divorce, for of fuch Things Lay-Jurors are not bound to take No-
tice, for they are fpiritaal ; And per Cur. he Iball anfwer direftly, and
not Argumentivc, as here, and yet the Jurors may take Notice. And
if it be given in Evidence, they ought to take Notice ^ and fo in other
like Cales not local. Br. Barre, pl. 81. cites 7 E. 4. 16.
17. The Jury may find that which cannot be pleaded. As in Trcfpafs upon
Not Guilty the Jury inay find that the Defendant leafed Lands for Life
upon Condition, and entred for the Condition broken ; though this cannot
be pleaded without Deed, yet the Jury may find it. Trial per Pais
157. cites Litt. Seel. 366.
18. In giving Evidence for finding an Office after the Death of Lord
Brook, it was doubted if an Outlawry reverfcd may be given in Evidence
and tbund in Office by the Jury i and it was refolved by 3 Juftices Ajfif-
tant, that it may be found by the Jury that there was fuch Outlawry,
and that it was afterwards reverfed, tho'' it cannot be pleaded. D. 228.
Marg. pl. 45. cites P. 5 Car. in the Court of \^'ards upon a Grant. Ld.
Brook V. Varney.
19. The
Trial.
19. The Jury can't determine the Intention in Deeds or lajl Wills, be-
caufe the Conllru£lion of thefe is to be govern'd by the Rules of Law,
and fo belongs to the Court ; but what is or is not an Intent to do a thing
within an Ait of Parliament is fit for their Determination, becaufe fuch
Intent is to be collefted from Fafts and Circumitances, of which they
are the proper Judges; per Raymond Ch. J. Gibb. 262. Palch. 4 Geo. 2.
B. R. in Cafe of the King v. Crooke.
%^
(Qi ^) ^^erdi6i:. What Thing the Jury may find„
Matter of Record.
i.rTpJp(|J Jlirj) cannot find a Matter of Record. 7 |)» 4, Theycan-
I ^2 not find
-■- ^* Matter of
Record in their Circiiir.ftances. Br. Monftrsns, pi. 68. cites 24 E. 5. 41J. Br. Baillie, pi. ip. cites
14 AIT. 9. that a Vcrdid cannot find Matter of Record.
Kul tiel Record is not to be tried by Jury, but upon the General IfTuc &c. they may find a Record.
Trial per Pais 157.
If a Record be lojl, it may be proved to a Jury by Teftimony as the Decree in H. 8. Time; for Tithe
in London is lolt, yet ic has been often allow'd that there was one; per Cur. Vent. 257. Pafch. 26 Car.
2 in an Anonymous Cafe.
2. Jf an Attainder of Felony ht gllJCn in ClltUcnCC tDljiCi) tiaS nOt Br. Affife, pi.
pIcaQcQ, tlje 31ur») cannot fino it, if it lie not fet forth Sub pede ligiiii. ^}9- U5S)
26 air. 2. <aDHitigcD> %s1«tthe
Reafun feems
to be becaufe Matter of Record cannot be found by Verdict at large • Br. Verdift, pi. ;^. cites
S. C ■ . — In Aflife, the Verditl found an Jttainder, but the Court took it ill. Brown's
Anal. 12.
3. a Fine or Recovery ma? 6C fOUnU bp 31lirj), without fhewing of The Jury
it under Seal. COm. Newis & Sco. 410. b* 41 1. "P°" ^'^'^=
cannot hnd
Recovery. Er. Juror.?, pi. 59. cites 14 E. 5. 9 But Br. Verdift, pi. 41. cites 28 Afl" 17. That
-^£}fi was taken in Point of Jjjjf'y and jound that C. the Defendant had recovered againfi E. in Cut in F/ta,
buc that E. died fending the JP rit, and after C. was put in Seijin by the Recovery, and was feifed, upon whm
J. Heir of E. entered, and he cufied him ; and A. brought J£ife, and adjudf^ed there, that the Verdift is
good to find the Recovery, which is Matter of Record ; Quod nota. And Br. Jurors, pi. 59. fays
fee Fitzh. Exchange l. that Jurovs fliall not be compell'd to find Fine, Recovery, or other Matter of Re-
cord, hut they may find it if they will. And Brown's Anal 12. fays, that a Recovery has been found
by Verdidt, and a Fine not pleaded or given in Evidence fub pede Sigilli. And a Note of a Fine, or a
Recovery, without the Record itfelf fub pede Sigilli, or the Number-roll, may be given in Evidence if
the Jury will accept of it ; for thefe ought either to be pleaded, and then they are Part of the Record
w hich is to be tried, or elfc they ought to be given in Evidence fub pede Sigilli ; and then th^ Jury are
bound to take Cognizance of them.
The Jury of themfelves may find Matters of Record if they will, tho' fiich are not given in Evi-
dence ; and therefore a Fine or Common Recovery may be given in Evidence, without jhewing it under the
Great Seal, and without vouching the Roll of the Recovery ; for the Jury may find them if they will ;
but perhaps they are not compellable to find them upon Pain of Attaint, unlefs ihewn under Seal. Fin.
Law, Lib. 5. cap. i. pag. 5S. b. S. P. Heath's Max. 34, See pi. 5.
4. '2Clje 3|Utp map fiim a Divorce UjIJICI) iSi of Record in the Spiritual Such Spiri-
Court; for it i.s notn EecorH b? our Law. Contra 7 IP»4- ^i-^^t^^^'°'
Records.
Br. Vevdift, pi. 29. cites 19 Aff 2.
5 F 5. m)Z
386
Trial.
is. p. Be- s- '^Os 3!urj) cannot fints a Fine. 7 p, 4. 24. b.
Matt-r of Record. Br. Jurors, pi. 5. cites 45 E. 5. 17. Per Haftings. Ifi Jjpfe hy an Infant,
the Tenant pleaded a Fine in Bar ; and becaule he does not fliew it fub pede Sigilli, nor any Part of
it the AITife was awarded, and that for this Caufe only, at it feems, and not becaule the Plaintitf is an
Infant to inquire of the Circumftanccs. Br. Monfirans, pi 68. cites 24 E. 5. 46. But Br. Ver-
dict pi. "S. cites 26 Aff. 50. That in Jjpfe the Jury found a Fine upon Conufame de Droit come ceo &c. to
%S •who ffjanted a7id render d it to the Feme of the Plaintiff in^7ail, and that pe i^as feifed and dijfeifed ;
by which (lie recover'd. Brook fays, he wonders that the Verdift ftiould meddle with Matter of Re-
cord which was not pleaded or given in Evidence fub pede Sigilli ; and fays Quaere at this Day.
Error was 6. %\)Z 3IUC)) CanUOt finU againlt a Matter of Record. 1 1 5)» 6. 42.
brought ufon
JBion of Maintenance &c. and it was ajfign'd for Error, that the Feme Kho was Party was dead fuch a
Day before jfiid^ment ; and the others econtra , and the Jury found thatjlie died the Day which the Plaintiff
fiippofed ; and it v/as found by Record oj Kif Prius, that the Feme appeared in Perfon at the Ni/l Prius, where
it was fiippofed that Jhe died 4 Days before the Nifi Prius, and the tirfl: Record and Iflue ; and therefore
becaufe the Vcrdift is contrary to the Record, the Record fhall ftand, by all the Juftices, and the I'er-
diB is only Jeofail, and nothing to the Purpofe. And fo fee, that where a Verdict is merely contrary
to Matter "of Record, the Verdict is void. And fo of Confeffion. Br. Veididt, pi. 96. cites n
H. 6. 42.
Br. Riots, ty. If a Jury.yf«^ Outlawry, or Writ de mn Moleflando, or other Matter
pi. 2. cites cf Record, it is void ■■, Quod nota bene. Br. Verdift, pi. 52. cites 3 H.
Br.ji^.^ 7. I. and 2 H. 4. 7 H. 4. 23. accordingly.
pi. ;2. cites
5. C S P. Brown's Anal. 12. S. P. of Inqueft of Office &c. But their Conufance is of Mat-
ters in Faft, Br. Jurors, pi. 39. cites 5 H. 7. 10. and 2 H. 4. 5. accordingly. The Efcheator by
Inquifition fliall not take Notice of /{eror/f o/<rn Ow*/.iii.'i7 ; Qiia;re if the Jurors may. Br. Jurors, pi.
10. cites 2 H. 4. 5. Br. Olfice devant, pi 10. cites S. C.
Heath's 8. It is doubted whether the Jury may find a private Aii of Parliament
Max. 94. not deliver d 10 them ;;/ EwV/w/fe exemplified, or otherwife. D, 239.5.
cites S.C. pi_ _^i_ Xrin. 7 Eliz,. in Cafeof Hodgkins v. Tucker.
pfzp^jS (R- 0 What Thing the Jury may find. [Not agnwfi
^'- ths Co}ifeJJwn or Agrtemait ofths Partks.'\
Trials per i. npjl)(ij; 31urj) 10 UOt tO UtCllUre of that which is agreed by the Par-
Pais 2S4. J^ \ies. 47(£,3- i9- i8e»3.53-l)* 21 (£» 3. 35, 28 ^ff*
T/ie^^T" ^7- per jfmcijtien. 28 afl; 34- 29 ix 8. ID. 32- in ?• Co»2. God-
cannot find dard 4. Dt
contrary to • r r-i i
the Thing admitted by the Parties in the fame Record. Arg. Palm. 509. Hill 5 Car. in Cafeof Dicker
V. MoUand. [And the Law is the fame, tho' it be in an After-aftion, as where] in ^are Impedit
th&'Plamnk declared that the Church was void by Rejignation of P. and Judgment was given, whereas in
7ruth P. did not rejlgn, hut died Pendente lite, and Lapfe falling to the Jrchhijhop, he prefented At the
former Defendant, again. AL made a Leafe of his Glebe ; and in EjeBment brought by the Lejfee, the Jury
found that the Church became void by the Death of P. and that Lapfe incurr'd to the Bifliop, who collated
M. and Judgment was given for his Lcffee. The Queftion was, whether the Jury might find Matter
contrary to that which was confcfs'd by the Parties themfelves and found by Verdift, and Judgment
thereupon in the firft A£tion ; for there it was by the Refignation of P. but now it is found to be by
the Death of P. It was argued that they cannot; for when any Thing is confefs'd by the Party, and
admitted in pleading, and pafs'd by Nient dedire, they cannot find contrary neither in the fame nor in
any other Aftion ; and cites i 5 All. 94. Per Hill. Verdid 27. - E. 3. 51. 2S Afi: 54. 51 Aff. 12. The
Cafes were agreed by the other Side, but infifted that the Confeffion was falfe, and that the Title of the
Defendant is now a New Title. But the whole Court agreed, that the Jury cannot find for him, or
any
Trial.
any claiming under him. Palm. 19. Mich. 17 Jac. B. R. in Error out of C. B. Sir H. Wallop's Cafe,
. Brownl. 162. SUaflop t). S^UlTfp, S. C. but S. P. does not appear.' 2 Brownl. 45. Hill. 3
Jac. C. B. S. C. but S. P. does not appear.
2. JftU Dower tIjC Tenant fays that he has always been ready tO tZlV Trial per
Her DoiUCr, anH tlje Iffue is whether the Baron died feifed, tt)C 3ilirp ?»'«. 184,
is not to imilUrC U)l)Ctl)Ci: tlje 15(11*011 ma^ iciied of an Ellate dowable i^^^'*^)
foe ti)i0 10 COnfCfiS Q. 1 1 J). 4- 40- U,
3- 3 1! SacrtOU of l©aflC, if tljC DCfCnUant does not deny the Wafte, Trials per
but pleads another Matter, fcUlCCt, UlljeiX tljC tBaSZ IS atTlgll'D III Sl» Pais 284
aim 15. that there is no fuch Vill callCD Od. HlXXt tijlS fOtlUO agaillft '^^^^^
i)im, tije Siurp is not to inciutrc if tijc i©a(le be Qoue, oc not, not tolje^
t&ec tijE l^Iaintitfljas anp LanD UJijcre tljc J©afte isalTwn'D, but
ouRljt to fftue Damages accocnino; to tije Comtfance of tlje partp,
tDo' no mafit be none* 9 P* 6. 66. lu cinna*
4. 3!n Aflife, if tfje Detendant pleads by Bailee, that the Demandant
has taken the Profits of Parcel pending the Writ i auQ if It bZ fOUItD f C*
upon uiliicl) tijc Ji^laintiff prat's tljc aflifCi tije 31utp cannot fintJ that
the Demandant himfelf was foiled oi this Parcel at the Time of the Writ
purchafed ; for it is aocainff tOe aKtccment of tlje ISarties ; foe De=
teiioant bas acl^noiulclrijeri bimiflf to be tenant at tijis Cime. Con^
trazi (£. 3.34. b, 35. annifQCCi. CBiit iiiiiere tuljctljet it be ao^
juDijcn upon tbis)
5. Jn Alhle, if Uje Tenant makes Title to a Common in tbe LaiiU,
and that he put in his Beafts to pafture ttjC Laill!, tO IU|)1C!) tfjC Plain-
tiff fiys that it is hisfeveral, tCitljOUt tljat fC» 3f tijC lUllUCil finGS tfjat
tbe jDefcnnant bas not anp Common tbeie, but tbat it is bis %cm-
ral, tljCP cannot finO that the Defendant did not pafture the Place
where (kc. without Leave, iuafmucb as tijc DcfeuBant bas confcfs'D
it bj) Pea* 27 3(r. 30- aujubgen*
6. Jn Affife, if tbe Tenant pleads in Bar by Conufance of an Oufter le
Maine, to Mjicb tlje li^Iaiutitf mnbcs Citle, if biS Citle be founn,
tl}t JnqUCit cannot inquire whether the Plaintiff was feifed i for tljIS
is agrecn bp ti)z parties ux pleantng. 28 m. 34-
7. 'STbe f'Hie Law, if tbe Tenant pleads firlt in Bar, and after to the
Affife bv Bailee. 28^1^ 34-
8. €i)Z fame £aU), if after fuch Plea flS bCfOtC, in \Xii)Kl) an Oufler
is acknowledged, the Affife be taken by Default. 28 ^fl"»34.
9- 3in Action of Debt tor Rent, if Plaintiff counts of a Demife for
Years of 26 Acres Of MWO, rcnCrillg ECUt, tO UlblCb tbe Defen-
dant fays that the Plaintiif leafed the faid 26 Acres, and 4 more, ren-
dring the laid Rent, iDltbOUt tbat tbat bC OeUlifCtl UjC 26 ^CrCS Onl?,
Upon Mjicb tbey are at 3iTue ; tbe 3urp cannot finn that he leafed un-
der 26 Acres, bccaule It IS agrcetJ bp tije parties tbat 26 ujereleafctii
antJ tbe fl:iueffian is Uiljctber 4 more were icafcti, Dubitatur, 29 p,
8. 2)« 32. b> 7-
10. jn an miction of Debt upon obligation, tubcrcof tbe Cont3itian AHen s^
is to perform the Award of J. S. if Defendant pleads That J. S. made ^- C' ^".'^.
no Award, tO MjiCb Plaintiff replies That J. S. made an Award, and Bacontnd^
lliews it at large ; tO tUljiCb Defendant rejoins That |. S. did not make Roll, that
any Award Modo & Forma, aS tbe PlaUltltf baS allttsCtl ; UpOU UiljICb "p°" ^^is
Iffue is )OinClI. Clje ^Itri? cannot "find in a Special Verditt anv Mat- ^'l"= the
ter Dehors to make the Award void in Law, IfflbiCb 50eS UOt appear in notTnquil-e
tbe atuarD ttfclf i as lubere tlje auiam is, tbat one fl)aU mahe a He= of the sub-
leafe of all scatters tlU tbe ift Dap of Q5ai), tlje 3urp cannot finn ™in'>on. te-
tbat be, to UJbom tljc Eeleafc uias to be matie, iiias bounti to tlje ^f%'W
otber in an Cbliijaticn, QateB i Spril before, to perform tbe StuarD, ^he^'piea-
ano fo It njoulu relcafc tljis ©bltgatlon, ann fa tbe aiuaru tjoi3 ; for Trials per
tijc ^ubi^isfl'ion luas aamtttcB, anti aiTrccB bp Dcfcntiaiit in bis piea p-^'s. 2S4.
I]] ^^^- i^i^-
q88
Trial.
inQ5ar, U'ljcn ijc picaucD Nullum tecic Arbitrium ; niiQ alfo notljing
i^ in 3iiuc, hm isijetyer tijc arbitrator niaiie fuel) aiuarti in Jfact as
ig alieiTeri, ano nor upon tlje ^DaUUitp of ttje ainaro in ipoint of Lata
Up anp'il^attcr De Ijors ttje atuarti ; fdr if t)e Ijan alicg'ti tljig cpat^
tcr 111 i)i3 Kc)oiuQcr, it uioulo be contrarj? to ijis iS^lca in QSar, ana
a Departure ; anti if it fijoulo be a Departure, tlje Jiurp cannot fina
It, becaiue it is out of tbeir 3iffue, anti tiji^i Sifue 10 ail one as if fte
l)at! plcaceu Scion fecit aiiriuoo tale iirbitrtum il^oQo $ Jf orma, tt)o'
It tejas fo pleaDcD fjcre to iiial^c a Dincrfitp. ^icfj* 24 car, 15, J3i*
tietiueen Kunniton and Jones, aD)Ul5(i,cti upou a ^pcctal iDerHift* 3in'
tiatuv a3i£t)/23 Car, i\0t> 5^1, 'i5ut if ijc mouso i)a\3e aineQ !)im=
fclf bp ttjig Scatter, Ijc ougljt to !ja\je plcaoeD all tljis Blatter in W
piea m %»x, aun not to \mz fairj Cljat ijc BiB not nial^e anpiamarlii
for it IS a Departure m tjis EeiGuuicr to acluioiDteQf^e an atuarD,
but tijat It ujas \301n in jLaiu, bp reafon of auottjcr Scatter uiljico
noes not appear in tlje atuatQ,
4Le. 5^ II. In Action by P. againit C. he pleaded That A. pojfcffed of a Leafe
pi 141. 31o- for Years, dcvifcd the fame to his Wife jcr her Wtdowhovdj and made her
Ca"I°s'c ^"^ ^ ^" Execiitcrs ; that pe granted to B. and that E. devifed it to C. the
in the lame JDefendant. The Fhinziff replied. That C. granted the Term to hi^n, upon
Words. which they were -dt lifue i and the Queltion now was, IfC. [P.J againit
his own pleading might give in Evidence, That C. did not grant ; tor if
the Gift by the Wife to B. was void, and he had the Term as Executor,
then he could not devife it. And P. having alfo fee forth, That C.
granted it by Indenture to P. it was doubted it, againit that Indenture,
he might give in Evidence fuch Special Matter^ and whether, if the Par-
ty Ihali be concluded, the Jury alfo ihall be concluded Ad dicendam
Veritatem ? Popham and Egerton held, that as well the Jurors as the
Parties are concluded by the Contelfion of the Parties in the Record;
for here C. contelfes, that B. devifed to him ; Virtute cujus, he was poC-
fcfs'd. To which it was fiid, that it is true that C. was poliefs'd ^ but
it is further faid, that C. granted it to P. and fo the Interelt of C. is con-
fefs'd on both Sides, and theretbre the Jury fhall not be received to fay
the contrary. But the Opinion of Man wood Ch. Baron was. That if the
Parties do admit a Thing ptr nient Dedire, the Jury is not bound by it ;
but where upon Pleading a Special Matter is contefs'd, there the Jury
Ihall be bound by it. And afterwards the lillie was tound againft C. the
Defendant. 3 Le. 209. pi. 272. Trin. 30 Eliz. in the Exchequer, Para-
mour V. Robinfon.
S. C. cited 12. In Replevin the Defendant made Conttfance as Bailiff to Sir T. L.
^r^'^^y^-for Damage-feafant, and derives a Title from Sir \V. L. to Sir T". L. in Fee.
in Cafe'^ff ^^^ Plaintitf /-t'/)/;fj, and confejfes the Se'tfin in Sir W.L. as alleged; hut that
Tonkin v. Sir IV. L. being fo feifcd, i Dec. 44 Eliz. tnfeoff'd Sir T. L. in Fee, by Force
Croker. iv hereof he was fcifed, and put in his Bcajls, abfqiie hoc that Sir JV. L. bar-
gained and fold to Sir T. L. as alleged. The Defendant join'd IlFue upon
this. And it was agreed by ail the Jultices, that notwithltanding this
Ad million of the Parties is an Eltoppel by the Pleading, yet the Plain-
tiff as well as the Defendant were admitted to give other Evidence
againit their own Pleading, viz. That Sir W . L. was not feifcd, and fo
nothing pafs'd by the Bargain and Sale. And where in the mean Con-
veyances to Sir VV. L. it was admitted in the Pleading, That fuch an
one had an Eitate by Dilfeilin, they were allow'd to give other Evidence
that fuch Perfon had the PolfelFion by Acceptance of a Surrender of the
Eflate to him. And all the Juftices agreed, that the Jury thall not be
concluded by the Pleading of the Parties, inafmuch as they are fworn
to fpeak the Truth. 2 Brownl. 149, 150. Pafch. 10 Jac. C. B. Higgens
V. Biddle.
13. In Scire Facias againji J. S. as Heir to his Father, ti^on a Recogni-
zance by his Father, he pleaded Riens per Defcent. The J ury found Af-
fets
Trial. 389
fets in Shroppire. The Plaintiff had Execution. In an EjeSfment brought
a'ninfi the Plaintiff in the Sci. Fa. the Jury found that the Land taken in
Execution defccnded to 'J. S. in Tail. This Finding was adjudged void,
becaufe contrary to what was found and contels'd before in the Sci. Fa.
againii: him ; and Leafe was made to [by] him after the Sci. Fa. and
therefore he was concluded Palm. 20. in Sir !))♦ i©aUop'|S CafC, cited
and agreed as 13 Jac. B. R. Crawley's Cafe.
14. In Replevin the Defendant fet Jorth, That the Plaintiff held the Lands
by Fealty., and the Rent of 12 s. .\d. and an Her lot i3c. upon every Aliena-
tion without Notice ; and fb juititied the Taking tor an Heriot. The
Plaintiff conjeffes the Tenure by Fealty, and 12 s. ^d Rent, but denies the
Heriot to be due upon every Alien.ition. A Special Verdift found the
Tenure to be by Fealty, and the Rent of ■} s. id. and an Heriot, payable upon
every Alienation ivitb or without Notice. It was objefted, that here was
a Variance between the Avowry and the Finding ; for one was for the
Rentof I2S. 4d. and the Jury find it to be 3 s. id. But both Parties
ha\ing agreed in the Pleading that the Rent was 12 s. 4d. the Court
were all of Opinion, that Judgment be given iov the Defendant ; for as
to what is agreed in Pleading, tho' the Jury find otherwife, the Court
is not to regard it ; and here the Subftance of the Ilfue, as to that of the
Heriot, is well found for the Defendant. 2 Mod. 4. Hill. 26 «Sc 27 Car.
2. C. B. Wilcox V. Sir F. Sicipwith.
15. In Aftion on the Cafe againfl: the Sheriff /or an Ffcape, the Plain- 2 Jo. 149.
iiS declared that the Defendant arrefied L. at the Plaintiff's Suit, by a Lati- ^^'^•^^ 5>
tat fued out 21 Jan. &c. The }\xxy found, that it bore Tejie 28 November s^[} \^ ^'
before; but in Truth was taken out zi January following. It was objefted, inc^iy
that by the Law it mull be faid to be taken out when theTefte is, and Skin. 32. pi,
that where the Parties in Pleading have agreed a Point certain, the fury 9- S. C. ac-
is ellopp'd to find the contrary. Pemberton Ch. J. laid, the Courfe of '^°"^'"S'y-
the Court is to tefte Latitats taken out in the Vacation, as of the Term
preceding, and he might have declared of a Latitat fued out 21 Jan.
and telted 2S December; and if fo, furely the Jury may find the whole
Matter, and there is Veritas Legis and Veritas Fa6li ; and f^ Judgment
for the Plaintiif Vent. 362. Hill. 33 & 34 Car. 2. B. R. Walburgh v.
Saltonitall.
Fol. 69;.
Sec (T, i)
( S. f ) Verdict. How the Jury may jind the Verdict:.
And ijohat Jhcill be intended. [Not by Argument ^ but
diredly. ] pr4'
1. TiF tlje 3!(rUC be Whether where a Copyhold is granted to 3 for the Trials pe
X Lives of 2, he who dies feifed &c. ought to pay a Heriot by the Pa'^, ^§5
Cuftom Of tl)e ^flnoc Cime out of 9^m $c» nnn tlje 3!urp find that ^^" ■'
there never was granted fuch Eftate within the Manor; tljlS 10 ItOt lOCU
fOUnD, bCCaUfC it is only an Argument tijat HO IpetlOt OUgijt tO bC patH
bp tlje Cutfom ; but tljej) ougljt to fino it mccaip» ^iclj. 15 M*
"liJ, E» betUlCCn Ven and Howell, aUjUOgeO*
2. So if tljC jlfllie be whether, by theCultom of the Manor, a Copy-
hold may be granted to 3 for the Lives of 2, tUlD tljCp filltl that by the
Cullom it mav be granted for 3 Lives ; tDiS 10 ItOt \W\[ tiJUUO, becaUfC
it is but bp an arncuineiit, tljat iuafmucl) as a greater collate map be
gcantcn, tijis iuDuij is a icfs ecttatc map be gtanteo, tl^icfj. 15 :Ja.
5 c. " 05. E.
390
Trial.
15, E. ^'w and Howell, 011)115^0. ^\\\^ a iieiu ^tmz S(mm
gcanteDv
Trials per 3. So tf tljC JITUC faC Whether, by the Cuftom of the Manor, a Copy-
Pais, 2S6 hojd njav be granted in Tail, flUU tIjC lUr? find that it may be granted
(2, 7- 27^) in Fee ; tOi0 10 iiot i^ooti, hztm{t It !S oiilp bp i^rgiiment #iclj. i?
2ii» Q3» E» ill ?^«''j Cafe, Up jpougljton.
Trials per 4 Jit Debt upon Obligation, if Detendant fays that he was a JLaP:
Pais, (2S5) ntait, anil not letter'd, and it was read to him in lieu of Acquittance,
^"- and lo not his Deed, ailtl t!)E JU^P find that the Defendant knew well
that it was an Obligation, and that he was obliged in the fame Sum, and
that it was his Will to be fo obliged ; t\M 10 HCt a gQOH aDerHlCt, l3C=
canfc tijcp ougljt ta finn prccifdp tuljctljci* it be ()i0 Dc£D or not* 3
|)» 6. i)crOia; 3- PccCunnuu
Trials per 5. ju au 9aioii ol' Debt for 20 1, if t|)c DcfcnUaut pleaii0 £iuon
Pais, 185. fo|^(t f<j5> 20 1. ailD tljC JITUC 10 Whether he paid it or not, antJ tlje
Roll Rep ^erc^'ct is that he owes the 20 1. tl)i0 IS llOt pOO, bCCaUfe ft 10 bUt bP
257. pi. 26, ^rffunient* 9^. 13 3^a. 05. E. bctuieen Bangh and Phnup, aDjubu'D
S.C. accord- Ul HBtlt Of CttOt*
ingly ; and
fo a Judgment given in an inferior Court was reverfed. S. C. cited by Vaughan Ch. J. "\'augh.
7 J. in the Cafe ofRowe v. Huntington.
6. In a C)iiai-e hiipedit it was refolved and agreed by all upon Evidence
at Bar, that if a Special Verdict finds an hijlnimcnt under the Seal of the
Btpop, upon which was indorfcd. That the Rehgnation was acknowledged
and accepted by the Bilhop, yet that is ho alfolute Finding that it was a
Reiignation in Facto. Koy 147. Smith v. Foaves.
7. If the Jury in the Verdift take upon them to colle£f the Contents of
a Deed, and alfo by the fame Verdict find the Deed in H^ec Verba, the
Court is not to regard their Colleftion, but the Deed itfelf Vaugh. 77,
in Cafe of Rowe v. Huntington.
(T. f ) How the Jury may find the Verdi^i.
Uo .;;!. pi. I. T JO an Affife, if tlje 3lUtp fintl that the Defendant is Tenant, and
<;o4.g!3oun. l^ that he dilleifed the Flaintitf, t!jI0 10 ftlffiCICnt, lUItljOUt fiUDing
s r^;??'d'tljattl)eP!nmtiifU3a0felfeo aiib biffcifcti, anb luitijaut finbuig tijat
ingly " tlje DEfcnbant Id Cenant of tijc ifranl^tencment i tot It cannot be
Poph. no. intenoeti tljat Ije 10 tenant bp Statute 95crcijant, oc $c* or otIjer=
^ S-. '^' Ujife but of tlje jfuanktenemeut* ^. 3s, 39 €!i?. 15, ja. betuieeit
cra eS' ~ ^^^^ "^"'^ Mounfoii, abjubgeb.
pi. 14. s. c!
accordingly Goldsb. 92. pi. 5. S. C. but S P. does not appear. Le. 152. pi. i3i. S. C. but S.P. does
notappear. Le. 88. pi. 112. S.C. but not S. P. —5 Le. 222. pi. 297. S. C. but not S. P.
A Jury in JJfife may fay. That feifed and dijfeifed, if they will ; Lut if they fay the Matter at Urge, and
conclude iiion the Seijin and D/Jfeijin, there the Jiijfices Jhall judge upon all the Matter, and not upon the Con-
clujien, and fo the Conclufion of a I'erd'cf does not waive the Premises, as it might upon a Plea pleaded. Br
Verdift, pi. 41. cites 28 Aff. 17. Br. Waiver 8cc. pi. 22. cues S. C. Ibid. pi. 16. cites S. C.
Cro. C. 520. 2. 3jn an Affife of a Rent-Seek, if, upon No Tort pleaded, tlje 3!ttrp
pl. 21 . S. C. gjijj ^hac the Plaintiff demanded the Rent of the Defendant, and the
the 3d Re- £)efendant denied to pay it, and fo difleifed the Plaintiff; tbi0 (0 nOt a
and cmo'ke ffoob 3Derbict ; for if Demanb toa0 niabe out of tlje Laub, tben tlje
held. That ocnpiug It 10 not any Sl^ifleifin ; anb Inafniuclj a0 tlje afllfe ba0
the Court j-j,„,^j, jjj^jp ^ 2:)enianb^inb Denial, anb concUibc0 €t fie Difleifibit,
Ihould m- '' thVi
Trial. 391
tijig Cancliifion fljall lie tai^cit to bs mane upon tljeprennfle^, iuljiclj "^^^ » was
IS not 112CII foimn, tijcrc not betnn; am' t)emann upon the lano l!;^'^^'^
founD, anu tljcrcfare it fl)all not be inteiincn bp tije @)pcdal Conclu= Land ■ but
fioit upon tljc premifles tijat it tuas upon tije lanu* ^3iclh 14 Car* the oti.er 5
15, E. bctuicen Afoms a>!d Price, pet Cui'taui pr^tcu Ccol?e, ab= >rti«3
jufiVD in JiBi'it of error upon a sluQffuicnt at tfje oStann @)eflion^ ,« — ill
in JBaies, ann tljc Jiungnicnt rcbctren accorbing!p, jo. 413. pi.
ti. S. C. ac-
cordingly See (Y. f ) pi. I. S. C.
3. But if tIjeP ban fOUntl generally that the Defendant diffeifed the
piaintiii, Ujis ijaD been a booh jDcrbict, ann all circumiiances ann
5i9attcr0, a?i locll tijc Denianb upon tljc lanb anu Dental, m all
otbcr iltlmtijg ncccfllirp to mai^c a DiiTcifin, ihaii be intended aS" mas
Ijcib.
4. Jn Trefpafs for Taking and Cutting of Leather, bP iUbl'dj it be= Tmls per
CaUfC of no a^alUe, if DCfenbant juiUHes by Force of the statute, as ^^\ iS6.
Searcher {\\ a Dili, fcilicct, tljat Ije fearctj'D it, anU for tbe better ^''^^
^teardjinij of it be cut it 05orc €)Crutatorum, uiitljout otijer Da^
mage to it; anb tlje plaintiff replies to it, that he cut of his own
Wrong, without that that he cut it More Scrucatorum ^C* UpOU tUbtCl)
JflUe 13 jiOineb, anb tbe ^Urp find that he cut it of his own Wrong lb
as the Plaintiff has declared; tDlSiS HOt 3 ffOOb a^Cl'Dift, becaufe It IS
net am' anfujer to tbeSITue, but oniP by Argument. ^k\), 1649. be^
tlUCCn Ho-ji:es and Elanchard atl)llb5eb, \\\ a Wi^X Of ^ll^l UpOU a
lubgmcnt in jQoriatcb, anb tlje Jubsnient tberc t\,{m,\\ rebcrfeb ^z-
corbut5l}? for tljis €rror» ^ntratur. p, 22 caroli Eotuio 220.
5. In Trefpafs, the Defendant [aid that tbe Plaintiff held of A. by Feal-
ty, Homage, and Suit of Court, and los. Rent, payable &c. and lor the
Homage, Fealtv, Suit, and the Rent arrear, he as Bailiff dijirained i
The Plaintiff' faid that be held by Fealty, Suit of Court, and 9 s. Rent, ah-
fqtic hoc that he held &c. in the Manner as the Defendant alleged ; and
the other econtra. And it was found that the Plaintiff held by Fealty and
9 s. and not by Homage and Suit. But Brook fays, it feems that the Ver-
dict ought to have been, that he did not hold by Homage, P^alty, Suit,
and ID s. Rent, Prout &:c. for this is the llfue. Br. Bar, pi. 73. cites 9
H, 7. 12.
6. B. feifed of a Manor, piirchafes fame 'tenancies lying fparjim in the Jenk. 252.
common Fields &c. held of the fatd Manor, and afterwards fells the Ma- '^h'^-f'^C
nor to IV. The Manor defcended from W. to his 3 Daughters, who brought difficult to
a H'rit of Partition of the Alanor. It was very difficult to find out the Ex- find what
tent cf the Mano-r, and to dijiingiiip it from the 'tenancies purchased in. Tenancies
The Juitices were of Opinion, that the Jury Ihall be difcharg'd in Con- j*'^ ^"'"^
fcience, if they make Partition of fo much as Prxfumitur & Dignofci- chafed^with-
tur per Prsefumptiones &c. what was the Manor. And tho' none of the in the Ma-
Parties had given Evidence, yet they are compellible to make Partition nor, the
at their Peril; and the Law and the Court mult necellarily be ferved. J^'^y ou^'i':
D. 265. b. 266. a. pi. 5. 6. Mich. 9 & 10 Elii. „mJ'ff'
Piobirhilia,
and not to find the Matter fpecially upon Circumftances, and leave it to the Court ; for it is a Matter
of Fadi, and the Jury ought to give a fpecial Verdidl.
7. In Debt tarn qtiam, on the Statute i Jac. cap. 22. for catting Oaks
finfeafonably, on Not guilty, and Verdi£t for the Plaintiff, it was except-
ed in Arreft of Judgment, that the fury found the Value of each Tree 6 s.
8 d. but did not cajl up the Sim. Sed per Curiam, in this IlFue 'tis need-
lefs; hut had the Iffue been Nil debet, they mult calt it up, and not leave
it to the Court. " Keb. 835. pi. 16. Hill. 16 & 17 Car. 2. B. R. The
Duke of ISortolk and Tohnion v. Smith.
8. The
'^92
Trial.
8. The legal Verdttf of the Jury to be recorded, is pndingjor the Plains
tijf or Defendant ; what they anfwcr, if ask'd to^tiejftons concerning fome
particular Faft, ?j ;;or of their Verdift elfentiallyj nor are they bound
to agree in fuch Particulars. If they all agree to find their IfTue for the •
Plaintift' or Defendant, they may difer m the Motives wherefore, as
well as Judges, in giving Judgment tor the Plaintitf or Delendant, may
differ in the Reafons wherefore they give Judgment, which is very ordi-
nary. Vaugh. 150. in Bufliell's Cafe.
9. The Jury may find the Defendant Guilty of Part, and Not guilty of
the rejt, or may find the Defendant ^////rj' of the Faif, but vary in the
Manner. 2 H. Hill. PI. C. 301. 302.
■ 10. In fuch Cafe where the hiqiiefl may give their Verdi^ at large, if
thef will take upon them the KnowLdge of the Law upon the Matter,
they may give their Verdi^ generally, as is put in their Charge. Trials
per Pais 255.
(U. f) Verdift. How the Jury may find their Verdi6i:.
Triah per I. T jR Trefpafsof Battery in A. if tIjC DCfcnUaitt pICilH^ BOt glUltl),
Pais 2S6. £ tlje JiUr}) fljall not b£ rccci^co to gme tl)cn: a^cuQict that he is
(J-8) Not guilty of the Battery ot him in A. bUt Ollgljt tO fillD tlje i^attCC
fpcciaiip, or to fap prccifel}? tijat Ijc tjs Jl5ot guiltp. 22 atT. 62.
2. jn il ilBrit ot" Dower ol one Meliuage and one Garden, if tIjC De-
fendant pleads Never feiied that Dower &c. auO t\)t 3!Utj? find that the
Baron of the Demandant was feifed of the laid Meliuage and Garden, ex-
cept fb much thereof as J. S. had f C» tW 10 HOt a gOOD aDCttUCt, IJC'-
cauft it tiocis not appear ijoin inuclj of tlje laim f . %. ijao, ano Jo
mcrclp Uncertain Of ijoiD mucl) luHiVsncnt fljnll be giiicn, ^> 40. 41
CK le* E» bctioceii Pope and King aQjUDijcD, in nsrit of eccon
3. 3if a Refceit be counterpleaded that the Tenant has Fee, UpOIt
tntllCl) tljCP are at 3:fllie, tlje jltrp cannot find that the Tenant has not
Fee without finding what Eltate he has. 28 (£» 3. 95. all)UllgeO»
Trials per 4. jw att ^ftlOn Of Debt upon an Obligation againft an Heir, if Dc-
Pais 286. fcnOant pleads tljat ije IjaH Nothing by Defcent in Fee, anD PlaUttlff
(278:) cites replies tljat Ije IJilU bp DCfCent in JfCe diverfe Lands in fuch a County,
^ '^:~Z jji^j tlje iurP find that he had diverle Lands in Fee by Defcent ; tljtS i|£>
2u pi 7 a Koon JDetoift, luitljoiit fincnuj; ioljat ILantijs fjc Ijati bp Defcent i
s. c. accord- fgt (t isj Hot uintctial, utafnniclj m for tljc falfe Jc)lea of tije Jipeir a
ingiy ; but nguctal lunsuieut is to be giuen againft Ijiui, luitljont Ijantng anp
Ids that an EcgatD to ttje aiVetsi. $p» 13 Jia, 03* E. bctmccn Kvett andsutcup
Exuumhas atJ)unscn in JlBrit of error*
Jtu'vihlt Valw ; this is not good. Ibid. Arg. cites 40 E. 3. 15. And fo it was agreed perCuriam.
Incertain.
Noy 147. 5 3In an Ejeaione firmae of 5 Acres, tipOtt BOt ffUiltp pleateU, ff
S. C by tlje Jlm;^ find the Defendant guilty of Entry into 8 Pieces ot Land Par-
Name of ^.^j ^^ ^^e Tenements aforefaid i tljlS IS a UOID ©erDiCt, bCCaUfe It i|S
f SS?r "Ot certain ijotu umcij tlje Pieces! contain, fo tljat ejrecution \\w ^t
• mane
Trial. 39^
inane of tl)em» S15» 5 31il» 'B. faCtlOecn Pawlm md Dr. Redmaa atl' and alfo they
nmto* did not
find him
guilty of the Rcfidue ; and for that it was alfb naught.
6. In Debt they were i^t Iffne againji Executors, if any I'hitig was enter SP. Co.Litt,
Mains i and the Jury fvtinci that ihtji bad enter Mains., but did ?iot fay to ".'• .^■. '"
-what Value, cr hoiv much; by which the Verdift was held void, j^^.^ ^""cipio.
Verdift, pi. 65. cites 40 E. 3. 15.
7. Caie &c. by the bherilts ol: Norwich, for that a Ca. Sa. was direff- 9'°; \\^'^'
ed to them to take B. and that they 2.0th Feb. made a Warrant to 3 Serjeants sheriffs of
to take him ; and they by Force thereof took htm on the 2.6th of Feb. and that igortocl)
he refcued htmfelf.^ and efcaped. Upon Not guilty, the J ury /off«^ Z-/?^? b. ©raO*^
abait the 20th of February &ic. fnch Warrant -xas made, but not on the i'^^^"'?'^'
20th oj Feb. and that the Serjeants by Force thereof, about, but not on, the Court held
2.6th of February, did take htm, and that adtunc y ibidem Seipfum refcnffit the Ver-
(S:c. It was objefted as to the Verdict, that the Foundation oi" the Ac- '^'^^ ""od
rion is wrong, and the Tort is not found certain; for it is llippofed to ^"°"Sh.
be done Circa, but not on, the 26th of February, which might be after Reitoas was
the 26th of February ; and if it was any Day before, then the Ac- before or
rion is maintainable, but not if after. But ic was anfwered, that the ^^'^''t'^e Day
Verdifl; fays Quod tunc & ibidem Seipfum refculiit, which mull be re- 'j^PPo'^d in
ierr'd to a Time certain before, viz. 26 Feb. And judgment was given |io^„ fo'asit'
for the Plaintiris. Godb. 125. pi. 145. Hill. 29 Eliz,. Ji. R. Yarram v. be before
Bradlhaw. the Suit
8. Fcrmedon of 3 Meffiiages and certain Jcres of Land, and for the Mef- '^0™'"="=*'!-
fuagcs they "were at IJfue upon a Non-tenure pleaded ; and the Jury found
he 'x-as Tenant of one of the Meliuages and not of the other, but lhev\eth
net f/ ivhich in Certain. And the Court held that the Plaintiff at his
Peril is to fhew to the Sheriff what Meffuage it was the Jury did in-
tend ; for the Jury is not tied to let Bounds to it. Cro. £. 265. pi. 6.
Mich. 33 & 34 Elix. B. R. Scriven v. Prince.
9. FjeCiment 0/30 Acres of Land m D. and S. the Defendant wasfo.'ind Goldsb. iSS,
Guilty in 10 Acres, & quoad refiduam Not Guilty ; it was moved that this P'- '5 5- S.C.
Verdift was incertain in -which of the Vills this 10 Acres lay, and there- .^ ''^^^^'"e
fore no Judgment or Execution could be given on it lor the Plaintiff; ^mg^af.
for the Sheriff fball take his Information from the Party, lor what 10 Acres cordingly,
the Verdict was given. Cro. Eliz. 465. pi. 19. Palch. 38 Eliz. B. R. a"dthatthe
Portman v. Morgan. ' l^'^J ^' '>''
^ r-^erll ought
Shentt the right Land, for which be had Judgment.
10. EjeBmcnt of 3000 Acres of Land 3000 Acres cf Pajlure in D. by
Name of the Manor of At. and 5 Clofes per Nomina &c. Upon Not Guilty,
the Jury found .^wad 4 Clofes of Pajiure, containing by F.Jhmation 2000
Acres, Not Guilty, dS quoad refiduum, they found Matter in Lain. It was
moved that this Finding is uncertain of how much they acquit him, and
the finding Special Matter Quoad reliduum, it is uncertain what the Rc-
fidue is, lo no judgment can be given upon it; and of that Opinion was
the Court ; and a Ven. fac. de Novo was awarded to try the llfue. Cro.
J. 113. pi. 12. Hill. 3 Jac. B. R. VV'oolmer v. Gallon.
It. An Action of Irefpafs lor a Trefpafs in Wh. Acre, the Buttals es- Yelv. 114.
prcjftd ; and upon Not Guilty, the Jury found the Defendant Guilty ^^^^^''- ^Jac
.^uoad medietatem Acr£ prxditt£, "juithout any Certainty of which Moiety, and -
And yet refolved that the Verdifcl is good in Tielpafs, becaule Damages Cur.^prJ"e\-
only ihall be recover'd. Nov. 125. Winkfworth v. May. Fenner, the
Plaintiff
Ihall have his Judgment ; for if he had laid tlie Trefpafs in an Acre, and t'ne Jury found it in a Foot
only of the Acre, it is gcod ; and the finding it here only in the Moiay ot the Aero bounded is fuffi-
5 W ^l-.^c
394-
Trial.
dent here. Bi-ownl. 210. S. C. in totidcm Verbis. Cro. J. 183. pi. 2. S. C. ac-
coi-dirgly.
Yelv. 114. 12. Bitt otherwife 'tis in an EjcBione Firm^, becaufe there, there ought:
S.C.andS. P. ^^ ^^ ^ Ctrtanitj to make the Exec nt ion of it. And Judgment lor the Plain-
accoiJmg- ^:^^^ Noy. 125. V\ Inkfvvorth V. May, cites I H. 7. 9. a.
Brownl. 114-
S. C. and S, P. accordingly.
13. So in the Moiety of a Manor. See i E. 5. in the Cafe of a Detitme.
Noy. 125. VVinkfworth v. May.
14. Debt ly A. Executor of B. againfl O. as Executor of P. who pleaded
that B. dud ititejtate, and that before the A5ion brought, Adminijiration of
his Goods was committed to C. who admtntjired^ andjiill doth j the PlaintitF
replied.^ that P. died intejtate., and that before Adminiftration was granted,
fever al of his Goods came to the Hands of the Defendant.^ which he as Exe-
cutor to the f aid P. adminiftravit^feu aliter ad ufum fiimu proprium difpofuit.
Upon Iflue join'd, it v/ns found againft the Defendant m the Disjuiulive
as it was pleaded, ar.d adjudged lor the Phiintilf ; for the Point in IlFue
is direttly Icund, and fo within the Statute of Jeolailes. Hob. 49. pi. 54.
T:in. 12 Jac. Keble v. Osbalton.
15. I'refpafs lor breaking his Clofe, depafccndo Averiis, (viz.) Equis,
Bcbus, Faccis &ZC. Tha Deicndani pleaded ^uoad any Trefpafs CU7U ahqui-
hus averiisjpraterquam cum duobus fpadonibus S tribus Vaccis, Not Guilty;
and as to them hejuflijied by Prefcription for Common ; upon Iffue join'd
the Jury found the Defendant Guilty cum aliquibus averiis Prout the
Plaintif counts, and affelied Damages &c. It was ailign'd for Error, that
the Verdict finding the Defendant Guilty depafcendo cujii aliquibus ave-
riis, not f jewing what, is uncertain and void , Sed non allocatur ; for
being found that he is Guilty cum aliquibus averiis prseterquam, it is as
general as the Count, and the Number or Kind ot the Cattle is not mate-
rial. Cro. J. 662. pi. 13. Hill. 20 Jac. B. R. Elfton v. Durrant.
2. Roll. j5_ The Plaintilf I'/aVrtjW upon fcveral Accounts for ihveral Goods fold
^ruiicM fo'i'f''^^'''^^ Sums, and upon feveral Retainers to do Work amounting in the
t). iJ^iDQlc? whole ?o 40/. the Defendant pleaded Nil debet, and the y^nry found quod
ton S. C. debet ^ol. inde S q:ioad re/iduiim non debet; and upon Error brought, it
accordinglv, ^^^g aifjan'd that the Debt being for feveral Parcels, and upon feveral
the\erdia j^et^jners, and the Jury finding that he owed 30 1. & quoad reiiduum
have" been non debet, and not finding for which of the Retainers or Contrails he isflill
Special, indebted, the Defendant cannot tell for which he is condemned, and
for what for what he is acquitted, fo as to plead this Recovery in Bar to other
Thing iJc- j\^Q-jon, or have an Attaint if it be talfe ; and for this Reafon the Judg-
fo"' what "1^"'^ "'-IS reverfed. Cro. J. 653. pi. i. Hill. 20 Jac. B. R. Trefwell v.
not, that Middlecon.
Court might
adjudge upon it, if good or not.
Jo. 41;, i-y. In A/fife, the VWnmS demanded Rent by a Dcvife, the Jury found
414 pi. 8. Arrearages for 30 Tears ; but doth not fay when the Devifor died, nor any
Tudement Time or Feaft appointed for the Payment, and therefore the Verdict is
<riven in clearly ill ; becaule the Time of the Devifor's Death not appearing, the
the Grand Certainty ol the Arrearages cannot be known. Cro. C. 521. pi. 21. Mich.
Seffions for j . q^^ j; R. Morrice v. Prince.
Montgome- ^ .... - , . „ _
ry was reverfed, and 'principally tor this F.eafon.
18. In EjeSment upon Not Guilty pleaded, the Jury found him Guilty
in tanto unius Meffuagii in Occupatione &c. quantum flat fuper ripam.
All the Juftices, except Crawley, refolved that the Verdict was infuffi-
cient
b
Trial. 395
cient tor the Uncertainty ; and all agreed that there is great Difference
betii'ccn T'refpstfs and Ejc^iiiient ; for fuch Verditt in Trefpafs may be
good, becaufe there Damages only are to be recover'd, but in an Ejeft-
ment the Thing itfelf. And in the Principal Cafe, tho' the Certainty
may appear to the Jury, yet that is not enough tor the Court to give
Judgment upon ; & oportet quod Res certa deducatur in Judicium. And
Crawley J. agreed, that ilthe Ejeftment had been brought de tanto unius
Mclluagii &c. quantum flat fuper ripam, it would not have been good.
JNlar. 97. pi. 168. Trin. 17 Car. Juxon v. Andrews.
19. In a Special Verdict in Trefpafs &c. agamfi Sir R. Cox Baronet.
R. Cos Efqi and others^ the Jury find R. Cox Etqj Not Guilty, then
they find a Warrant from a Jullice of Peace cmnmanding the Conflahk to
crreji the Plaintiff.^ virtute cujus he was arretted, and that the Conllable
required the other Detendant to alfitt him to convey the Plaintitf before
a Jullice, and that they brought him to the ConflaUc's Honfe, and that
jy,\ediiius R. Cox Miles fnt for the Conjlable and commanded him to put the
Plaintiff in the Stocks, whereas there was no fuch Perlbn as praediftus
R. Cox Miles mention'd before in the Record, and there is another
R. Cox Efq; this makes the Verdict very uncertain. Yaugh. in. Pafch.
19 Car. 2. Stiles v. Cox & al.
20. IndiBment for ufing a 'trade for 3 Months from fuch a Day to fuch
a Day, not having ferved 7 Years &c. Not Guilty was pleaded, and the
Deiendant found Giiiltj Jor eve Month, and acquitted of the rett; and it
was moved in Arreft of Judgment, that it was uncertain for --jchich oj the
3 Months he was tound Guilty; and therefore the Defendant could not
plead this Convi£tion in Bar of another Indictment for the fame Otience.
But per Cur. he may plead a Conviction tor one Month, abfqiie hoc, that
he was Guilty in any other Month. Et Judcium pro Rege. 12 Mod. j6r.
Mich. 13 W. 3. B. R. Anon.
(U. f. 2) Verdi'fi Special. \Qood or ?iot.~\
I- T JJ5 AfFife, if t!)e 4lUrp find that the Defendant difleifed the Plain- ^^^o- 491 pi-
X tiff, Nili Verba contenta in ultima Voluntate W. M. do give and f°c1)rdin i -
convey a lawtul Ettate from ^\^ M. to R. M. and they find the Words and that die
contain'd in the Will, but not the Will itfelf; ti)) luljicf) tljat tUljtCl) Veidia is
foUotus aftet tljc (Btfi) is not fufficicntlp fotmo, matnmclj as tijc ^ompieat be-
Court is to aHHingc upatulje mm itfcu; aun fa all tijis is iJutDi;;;^Voin^
a^et tlje firtt Part ot the Yerdicl: Ihall Itand ; fOC bD tfjlS It IS fUfflCiClltlP on which
tounu tijat tije Defenliaut Hiflcifcti tljc l^laintitf, anu fo tljc Nugation they were
after fljall ItOt ijUtt it* ^, 38, 39 €U 15. E* bCttUCCn IVift rtWcharp'd viz.
Moanfn, aHjllUfiell. ^i^aD.ffe.L.
Cro E, 48c. pi. 14 S. C. and Judgment affirm'd, with the Aflent of Gawdy J. tho' hefaid he al-
ways held the Vcrdift imperfedt, and that no Judgment ought to be given upon it ; for the Jury in-
tended not to find the one Part without the other ; and that it is not a perfect Verdift ; for it is all in
one intire Sentence ; and fo they ought to have adjudged upon all togetlier, and is not like the Cafe in
D. 572. l3Eliz. for there was an ablblute Verdict given, ard that which came after was idle.
Poph. 110. S. C. accordingly, and Judgment affirm'd by the Opinion of the other 3 Judges. Eut it
feemed to Popham, that iftheVerdifthad been, viz. if the Words of the Will do not pafs the Land, then
that he diO'eifed, and if they pals, then that he did not diffeife ; there, if the Words of the Will be
not found, the Verdift had been all imperfedt ; but here the Verdict is full and perfect before the
Kifi 8cc. And therefore the Judgment was affirm'd.
2. JU
39^
Trial.
^ 37 2- 2. 3i!l I^ltiOU upon tlje Cafe, and Non AUbmplic pleaded, If tljC JUtP
I\larg. pi. flnds thac the Deiendant Non Affumplic, notwichltanding if the 2 \V ic-
Cafe of io. nelles H. and W. fay true, as we think they do, tljCH we find that the
S»anDS V).* Defendant did allume &c. and reters it to the Court. 'W\)i^ IClff 10
jiatipcsm)', Doin, bccaufc It 10 iiot Dircctip foann ; aim pet tijc firll j^art fljati
.vhere one jj^-j^q^ ^^j^j, jg j^ pj,ffff|. J^CfQut fyt tl)Z DCfCillinnt. D» 22. 23 ©U
a'wimlr 372.7. pcicunauu
jiroved the
M.itter fully ; but tlie Jurv s^ive the Verdift in the like Manner, viz. If the faid Witnefs has f.iid
Truth ; otherwifc wc find foi' I'ujh uii one. This was adjudged a void Vetdift.
See(Y. f)^ 3. Ji\ Scire facias againfl the Executor of J. S. if JpiainttfT llCClnrC0
P'- ^^ ^'i^; upon a Judgnient had againil: J. S. and that he was taken Hi CjCCCUtlOit
S C-— "' t^v Force of a Capias all Siatl^faCiClitiUUI, and died in Execution, UpOtt
Mo.' 85:. pi. lliljiC!) tljCP are at SfttlC, aUli tit 3Urp fmd that he was not taken Ul
II--. Fo^r- (gjcCCUnon by Force of a Capias, but tijat ijC U!a0 tafeHt upon theiame
fter's Ca'"e, j ucigment upon an Alias capias, and Ihews all the Particulars, and re-
in.Tv — ^"s to the Opinion of the Court $C. tDi0 10 a IJOOD 3Di;i*niCt, ailD all tIjC
uobsz. pi. mxhta 10 rcfci't'D to tijc Coutt, ano tlje firft j^art fljali not ncHto?
60. s.c. a- t!)c laa jL3art* d** 1 3 2a* betoiecn Fojcr and jackfin aUjuUffcD,
cordingly.
2 iirownl 511. S. C. but I do not obferve S. P.
See (C. g) 4. 3'n Ejeftione Firm:E of a Leafe for Years of 20 Acres, if SDcfCUtiant
pl. 13. S.C. pleads Non dimilit, aUB tljC !JUl*P find Quod diinilic 10 Acres only, ailO
tlje COnCUlflOlt of tIjC i^erOlCt 10 Et W luper totam MateriamCunse vi-
debiturquod Detendcns dimilit 2o Acres, then tl)Cp fillD tor the Plain-
tiff, and if not, then for Dekndant, tljI0 10 rCpUlXUant ; ailD fO tljC
aDCrtllft DOlC Ul all* \d. 43 €-!♦ %, JU* fcCtlUCen 'Brown and Meredith
aDjUtilTCtl*
CrcC iT9. 5. jii ^ftion UpOSt tijCCafe upon a Promife, if DefenHaJlt pleads
pl. 4. S.c -^Tqj^ alfumplit, aiVO SJUtP find f:>r the Plaintiii, and alfels 33 1. 6 s. 8d.
accordingly, r^ ,, ^ l- 1 j -^ r • r i ^ /■ • /i ^
tor Damages, Solvend. m tiiitcione li per legem rerr.« fieri potelt, and
for Cofts 6 s. 8 d. and Judgment given lor tiie Plaintilfto recover Dam-
na prjedifta per Juratores pr.'?"£!iCta0 til fOtUia pt^ttllfta afielfa nee non
59 s. de Incremento &c. in toco 36 1. 12 s. 4 d. tij!0 10 a 0000 3iUtJg>
niait ; for mijcii t!jc Imv fiiiti tljat tlje DefciiDaut afTunVQ ^oDo $
iforma, ana taren DamaiTcs anD €oft0, tlje a^eroict 10 perfect, ana
tfjen tlje n3oi50 c^oSijenD. in tnuttonc ft per leuciu '2Petr.« fieri pfl=
tclf ) arc Dotn, auQ cannot be per legem Cerr.e» Cr. 7 ^ar» 15. a.
lietiuecn r///, ^ nud 'Taylor aDiiiBfjcD in USrit of €rror, 31 iielno; for "Dc--
fcntiant, ana luatjiuent ijnjen m Cj:eter aftirm'D. rpiiu s Car.
1204.
6. 3'n an 3fttan upon tljC Cafe, upon a Promife that in Confideration
of 4 d. tlje iDefeiiDant afluni a to give to the Plaintiff" 40 1. ano upon
Non aifumpfit pjeaDeB, tljc 3iurj) found a fpecial a^eriilct in t{ji0 ^aiv
ner, (IJiQCllCet) iftlie Law will that the Jurors lliall give Da.mages to
40 1. then they aflefs Damages to 40 1. but if the Law will thac they
may give Damages at their VVilJ, then they allcls Damages to 3 1. and
no more ; tlji0 10 uot a tjooO i^erOtct, Oecaufe tijep ougljt tu airer0
tfje Damage0 in certain, p* 4^ ^l* 1-v K* aDjUOseo, aim neuj
2E>eiiire atnaroeli.
7- !Jn an Intbrmation upon the Statute of 39 El. cap. ir. for Dying
with Logwood, by which he is to lofe 20 1. tor every Offence, aUO Up-
on iI5ot guiltp pleaoeo Ije i0 found Guilty for uHng it agaiuft tlje %w
tUtC for 40 Days, by which he lofes tljl0 10 UOt a ffOOO mt-
Diet, UJitljout fintitna; ibr how manv Times he uied it, inafn!ucl)a0|}e
i0 to lore 20 1, for ctierp Cime. 1^. 12 car. 15. R* tictiueen Lai ham
and
Trial. 397
^.nd sneifon, UP JuHice 3101100 i tljtiS i&xw^\\m tafecii after miWi for
tijc l^laintiff;
8. Jn ail miction upon tljC Cafe, upon a Proniife to pay a certain Sum Hob. Rp, pi.
for Dying ot Cloth, if Non aiiumplit be pleaDeU, nnH tOC %\K.^ find |,''t3;'s" c
tor PlaintilF, and aflefs Damages Occalione debiti priedicti, iuijerC It -_ lenk.
ou2;hc to be 0CCariOne non performationis Afrunipcionis pracdi6l;«, pct ft 29". pi 54-
10 a gootJ a:)crDi(t ■■> for it ssm a Debt, ano a JSJrounft iinpIieD upon
It* DObart'0 i\CpOlt0 1^2. bCtlUCen hayk and Gird a5)UDgeti*
9. in all ipeciul Verdicts, the Judges will not adjudge upon any Mat-
ter of Fail but what the fury declare to be true of their own Jinding ; and
theretore the Judges will not adjudge upon an Inquifition^ or Aliquid
tale tound at large in a fpecial Verditt ; for their finding of it is not an
Affirmation that all which is in it is true. Refolved. 2, Sid. 86. Trin.
i6j'8. B. R. Street V. Ld Roberts.
10. It is a certain Rule in all fpecial Verdifts, that if the ]nrY find the
Point in Ijl/ie, and only put a fpecial Doubt to the Court in Matter of Lazv,
it is a good Verdi£t ; but if they don't find a fufficient Matter of Fa[i to
bring Light enough to the Court to refolve that Doubt, then it is an imper-
fe£l V'erdift, and an immaterial Ilfue, and a Venire facias de novo Ihali
be awarded. This Rule is founded on undeniable Authority, and on
clear and evident Reafon, becaufe the Jury are Judges of the Fa£l, tho'
the Judges are to judge and determine the Law arifing on that Fa61: ;
now the Jury being Judges of the Fact, they in finding the Gift of
Action, have taken upon them to find every thing that is necelfary to
make the Defendant guilty, if the Point of the Law be refolved for the
Plaintiii; G. Equ. Rep. 255. 256. Lodge v. Jennings.
(U. £3) Verdici: fpecial. In what Cafes and Ail tons it
may be gtucu.
r. T N Reple-jin of a ^row^ viz. a Soisj and 5 Pigs, as to the Sow heaiwzv^d Ev.VcvdlEt,
J[ for Damage feafant, and to the Pigs that he Ne prifi pas &c. and the pi 92. cites
Ilfue to the Trow found for the Avowant ; and to the Pigs it was found that ^^ ^
the Irow was with Pig at the Time of the Taking, and in the Poffcffion of ^^ ]°'f'
the Defendant farrowed the Pigs ; and upon this the Plaintiif recovered aire's S.C.
Damages tor the Pigs, and fo this makes a Taking &c. Qusere if the
Sow was not with Pig at the Time of the Taking. And fo lee Verdift
at large upon this general Ilfue, and fo it may be, as it feems, upon every
general IJfue. Br. Verdict, pi. 59. cites 18 E. 3. 48. and Fitz.h. Reple-
vin 34. and 12 E. 4. 15.
2. In Alfife, Demife with Warranty of Anceflor collateral was pleaded, and
for the ill pleading the Afftfe was awarded, which found the Circumjfances,
and that theAnceltor warranted &c. And perBancke J. becaufe tht Plain-
tiff was difabled, and the Afjife was not charged upon this Warranty, there-
fore the finding the Warranty is not good. Br. Verdift, pi. 32. cites
22 Alf 37.
3. In AJife of Rent, the Defendant pleaded Hors de fan Fee 8cc. and the G''- Dower,
others that within his Fee prift^ and it was /o/zW by V^erdicl at large, P^^''^- '^"^
that the Land was given to one in Fee, and after he gave it, rendring Ser-
vices and 6 Marks per Ann. and after the fame Donor brought Writ of Cuf-
toiiis hnd Services again/l the Tenant, and reteafcd the Services, refervtng the
6 Marks and one Mark more, and the Afftfe was of 7 Marks Rent, and the
5 I Plaintiif
Q98
Trial.
'' Plaintiff recovered ^ Quod Miror, upon this Illue, that Verdict at large
was lutler'd • Jor it is a Pica in Bar, and not to the JJ/ife. Br. Verdid,
pi. 37. cites 26 Air 37.
4. Where the tenant pleads in Bar, that Ne unqtics fcijie que Dc-jjer
&c. the jury may give a Verdict at large ; and lb they did. Quod
nota; ibrtbis is a General IJfiie, and upon this a Verdift may come at
large. Br. Verdift, pi. 40. cites 28 All". 4.
5. I'rcfpafs de Parco jratio and Bcajfs taken, the Defendant faid that
the Feme uj the Plaint if delivered them to him out oj the Pound, ahfqite hoc
that he broke the Pound-, and the others econtra ; and the 'Jury found that
the Defendant came to the Feme of the Plaintiff, and offered Pledges, and
prayed her to deliver to him the Beajfs ; and pe rejufed, becaufe pe had no
Warrant to do it ; by which the tieadborough, by the Qiflom uj Northumber-
land injibfeiiceoftheBailip, madethe Deliverance to the Defendant, upon
Pled"-es found. And lb fee that they gave fpeciaU'erditJ in Plea of Ii-efpafs,
by aifque hoc, as well as upon a general lUue. Br. Verdift, pi. 63. cites
30E. 3. 23.
6. ylffife of Rent againfl an Infant, Fillier faid the Land is Hors de fn
Fee, Judgment, if ifithout Specialty &c. Perfcy Jbciv'd Deed, by is^bich
a Rent of 4 Nobles ifas granted to the Plaintiff by the Tear Jar his Lije.
Fiiher laid, He who charged had nothing at tioe 'time of the tnaking of the
Deed'-, and it wasjound by Ferdiff that the tenant was feifed, but the Rent
•was granted till the Plaintiff had levy d 10 Marks, and that he had levy'd
8 Marks, and that there are two yirrear, and Damages to three Pound,
and the Plaintilfpray'd Judgment, becaufe the Iliue was found lor him;
and of the Condition to levy the loxMarks they had no Regard, becaufe
the Deed thereof was not lliewn ; and they were adjourn'd to Weftmin-
ller, and were afterwards remanded into Pais, to inquire if ever he had
Deed of this Condition to levy the 10 Marks, [and then] the Rent to
ceafe. And lo lie that they took Verditi at large, where the Iffte was if
the tenant had any thing in the Land at the time of the Gijt ; quod vnrirm !
Br. Verdict, pi. 64. cites 33 All! 2.
B E' a 7- V^rdi6t at large was given upon the General JJftie, that Ne ejeffa pas.
Cuftod. pi. And fo it feems that upon every General Iff he the Jury who are in Doubt
45. cites rnay give Verdift at large, and put the Matter inDiicrction of the Court.
^•^- Gntra of Special Iffue. Br. Verdifl, pi. 45. cites 38 Ail". 9.
Br. Ejeft 8. In hje5ione Cuflcd. the Jury gave a Verdi£t &t large upon general If-
Cuftod. pi. 5.y?/e. Br. Verdi61, pi. 14. cites 38 £. 3. 18.
cites S.C. p_ jji Jccount the De[endant traverfed the Refceit, and Jound that the
Plaintiff delivered the Money to the Defendant upon Condition, that if he did
not ajfure zo Acres of Land by fuch aDay ,that hepould repay it; and that the
Defendant did not make thereof ^ Affurance by the Day, by which the Plaintitf
recover'd. And io lee Verdict at large m this Action. Br. Verdift, pi.
84. cites 41 E. 3. ID.
10. Verdict at large was given in Dower. Br. Verdift, pi. 85. cites
4- E. 3. i.^
11. Afjife of one Acre ol Land. Kary, we are Villein of H. Earl of D. and
hold of him in Villeinage, Judgment of the Writ. Penrolle laid, tenant of
the Franktenemcnt the Day of the Jirit purchafed ; & non allocatur; for
this Plea is not warranted by the Statute. By which he faid, that Frank
and of Frank Eflate the Day of the Writ purchafed ; and upon this the Al-
fife was awarded, and found that he was Villein to the Earl, regardant to
his Manor of D. and hefeifedof him; but that the Earl never feifed this
Land, nor ever claim' d it, and that the Plaintiff was feifed and diffetfed ; and
for Doubt they adjourn'd this to Weltminlter, and there by the Opinion
of the Court theVi'rit ihall abate, by which the Plaintitf was nonfuited ;
for the IlTue was Ibund againlt him. And lb fee VerdiiEt Special gi\ en
for upon Iliue of Frank and Frank Efiate; quod nota ; for it feems a General
IJfiie againp the Villeinage. Br. Verdict, pi, 62, cites 43 All i.
12. tref-
Trial. 399
12. Tnfpafs againll one, luppoiing that he had l^urnt his Hoiife with
Force and Arms ; the Defendant pleaded Not guilty, and the Inquelt
Joiifid tlie Verdi6^ at large, that the Defendant "ji^as Tenant for a Tear to the
Plaintiff', and that it ivas burnt by his Negligence ; and {o fee a Verdi£t at
large in Trefpafs. Br. Trefpafs, pi. 68. cites 48 E. 3. 25.
13. In jittaint the Jury demanded if they might give Verdift at large
as in Aliife, who laid that Noi quod nota bene. £r. Verdift, pi. 58.
cites 7 E. 4. 29.
14. In Refcotis the Plaintiff^ counted, that the Defendant held of him by Br. Replea-
Homage, Fealty, and 10 s. Rent dice at Rafter and Michaelmas, and for the '^P'"' P^- 3^5-
Rent be diftrain^d, and the Defendant made Refcons, where it appeared in BTRef^"
the Declaration that the one Feaft --juas paft, and the other net ; and the De- p). aS. cites'
fendant pleaded Not Guilty ; and the Jury found that there was nofuch Te- S. C
iiure, bat that the Plaintiff leafed to the Defendant at Will, rendring 10 s.
at thofe Feaft s, and that it was Arrear, and the Plaintiff diftrain'd, and the
Defendant made Refcous. And per Fineux, the Pleading oi A^ot Guilty is
not a confejfmg the Tenure ; Contra 0/' pleading Ricns Arrear. And the beft
Opinion was, that the Aftion lay in Part as here, and Ihall not abate in
all, tho' the Plaintiff in his Declaration has Ihewn that the Rent- Day is
not come ; for Refcotis comprehends Tenure, "johich is a Special Tenure. And
the belt Opinion was, that the Plaintift' Ihall not recover, and that the
VerdiB is no more in F.ffcti but guilty of the Refcous Modo 6? Forma ad Dam-
num &;c. lor the other Matter at large is iwid in this Adivn. Br. Verdift,
pi. 56. cites 9 H. 7. 3.
15. In Trefpafs and A [fife the Jury may give Verdift at large ; for the Vei-dift at
Writ, Count, and Plaint is General. Contra m other Ad ions. Br. Verdict, |*''S'^ "^^Z
pl.56. cites9H.7.3. Per Brian. ^^J--
Pctrlks are
At a General [jTue, as upon Not Guilty hi Trefpafs, or upon AW Tort in Jffife Contra 'xhere the lllue is
iifoji a certain Special Point ; per Fairfax ; but contra per Tremaile, and the Law is witK him ; and they
argued other l\latters, and did jiot d-ivell upon this JLitter. Br. Verdift, pi. Sj. cites 9 H. ;. i;.
16. The Court of C. B. would not permit Verdict at large in Writ of
Entry in Nature of Afjife, inafmuch as it was a Praecipe quod reddat.
But Miror thereofi lor lee Tit. Verdi6t, in Fitzh. 21 & 32. Verdift at
large given in Formedon; for it feems that upon every General Ijftte VerdiSl
at large may be given. Br. Verdict, pi. 85. cites 23 H, 8.
17. The Court cannot refufe a Special Verdift, if it he pertinent to the
Matter put in Iffue. Co. Lite. 228. a.
18. The Jury, if they will take upon them the Knowledge of the
Law, may give a General Verditl ; yet it is dangerous for them lb to do ^
lor if they do miftake the Law, they run into the Danger of an Attaint ;
therefore to find the Special Matter is the lafelt Way where the Cafe is
doubtful. Co. Litt 228. a.
19. A Special Verditt cannot be given ;;; any A fi ion, but where the II- D. 117. b.
fue is join'd upon the General Ilfue, and not where it is join'd upon aSpc- P'^^^ P-'Cch.
<rz^/lliue or Matter with an Abfque hoc (See. Bendl. 37. pi. 69. Mich, m in Caif^
I & 2 Ph. & M. Anon. of goncs L
HUabcr,
S. P. and therefore the Court awarded a Repleader. \^ hen Ifftte is ]oined upon fame fpecial Point
the Jul y may find the Special Matter, if it be doubtful in Law ; loiafmuch as Doubt may arife upoti
one Point upon the Special Iffue, as upon the General Iffue. Co. Litt. 226. b -A Special Verdift,
or Verdidl at large, may be given in any Action, and upon any Ijfue, be the Iffue General of Special ; and
albeit there be fome contrary Opinion in our Books, yet the Law is now fettled in this I'oint. Co. Litt.
22-. b.
20. It was held by Anderfon Ch. J. and all the Jultices of the Bank, S. P. 2 In(f.
That in * all Pleas as well of the Crown as in Common Pleas, \\l. Ac- f;^'j~*^ **•
tions Real, Perfonal and Mix'd ; and upon all I/fues joind, whether be- b.°" '"i"'^'
tueen the King and the Parry, or between Party and Parcv, the Jurors an. V/.;y.i/./
may
^oo Trial.
Jfitrc^er a may find the Special Matter, which is pertinent, and tends only to the
Verdift was IH'ue join'd ; upon which, being to them dubious in Law, they may
g'^^" ^R A P^'iy '^he x\dvice of the Court, and this they might do by the Common
f-°v\ sT -Law, which has ordain'd that Matters in Fact Ihould be tried by the
Mich. 5 & Jurors, and xMattere in Law by the Judges. 9 Rep. 12. b. 13. a. Pafch.
4 P. & M. 28 Eliz. C. B. in Dowman's Cafe.
jsevvman v.
Punter. See Barnard. Rep. in B. R. 51. The King v Hayes.
21. It was prayed to be found fpecially, whether Chancellors are Pcr-
fons enabled by the Statute, to make Leales to bind their Succellbrs. But
the Court would not permit it, becaufe they laid it would tend to the
Difiarhance of fever al Pofejpons. Sid. 159. pi. 11. Mich. 15 Car. 2. a
Nota to the Cafe of Bifs v. Holt.
22. I'i an Indebitatus affumpjit Ihould be brought for 20 1. for Wares
fold, and no Evidence lliould be given of an Agreement for the certain Pnce,
Twifden J. faid he ihould direct it to be found fpecially. Mod. 295. pi.
39. Trin. 29 Car. 2. B.K. in Cafe of Jemy v. Norrice.
seeio. f) ^u^ £ ^) Verdld Special. /Pljal: may he found
Sptxiallj'.
But
laid
it was I. TN Ajjife, the Jury faid that A. was feifcd of a Rent-charge^ and
^^^^.'^ X. g^<^-nted it to the Plaintiff], and A. died before Attornment^ and after
IbeVerd/B ^^* 'Tenant delivered Pledge to the Plaintiff in Lieu of Attornment, and after
he expnfs the Heir of A. releafed to the Plaintiff' •, and fo was the Plaintiff feifed and
/!tfirfi,yn diffetfed ; and the Plaintiff recovered by Award ^ Quod nota. TheRea-
they may fpj^ feems to be inafmuch as they cannot find Releafe by Verdiif at large^
nvaive this, ^^j^^^.j^ ^^^^ ^^^^ pkaded. Br. VerdiL% pi. 27. cites 16 AlE 15.
unci give *■ J L I ./
exprtfsVer-
diH at their Peri!, and fo it was done there. Ibid
2. In Affife it was jcund by Vcrdicl, that the Father of the Tenant leas' d
to the Baron of the Feme, nou: Plaintiff, Part of the Tenemen ts jor Life of
the Baron, rendring certain Rent, and the LeJ/br died, and bis Feme Tenant
in Voivcr oj the refl, leas' d the reft to the Feme Plaintiff, and her Baron,
for Term of Life of the Feme Tenant in Dower rendnng Rent i and alter the
Heir of the Jirfl Leffor granted the Rent referved by the Tenant in Dower, to
the Plaintiff and her Baron for their Lives, and warranted the Rent and the
Land for him and his Heirs, to the Baron and Feme for their Lives by Deed,
•which was given in Evidence ; the Tenant in Dower died, and the Barou
died, and tlie Feme was feifed &c. and prayed Difcretion &c. and as to
the Parcel in which the Baron and Feme had a joint Kfiate, this was taken
and adjudged a good Deed of Confirmation, viz. of the Dower; and the Plain-
tift recovered ; tor the "Verdift is good of this, tho' the Deed was not
pleaded, becaufe this Deed made their Ellate ; tor firit, they had no
filiate but tor Life of the Tenant in Dower, and by the Confirmation
they have Eftate for their own Lives, and to the other Parcel of which
the Baron was fole feifed, the Confirmation cannot extend to the Feme j
and therefore ot this Parcel the was barr'd, and recover'd therell. And
fo fee that a Jury by Verdiif at large, may find a Deed which makes the
FJlate of the Party. Br. Verdift, pi. 28. cites 18 Atr 3.
3- In
Trial.
4.or
3. In AJ/ife by an Infatit a Deed of the Ancejlor "-jJith Warranty •Was
pleaded^ and the AJftfe zvas awarded at large of the Circumfiances^ where the
Infant had pleaded that Nothing pafs'd by the Deed, and found that nothing
pafs'd-y and that it 'was made by Diirefs of Imprtfu?iine>it in the IVard of B.
then Gaoler, and that the Baron the 'ter tenant had only for Term of Life
and alien d m Fee ; and the Infant came and put in his Foot, becaufe the Rever-
Jion "ii'as to him dejcended, and was ouflcd; and therefore it was awarded
chat the Intant recover. Br. Verdift, pi. 3 1. cites 22 Ali/ 15.
4. In Jjpfe, the l^enant pleaded to the Afftfe, and gaiie tn Evidence, that g^ ^rr.
the Brother of the Plaintijf, whofe Heir J}:e is, was attainted of Felony ; and pi.' 259. dtes
the ]nTy fomd that R. the Father was feifed, and had IJJ'tie J. a Son and S. C— Br.
two Daughters, of which the Plaintiff is one ; the Father died, the Son did ^"^''y Cong.
Felony, and was attainted and hangd, the Feme of the Father held the whole ^'P' '^"^^^
jor lerm of her Life in Frank-bank by Ciiflom, and leas' d her EJiate to one of
the Defendants in the IVrit, who continued the EJiate all the Life of the Feme
' and "i I cars after, upon whom the Plaintiff, one of the Daughters of R. en-
tred, and A'', who was 'tenant by Sufferance, oufied her, and infeoff'd two
named in the Writ, and his 'tenant at Will attorn'd, and io a void Feoii-
ment, lor the Feoffor always took the Rent of the Tenant at Will ;
and he ought to have made Livery in this Cale, and did not ; and becaufe;
the Attainder was not pleaded or given in Evidence fub pede Sigilli, the f^Airf°^'^
Court did not regard it. And fo fee Matter of Record cannot be found ^,^5 that
by Verdict at large ; and becaufe this Daughter Plaintilf, tho' fhe had a the other
Sifter not named, had good Title againll ail who had no Right, as the ^ifer was
Defendant here had not, therefore Ihe recovered ; but qusere the Reafon ^^^\^^^
that her * Sifter is not named. Br. Verditl:, pi. 35. cites 26 Alf 2. living."*^
5. In Afftfe, the tenant pleaded Bar, the Plaintiff it.titled himfelf by
Leafe for term of Lije made by the tenant ; and the Allife was awarded, and
it was found that the tenant leafed to the Plaintiff for Life, upon Condition
to re-enter for Nonpayment of the Rent referv^d, and that he re-entred for
Nonpayment. Per Thorp, when the Tenant pleads Bar, and the Plain-
tiif makes Tide, which is not travers'd, but the Affife is taken at large,
as then it ought, there every thing found for the Plaintiff' or for the
Defendant, is of Effect ; for if other Title be found for the Plaintiff", he
fhall have thereof Advantage; and by all the Juftices, the Tenant Ihall
have Advantage of the Condition by which the Plaintiff" was nonfuited.
Br. Verditt, pi. 42. cites 28 Afl'. 48.
6. Trelpafs of a Clofe broken. Land dug, and Grafs fpoil'd ; the De- Br. Verdicl,
fendant faid that the Place where ^c. was his Franktenement the Day of the pi- 10. cites
trefpafs, and the others contra ; and the Inquefl tendred a Verdiif at large ^- ^•
upon a void Exchange^ and prayed Difcretion &c. Hank, faid, you are
not in Affife, therefore give an exprefs Verdict if it was his Franktene-
ment the Day of the Trefpafs ; io that you have nothing to do if the
Entry was lawful or not ; by which they faid that it was the Frankte-
nement of the Defendant at the Time &c. and fo the Plaintiff" took no-
thing by his Writ. Br. Trefpafs, pi. 81. cites 7 H. 4. 11.
7. In Affife, the Jury may find by Verdi£t at large Feoffment and Con. Br. Affife,
dition declared upon the Livery, but not Condition by Defeafdnce dehors, or pi- 494- cites
Releafe, or Feoffment a>/d Warranty ; for Warranty lies in Writing, and^-''-
they cannot take Coniifance but of that which is done upon the Land. Br.
Verdict, pi. 86. cites 7 H. 6. and Fitzh. Afl'. 359.
8. In iiDebt upon an Obligation brought againft Defendant, he pleaded. S. C. cited 5
Non eft Faitum, and fo at Ilfue; and before the Day of Appearance of the Rep. 119. b,
Inqueft, the Rats had eaten the Label off" from the Obligation, by the Ne- j",^''p'?.'
gligence of the Clerk in whofe Cuftody it was &c. Upon which the Jury p ^ 1
were charged by the Juftices to inquire if it was the Deed of the Defendant Marg. pi.'
at the time of the Plea, and give a fpecial Verdict ; and Ho they did. D. 12- cites 41
^9. pi. 12. Pafch. 36 & 37 H. 8. Nichols v. Haiwood. ?' S- ^- ^^-
•" '^ •' •" priged,
Worfely v.
5 K. 9. And Charncolc,
402 Trial.
9. And in Cafes o^ Seals hroken, Rafure ^c. Non eft Faftum is a good
Plea J but if there is any fpecial Matter^ the Jury may find it. See 5
Rep. 119.5. Whelpdale's Cafe.
* It is called (X. f) Verdid: * fpecial. ^Fhat fhall be faid a fpecial Ver^
iZt'te-"' diet [Upon which the Court may adjudge]
caiife it finds
ths Matter '
kavefit to"^ I. Til5 Affife, iftljC 3!«rp find the Matter in Faft, and fay further that
the ]udg- I the Plaintitt was feiled and dUreifed ; t\)t COUtt CanitOt ilOjUOge
ment of the ^jpjj^ (j^g {)^tm\ s^attct ; foc It 10 waiv'd bp tljc finmng auttjct tljat
^°"il !i °^ " tije paiutiff uia^ (eifeo anu Uiircireo. Contra 28 silT. 1 7. Contra
}pl/ L- 32 C. 3. m 99. astecti.
it finds the fpecial Matter &c. fo as hereby it appears that a Verdifl: is twofold, viz. a Verdift at large,
or a fpecial Verdift, (which is all one) and a general VeniiH, that is generally found according to the
IlTue ; As if the Iffue be Not guilty, to find the Party Guilty or Not guilty, generally ; &fic de ceteris. .
Co. Litt.zzS.a.
See (T. f) 2. 3!n an Afllfe, if tlje SllfirC find that the Defendant was Tenant, and '
pi. I. and the ^]^^^ j^g diireifed the Plaintiff Nili Verba contenta in ultima Voluntate
^tes there, y^r jyi. do give and convey a lawful Eftate from VV. M. to R. M. &c.
p! r and the and find the Words contained in the Will, but do not find the W^ill j
Notes there, fijisi 10 Hot anp fpcctal aDcrnict upon luljiclj tlje Court can acjiitige,
^s. c. cited inafnniclj as tljep Ijauc not founrs tijc WiW -, for it i0 ttjc ©ffice of tljc
? ^-f- Court to anjuoge upon tljc m\\\. £|9iclj. z^. 39 Cl, 05, E* tcnueen
' ^' Wefi afid Mounfofi a'Oim^Z'H.
See(S.f)atid(Y. f) Vcrdift fpccial and general. //7w/ Thing fhall
(A. g) per ^^ intended in a fpecial or general Verdi^. And lahere
the Verdict is good by lutendmeiit.
totum
See(T.f) I. T JI3 an Affife of a Rent-feck, if tIjC DCfCnDaitt^ plead No Tore
f-r^S' X $C. antl tije JUrj? find that the Plaintiff demanded the Rent of the
there ^ °^^ Detendants, and thev denied to pay it, and fo they dilTeifed the Plain-
tiff i t|)0' it 10 not a fpecial Dcrtiift, pet inafniuclj a0 tljc IJurp l)a0 not
founu tljat tlje Deinann U3a0 upon t!je lano, ann fo no Difleifin in
LaiUifit iua0 OUtOftljC lanO, itfijallnOt be intended that it was
upon the Land ; foc tfjcp uiafee ttjeit ConcIufiOH Of tljctc gsucral 5:>cr
tict upon tlje fpecial $?9atter founu, anD peraOiienturc tijep inttuD a
Demann ano ©enial out of tljc jLano to be a ©itreifin. ^piclj. 14
Car* %. E. \smitZ\\Momce and Price atDUDgCD pCt CUriaUl, pl^^
ter Crofee, in a n^rit of Crcor upon a3iuDo;nient m l©ale0, ann tljc
3iuDgnicnt tciievfeD accoroinglp*
I 2- Jlf tljc Ifllie be, whether J. S. was taken in Execution upon a Ca-
60 Fo'fter^ Pias ad Satisfaciendum, aUH tljC 31Urp find tljat IjC toa0 not taUCU UpOU
jackfon, a Capia0 atJ €)at(gtacieniiuni, but tljat Ijc U)a0 tafecn by Force ot an
S.C. See Alias Capias ad Satisfaciendum in Recordo pr£edi6to minime fpecificati,
CU.f. a) pi. ^^^ 00 not find the Alias Capias at large, which was of the lame Tefte
and
Trial. 403
3nd Return, and all the other * Matter, but t!)CW 50 not fintl that the "X^a..^-^
Perfons and judgments are the fame, pCt tl)i0 10 a SOOll l?)eCtliCt ; fOC * ^°' '"9"-
it fljall lie intenUeD ta U tlje fflmc; fac it is againft laeafon tijat tlje rlT>^
jurp luoulo Ijaue gi^eit, nc tljc Coiict Ija^c futftteo a fpecial iDerOict pi.i.-(c. -)
as a Doubt, if tljis alias Ijao been upon anatijec 3iuOs«ientj ot bt- p' 45 —
tUJceit otljcr 113arties» fpobart'SKcports?!- 76- infra pi. 5.
3. Jif tijC iilTUC be, whether the Sherift" took J. S. and kept him in See fupra,
Prilon under his Cultody in Execution for certain Debt and Damages by p'- 2.
Force of a Capias ad Satisfaciendum, aitH tlje JUtp find tljat !)£ tOOti
ijini by Force of an Alias Capias ad Satisfaciendum, tfjO' it i& llOt fOlinO
tijiU i)e fecpt Ijim in Crecution for tlje Debt aitu Damages aforefiiili,
accoiDmiT to tlje JfTue, pet tt is a goon fpecial mxtiKt ; foe it fljali
be intcnucii, becaufe tijc Cotifequeiice is neceffarp of tljat toljiclj is
foitnti, inafuutclj asijccouio not tafeeljim, but be ougljt to beiit
€i:ecutiO!t» ii^obait's Kepocts, M^r and fackfon 77. aoiutigeii*
4- Jif tlje 3!UrP find a fpecial Verdict, in which they find that J. S. s. c. cited
was feifed in Fee of the Land in Quellion, and devifed it to J. D. UpOIt Sty. 294 Per
lUljICljtIjC 99attet \\\ LaUl arifeS, tljO' it is not found that the Land RollCh. J.
was held in Socage, j)et it is sooo ; foc it Rjall be iutettHeo, it being a ~77^To^-
collateral Thing, anu tljts Cenute bewg tlje nioft common Cenuce* 20 "
Si^iclj. 24 Car. 05* E. bettuecn Daiham and Baker aUjUbgen, 3!ntra=
tucCr. 23 Car. 1280.
5. Cr. 1 65 1, bctiueen johnfon and Kerman aUuttigeti iipon a fpccial ^^y- f '•
o not
the
int
as m tijc ftrll Cafe, pet it is goon bp JntenOment* Intrat'uc Diil. 'iT^rf^^
1649. Kot. 153- " tS^'-
See before.
6. Jf tIjC Jltri' find a Special Verdift, fn MjlClj tljC? filltl that J S. Sty. 26r,
was feifed in Fee of theTythes in Queftion, and made his Will in ^'^^r? *"'
^V'ritins:, the Tenor of which Will fequitur in htec Verba; aittl tljeit obferve tlm
finb a il^iU at large, upon tnijicb tlje Chatter \\\ Latu artfes, ann tIjat the s. p. is
after % %. bieb, anb bo *not find that ]. s. died leifed, pet it fljallbe ''i"'=
intenbcb tbat be bicb feifeb, being founb before tbat Ije mas CciKb in Wi^f'^^^*
ifee, nub mabe Ijis iJBill, anb after tsX^i^ -, anb fo it fljall be intcnbcb u:J"Jvau
tijat tbe t ifee continueb in bun till Ijis Dcatlj, anb not tIjat Ije )MQ'h-^hichtu
btlTeiCeb, anb coniiep'b it obcr bcibrc Ijis Deatlj ; for tljc 3lurp intenb ^"'^' '--^"^
to refer tbe Si9attcr m Intu to tbe Court upon tbe l©m, anb tl)ere= t'f '' *;'}'
fore intenb it to be a perfect HBtll in fact, but onlp Doubt of the Ope- p/iLJ and
ration oi the Law Upon it. %K\\\, 1651. betlUCen Saunders and Rich, after /V«/>4«
abjubgeb per Curiam, upon a g)pecial iDcrbict* ^ntratur l)\\h 1649. if tn^ '"^'^
they had before found to be the fuhfcribing Witnejfei) are 5 fuficient IP ittiejfes acccrding to the Statute^
and as the Law requires, end tie f aid Will fo -proied he a good U ill in Law, and fufficient to transfer the
Houfe or Tenements 8cc. then they fay he is Guilty; hut if the faid 5 Witneffes are net fuffcient, then they
fay he is Not Guilty. Ld. Ch. Baron Gilbert thought this was fufBciently found for the Plaintiff, tho' it
was not found that theTeflatcr died feifed, becaufe they find the Defendant is Guilty of Trefpals, in cafe
this is a good Will. In finding the Defendant guilty, they find every Thing material to make Iiim fo
in cafe the Doubt of the Law, in which they are not refolved, appears to be for the Plaintiff, and the
Court cannot intend any thing contrary to the Finding; therefore in this Cafe they cannot intend the
Devifor was not feifed, or did not die feifed ; for then, inftead of refolving the Point of Law, they
would take upon them to be Judges of the Faft, which is not their Pro\ irce. If they fhould intend
that the Devifor is not feifed, or did not die feifed, they mult intend the Defendant was Not Guiltv
the' the Doubt of Law was for the Plaintiff, which would be an Intendment againfl the exprefs Find-
ing of the Jury, and then the Court, who are no Judges of the Faft, w t>u!d refolve againti the Judg-
ment of the Jury, who are Judges of theFact. G Equ. Rep. z%^, 256. Lodge v. Jennir.gs.
■; SeeCA.g) pli.
T. JJ'hn
404. Trial.
71 What federal Matters are furmifed, and the IJJue taken upon one Pointy
if it be found againji me, all the other Points pall he held for confefs'd ^ and
tf It be found for me, nothing /hall be held confefs'd by me ; per Wich. Br.
Eltoppt-1, pi. 140. cites 32 Air 9.
8. Debt againji Cnflomer upn 'Tally pewn to him fuch a Day, Year,
Place, and County, at which Time he had Aflets, and would not pay j
To which the Defendant faid, that fuch a Day after he pew' d the Tally to
him, at which Day he had mthing in his Hands, nor ever after ; abfque
hoc that hepcw'd the Tally to him before this Day ; and fo to Iflue, and
found for the Plaintip; and the Defendant would have repleaded, becaufe no
Place nor County was alleged where the 2d Tender was, 8c non allocatur i
for it fliall be intended in the Place and County where the firll Tender
wasi quod nota, per Cur. But contra where he juflifies in another Coun~
ty, and traverfes in the firfi County ; for there the Place and County of
necelTity ought to be Ihewn ; for the County there is Parcel of the Iliue.
Br. Pleadings, pi. 9. cites 27 H. 6. 9.
T.iit if Ver- 9. In Trefpafs upon the Statute of 5 R. 2. ttpn an Entry into 40 Jcres
di-a be * in ^f Land, the Detendant pleaded that Non hitravit contra Formani Sca-
%"I%T ^"'^'» ^^^ ^"^ ^® toundthat he enter' d into 2 Parts divided from the o,d Part,
then it I'ee'ms and that he did not enter into the ^d Part divided frotn the 2 Parts, it ihall
that they are noc be intended by this Verdift that the Plaintiif and Defendant are Te-
Tcnants in ^ants in common j tor it fhall not be fo intended, unlefs it be exprefs'd
tlTimenZ in Verdia or Pleading. £r. Tenants in Com. &c. pi. 16. cites j 24 E.
ment of the 4. 20. 22.
Verdia. Co.
Litt lyo. b -^w^i if he \\-iA Entry hKifid in any Part, he might enter into the Whole ; but it
feems that this is intended before Partitiov. Br. Adion far leSr.itute, pi 54. cites 21 E. 4. to.
■}• The Book is miltaken, for there is no fuch Year ; but it fhould be 21 £ 4 22. a. b.
* HoltCh. J. faidth.it this i.'; not mention 'd in 21 of E.4. 22. b. neither is Coke pofitive therein, and
that it is only his Conjefture. Wms.'s Rep. 19. in Cafe of Fiflier v. Wigg.
5 Le. 152. 10. In Ejeciinent theCale was, A. devifed an Houfe to B. for Life, Re-
pl. 204. SC. jjjainder to the Heirs of the Body of Devi for. Remainder to J. S. in fee, Pro-
—s'c "cited ""^fi '■^^'- ^f ^' <^^^^-^b' (ieparted out of London, and dwelt in the Country, then
G. Eqti. R. pe fhould have a Rent out of the [aid Houfe Sic. The Jury find as above,
257. in Cafe and that A. died without IlTue, and that B. wholly departed from London,
of Lodge V. fffidy^giit to M. in S. and that J. S. being dead, the Heir ot J. S. before any
Jennings. £^^^^ releafed to B. and afterwards cnter'd. B. married W. R. the Defen-
dant. The Doubt was, If this Provifo derermin'd the Ellate before En-
try ; for if fo, flie was Tenant at Sufferance, and the Releafe could not
enure to her Eitate. As to this the Court held, that Ihe was only Tenant
at Suftcrance, and Entry not neceflary. But the Verdi£l did net find
that (he dwelt in the Country, which is Part of the Condition. But the
Court held that the Verdift is full. Then it was objected, that the Ver-
di£l did not find the Life of B. and then the Defendant cannot enter. But
Fenner faid. It Ihall be intended that fhe is living ; for the Jury did not
doubt of it j for they find that if his Entry, upon the Matter found, is
lawful, then he is not guilty , io they doubted of nothing but that Point,
and that fo it was adjudged in 28 Eliz. in B. R. and Judgment was
Quod querens nihil capiat. Cro. E. 238. pi. 5. Trin. 33 Eliz,. B. R.
Allen V. Hill.
Cro. E. 827. !!• Upon a Special Verdift one Burly was feifed in Fee of divers
pl. 52. Pafch. Lands in S. and devifed all his Lands in S. to his Wife for Life, and alter
4iEliz.C.B.^/^ fjjoj-g fyis Lands m S. calFd Somershy to W. B. in Tail &c. Anderfoii
took an Exception to the Verditt, becaufe it was not found that thafe
Lands are call'd Somersby. But per Curiam, forafmuch as the contrary is
not found, it fliall be intended that he had not other Lands in S. than
thofe which were call'd Somersby j per Bridgman Ch. J. in delivering
the Opinion of the Court. Cart. 80. Trin. 18 Car. 2. C. B. in Cafe of
Thomalin v. Mackworch, cites Cro. E. 828. Peck v. Channel.
12. In
Trial.
405
12. In Trefpafs the Jury doubted if a Refignation of a Donative to the Mo. 7(^5. pi.
Donor be good ; and if" the Relignation be good, they find for the Plain- l^^\ ^^•
tifF; hut did not find that the Donor had accepted frich Rejignation. But ^"^5 „(jj g
the Court held, that fuch Acceptance ihall be intended, and the Court pear. ° ^^"
fhall not doubt ot more than the Jury doubted of, they having con- ^i\v. 60.
eluded the Verdi£l on a precife Point. Cro. J. 63. pi. 1. Pafch. a Tac ^ ^- ^"'^
B. R. Farchild v. Gayer. ' ?■ ^ ^^^'''^-
„ „ „ S. C. cited
G. Equ. K. 2515. in Cafe of Lodge v. Jennings.
13. In an Ejeffione Firin^^ among other Things it was refolved that ic
being /o.'/z-y/ that the Leffor was now Incumbent^ ic was good, tho' they do
iictjind that he is m Life ; tor it is more than implied &c. Noy 143.
Anon.
14. In an A£i:ion of Debt upon a Demife of a Mejjnage with a Sheep-
Walk^ ic was moved in Arrell of Judgment, alter a Verdicl found for the
PlaintilF, That the Sheep-Walk was not alleged to be appurtenant^ nor pleaded
to be by Grant by Deed. But notwithllanding that, it was ruled by the
whole Court, becaufe it relied indilterent whether there was a Grant by
Deed or not ; that when the Jury find that the Sheep-Walk did pafs, it
fhM be intended that there was a Deed. Godb. 273,274. pi. 386. Hill.
16 Jac. B. R. Hurlfton v. VV^oodrole.
15. A Verdift may be taken by a reafonable Intendment^ as in jfUliDOOll'^
CtllC, tho' the Words are imperfect ; but that mull be where that Intend-
bient Jiands upright., and nothing in the Verdicl to impugn it ^ per Ho-
bart Ch. J. Hob. 262. in Cafe ol Duncomb v. VVingfitld.
16. Where the jury find a meer Matter of Fa^, as that Livery was
made fuch a Day, this Ihall not be taken by Intendment one way or
other, as whether it was made in the Forenoon, Afternoon, or in the
lali Inllant of the Day ; and therefore for the Uncertainty a Ven. Fac. de
no~co was awarded. See 2 Bulll. 305, 306. Butler v. Fincher.
17 In Ejefvinent the Jury yiW no 'title in the Plaintiff] but find that Cro. C. lu
King Henry 8. was feifed, and convey d to Defendant by Patent., which they P'- '4- Mich,
fet out in Haec Verba, and pray the Difcretion of the Court touching that ', r"^'?-^'
Patent. The Court adjudged the Patent void i fo it was objefted that no ^ "^'
Title being found for the Plaintiff, he could not recover ; but refolved,
that the fole Queftion being Whether the Patent was \ oid, they would
intend that the Plaintiff had Title, becaule the Jury had declared the
Defendant guilty, if the Patent was void. G. Equ. R. 256. cites Cro,
C. 21. Caftle V. Hobbs.
18. FjeRment of the Scite of a Alanor and 100 Acres of Land in B. Cro. C. 4^-
The J ury find the Leffor was fetfed in Tail oj the Manor. of B. and that this p'- ; • Paichi.
Manor was deliver'd in Extent j but does not fay the Land in the Declara- i^^ar. B.R.
tton was Parcel of the Manor. And by Crook and Jones, This is not
material i for being in a Special Verdift it ihall be intended, othervvife
there would be no Caufe of' a Special Verdiftj Per Bridgman Ch. J. in
delivering the Opinion of the Court. Cart. 80. cites Cro. C. 458. Cleve
V. Vere.
19. In Ejeilment the Declaration was ofaLeafe of 10 y'cres of Land /'» Sid. 25. 27.
the Par if h of S. Upon the Special Verdicl the jury find the Father of pl- 7- S. C.
the Lelfor was feiied of the Lands in the Declaration &c. Then they ^^^ordingly.
find an Indenture mentioning divers Lands in other Pariihes, and all his
Lands calPd N. lying /;; the Parip of S. but did net find thefe were the
fame Lands in theDeclarativn. It was adjudged the Lands in the Decla-
ration ihall be underllood to be the fame Lands cuU'd N. in S. the Rea-
fon was, to what Purpofe fhould the Jury meddle with other Lands j
Per Bridgman Ch. J. in delivering the Opinion of the Court. Cart. 80.
Trin. iSCar. 2. C. E in Cafe of Thomalin v. Mackworchj cites 12 &
13 Car, 2. C. B. Hoare v. Dix.
5 L 20 Indeb.
4o6 Trial.
Lev. 141. 20. Indeh AiY. Jor Tithes 'Without fijewing a Special Contraii^ was held
WXx\v\)t Vi. good after Verdift, becaufe the Jury have found it, and a Special Con-
SelndebU "^"^ ^^^^^ ^^ intended. Sid. 223. pi. 11. Mich. 16 Car. 2. B. R. Wright
tatus implies V. Jserle.
Sale and 21. After a Verdi6>, the Court fliall ailmit any Intendment to make the
Delivery. Cafe gcod. And therefore the Declaration being in Trefpafs, Quare Pifces
fiios ccptt in feparali Ptfcaria^ the Ch. J. faid it might ht intended a Ste-w
Pond, which is a Man's feveral Pifchary. Vent. 122, 123. Pafch. 23
Car. 2. B. R. Pollexfen and Afliford v. Crifpen.
Raym. 16. ^ 22. So where it was Phajianos Jttos ccpit, Twifden J.cited a Cafe where
2 ' B R ^'" ^^^y ^'oi^W intend that they -were dead Pheafants. Vent. 123. S. C.
Uflier V. Buflinel. Adjudged.
2 Lev. 119. 23. \n &n JJfamp/it , the PlaintiiTs declared, that the Defendant was
Oiorn?' aiiD excommttnicated at their Profecution, jor not paying of a 'tax made for the
(Lcili'np/* Reparation of a Church, of which they were Church- wardens, and that
k'ooD S. C. in Conjideration that the Bifljop would abfohe the Defendant at the Defen-
;jdjudged for danf i [pecicil In (lance and Requeft, the Defendant promiied to pay unto
tlicPiaintifts. ^.j^g plaintifts fo much. After Verditt, it was moved in Arrelt ot Judg-
ment, that there was no Conjideration on the Part of the Plaintifls, yet
the PJaintitis had Judgment i for it cannot be intended but that the Bi-
fliop abfolved the Deiendant at their Inftance, and would not have done
it but upon the Account of the Promife of paying the Money to them.
Vent. 297. Trin. 28 Car. 2. B. R. Curtis & al. v. Coliingwood.
2 Mod. 1 19. 24. In Debt on Efcape, the Q^uellion was, \V hether Sir J . VV. Warden of
^^A h ih" '■'■'^ Fleet, was liable to Efcapesi'ulier'd by D. his LelFee, D being infuf-
that tlie Tury iicient. The Verditl found that D. was tnfnjficient when put in, and at
having found the 'Time of his Efcape ; but it was not found that he was fo at the 7/;?/e
cxpiefsly of the yid ion hxonghz. The Court declared, that they were all agreed,
^■"V'f^'- ^^^ ^^^^ S''' I ^^ ■ ^■''^ liiible it the faid Matter had been found, but that
a" the "rime "^^^y could not give Judgment upon the Verdift as it was found ^ whercr
of the Ef- upon the Parties were permitted to take a Venire facias de novo, but they
cape, which rather chofe to have a Nil capiat ^c. entrtd, and fo bring a Writ of
was ■within 6 ^xxoT ; for their Counfel were \ery Itrong that that Matter fhould be
the'^Vlme intended in a Special Verdict, and their Declaration did allege him to
when the be infufficient at the Time of the A61ion brought, but Sir J.
Aftion was W. foon after died, and fo the Writ of Error did not proceed.
commenced, y^^^ ,,. Tj-jn. 29 Car. 2. B. R. Sir Walter Plomer v. Sir leremy
fo that hav- ,,rL- 1 J J
ing once VVhltchcOt.
found him
dif-ibled, unlefs it appear that he was of Ability afterwavds, the Court will not intend him fo, but rather
that he was infufficicnt at the 1 in-.e ot tlie Attion brought ; for there being ftrong Surmifes of it, and
there being no Ground within the Record to intend him fufficient, a Fadt may be coUedted that is not
found in the Verdidt. Freem. Rep 449. pi. 611. Patch. 1677. S. C. The Court feem'd that it could
not be good, being Subftance
2 Lev. 1 58. 15)0. S. C. tays that the Court awarded a Venire facias de Novo for this Infufficiency of
the Verdidt, and fo no Judgment in the Cafe ; andthat foon after Mr J. W. died before another Trial
could be had, and lb the Adlion abated. — 2 Jo. 60, 61. according to 2 Lev. and fays, the Court
inclined for the Plaintitf S. C. cired G. Equ R. 2^71" Cafe ot ?LoOse 1). Jt'IHingje fays that the
Adtion being on the Statute of Weftm. 2 cap 11. which fay.s, Si Cullos Gaolx nonhabet per quod Jul-
ticietur, vel unde iolvat Refi'ondeat luperiur. So that the Gift of the Fadl: from whence the Point of
the Law did arife, is the Infufficiency of the Inferior Gaoler at the Time of the Adtion brouglu, for
otherwife no Adtion lay againft the Superior. So that the very Fadl is not found that brings the (^e-
Ition touching the Law before the Court.
25. In a Trover and Converfion brought by the Plaintiff, as Aflignee
of CommifTioners of Bankrupts, amongft other Things he declared that
he was pofTefled de tino Vafe (^Anglice, Veflel) Vini Hifpanici^ and it was
objefted upon a Demurrer to the Declaration, that it was not faid what
the Vefjel was made of^ and fo no Meafure for the Damages ; fed non al-
locatur j
r
Trial. z|.o7
locatur ; tor it is intended to be made of Wood, as is ufed for Caslcsof
Wine. 2 Vent. 67. Trin. i \\ . & M. in C B. BlifTe v. Froft.
26. In a Special Verdiif whereby any Man is to be charged or hurt, or con-
vi£led, tho' the Jury find Matter of Evidence enough for them to find
the Faift, and give Yerdift againft him, yet ii they do not find the Faif
fuch Matter, tho' pregnant Evidence, yet it cannot be enough to im-
power the Judge to intend the Faft, or condemn him guilty of it. 12
Alod. 627. Hill. 13 W. 3. The King v. Plummer.
27. In Cafe for fo much Money promifed/or theUfeofa Coach andHorfes
for a Tear, tho' it was not exprefsly averr'd that M. had the Ufe of
the Coach for a Tear, yet it being faid that it was delivered to him, it Ihall
be intended, if the contrary be not fliewn of the Defendant's Side i per
HoltCh. J. at Guildhall i and Judgment for the Plaintili.' 12 Mod. 503.
Pafch. 13 W. 3. Atkinfon v. Morrice.
28. After Verdict it may be intended, that no Damages were given fm-* As where
Matter * infenftbk ■■, but it can not be fo intended for Matter fenjibk, ^^/^ the Gb//»«-
tnfiifficient tn Law. i Salk. 364. pi. 3. Pafch, i Ann. B. R. Clark v ."f^eTLfort
Martin. - the Com-
mencement of
the TrefMfs ; and intire Damages were given for all. Adjudged. Carth. 250. Pafch 4W. & M B. R.
Bridgcb V. Horner.
29. If the Verdict may any Ways be conftrued good, a Conjiru^iion to
defiroy it ought not to be made. Trials per Pais 276.
30. If a 'Thing is left out, and cannot be intended, the Verdict is not
good. Trial per Pais 289.
(Z. f ) Verdict Special and General. Where Verdi6t isseecu.f)
// good by hiUndmcnty or mid J or U/icertahty,
I. T jQ Account, as Receiver of lol. by the Hands of A. and of other sjy. ^,3
\_ 10 1. by the Hands of B. and of other 10 1. by the Hands of C. ^raDarbis
anti of otljer * %mm bp otfjet ^anu^ i if tlje 3!urp upon Bz unquc rW^-^^
lACCd^JOC plCatlCD, find chat the Defendant never was Receiver but of ■^^^J^^-
10 1. and as to one 10 1. that he was Receiver. "^1)10 10 IlOt ffOOU, bUt ^T'^taiiii-
aU uttcrlj) uncertain, tn^at loi. bp tijc l3anO0 ofinOat J^crfonljcbmsc.but
rccciuctj it i fo tljat m a nctu action tlji0 cannot be plcaOco in 'Bar* <^°« "orgi^e
l)\\\, 1649. betUlCCn St. Albans and Pendarvis. aHjUDgeU pCt CUtiaUl, l?^nlv r
anD a ©cuice faciasi He noijo atoatucli* that an iituc
(not faying
■what) was join'd, and an imperfed: Verdi<3: found; and thereupon a Ven. fac. de Novo was
awarded &c.
2. If the Jury find that the Defendant ajfumed Modo ^ forma without
faying to whom ; yet it is good. Noy. 83. ^ys it was fo adjudged in the
Cafe of Harding v. Unton. T. 3 Jac. C. B. Rot. 507.
(A.g)
4o8
SeeCY.f)
per toium.
Trial.
(A. g) Verdia: Special What fhall be a good Verdia
bj hte?idmenh See after.
•J^S c' bu I -^ '^ @)pen'al 3Dn*t3iCt finll^ that a. was pofTeffed for Years of
nothin? is"' »■ ^^nd, and that the Reverlion in Fee was in B. and that A. deviled
nicntiou'd of the Term to C. after the Death of M. whom he made his Executor, and
the Finding died, and M. entred, and during his Life C. after releafed his Poffibility
by a J^iT- to B. iJUD It 10 HOC found that the Reverfion continued in B. at the Time
se^c- cY.t ) p^- ^j^g Reieaie, vct tljtgi fljall be intcimcli In a ai)crm(t to * continue
in !)hn, it beina; tounD to be cuce m tjnn bp tlje Tame iDermct Deface*
Ji?» 1 3 Cat. 06. iA. bcttucen johnfm and irnmpr, j^et Cutiaui au^
)ungcQ. 3'nttatut ^icij. 1 1 ^^x. Eot. so(>.
S p. rei-Cu- 2. Jf ttje JUtp hnd a Special Verdift, and refer the Law UpOtt tfjC
I'lTpafcl, ^'^^^ ^peCWl 95nttCt to t{je CqUtt, tIjO' ttjCp Do not find any Title
2- Car 2 *°'' ^^^^ Defendant, which is a collateral Thing to the Point which they
B'R.inCa!erelbr tO X\)Z ^pWlU ^t tljC 3Da*IlS(t IS 50033 enOUEjIj ; ftiC all other
of Methwin Things Ifiall be intended and fupplied, but that which is reierr'd to the
dred^'of''" ^°""- ^^' ^- ^°°^'^^'^ 97- 35)«tlffCtI.
Thilileworth S. C. and S. P. cited G. Equ. R, 256. in Cafe of Lodge v Jennings. Hob.2<J2.
S. C citel and S. P. agreed by Hobart Cli. J. Trin. 15 Jac. in Cafeof Duncomb v. Wingfield. -S. P.
per Eyre J. ildn. 465. m Cafe of Ptiilips v Bury.
3. [As] 3if tljc Jutp fintJ tIjcCttleoftljc Plaintiff to be linnet
S.r. cited Qj^j, ^ijQ ^y.-jg %i^zi for life, ann tijei^ find tne tltate for Life, bllt DO
^'th End of "°'- ^'^'^ '■'^^ Tenant for Lite is alive, but conclude upon the Matter and
"he ofe"of° reter it to t!)C Coutt, anU tlje Court amuBgcs tlje fatter for tlje
jsioiineux v. plaintiff, tlje JutiJTvnfnt fljall be ijiDen fdt tlje plaintiff ■■, for tbe Liib
j^foiineux as ^j^^n ^e intended auB tlippUcQ, ti}£ Conclufton ano Ketetence to tije
cro r't4^ Coutt bcuig upon anotijec a^attet. l), 4 3a. 15. E. betiocen bntz-
pi. 4 "in the w//e and MoUmeu>i. ViQjUUCCtl.
jLiid Cafe of „ . . .
.Molireux V. Molineux, the fame Point was inflfted u^on ; And per Cur, it mall not be intended that
the LelTee is dead, unlefs it had been found ; And thu in a Special Verdid all necelTary Circumftances
fhall be intended, unlefs found to the contrary. S. C. cited G Equ. R. 25-. in Ca(e of Lodge v, Jen-
]jil-,<rs If a y«iv fK^i' Grant m-dic to J S. for his Life, hut do not fnd that he is litin^, yet we maft
intc'nd in a Special' Vctdift that he ftill continues alive, efpecially when the Plaintiff is to make out a
Title to avoid the Grant ; but it would be otherwife in a Plea. Per Holt Ch J. Q;iod fuit conceriuin ;
Per Pov/el J We cannot prefume that he is dead; for he being once found alive, wc muft take him fo
to continue, unlefs it were exprefsly found that he is fiace dead. 2 Ld Raym. Rep. (jp^j. Trin. 2 Atin.
Smartle v. Penhallow.
Go. 16Z-. 4. Jn Ejeaione firms, if tIjC l\m find a fpeClal 35Crt!ift, to tDit, that
^' V ^^RR^ ^- devifed the Land to his txecutors Quouique thev levied fuch a Sum
SC^'but of^'fon'^yj or '^'s ^^''" ll-iouid pay to them the fliid Sum, ailO CCnClUDC
s; p'. does upon tlje Spatter, it tIjc Court tljinU tljat 3'urisment njall be for tijc
not appear. j^JaiHtlff $C. aitO tljCP 50 not find that the Heir has not paid the Mo-
■ ^^l? ney, tho' it appears that the Money cannot be levied within this Time
alcordingiv out of the Land, tlji0 (ciuoufquc tljc Mt pa^s tbe C|9onep) i^lpAZ
eel of tlje limitation of tlje caate, ibljtclj ought to be found i otijer
uiife tlje Coutt, uitjiclj i^ to anniUffc upon all tbe 99atter, (ball not
intenn it. Sinn tljere is Diverjity in Pleading, ujljere Ije uiljo uiill Ijauc
"Benefit of it map fljeiD it, and a Verdia, uiljcre tljc Coutt 10 to at
junge upon tlje Dcrbict founti. -STt. 19 3ia. 05. E. bettoeen L.uigky
and Paine, Pet Curiaui aounpD.
5. Jf
Trial. 409
5. Jif a 3littp finti a fpcctal aDcctilct, in uiljlcljluep find chat j. s. was r^^oCo
feiled in Fee ot Land, and niatJe 1)10 IBHl, nnU * tIjCrClip devifed all * J^^V^?-
his Efhice to B. paving Debts and Legacies, and refer tO ttjC ClOUrttljC StT'zSi^^
Q5attCr in IntU upon tlje J©iU, fCiliCCt, tUJjCtljCC the Land pals'd, and 195. s C.
a Fee by it, tlllt DO not find that B. has paid the Debts and Legacies, accordingly.
pet tl)(0 IS a goon aDcmict, becaufc it is a Connmon propcrip, anU ,^%^y.^
not a imutanon* '2rr> 1651. iictuieen jchnjon and Ka-mau anjucfjco* ^ ^
Jntratur Sp. 1649. Hot. 153-
6. Jn an QCtlOn upon tijeCafe for taking of certain \^■cod, UpOU Mo. ^pr. pi.
Not guilty plcanclr, iftljeJiUrp find that A. bargain'd and fold 300 95^ ^^ap
Cords of VVood to B. out ol his V\'ood, to be taken by the Alli^nment of 2?^^^ ^* „
A. and that B. before Alfignment grants it over (tuljicl) Uia'^El tlje ^attCt but s p
in LaiU") f C» tljO' no Conlideration Of t!)C IJaVgatn anO Sale be lound, does not ap-
vtt It fijflU be intenneu in aiDecQict, ^^ 43 €1 13«H» betiueenp-"-
K:ljct arid Majnard. I ^^^P-if-
Cnfe, S. C. but S. P. does not appear, Cro. E. S19. pi. 14. S. C. and S.P. arcordingly.- -Noy
ii. S C. but S. P. does not appear.
7. 1\\ Ejectione firm^, if tljC Z\\^_ find a fpeCinl DettliCt UpOU a 2 Roll Rep
^^■ill, in UJillClj tljCP ftnU that a. had Ilfue 2 Sons B. and C. aUD DO f'^- ,^p^-
not find which ot tnem was the eldelt, and which the youngeft, Uiljldj [^"^ ^ '.
i.s material in tljc Cafe, tljis a^erDlct is not itooD ; for tljo' 15, is tirft ,ear ""' '^^
nanieD, vet it Docs not appcac bDit tijat Ijc isttic clDcft ^on, g3idj»p^im. u.
20 ja» 05. H» bctiucen Pf;^// ^//^ pe^^y^ aDjiiDgeD, ^mman
S. C. but S p. does not appear. Ibid. ^05 ^irnnan i). ^UTfe, S. C. and S. P. anJ ihc Court
awarded a Venire facias de Novo. Bridj^m. 14. 6>. C but S.P. docs notappear.
8. Jn Ejeftione firm^
was feiled of the Manor ot
nor the Detendant was a Copyholder of the Place where &c. and did ^d^S^P o!-'-
Walte, b}) cutting of an ©ak, and that after J. S. died, and the Leilbr jecied to the
of the PlaintiiT, being his Coulin and Heir, cntred intO tije C^aUOt, auQ Vcrdiit ;
into tl)C }9!ace UlljCte 5C» Ibr the faid Forteiture, and was thereol Iciled ^!'j'* ^!"^^' ,
in his Leinelne as ot Fee, and concludes 8i fuper totam niaceriam &c. i,-, cai?'th^- '
CljiS IS not a gOOD DeVDiCt, bCCaUfC it is not tound that J. S. died lb Verdict haci
ieiled ot the ivlanor, and that it defcended to the Leilbr aSljtS CCUfiU f«undthat
anD i;ctr i for it nia)? be tIjat J* #♦ altcn'D tlje lauD, anD tljat tljc f;' ^f^''}
JTatijcr of tljc Lctlor, or tije Lcffcr Ijnniclf rcpurcijas D it, auD tljat •, H.'f •"
}jc taas alfo Coufin anD Ipcir to %\ ^. tor tljo' it be in a a:)i'rDift, ^tt and he r'ld
It fljaU not be intcnDcD tljat tije jfce continiicD in 3i> €>» to ijis Deatij, ''^^' ^ii ac-
nuD tijat be dicd tljcrcof ilifcD uittljout finDiiiiT: of it. p. i Car. be= "°^' f "- „
tlUCCn Coru-jual/is a^id HcWHM/id \pZt€Umin, U3!3lCij ;S CUttCD Ct* 22 der«ndto
!Ja, 15, Hot. 191- the Keirj
but rot For-
feitures, when it is in the Will of the Anceftor to take Advantage of them, or not. Adjornatur.-
Lat. 226. CLOrntoallia tu if^orU'OOO, or ii]ammonD, S. G. but nothing; faid as to this Point, any fur-
ther than barely mentioning its not being found by the Verdict. S. C. cited G. Equ. R. 258. in
Cafe of Lodge v. Jennings.
9- In tin Ejeaione firms, if in a fpCCial VtVXiKt it {it found that J. S. Noy 152.
was deprived by the High Commiliion Of a ^BCiKfltt, atlD it IS fOUllD Jg^'^f," .^•
in this Manner, that fUClj 13erron0, Authorizati Vircute literarum Fa- f|' p^'' " '"^
tentium DOUliUie CUfabettJ^ HcgiUJe $C» anD it is not tbund that the Bro^vnl.
Letters Patents were under the Great Seal, ].'Ct It iS ^OOD i fOt it fljall ^-'- S- C.
beintcnDeD inaoDcrDlcr, '^u 13 Car> 05. E. m\3itm-Me» afjd'ii-'^'^-
Najhe, tuljicl) teas Himiey'^ Cafe, aDjuDgcD per Curiam, ^iclj, s \^Ztiiv\
Car» JAOt. 508. Cafe, S. c.
hat S P.
does not appear.- — Jo 59;. pi. 2. 3iIUn ij. iSail;, S C and takes Notice of the Deprivation, but no
JMei-ition as to Letter^. Patents.
jM 10. Til
?, if tlje 31urp find a fpecial 2DcrDict, that j. s. P'lm. 4'^-
ot D. in his Demefne, as of Fee, ot' which Ma- r u'^Vr'^''
4 1 o Trial.
do. c 28S. 10. jn Eje£tione firm^e, if tljc 3lurp find a fpccml ©ccuict, bcinij a
s'c'' ^b'^\i ^^'-^'■^^^ '" Law, upon a Leal'e lor Years referving Rent upon Condition
S. c'^but ^'^- I'l't "° Title is found for the Plaintift'nor Defendant, bUt it ijg only
S. P. does found that the Leflbr of the Plaintiff, being a Stranger, entred intO t\ii
notappear— £{^^0^ and leafed it to the Plaintiff, by which the Plaintiff was poliefs'd
J°- V^^(^*'} Prout Lex poltulat, till the Defendant entred and ejefted him i tijijS l'^
s'p docs"' not a sTOOtJ i*>crDi£t, tijc mtlt appcaving; to be in a ^tranrter, ii:itl)=
not appear, out HH iUtuai ©uftct wmz to 1)1111 ujIjo ijaD t!}e Eigfjt, C'ontra
_Godb.44b\ (£ap, '25^ 3^^ betUlCen Bland and himan, aOlltigen bp 3 tm.\\&
^.J'J; rpinc ; bift \\\ t©nt of ercot in tbe ercljeqttct Cf)ambec, tljC Court
ofe' 6. c. feenien t contra* Slnti afterUJarBis conipoinmetJ*
but S. P.
docs not appear.
Cro.E 815. II. 3!n an Ejeftione firmse by the Leffee of a College, if t!)0 3|ttrp
pl. 5. S. C. find a fpcCia! DCUBiCt m tIjiS panncr, fCiUcet, that the College leas'd
accor "^S'y» [i to A. upon Condition, and find a fpecial Matter in Law whether the
Solution Condition be broken, and that the College fuppohng the Condition
4 Rep 119. broken, by their Bailiff, entred and leas'd it to the Plaintiff &c. tljlS i|2i
''">>^-'^' not a l^OOtl fpCCtai S^CrniCt, * without finding of the Command, i\l\jetl
tolToo jjj, j-jjj, qt^qj|j(t;j. j-q ^jjj. OcaHtff to t-nter, to be by Deed ; for OtJJCrUJifC
bHill 4r it 10 not gOOO* l^, 43 €!» "B* K* betUiecn Dumper and Syms ail=
Elii. B. K. )UJ3PQ»
©iiinyor's
Cafe, S. C. but S, P. does not appear. S. C. cited G. Eqii. R. 25S. in Cafe of 5fi,Oll2f l'.3!l"nninctfi ;
and lay.'!, that the very Gift of the Aftion is, whether the Condition is broke, or not ; which Con-
dition givino- the Plaintiff a Right of Entry, it can never appear to the Court that there was any
Breach, unlefs there be an Entry for the Condition ; and a Corporation cannot malce a Bailiff without
Deed ; and therefore a Bailiif without a Deed cannot enter for the Condition broken.
Roll Rep. 12 3ifiu Ejeciione firmed, tlje IJutp find a fpcdal ©ErUict, anti fillQ
191.pl 50. fpecial Matter in Law, whether ). S. has Rio;ht to the Land, UpOll
I p does ^iJ^i^^J f^^^ ^^"ff at!)U00;c0 tljat Ije ija0 Eisljt-to tlje Lanti ; but tljcp
not appear, fi"*-^ lurther that J. D. entred into the Land upon J. S. and was iciled of'
—Ibid. 227- it Prout Lex polhilat, and made the Leafe to the Plaintiff, and the Leffee
pl. 55 S. C. by Force thereof was poffefs'd, anO it iSi not found that J. D. dilieifed
''?emtner f"^- '^"^ tljetefotc upou t!)(0 iDcrmct it fljail not be iuteiincD tijat J.
but adjorn'a- D* ouftcn 3!* ©* aHt! rmVeifcD ljtui,aiiD tijen tije emrp of :j, D. anD
tur. 2 1)10 Lcafe ijoio ; aiiD fo tlje Action ooc0 not \\> agauut a S^tranger
Roll. Rep. u)jjo {ja0 notljins \\\ tljC Lano* '<ji:r, 13 3ia» 15. K» bctuiccn Hnci:m
HiifMiac. ''"''^ ^^°^'''' l^^*-' ^ncianu
B. R. but
is. P. does not appear. Cro. J. 463. pl. 11. S. C but S P. does not appear.
2 Roll Rep. 13. Un EjeiStione firmse, if Plaintiff declares of 100 Acres of Land
'^^ Slo"'* &c. and 100 Acres of \Yood, ailQ tljC JlUtJ? find for Plaintiff for all be-
8 C °but ^''^^^ '■'^^ ^°° Acres of Wood, and for them find a fpecial Verdifti bp
left imper- lUljlClj It 10 fOUllD that the faid 100 Acres of Wood, Time whereof Me-
fcft. niory &c. were Parcel of the Barton of Prid. and tfjCU '^in Indenture is
found in Htec Verba, by which it appears upon the Words, that all the
Barton of Prid. (except all Coppice- wood growing, or w hich after fhall
grow upon the faid Barton) is conveyed to the Leffor of the Plaintiff;
turn concludes, Si fuper toram Materi'am &:c. tlji0 10 UOt a gOOD fpCCial
©cttict to Uraiu tljc 99atter in jLato intcnnen upon t&e Crccption
Of tlje Coppice luooo in tbe Dccn in Ciueftiaii, bccaufe tt 10 not found
that there was any Coppice-wood upon the Barton; fOt nOtlUltljitanH'
ing tijcCrccptiou in tijc Dccn, it map be tljat tOctc arc not ?>nD Cop=
pice=U)ooO0 tijcit, but tlje |©ooii0 \\\ fiueition UJcre ijrcar iii?aoq0,
aii5
Trial.
4ir
nun not Coppice luooti^ ; but inafmuclj as it i^ fount! tljat tije loo
aciT.es of i©ooo in tljc Declaration arc parcel of tljc ISarton, anD
tijat all tljc Tiarton [i^] founn conUcy'D, crccpt Coppice luooD grouj=
imj, anu no Coppice mm Qtomus tOcre, tijcrc is fumcicnt CTitlc
founn for tlje piauitiffto ljalic3iniJ0;mcntfO!: tije looCla-cs of naooo*
pM 22 3ia, %. R. bctuicen skeandHcrU aDKiUffcn Per Curiam^
14. 3n a rpCCial BCrDlCt, if tljc 3iUrp find a Recognizance in Nature c ^ • 4
-'-'»'»- — -• ^-S _ , ,„'-'- 6. C cited
t
Hob.
in
&c. nee per Scriptiim obligatorium &c. luljCte tljC @)tatUte Of 23 Ix 8* p**!? °^ .
pro^jiQcs tljat It fljail be bp 15\\\ obligatori), icalD luitij ^ gicals i'ana Tad-fon
t)erc It appears not bp tlje a:)crt5irt tijat tijccc iaas aup laona or ^cal, ^nd ibid.
nor tlj>u It tnas accorDinn; to tljc Statute, pet tljis is a good a?>crDict, ^^^- '" c,>f;
tnnramclj as tljci' IjnDe founD a Eecoij;ni?ance before tljc o^apor ano ^n s'"""
Eccorner $c» it fijall be mtcnocD accormnn; to tije %tm\tt ; for win.fidd
otljcriyifc tljep cannot tal^c ani) Eecon;n!?anc^i ann bp all tljc ^3)cqacl -s c dte'd
of tlje a:)ccr»ict, it appears tijat it toas luclj iaccogni?ance; ano mt- ?^^>'™ '5^-
Olcrsoflapmcn fijaii be talten accoruino; fnijcir ^[intent, antJ nccDc^f'^"^
not i<i precife a Icmi as in i^leaouiiiS* Co. 4. Fuiwood 65. b. Ec= stonc ' ^'
folbec. Dobart'S ivcports 76.
15. In a fpeCial aDCrntCt, if tlje lUrp find chat J. S. was felfed in Cro.C,44:.
Fee ot'anvLand, and poli'efs'd of certain Leafes tor Y ears of other Land, P'- "* ^- ^■
and made his Will in Writing, and tljCrCbp devifed his J-.eales to J.D. !"''s*^-^(^- P^-,
and after llCl)ifeB to his Executors all the Kelidue of his Eftates, Mort- s>. does '^^
gages, Goods &c. his Debts paid, and Funeral Expences difchar^'-ed ; not appear.
tljis tuas not a perfect fpecial aDcrbict, tlje $?3atter in laiti refcrti to ~r^°- '^'•
tije Court beins, wljctljer tljc executor Ijas an eifacc in jFcc bP tljis bat\s 1^
©e^Jile, or not, inafmuclj as it is not tound that the Debts were paid, does not ap.
and the tianeral Expences dilcharg'd, lUljiClj iS a COnQltiOn prCCCncnt ; !'=»'••
fo tljat tlje Ci;caitor cannot Ijabc it before tljc* Debts paiQ ann ira= CV'^-'^
nerals Difcljars'ti ; auu tijercforc a aDemte facias be i^obo is to be ^Ar^' >
Ktantcti. IpilU 10 Car. 06. 3X. bcnnccn wnkuifon and Ahnam \f>a "^ ^^^
CDuriam ; ann 3i bcliebe tljat a aDcnirc lactas Dc Ji^obo urns ffrantcD
accort!inn;Ii'. SntratucCr. loCar. l\0t. 1043.
16. Jf Baron and Feme atCfeifed tor Life, ffjC Remainder in Tail to Cm C. ;9i.
B. the Son, tljC Remainder in Fee to B. aUb Baron makes Feoffment p'- ^- C^ipm*
with general Warranty to C. and dies., nilD aftCC the Feme and B. enter, ^!^^ ^i
and make Feofihicnc in Fee to D. ailt! tIjCn C. enters, nUb \\\ aU ClCc' f C Ay.,
tionc firman all tljis is founb bp fpecial Dcrbict, but it is not ibund that chat joncs
B. was Son and Heir to the Baron, bP UlljICl) tijC ilDaVtaUtp nm\)t 5C' ^"'^ ^-'-^^
fcenb Upon ijim to binb Ijis Eemainccrs, but is only found cLat the J|=y '^^'^
Baron had Ifiue the laid B. his only Son bv the laid Feme; UPOU tljl'S \\SKnntv
a^erbict it fijail not be intcnbcb tljat ije tuds S>on ann loeir of tljCBa^ wa.s no bL
ton, auD [tljat] bp tljis tlje Kemainbcrs of 05. fijail be barr'O bp '"^""'"'^ it'
tljc it^arrantp anb Defccnt of it upon Ijim -, for i]z niuTljt Ijabe otljcc T' T\
%m bp anotbcr jfcmc, cr tbe ilBarrantp nnixlit be bflcljarwb or re= heTas h'I-
^eafeb in IjiS Life. IDill. 10 car. 03. E. betiuecn Gnniett and Saundry and it ihaii '
Jpec Curiam, anb after tlje fpccial ©erbict Uiasamenbcb bp tl)c''^''^'="ther
JSotes, to itJit, tljat 05. mas ©on anb ipetc to tijc03aron. hTiw''''
, _ Heii-.bccaufe
it is Col lateral If^arrarity, which is not to he favoured ;and it may be tl-,at he had elder Sons by another Ven-
ter, or there might be an_ Attainder ; but Crooke J. held contra, and the rather becaufe it was found
that the Indenture calls him Fiiium & Hiredem fuum apparentem ; and that a Plurality of Sons ihali
not be intended, efpecially as this Cafe is, becaufe if he be not Heir, there is no Colour to have a fpe-
cial Verdift. S. C. cited G. Eau. R. 259. in Cafe cf $.cCt'C lu JniniUSf^ ; and lays that thft
being Heir is the very Gill: of the Fail:, and is abfolutcly mcelfary to bring the Doubt before th4
Court.
I", A Lcr'e
4-12
Trial.
Cvo. E. 89. 117. A Leafe was made to R. S. and T. Habendum for their 3 Livest
pl. 13. S. C. ^.^^ -^j^^ Life of the Survivor, Provifo that S pall have no Benefit during the
l^i^X"^^ Life of R. nor'Pallf. during the Life of S. K Leafe was made by T. and
(TabilJ'^iys hi^ Ltffee brought EjeHment, and the ]\xrY found a fpecial Verdi ff, but did
the Lcafe ;;o/ |^nd that T. inho made this Lcafe, '•jDas living. Adjudged that it was
was made by ^^^ material ; for it is ibund fb by Implication, becaule they fay that if
ll.'s Death • ^1^'^ ^^^-f ^ joint Lcafe, then the defendant is Not guilty ; but if it is a Leafe
buV this in Remainder, then he is ; by which it appears, that they did not doubt
Po'nt of the hue T. the Lellbr was living, nor of any other Circumftahce, but only
d'^'l'm ^vhcther the Leafe to R. S. and T. was joint, or by way of Remain-
does' not ap- ^'-'T » ^^ ^^ "^he Court now is not to meddle with any thing tik. Moor
pear. 267. pi. 418. Mich, ^o & 31 Eliz,. Lev erlage V. Cubic.
ibid. 10-.
pi i. S. C. but S. P. does not appear.- Le. 517. pi 446. S. C. and fays that the Exception taken
to the Verditi', was becaufe the Life of T. was not found ; but the Court held it good.
a Lc 9-. 18. In Eje5imeht the Jury found, that the Dean and Chapter of E. made
P- "9- a Leafe for Tears, rendring Rent at their Chapter- hoi fe, and jor Non-pay-
\^„\J'^^ ' ni<:»t to be void. The Rent not being paid, they made another Leafe to the
i' taint iff for 21 Tears, and a Letter of Attorney to J. S. to enter and deliver"
the Leafe on the Land, which he did ; but the Jut)' did not find that heen-
tred and claimed it to their Ufe, and then delivered the Leafe as the Letter of
Attorney direBed; and therefore it was inlilted, that he had not purfucd
his Authority. Sed non allocatur; for in a fpecial Verdift the Circun;-
llances of every thing need not be lb llriftly Ibund as they are to be
pleaded ^ and it being lound, that by "Virtue of the \V arrant he delivered
the Deed on the Land, it fiiall be intended he purfued it duly. Cro. E.
167. pi. 3. Hill. 32 Eliz. B. R. Willis v. Jermin.
19. la Detinue of feveral Parcels of Plate, Qviz.^ a. Bafon, Ewer, Silver
Bowl, and feveral other Parcels, to be re-deliver'' d on the 17 Day of May
folloyjing. The ]\irY found that the Plaintiff was poffefs'd 16 Febr. 36
Eliz. and by Indenture between him and the Defendant, fold to the De-
fendant feveral Parcels of Plate prout in the Indenture, which they found
Verbatim, in which the Bafon and Ewer, and all the Parcels esprefs'd m the
Declaration were mentioned, and that the Sale was to be void on Payment of
ftich a Sum on I'jth May. They found the Payment, but did not find that ■
the Parcels in the Declaration were the fame with thofe mention'd in the In-
denture, but only that he fold divers Parcels ; and this was affign'd lor Er-
ror ; Ibr tho' they be all one in Name, yet they may be leveral^ and
Intendment will not help; and of that Opinion was all the Court, and •
therefore [udgment was reverfed. Cro. Eliz. 866. pi. 49. Mich, 43 &
44 Eliz. in Cam. Scacc. Bateman v. Elmer,
(B. g) Verdi6i: Special. Where a Special Conclufton of
a Special Verdicl lliall aid the ImperjeBions of the
Verdia.
I, TII3 an Ejeaione Firmse, if tIjC PlatlttifF declares upon a Leafe
juyuicrcucc J[ jjiade by A. anil tljC 3!Urj) find a Special Verdifil, and Matter in
S ecfarcon ^^^ "P°" ^ ^o^Qx of Revocation of Ufes Ijp an 31nOentllCC, and Li-
clufion and" mitations of new Ufes, and tljCn a Leafe for Years made to the Plaintiff
Reference by LelTor in the Declaration, and another in which there is an app.irent
Variance ;
So note a
Difference
Trial.
413
Variance i but tljei? COllClltUC ti)t 3DEl-IliCt, mm rekr fO tlje COUCt '"^ f'"= Co""
Whether the Gnmt of the new Eltace ibund in the Vcrdidi be a Revo- ^"^^ Gene-
cation of the tint Indenture or not. Cljtg gipCCtaJ CanClUfiOlt fljal! Sn and Re
aiB tljc aDcrtiict, fa tljat tijc Coiirt canuot taK'c notice of tDe ©aru f..ence to
mtc in lijc Icafc bctioccn tJjc Declaration nno ^ocroirt, becaufe tije t'^sCoun.
Donbt tcucljuuT tljc llcuocation i^ on(j) rcferr'D to tljc Court ; ann i '"'' p^""
tljo' tijcp rcicr to tljc Court, l©l)cti)er it be a l^cijocation of tlje firtt '* cro c
SnBcntiirc, ann not of tljc firft meg, ann iLinutation of ncia itfess, 4-2. pi. 6.
as It oimijr to be, pet ut a Dcrosct it 10 fufficicnt -, foe tljcic intention s c but
appears* Cr. 13 Car. 'B* 1%. bctiuccn * siu!pcaud Tnno?i, auiuDgcti °"'y %s.
per Ciinani, upon a Special mma, Sntcatut '^i. 1 1 Car* Eot. verdia
1 1 37- • finding that
it was with
Intent to m.ike a Fee to pafs, it was i-efolvcd to be a Revocation within the Provifo. Jo. 592. pi.
I. S. C. but fays nothing of the Vcrdiiit.
2. jr an JlTUe bC^V'hecher J. S. was taken in Execution bP tljC ^IJ^ ^o^- 5~- ?'•
tiff, bv Force of a Writ of Capias ad Satisiaciendum, anD tljCSHtP hn'd l°- ^,^} —
tbat Ijc U3a0 Not tal^cn in execution bj) jforce of a mnt of Capias T-: s c -
ati@ati0iacicniiumi but tijcj) furtijer finti that he was taken in Cj:e= (Y.'f)pi.
ClltlOn by Force of a J©ilt Of Alias Capias ad Satisfaciendum in Re- 2.,5- S. C—
cordo pri£di6to minime Specihcati, aillJ COnClUCC !^i fuper totam Mate- ^^- ^^ P|-
riam tljc Coutt fljalt intcitt) tijnt tljc ^ijenff touk Ijini bp jforce of ^''
tlje JJBrit ut Capiat luitljin niention'ti, tljcn tljej) ftnD for tije Dcfett=
tiant i If otljeriDifc, far tIjc plaintiff. 3in tljis C^i^z tyisi S^pcciai
ConClUfiGn IjagI aided the Repugnancy Of tljC jTtnlling bCfOtC, fO tfjat
all tljc g'pectal Si^atter 10 put in tIjc Jungnicnt of tljc Court, I3i3'
bart'js Ecportsi, 72- betuiecn Fi<jfcr and fackjon, aojubijet).
3. Jn l^ebt againlt Executors, ailU tljC -llfue upon x\ilets enter Mains, C^^^K^^^
anD * tije Siurp find a €)pccial a^erDirt, ti).u i0 to fap, that Teibtor *^^'^ -°^-
made a Leafe of Land and Inipienients lor Years, rendering Rent to scP^'^^^^h^
him and his Heirs and Alligns, and that the Executor had received the byHobart
Rent continually after the Death of the Teftator, and Hi AlTets j anQ Clh.J. Hob.
nlfO Petunt Advifamentum Curise, if it fljall bC aUUlOWn SHfCtlS Ot UOt. 'Jj^j^^''^
Cl)is 10 not 3irct0 in laui, ann tlje Court fijall juniTc upon all tbe ISS^^*
spatjcr tiQunu, ann tijcn tljc t;fo affet^) njull be a 53010 jfinoins. D* fnd %"'
20 Cl+ 361. 15. that where-
foever a Ju-
ry begbis liith a Special Matter^ ^wrf after makes a Ceiiera! Conchifcn upon it, contrary to that which the
Lmv and the Court do judge upon the Special M,ittcr found by them , or, on the other Side, <when they
begin 'aith a Aiveii V erdiii , utiA yet after diduce a S^eci.il Matter, which is cevtrary to their direct FerdiB, or
in Law p'oves the Truth coyitrary to their General I erdict premHed, and clolcd them up, with fubmitting
the Whole to the Judgment of the Court, as in thisCafe it is, in both thefe Cafes the Special Mutter
males the l^erdift, avd ozer-rnlcs the Gc?.eral.
If the Jurors take upon themfelves the Conufance of theLaw, and find the Special Matter, and raiC-
take the Law, the Judges of the Law fliall give Judgment upon the Special Matter, according to the
Law, without having any Regard :o the Conclulion of the Jurors, who ought not to take upon them to
judge of the Law. 1 1 Rep. lo. b. in Cafe of Priddle v. Nappcr.
4. 3'f tljc !!iUrp fiintl a Special Verdia, and refer the Law UpOU tIjCSeeCA.g)
raio 8^pccial i^attcc to t'jc Court, i1j3' tijep no not find any Title for pi- -
the Defendant, which is a Collateral Thina; to the Point which they re-
fer to tlje Court, vet tljc ©ccnift 10 goati cnouglj , for all dtljer
Cljintvs fljall be intcnticti, beftneg tf)at luijiclj 10 referr'D to tijc Court.
CO. J. Gw<ir/;', 97. aajuugeti.
5 N (B. g. z)
414
Trial.
(B, g. 2) fPljat fhall be faid an I//qiiefl of Office ojily.
'■Mi
Sftze hefjueen 2 Jbhts^ and found for the Plaintiff, and further
_ _ hey were charged of the Right for the Colhijion ; and iu this it is
only Inqueil oi^ Office, and if they find Matter to the Writ it is not
good ; lor in this it is only Inqueil between the Parties, hr. Enquell,
pi. 27. cites 16 Alf I.
2. Jvsrment'of Affits by Defcent is IfTue join'd. Br. Enqueft, pi. 83.
cites 16 E. 3.
3. hiqtiefi is fijb'orn upon Iffac of Nnfance, and Exception was taken, be-
caufe the P'erdilf was taken out of the Place and out of the Tune, viz. the
Ilfue was in B. R. and the Verdift Ad Eccleham Sancti dementis Da-
coruin. Per Scot |. We will take tlie Inqueli by Candle-light, if they
cannot agree i and if we are to remove, we will take you with us in
Carts; and fo may the Juilices of Alfife. And fee that hqiiiry of Nti-
fance taken by Commt[Jion is only Inqueft of Ofiice, and Procefs fhall be
made by the Court againll the Parties to come and anfA'er. Nota. Br.
Enquelt, pi. 29. cites 19 Afl'. 6.
4. Office is found for the King, and afcer upon falfe Surmife other Office is
found j or one Party, this lliall not difcharge the Office found for theKing;
but if he enters, it is Intrufion ; tor it is only Inqueli of Office, which
lliall not difcharge the Title of the King ; and alio hiqueft of Office found
for a Sid'jeff pall not bind any Party ; quod nota ; for it is only Evidence :
But Inquelt of Office found lor the King Ihall bind, till it be traverfed.
Note a Diveriity. Br. Enquelt, pi. 22. cites 21 E. 3. i. 2.
S. P. per j;. Rediffeifin is only Inqueft oi Office, by the belt Opinion. Br. En-
Son"""^ quelt, pi. 32. cites 4oAir. 23.
Br. Enqueft, pi. S5. cites S. C,
6. In JJftfe the Tenant pleaded Bar, which does not confefs Oujler, which
is found againji him, and the Setjin and Difjeijin alfo. There lies Attaint
ot the Verditl of the SeiJin and Dilfeilin, if it be falfe ; and fb fee that
it is not Inqueft -of Office in this, but is an I[]ue implied in the Law betiveeit
the Parties, as it feems. Br. Enqueft, pi. 84. cites 11 H. 4. 26. 27.
7. In Dower the Tenant came at the Summons, and faid that he has been
at all Times ready to render Dower, and yet is ; and tht Demandant faid
that he was not ready, and that her Baron died feifed ; and the firll Aver-
ment of the Demandant cannot be taken, becaufe the Tenant came at the
Summons, and /f n? to inquire of the Damages was awarded, and found
that the Baron died feifed, and Damages &c. Per Tillelley, This is
only Inqtiefl of Office, where it ought to have been by Iffue tried, and there-
fore the Demandant fhall not have Judgment upon it. Contra perThirn.
j^u<ere. Br. Enqueft, pi. 17. cites 11 H. 4. 40, 41.
8. Where Inquejt is awarded by Default upon IJfue join'd, this is not In-
queft of Office. Br. Enqueft, pi. 82. cites 21 H. 6. 56.
Bui 16 Afl". g, Affife awarded by Default is not Inqueft of Office, Br. Enqueft,
1. it is faid I g2. cites 21 H. 6. 56.
that A§[e *^
taken by Default is only Inqueft of Office ; quod contrarium eft, as appears elfewhere; for Attaint lies
of it. Ibid.
10. Writ to inquire of Wafle by Default is not Inqueft of Office. Br.
Enqueft, pi. 82. cites 21 H. 6. 56.
II. Pracipe
Trial. 4 r c;
11. Frar.'pe quod rcddat by a Religious Mau^ which paffed lor him upon
Illuc tried, and the Jurors inquired cf the Ccllu/iou us they ought &c.
This Inquiry is only Enqueft of Office. Br. Enquelt^ pi. 2. cites 33 H.
6. 25.
12. Inqueft taken in prcprietate probanda^ is onlv Inqueft of Office by
2 Jultices. Br. Enqueil, pi. 83. cites i E. 4. 9. & Fitzh. proprietate pro-
banda 3. &; Fitzh. Replevin, 35 & 36 accordingly.
13. Inquelt upon Extent of the Value upon Recovery in Value by Voucher,
is only Inqueft of Office. Br. Enqueft, pi. S3, cites i E. 4. 9.
14. In yippeal, the Defendant is acquitted^ and the Plaint ijf' is not fiif- * S. P. Br
ficient to render Damages, and 2 icere * Abetters, this is only Inqueft of ^"^l^^^' P''
Office againft the Abettors, and they may plead that they did not abet, s'c'^"!L
Br. Enq^ueft, pi. 43. cices S E. 4 3. So in Jffife
iy an Abhoty
the Title is jcmid for him, ,vid /iffcr they incjuire of the Abetters of ir, it is only Inqueft of Office. Ibid,
^:<icye cf Inquiry of the niefne Occitfiers in Jjfife. Ibid. -It is only Inqueft of Office, as it leems :
lor they are Strangers to the Original Writ. Br. Enqueft, pi. 84. cites 11 H. 4. 26.
15. Diht Upon Obligation ; they are at Iffuc, and after the Defendant
C6nje[fed the Deed, by which the Inquejl was charged of the Damages, now
the iliue is waived, and the Inqueft is Office of the Damages j for the
Judgment fhall be now upon the Confeffion, and not upon the Verdi£} ; and
tlie I'laintitf can't be nonfuited. Br. Enqueft, pi. 67. cites 16 E. 4. i.
16. Jury 'upon a Felon arraign'' d, which inquired whether he fled for the
Felony or not, is only Inqueft oi Office in this i for this is not Part of
the IlFue. Br. Enqueft, pi. 82. cites 4 H. 7. iS.
(B. g. 3) IDs Bene effe. In ivhat Qifes a Verdict may
be taken De Bene elle.
I. T F ProteBion be cajl at the Nifi Prius and the Juftices doubt if the Asm Delt a-
X Proteftion ffiall be allow'd at the Day in Bank, thev may take gainjl Baron
the Jury de bene elie. Br. Proteaion, pi. 94. cites 35 H. 6. 58. fheNifrPHus
the Feme
made Default, and Protection was caft for her; and the Juftices took the Enqueft De bene efle, vi?,. if
it be allowable at the Day in Bank, then to be void ; and if difallowable then to be {;ood ; and at the
Dav in Bank the Protedion was allow'd, and the Parol put without Day. Br. Protection, pi. 50. cites
4S ii. 9 S. Br. Enqueft, pi. S. cites 4S E. 3. 7 Br. Nift Prius, pi. 7. cites S. C.
2. If the Jiijlices at the JJifes doubt of any Thing relating to
the Verdict, they may take the fame De bene elfe. Brown's A-
nal. 13,
(c.g)
1 6 Trial.
(C. g) VsrdI6):. For <whom it fhall he fa'id to be foutjch
\_Variams betiioeen Verdici a?id Count &c. ]
J]r-f=""f, I. TB nil [action or] Debt, if Pim'ntifT counts that he fold an Horfe
cites s'^c''' k. ior 4^ s. anU DCtcntiaUt pleads that he owes him nothing Modo
by a!l the & Forma, auti tljC %\X^ find that he ibid 2 Horfes for 40 s. tl)i0 tS
jufticcsof fountiagainfttljej^Iaintiffi foe it ts not tlje fame (Contract luljiclj
Mo^o & luass maoc iictuiccn tljcm* 21 e. 4- 22. pec Curiam.
Forma is _
Parcel of their KTue. This is fcuvded en an inthe Ccnii-f.H, which cannot be divided. .See
Sid. 6. S.C. cited.
Br. General 2. So tUljCVC one Horfe is fold for 40 s. anli IjC counts that he fold two
Iilue, pi 44. Horfes lor 40 s. or that he fold an Ox, and fie counts of an Horle, anti
aifthe haf-^ It 15 foitnU, tW 15 fouuD iisauia tl]C i^laintiff; liccaufc it 15 not tlje
tices of fame Contract. 21^, ^.zz.
C B.
Infra pi. 3;., 3. 3!n an Action of Debt for 20 1. upon pleading that he owed him
S. C. nothing, if \t be tound that he owed tO t:jf PlaWtlif 40 1. tljC PlaUltlff
fijall not Oanc Judgment, liccaufc it caiuiot tie tljc fame Contract,
Uiljtclj is entire. 3 ip» 6. 4. b.
Infra pi. ;3. 4. But lU Debt againll Executor of 2o 1. if UpOU Riens enter Mains
S. C. — — pleaded, it be tound that he has 100 1. Allets, pet tljC plaintiff fljaU
yf^M-euby ft"'*^^ :Jtino;ment. ? io, 6. 4. b.
Defcent, or
AfTcts enter Mains, if the Jury find more than Affets, or that the Executor has fold Land of his Tefta-
tor by his Will, and has the ftloney, or has rccover'd in Trcfpais dc B^nis alportatis in the Life of the
Teftator, and has the Money, thofe are good Verditts Br. Verdid't, pi. i. cites 3 H. 6. 3.
In Affumpfit 5. Jtt Debt, ifjtljC PiaiUtiff counts upon the Sale of certain Wood
*°'' . ' \J°- for 20 1. anD tfjC iOCfCnUant pleads Non debet per Patriam the Sum nor
coumpro ai any Penny [ot itj aUB tijC jUtp find that the Bargain was tor 20
verfi^denari- Marks, tljC PlaiUtlff fljail UOt IjilUC BlDgmCnt, fJC tJje Variance of
crura Sum- the Contratt. £)♦ 5 CI* 219. n.
nils, lent at
fevet-al 7'iniei, Jury found that he was indebted but 10, yet he fhall have Judf^ment, and be barrM for
Refidue ; for 'tis /or divcrfe Thins^s ; otherwife had it been of oue intireCcntraH. D. 219. b. n. Marg.
cites 3 Car. in Scacc. Walton v. Boats.
Bendl. it;- 6. Jn Debt, if tlje Count be upon a Demife made by the PlaintilF to
pl-125-^)'' the Detendant for Years of diverfe Parcels of Land, Ihewing the Cer-
hu?s'c ac' '^^'"'^^' rendring Rent bp tf}c ^eat, [aiiD tijat] fot tlje arrearai\c0
cordinglv ; ^CtiO aCCtetJit, ann tljC Defcntiant pleads, Quod non dim, lit Modo &c
for this Ver- Forma, auD tlje JUtJ) find Quod dimilit all the laid Lands except one
did finds a parcel bv Name, the which he did not demife, tljC PiaiUtlff fljaU UOt
Sera^nd t)^^C31UtlSmeim D. 9- CU 260. 22.
contrary to
that fuppofed in the Count, and fo abates the Writ. And. 13. pi. 29. S. C. accordinjjly, and fays
that if the Jury had faid nothing as to this Parcel, yet the Verdift had been void ; fjr a Verditt is
not v.ell given in any Cafe, when it ferves neither the Plaintiff nor the Defendant, fo as the Court can-
not know for whom to give Judgment. Mo. 80. pi. 21 1. S. C. accordingly.
Roll.Rep. 7. 3!n an CICtiOn of Debt for 24 1. S s. tcIjiClj ?je bati received to his
257 pl-^'^- Ufe upon a Sale, If tlje DefeilBaUt pleads Nihil debet, HUD t!JC lUrD
_s c accord ^^^ ^,^,^^ j^^ ^^^3 ^j^g 24 1. but not the s s. tlje ©ertiift 15 ijtiua for tijc
cokech.' T Plaintiff, ann ijc fijall ijabc 3!unsmcnt s forperaobeiuure ^ Ij.Ij i>.:id
Trial.
417
tijC 8 s. ^. 1331a* 'B» R. {jCtUiecn Bauib and Philips, pet CU=
fianu
8. 3'n nil Action upon tlje Cafe againft A. iffjE declares that by the
Cultom 6cc. betv\een Merchants &c. if z are found in Arrearages upon
Account, and they airunie to pay it at certain Days, tijtlt any of* them ^ ^a-
may be charged for the NVhole only J aUO tljElt Ihcws an Account that S.C. accords
the faid A. and B. were found in Arrearages lo much &c. and promifed ingly.
to pay it at fuch Days, Mt DtH IlOt pflP it, tlUH ItOlU \)Z brillffSi tW
Action ngalnft 3* 'SCIjO' upon Non Allumplit pleaded, It be found that
the Days of Payment are miltaken, ptt tijE Dapgi bCiUQ; paft tlje ^CtlOU
ficgi ; bccaulc t'Oc laiu amines tlje pronnfc upon tljc laccount, nnn
tlje £)ai>!3 no part of tijc ConfiUcratiotu iptlU 1650. 13, R, bettuecit
Child and Gujott, aOjUQUXJ)*
9. Jn ail iiiCttOn of Covenant, if tlje I9Iailltiff counts that upon a Bar- Roll Rep.
gain for certain Lands between the Plaintilf and Defendant, tlje De- ^^"'^ P'^>-
tendant covenanted, that if there were not fo many Acres upon the Mea- jno-iy!!^^"
fure, as the Defendant had faid to the Plaintilf upon the Sale, that the Ibid. -14.
Land fold was, that he would repay for every Acre, Ulljiclj fljOUlD be P' 25-'s.C.
tDailtina: Of tlje BUlllber nl.and alleges that upon the Meafure fo l'^': "°t S. p.
ftiany Acres in certain were wanting, as amounted, according to 11 1. the pind^n^
Acre, to 700 1. $lut! tlje Hfue is Whether they were wanting Sic. ailD Godb. "9-.
tije JUtP find for the Plaintiff, and give 400 1. Damages. Clji0 Jfllie P'- -H
ig tudl foiiiiQ fot tlje 19lmnttff i fot tljo^ it be founti bP it tljat all tlje J'\^%
mxts tocrc tuauting, vet tljcp arc Cljaiicellor^, ani) map mt fo f c but
iiiticl) Damaije^ ajs tljc Cafe vequircsi ni (SciuitP, mafnuiclj asi tlje not s. p a.
l©ljole iS to be QiXitn in Damages!* 93* 1 3 Ja* 15, JR, bctuiecn &>• to ihe Fmd-
BaptiJ- Hix and Goatcs, aDjUngCtl III \WUt Of CttCr. '"?
' 4 Le, 24S.
pi. 404. Mich. lojac. C. B. S. C. but not S. P. Cm. J. 590. pi. 4. Hill. 15 Jac B R. S.C. 8c S. P.
and Judgment was affirm'd.. Jenk. 537. pi. iij. S. C. but not S. P. as to tlie Finding.
10. Jll n Trefpafs of his Clofe call'd Sheep's-Clofe in H. broken, Cro. E. i-o,
upon Not Guilty pleaded, if tlje JlltP find that this Clofe contains P|j-^^-J^-
diverfe Acres, and that the Plaintilf was feifed but of One Acre of it, pjaintiffmav
and that Defendant had done a Trefpafs, and that Defendant had a affij^n his
greater Part of the Clofe, and another had a yet greater Part of it, pet Trefpafs in
m ISlaintiff fljail recover for tlje Crefpafsi in W ^cu, t)i\l 3 2 ei» "'i^','^'^ ^|^^=
E. k; between Dodd and Cok, aOjuDgeti. hI p,:,g^=
and fo tlie
Verdift is found for the Plaintiff, and it was adjudged for him.
11. 3*11 a Detinue for an Obligation ofiool. upon a Bailment by J. S. s p j\^^^
if tlje DCfenliant pleads That he did not receive any Obligation of ftjch fo if they
Sum, nilH it i$ found that he received an Obligation of" a greater Sum, ^nd that
tljis fljall be founn for tlje Defenbant ; for it cannot be tlje !ame©bli=3^„^^^"'^'^'*
gation Ujijiclj tlje l^laintitf bcmanticli* 21 e* 3- 30- luiU probe tion of a
tljl.0* ^ . lefsSum.
Trials per Pais 293,
12. J\X an miction upon tIjeCafe upon AfTumpllt to do 2 ^Things, if Br. Verdia,
tlje Defendant fays That he affumed to do 2 other Things, without that P'- ^J- fays.
That he affumed to do the 2 Things before alleged ; Upon iuljiflj tljeP recover'd
are at JflllC, anU tlje JUrp find that he alfumed to do the One but no^c for the one,
the other, tijis IS foimb agaiiift tljc [plaintiff, for it i.s not tljc (lime a"-! ^^^
promifc* Contra 32 1), s, oerook aDcrtiift, 90. amerceTL
the other. And adds, Tamen vide that this Iffue, tho' it comes in a Traverfe, amounts only to the Ge-
neral IlTue But that it is otherwife where the Ilfus is, Whether J. anil ff'. hsfeoff'd B. or net, and it i?
found that J. cv!) hifeoff'd Ijwi, this is found againft him who pleaded the Fcotfmcnt.
s o in Jn
4iB
Trial
upon Non DimiJic, if tljC ^JlirP find that he demifed lo Acres only, tlje
eiaumimjaU imt Jutignieut foe tfjofe lo acrc^. p* 43 €1 03. 3a»
SeecU f, z) 13. Jit an Ejectione^jftcm£e, upon a Leafe of 20 Acres Of ILiinUi
p'.4. S C — - ■ — ^ ,. . ™
Trials per jrs
f:f\ -'^^- \ttm.Z\\ hro-dcm and Meredith^ pCt ClUlaUU
Hob 209 11! H- i^irt Replevin, if tljC MWt ^t W'hether A. and all thofe whofe
adV^^li'-'' ' Eftaie &t. have ufed to have Common for all their Beafts levant, and
15 jac. S C. CoLichanc upon a MelFuage, and 200 Acres of Land, 50 of Meadow, and
— Trials ^Q oj Failure in 4 Vills, anU X\)Z JUtJ) find that he had Common as ap-
5"^'', (l\ purtenant to the Meflliage 20 Acres ot Meadow, and 20 Acres ^i Paf-
^^"•■^ ' ture in 2 of the Vills, and not in the P^efidue, tljJS IffUC iS fOlUltl
an;ainft Ijim luljo pleaactt tijc J3uercr!pttou i fur it 10 nut tDe fame
PrCiCnpttan. fpOUaCt'Jj ECpOrtjS, 283. ijetlOCCn Michad and Morti-
mer^ ai^niiiijctiv
Roll Rep 15- 3 a an ^rtiOn of Trefpafs for Threfliing of his Mow of Barley, I
r^v^TV./-^ and takins of 20 Bull.els of Barley inde Provenientes, if tljC DCfCnBant '
* Fol 704. * pleads Not Guikv, ailU tljE %\V^ find him Not Guilty of the Threlh-
^--"""^-^ \\^'y^ bucGuikv of'the taking of 20 Bulhels of Barley, tljC Plailltlff
s"c ad'"' fijail \mz jun'smcnt for t!jc 20 OBufljeloi of X^arlcD, ann Ijc map uicU
pd5.-d for be ^©uiltp of tije carrping atuap, ann not of tt}e Cljrefljtmj -■, anD tlje
the Plaintiff. U3orO0 (.Inde Provenientes^ 50 nOt fO prCdfelp IlilHt It, tljat !je Ollgljt
to be euiitv of tijc ^ijrcfijinn: ; for perati^entuve anotfjcr tIjreflj'D it* ,
ann \)z tavrien it au3ap» C^. h 3n* ^* Ia» betuicen /^'^ andsher- |
/t/f/, an)una;cn.
vS. p. Arg. 1(5. So niTrefpafs Quare Arborcs fuccidit & afportavit, if Ije be found
''^"'^. ^l^'j" *! Not Guilty of the Cutting, and Guilty of the Carrying away, tijiS ijS
Ihat he c.n fouiin fot tfac piatntitf. ^ c^. 14 J^i- ^- 1^» pet' curiam. ^. 5 la.
not be found 15, httWZlX Bro-xiie and l^ tiU, jJCt CUl'iaUU
Guilty of
the Carrying away, unlefs he be found Guilty of the Cuttinfj, and that the Writ ought to be Qiiare Mae-
remium cepit, yet this wjs denied bv the Gounfcl of the other Side, and the Court fcem'd to deny it.
Roil Kcp. 42Z. in Cafe of Ive v. Sherfield.
17. Jf a Commoner brings l^CttOn UpOU ti}Z Cafe againft another, foi-
putting in his Beaits into the Common, and confuming the Grafs from
fuch a Time to fuch a Time, anB tijC liUtp find the Detendant Not Guil-
ty of the Putting in ot the Bcalts, but Guilty of the Pafturing and con--
fuming the Grais, tW i^ fouus for tljc J9iainti(f i fot tljc ©ubffauce
ijs founn for ijini, too' not tljc Circuuutancc. Co. 9- ^ok Mane's
Caje, 112. an)ungen»
Cro. J, Sv 18. 3!f Tenant m Tail acknowledges a Statute, and dies, aun aftCt
pl. 10. s. C. Execution is fued againlf the Illue, who fues an Audita Querela, reciting
accordingly, ^j^^j j^jg p^^her was Tenant in Tail of all the Land put in Execution.
Defendant fays, that the Father had an Eftate in Fee in all the Land ^C*
without that [That he was Tenant in Tail] of all at the making of the
Statute. Plaintiff inaintaiUjS tijat of all in '^ail, ann fo to :jmie j
*TheOri- ann tljC JiUrp find Part in Tail and Part in Fee, tlji0 MUC igi fOimD
guiai in Roll ^jjjjpup fy^ f jjg ^cfcnnant, ann fo lungmcnt 10 to be Bi\}cn for Ijun i
'i^hicrreems fot tljc |^Ica lu tljc affirmatiljc mm upon tlje JlBfjoic, aim ije ija^
miiprinted. taUeu 3lluc upou tlje * '^ratjcrle. $^iclj» 3 3ia* ^* K. betioecn J/^ji^urK-
ham and Saint John^ anjUngeO.
Where a 19. Jju aU Ejeaione ifirni£, if tljc plaintiff declares of a Leafe for
^^'"^A A Years, made the i May, to commence at the Fealt of St. Michael next
IflmJlt ^^^^^i (which is now paft) if tijC 3iUrp find that the Leafe was made i
one Day J^ne, or at any other Dav before the faid Feall: of St. Michael, It ig
and it is tiounn for tlje Plaintiff; for tlje Dap of inal^inQ; i0 not material, fa
fo,ir,d hyVer- j-.j^-jj- ,( ^jjjjjj j^jjiOe to commeiice at a Dap to come. Cr. 9 2ii. ^*
therDaT&cc. ^P ifoftet fa^ to bc tlje common practice.
this is a
goodVerdift; for the Day is not material, unlefs in Special Cafes where the Ifflie is taken upon the
Day; quod nota; per omnes Juftic. Br. Jours, pi. 59. cites 21 H. 7. 37.
20, But
Trial. 4 1 9
20 But if itt an CjCftiOnC ifirmis tIjC plaintiff declares of a Leafe Hob. 72. pl-
fbr Years in Polleffion iuch a Day, and tljC JUX^ find the Leafe to be ^'z. Pop^^
made an another Day, tI)iS lIjaH bC fCHtllt! nffaillft tljC I^Ulintiffj bCCaUfC SeeTrfr,
it ij> not tijc fame Icaft. Jpobatt'^ Ecpott0, 100. pi. 44 & 54.
s. c.
See (P. f ) p'. <5 S. C. Plaintiff counted of a Leafe at one Day, and the Jury found a Leafe at an-
otlier Day ; and it was agreed by all tlie JulHces, that the Verdidt was good; for the Day is not matc-j
lial. Br. Gi-ant.s^ pi. 59. cites 21 H. 7 56.
21. 3'f a 09an in an Ejeflione Firmae declares of a Leafe made 5 Sty. iiS.
Mav 10 Ja. Habendum from the Annunciation before for 3 Years, attU ^-/T' SS'"
tfje'JUrP find the Leaie to be made 15th May 10 Ja. DabennUUT fCOUl f,e__'
tlje annunciation before fot 3 ^earis, tJjiiS iis founn airamff tlje piain^ jent. 292.
tiffi bccaufe tijis tuas a Leaie in PoUeiiion at anotOcc Dap, (fcilicet, p' 56 cite..
ti)e i5tl) of C9ap) tljan tlje [Plaintiff Ijasj coiintea, tfjo' it Ijas t(je fame ^ff-^- ^^
Coninicncruient, Ipobact 6 Ecpoitis, 27. betiuecn Moore and Muf. ["thurrand
grave ^ aDjuUffeU upott a g)pccial j:)ertJict, which Veems
agreeable
with Hob. iS, 19. pi. 5;. S. C] viz. The Plaintiff in Ejeftment counted of a Leafe made the 5 May 10
fac. from Lady- Day laji paft, for 20 i'ears extaiic next enfuing ; a ]ar\/ fncis the /aid Dale and Demife
f'romthe /aid Feafi for 20 Tears vext enfith'ir the Date. This Cafe was in Ejeftment, and the Ejedtment
was laid on the fame Day, 5 May 10 Jac. fo it appears thai it refers to the Making of the Leafe, and the
Making and Date of it are at one Day. The Plaintitt had Judgment, and affirm 'd in Error. S C.
cited Sty. 119. Trin. 24 Car. in C^Ce of Cornifh v. Cowfye. Declaration of a Lc.ifeof the 14 fan.
and the Evidence was of a Leafe of the 15 January, and good. 4 Le. 14. pi 52. Mich. 32 Eliz. C. B.
Frice v. Forter.
ccl tip 4I3amc of an ipoufe* \^. i6 3]a» Q3* ja» having in
his oivn
Kight Lands contiguous to his U ife's Land, huilds an Houfe, <u;hich extends 20 Feet Worthward and 12 Feet
Eafii'ard upon hislfife's Land, the rcll of the Houfe Handing upon his own Ground. The Wife dies,
without any IfTue had by her Husband. The Heir of th: Wife brings a Cui in V^ita againft the Huf-
band, and demands the laid Land by the Name of an Houfe ; and had Judgment pro tanto, as aforefaid;
affirmed in Error. It is not an Houfi, if it be not cover'd ; an Houfe is call'd in Latin Tectum, or
Domus. Jcnk. 26S pl.S;. And. 265. pi. 272. P.ifch. 55 Eli?,. Hayes v. Allen, S. C. S.Q
cited Lat. 02, 63. in the Cafe of i£em;S i). ^trOUD, but not very clearly.
23. Jn an Affife of Nufance btOUgljt, bCCaUfC Levavit Domum adGodb 1S9.
Nocumentum of his Mill, by which the VV^ind is Itopp'd to come at his P'- ^'°- ^- ^'
Mill, ^o that he cannot grind fC* ^.nU tljC JUtp find that the Defen- g^^^ " 7„^
dant has erected a Houfe De Novo, and that only 2 Yards of the * Top rv^
of the Houfe is to the Nufance; tl)i0 IS fOUnD fOt tIjC Plaintiff i fOC * F"'
Ijete tlje Declaration is not famfieti, but onli> abriciiied ; anD tlje 'yT"
junsmcnt tljaU be tljat tljc 2 ^aros iljall be tic)cctc5» ^. 1 1 Ja* 15. that th"'
bCtUJCen Goodman and Gore, anD OtijCrg atI)UDpQ* faid Houfes
were fituatc
about So Feet from the faid Mill, and that in Heigth it did extend above the Top of the Mill, and in
Length it was 12 Yards from the Mill ; and notwithftanding this Ncarnefs, the Court dircitcd the
Jury to hnd for the Defendant. See {\J i) pi. i 5. Juxon v. Andrews.
24. Jn Affife, if Vouchee pleads that at another Time the Plaintiff
brought Affife againft his Father, who then pleaded that he entred by
his Deed ; and this was fo found by the Alfiie, by which he took no-
thing by his Writ i tlje Plaintilf pleads Nul tiel Record, anD the Re-
cord was, that the Aihle was brought againil the Father of tiie V^ouchee
and his Feme ; anB pct no .f ailcc Of tijc Eccom, bccaufc tbKj RecotD
luas in effect to tijc lauic ©ubff ance i\$ tljat ui'jiclj uuid \;ouiD D. 1 6
aff. pl 19.
25. Jit
42
o Trial.
B". Failei-cf 25. J'H 2.Cti0l\ Of Debt upon a Recognizance made before the Mayor
pi - andthe with a Condition utiocc tfjc jUECon;ni?ance, tijisisi not anj.' ifaiicr of
Wotes there, ffje Eccorti , tot tljis Conottion is not nnyl^artof tljeEecogmjaiicc,
not Dcmg ni tljc Kccognfjaucc, but unocc nun uijou tljc Idack of it.
36ii>6. 2. aHMitigeD.
Br Failer of 26. ^JU HU ilctiOU Of Debt againft J. S. upon a Recognizance made
Eecpid, pi. by J. 8. hinilelt, U^DCfCUUnUt pleads Nul tiel Record, anU btmS0 Ut
ij. cues S. C. a Recognizance made bv (.8. and another, by the which each is bound
in the intire Sum, !)C {ja'Si'uOt fflllCll Of tljC JACCOrll* $6 fp» 6, 4* b. b}?
r^augt;
Hob. 12S. 27. Ju Replevin, tf DCfCUtJaUt avows for Rent arrear, and pleads
^' 1^^ s C '^^^'- ^' '^''^^^ leii'ed in Fee, and made Leafe to B. Habendum from the
li J«"" ■ ■ Annunciation after, lor 21 Years rendring Rent, and after granted the
Reverlion to him, auD Plaintiti'traverlcs the Grant ol the Reverfion,
antl tljCjUt}) find fpcciallj) that A. leafed it to B. Habendum lor 21
years from the Purihcation aftCt, tCfCtlimO; tljC raiO RCUt, auU found
the Grant of the Reverlion tO tijC aHUtLMUt, ti}l0 10 fOUHa fOt t\)Z
auoiuant i fot tlje IlTuc 10 upou tijc *i5vaut of tlje iReHerfton, luljicij
10 foimo a0 It 10 ptcaucti, nuD tijc Icafc uot in tijc 3frue, but aBm!t=
tcD bp tljcpea> ipobnrt'si Reports 17-- bctluccu WithcsandCafon
'(ari)utrn;eli.
In EjecT:- 28. |U Debt, ifjt bC pleaded that T. W. Miles Dominusde la\\'are,
inent the ^,^s feiled in Fee, and demifed lor Years, anU a Traverfe is taken ab-
^lide'-Title ^^"^ '^°'^ *1"°^ prsediaus T. W . Miles Dominus de la Ware demifed ^ if
by a'^f eale'^ It bC found that T. V\^ Miles demiled, but that he was not Lord Dela-
tor Years ware at the Time of the Demife, ijlS jfatljCt tbCU IlUiUQ;, but was aftCC
made to him j.jj£. ■^zdXl) Cf 1)10 jfatljCr, tljat IS to fai), at the Time ot the Plea plead-
V ^'han ' ^d, })ct tiji0 fljail tiC touiiB for Ijim luijo took tljc Craljctfe ; fof tulje^
Knt" The tbct tjc uja0 LDto nt tije DcniUc, 10 \p^m\ of tije jiTue* D. 1 3 ei;
Defendant 30O. ^CCt. 34-
made Title,
and trRvers'ii abfque hoc that Sir W. Vaughan, Knt. leas'J to the PlaintifE The Jury found Special-
ly, that lie made the Leafe before he was a Knight. Andrews [Anderfon] Ch. j. inclined that this
■was no Part of the IlTue, wiiether he be Knight or not, but are only Words of ^ Imagination ; and is
fufficiently found for the Plaintiff. D. 2j;y. b. Marg. pi. 55. cites Trin. ztjElii.
* [Quxre the Meaning.]
S. P. The _ 29. Upon Defiuir of the Tenant one COnTC0, atltl prays to be receiv'd,
Iflue wa.s, if becaufe the Tenant held of his Leale lor Lile, Reverlion to him j tl)E
or Sot ^^nd Demandant fays that the Tenant has Fee ; UpOU UlOlCl) Jllfue lua0 found
ijot if iiehad that the Tenant had nothing in the Land, nor the Prayor nothing in the
r.othing, Reverlion. Ct)(0 10 fOUUtJ a^alUlf tIjC DCUiaUtiaUt ; fOt It 10 agreed
ror whether jjp fijc l£)artic0, tljat ^cuaut uia0 Lelfce for life, ano tljc Wwt oiilp
had nothing, luljctljcc l)c {jaU Jfce^ UJljicij 10 founn agaiuft tljc Dcmannant* 47
Br. Iffaes " C* 3- 19-
jpin'd, pi. 8.
cites S. C. S. P. And the other Matter, that he had nothing, is not material ; for it wasconfefs'd
by both that he was Tenant. Per Finch ; And pei- Cur. the Prayor is receivable ; for the Iflue is found
againft the Demandant, but he did not come ; and therefore the Demandant recover'd the Land. Br.
Verdicl:, pi. 66. cites S. C.
30. Cije fame JLaiU 10 \\\ t©ttt, if Tenant pleads Jointenancy with a
Stranger of his own Part, auD Demandant fays that he is fole Tenant,
auD tt 10 found that he has nothing in the Land, pct tlje DcniaUtiant
fljail tccuijec ; for it 10 agrcen bp tl)C partie0 tijat Ijc U)a0 Ccnaut.
47 Ct 3- 19- b»
31. M Falfe Imprifonment in Middlefex, tfjC 2)nCnliant juftifics by
Force of a Writ in London ; tO lOljiCi) Plaintill favs that he took him in
Middle.
Trial.
421
.IVIiddlefex, and of his own Wrong ; UpOlt UlljiCf) tl)ti> ilCC at Mtie, iltltl
Jt IS found that he took him by Force ol: a Writ Livviully in Middlefex,
vet tljc ]5iamtlff * fljall lym jmmmit -, for tlje etfcrt of tfjc sittlie ^ p ,
uiiis upou tOc place, nnn not upon tlie Cott; (fot tijis iua0 agreed, JXC 1
if tlje Caii!ni5 uiagi in ^^itsDJefe^:.) 30 e. 3- ^6. ti, atnungcD,
. 32. Jn lamon of Debt, if a a3an demands 20 1. anO upon Nil debet supi-a pi ^,
it Id found that he ow'd the Plaintiff 40 1. tlje PiaUmff fljali UOt i)n'QtS. C.
juDgnient tijeceupon* C3!t feciiis, liecauic it cannot lie tljc fame
£)cbt, laljiclj 10 intitc). 3 f;). 6. 4. ti*
33. But in Debt againft Executor, if PlaiUtiff demands2o J. and Up= Supra, pi. 4,'
Xin Riens enter Maines pleaded, it IS lound that he has loo 1. Aliets, S C. '
j)ct tije Plaintiff fljall Ijti'uc Debt [J;utigmcnt]. 3 fp* 6. 4. b.
34 Jf A. recovers in Debt upon Obligation againll: E. and takes him ^fo- E.654.
in Execution, aittl B- brings Audita Qiierela, fuppoling Payment of the P" .'I" ?'5"
Condemnation after Execution fued, tljC lUljICl) 10 travers'd ; ailB tljC ^|u,-y Lnd
JUl'V hnd the Payment to be before Execution fued, pet It 10 fOUntl fOr chat theMo-
tl)c plaintiff; foe payment before 10 a payment atter, ann tljeCimc "^^ ^"^
10 net niateiia!* 99» 40. 41 ei, 03. i^. between A^a/mes and Dame'^f'^ ''y '^
Hawkujs, \pzz Curiam. y^t"f"ls
well found
for the PLiintiff in Audita Qiierela; and wliat was found more is Surplulage. S. C. cited Cro. ].
29. pi. 7. Pafch. 2 Jac. B. R. in Cafe of Ognel v. ilandol.
35- J n Debt upon Obligation bearing Date 2? June, 15 El. if i[)C= Cro J. i;5
fCiiDaUt pleads Non ell Faftum, anU tlje JUrP find that it is his Deed, P' \t.\^^^
but that it was deliver'd 8 Days atter the Date ; tl)i0 10 fOUIttl fOt tljCs (J re
Plaintiff, ^iclj. 4 3Ia. 03. ja. betiucen Hanc and puder aDjuogen. foived aJ-
cording! V
by all the Court, without any Difficulty ; for the liTuc being generally Non eft Factum, it appears to
be hi.s Deed; hut perhaps by fpecial Pleading he might liave help'd himfelf; wherefore it was adjudg'd
for the Plaintitl. S. P. adjudg'd accordingly ; for the Count was not of the Date but of the Making,
and tlie [ury have found the Deed. Hob 249. pi 514., Thorp v. Taylor. HoltCh. J. denied
the Cafe 2 Cro. 1515. and held. That if H. declares on a Bond, as bearing Date the 6rh of' May, he
pannot, upon Non ell FaClum, give in Evidence a Bond bearing Date at another Day, but he may give
in Evidence a B.):d bearing Date the 6th of May, tho' it was delivered at another Day. Adjudged,
5*1)4463, pi. 2. Pafch. 10 W. 3 B. R. in Cafe of Cromwell v.Grunfdcn.
z
36. 3|n a Prcecipe quod reddat, if tljS JffUC bC, whether A. and B. in- Br. Verdict,
feolfd the Tenant, auU It 10 found that A. infeoff'd him, but not A. P'- 9^- '=''"
and B. t()t0 10 founo aixainff tlje Ccnant in 'QPoto^ iuija atfituVD tljat
^. ann 15. infcoff o Ijuii. 32 \), s. %z^, 190.
37. Jf tlje JffUe be, whether J. and K. inleoftM the Defendants, antJ f^''- Verdia,
tijC lUtP find that ]. and K. did not infeoli, but that J. alone inleoifd f^'- >^^J^s
them, tlji0 finUing otiec i0 notfjino; to tlje purpofc ; for it 10 out of t a Z^
tijeir Ctjarge ; for tije 2ffue 10 fouuD asainff tlje DcanlJant. 7 D,iLr,-,ncc
}p»6»33» b. D. avows,
by Fecffmcnt
made to .4. and Z?. to the Ufe of his Father for Life, the Remainder to him in Fee, and fo conveys ji Title
to himfelf &c. M. conveys a Title to himfelf, and traverl'cs the Feotfmenr ro A. and B. &c. and upoti
that are at llfue, and the Jury fcund the Feoft'ment to be made to .■!■ B andC Qpr. to the Ufe Sec. cf D.
S. P. accordmgly,
38. 3!« an Aftion brOUgljt by 2 Wardens of a Church, If Defendant
fays that the Day o'i the Writ purchafed they were not VV^ardens&c.
Upon UlljtCij tljCP arc at 3iffUC, if tlje 3!Urp find that the one was
V\ arden and the other not, tlji0 10 fOUnH fOt tljC tDcfCHtiant, fOr il)€!>
tocre not U^arlien0. 26 o. 8. 5. b,
5 P 32. 2f
4.-22 Trial. _^____
Thisisthe 39. Jf tIjC Condition of an Obligation bC to perform Covenants,
CafcofTciil thereof one is Not to cut Trees bp lUijICl) tljCP fljall be UiaftCtJ* 3lX
lP"^^;^J~'£K^ytU\m\t\)Z^UmtiOn, ifljCaliigns the Breach in cutting of 20
byPophaniSc Oaks, 0113 tijC Defendant iavs chat he did not cut the faid 20 Oaks, nor
Gawdy.Cio. any oi them Modo &c Forma Prout &c. atltl tlj£ Plaintiff rejoins than
£ SKi. pi. h- cut 20 Oaks Prout ille fuperius allegavit (JC. dUU tljC JUrp find that
^5 Pf ^- he cut ID Oaks, jn;t tijc Plaintiff fiiall Ijaue S^uuffmcnt ; for tW tije
"br in the iitttre aneii;ation of tljc OSrcaclj of Coircnnnt be not founn t'jx tijc
Cafe of plaintiff, pet cnouab 10 fcuiiu to uial^.e tiic Defendant to foifcit tlje
chanibers v ^{jjin;ation* D* 2. 3- C^a. 115. 67. SDjuCijeG*
Hubberd. —
aC. cited by Hobart Ch. J. Hob. 5^. in Cafe of Foftcr v. Jackfon.
Co. Litt. 40. So if tllC COnDitiOn of an £)b!iptian be Not to do any VVafte,
282. a cites jjjijj j-{j£ £)creni3ant pleads that he did no W alle, ailD plauitltf replies
fi'^ Slat '^"^'^ ^^ ^"^ ^^'^^^^ "'' ^'""'"^ 20 Oaks, nut! tljt oiijtv rouuiy rljat ijc
teiofthe tilt! not cut tijc afarefaiti 20 £)au0 in ^annci: ano Jfotmasitije
IlTucisfouiid piaUltlff iju5 aiteRCtl tjcC. antl tije 3iUi'P find cliat he cut only lo Oaks,
f°'-. % pet tije piuiiitiiT lijaii ijabc JiruiTnicnt, toe tfte jKuuiber is not nia=
iiaintifl. jj^,j.j^^j^ jpjjj^ 22 (£!♦ Eot» 92c. ticcuieen lyoiwdu and euis, aDjiioaeQ*
QTiteD in D, 2. 3. spa. 1 15- 67.
Brownl. 1:1. 41. 3^n Replevin, U" ©Cfeiltiaitt jultifies the taking Damage Feafant
Tnn. isjac. jjy ^j.^jyj^ oi a Comnum to luch Copyhold lor all fiealls Levant and
jf-SvA^j^ Couchant, and avers that thoie Beafts were Levant and Couchant &c.
■»Foi. 707. Upon iiiiicl) tlje particis are at Sffue i anti it is found * that Part of
L>^^v^^^ the Beaits w ere Le\ ant and Couchant, and Pare not. C})i|5 IS tOUllD
v,ashoidcn ^yjjgjjp f^j. f},p jDcfeuDant, for tljc Jfiue IS upon tlje luljoie, nnn tl)c
The Record coiittarp tljetcof isj founQ* Cr» 17 4;a« 05* between ^'^r andAiim.
that the ' per Ci!riam»
Plaintiff
!fhould liave his Judj^mcnt, J-cc-Jsyy is made for feveral Cr.vfes, and 'tis /«;7;rf for the Avowant /»f
pne, and a!;ainft him for the Kcft, the Avowant fhall have Return, for he had good Caufe to diltrain ;
but he fliail be amerced for the other Pro fulio Clamore. Jei.k. 1S4.pl. 71. 1S5. pi. So .S. P,
Keilw. 51. b.
42. Jn an Ejeaione jfirmas of 14 Acres oi: Land, (f UpOlt Not
Guilty pleaded tljC JUtP find him Guilty of 20, pet tf)C piaiUtiff fijalt
l^auc Siuotjutent of 1 4, antJ tijc a^erDict nom for tljc Eefitiue* 95* 3 7
€U Id. E. i^'^or^^ Cafe*
See(U. f z) 43. If an liTUC be whether J. S. was taken in Execution by jfOtCC
pi 7.. S.C— Qf i Capias ad Satislaciendum, atttl tljC '^XVCV find that he was not tafeeU
(Y f ) pi^. }jp jgrj.(, of ^ Capias at> €)atiSuuicnlium', but bp iforce of an Alias
^B sVpl 2 <^ap''is ad Satislaciendum ; tfjlS IS fOUltU fOt Ijim 11)1)0 aUCffeD IjUU tO
- " be tal^cit bp iforce of a Capias an S)atisfactent3uni, for it is true ano
ail one in giubaance* Ipooart'S Reports, 72. Fo/ier and jackjm.
SltnutigeD*
Hob. 72. pi. 44. %\ Replevin^ if DCfeilHant avows tlJC taliinij as Commoner for
S;. Su- Damage Feafant in April ii J a. flilf Plaintiff in Bar fays that B. was
pra, pi. 20. f^-ifgcl o4 Land, to which Common &c. and 3othxMarch dcmifed it to him,
Infopl ■ii' '^o have from Lady-Day before tor a Year, antl t!)e Avowant traverfes
S. c. — — this Leafe Modo & Forma, tipOU IDljiCl) Ifllie IS JOin'tl, aUH tf)e 3ur^
See (P. f ) find that B. made the Leafe the 25th of March Habendum extunc for a
pi. 6. and the y^gr j xW IS fouiiti fot tfjc J£)!aintiff tDo' it is not tbe fame leafe
Notes there, p.^jj^^j, ^jjg '^^^ ij^jj^g ^^i\^(Qz^ • for tIjc JlTue IS, uiOsttier {)e fjaa
met) Jleafe from 05* as Ijp iforce tljcreof fje coulD Coaiinon at tlje
Cinie, ftjljic!) is tije ^ubftance of tlje Ilfue $59otJO $ jforina, anti m
laeamie not material $)obart's Reports, ^°o- betmeen Pope and
Skinmr. ^HjUOSCtl*
45- In
Trial. 42 3
45- JU an Information UpOtt tI)C S)tatUtC Of 39 El. cap. againlt 4, See (U. f: 2;
for dying with Logwood againit ihe Statute, l)p UlljlClj tljCpfOtftlt 20 1. P '• ■ •
nnti arc to be fct upon iljc'^piliorp for every odencc, anO upon Not
Guilty pleaded 3 ot them are lound Guilty, and the 4th Not Guilty, it
recui0 tijc Dcrti'ift 10 founD foe tljc l^Iamtiff i for jt 10 not grounncD
upon an entire Contract, luit upon a jTnft inljic!) nial^c^ au ©fFcnce
unjiclj iQ ui ii^atiu'c of a Crefpaf0, ano fo feiicral to fany of tijem*
^ici). 1 1 Car, 13* E. between Latham and sncifou. Dubitatur, tljis
uioueo in arreft. lowt \^* 12 Car, it Uias fo abjungcn for plaintiff
as to tfjis point, per totam Curiauu
46. iW a li^rit of Account, If tlje JffUC lie whether the Defendant Br. Verdiari
h.is accounted betore R. and VV. Auditors ailign'd by the Plaintiff, iinD P'vv^' "^"^
tl)C Jurp find that he accounted before R. only, 'tljC JlTue 10 fOUilD
for ttjc iOefennant, tljo' Ijc plcatieD tijat Ijc accounted bilxirc botij ;
for tlje account 10 tljc effect of tijc Jffue, 30 €* 3- s- b. ^D-
)utigeli>
47. 3'n an AHife of a Rent by a Chaunter, jf tijC 3!ffUC bC Whether
the Plaintiif and his Predecellbrs ha\ e been leiied ol the Rent Time
whereof Memory &c. aitO tljC JlU'P find that the Predecellors have been
feifed but not the Plaintirt", pettljlS 10 fOUnO fOt tljC jaiatntlffi fOt tIjC
ecifin of tljc prcDeccffor 10 fufficieut for ijim to Ijane m\% ano fo
I)i0 oton ©cifin not material, i\Wi. 3-
4S. Jn an information againll 2 lor engroffing loooQuarters of Grain,
ilpOn Not Guilty pleaded, if tljC One be touncl Guilty of 700 Quarters
and the other Not Guilty, [)Ct tljC Plaintiff (Ija!! baHC lUOljniCnt a-
gainff \)\\\\ Uiljo 10 founn ©uiltj) ■■> tor it 10 a0 a €rcrpaf0 ano fo SsM--
neral, for tlje Iffue 10, tOat tljej? nor anp of tijem 10 (jJuittin p, 8 ja,
m tl)e Crcl)eiiuer Ctjamber, betmccn D.iux and AjUn. aojutiger!,
49- 3f a Contract be alleged to be made with 2, jointly and ulurioufly,
anil it 10 found that the Contraft was made only with one of them, tfje
Piamtiff fljaU not Ijane JuDsuicnt upon t!}i0 aDcrtiict, for it 10 not
tie fame * Contract, }^, 8 33. in tfte Cccljequcr Cljambcr in Daux * i^'^i
and jpn'^ Cafe, per Curiam,
5°- !Jn an information againlt 2 UpOU tljC @)tatUte Of 4 E. 6. for buy-
ing of liutter, and for felling of it by Retail againlt the Statute, if th^
DcfCntiant0 plead Not Guilty, nilU tljC one is found Guilty and the
other Not, 5^»ct Jutismcnt fljall be ginen atjainft Ijim iul30 i0 founD
(SuiltD ; for tlje ©ffence 10 feneral, tijo' a )oint 'Buinna" anD g>clling,
Dulntatur 93, 5 3a, in tlje Crcljequcr/^^t''0 Cafe,
51. JiU a Formedon in Defcender againft Baron and Feme and J, S. Brownl.ij^.
if tlje Ccnant0 plead Non Tenure, upou tDljiclj tijcj) ate at Iffuc, ants s <:^, f'y^
tlje lUrp find that the Baron and Feme were Tenants tor Lile, tljC Re- li] <=.''.''"='■
mainder in Fee to J. S. tlji0 i0 fOUlltl fOt tljC DCUiailtiant, beCaUfCtlje forTheDr*
effect of tlje Ifluc 10 UBljetljer a Cenant of tIjc Lano be namen in mand..nt,for
tlje i©rit, anti not tljat all fljall be Cenant0, l3ill, 17 Sa, 03, be= '^~ Zt^--^
tmW Pnt and Staple. ' JfeTd'edtT-
ral Ten.in-
cy, and then the Demandant might maintain his Writ ; but by this General Non-tenure, if any be Te-
nant it is fufficienc. ,
52. %\\ an Action upon tlje Cafe againft 2, if |i>laintiff declares that
the Defendants Confpiratione inter eos praehabita falfo & Malitiofe pro-
cured a Bill of Indiftment &c. to be find againlt him, Upon Not
Guilty pleaded, tlje 3;Urp find the one Guilty and the other Not Guil-
ty. Cljo' in Wx\t of Confpiracy tlji0 tooulb be asainft tlie plaintiff,
vet it i0 goon atxainff l)im tuljo 10 founu ^uiltp in tlji0 Oiamx, tljo' it
be in JQature oFConfpiracp ; for tljt0 Saton lie0 aixatnil one onlp,
!anD ijere tijc 13111 uias not fouifD, but ignoramus fouiin, nnQ fo no
Ccn-'
.4-24-
^r,.
friaL
Conipiraty iKd* 99idj. i!.49- betiaecn Qn/uwjy idimxtiti and George
and /-/vrrz/Defcntirincs, nBiuDijcD. Ctjis being u]0\)eD m llruclt of
jiingnicnt- jiutratut Cruu 1 649. Eot. 1 1 1 1-
53. IsDijerC li Traverf'e is with a Modo & Forma &c. this will put in
Illue the Manner as well as the JMatcer, where the Manner is material,
as tljC Time, ttjE Deed, and other Circumltances. 12 £. 4. 4. 33 H. 6.
28. 3S. teijCn tijCP are the Elle6t of the Jllue.
Hob. 72 pi. - 54. 5n K-cplcvin of Eealts taken at D. tf IDcrEnUant juftifies for
S' -^}^P Common there, ailQ PStlUltUT replies that \V . was leiled of a Houle and
•— Sce(V t ^ Land, to which he has Common there, and that he iealed it to him the
pi 6 and "* 30 Afarch II Ja. Habendum from the Annunciation lall paft &c. 2^0;
rhe Notes tCUS'^llt rejoins, and travcrfes, Abique hoc that W. made the Leafe to
there. ^j^^ Plaintiri Modo & Forma &c. i^in^J ttje JUl'P find that W. made a
Leafe Of It tO tijC platUtlff^, dated and made tl-e 25 of March 11 Ja.
Habendum extunc lor a Year. CljiS 10 fOUnt? tCt lije PKlUltiff i COC
tl)0' ti}e €omnicnccmcut cf tljc Leafe anQ Cuuc of toe Si^aliiniT be
miftahfu, maar.ucO ag eittinc irtciuBcs tije Jfcaf!, ann from tijc
JFsaa crciuBes it ; pet inaiusuci) im a futiitjEnt ^u/ide auD leafe i3
Vieilia Pentecoltis m f elto, and the Day next to it till the laid Time,
tlji^ 10 fouHD far tlje Dcfcnnant. Sgtci). 13 Jti^ 'B*R. iietlueeit
Tkoroiigh^^ccd ^vid fohufoii, per Curumi, citeQ m tijc faiiiCarc of i'ope.
ȣr andKvcrctt^ Dttdinnntg, aBlUBilXtl.
{>. C. cited 55. So iuTrelpals, if SDeletVOaUt J citifies the Putting in of his Eeafts
vei- Cur. j-Qj. (Common, which he has there Irom Pentecoft till to a certain Time
vl'° fss''in ^^'-''■y '^^'^''^^ ^^^^ pfatUtiff replies, and traverfes the having of Corn-
Cafe of mon Modo & Pbrma ; auO tljC JUrp find that he has Common there ia
gg-.c^c b. Vieilia Pentecoftis in Felto, and the Day next to it till the faid Time,
and fays,
that it was -_ " '^ ^ ^ ^' . - , ' '^ ~ . ', .
adiudged %tt vm Catc, toiibart 5 i^eport^, siS.
fufficic-nt
to excule the Tort.
56. But OtIjCClmrC \t fjat! llCen \\\ tljOreCafCa in anAflife of Com-
mon, bccuUfe tljcre Ijc otinajt to reeoyec upon ijis ©tie ■■, nnQ tl)c ftij
Cafej; agrecD*
57- Siil Trefpafs, iDefCitBailt pleads * Franktenement to the Abbot,
and he as Servant &c Plaintiff lays, Seifed till by the Defendant dif-
* Oriv. is feifed to the Ufe of the Abbot ; upon which he enter'd, and the Trefpaft
{Frarikte- mean. Defendant pleads as above, without that That he dilleifed the
''■""^ ) Plaintilf Modo & Forma (JC. tlTijlS gOC0 tO Clserp Meilti fOt if tiJC
a^ernift finnij tljat \)t t5tn not niltcu'c ti)c piamtifi to tije Hfc of tijc
abbot, but to {310 oiDii life, pet tijc Plaintiff Ijajs Caufe to recouec
i)t0 Damages. 33 1). 6. 38. b^Da\3er0»
Br.Vevdift, 58. Ju a Detinue, if piaUltift" counts that he himfelf deliver'd Char-
pL 95. cites j-gj-g j-Q the Delendant to rebail to him ; an^ Detendant fays he does noc
^" f th"t detain Modo & Forma, atlU tljC^lltP find that another bail'd the Char-
the'betinue ters to the Defendant to rebail to the Plaintiff, tl}t0 10 fOUnO agalnft
is foutid, tlje plaintiff, becaufe it 10 contrarp to l)i0 Count* 3 3 "^P* 6. 30. b,
and yet per
Prilbt, the Plaintiff fhall not recover upon this Count. But Brooke fay.f, Qu^reinde; for the Detiniie
is the Effecf, 3sh{eem:i; and the .B.iilment nor the Trover is not travcrfable, unlefs in a Special Cafe,
and here the Detinue is found ; and it fecms that by the firll Bailment the Property is in the PlaiiuitF.
Quxre of this j for if this be clear, it feems that the Plaintiff fhall recover.
Hob. 52(). 59. Jn Debt for 20 1. Rent arrear, upon a Leafe for Years, payable
pl.59fi.S.C.qujj.terly, if DefClltsaUt pleads that the Plaintiff has enter'd ItltO tljC
?f 'the (id^ JLanH before any Rent due, Icilicet, the 8th of Auguft, which was at-
Hcetl) but" ter a C^iarter due, nnO Plaintiff takes Ilfue that he did not enter Modo
& Foripa
Trial. 42 5
& Formate, mil! tljC 3ltrp find for the Defendant, tljC DCfeuGanttl^^ttliougii
fljall Ijauc jiutiffmcnti fur crcilicct, tije stij of auguft) 10 ijoiU, anB jI^^p''^^'"
tljcn i?9otio $ jfonna goes to tlje Spatter ^* 17 J;a» 'B* ijetiucen ruffid^t'""
i?^j)7;o/^ and BllckU, pCC CUriaUU by not fay-
ing rlia: the
Plaintiff did expel and hold l)im out, yet the Verdift was full to the IfTue, and that Judgment was for
the Defendant. S. C cited Comb. 5S0. Trin. 8 W. & M. by Holt Ch, J. in the Cafe of glCilCS ij»
I^OOllUT, and faid he took it to be mifprintcd in Hob. For the Entry is no Har, and that it is ii.\-pulfioni
makes the firfl: P.in of the Bar, and Holding-out the relt ; and that the Book fays it was found for the
Defendant, which (he faid) could not be, and that the Judge mull diredt the Jury otherwife.
60. 3in Debt, if Plaintiff counts upon an Obligation made by the De-This Cafe
fendant to the Plaintiff, ailtl DefCUBant pleads Non eft Faftum, asiti ^f^Jc^B
t\)t JlirP fin<^s that it was a joint Bill made by the Defendant and an- ^ "^Soit'
other to tljcpiaintiiT, tOi0 10 foimti foe tijc l^Iaintitfi foe eUrrpofwas agreed,
tljcm uia<) bouno m t(jc Wljolc, ano it is fjis Deco marimiclj as \)z that in Ddf
ijas fcaro it, atiB ocli^jcCD it as Ijis D^eD^ Co. s- ivhcipdau, 119. "^^ ^" o':''-
atijiiogco. jf or ijc ouffljt to Ijaue a^oiocn it &p ©pedal picantns. S' who"^
p€.ui Non ejf
Faciiini, and it is found the Deeil of the one, and not the D?ed of the other, that in this Cafe the Plaintiff
fhall recover againft the one ; quod nota. Br. \^crdidl, pi. ;. cites 40 E. 5. 55.
61. 3in a Replevin, if tI)C DCfCUtiaitt makes Conulance &c. and I^^ic was if
fliews that J. S. was feifcd Of ti)C LaUO, and by Will in Writing de- ;^'',,*';"{f/^
vifed the Land to A. his Feme in Fee ; tO MjiCl) tl)C OtljCt reph'es Non a,,')" {Js
Devifavit Modo & Forma f C* lipOU lUljiClj tljCP are at JITUC, autl tlje Heirs, or
3iUrp fill!? a Special Verdi6t, fCIllCet, that J.S. deviled it to A. his Wile, "ot. Jury
his Debts and Legacies firft paid, and his Funeral Expences difcharged ; ^"''■,-^^"^l^'
and tint! fUttljCr, that long Tijne before the Aaion brought the Debts trdfcrrea^,
and Legacies were paid, and the Funeral Expences dilcharged Sic. Remainder te
Cljis Dcraict is founn for tlje plaintiff; tor tijs Defennant ija^ ^ '" ^^-'.
plzmm a DcHife abfoiiite, aito tIjc 3]urp lias foiiiva a Dc'uife upon a T^ .-^^
Conuitiaii precccnit i ano tljoitijO tljeConiiittou iuas perfornrD ann in'Vei'''g'
Ej:ecutcl3,pet it cannot raaUc tljc Deliirc, uiljm it luas ma^ctobe ab= and adjudg-d
rolute, tljo' it be pcrfornvri at tl)c 'SPinie of tijc Pica ptcatsctJ. ISut iJi't Non
otljcriijirc it Ijati bccn^ if tlje Dei3ire IjaD been upon a conBition fub- ?r'i &
fCqUCnt, |)lU» 7 Car» 15, R* between Bnfioe and Baker, aBjUBgCO* Fo"m°a -for
the Ilfue is
on an immediate Devife in PoiTcflion, and Devifc for iTears, Remainder in Fee does not maintain it.
Jo. Z24. pi. 5. Pafch. 6 Car. B. R. King v. Nev.digaie.
62. 3!n Action of Debt againft A as Daughter and Heir to B. if De= S- C. cited
fCnBant' pleads Riens per Defcent from B. upon lUljifl) [tijeV ate] Ht f/r ^V)-
3iiriie, aUB tlje Jllirj) finds that B. wasfeifedlnFee ofLand, and died J'j^^^y^;^^
leiled, having Ili'ue the Defendant his Daughter, his Feme privement v. Kowden.
enfeint with a Son, who was after born alive, and died within an Hour — And z
after; tljis Sffuc IS fouiiB againft tbc plaintiff, becaurc m'Dziciv^l^'l^^^^-
Bant tlje DauGljtcr Ijas tljis lanB as t)m to ijcr larotijer, ui!ja loas in s c !-i-
laft feifeB, anB not to tbe ifatljer ; anb fo t!je DefenBant Ijas it not sec Tit.
bp Defcent from tljc ifatljer, but from tbe Xrotljcr, anB pet it is ^ffcts.
^ffets in ber l:)anBS, if it IjaB been fpeciaiiy pleaded, as D, 22 ei>
368. 46. cr* 16 Car* 15. bctiDeen Bake and spring, aB)U0B'cB upon a
€)pecial ©erBict* Jntratur*
63. And tlje Court faiB, tljat in tlje (IKB Cafe of 22 CL D, ii Boes
not appear tljat it iuas upon an llTue, as tins Cafe is.
64. Jn an action upon tlje Cafe, if tlje plaintiff declares that the n^^r^.^.^
Defendant, * to the Intent to draw his Life in qucftion, fuch a Day faid * Pol - lo
to the Plaintiff, Thou art a Thief, and didft fteal a Horfe ; and after at
another Day chartred the Plaintiff with the Crime of Fclonv. !3nB tljC
5 Q^ '5:)crcnB?.nt
426
Trial.
DEfCUBant pleaded Not Guilty, auH tljCHiUtP found him Guilty of the
ipeakingol:' the Words, and Not Guilty ot charging him of the Crime
of Felony, t\)t plaintiff fi)all ijn^c Jutignicitt. 'Qtljo' it be an sactian
upon tlje Cafe, pet tOofe arc iciietal €;ort53 Done to tOe l^Iamtiff m
Manm of fcDerat Crcfpafle^* Cr* 1 1 Cat. 13, E. bctmeen Greene
and IVhiteharid, pct ClU-iani aCjUngetl ; It bCUlff illOUeQ IH attCll Of
Judgment*
65. Jn Quare Impedir, if piaiHtiff declares that he was feifed in Fee
of the Advovvfon of A. in Grofs, and preicnted B. and that he was in-
stituted and indufted thereupon, and alter B. died, and Defendant dif-
turb'd him ; tO ttJljlCf) Defendant lays, that before the Plaintiff any thing
had, he himfelf was thereof feifed in Fee, and after granted the next
Avoidance to the Plaintiff, and then the Plaintiff prelented B. and tra-
verfed without that chat the Plaintiff was feifed in 1^'ee of the Advowfon
as in Grofs Modo & Forma, upoit u-ijict) tljej) ate at Jffuc, anti tlje
3iliry find Specially, that the Plaintiff at the Time that he prefented B.
had nothing iU tyC SlilJOUirOll, but by this Preientment he ufurp'd upon
a Stranc^er, and refer ti)C laiD tO tijC COUtt. iM tW Cafe tlje MX'-
"HiVi 155 toimn fot t^^z DefciiOnnt, for at tiie 'Orune of tlje l^rcfcntiuent
tlje i^laintiffuias natfnfcti m Jfcc, luijidj 19 tijc Iiifue, for tlje ©e«
daration 10 tljat ijc lunis fctfcQ in lee, ann fo fcifen tije Cljiitclj i)OiD=
ca, nno aftct ije prefcntcti 'B. aim tlje iifurpation Doe^ not relate to
any -Qiimc before tlje [^refcntnicnt, nor to tlie |2)rcfentinent, but ontp
tol:l)e3inftittmon. QnGtljcj^laumffisi notatanp33ifeijtcfi fottljo'
it IS? not tIjC Hfe in DeClaruClOn.ij to fap Ufurpando pr^fentavit, aiES it
is in Tiars or Eeplicatiun0, pet ije migljt babe traberfeb tbts Uibiclj
tijc iDcfenbant ban alleacb tor W 3ntmccnient* $lnb in tbi0 Cafe
a Tra\ erle upon a Tra\ erie ig tO bC aliOlD'O i bltt Mjen Ije )Oin0 JflUe
upon tbe -S^rabcrfe, be 10 trick'b bv \M obJn Definilt* |)» 14 Car.
15. E. in aiBntofCrror, upon a Jubgment in Tsaitfe infinuare
3lnipeoit, bctiucen Harper and u'fcrfda/e ; luljete tljE Coutt Of Odanlt
tta0 bibiBcb, nub tbe Court of l^ing'0 loencb inag alfo bibibcb,
icilicct, 'Branipftone anb Croltc, tbat tlje 3inae m^ founb for tljc
Defcubant in tlje Ciuare Jmpcbit i ant} Jicncg anb aearl^Jep c
contra.
Hob. 118. 66. 3;n a Qiiare Impedit by the King againil the Bifliop of Norwich,
pi. 149. SC. jf jj^ declares That he was leifed in Fee ot^ the Advowfon of D. as in
bTcaur" ^i/* Grofs, and prefented B. who dietl, and now it belongs to him to prefent,
appcai'd anb Detcnbant pleads That belore the King ^C. the Bifhop of Norwich
clearly to was feifed, and collated C. and alter the Bifliop was removed, and in
r^^ k" v*^ '•^^ Vacancy C. died, and the King prefented B. and now B. being dead
dla an/''' '^^ belongs to the nov\' Bifhop of Norwich to prefent; and traverfes, iuitij^
that'not out cut tbatCbat tbe ciBiiljOp m& fetfeb of tbe faib abboiufon ut u una
of the liTue, ^xoUo, pct fe ut U JFcobo $ 3iure fuo. i^pon Uiljicb Wiit being
tliat_ this_ )cnn'Ji, tbe 3iUt}> find Ibr the King for 2 Turns contiguous, and for the
diTof RHu Billiop tor the 3d Turn, and that this is the Turn of the King. Jn
belong to'' tlji0 Cafe tbt0 3firue 10 tounb agamtl tbe l^ing;, becaufe bp tlje Jffue
the King, it tis uitenbeb tbat tbe tHJug m^ feifeb of all tljt abbotufon. Jpo=
the Court bnrt'0 EepOrt0, 165. bCttUecn the Kmg and the Bijhop of Rochejter.
awarded a Writ to the Bifhop for the King, and to remove the Clerk of the Bifliop; and to this alfo the
Eifliop aflentcd, which was fo enter'd in the Record of the Judgment.
67. ^ffffe againji fwo ; the one pleaded to the Affife^ and the other Join-
tenancy with A. and the Plaintiff' ekRed the frji for 'Tenant ; and it was
found that the Day that tbe Wrtt bore Date^ he^ who pleaded to the AJJife^ in-
feoff"'d the other and A. and that the Plaintiff was feifed and diffeifed ; and
this Verdift was taken for the Plaintiff, inafmuch as the Alienation pen-
ing the Writ fiall not prejudice the Plaintiff'. JBr. Verdift, pi. 76. cites
17 AfT. 21.
68. If
Trial.
427
68. If Escaitors are at I (lac in Writ of JVard refumiiioued againjt them up-
on Pleiie JdiiiiniJJravit^ there, Per Mombray, il"' it ho. found that they have
not fully adviinifired in one County, the Verdi6l is found againll them. Br. * " ^lould
Yeidia:, pi. 20. cites 24 E. 3. * 9. ^ '^^'
69. Jndifk be fnind that they have fully adminiflred except 10 s. they
fhall be charg'd of 10 1. [&c.] becaule the IH'ue is tbund againft them. * j^ ^^^^^^
Br. Verdift, pi. 20. cites 24 E. 3. *9. be 49.
70. Leafe ot an Houfe &c. rendring Rent at Lady-day and Michael- c^p g 2„
rnas, with Condition if not paid by 21 Days, being lazcfully dcmanded^t the pi. 5. S.C '
Houfe, the Lelfor might re-enter. The Lellbr brought Debt lor Rent accordingly^,
due at Lady -day &c. and fet forth, that he came to the Houfe en the lafi ^^^.'^ ^^^
Day of the 21 Days, half an Hour before Sun-fet, and fiaid there till Sun- Le. '"^c^d"
fet, demanding the Rent, and none was there to pay it. The Defendant 425. SC.
pleaded that he was ready at the T'lme and Place &c. to pay the Rent &c. '""ys this
and travers'd that the Plaintiff came thither half an Hour before Sun-fet on ^°^^'\ Tf^
the 2 17? Day. The Jury found that he came thither a .Quarter of an Hour, ^y,^ acLrd-
andnot half an Hour before Sun-fet ; and that he being at the laid Houfe, ingly, but
demanded half a Teafs Rentthen due, but did not find any Demand of the VVindham
Rent due at the Feaft. The Court held it an immaterial Traverfe i for J- '^°"f''2- -'
if there was Time enough before Sun-fet to pay the Money, it is not f'^f ^^q '
material whether it was half an Hour, or a Quarter of an Hour before fays, it
that Time i and that the Ilfue is found for the Plaintiff. And. 252. pi. reem'd to all
262. Mich. 31 & 32 Eliz. Fabian v.Rawltone. thejufticeo
■' •' that this
KTue was found for the Plaintiff.
71. Alfo the Court held, that the Verdict did not anfwer the IfTue, Cro. E. 209.
becaufe the Jury did not find that the Plaintiff' demanded the Rent due at fays all the
Lady-day, but half a Tears Rent due at the Time of the Demand, whereas Court held
there is no fuch Rent due; for it was due on Lady-day before. x\nd. 'p'^^T^"'^
252. pi. 262. Mich. 3i&.32Eliz. Fabian v. Rawitone. {^thendue"
was not
good; and tho' the Jury found that no other Rent was due, yet it is not material ; for the Kequeft'
mult be certain. And adjudged for the Defendant. Sav. 121. 122. fays that 3 Juftices held this
finding to be utterly uncertain, whether the Sum demanded due at Lady-day, be due at the Half year
then ended at that Feaft ; for Rent fhall be faid due at Lady-day, the" it was due at Mich, before. And
Judgnier.t was given, that the Iflue of the Demand was not found certainly enough; and therefore the
rinding was againft the Plaintiff.
72. In T'refpafs the 'Dt^Qn^int pleaded that the Land ivas Copyhold, and
that the Cufloni of the Manor -was for the iVidoia of a Copyholder in fee to
have It J or Life i andthatiftheeldeJiSon dies, living the Wife, his Iff us
fhall not have the Land, but the zd Son. The Jury found the Cuftom as
before, (viz,.) that the younger Son ^oould have it, unlefs the eldefl Son was
admitted thereto as to the Reverjion, or made Fine to the Lord for it in his
Life-time. And it was held, that the Cullom found is not the Cuftom
put in Ilfue ; and therefore it is Ibund againft the Defendant who plead-
ed it. Cro.Eliz. 415. Trin. 36 Eliz. Borafton v. Hay.
73. Avowry for Damage feafant ; the PlaitiPiff intitkd himfdf to have
Common. The Jury found that he ought to have Common, but that every
Copyholder, lime out of Mind, had usd to pay a Hen and 5 Eggs yearly for
the faid Common. And adjudged that the Plaintiff Ihould recover ; lor
the Plaintiff need fliew no more than makes for him. And this was not
a Modus of Commoning, paying fo much, but a collateral Recompence,
for which each has an equal Remedy. But if the Jury had found a
Right of Commoning, paying fo many Hens and Eggs, then the IlTue had
been ibund againft him ; for then it would have been Parcel of th$
Cujiom, s Rep. 78. Hill. 37 Eliz. Gray's Cafe.
72. In
Trial.
All the >74. Upon a Recognizance acknowledged by B. the Cognizee brought a
Court held Scire facias againjl the 'Tertenants^ who pleaded that B. was feifed in Fee of
Vevditt was 3 ^'^''^•^ 'tempore rccoguitionis, and that one M. was now feifed thereof and
found foi- not named in the Writ. The Yldvnu^ replied that B. was not feifed in Fee
the Plain- &c. Kx\A tht ^wy fcund that B. and J.S. were jointly feifed.^ and that
"!f- '^^^'^f^-theyinfeoff'd M. And it was held that this Ifluc was found for the
Lady^ ^" PlaintiH, becaufe the Defendant h'ad offered the firft Fallity, and that
GrefTiam v. was found againft him. Moor 429. pi. 600. Hill. 38 Eliz. in Cane.
Mann.S. C. Lady Grelliam's Cafo.
Adjorna-
tur; and afterwards the. Lady Grefham died, and fo the Matter was determined. Cro.E. 506. Dame
Grefliam v. Banning;, S. C.
, 75. In Jffiimp/it, the Jury found, that the Defendatit promifed^ but
for a different Confideration than is jitentioned in the Declaration. It was
adjudg'd, quod querens Nil capiat per Billam. Mo. 470. pi. 677. Mich.
32&40EI1Z. Revera V. Bapcifta.
76.lt the Jury, upon an lilije joined in a Prohibition upon a Modus De-
cimandi, find a different Modus, yet the Defendant Ihall not have a Con-
fultation ; for it appears he ought not tofue for Tithes in Specie, there
being a Modus found. Vent. 32. Trin. 21 Car. 2. B. R. Anon.
Sc-e(C. g) (C. g. 2.) Verdict:. For whom found. Variance be-
i'(j/it,V8. tw^en Verdlci: and Count &c.
3S. 41. 66. F'nidhjg Part o?ie fray, a?id Part another,
1. r I ^Refpafs upon the Statiite of s R- 2.. of cntring into the Alanor of B.
f the Defendant faid that iVon ingrejfiis efi contra formam Statuti •
and it was found that he entred into the third Part in three Parts divided^
and that in t'-izv Parts Non ingrcfus efi ; and yet the Plaintiff recovered.
Br. Verdift, pi. 87. cites 21 £. 4. 10.
Br Tref- ^- Trefpafs of breaking his Park, and Chafing and Killing his Deer,
pals,pl.io6. againfi 3, and the one only appeared., and 'pleaded fJot guilty , and was found
cites S. C. — Guilty of breaking the Park to the Intent to chafe and kill., but did not kill
^l ^f^^^^' any thing; and the Plaintiff recover'd D.w/^^f.r <?«^ Q/?,f, and that the
S- c' *"' " Defendant fhould be imprifon'd by 3 21:ars, and make Fine to the King, and
at the End of 3 Years that he fhould find Surety that he fhould not do the
like again; and that if he could not find Surety, he" fhould abjure the
Realm. Br. Aftion fur le Statute, pi. 11. cites 5 H. 5. i.
3. \'l Ifjiieht join' d with traverfe, which amounts to the general IJfue, as
in trefpafs upon the Cafe, .^uod Jjumpfit deliberare .^tierenti 4 Pannos la-
iieos, and he pleads .^uod jiffumpjit liberare 4 Pannos laneos, abfqne hoc
^uod Jfjumpjit modo ^ forma ; and it is found that he afjiim'd to deliver
2 Woollen Cloaths, but not 4, the Plaintiff fhall recover Damages for the
2, and fhall beamerc'd for the reft. Br. Iffucs Joines, pi. 80. cites 32
H. 8.
4. Afiiimpfit, for that the Defendant was indebted to him in 50 /. and
protnifed to pay it ; the ]\xxy found that quoad 47 /. Parcel of the faid 50 /.
he did ajjutne to pay it &c. and.^uoad Refiduum non Jfftmpjit ; and it was
moved if upon fhis Verdift the Plaintiff fhould have Judgment, and re-
folved he fhould not, becaufe it was found that he did aflume only tor
Part, fo as the faine Ajfumpftt was not found that the Plaintiff' did declare
upn \
Trial. 429
upon ; and altho' ic was upon an Indebicacua AlFumplic, ic would not al-
ter the Cafe. Cro. E. 292. pi. 5. Hill. 35 Eliz. B. R.. Bagnall v.
Sacheverell.
5. Replevin. The IlPue was, whether P laititiff held hy Fealty^ Kent of
2 J. and Salt of Court ; and t\\Q Avowry was for the Kent. Ic was found
Specially, chat the '?\x\x\\X'XYii\6. by Fealty and Rent only ^ and not by Suit
of Court &i.c. This is found againft: cheAvowanc ; for in an Avowry all
the Tenure alleg'd is material, but in I'refpafs or Refous, if Pare of the
Tenure be found, ic is fufficienc. Cro. E. 799. pi. 49. Mich. 42&43
Eliz. B. R. Lewis v.Backnall.
6. Cafe on Deceit was brought, for that he fold^ unto the Plaintiff' two
Oxen, and warranted them to be found ; On Noc guilty, the Jury found
him Guilty aj to one, and Not gmlty as to the other. Ic was moved in Ar-
relt of Judgment, chacthe Warranty alleg'd was joint, and he is found
Guilty as to one only ■■, and fo it is not the fame Warranty. But the
Court held ic well enough ; for che Aftion was founded on the Contraft,
and not on the Deceit. And Judgment for the Plaintiff. Cro. E. 884.
pi. 22. Pafch. 44 Eliz. C B. Gravenor v. Mete.
7. In Tref^a'/s for entriiig into his Houfe and taking bis Goods, if he be
found Not guilty of entring into the Houfe, yet he may be found Guilty of
taking the Goods. Per Doderidge J. and Crooke J. to che fame Pur-
pofe." Roll Rep. 423. pi. 12. in Cafe of Ive v. Sherfield.
8. In Replevin the Defendant avowed for Rent arrear upon a Leafe made
hy his Father, the Reverfion of which defended to the Avowant. The Plain-
11^ replied that the Reverfion was devifed to another; the Defendant travers'd
the Devife. The Jury found it was only of 2 Parts, and that the 3^ Part
defended to the Avowant, the Land being held in Knights Service. It was
inlilted for the Plaintiff, that the Jury had found tor him, becaufe the
Deicndant had avowed as Reverfioner of the whole, whereas two Pares
•were devifed to another ; fo chat he was only Tenant in common with
the Devifee. But adjudged that this fpecial Verdict Ihall be conftrued
in the fame manner as if the Jury had found a general Verdicl. Now, if
they had found a general Yerdid, it had been againlt the Plaintiff j for'
the Reverfion was not devifd, if the whole was not devifed according to
the Itfue. Winch. 49. Mich. 20 Jac. Clawortheyv. Mitchell.
9. Cafe &c. lor that \\it Plaintiff fold to the Defendant fo much Wood,
and he promt fed to pay {o much to che Plaintiff, and to carry it away before
fiicb a Day. The Defendant, as to the M^ney, pleaded that he paid it at the
Day, but as to the Carrying away the Wood before fucb a Day, he pleaded
Nan Afjumpjit. The Jury yo//«^ that he did not pay the Money at the Day, * This
and as to the other, they found that he did [*//o^J afjume. It was moved that )^'^ord (Not'j
this Verdi6l was ill, it being but one Affumplic, and buc one incire oHginal,
'I'hing, ic could noc be apporcion'd ; and therefore chev ought to have but feems
ibund either all tor the Plaincifl, or all againtl him. And the Court were necefliry to
of the fame Opinion, and held the Verdict' naught. Mar. 100. pi. 172.^^'^^"'^°""
Trin. 17 Car. B. R. Ealt v. Farmer. _ * ''
10. In Debt, the Plaintiff declared upon a Bill, reciting that one G. was ji-if, i- pi^
arrejled at his Suit/or 250 /. and the Defendant became hound that G.Jhould 18. Anon.
put in good Bail &c. otherwife Defendant would pay the Debt ; and fhews S. C but
that tlie AQ:ion was for 250 1. and that he had not put in Bail &c. The "
'Dc^Qn&i.nt pkaded thatG. at the Time of snaking this Bill, Non debuit the
Jaid 2.S0 I. nee aliquem inde Denarium. The jury, found ^lod debuit
167/. Part of the 2^0 I. and as to the Refidue Non debuit. And upon a
Writ of Error ic was cbjeiied, that this Bar to the Aftion being collate-
ral, the Iffue ought to be intirely found for him or againft him, and not
by Parcels. Sed per Cur. Tho' Non debet had been abetter Plea, yet
hnce the Merits of the Caufe is tried, and the Debt afceruin'd by the
VerdiQ:, the Impropriety of the Iffue is aided by ir. 2 Jo. 1S4 Mich. 33
i^?.r. 2. B. R. Bloom v. Wilfon.
5 R (C. g. 2)
43
o
Trial.
22,
2V
S6,
« -
1 >
;«
99.
40.
4;
48,
49-
51-
64.
See(C.f^:)pi. (C g. 3) Verdici: for v^hom found. Variance betweeri
Verdid and Count &:c. Finding Fart only.
I. \ Verdicl, that finds Part of the Iffue, and finds nothing for the
X\_ Reiidue, is infiiffictcut for the whole ^ becaufe they have not
tried the whole liTue wherewith they are charged. As if an Infor-
mation of bitrttfton be brought againft one for intruding into a Mef-
fudge and 100 Acres of Laud, upon the general Iflue the Jury fnd
agamfi the Defendant for the Land, but fays nothing for the Hoiife, this
is infufficient for the whole ; and io was it twice adjudged. Co. Litt.
227. a.
5 Le. 94. pi. 2. Trefpafs for breaking his Clofe, and beating his Servant 8cc. Upon
1.57. S C. in JsTq^ guilty pleaded, the jury found that Sir H'. B. was feifed of the Clofe^
WordT^ ^"^ "^^'^^ ^ ^^^f^ t^<^rcofto the Plaintiff', and one A. and that A. ajftgridhis
Moiety to C. by -x'hofe Command the Defendant entred. The Court held
that this Verdict did not extend to all the Points in the Declaration, but
only to the breaking oi the Clofe without Inquiry of the Battery &c.
and therefore it was clearly held void. 3 Leon. 83. pi. 123, Mich, zd
£liz. B. R. Rolfe's Cafe.
3. Debt for 7 1. 13 s. 4 d. upon Nil debet pleaded the Jury/o//;;// that
the Defendane debet 6 /. 13 J. 4 d. buz faid nothing of the other 20 s. This
Verdict is ill, and the Judgment was reverfed. Cro. E. 133. pi. 9. Pafch.
31 Eliz. B. R. Finimore v. San.ty.
,_ _ , 4. In Cafe, the Plaintilf declared, that the Defendant, upon good
pl'°i8 st:' Confideration i2c. fromifed to -pay the Plaintiff' $ L when he Ihould
bnt Sr-^'. be required. The Jury found that he promifed to pay, but faid no-
does not thing of the Bcqaefi ; and therefore Judgment was Quod querens nil
appear. ^^apj^^t ^c. Moor 406. pi. 545. Trin. 37 Eliz. B. R. Alfop v.
Cleydon.
B«fwliere $. In Eje£lment, fuppofing the Eje£lment 0/^ 10 yfifra, and the Jury
an Jjfife vi^i find t\it Circumftancc hut of /^ Acres, the Plaintiff recovcr'd thofe 4 Acres,
brought (,/<i -£)_ jj -_ b_ Marg. pi. 67. cites it as adiudg'd Trin. 43 Eliz. B. R. Mcre-
Ptxrk, con- J- 1 T> = i^
tan,n:g 60 ^Ith V. BrOWn.
Jcres, and
the Jury found the Bijfeifyi of^o ovly^ it was adjudged againft the Plaintiff for the whole. But the Re-
porter Gys Kota here, that the Park wasa thing intire. i). 115. b. Alarg. pi. 67. cites zpElii. Lady
Baskervill's Cafe.
Browiil. 215. 6. Tnfpafs of breaking PlaintiPs Honfe, and takifig away Goods, Price
S. C. in to- jQ g Jjelendant pleads, that the Hotife is Parcel of a Tard Land in D. held
u^era er- ^^- ^^ ^^ of his Manor of E. by Homage, Fealty, Efcuage incertam. Suit of
Court, Inclofure of Park Pale, and Rent of one Pound of Cummin, andjulli-
fied the Entry and Taking as Servant, and by Command of A. tor 3
Years Rent arrear, and Homage and Fealty &c. ?\i\nz\?£ replied, that
the Hotife was held of B. as of his Manor of S. abfque hoc that it was held of
A. Modo y Forma, prout &c. The Jury found that it was held of A. as
of his Manor of D. by Homage, Fealty, Inclofure of the Pale, Rent of a
Pound ofCtimmin, and no otherwife. It was adjudged ibr the Defendant ;
for tho' the Verdi6t did not agree with the Plea Modo & Forma of the
Tenure, yet it did in Subftance, in the Point for which the Taking
was, viz. that the Land was held of A. and took a Diverlity be-
tween a Replevin and Trelpafs. Yelv. 148. Mich. 6 Jac. B. R. Good-
man V. Ay ling.
7. In
Trial. 431
7. In Aflault and Battery, for beating the Husband and Wife, the Jury
found the Defendants guilty of beating the Wife, but faid f/othing as to the beat-
ing of the Barofi. This was held to be a void Verdift, becaufe only Part
ot the lil'ue is found. Hard. 166. Trin. 12 Car. 2. in the Exchequer,
Rochel V. Stedle.
8. In Ejeftmenr, the Declaration was of the j\th Part of the ^th Part in-
to 5 Parts, to be divided. And the 7'itle of the PlainciiF upon the Evi-
dence, was only of the 3d Part of the 4th Part of the 5th Part, into 5 Parts
to be divided, which is only a ^d Part of that "which is demanded in the
Declaration. And it was faid that the Plaintiff could not have Verdift,
becaufe the Verdifl in fuch Cafe ought to agree with the Declaration.
But per Cur. The Verdi ff may be taken according to the Title ; and
fo it was. Sid. 229. pi. 26. Mich. 16 Car. 2. B. R. Ablet v.
Skinner.
9. In 7'refpafs for taking the Plaintiffs Goivn and Mantua, and Not
guilty pleaded, a fpecial \ erdift found, that the Defendant, as Conjlable,
took the Gown for a Tax, hut found nothing as to the Mantua. Adjudged
a Difcontinuance as to the whole. 3 Lev. 55. Mich. 33 Car. 2. C. B,
Graves v. Morley. •
10. Defendant pleads feveral Judgments againft him as Adminiftra- 5]^;^ -„
tor of J. S. The Plaintift' replies that they are kept on Foot by Fraud, s. C. by
Iflffue bejoin'd that all the Judgments ■were kept on Foot by Fraud, and it Name of
he found that one only had been kept on Foot 'by Fraud; this Iflue is found ^P^^"^ ^■
for the Plaintifl', becaufe the Plea was falfe in Part ; and therefore the
whole is falfe. Per Curiam. Carth. 196. Mich. 3 W. & M. B. R. in
Cafe of Bea.ke v. Kent.
(C. g. 4) Verdi^i: for whom found. Variance be- see cc. g)
t ween Verdict and Count ^c. Findh/i amhift (ome^\\'':^'^-
o o -'J 50. 52.
Defendants only.
I. r I "^Refpafs againfl A. and B. for taking a Gun and Dagger, ji.jiijli-
t fied, becaufe the Plaintiff affaulted 'J. S. with them, and for Pre-
fervtng the Peace and Life of J. S. he took them. B. pleaded Not guilty ;
the Plaintiff replied to the Juftification De fon tort Demefne ; which was
found for A. but the Jury found B. guilty. It was mov'd, that the A£lion
being brought againft both Defendants jointly, and the Juftification
found for A. the other cannot be guilty. But adjudged I'or the Plaintiff;
for B. being found guilty, Ihall not take Advantage of the Juftification
made by A. bat it ihall rather be intended he took away tlie Gun at ano-
ther Time witliout Caufe ; but it one Det'cndunt ji/flifes by the Gift of
Goods, and it is found for him, the Plaintifl' cannot have Judgment
againft the other, tho' he be found Guilty, becaufe it appears lie
had no Caufe of A£tion. Cro. J. 134.pl. 7. Mich. 4jac. B. R,. Marlar
V. Ailoffe.
2. 'frefpafs againji Husband and Wife for beating the Plaintiff's Mare, Brownl 2=9.
and for other Trefpaffes ; upon Not Guilty, the Jury found that the Wife S.C. leems
beat the Mare, and as to the Rejidue they find for the Defendant. The ^^Jy ^ Tran-
Court held this Verdict imperteft, becaufe they find the Feme guilty of yd'"" °
beating the Mare, but fay nothing as to the Husband's beating her, either s.C cited
bv way of Acquittal or Condemnation ; and finding the Dekndant guil- by Hide
432
Trial.
j. Mod. 140. ty as to the Relidoe, extends to the other Trefpafles only. Yel. 106.
in the Cafe jvUch < Tac. B. K. Drury v. Dennis.
of Manby • J J
V. Scot:.- -Vent. 95. Trin. t^ Car. 2. B. R. Anon. S. P. and S. C. cired. But the Court gave
f udgmcnt for the Plaintiff", and fiid that this Cafe in Yelv. was a ftrange Opinion.^ S. P. Show".
"50 Pal'Lh. 4 & 5 W. & M. "©are i). 2ll!)itt ; And the Court held it well ; for they may find the
fine Gnilrv, and the other not ; and that there i.s no Diffwrencc between this and other Cafes of diffe-
rent and fcveral TrefpalTors And Judgment was given for the Plaintiff".— Cro. J. 205. pi. 5. Hill. 5
Jac. B II. Hales v. Whife, S. P. accordingly.
3. Eje877Wfit was brought againjl harofi and Feme^ and the ¥eme only
■was joiind Guilty ; yet it is welJ, becaufe if any be lound guilty, it is
fufficient. Lat. 61. Pafch. i Car. Hems v. Stroud.
4. AJJ limp fit zv^xwi'^ 4, who pleaded Noii AJJuinpfentnt infra fex annos,
and the Vtrditi was. That one of theia did affume iiijra fex amios^ and that
the other did not. And it was moved, that no Judgment could be given
againfl: the Delendant upon whom the Verdicl was found j for this is an
hideb. Jfiimp. for Goods fold, and it is an intire Contratl:, and they mud
all be found to promife, or eifc it is againll the Plaintiff! Poilexten Ch.
J. Powell and Rokeby were of Opinion, That the Plaintiff' could not-
h.^t'e Judgment i but Ventris inclined contra. He admitted, if an Lide-
bitat.'jlffiiiiipfit be brought againll 4, and they plead Nou JffiiMpf. and
it be found that one of them affumed, this is againll the Plaintiff'; lor he
fails in his Aclion. But in this Cafe it may be taken, that they did all
promife at firll, and that one of them only renew'd the Promile within
fix Years i that the Plea ot No n Jfftimpfit infra fex aimos, implies a Pro-
mife ac firft, and if one lliould renew his Promife within 6 Years, it is
Realon it Ihould bind him, and the Plaintift'mult fue them all, or ei{'e he
will vary Irom the original Contra£l. Judgment was given tor the De-
fendant. 2 Vent. I J I. Hill. 1 & 2 VV. & M. in C. B. Bland v. Hafcl-
rig & aP.
(D. g) Verdid. For whom it fhall be faid to be
^s^Ci^ found. Found true in Subjlancs,
(D. 0 and
(C.g) per tot.
Br.Verdia, I. T^ Trefpafs of Parco Frafto, if Defendant fays Th.at Deliverance
pi. 65. cites j[ was made bv Alfent of the Wite of the Plaintiff", without that
^■^- that he broke thePark, tO tDijICf) tIjC PatntlfF fapS, tljat IjC faCOfeC
tl}cl?atfe, agi \yi }ja0 pleanen, pnft $c. aun t!}C ott)Ct e contra as
abOisC; anU tljCjlU-p hnd that Deliverance was not made by Alient of
the Wile ot the Plaintiff'^ but that it was made by the Frankpledge,
according to the Ufiige, but that the Defendant did not break the Park.
Cijc JlTiie i!5 foimn foe tIjc DefcnDtint ; for tlje I31aif!t-iff \fx% mniUcQ
tijc anuaiitage UJljicij Oe UnO of tljc DcUtjeraticc, Ijp tl3c aJTcnt of tlje
Jfcmc, t)? IjiiS ©Enerai ferment i anu fa all tfjc %Sx\z toaiJ upon tlje
Xrcahtmj of tlje ISarfe, 3° €, 3- 23- b* anitiDijet!.
J, , ] 2. 3]n a Scire Facias to have Execution againll the Executor of J. S.
<ic° S. C. if l^Iaintiff declares That he had Judgment againll J. S. &c. and took
See (U. f. 2) him in Execution by JfOtCC Of a Capias ad Satisfaciendum, and that he
PkS.SC.- after died in Execution, UpOlt iDljiClj tl)ep atC at 3ifl"»e; aitH tl)E JiUr?
2 - S C— ^-""^ '•^''^^ J'^' ""^^ '■'^'^'^" ^'^ C;rCCUtlOn upon an Alias Capias ad Satil-
{b'c)p1 2 faciendum, and not upon a Capias ad Satisfaciendum, pct 10 fOUntI fOt
s. c-cc. g) tlje ipiatnttffv Cr> 13 3a. 'B. bcttnceit ^opr and jackfon, atijUQseo.
pi- 43- ^0batt'0 Eeportpij 72. ©ame Cafe*
Trial. 433
3. 31n AHile, if tIjC Tenant pleads in ISilt the Deed of the Brother of Br. Verdia,
■the Demandant with Warranty, atltl tf)C Demandant denies the Deed P' 48- cites
antl it 10 found bp tlje aiTlfC that it was the Deed of the Father of the ^J^^ j^ J.
Demandant, PCt tlJC DCUianQailt (IjilU IjaDC JlUOgmCnt* 40 M. 31. pears, that'
aOjllOgrtl, it was nor
, the Deed of
the Plamtift's Brother. S.C. cited Hob. 55. in Cafe of Fofter v. Jackfon.
4. JnWrit of Error ibrOUgljt by Remainder-man in Tail to reverfe aCro.C 41 j.
Fine, if tljC Defendant pleads in Bar Of tljC IPnt Of ClTOC a Common ?'■ 5- S. C.
Recovery by Tenant in Tail Of tIjC ILaiHl i tO UlljtCl) Plaintiff replies ^|J^'f^'^°"
That at the Time of the Rc'covery fuiier'd, he himfelf was Tenant zo^Y^^^'^
the Precipe Of tIjc laiin conipnj'D UJitljiit tljc Rccoiicr}), at tije^ime pi- 5 s. c. '
of tIjC ECCOUet)), and ib the Recovery void ; upoil UJljlCSj tljCJ? atC at^"^ ^-^ ac-
Ifflie, anQ it 10 lound bV IDCrtllCt that he was Tenant of Part Of tIjC f^rdingly —
JLatm, and of Part not. Cl)i0 Wilt 10 foiutti pattli) foc tljc piaintuT, pi , i' s'c
anD pnrtip fot tljeDcfeitDant, fa tfjat tIjc Court fljali ijo to tlje ^ca= but not s.p.
nniiatmii of t\)t error, for tDi0 luljcreof fjc 10 founo itot Ccnnnt to
tljc prarcipc ; but it fljali lie a n;ooti OSar of tlje iBnt of error foc
tljat iaijercof Ijc 10 founo tenant to tfje precipe* 5|5ic{j» 10 Car*
15* K. t)CtlUeeit Done and Smetbnrfi, pCt CuriaUl, aniUOtJCD ill llBrit
of error to reuerfe a JTinc \\\ CI)cacr> Jntratur %x.\\\, s car*
Kot. 1310-
5 In ait action upon tlje Cafe, if tljC plaintiff declares That the la Affun,'^p
Defendant affumed to pay a CCttain %il\\\\ Of ^Onej) upon Requelt, and &c.th2 Con-
alleges a Requeit maHe at a certain Day and Place ; tO itiIjiClj tljC DC= ^'^^^''3^'°^
fenOant pleads Non Affumpllt, aitO tljC JUrPfind that the Delendant^'^^'y')^')^.!"
affumed tO pa^ tljC %\\\\\ and find nothing of the Requeft, nor that \\t nvouidu'i'M
affumed Modo & Forma ;. anQ tljetefOre it i0 UOt fOUUD fOt tlje Plain='/^^ DeUn-
tiff. P» 3^ ei* J5. E* bCtlUCeU Claydon and Alfopp;, aOjUOSCO* '^'""'' ^"-
"uJiit for
Goods ti'hich
hpoiildbtiyofthe Plxhniff for the Dsfcnd/TTit'j Ufe any liMV, that he iiwdd fee the Plahit'iff p.xid ■zvhen the
Dejeudattt Jhouldreeiurf} him. The Jury found the Promife, [but laid norhing of any Requell] The
Judf^mentof the Court was, that the Verdidt did not maintain the Declaration, becaufe for G//.j/c>-,i/
Matters, which are not Duties, a Requsft is materi.il, and not like a Duty ; as for a Debt due, and no
Day of Payment exprefi'd, tliat fhall be alleg'd to be when he fiiall be thereunto requellcd generally.
Brownl. 15, Trin. 5 Jac. Gore v. Colthorp.
6. Jn an information UpOtt tljC @>tatUtC Of 23 Tp. 8. Tam quam &c.
for Extortion, if tIjC Plaintiff declares That the Defendant was Keeper
of the Gaol or prtfon Of tijC Caftle of Maiditone, and took ^U anH
npOn Not Guilty' pleaded, a special IDetOtft i0 lound that at Maid-
itone there is not any CalUe ^ but that there is a Gaol, and that the De-
tendant was Gaoler of it, and that * he took &c. fOt tUljOUl ti)(0 ^tX-
Hirt 10 founO, tubitntui*, DilU lo car. 15. E. bettuecn Goodxvm
and May. Jutratur iJill. 9 Cat. Eot* io8s. $i5iclj. II Car* Cije
Court '^0 of ©pinibn for tlje plaintiff, notuiitljftanOing tlji0S)ti=
jcction , but ftaio for otljer exception*
7. 3if in Ejedione jfirni3e a Leafe be pleaded of a Manor &c. where-
of the Tenements in which were Parcel, auO UpOU t!j!0 IffUS 10 jOin'U,
Quod non Dimilit Manerium ; antl tlje 3iUr}) tljlltUpOU gillC a ^pCdal
Verdift, fcilicet, That there were not any Franktenants, but divers
Copyholders of the Manor, and that it was known bv the Name of a
Manor, -scijo' It U3a0 UOt a s^auot in lam for Default of jfranU^
tenant0, ano tljouglj it iua0 allegeo i\\ l^lcatmig to lie a ?!3anor,
tnbtcl) l^leaoinn; 10 maoe bj) 99en learneo ; ano tljo' it tuad in an ^i-
tion aoi}crfarp, ano not amicable, vet inafnuici) a0 an Jiffuc i0 tri=
able bp lap-iJ?CKt0, ani3 tljnt in Crutlj tlje Cencnient0 in uibiclj
5S . pafga
434
Trial.
pnfS'5 bv tijc iLcare, tOis mi'tsitt 10 totin.n foe ijtm uiijo picaDcti tijc
leafe of tije ^anot i for it i^ tOe 'B)Uufta!UE of tljejiffuc liBijctijci; it
luajS ocnufeB or not* C^iclj* 22, 23 ci. 05, R, nettoecn Vifies and
Durham, CltCD CO. 6. .V/r ylc/oj/f F/;/t>^, b'?. iaDJUllgeO.
8. 5if Piaintilf pleads that B. was feiled in Fee Oi' jLatllJ, and tI)CtC-=
of inieoiPd A. in Fee to the Ufe of B. tor Lite, and atcer to the Uie of
C. in Tail; tO tUljtCl) Detendiinc pleads, and traverfes, without that
That B. inteort'd A. Wodo & Forma $C, UiJOll iDljIClj tIjCP ait at JffUE,
illltl tljC JlUl' find that B. was feiled in Fee, and inleolfd A. in FVe to
theUleof B. for Life, and after to other nielne Ufes, v/hieh were all
determined and ended before the Flea pleaded, and then to C. in Tail.
3:11 ti3t0 Cafe, tijo' tlje mcfne iifeg ate not pleaticB, ^t tijcp hz\x\^
BCtetniineO More tijePlCa pleatietl, and not material to the .VUuter in
queition, tljc IiTiic 13 foiuio fot lo* iBljo fjaU Icft tI)orcHfe0 out of lji0
pieai for noiu it 10 to tljofc itfe?, a^ Ije \ym pleaUeQ it* -^t* 14
Car* 15. K* tzmzm Hide and A^oiin, nt!)ii5«cB upon a g'pectal mt'
tJiCt in i©i*it of €rrot upon fudj Juogment m 'Banfe* 3 ntratut m
"Banco Ecixis, p. h ^at- Kot. 467- anis in X^anl^, Crui. 12 Car*
JRot* 360. (ii^ote t{}4it, a0 It rceni0 to «ie, tfje iifcs arc not mate'
rial III tW Cafe, inafnuidj a0 tijc Mut 10 onlp upon tlji:leoffnicnt,
iBljicij U)a0 a CauliEvance at Common laru, oM not upon tijEitfes,
Voijv:\) 10 a Ccnucvuhce h\> ttje S)tatute of nfc0*)
Br. Vcrdift, 9. J.f n agTee to e;ive a Verditl:, but the 12th will not agree with
pi.^49. cites jhe^i^ jjjg ©eruict cannot fcc tafecn from tljc 1 1. 41 !^ff* 1 1.
Br. Verdift, jo_ gm; filC Jullices may carrv the Jurors with them in Carts, till
s' a ■ "'" >^h^y ^g""^^ Qf^ f^J^^^ a:)crt!!ft, mijen tijep 00 not agicc*
S. p. in Cafe of Lite and Member. Ver.t. 97. Mich izCav. z. B. R. in Cafe of the King v, Ledginwham-
— Raym. 193. The King v. Ladtingham, S. C— This Pica, and pi. 9. do not belong to this Divifion.
II. In J//{fe of Rent the 'Tenant made Dejaiilt. The Plniiitiff' afcer-
tahi d thi Court, as he ought, what Rent it is, and faid that Rcnt-Servicei
and the Jury [aid that the Land is Hors dc Jon Fee, but he has Rent there
by Prefcriptwn ; and the PlaincilF recover'd. Er. Verdicl, pi. 71. citeS
13 All: 4.
Br. Iffues 12. Debt againji the Heir upon the Obligation of his Father, v/ho pleads
Joines, pi. Riens per Defcent j and the Plaintiff fays that AJj'ets in D. and fo to IlFue,
Jig. cites 2j^^ jj is found that he has Jffets in S. but nothing in D. This is a good
■ Verdift, and the Plaintiif Ihall recover; for Alfets, or no Allets is the
Matter, and not the Place where it lies; for if he has Jlffets in any Place
or Fill, this is fujfiaent. Br. Verdift, pi. 61. cites 10 H. 6. 13,
* Br. Failer 13. It feems that if j^. A^. pleads that W. C. infeoffed him &c. and the
^1 ^dtes^ * Plaintiff' fays that Non jeoff'avit Prout &c. and it is found that he enfeoffed
g \f him upon Condition, this is a good Verdift for him who pleads the Feoff-
Br. Plead- ment. Br. Verditt, pi. 103. cites * 33 H. 6. 2. and f 16 Aff. 19.
ings, pi. 51.
cites S. C. PI. C. 14. b. S. C cited in Cafe of Reniger v. Fogaffa -^ — S. C. cited Hob. 55. in Cafe of
Fofter V Jackfon.
j Br. Failer de Record, pi. 6. cites S. C.
14. If there be a Challenge for Cofmage, he that takes the Challenge
mufi fhew How the Juror his Couiin. But yet if the Cofmage^ that is, the
Effe£t and Subllance be found it fiifficeth ; for the Law prefers that which
is material, before that which is formal. Co. Litt. 157. a. (t)
15. If the Matter and Subjiance of the Iffue ht founds it is fufficient.
Co. Litt. 227. a.
1 6. If an Ejectment be brought of 20 Acres, on a Leafe of 20 Acres, and
the Defendant plead Non ejecit, there if he is found Guilty but in 10 Acres j
yet the Plaintiff Ihall recover. But otherw'ife if the Iflue be Non demific.
Dal. 105. pi. 50, 15 Eliz, Anon.
17. In
^ — ~^ — ■*»
Trial. 4. ^ 5
17. In EjeSlmenr, the Plaintiff declared of an Eje[imer.t of 100 Acres, And tho*
and Ihevv'd his Leaje in Evidence, which w^zj- only of ^o Acres, it was ^j?! ^'°'''''
objefted that he had lailed of his Leafe, there being no fuch Leafe as Lel^riiad
that of which he counted. But it was ruled to be good tor as much as been inferr-
was comprifed in the Leafe, and that the Jury might acquit him ed in the
of the Refidue. Cro. Eliz. 13. pi. 4. Hill. 25 Eliz. C. B. Guy ^""5' '^
pj .'t-T J J could not
^ . i^ana. j„ judgment
of Law be
extended to fo much a greater Quantity. See Yelv. 166. J\Iich. 7 Jac. B. R. Anon.
s
18. In Debt againji an Executor for Rent due in the 'Time of his deflator
the Defendant pleaded Levy per Dijirefs ^ ftc non detinit ; the Jury fcnnd
that the Ajfgnee of the Executor had paid the Rent to the Plaintiff, who had
accepted it, but that no Dijirefs "was taken. It was adjudg'd by 3 Judges
that Defendant fliould have Judgment, becaufe the Subltance of tfie Plea
was found for him, (viz.) that the Rent was paid, and by Confequence
the Defendant Nil detinet. But Walmfley contra. Cro. Eliz. 140. pi, 1.
Trin. 31 Eliz. Sir Tho. Cecil v. Harris.
19. In an Avowry, the Ijfue was Whether the Locus in quo Sec. was the ~ And. 4S.
Freehold of the Avozvant or not, and the Verdift found that it was the f' 5^-Anon.
freehold of the Avozvant's V/tfs. And per Cur. it is found againil him ; lor i'^Q^ ^°,^^
when he fays his Freeliold, it is to be intended his fole Freehold, and fays ; Judge:
in his own Right. Cro. Eliz. 524.pl. 52. Mich. 38 & 39 Eliz. B. R. ^vere ot this
Bonner v. W'alker. " Opinion, but
that the
other doubted ; for that it appears upon the Verdiflr, that the Baron had fufficient Caufe to do what he
did, and then it is all one in Subttance ; and upon luch Matter appearing, the Court ouo-ht tw
adjudge. "
20. If a Tenant brings an A£lion of Trefpafs, wherefore by Force and
Arms &c. againji his Lord, and the Lord pleads that the PLntitijf holds by
fuch Services, and IlFue be taken upon it, and the ]nvy finds that he holds
hy other Services, the Verdi6t is fufEciently found lor the Lord, becaufe
the Plainti.if could not maintain an Aftion againlt his Lord j Per War-
burton J. Brownl. 177. Hill. 7 Jac. Pope v. Shurm.
21. In Cafe for incloftng the Common, the Declaration fuppofed Common to z Roll Rep.
60 Acres of Land, 60 Acres Meadow, and 80 Acres Fafiure ; upon Not 2.5-- P^r^'
Guilty pleaded, the Verdi6lyf«rf'j that he had Common to a Meffuage, and nnrk s c^^
^Q Acres of Land, Meadow and Pajiure, thereunto appertaining ; and for \i^^ S. P
the Refidue that he had not Common. It was allign'd tor Error, that they docs not ap-
have not found fuch Common whereof the Plaintiff counts, no more P*-"'-
likewile do they iliew the (^iuantity of the Acres of the Land, Mea- g'''^''" ^"^^^
dow and Pafture refpe£lively, but confufedly to 90 Acres ci Land, fJivej by
Meadow and Pafture ; wherefore this is not any fuch Common as the Lea Ch.'j.
Plaintiff declares of Sed non allocatur ; for the Common is but the Induce- iJodderid'ge
inent to the AiStion, and the Subfiance is the hiclofure, zt'hieh did the Tort i ^"d '^'^•^"l-
and if he had Common to more oriels Land, it fiad not been material in th!t^\he '
this Aftion, or Upon this Ilfue. But if it had been a Special Ifjue, whether Verdidt is
he had Common for fo much Land, it might peradventure have been other- soodenougfi,
wifci wherefore &;c. Cro. J. 63o.-pl. 2. Hill. 19 Jac. B. R. Eardley v.
Turnock.
22. IfTue whether Money was paid for a Mortgage upon White Acre,
\iNtxd\Qi finds that it was paid for Black Acre and White Acre, it is good
iper Cur. Keb. 192 pi. 176. Mich. 13 Car. 2. h. R. Levic v. Crane.
23. So per Twilden, Whether a Onnmon was from Lady-Day to Mi-
chaelmas, and the Verdict finds from Chrijimas to Michaelmas Day, 'tis
good. Keb. 192. pi. 176. Mich. 13 Car. 2. B. R. Levit v. Crane.
24. If 2 covenant to build a Houfe artificially, and in A£tion againft
them, one makes Default, and the other pleads that the Houfc was artifici-
ally ereifed. Or that it was artificially erefted by hi mfelf fwkhouz faying
by them 2) and the Jury find accordingly. This is a good Performance
of the Covenant, becaufe the Thing required to be done is accordingly per-
lorin'd i
2|.c6 Trial.
form'd ; Per Twifden J. Sid. 76. pi. 8. Pafch. 14 Car. 2. B. R. in Cafe
of Boulter v. Ford.
25. It the Illue be Payment at A. and the Verdi^ is Payment at B. 'tis
a good Verdift i for the Place is not material. Keb. 662. pi. 54. Hill.
IS & 16 Car. 2. B. R. Lucas v. Harlow.
•26. The Plaintiff in I'refpafs declared, that according to the CiiJIom
there, he was chofe Biirgefs ofR. Off. i, and in the 3d Year of W. & M.
But it aj)pear'd on the Kvidaice, that he -itas chofe on the zgth Sept. in the
3d Year &c. and Hat oh Off. i. as Plaintiff counted ; and where it was
laid that he was elefted according to the Ciijlom on Off. i. which was not
fo, becaufe the Cuftoni to choofe is upon 29 Sept. and fo it was
urg'd that the Plaintiff^ hzd failed in the Ciificm, lor that the Day is Par-
cel thereof Sed non allocatur, becaufe the Day is not material j for the
Plaintiti has proved himielf to be cholen on the cuftomary Day, (viz.)
29 Sept. fo the Day in the Declaration is hut Form, and being laid be-
fore the Action brought, it is well enough. But it had been other-wife if
the Fhintiff had laid the right Day tn his Declaration, and had proved him-
felf chofen on a wrong Day, for there he would have iail'd of the Cullom ;
but here he has proved himfelf duly chofen belbre the Aftion brought i
fb that there is a Drfference where the Eleffion is wrong hut the Day laid
right, and where the Ekffion is Right hut the Day laid wrong. Carth.
228. Pafch. 4 VY. & M. B. R. Vaughan v. Lewis.
(D. g. 2) Siirplnfage in Verdl5:s, afid the Effdi
thereof.
1. T^T H EN a jury brings in a Verdict and there is Surplufage, the
y Y Court vj\\\. rejeff the Surplufage. 11M0d.64.pl. 2. cites 3
Le. 80. I Le. 323. 7 H. 6. 20.
2. In \\ ard, the Plaintiff recover'd upon the Proclamation, and Writ .
iffued to inquire of the Damages which found Damages 20 /. and that the
Infant was of full Age hcfore the Writ of Ward hroiight i the Plaintiff pray'd
Damages. For per Finch, the finding that the Infant was of full Age be-
fore the Writ brought, is Surplufage, and therelbie the Plaintiff ought
to recover, which ieems to be Law ; for the Age of the Infant was not any
, ^ Article of their Charge. Br. Nugation, pi. 16. cites 39 E. 3. 9.
non pfze. 3- In Annuity the Plainti^ counted hy Prefcription, a.nd the iten ant tra-
cites S. C. vers'd the Prefcriptiun, und found for the Plaintiff, and that Nothing in Ar-
rear, and the Plaint iff' recovered ; for the Iffue is found tor him, and the
Nothing Arrear is void, and Surplufage ^ for it it not Part of the lilue.
Quod nota. Br. Verdift, pi. 78. cites 39 E. 3. 38.
Br. Eftoppel, 4. Surplufage found by Verdi6t over the Iffue, and more than needs, be-
p). 27. cites tween the Anceftorof the Demandant, and one whofe Eltate the Tenant
40E. 3.38. jjgg jj.^^jj {jg noElloppeli Per Finch and Caund. Br. Nugation, pi. 7.
cites 40 E. 3.
5, In Praecipe quod reddat, the Iffue was between the Demandant and
f. N.who prayed to be received, if the tenant had Fee or not, and found th.it
the 'Tenant never had any thing, nor the Prayer any thing in Rever/ion ; and
this lall Part was held Surplufage, and is not material. Br. Nugation,
pi. 25. cites 47 E. 3. 19.
6. When the Court makes the Jury inquire of other Matter, in which is
found a dubious Tenancy, this is only Surplufage ; and therefore the Judg-
ment Ihall be affirm'd. Br. Verdi6i:, pi. 67. cites 3 H. 4. 16.
7. Where
Br. Ku^a
tion,
Trial.
437
7. Where the j^Jfifc gives Vcrdtti de Gree at Lirge, there all the Matter ^r. Mujjj-
p.ill he taken to be their VerdtCt. Bat where they fay their VerdiH, and ".°"' ^'\='5-
after they add more to it l>y the Cocrtion of the Court, there the Court fhall """^^ ' '
adjudge upon the firft Part of the Verdift, and not upon the lalt, as here ;
for it IS only Sarplafage^ which fliall not liUrt. But it was not adjudged,
and this Cafe is not in the printed Book. Br. Verdict, pi. 67. cites 3 H.
4. 16. Per MarkhamJ.
8. If the Jury find the IJfue, and more, the Surplufage is voidi ^s in Br. Nuga-
I/fue upon in/mediate Seiftn, they find this, and alfo a continual Claim, this "o". p'- 2).
Partis void i tor it is Surplufage j Per Strange &: non negacur. Br '•.'^'^'' S C._
Verdia, pi. 68. cites 7 H. 6. 8. 9. 10. Le*^k^'\'?
Sd. ill ^fa
pp;S's Cafe, but cites it as 7 H. 6. 20.
9. ^Vhere Surplufage is found by Verdift in Affife, as Jointenancy'^v. Affifc,
<?cc. 'ivhich abates the IVrit, yet this is only Surplufage when it is not P'- -9- "-'ites
pleaded, and Ihull not prejudice the Plaincilf. Br. Kugation, pi. 27. I'^y^' '"'
cites 33 H. 6.
10. If a J ury give aVcrdiiJ of the isohole Ifjiie, and of viorc^c. that which
is more is Surplufige, and Ihall not llay Judgment ■■, lor Utile per Inu-
tile non vitiatur. ^ntn^ct^xry Incidents required by Law, the Jury
may find. Co. Litt. 227. a.
1 1. ^refpafs for breaking his Honfe in fnch a Parifh and IVard in Lon-
don, upon Not guilty pleaded the Jury joiind the Trefpafs, and that the
Hotife 'juas in the Pan/h, but not in the Ward. It was held that this Ver-
difct is for the Plaintiff; for the finding that it was not in the Ward, was
fuperHuous, it being admitted by the Parties, and the Jury ought not to
meddle with it ; Judgment for the Plaintilf Cro. Eliz. 283. pi. 6. Trin.
24 Eliz. B. R. Haffell v. Juxon.
12. Wajle. The VVnnzi'X declared that P. the Defendant, feifed in Fee, ■:^ Le. So. pi
fimde a Feoffment to the Ufe of himfelf for Life, the Remainder to the Ufe of ^^^- idf-
ui. Mother of the Plaintiff' in Fee ^ that A. died, and the Remainder de- ^V^^ *-''''=^.
fcendcd to him, and the vVafte was done ali:er her Death. The Defen- p^,. '^ ^ff^,
&xx\t pleaded that he was feifed in Fee, abfqne hoc that he made a Feoff'ment. fon and"^'"
It w\\s found that he made a Feoffment, and that it was to the Ufe of himfelf R^^des, this
for I.fe, without Impeachment of' Wajle, the Remainder o\er tit fii'pra. It I^ipun'ry
was ob]e£fed that this Verdi£t was found for the Defendant j for altho' [^""l- ^•^'^'^
it be not found he was feifed in Fee, yet it was found he held lor Life, M-uter^'not
without Impeachment of WaltCj and lb no C^aule ot" A£f ion. And oi withia the
that Opinion was Windhahi J. but the other Juftices contra ; and faid *^harp;e of
that the Jury had found more than they needed. It was adjud'^ed for ^ j-l"7'
the Plaintiff:' Cro. E. 40. pi. 3. Trin. 27 Elis. C. B. Clare v. Pepys. n"au was'
ffiven for
the Plaintiff. Ow. 51. S. C. by the Name of i^aprc ij. ©CUrat, by Andcrfoa Ch J ac-
cordingly.
13. Dower againft the Heir of Lands in A. and B. the Tenant pleaded
Ne unques Seijie que Dower, the '^uvy find that the Husband, daring the
Coverture, was feifed of all the Tenements, Prxterqtiaiii the Tenements in
A. &c. fo as the Widow dotari potuit. It was objetfcd that the Prteter-
quam confounds the Verdift j but the Court laid that the Prjeterquara is
idle, and Surplufage ; fbr it is of another thing than what is in Demand,
and the Seilin of the Lands in A. and B. is confefs'd, and the (Pn^ter-
quam) nihil operatur. Le. 92. pi. 118. Mich. 29 &; 30 Eliz. C. B.
Butler V. Ayres.
14. If thcTfr/? Part of their finding he full to the Iffue, either exprefsly
or by Implication, if the latter Part of their finding do any ways contra-
diif this, then the firll Part of their Finding Ihall be good, and the lat-
ter Part void ; Per Dodderidge Jult. 2 Built. 56. Mich, lojac. in Cafe
cf James v. Harris.
S T 15. In
438
Trial.
15. In Replevin, the Defendant avow'd for that the Lord P. was
feifed of the Manor &c. a}id io frefcribed to have a Leet there, where all Re-
fiants ought to attend once in a Tear ; ■AX\dithat the Plaintiff was amerced
for not attending. J JJiic being taken upon the Prefcription, ihe jury found
It as pleaded ; and J art her, that f. S. was feifed in Fee of another Manor
called R. within that Manor, and prefcribed for a Leet likewife : So that a
Queftion was made whether he ihould be chargeable to two Leets. But
it was adjudged, that lince the Verdict had found the Iflue verbatim for
the Avowant, the other Matter found is not material. Cro. Car. 75. Trin.
3 Car. C. B. Eve v. Wright.
To 191. pi- ^^- -Aif'ttmpfn againfi an Executor, and counted that the deflator, 16 0[i.
1. inf;oi-fhill 18 Jac. in Confideration of s I. lent )^\m, promifed to pay Sec. The De-
V. Samms, fendant pleaded that the 'deflator Non Jff'umpftt. The j ury found Aff'mnp-
S.C. accord-^^ ^.^^^^^ y forma, but that the T'eflator died fuch a Day 17 Jac. fo as he
*"° ^' was dead a Year or more before the Time tound in the Record. Re-
folved that the Verdift being AlFumplit modo & forma, the Finding
over that the Teltator died before the Time mentioned in the Declara-
tion, was but idle and Surplufage; nor is the Day of Alfumpfit material.
And adjudged for the Plaintiff. Cro. Car. 130. pi. 5. Mich. 4 Car. B. R.
Inkerfalsv. Samms.
Keb. Sio. 17. In EjeBment of a Manor, the Verdict found for the Manor for the Plain-
pl. S4. S. C. fig-^^ and for the Services for Defendant. It was moved, that the laft Pare
C^^-'h^ld -^''W'^^'^^''™^^'^^} was Surplufage. But the Court gave no Judgment upon
ita^manifeft that Point. Sid. 232. pi. 33, Mich. 16 Car. 2. B. R, Hamond v. Conisby.
Error, and
atTignable by the Defendant, the Verdift not being to be taken by Parcels, nor the Judgment ; and
that the Judgment was ftay'd.
1 Show. 547. ■ 18. In Trefpafs for taking Plaintiff's Sheep, the Defendant _;///?i/fe^ /or
Surges V. Damage Feaf ant, the Plaintiff in his Replication prefcribed to have Commm
^'^M^ri'^ " ^°'' Sheep; and the Prefcription being traverfed, the Jury found that the
Bi-uo-es v^^' Plaintiff had Common for Sheep, and alfo for Cows ; it was objefted that
Lear S.C— this Verdifl did not maintain this Prelcription, becaufe it was larger
The Court t;han it was pleaded ; but it was adjudged ior the Plaintiff. 4 Mod. 89.
held that p^f^j^_ ^y ^ 2^,j_ Bridges v. Saer.
Vfas a vjene- ' ^
ral Verdi6t
for the Plaintiff, and the other Matter found afterwards is Surplufage and void. Bsfides as the Action
was only for taking Sheep, the Plaintiff might well abridge his Prefcription as to them only, fince no-
thing elfe was in DUpute. And the finding he had Common for other Cattle does not falfify his Pre-
fcription, but ftands well with it. Cartli. 219. Bruges v Searle S. C.
19. If the Jury in a Special YexdaSt find the Iffue, all which they find
afterwards to the contrary is Surpliifage. See 2 Ld. Raym. Rep. 860. 865.
the Cafe of Tonkin v. Crocker,
(D. g- 3) Advantage of a Verdict. By rjfmm It may
be taken. Strangers.
I. T" F two are indited of the Death of a Husband, and the Feme brings
X. -Appeal againfl the one, who is acquitted by Nonfuit after Appear-
ance or otherwife, fhe ihall not have Appeal againft the other, nor any
other ■■, by which he was arraign 'd at the Suit of the King. Brooke fays,
nnd
Trial. 439
and lo fee a Stranger has Advantage of the Record ; which feldom hap-
pens. Br. Appeal, pi. 139. cites 4^ x^ff 7.
2. He who is a Stranger to the IJftie Hiall not ha^eJd'v^ntagc of the Ver- J^r- Trials,
(I'M or 'Trial, tho" he zvas Pcirty to the Original. Br. Record, pi. 3 cites P.^' '^^'^
33 H. 6. s'c.'— —
Bi-. Ver-
dift, pi. 60. cites S. C.
3. As in Debt againfi 2 ofD. hy fexeral Precipes, and ^'Of^ were oiitlaiio' d , Br.Eftoppel'
and the one taken iy Capias Utlagatinn, and pleaded that Nofiich Vill, ''■f'dV'Q~}_^^^
found for him, and he went quit, and after the other was taken by Capias ^iizh. Utla-
Vtlagntain, • and would have taken Advantage of the Jirji Verdiii and gary, pi. z6.
ludgincnc ; and could not by the heft Opinion, by which the Attorney (^ites S. C.
of the King confeHed the Exception, and thereupon he was difmilfed.
Er. Eltranger al tait. pi. 3. cites 33 H. 6. ji. 52. * c p • 1
4. But per Hobart Ch. J. where an Iffite is well found, it fliall fome- pj ^ '^'^^ ^
time relieve a Stranger, as in the Cafe of* '^TlH}) aUD lIBOOtiP, 7E. 431. by Mounta-
where an A£tion ot Trefpafs was brought againft zfor taking of Goods, the gue Ch. J.
one pleaded Not Guilty, and it was found againfi htm, and the other plead- 1^^'^^*^ °'
edthat the Plaintiff had ^ given him the Goods, whereupon I^^"^ '^'''^s ^i^f,,,!!,*-.
taken, and that ^ound again}} the Plaintiff, and therefore judgment was \^xn,l and
given againft him ; for the Iffue was well found, and the Aclion being Ibid, in
the fame, and both the Defendants Parties to it, and the Court being ap- ^J^'^g " 's
priled that the Title was againft the Plaintiti; no Judgment could be ^'^'^''^/'^^^^'J-
given tor him againft the other. But if the Plaintiff had brought his Ac- j^j abridg'd
tion feverally againft either Defendant (as he might) he would have by Fitzh.
had his Judgment, tho' perhaps the Defendant might have been relieved ''t- Judg-
by Audita (Querela upon the other Judgment ; tamen Quiere of that. Hob. ?l" p'^ro"
54. in Cafeof Fofter V. Jackfon. J.^U- i;?-
pi.-. Mich 4jac. B. R.perCur. Obiter, in the Cafe of ii0arlcr i). aipUac f GcplCtt"; for there-
by he deftroys the Plaintiff's Title, and fliews that he could have no Cauie of Attion.
5. So two covenanted to build an Hoiife artificially, and in Covenant a-
gainft them Judgment was againji one by Dejault ; the other pleaded that
they two did artificially build the Houfe, upon which they were at Ilfue,
and found for the Defendant. The Plaintiff moved for a Writ of Inquiry
againft the other, againft whom Judgment palled by Default, but it
was denied, and per Cur. he Ihall not be charged with any Damages ;
for it appears by the Verdift, that the Covenant was pertbrm'd and the
other Defendant Ihall have Colts againft the Plaintiti. Sid. 76. pi. 8.
Pafch. 14 Car, 2. B. R. Boulter v. Ford.
1
(E. g) Verdia:. What Verdi^ may be ahe/d.
if a 3]Urp find a Privy Verdia, ))Ct i\)tr> Itinp alter It in open S P Co.Litr.
Court: M^-^
Rifing of the Court, the Jury gave a Privy FerdiB for the Defendant, at another Day gaie a FerdiB for
the Plaintiff, the Queftion was, Upon which of thefe Verdiiis Judgment Ihould be given, and adjudg'd
that it fliall be upon the laft, becaufe that is the true Verdift which is given o].enly in Court, and the
other was only allow'd for theEafeof the Jury, that they might refrefh themfelves. Moor 55. pi. loS.
Trin. 3. Eliz. Anon. PI. C. in. b. Mich. 5 & 4 Eliz ftjaunUcrS b. ^Frtfmau S. P. and feems to
S. C. D. 209. a. pi. 21. S. C. fays, that both I'erdiSii were return'd upon the PoJIe.r, by Advice of
all the Jufticesof AfTife in England, and that bv the Opinion of all the Julhce.s, viz. Wefton, Browne,
and Dyer, the lail Verdift (hall ftand and be in Force, and not the firii:. S C. cited 2 H. Hift PI.
C 299
440
Trial.
C. 299 ;oo. and f^ys, that if the Jurni-s by Miftake or Partiality give their Verdict in Court, yet they
nay redtify tt before it is recorded, or by Advice of the Court go together again and confider better of
it, and alter what they have dcliver'd.
2. I^pon a IBrit or Extendi facias upon a Statute^ if tljC ^tcriff
iUiptWnCl il SiUl'P, aUD tljZ\> deliver the VerdiSl to the Sheriit'in Writ-
int?, tijcp map after mal^e it more formal, but tijep cannot alter it in
subiiance; for It 1^ a coHiplcat aDcrDirt bp tljc DcliM'P ofittotije
©Ijcnfn ^* 12 3a» 03, jD^/w/0 Cafe*
3. In Allife, if the Vcrdi^ at large finds a Relcafe, they ?imy waive it,
andghe exprefs Verdiii at their Peril. And fo they did there ; for when
at the firit they gave it at large upon a Matter doubtful, they after-
wards waived it, and gave exprefs Verdift that the Plaintiff was feifed
and dilleifed ; Quod nota bene. Er. Waiver de Chofes, pi. 16,
cites 16 Air. 15.
Sr. Verdift, 4. Coiifpiracy againft f^o who pleaded Not Guilty., and the Juryjonnd
yX. I z. cites ^,^^ q,,^ Guilty and the other not, and the Court gave them Liberty to go
^•^- r~~ to<2;echer again to be better advifed, v^ho came back and faid that both
racv, p" 13'. ivei-e Guilty ^ for the one cannot confpire alone. Br. Jurors, pi. 7. cites
cites S. C. — II H. 4. 2.
Br. Judges, .
pi. 3. cites S. C. ' S. C. cited PLC. 211 b. 212. a. in Cafe of Sanders v. Freeman.
If the Ver- j-. After the Verdift recorded, the Jury cannot vary from it; but be-
^^^A^A 'f' fore it be recorded they may vary from the firit Offer of their Verdifct,
cannot i^-^'' and that Yerdia which is recorded lliall ftand. Co. Litr. 227. b.
tradt or alter
it. 2 H. Hill PI. C. 300. cites Co. Litt. 527. 7 R. 2. Corone, loS. 20 Ad 12. 5 H. 7. 22. b.
6. Trefpafs in 3 Acres, Jury gave Verdict in open Court, and find as
to one Acre for Plaintiltj as to one Acre for Defendant, and as to 3d
Acre not agreed. By fea\e of the Court they go out to coniider of the
3d, and upon Return, they find in all 3 for the Plaintifi^, and alfels Da-
mages, and Colts, ' ' '"'- -■'' ''-'■ *-■ ^- -v---
Altera
was g
Anon.
(E. g. 2) Verdia FalJJJed.
See Tit. Fal- 1 . T X T H E R E IJftie of 7'enant in Tail is bound by a Verdi£t and can't
fifying Re- y y avoid it, bis LcJJte, tho' the Leale was made before the Judg-
"^^""•^^^ment given, muft be bound; and ftall never fallify this Verdi£t either
by the Statute 2.1 H. 8. or by the Common Law. Roll Rep. 424.
443. Crawley v. Marrow.
See Tit. Fal- 2. If a A^erdict pals againft Tenant in Tail, I/pie in !f ail {hall never
^'^y^^g^^^£j fallify it in the Point tried j per Cur. Roll Rep. 443. Crawley v.
IfrscTre fa- Marrow,
cias be
brought againft the Iflue in Tail upon a Judgment in Debt againft the Anceftor, and he being warn'd
makes Default, he lliall not come afterwards and fay that he 'is Tenant in Tail ; and the fame Law if
he pleads any other Matter, and it is found againft him; Per Cur. i Salk. 276 pi. 5. Mich. 3 Annie
B. R. in Cafe of Trevivian v. Lawrence. 6 Mod. 257. S. C. and by Holt Ch. J. the Ifl'ue in Tail
cannot falfify in the Point tried ; as if in a Writ of Entry a Recovery be againft the Anceftor of Iftue
in Tail, the Iffue canno: falfify it in the Point tried, but he may /ay that his Jmejlcr mitted giving fu<h
tlmigs
Trial. 44.1
thivgt in Evidence which he can now give. 2 Ld. Raym. Rep. 1050. SPrefaiban t). HahTence S.C
and S. P. per Hole Ch. J. that he Ihall not in a Real Adion talfify it direaiy, but only in a Special
Manner, as by faying that Ibme Evidence was omitted.
( E. g. 3 ) Verdid. /Fhnt {hall be faid a fiifficknt
Fhidhig.
I. TN T'vefpafs they were at IJftie if it he the Franktemment of the De-
J^ fend ant or not, and the Jury would ha\e given their Verdift ac
large, and conld not as in Affile, per Hank, and therefore ought to give
exprels Verdift i and if it was the Franktenement of the Tenant by Dif-
feilin at the Time of theTrefpafs, this fuffices ; for this is the Iliuei quod
nota. Br. Verdift, pi. lo. cites 7 H. 4. n.
2. If the Bar nor the 7'itle are not good, and the Seiftn and Dijfeijin is
found, the Plaintiff fhall recover ; tor this is well found i per Keble.
Br. Alhfe, pi. 498. cites 10 H. 7. 23.
3. In Account againji the Defendant, as Bailiff of certain Cloaths, he
pleaded, That as tu Part he was Bailijf to the Plaintiff' and another jointly.,
and for the Rejidiie that he never was Bailiff' to render Account. The Jury
found that he was Bailiff for 16 Cloths, and not Bailiff' for the Rejidue,
without faying whether the 16 Cloths belonged to them jointly or not j where-
upon Judgment was given for the Plainciti' in C. B. and upon Error
brought in B. R. it was affirm'd, and that this Verdi£t was good enough
for the Ilfue. Moor. 548. pi. 733. Mich. 37 & 38 Eliz. Tirrill v,
Darcy.
4. In Debt upon Bond the I[fae was Whether the Plaintiff^ had enjoyed or It was like-
poffefs'd the Office of Beadle of the Court of Confc'ience jor fiich a Time. The ^'^^ |?"''^'
juvy found that there was fuch an Office in Reputation, but whether in Jure h, occupied
or not they did not know, and that he occupied it for the Tune mention d. It it, was a
was held that this was a good Verdift, and futficient, if there was fuch Sufficient
an Office in Reputation only. Moor. 401. pi. J27. Pafch. 37 E^iz.. ^'""^I'^^^j^^j
Dudley v. Knight. ^ J enjojV
it. Cro. E. 5S2. pi. I. Dudley v. Kington, S. C.
5. In Cafe, upon Non Affumplit pleaded, tha Imy found that ly Ncn-
perjoriiiance of the Promife the Plaintiff' had fujtaind $q I. Damages, and
afjefs'd Cofis, and the Plaintiff had Judgment. But upon Error brought
it was reverfed, becaule this was as no Verdift, the Jury having not
found the Matter in Iffue, (viz.) Whether the Defendant promiied or
not 3 tor the Finding that the Plaintiff fullain'd Damages &c, is only a
Finding the Promife by foreign Implication, which is not good upon a
General Ilfue. Yel. 77. Mich. 3 Jac. B. R. Shelly v. Allbp.
6. Leffee for 2'ears of Tithes, granted all his Intereji therein to the Plain- 2 Bulft. dj.
tiff, who brought his Aiiion for not fetting them out j and the Iffue being S C.
Whether there was a Difcharge of Tithes, it was found for the PL; in tiff'. Jt
was then objefted that the Leale was void, being made by an Abbot
within an Year before the Diffolution ; But it was held, that the Ver-
di£t being found direftly upon the Difcharge of Tithes, which was the
only Matter in Iffue, it is well enough ; for the Leafe was only an Induce-
ment to the Fhinuti''s Tide. Cro. J. 318. pi. 1. Hill. 10 jac. Arnold
V. Bidgood.
7. Hovvfoever a Verdi f} feems to z'ary from the Iffue, and cciKlude net
formally or punctually to the Iffue, io as you cannot find the Words of the
5 U ' liiue
44-^
Trial.
flTue iri the Verdicl, yet if the Verdift may be concluded out of it to
the Point in Illue, the Court (hall work it into Form, and make it ferve j
per Hobart Ch. J, Hob. 54. in Cafe of Fofter v. Jackfon.
8. In an KjeBiofie Firnuv a Special Verdift was tbund, That A. was
feiied &c. and being ^<j ieifed the Firlt of May &;c. feat figillivit, &
Scriptuiil fuum tradidic ^ delihera'vit, an Ifsdeiiture purporting a Leafe for
Life, which follows &c. this Indenture made &c. by Force of which
the Lejjle entered &:c. And by the Court, that is no good Finding of a
Leafe lor Life, becaufe they have not joiind Li^very and Seifin, nor an ex-
prefs Deiuife jor Life. Noy 118. Hill v. Proule.
9. In a J^tiare Iiupedit a Special Verdi6^ found an hijlriiment under the
Hand and ^eal of the Bijhop, with this Indorjetnent, (viz..) That a Re/ig-
nation ivas acknowledged and accepted by the Bilhop.- It was refolved
and agreed, that this is no abfolute Findings that it was a Refignation
in Fact ; lor it was only a Circumflance, and Inducement to a Relignation.
Koy 147. Smith v. Foaves.
10. So of finding a. Deed with Indorfement that Livery was made, is
hoc a Finding of a Leafe for Lite. Noy 148. in Cafe of Smith v,
Foaves.
11. So the Finding o{ an Jicqiiitta?ice of the Debtee is not good Finding
upon an liliie oi Ptene Jduitniftravit ; for it was but a Circumllance and
y;/ii^wt7//tv// to the Jury. Noy 147. Smith v. Foaves.
* 9 Rep, 69. 12. Upon an h/ditlment of Afurder, quod Felonice perctijfit See. if the
3. inQBar; j^jj.^. ^.j^^ pcrcu//it taiitnm, yet the Verdifit is good j tor the Judges of
for killing''' '^^'^^ Court are to refolve upon the Special Matter, whether it was Felo-
the Serjeant, nice, and fo Murder or not,* Lib. 9. 69. and if the Court adjudge it Mur-
der, then the jurors in the Conclulion of their Verdict find the Felon
guilty of the Murder contained in the Indi61:ment. Trials per Pais
257, 258.
13. Debt on Bond againji A. jor the Payment oj 100 /. by A. B. C. or any
of them. Delendant pleaded Solvit ad Diem ; the Plaintiff replied, that
neither A. B. C. or any of than, had paid the Money ; and the Jury found
that the faid A. had not paid it ; and Judgment lor the Plaintiff. It was
aflign'd tor Error, that the Verdift was not according to the IlTue ; tor
perhaps B. or C. might have paid it. But refolved that the Verdi6t was
good, becaufe neither B. or C. are mention'd in the Plea, and rhe Ad-
dition of them in the Replication is but Surpluflige; and it thai! not be
intended that the Money was paid by either of the other two, when the
Defendant pleads that he himlelf paid it. Cro. Car. 6. pi. 3. Patch, i Car.
Aricoc V. Heal.
14. A. dez'if'ed a Rent to be iifuing out of feveral Meffuages, Lands
Sec. in the Poiielfion of teveral Tenants, and which defended to z Daugh-
ters, who were his Heirs. The Rent vyas arrear for many Years. In
AJJtfe brought by the Devifee the Jury jound a Scifin by the Hands of one
of the Husbands of the faid 2 Daughters. Refolved this was a tufiicient
Finding; As it is in the Cafe of Seiiin given by one Jointenant &c. Cro.
C. 520. pi. 21. Mich. 14 Car. B. R. Morrice v. Prince.
Lev. 27,28. ij. Upon an Iti'ue dire6led out of Chancery a Special Verdift was
^ S-' )"ff found, that A. was fcifed of the Manors of L. and M. and of Bl. Acre,
as to tiiis (which lall are the Lands in queltion) ;// Tail-, and he being lb feited,
Foim of the fiiffer'd a Recovery of the faid Manors with the Appurtenances, and they
Verdia. — tbund that Bl. Acre &c. was not Parcel of the Munors of L. and M. or
S C. h' either of them ; hut that from R. tth^sTime they were demifed by Copy, as
nothing faid Parcel oi the Manor &c. Pr^etextu quorum, they were reputed Parcel oi' tha
as to the Manors. It was argued that this was infufficient, becaufe here is not
Verdift.- — any Reputation exprefsly tbund, but the contrary ; for it is found ex-
^ ^/n 'T P^'^fsly that they are not Parcel of the Manors, and then it is found
Cotyhcu'^ ■'^'^that they were demifed as Parcel, PrMextu quorum they were reputed ; (o
Lands pafi'd that it is not esprefsly found that they were reputed Parcel of the Manors,
but
Trial. 443
but Pr^ecextu quorum like to the Cafe where the Jury found Requeft and h *^'^ Words
Denial in Trover &c. But per Cur. the Verditt is good, and i?<?p«;^- ^J^'^'^j^^""-
tion --Ji-ell found, tbo' the lajt Words bad ken omitted. Sid. 190. pi. 19. Manor. It
Pai'ch. 16 Car. 2. B. R. Thin v. Thin, was held,
that if in
this Cafe the Jury had found only that the Lands had been reputed Parcel of the Manor, the Court
could not have given Judgment, becauCe they had found tliat which they had not been proper Judges
of. And it was alio held, that where the Jm-y found the p.xrtiad.-tr Matters, which Particulars are a
Jolid Ground for a Reputatiov, the Court fhall adjudge it Reputed Parcel ; and fo it fhall pals by thofc
VV'ords in the Grant of the King; and Judgment was given accordingly. Freem Rep. 207. pi. 212.
Pafch. 1676. C. B. Lee v. Browne.
that one cannot prefcribe to have Common for half a Cow. But it was larD, that
anfwered, and lb refolved per Cur. that it being found, it Ihall be in- it was held
tended to be as it may be, viz. for half a Year, or that two join'd when ^^ Wind-
each of tiiem had [a Right for] half a Cow. Sid. 226. pi. 20. -p^^jrjJJ,
Mich. 16 Car. 2. B. R. EUard v. Hill. caeterisab-
fentibus, if
in Replevin fo much of the Prefcription be found as fervcs the Turn of the Party, tho' all be not
found, it is fufficient.
17. Queftion was, zvhetbcr the Jinding a Deed in which there is a Re-
cital, Le a finding of the Matter recited ? And it was urg'd, that it was,
as in Cale a Jury nnds a Deed cf Bargain and Sale, "-Ji'berctn Money is men-
tioned to he paid, the Money is found to be paid. But the Court denied
that a Matter recited in a Deed found, is found fo ; for then if there be
a falfe Recital in a Deed, the Jury will find a F^allity ; and yet they
6nd nothing but Truth, which would be abfurd. And that Inllance of
a Bargain and Sale is nothing i tor tiiere, tho' the Money be never paid,
vet it is a good Conlideration if it be mentioned in the Deed. Freem.
Rep. 529. pi. 712. Trin. 16S0. C. B. in Cafe of Blackmore v. Cum-
beribrd.
18. Upon the Statute of i W.^M. 2.1. about nominating a Clerk o/Canh. ^16.
the Peace by the Cullos' Roculorum, a fpecial Verdict was tound, that ?■ ^- ^'^^ord-
the Earl of VV". was Cuttos Rotulorum of the County of R. That the ^"f^^ ~^
Office of Clerk of the Peace was vacant j I'hat the i2ch of July thepj^.' s. C.
Fiarl, by Writing under Hand and Seal, appointed Phil. Owen to be Clerk but S. P.
oi the Peace, durante bene Placito of tlie iaid Earl ; That ali:er, the "^o^s not ap-
15th of July, at the General Quarter-Sellions, the laid Writing was ^''[^'j'T^'
//'fav; to the Jujiices of Peace, and a Queltion aiole among them of theg q" but
\'alidity of the Grant, and they relufed to admit him. Jfteriiuards at S. P. does
the fame Sejions, held by Adjournment at Canterbury, by the Earl of not appear.
^V^'s Orders, the faidWrittngwas read in Court, and then at the fame Sel-
lions, abfque ulla relatione ad Script am pru-'d. habita, the j aid Karl fpeke
hac verba fequentia, in his Anglicanis verbis, / do nominate and appoint
the f aid P. Owen to be Clerk of the Peace, according to the Act of Parlia-
ment. And afterwards Owen was admitted ; then the Earl died, and
the Earl of Rumney was made Cuftos Rotulorum, who granted the
faid Office to Saunders Quam diu fe bene gellerit &c. And Holt deli-
vered the Opinion of the Court, and laid, Tho' it be found that the
Words were fpoke without any relation to the Deed, }et as they are
found, it is impolfible but they mull reler to the Deed, becaule the
\Vords are, that he appointed the faid Phil. Owen, and there is no Phil.
Owen mentioned bej ore but in the Deed, and in Relation thereunto; and if
the Words refer to the Deed, it mull be taken to be a Declaration oi
the Earl's Mind, that what he had done by the Deed, was according to
the Acl of Parliament i but if it mull be taken not to relate to the Deed,
as
444-
Trial.
as it is Ibund, then the Verdi£l is infenlible and repugnant, becaufe
there v/as no Phil. Owen mentioned before, to which laid Phil. Owen
might have Relation; wherefore we are of Opinion that this Nomina-
tion is void, and that the Judgment Ihould be reversed. But this was
revers'd in the Houfe of Lords. 12 Mod. 200. 202. Trin. 10 VV. 3,
Saunders v. Owen.
2 Salk. 604. 1 9. In Replevin the Defendant made Conufance for Fealty, Rent Sz.c. the
pl. 1. 2ucm^ lary found a fpecial Verdift, that before the taking the Cattle, the Manor of
-v ^h^* -^- '''^^^ ^" ancient Manor, and that W. M. was feifed thereof in Fee, and
.s C The t^^'l^ ^here had been an ancient Court there held;, and that the Plainuff' and
Court held his Anceftors -were Freehold Tenants of the faid Manor, and held the faid
that the Suit Meffuage ^c. of the faid W. M. &c. by Fealty and Rent of 4 s. &c. nee
fetjonh in ^^^^^ ^^^ Servitium facicndi fetiam ad Curiam 'Mrnerii fr^diBi bis per An-
fance was ''""^ ^^^^^ Manerium illad tenendum yrout m advocatione mfrafcripta mte-
cxpreVsly rius mentionatur. And turther find, that for 2.0 Tears there had been but
found by f^^JQ Freeholder Tenant there. It was inlilted, that it appears by the Ver-
the Special ^^q^ ^.j^.^^ ^^^ Manor is deftroy'd, and fo there can be no Court, and con-
^Tutw fequently no Suit; for a Court cannot be but before 2 Suitors at leaft.
1211.121:. But the whole Court held, that the Jury had found the Ilfue for the
S C. tho'it Defendant in totidem Verbis ; and then what was found afterwards, was
found be- Crocker.
fore, and to ,
the A'^reement of the Parties themfelves in pleading, yet the Court had little Regard thereto ; for the
Tuvy is ivvorn onlv to try the Matter in Controverfy ; and it would be of ill Confeciuence to allow
them to queftion Things whereof the Parties are agreed. And Judgment ivas affirm'd per tot. Cur.
. Carth. 52b. S. C. but not S. P. 1; Mod. 369. S. C. but not S. P.
(E. g. 4) Verdict. Finding for Defendant. After Co?/-
j'ijjiofi of Fart.
I. TNAfTife, the Tenant />/f^i^f^ in Bar, that W\ -was feifed in Fee, and
\^ ivas bound to him in 40 /. by Statute Merchant, and he fticd Fxecu-
tion, and lliew'd in certain by formal Pleading. The Plaint iff "mutkd
himfelf, becaufe JK before the Recognizance, infeojf^d the Plaint if', who con-
tinued Setjin till the Difeiftn, abfqiie hoc that W. had any thing at the Time
'of the Recognizance, or after. Defendant rejoin'd, that \V". was feifed
the Day of the Recognizance, and upon this the Alfife found that W.
was feifed the Day of the Recognizance, but that the Plaintiff was not fifed
nor diffeifed ; and the Plaintiff took nothing by his Writ. But zhe find-
ing of the Seiftn and DiJJeiftn was held void ; for Seiftn was acknowledged be-
jore. And lo fee, that where Oufler is acknowledged, as appears here,
which was by the Bar, that there the Stijin and Diffetftn pall not be in-
quired ; and if it be inquired, all is void^ as appears here. Br. Affile, pi.
256. cites 24 Air. 2.
2. Debt is hion^ht again ff the Heir, upon the Obligation of his Father.
The Defendant pleads that he has nothing by Defcent, except 20 Acres of
Land in Dale ; the Plaintiff replies that he has more Lands by Defcent,
viz. 40 Acres more in Sale. Upon this the Parties are at IfTue, and a
Verdifl: is found for the Defendant, yet the Plaintiff fhall have Judg-
ment for the 20 Acres of Land in Dale ; for the Defendant has confefs'd
them, and the Verditl has not dejiroycd the Confejfton, If there be a Dif-
concinuance
Trial. 44^
continuance in this Cafe, it is not aided by the Statute of Jeofails i8 El.
14. for the Plaintiff has Judgment upon the Confeffion, and not upon
the Verdift. Jenk. 102. pi. 99. cites 9 H. 6. 37. Molineux's Cafe.
^. Maintenance againjh 2, the one pleaded that he was Attorney of the ^'^■^^f^}^t
Party, and retained Counfel for his Client, and gave 10 s. of his Majter'sl^-^^- ^"^^
Money, and the Plaintiff faid that he gave 40 d. to the Jury &c. and the ' _ g q ^^'
others econtra; and the other pleaded Not guilty, and all found for the
Plaintiff. And per tot. Cur. except Needham, becaufe the A6tion is
brought of joint Maintenance, and the Plaintiff in Pleading has confefs^d
of Record tloat it was of fcveral Maintefiances, the ^V'rit fhall abate by his
Confelfion, where by Law iffuch Matter be found by Verdi{f, the Plaintiff
fhall recover, or [if] Part is found for him, and Part againfi him, and fhall
be amerc'd lor the reft; as in I'refpafs againfi 2 who plead Not guilty, the
one is found guilty of Part, and acquitted of the rcfi, and the other is found
guilty of the reji, and acquitted of the firjl Part, or in Decies tantufn if it is
found that they took Money federally, the Plaintiff Ihall recover. Br. Briet,
pi. 245. cites 36 H. 6. 27.
1
(E. g. 5) Private Verdl6l.
N Criminal Cafes of Life or Member, the Jury can give no privy 5 Inft. no.
Verdi£tj but they muft give it openly in Court. Co. Litt. 22.7. b. ^- ^
2 H. Hilt.
PI. C. 500. cites S.C. and Co. Litt. 227. b. 2 Hawk. 459. cap. 47. S 2. fays it fcems always to have
been agreed. An Information was exhibited againft L. a Lord of a Manor, for opprejfivg his 'T'enants,
and for feveral Mifdemeanors, and he was found Guilty; but the Jury ga-je a Privy rerdici in the County
of the City of E. •whereas the Inform at ion ivas laid in the County at large ; and this being objected as illegal,
the Court laid, It is intended that no Privy Vcrdift can be given in Criminal Cafes which concern Life, a.s
Felony ; becaufe the Jury are ccmmanded to look upon the Piifoner when they give their Verdift, and fo
the Prifoner is to be" there prefent at the fame Time. But in Criminal Cafes where the Defendant is
not to be perfonaliy prefent at the Time of the Verdift, a Privy Verdid): may be given ; per Curiam.
Raym. 19;. Mich. 22 Car. 2. B. R. The King v. Ladfingham. Ibid. 205. S. C but not S. P. •
Vent. 9-. S. C. and fo it was faid to be the ufual Courfe at the Ailifes ; but that it cannot be fo in Cafe
of Treafon and Felony. Ibid. 104. S. C. but S P. does not appear. Lev. 299. S. C. but S. P.
does not appear. Mod 71. pi. 25. SJljt l\iag li. jLlUmgljam, S. C. but S. P. does not appear. .
Ibid, 2SS. pi. 54. Trin. 29 Car. 2. S. C. but S. P. does not appear.
2. A privy Verdi£l given out of Court before any of the Judges of the
Court, is fo called, becaufe it ought to be kept fecret and privy from each of
the Parties, before it be affirm'd in Court. Co. Litt. 228. a.
3. Giving a private Verdift is only fuffer'd for the Eaie of the Jurors;
and upon fuch a Verdict before the Juitices, none of the Parties ihall be
demanded ; and if one of the Jurors die between the firlt Verdift and
the 2d, or if the fudge die, the Verdi£l ta.ken before is void ; and yet
neither the one nor the other, after Verdi£l given, Ihall hinder, but that
Judgment Aall be given ; Per Curiam. Mo. 33. pi. 108. Trin. 3 Eliz.
Anon.
4. And if the next Day the Jurors will fay nothing, the Acceptance of
private Verditl fliall be to no Purpofe -^ Per Curiam. Mo. 33. pi. 108.
Trin 3 Eliz. Anon.
5X (R g) Ver-
44-^
Trial.
(F. g) VerdlcSi:. For njchom it fhall be iald to be found.
s^ c<i g -I fFlxre the Ijhe is upon a Traverfe Mode ^ Forma,
pi. 55 to 60, JJ J-
& per tot.
*l'°i ^s^ C *• T'^ *^ tJ3fit Of Error to reverfe a Common Recovery as IfTue in
but S. P. ■ i Tail ot &. to lafjOm a Remainder tnaiS finilteH in Tail after
does not ap- Death of A. without iUue Male, tO luOiCi) a Fme is pleaded in Bar,
pear. which was levied in the Lite of A. and pleaded that aftCt A. died with-
2-''pafch ^"'^ ^^^"^^ ^^^^^^ ^^^ ^^^^l '^^ ^^^^^ ^* ^- fJ^ilifft* ^ 3wo;» 3 Cat* B.
15 Car. I. the Fathef of the Plaintiff was furviving, and in full Lile, and remained
S. C. fays the within this Kingdoin within the 4 Seas &c. at W. in the County of D.
Opinion of and no Entry or Claim within 5 Years after. CO lOtjiCf) Plaintiff re-
Ivas^dear P^'^^' ^^^^ t^i^M^ IlTUe that he was not [in full Lile] and remain'd
that the ' loitijm ti)i9 t^inrjtiom of enijSanri ^orio $ loruia $c» ^m tOe
Writ of Er- JjUrp Hnd that he was not, and remained within this Kingdom of £ng-
ror did not_ j^nd I Aug. 3 Car. but that he after the Death of A. was within this
the' Tuiv Kingdom ol England i May 4 Car. and there remain'd by the Space of
found that a Month, and i ekr tO tljC COlltt itlijEtfjCt \)Z Uia0, aWl remaUVri tD(tl>
he came \\\ tljlg 1^(111X50111 £^000 $ if OniU~U CfjIlS Mi\t \% fOUtlD fOt tfjg "DZ'-
over at (uci, ftntiaiit i foc tljc Mwt of ^oQo $ jfornia ooc^ not put tljc Dap noc
thl'sl^V 1^1'^cc III SlTuCj but onlptijc S)9attci- ano ©ubftauce oftlje pea, fci-
fiance of licet, usljetljEt \)t luag iDitljui ttje Ecalui after tljc Deatlj of ^» aim 5
the Matter )^tdx^ bctote Cuttj) ot daiui b}) Ijim ot l^lauitut; Cr* 15 Car^
IS, that he Qg^ jf^^ bCtUlCen ^/^^nf ^ i-'^^;'/ 0/ Ox/orrf', atidUaterhoafe, PCt CUttauU
?Ii!d'"foa's^he 2lno ^iclj* 15 Car* tlje faiiicCafc luo^cti attain, aim tljc Court of
mi^ht have x\}t fahic Cpitilon arjnin, bccaufc it appearis upon tlje ©croicr, tfjat
made his ije uiajj toitljin tije iRcalni 5 ^cars, aim more, tottljout Cntrp or
Claim ; and (£iaini h\) \)\\\\ Ot tljE ]5Iaint(ff Ijtjs llTuCj Uifjtcf) luas tije ^ubftance
'^rPZ of tije imic* mi 9 Car* Eot* 151.
ihould bar
him.
Nota, where 2. If a Man bring a W^rit of Efitry in Cafii Provifo of the Alieuati'oh
the IfTue made by the 'tenant in Doivtr to his Dijinbentance, and count eth of the
^^^^^ goes to j^ii(.f](iiiofj made in Fee, and the Tenant faith that he did not alien m Mail'-
the Writ or "^^ ^^ ^^^ Demandant hath declared-^ and upon this they are at Iffue, and
JHkn,r\\<txz it is found by Verdict that the tenant alien d in tail, or for term oj another
I\Iodo & Alan's Life, the Demandant lliall recover, yet the Alienation was noc in
Forma arc jy[^nner as the Demandant hath declared &c. Co. Lite. S. 483*
but Words ~ •'
of Form, as
iti the Cafe of the Writ of Entry in Cafu Provifo Co. Litt. 281. b.
But when a Ccll.ueral Point in Pleading is travers'd; As if a Fecfmevt be aUeg'i! by 2, and this is tra-
vers'd Modo 6c Forma, and it is found the Feoffment of one, there Modo & Forma is material. Co.
Litt. 2S1. b.
Br.Iflue-s 3. If a Man pleads Feoff'meHt by Deed, and the other fays that Ne in-
Joines, pi. f^Qff^ p^g Modo & Forma, he Ihall not give other Feoffment or Deed in
S c"^" Evidence, but this fame Deed which was pleaded ; becaufe here Modo &
S. P. Co, Forma is material, and not only formal i Per Littleton. Br. General
Litt. aSx. b. Iffue, pi. 71- cites 12 E. 4. 4.
4. If A. be appealed or indiRed of Murder, viz. that he oj Malice pre^
penfed killed J. A. pleads that he is Not guilty Modo & Forma i yet
the Jury may /W the Defendant guilty of yl/i//y/i7a^^/f)" without Malice
prepenfed, becaufe the Killing of J. is the Matter, and Malice prepenfed
is but a Ctrcumjlance. Co. Litt. 282. a.
5. In Affffe oi Darrein Prefentment, if the Plaintiff allege the Avoid'
ance of the Church by Privation^ and the Jury/>/^ the Voidance by Death,
the
Trial.
4^7
the PlaincifF fliall have Judgment ; for the Manner of the Voidance is
not the Title of the Plaintift, but the Voidance is the JVIatter. Co. Litt.
282. a.
6. If a Guardian of an Hojpital bring an jljjtfe againft the Ordinary,
and he pleads that in bis Vifttation he deprived him as Ordinary^ where-
upon Iflue is taken, and it is found that he deprived him as Patron, the
Ordinary Ihall have Judgment ^ for the Deprivation is the Subllance of
the Matter. Co. Litt. 282. a. (d)
7. In a Writ of Trefpafs of iJi7/fi?r)', or for Goods carried azvaj, if the
Defendant pleads Not Guilty, in manner as the Plaintiff fuppofes, and it is
found that the Defendant ts Guilty in another 'Town, or at another Day than
the Plaintiff fuppofes, yet he fliall recover. Co. Litt. S. 485.
8. Ind lament taken at the AJftfes for Barretry was removed into B. R.
Defendant appear'd, and pleaded Not Guilty, fc? de hoc fonit fe fuper Pa-
triam &c. Et Thomas Fanpaw mil' Coronator &c. ftmiliter. The Jury
found him Guilty de Pr^miffis in Indiifametito infra Specif cat' interius ei
impoftf Modo y Forma, prout prxd' Thomas Fanjhaia interius verfus eum
querttur ; and it was objefted in Arreft of Judgment, that this Verdi£t
was infufficient ; for that this was not an Information exhibited by Sir
Thomas Fanfhaw, but an Indiftment in the Country, and removed
hitheri and that Sir Thomas only join'd Iffue for the King, and that
therefore the Verdift ought to have found him Guilty generally. But
the Court over-ruled the Objection, and held the Verdict fufficient ; for
the Defendant is found Guilty de Prxmiffts, which is enough ; and the
fubfequent Words are Surplulage, and would not hurt at the Common
Law. 2 Saund. 308. Pafch. 23 Car. 2. The King v. Urlyn.
9. In Replevin the Defendant avoisj'd, tor that F. the Place where &:c. 2 Lev. rr.
was Time out of Mind Parcel of the Manor of F. and that before the Taking, S. C. iays,
the Mayor &c. of the City of Coventry, and one M. and others, were feifed^^'^ ^^^'^'^
in Fee of the faid Manor, and demifed the fame for 2 1 Tears to B. who af- \^f^ be"^"^
ftgn''d to H. the Avowant, who i Nov. Anno 18 Car. 2. demifed to the Plain- twice de-
tff apud F. for one Tear &c. at Will, rendering Rent ; and for fo much bated, the
Rent arrear, hs avow' d the Taking. The Plaintiff replied that H. on the^^^P-'^'^'^
I Novcmh. Anno 18 Car. 2. at F. Sec. did not demife to the Plaintiff Modo "Lc th|°"
iS Forma, prout &c. The Defendant rejoin' d that be, on the firfi of No- Cafe was not
vernier. Anno 18 Car. 2. at F. did demife to the Plaintiff Modo y remedied by
Forma. The Jury found that the Avowant did not demife to the ^'^^ ^'^^^^*-
Plaintiff on the ilt of Kovemb. Anno 18 Car. 2. at F. Modo 6c Forma,
&:c. The Plaintiff had Judgment. The Avowant brought a Writ of
Error in B. R. for that the Day and Place was made Parcel of the Iffue ^
and the Jury having found that he did not make the Leafe on that Day,
•and at that Place, this is a Negative pregnant \ for it implies that he did
make a Leafe to the Plaintiff, tho' not on the Day mention' d in the Avozvry^
fo that the Merits of the Caufe was not tried, which was the Fault of
the Plaintiff himfelf in his Bar. And after Conlideration Hale Ch. J.
thought the Iflue and Verdi£k were aided by the Statute of Jeofails j
but Twifden J. contra. 2 Saund. 317. Pafch. 23 Car. 2. Eennet v.
Holbech.
(G.g) Verdia
448 Trial.
(G. g) Verdia. /// Geftm-e of the Jury. What will
be good Qmjf to quajh a Jury. Eathjg and Di'iuk'rfi&
♦ Br.Jui-oi-s, I. rnriWO Triors remain'd all Night upon Trial Of a CljiJlfCIlgC tO
pi. z. cites J^ jjjj. Pq110^ jijin atteC gave their Verdia, and after by Allent of
the Parties eat auo Otanlt* * 20 ip. 6. 24. b, @icc 2 jj;, 2. cijaV
lengc 10 1.
D. ziS. a. 2. 3!f tIjC Jury, after they are gone from the Bar, flUtl before or after
fVc^Fif ■ ^^^y ^^^ i\gKQA Of tI)CtC3:)Cl'l!iCt, cat ailQ tirinH at their own Cofts, tW
t ? fl^all not llUaflj tIjC DCrtStCt, but tDcp Ihall be fined. * D» 29 Jp, S. 37.
^lo ;;. pi. 45. ao)utiijcri» * 14 ix 7- 30. 31- Co, lift, 227. c
loR. Trill.
5 Eliz. S. p. by Dyer ; for if the Eating and Drinking be at their own Cojls, it is not material, as he
laid was lately adjudged in the C.ife of Pawleskin of Cornwall. S P. Mo. jyp. pi. 825. Hill. 57
Eliz. Hall v^ Vaughan S. P. i 2 Mod. in. Hill. S W. ;. The King v. Burdett. 2 Salk. 645.
pi. 9. in S. C accordingly. S. P Barnes's Notes in C. B. 520. Mich. 9 Geo. 2. Lord St. John
V. Abbot. Anciently it was held, that fuch Eating and Drinking would avoid the Ver-
dift, but it is now fettled otherwifc, and tliat it is only fiueable in them. 2 H. Hift. PI. C 306.
cap. 42.
* jenk. iSy. pi. S4. citesS. C.
If the Jury 3. [But] 3if tIjC jUtJ) Cflt HUtl Bn'tllt at the Cofts of a Party, after tljCJ?
eatavddrh,k ^^^ ggj^j, f^.Q^| tOS 13ai* tO Utqittre of tlje 99atter, anH before they are
J^ '^e plnvf -'Agreed Of tijctt a:)crl!tct, tijcit aDctoict iljall itot tie reccnjen, 24 e, 3.
for lihom the 24. 13 i^)* 4. 13. 20 1), 7- 3- if Verdict be for the finie Party that gave
rerd,R is the Meat and Drink. ' ©♦ 35 V^ 8- 55- 8. iTOt tljtjS inUUCeSf ^ffeCtlOm
{-4'[, €0, litt, 227. C.
12 Mod. III. Hill. 8 Will. ;. King v. Burdett 2 Salk. 645. pi. 9 in S. C accordingly. But if it
be given agaiiift him, theVerditl is good. Jenk. 1S7. pi, 84. S. P. per Cutler, Br. Verdidt, pi. 102.
cites 29 H. 7. :;. — And in the firft Cafe it fliould affear that it ivas by Order cf fuch Party, or fome Agent
for him ; and tho' the Party's Sollicitor paid for it afterwards, as being charged in a Bill together with
other Things w hich were allowable, and fo might induce a Sufpicion, yet that is not fufficient to quafh
the VerdiiSt given for the fime Party, fuch Eating and Drinking being /r/ier <j Privy Verdilt. Vent. 124.
Pafch. 23 Car, 2. B. R. Duke of Richmond v. W ife.
4. But in t|)(lS Cafe, if tljep cat ailD tirin^ at their own Cofts by Af-
,fent of their Keepers, it being brought by the Keepers, It fljaU 110£
a\)Oitl tljC JDCrHtCt, but tljej? (Ijall be only fined for it* it), 12 * 1% 4.
15, Hv. EOt, 9- bCtUlCen tlje ^hbot of Bermondfey, l^Iatlttitf, and Robert
Osborne and John Prior, Dcfent>ant0, aDlUOgCO, 20 Ip, 7. 3- 35^
)utipi!, D, 35 ip. 8. 55. 8. Co, litt, 227. c. Contra 14 ^. 7- so-
fa, 31- €)ain to be fa anjungcD ciiicr^ -STtmcisi, 14^, 7- 1- &♦ ao^
jutigcti,
sc^ not ^/^.r 5. 3if tfjc 3!urp, after tljcp are gone from tlje 'Bar, anU * after they
aPrii;yVer- are agreed Of tijCIt JDCVQtCt, Cat aUtl Drmk at the Charge ot him lor
lvd%l\ whom they pals, ti)i3 fljaU ttot a^oiD tljc 3:)crmct, CO, Litt.
the ^(^iving it 22']. U.»
»?! Ccurt.
Vent. 125. Pafch. 25 Car. 2. B. R. Duke of Richmond v. Wife.- But If th: other Party had treated
them, and they had changed their VerdiB, as they might have done in Court, it fliould then have been
void. Vent. 125. cites Co. Litt. 22-. b.
* The Agreement muft be intended fuch as hath the Signature of the Court as a Privy Verdi&j
Per the Cb. J. Vent. 1 25. in S. C.
Sty- 383- 6. 3!f upon a Crial at "Bar tljcrc are given in Evidence fomeEvi-
Trm 1653. (fences under Seals, and fome CtHtlCnCCSS without Seals, tliOcIlCCt, a
Um It ^^^^ ^"^ Aufvver in Chancery, and fome Depofitions Of aiJitUeflClijI, but
Trial.
449
the Bill and Anfvver noc rcid til COUtt, bUt OiilD fijClUU nilH ptOlJCD "'s^ I'-'oWed
to be true Copies, to CltaUiC tljCm to rcaO tlje Depolkions, and a Book |.'"^''^^ ^'-
ot Tcilirnonies alfo proved in Courc, and lome of them read in Court, pIT-I",^. !f
lome not read ; attU when the Jury went trom the Bar tO COUflOCE thcai/e to
Of tijcrc ^isibCnCC, theClerk of the Court deliver'd to the Jury the the Jm-y
Evidences under Seal, aCCOrDiun; tO tIjC UfUai COUlfCi and another ^-^°''^,,''''«
Perion, tyijo proUco fonicCopicp Of ciJiDciicc^ for one of tfje parties S .ead
to tijC Action, deliver'd tO ti)C JlUCp, without Licence or Conulance of ing it, did
the Court, a Bundle of other Evidences, in which Q5UnUIC were the "i^'^e the
faid Bill and Anfvver UX (XfjaitCCrp, and Depolitions, fame Of lUljICl) ^""''^''^^
tDei'C not rcan in Court, anD tlje J ury carried them away mi) tt)Cm, fh'^m to L
and gave no Notice of it to the Court till the next Day, when they gave void ; for
their Verdicl in Court; and then it being inlorm'd to the Court, and they ought
tlje lUlV being queltion'd tOUCljiUg It, tljep faid that when they came "°' '° '^ '^=
to conlider of tlie Matter in the Houle, tljep perceiving that this Bun- w^i-it^n^s"^
die being without Seal, ought not to be deliver'd to them, they laid the givcn'them
faid Bundle afide, and did not perufe any of them ; pct tljC Verdift be- to perufe,
ing given for the Party who employ'd him who deliver'd the faid Bun- '•■^^" ^'"^^
die to the Jury, ajs bcfotc 10 fljctuu, to proije tIjc Copies, m^mt- TevIJu^
lliCt OUtjljt to be qUatlj'O i for Ije was not a Stranger tUljO CCUUer'n It, The '
but as a SoUicitor or Agent fOC tljiSi 13artl>, ijC bCilin; Cillpiop'D fOt J'^'T "n-
J)im ; anB tlje 3iurpmeit'S aenpinn; tlje KcaDiun; of tije ebiceuce is "°' %'"^
not to be rcgarocti, iuafmucb as it concerns tijeinferucs, mm a 99if dTicrn-om
Bcmcanor in tijcm to accept tljc a5unt!le, auo not to acquaint tljcth. B.r
Court UMtlj iti ann pcraniienture tijepiuoulD fap, taer£ufctDcni=^^'''io"t'
fclbes, tbat tljei) Bin not rcan tijcm ; luijcrcas in Crtitij, tijcp BIB reaB ^^fi"^"^
tijcm* aiiB If it fljall be peraiittcB to accept eutocnce not ixaB in e«4t vvii
Court, nor Bcliijer'B to tijem bptije Officer of tJje Court, aiiB tljcn tingVunder
to ecamine Uiljetljer tbep reaB tljem or not, luijicb cannot be Bifco^ '"^"'i ^^^^
Sjer'D but bp tljemfeJijes, it map be of Banprous Coiifeiiucnce, anB „"/ ' -u'
map introBucc great 3nconbenicnce» 'Wu 1653. bet'tuccn f^eii; ami Tl, ^{c,
layior, aBiuBgcB pct Curiaut, upon a -Crial at 'Bar, \Mi\), ncct "phus." 12
More, anB a Demic jfacias Be nobo grantcB accoi-QiniilP, anB the '^'°'^ 5^°-
li)crBict quaflj'B accorBinijlp, " w''"''' i''
Cafe of the Lord Petre v. Henea^e '*
& '
7. If tljC 3iUrp carry with them any Writing unfeal'd, loljiclj iuaS
given in Evidence in the Court, \t (Tjall UOt abOlB tijC J^erOiCt, ttlOUgh
tijep ougljt not to Ijabe carrieB it icitij tljein. Co* litt* 227. (g,
8. Jif tfje Plaintirt delivers a Scroll to a Juror to prove the lame Evi- Br. judg.
dence which he after gives to them, and alter the Juror is fwurn, and '"°"^' .P^-,
he ihews it in the Houle to his Companions, and thev hnd for the Plain- '"^-^ '^'tes
tiiF, tljis fljall quanj tije aDerBict, ttjo' Jje ixabe tljc fame (SbiBence to ~s ? b;
tbem at tbe IBar* 1 1 \). 4- ' «• ifor tije Jurp, after t\)t\> are fujorn, En^ueit, pi. '
cugljt not to tee nor carrp tuitlj tljem anp otljer eblBence, but loljat ;^ ='^«
loas Bcliuer'B to tljem bp tbe Court, anB bp tljc l!i»artp put into rnoTT"?'""
Court upon tlie CbiBence fljeuin* " i °^,[ ,7
S. C. and fays fo it was done M. 5 Mar. i. Inqueft niall not receive Evidence privately, bur only
that which is Aelilier'A to them iy the Court cpe>ily &c. Br. Enquell, pi 49. cites 11 H. 4. I7. I's - j/^
cites 5 4 H. 6. 2 5. where a F/«e was not given in Evidence, by which the Party would have hdelher'd to the
Imiuejl, and was not fufttr'd without the Affent oi the ether Party ; by which theQjeftion was demanded
of him, and he ajfented, by which it was deliver'd to the Inquilt. 'ibid.
9. If tlje Plaintiff, after CbiBcnce t(,Mxi^ anB t!je lurp BeparteB '?'^'^«??' ne
from tbe il3ar, or any for him, delivers any Letter from the Plaintiff J^'T/^^-f
to any of the Jury concerning the Matter in Ilfue, or any Evidence, or'^''""'^_
any Scroll touching * the Matter in Ililie, which was not given in Evi- *p„i ., .
dcnce, tljtS IljaU a^O(B tf)C DCtBtCt, If it be Ibund for the Plaintiff i 1
5 Y but
450
Trial.
kok'd on ijtit not if it tic founti foe tDc Defendant, atiD fa e coitiiecfa. €o.
125. inCale . , , ,^r.-
of the Duke of Richmond v. vVire.
S. P. Br. 10. 3111 attiOH Of Wade for divers Waftes, aftCt tI)C %\m CljargCH,
EnquelJ, pi oj^g Parcy cannot deliver a Copy to tlie Jury of the Record ot every
1. cites S.C. particular W'ulte, without the Aiient of the other Party i fOr tljC 011^
3avtP nou tlje otijcr Ijaiic noticing to 5a toitlj tlje 2uv}> aftci: tljep ace
"luoiiu 9 IX 6. 66. Curia*
Mo.45' pi 1 1. If aftcc e^itJcncc giueii to tlje 3Jnrp at tljc Odar, ant! tljep are
61 6. S.C. the j,jp3i;(cJ3 ^x:m\\ tljc 13ai; to taiU togetijec ot tljc fatter, the Soiiicitor
Sed'^'vi/.. ot the Plaintiif COUie^ tO tijC lUl'P ailO delivers to them a Church Book
Popham and for taking of an Age which was given to them in Evidence before at the
Gawdv.held Bar, and was there fliewn to them, nnti aft£l' tijCP fijltl fOr tijC PliliU--
that it mould jjj^. ^^.j. ^ijjg Qj^^ii „Qj. ji^Qjj, fjjj. ^trcAVi, became tljisasooh uia^ no
ve, d'rt but otijci; tijan tijat luljicij luas giucii ut Cijincnce before, i^. 3 7j 3 s €U
Fennel- and "B, K. bCtltlCen ^Z''^':)' ^"d Fcinhtng. ^^GjUOgeQ.
Clench held
thar it fliould. ■ Cro. E. 41 1 . pi. i. S. C the Court at the firft wa.s divided & adjornatur ; but
afterwards they f^ave Judgment for the PlaintiH • S. C. cited by Roll Ch.'J. Sty. 5S3. Pulch,
1655. in Cale of Taylor v. Webb.
12. So if the Book had been given in Evidence, and the Juftices had
faid that it made nothing to the Matter in Illbe, auU afterlDljeit tlje
jurp Uias ncpaitcn from tfje OSar, tlje^oUicitocofoncpartpijan
tcltiicr'D It to tlje Surp, uiijo after founti for Ijis partp, pet it fljall
not auoii! t!je 5i5crm(t. $^. 37- 38 ^l* 'B. E. Up i^opljam. (ODUt
£lii£erc tiji0O
♦ S. C. cited 13. ^if jj Witnefs fvvorn gives Evidence at the Bar, and after tlje
j;° .45^;^p'- lurp is iseparteo from tlje 'bar, he comes to the jury tuljerc tljep are
nfOlirar"'^ tOptljCt, and they require him to give this Evidence to them again,
lujfartijms aitD tO tepCat IjiSj tdrmcr l©OrB0 to tljem which he does accordingly,
fays the Jury and alter thev sive a Verditl accordingly. CljijS fijall abOlU tlje ©Ct--
feeing the j,j^^ ijccaufe if IS uot ccrtauiip knoiun to tljc Court, tuljetljer it inais
thevTaii'd tlje fame (gUioence iyljiclj u?a3 mm at tlje Odar. ^.37- 3 s (El. 05*
out of the E. tit V'cary and Fartbtng'tj Cafe. ]3vc Curiaui aijrecQ, ioljere it Uiass
Window to £it05 bp jpcle to be aUjuoaco. 3t uia^ bettueen * Metcaif and Dm,
^™ TTTanti otljcr^. ^iclj. 31- 32 CI. 03. Eot. 1837. 31 Ija^e fecit tljiss
pi'dtet Eccoro.
S. C. and
fays that the Verdift was fet afide, tho' the Witnefs being examined on his Oath, faid, that he did not
fay more or lefs than he had faid before at the Trial. Le. 505. pi. 425. Elmes v. Meldcalf S. C.
accordingly. _ _ _ .
* 2. H Hill. Pi C. ■;o7. cap. 42. cites S. C. and that this appearing by Examination in Court, and
endorfed upon the Record or Poltca, will avoid the Verdift —Cro. E. 1S9. pi. 17. Metcalf v. Dean ac-
cordingly.' And. 232. pi. 247. S. P. and fcems to be S.C.
Br. Jurors, 14. 3:f tljC jHllUCli after they are fworn and put into a Houfe tocon-
pl. 41. cites j-(jgj. uf jij^jj. ClllCenCe, they receive any Bill which caufes them to a-
^- ^- gree the more readily &c. lUlICf^ it bC bD tljC €mxU fUClj mt'QVt \^
uoin in lain. 35 i3. 6. lit?ljerbcrt Cjramutation 17- bp prifot.
a H. Hift.pi. 15. Alter Evidence iTilicn at tljc OBat, auH tljc 3'urp tiepartco from
c 5°<5. 5jy^ tlje Ooar to confult of tljc 99atter, 3f a Juror has an Efcrow in i3apec
S^ctiutftys which was not given in Evidence at the Trial, aUQ aftCt ihews it to all
Vidctamcn his Companions, upon which the Jury pafs accordingly i pCt tljI0 fljall
contra ii H. y^Q^ jijjott! tbc iDcrOict, bccaufc it map be tljat tlje 3iuror ijari it to iit-
f 'J'ur fonii lj(0 ouin Coiifctcnce, an5 it tuae not oeuucr'ti to Ijim bp anj? of
^; pfs — tlje parties, ano fo Ijc map ujcII fljeiu it to IJ10 Companions, tljo' it
Mo. 546. pi m^ not ei^en ut Ci3itience at tljc 05ar. $|3. 4°- 41 ^U Od. E* lJe»
■2S.i>.C.iic-l]}j^^l^Grova a/jd S/M'te. aOjlltlSeO. EOt. 847.
coi-dingly by
16. But
Trial.
451
16. But OtljCUUlifC it IjclU been if one ol'the Parties had given it to the the Name of
Juror U)fja njcujcn tt to tijc Conipnutoiis after Departure from tlje 5?'°''^ ""■
OBar, aiiD tijcp IjatJ founO accormnfjl}?* ^* 4°- 41 ^U 'B* E»cm E~7iff
SiiJl'CCtl* pi. I (BVA\}(8
D. S>ijort
S. C. and S. P held accordinp;ly, yet in Rcf^ai-d it was nbt examined, nor made Parcel of the Record, •
it cannot be aflign'd tor Error ; for Pophaiii Uid, the Trial hereof relfs only in the Examination, and
it lliall not be per Pais, as Non-Age iliall be by Infpcctbn to avoid a Fine, fo this Matter fnould to
avoid the Verdict ; for it lb, then every Verdidt upon fuch a Surmife might be drawn in Queftion ;
And peradventurc, after the Parties be dead, and all the Jurors dead, fo as they cannot be examined,
which would be a great Inconvenience. And therefore they held that fmb n Caufe of flaying the
Judgnierit ought to he always, //' it be upon Vcrdift at the Kiji Prius, upon the Pofiea return 'd ; and if it
Be upon Verdi(ft in Banco, it ought to be made Parcel of the Record, otherwife the Party fliall not take
Advantage of flaying the Judgment, or of alfigning it for Error. i H. Hilf. Pi C. 50;. cites S. C,
and fays it mull not be barely by Affidavit made after,
17- at Bifi Wviii0, if after tIjc Jurp 10 tcparteti from tlic T5ar,
the Plaincitf ipeaks wiih one ot the Jury, tljI0 ^OC^ UOt WliiU ti)t mX-
tlft ilOJD, UnlefSj tt map be prOiien tljat Ije gave any Evidence concerning
this Matter. $0, 7 Ja. 15. p£r CUliam,
18. 3!f tfje 3iUrp find their Verdift by Reafon of any Writing deli-
ver'd to them after their Departure from tfjC loat without Licenfe of the
Court, as if tlje 3m*or0 iciiu for a oaooU in tOe i)mm after
tijetr Departure from tIjc 3ar, aiit> reaD it for tijc otljers Jnforma=
tion. It 10 a ijoin a^Ernict ?c* ]A 3 5a» 06. sir ibomas Gorged Cafe,
ati)UOgeti. ^ntratur Cr. 2 j;a» 05. Kot* 15^5. bctuieeu ^n Thomas
Gorges and Richards. OBrOlUnlOUJ*
19 3:f tljCrebe brOUgljt UltO Court a great Book of Depofitions, ta-
ken in Chancery, but only foiiie of them are read to the Jury in Evi-
dence, and after the Jury departed frOUl tljC 05ar, a Solicitor of one
Party delivers this Book Of S^CpOfittOtlSi to the Jury, who carry ic with
them, and there read only thole which were read in Court, J)Ct tIji.SS
fljall quaflj tlje oertsirt, becaufc tijcp ougljt not to be put in Ecmcm=
brance after tijej) are gone from tfje 05ar of anp (Stirocnce giuen bc^
fore ill Court. 03. i^. Pratf^ cafe, idIjicD ica.s about
21 Jia.
20. Jf tljC one Party fays to a Jury, after they are gone froin the ^.C. cited
Bar, you are weak Men, it is as clear of my Side as the Nofe in a Man's ^ ^j''^' ^'■
Face. '2CI)i£3i i0 uelu CbiDence ; for !)i0"affirmationmapmui1jper=42'^'^'
fuatie tlje 3iurp. Ipill. 22 :ja. 05. jR. betiueen ^^thiu and 'Bukvcr, an= if before a-
}u]3o;eti tljat tt fljail ijuanj tljc 0crtiift, anD a Dmixz factagi u Bmo g'-=<="i=nt,
grauten. pjf ]'■
" _ . . . iarties, their
Attornies or Sollicitors, fay it is a clear C.^ufe, or Ihopi you •xill find for fuch a one or the lilce, and they
ft:d accoydin^ly, it fhall avoid the Verdict. But \f U'ords of Salutatiui pjfs bet-j^-cen thew it fliall not
Vent. I 25. Pafch. 25 Car. 2. B. R. Duke of Richmond v. Wife.
If the Party after the Jury fv\orn fpcak with a Juryman, but nothing truching the Bufinefs in IfTuc
this does not avoid the ^Verdidl given after for hini. 2 H. Hift. PJ. C. 50b'. cites M. 7. B. R. per
Curiam.
21. Nili Prius in Repkvui in ElTex, the Jary was fwom and committed Br. E.^igent.
to the Ward of the Shenfij and when the Juftices would have taken the P'-^^- cites
Verditt it was depofed to them by People, that Meat and Drink was f^^'^ ?''•
hroiight to them after their Charge.^ and they were fufier'd to go at large, n. cites
by which the Juftices refufed to take their Verdifct, becaufe it is fujpi- s. c. .Br.
cious ; and of this Matter Plaint was made to the King ly Bili, who m- Ven-/ac- ph
dorfed tt to the Jtijiices of B. R. to do Right and Reafon., a'nd the Under- il_^g"|:*~'"
Sheriff by his Servant, confelied that he permitted them to go at large, ce's, pi. -2. '
And becaufe it appear'd of Record, viz. his Mifdemeanour, and he iscite^S C —
•an Officer, a Capias was awarded againji hivi ■■, and becaule the going at ^'■- ^'c'dict,
large, and taking of Meat and Drink is only furmiied, therefore a Vc- \ 'J'' "'^^
nire facias was awarded aganff the fury and the Tranfgrefjcrs^ and tctween
the
45'
Trial.
the Parties New Venire facias was awarded to return 12, returnable 1$
Pafchce. Br. Verdia, pi. 17. cites 24 E. 3. 24.
ICtVie Jury 22. If Jurors, upon Iliue join'd, drink, or cat and drink after that they
take Meat ^^^ to^ether^ by which they agree to their Verdid the fooner^ and this is al-
and I^""'^ leged in Arrell of the taking of the Verdict, the Jurors pall be examined^
tidelce^nnd and if it be found, they fhail make Fine, and the Verdift is void ; and
before they are if one ofthem does fticb an A^, all pall make Fine. Per Prifot, if it be be-
a^reed of f^j-c they havc agreed or not. Br, Jurors, pi. 41. cites 35 H. 6. and
tt';ftr'Fiuh.Examinationi7.
make Fine
and the Verdid is void. Br. Jurors, pi. i;. cites 14. H. 7. 29. per Rede. Such Matter was alleg'd
in Arrell: of judgment, but it was not adjudged. Br. Repleader, pi, 47. cites 14 H. 7. i.
But if it be ajter Jgreemevt of the f'ertiief, it feems that the Verdidt is not void there. Br. Jurors, pi.
41. cites 35 H. 6. and Fit7.h. Examination 17. . S. P. Jurors, pi. 15. cites 14 H. 7. 29. -Br.
Vcrdidt. pi. 19 cites S. C. per Rede.
23. In Affife, it was agreed that where the Jury give Special Verdi£i
then th^y may eat and drink with Licence of the Jiijiices, r^nd fo they did i
and then they Ihall be kept till they give their YerdiO; openly. Br. Ver-
dift, pi. 57. cites 5 E. 4. 61.
24. In C. B. the jury was charged and found for the Plaintiff, and
the Defendant prayd a New Venire facias becaufe the Jury had taken
Meat and Drink mefne between their Charge and the Verdict given, and
therefore by Award the Verdi£l is void ; and a New Venire lacias was
awarded ; quod nota. Br. Verdict, pi. 18. cites 14 H. 7. i.
Br. Jurors, 25. In the Exchequer Chamber, the Cafe was, that at the Nifi Prius
pi. 1;. cites in the County of Pedtord, upon Iliue between the Billiop of L. and the
14 H. 7.30. £jjj.| QjT j^ej^t:^ the Jury was fworn at the Bar, and when the Evi-
^' ^' dence was giving to them, there came fuch a J'emftji of Thunder and Light-
ning that fame of the Jury departed without Leave of the Juftices (it feems
that they flood open in the Street) and a Juror came into a Hoiife where di-
'vcrfefaidto him that he take Care what he did, for the Matter was better
for the Earl of Kent than for the Bijbcp ; and pray' d him to drink with them,
and fo he did ; and after the Tempcft ceafed the Jury came hack, and no
Challenge taken to them, and they were fent into an Inn, and when they
were agreed to give their Verdid the Earl of Kent fhcw'd this Matter to the
Juflices, who demanded it of the Jury, who confeffed it ; and it was de-
manded if they were agreed in their Verdid, Avho laid, Yes^ and found
for the Bi/hop. And the Juftices were in Doubt if the Verdict was good,
by which they were adjorn'd. And per W'oode J. the Juror Ihall make
Fine i but the Verdict is good and not void. But Banifter J. contra, and
and that furors arc Prifontrs till they have given their Verdiii ; tor the not
giving ot the Evidence is notmatenal, for if no Evidence was given, yet they
fijall give their Verdiii for the one Party or the other, and the Earl has not
furceafed his Time to fliew this Matter, and at leaft he may floew it as A-
micus Curiae j but Rede contra , for the Caufe of Departure was lawful.
But they ihall make Fine tor the eating and drinking, for this is a Con-
tempt, but the Verdift is good and not void ; tor he who gave him Drink
did not intreat him tor the Earl of Kent, and alfo the Verdift is given
Bgainft the Earl, but contra if it had been given tor the Earl. Note the
Diverfity ; and Davers accordingly, and agreed with Vavilbr, that the
Party had not furceafed his Time, and alfo that he might fliew it as A-
micus Curiae ; and Tremaile agreed with Rede in omnibus. And at
this Time Prifot, Hody Ch. Baron, and Brian contra, who held the
taking of the Meat and Drink betbre that they were agreed Ihall make
the Verdi6l void, notwithftanding that it was not at the Colts oi any
Party ; but Fineux contra, and that the Verdift is good, and that the
Juror Ihall make fine, and agreed with Rede in omnibus ; and as to the
lurceafing of the Time & Amicus Curise, agreed with Vavifor & adjor-
natur.
Trial. 453
I
natur. And fo the heji Opinion was that Fine /hall be made^ and the Verdiif
gocd^ and not void. Br. Verdict, pi. 19. cites 14 H. 7. 29.
26. Where two Triors are /;/ a Hotife, and one of them drinks^ which
is fliewn to the Juftices, and is confefs'd, but not at the Cofis of any Par-
ty, their A"erdi6l is good ; but th.ty pall make Fine ; per Tremaile. Br.
Yerdift. pi. 19. cites 14 H. 7. 29.
27. In Alfiie the Inqtiejl was fwoni upon Evidence, and departed from
the Bar, and all eat and drank together before that they communed of their
Vcrdiff, and after they communed of their Verditt, and found for the
Plaintiff i and this Matter vi'as alleged in Arreft of Judgment j but
Judgment was afterwards given for the Plaintiff. Br. Verdift, pi. 102.
cites 29 H. 7. 3.
28. It was faid that for Necefjity of Sickncfs the Jury might take Meat ^^ " J»^ot
and Drink. Br. Verdift, pi. 102. cites 29 H. 7. 3. ur't^f'
fivor?!, the Juftices may fufFer him to eat and drink, and this at his own Cofts, or at the Cofts of the
Parties indifferent; hut not at the Cofis of the or.e Party only. Br. Jurors, pi. 51. cites Dodl. 6c Stud. lib.
2. fol. 126.
29. A Jury, fworn between Party and Party, may take Meat and Drink
by Afjent of the Jujlices ; and otherwife not. Br. Jurors, pi. 51. cites Do£l.
&; Stud. lib. 2. lol. 126.
30. The Jury being withdrawn after Evidence, and remaining a long And. 18;.
Time without concluding on their Verdict, the Officers who attended §iij.!,fQ„.g
them, feeing their Delay, fearch'd them, and found that /owe had Figgs, ^\^^^ ^^_
and others had Pippins ; which being moved to the Court, they were judg'd ac-
examined on Oath, and 2 of them confefs'd that they had eaten Figgs be- cordingly ;
lore they were agreed on their Verdict, and 3 contefs'd that they had j^^^*^'^ '^^^
Pippins, but did not eat any of them, and that this was unknown to ^ ^^'^ j^j
the Parties. Thofe who had eaten were each of them fined 5 1. and or Procure-
thofe who had not eaten the Pippins were each of them fined 40 s. But went of either
theVerdift was, upon great Conlideration, and upon Conference with the''-( "^' "'"'~
other Judges, held good. Le. 132. pi. 181. C. B. Hill. 3oEliz, Moun- jd^ ^,1
Ion V. VVelt. pl. 604.
S. C. but
S. P. does not appear. Cro. E. 4S0. pl. 14. S. C. but S. P. does not appear. — Poph. no. pl. 7. S. C.
but S. P. does not appear. Goldsb. 92. pl. 5. S. C. fays that another had an Orange, hut he that had the
Orange /^ot-e that he hroue.ht it only for the Smell, and therefore he was excufed ; and that after thefe
Matters had been moved ieveral Terms, it was at laft adjudg'd a good Verdidt. So where three of
the Jury were found with Sweetmeats in their Pockets, the Court held that whether they had eaten or
not, they were finable, it being a very great I>Iifdemeanor. Godb. 353. Trin. 21 Jac. Sely v.
Flayle.
31. The Plaintiff" died after Verdiif for him, and upon Affidavit that
the Jurors eat at the Plaintiff's Charge, the Court, upon proving the Al-
legations, fet afide the Verdi6ti Nifi Caufa, Freem. Rep. 79. pl. 97.
Pafch. 1673. in C. B. Bellamy v. Playor.
(G. g. 2) Verdia quafli'd for ill Gefture of the Jury. ^[I.'^o?).
Carrying nziith thewy or Feceiving Papers ^c. not ghen^''^^'^ »s,
in Evidence.
I. 'XF aScrowl which concerns the Iff tie, and does not induce any Partiality,
JL be caji among Jurors in a Houfe, this ihall not make the Verdict
void. Br. Verdi6l, pl. 19. cites 14 H. 7. 29. Per Davers.
5 Z 2. Ia
t:
Trial.
4
a Roll Rep. 2. InEjeftment, after the Evidence was given, and juft as the Jury
261. igil* ■yyere o-oing from the Bar, the SoUicitor for the Pkintilf privately gave
'f''^ H:* r one ot the Jury fome Dcpoftttons taken in Chancery^ which had been read
if^s'^'the in Court a little before; upon this, when the Jury return'd, and had
Court would agreed to find for the Plaintiff", this Matter was moved, and the Jury
not order a ^,^j.^, cxamt?t'd, whethvr more was read to them after they went from the Bar
"•'ir r'^Mat- ^'^^'^ M°^^ '" °P"^ ^""'''^ ' ^"*^ ""^^^ anfwer'd that there was not. Another
tcr was made Queition was, How they were inclined to find before the Depo/itions were read
a Record of. to them ; they anfwer'd, ibme were for the Plaintiff, and others for the
_2. H. Hift. _pefendant. Whereupon the SoUicitor was committed, and the Verditt
^.'- '■-■^'p • order'd to be taken De bene Elle, and the whole Matter to be recorded
an" fays, after the Verdia. Palm. 325. Mich. 20 Jac. B. R. Heylor v. Hall.
find aeainll him on whofe Part the Copies were deliver'd, the Verdift is good ; otherwife not ; and that
in fuchCafe the Verdict fhall be quafh'd, and a new Venire Facias return'd.
Kcb. 824. 3. The Jury being charged with an IlTue concerning a Copyhold,
pl 1 1 5. S. C. jjf^ej. jhey vvere gone from tne Bar one of them went from the refi^ and
accordmfijly, ^.^^^^^.^'^ ^y^^ ^ Conrt-Roll, and told them he kneiv how the Matter was, and
TrLrwa.r that tt was for the Plaintiff'; upon which the others, who before were of
granted; another Opinion, left the Matter to him; and accordingly there was a Ver-
bal what ^;Y/ for the Plaintiff. And for this Misbehaviour a new Trial was
tions'^fe^"" granted. Sid. 235.' Mich. 16 Car. 2. Goodman v. Codrington.
iuconfifteiit. 4- The Jury took with them a Map of the Premifes out of Court, and
for that Reafon the Verdift was ict afide. Cited Arg, Ld. Raym. Rep.
148. in Cafe of tljC l^tttQ; H* OdUr^Ctt, as the laDp SlOp'Si Cafe. But
Holt Ch. J. faid, That in that Cafe the Map which the Jury took with
them was Evidence only on one Side, and therefore, finding a Verdi6l
accordingly, it was fet afide.
12 Mod. 1 1 1. 5. In an Information for Extortion, the Jury took with them out of
S. C. but Court an Order of the Common-Council, relating to Stalls in Newgate-
S. P. does ™aj.]^g.t; without Leave of the Court, or Confent of the Parties, Holt
2Salk.' Ch. J. laid this was irregulars but the Matter ot the Order being Evi-
6^$. pl. 9.' dence of both Sides ^ it would not fet afide the Verdi6i;. Ld, Raym.
S.C. accord- Rep_ 148. Hill. 8 & 0 W. 3. The King v. Burdett.
ingly. '^
(G. g. 3) VerdI6t quafh'd for ill Gefture of the Jury.
Cajlhig Lots ^c. to dcUrm'ine how they Ihould give
thc'tr Verdt^.
2 Lev. 159, I. A Jury, being divided in Opinion, ;/^rfa;D/'« for aPrivy Verdifl,
140. The X\. which they ftand to afterwards, without having any Conference
Ld"^Fira together afterwards. The Court feriatim deliver'd their Opinion for a
water, s.C. new Trial. Freem. Rep. 414. pl. 549. Mich. 1675. Lord Fitzwater's
andS.'p'. Cafe.
S. C. cited
Comyns's Rep. 525 pi. 216 Pafch. 9 Geo. 2. C. B. in Cafe of 4^l)ilip0 1). fiioAiX, where the Jury
cafts Lots, which falling in Favour of the Plaintiff, Verdict was given for him. fBut it feems not clear-
ly reported.] Barnes's Notes in C.B 321. Pafch, S Geo. 2. fays the Verdift was let afide by the Opi-
nion of 3 Jufticesi but FortefcueJ. contra.
2. After a Verdift for the Plaintiff, it was moved to fet it afide, upon
Affidavit that the J ury gave their VcrdiCf by the 7'oJ/ing up of a Sis-pnce,
tf
Trial. 455
if Pile, for the Plaintiff i if Crofs, for the Defendant ; and the Chance be-
ing for the PlaintiiF, they all agreed to find for him. Accordingly the
Verdift was fee afide ; and the Jury being of Northumberland, were
order'd to attend the next Term, unlefs Caufe. 2 Jones 83. Mich. 29
Car. 2. Fry v. Hordy.
3. The Jurors, upon differing in Opinion, agreed to be determin'd by
hnjUirig Haf-pence in a Hat ; if the major Part came up Heads, the Ver-
dict was to be for the Defendant. But this Matter not appearing upon
the Oath of any of the Jurors, but by Affidavit that tzvo of them had con-
fefsd the fame, the Court, upon the firft Motion, order'd the Entry of
final Judgment to be Itaid for a few Days only, to give the Plaintiff an
Opportunity to procure Affidavits from fome of the Jurors ; but it after-
wards appearing that the Jurors were fearful to make Affidavits where-
by to accufe themfelves, the Court enlarged the Rule till next Term.
Barnes's Notes in C. B. 315, 316. Mich. 8 Geo. 2. Parr v. Seames and
others.
(G. g. 4) Verdi6i: fet afide. For what, and in what
Cafes.
I. T F ^ Party gives Money to a Jury who pafs againji him, yet the Ver- Jt was mov'd
J[ di£t is good ; cmtra if it had fafs'd for him ; Per Davers. Br. '1"^^"'^^'^ °^
Verdia, pi. 19. cites 14 H. 7. 29. thlc^d.e"'^
Plaintiff's
SoUicitor, after the Charge given, and before the VerdiA, e;ave fome of the Jurors Money ; and this
being proved by the Oith ot 2 Witnefles, the Verditt was fet afide by 2 Judges ; Wray coatra. Lc.
iS. pi. 21. Pafch. 26 Eliz. B. R. Smith v. Peaze.
But the Plaintiff and Defendant may {by Agreement between them) give Money equally to the Jury to
defray theirCharges, '■johere the Trial is put off, they by that means being forced to ftay longer in Towa
than they expefted, (Mich. 1649. B. S.) For by doing this thejury cannot be intended to be made more
favourable to one Party than the other. So likewife they do where there is a Fiew, and alfo give them
a Treat at equal Charges. L. P. R. 49. Tit. Agreement.
2. If a great 7'empefl happens, the Jury may depart from the Place Br. Jurors,
where they are to confider of their Verdift ; Per Rede, Davers, and p'- 19 cites
Tremaile. Br. Verdift, pi. 19. cites 14 H. 7. 29. ^■^•
3. So \i a ftidden Affray hz'^^tns. Br. Verdift, pi. 19. cites 14 H. 7. Br. Jurors,
29. Per Rede, Davers, and Tremaile. pi- 15- cites
4. So if the Hotife be upon the Point of falling. Br. Verdia, pi. 19. B". Jurors,
cites 14 H. 7. 29. Per Rede, Davers, and Tremaile. S.C."' Brook
fays the fame Law feems to be of Fire upon the Houfe.
5. At Nifi Prius a Juror was challenged and withdrawn, and after- 2 H;Hift.
■wards went out with the Jury, and Ji ay d with them abo-ve haf an Hour.^f^J^^^^
And by Croke and Doderidge, this Aft lliall not fet afide the Verdift, ^ q -phac
unlefs it can be proved that they had new Evidence given after they if the Juror
went out of Court ; but it is a Mifdemeanour in him who was chixU g'-jes none-M
lenged and puniiliable. 2 Roll. Rep. 85. Pafch. 17 Jac. B. R. Parke's f^^J^^J''
Cale. directs them
to find for
that Party for whom the VerdiB is given, the Verdift is good, but he fhall be fin'd for his Mifde-
meanor.
6. Gould.
45^
Trial.
6. Gould. J. laid no Cafe could be inftanc'd where a Verdift was fee
aiide, where there had been a Defence and full Evidence, except it were
for Matter difcovercd njter the Trial. 12 Mod. 584. Mich. 13 W. 3. in
Cafe ofWatfon v. Sutton.
7. A Verdift by which the Detcndant was acquitted in a Crminal
Cntife, C's.nnothc Jet a/idei Per Cur. 8 Mod. 202. Mich. 10 Geo. The
King V. Brecknoclc Corporation.
8. In Cafe upon feveral Promifes, the ftrjl Count in the J£iie Book al-
leged that Plaintiff' ivas indebted to Plaint iff, and in the Record of Niji
Prius the Miltake was rectified without proper Leave ; and it was alleg'd
that Detendant was indebted to PlaintilF. The Parties Names were
rightly plac'd in the Remainder of the firjt Count, and in all the other Counts.
The Court held the Variance not material to the Point in Iffue, and
therefore refafed to fet alide the Verdift. Barnes's Notes in C. B. 331.
Mich. 10 Geo. 2. Johns v. Smith, cites Daniel v. Mears in this Court,
Mich 5 Geo. 2.
^ep. of 9. Rule was made to fliew Caufe why the Verdift fhould not be fet
Praa. in afide, the {Et fimiliter') baing left out in the IJpie delivered, but inferted in
S C accord ^^^ Record of Nifi Prius. It was inlided for the Plaintiff that it was
ingiy. amendable ; but the Court were of Opinion that no Statute of Jeofails
S. P. But extends to itj that it is a material V^ariance, and therefore the Rule
it appearing yj,|jg n^a^e abfolute. Defendant having relied upon the Variance, and
fendam\^^"™^^^ no Defence upon the Trial ; but by Confint the Caufe to be tried
CounfeUt the Sitting after Term. Barnes's Notes in C. B. 329. Trin. 7 & 8 Geo.
the Trial, 2. Rye V. Crofsman.
had objefted
to the Evidence given by Plaintiff in Point of Law (which is making Defence) tho' he did not crors-
cxamine, the Rule was difcharg'd. Barnes's Notes in C. B. 326,327. Eaft. 12 Geo. 2. Grave v. Clifte.
10. An Aftion was brought by the Indorlee upon a Promiffory Note,
and in the lifue deliver'd the Name 0/ the Indorfor was omitted thus, (^He
the faid indors'd^ and not (He the faid A. indors'd.) In the Record of
Niii Prius the Indorfor's Name was inferred. Defendant made no De-
fence upon the Trial, but inlilled that this was a material Variance ; and
the Verdift, on hearing Counfel on both Sides, was fet alide. Barnes's
Notes in C. B. 330. Eafl. 8 Geo. 2. Wreathock v. Bingham.
1 1. After the Verdift fumm'd up in the Forenoon, the Jury retir'd to
conlider of their Verdift Before the Riling of the Court, they came into
Court, attended by the Bailiff, to ask a Queftioni which was anfwered,
and they were lent back. At the Sitting of the Court in the Afternoon,
the Judge was infbrm'd fome oj the Jurymen (2 or 3) were in Court ;
whereupon being ask'd by him what they did there, anfwered they could not
agree, and were thereupon fent hack to their Fellows ; and afterwards a
Verdi6l was brought in for the Plaintiff. The Judge did not certify
the VerdiSl to be contrary to Evidence j and the Court was of Opinion
that this was a Misbehaviour in the Jury, for which they arefineahle, hut
not a fufHcient Caife to fet afide the Verdiii ^ for the Plaintiff was not in
Fault. Barnes's Notes in C. B. 320. Mich. 9 Geo. 2. Lord St. John v.
Abbot.
12. In the Declaration the Plaintiff was call'd John John Shorter, and
in the Iffue delivered to the Defendant, Plaintiff was call'd John
Shorter, But the Court refufed to let alide the Verdift, tho' it was in-
filled that the Variance was material, and that no Defence was made on
the Trial. Barnes's Notes in C. B. 330. Hill. 9 Geo. 2. Shorter v.
Helbutt.
(H.S) Judg-
Trial.
(H. g) Judgment arrefted. At njohat Time It pall ^^f^ ^^'7''
pleaded in Arrefl of^udamcit. — seeTk.
/ -/ J J Ct Judgment
(C. a)
I. T JO an !SCt(ait upon tlje Cafe upon an Affumpfic, if tIjC Pattfe^ de- cro. E. 1-9.
\ mur, ant) it iSS adjudged for the PJaintiiF, UpOn tUfjICtJ il Writ is pi. 12. S.'C.
awarded to inquire of Damages; at the Day of the Return Of it, tl)2
♦Dcfcnunnt map fljciu anp ^attct in ^tceft of 3!Utin;nicnt -, for tlje
JuQsment is not complcat till tlje laft jm gmcnt -, for tljc fitft 10
but an laiuarD* p. 32 €U 15» K» tietuiccn wo//«.?/; ^^^ t;'^ aD=
2. In Eje£lment, after Verdift for the Defendant it appeared that 3 of
the Jurors bad Szvectvicats in their Pockets, a}td thofe 3 were for thePljui-
t iff till they w&it fearch'd, and the Sweetmeats found upon them, and
then agreed with the other 9, and found for the Defndant. But this being
mov'd after the Jury were difcharg'd, and the Court not knowing which
3 to fend for, and becaufe the 9 brought over the 3 to their Opinion,
they would not llay the Judgment ; but if the 3 had brought over the 9,
it would have been Caule to flay the Judgment. Godb. 353. pi. 448.
Trin. 21 Jac. B. R. Sely v. Flayle.
3. The Court will not allow a Motion in Arrefi: of judgment, till the
Plea-roll IS made tip, and the Verdi ff there entred of Record. Gilb, Hill, of
C.B. 38.
4. If the Count be in Sahjlance variant from the Writ, the Dfendant
may ptw it any T'ime in Arrejt of Judgment, becaufe the Court has no Au-
thority to proceed in a Matter of Subftance different from the Original.
Gilb. Hill, of C. B. 41.
5. The Court declared that for the future they would never make a
Rule to flay Judgment upon a Motion in Arreil the lajl Day of a lerm,
without Notice. Barnes's Notes in C. B. 170. Trin. 7 & 8 Geo. 2. Camp
Qui tarn &c. v. Gale.
6. After a Motion in Arrefi of Judgment, and pending the Conlidera- Kcp- of
tion of the Court, it being difclofed to the Defendant by 2 of the Ju- p'?,^",*"
rors,. that they and their Fellows being divided in Opinion, had deter- j^jich^o'*'
mined tlieir Verditl by cafting Lots. The Defendant mov'd to let alide Geo. 2 .
the Verdict, upon an Affidavit of the F'a£l made by the 2 Jurors j and Comyns's
upon hearing Counfel on both Sides, the Quellion was, W'hether after a ^^P- ^-5, P'-
Motion in Arreji of Judgment, Defendant in this Cafe could move to fet^^ '
afide the Verdicf. And the Ld. Ch. J. Denton J. and Comyns J. were
of Opinion, that tho' this Motion leems out of Time by the general
Rule of Pra6lice, yet as it is founded upon a Matter difclofed to the
J3elendant after the Motion in Arreft of Judgment, and is made before
Judgment pronounced, the Court mull receive it ; and the Fact, as to
the Jurors determining by Chance, being undifputed, z\i& Verdi tf was
fet ajide. (Fortefcue J. contra) Barnes's Notes in (>. B. 321 Eaft. 8
Geo. 2. Philips v. Fowler.
6 A (I. g) Judg.
45«
Trial.
See Tir: (I. g) Judgment arrefted. U%U [Joall he good Plea in
•g;^^^"' Arreft of Judgment.
C?5an map plr an f jcH thing in ^rrcl! of Jutigmcnt after a ^vc-
DlCt, as will make Error it Judgment be given.
A'tid Ibid. pag. 55. ^ivs. If the Declaration be not a fufficient Foundation to give Judgment, this may
be moved in Arreft after Verdict, becaule Judgment cannot be given, when it appears that tho' the
Fa6t be found for the Plaintiff, yet he has not fulHcient Caure of Aftion.
z. 3!f Debt tc I)rOU0;Ijt againft an Executor tlpon a limple Contraft
made by Teftator,if DcfcnQant luiU uot tatic ^liXsautaffc Of It to abate
tf)c Wxiu became fje is net cijanjeable upon fniiplc Contract, but
pleads other Matter, which is tound againlt him ; ttjIS fljall itOt be ffOOU
il9attcr in Arreft of 3*uoainent* lo i). 6. 25. laiD to be aDjuOffCD*
3. So It 10 in Debt asamft tlje €,tCfUt0r upon Arrearages ot Ac-
count, where he is not chargeable. lo i^. 6. 25.
bilb.Hift. 4. in ^"Itiion by the A-Icijier for Bf.ttcry oj bis 'Sirvatit jld (iaviiintn, Ver-
ot C.B. lij. (.//// vvas given/or the Plaiutijf. Bat becaufe the Declaration did not fay
fjys, th:it it p ^ Servitmm ami/it^ for that Realbn the Rule of Court was. Quod
any thing 2 -o-^oll t-- t \ ^-
ciVentiai to querens ml Capiat &c. Built. 173. Inn. 9 J ac. Anon.
the I'lain-
tiff'.s Aftion be not fct forth, there, tho' the Verdift be found for him, he cannot have Judgment, be-
caufe //' the ej[ential Pixrt of the Declnraticn is not pit in Ijjue, the J'ercl.iB can haie no Rclaticn to it ; and if
it had been put in IlTue, it might have been found falfe. And fiich Matter, as the Foundathn of the Ac-
tion nut hehigalkgd-, there ii m^ Ground (or tVe Judgment ; As if an Aftion of Trefpafs be brought by a
Mafter, for tlie AiTiulting and fieating of his Servant, and does not lay Per quod Scrvitiura amifitj
this is ill after Verdict.
5. In Ej effluent d<ic. the Defendant pleaded that W. was feifed i/i Fee^
and leafed to the Defendant i and that he entred and was pojfefs^d till the
Lejforofthe Plaintiff' dtjfei fed him ; and being fo feifed by Dilleilin, r/iade
the Leafe to the Plaintiffs and that the Defendant re-enter d, and ejeffed hint.
The Plaintilf replied that his Lefjor was feifed in Fee, and leased to him,
ahfqtie hoc that he dijfeijcd the Delendant. The Plaintiff had a Verdi£t.
It was objefted that tiiis was a vain llfue, and a Millrial, becaufe it ap-
pears by the Defendant's Plea^ that he was only paJJefYd as a Leffee for
lears, and fo could not be dijfeifed. But adjudg'd, that tho' the Defen-
dant's Plea is bad, and the Plaintiff might have demurr'd, yet he him-
felf Ihall take no Advantage ot his own ill Plea j and therefore, tho' the
Iffue is join'd upon this falfe and vain Allegation, it being lound by the
Jury that theLeilbr of the Plaintiff' did not diffeile the Detendant, Judg-
ment fliall be for the Plaintiff' upon this Verdict, becaufe it well Itands
with the Law ; but // it had been joiind for the Defendant that he was dtf-
feifedy he /hoitld never have Judgment. Cro. J. 678. pi. 15. Mich. 2 Jac.
Johns V. Ridler.
6. If Declaration be Part well., and Part ill, it lliall be good for that
which is well declared of: But if IVrit of Enquiry be executed for the
•whole, or if intire Damages be given, it is good Caule to itay Judgment.
12 Mod. 5. Pafch. 3 V\^ &: M. Anon, cites i Vent. 27.
7. When the Recital of the Writ and the Count itfelf were entred on Re-
cord, if there were any material Variance, the Defendant might take Ad-
vantage of it, not only by Way of Plea, but by Motion in Arreft of
Judgment after the Verdict, or by a Writ of Error, becaufe the Writ
being the Foundation and \\^arrant of the whole Proceedings, if the
Plaintiff
Trial. 459
PLiintitf did noc purfue it by his Count, there was no Authority to the
Cuurt to proceed in fuch Cafes. Gilb. Hill, of C. B. 42. 43.
8. Upon a Demurrer, it >as agreed Arguendo, that if any of the
Counts are good, the Court will give Judgment tor the Plaintiff j
But where a general Vmiiif is given, one dcjeclroe Count vitiates the
whole. 2 Barnard. Rep. in B. R. 384. Hill. 7 Geo. 2. in Cafe of Cock
V. Vivian.
(I. g. 2) Judgment arrefted. JVhat fliall be hdended
&c. ^per a Vcrditi to make good the Judgment.
I. T N Co-vcnant for not ofering an Advowfon, whereof the Defendant had ^' F/'-^**
_£ a Term for Years, to the Plaintiff before he granted it to J. S. Iffue ^"^ ^and"^"
was join'd upon Non conceffit^ andi found ^hwd concejjtt. It was mov'd in f^\l that
Arrell of Judgment, that it is not alleg'd that the Grant on which the there of Ne-
Ilfue was join'd was by Deed, and fo no Breach alUgn'd, But it '^'^^ y^'jT^-^^'^%
held that it was averr'd by the Verdift; for now it being a perfeS: heTp.'becauVc
Grant, it Jhall be intended that a Deed was pe'-jin. Hutt. 54. Lighttoot g Grant of a
V. Briehtman. thing being
^ alleg'd,
which in its own Nature could not be granted without Deed, unlefs the Jury hnd found the Deed
they could have found no Grant at all. 10 Mod 301. in Cafe of filufton v. Yateman.
2. Plaintiff declar'd that he had paid the Money due on a Bill of Ex- g^^'^lj^gi^
change, but did not fay to ivhom he paid it, whether to the lafi Indorfee to ^^^jg^-J^
whom alone it was due i (there being feveral Indorfees) and therefore jutfi, S. G.
it was objefted that it might be paid to another, and io the Defendant and judg-
rtill liable. But per Cur. After a Verdict, as in this Cafe it lliall be in- ^'^"^^p j
tended that the Money was paid to the right Party, efpecially lince it is ig^en'ch. J.
laid to be paid Ex parte of the Plaintiff, which could not be if it had hsefitate.
been paid to a Stranger. And fo a Judgment in B. R. affirm'd.
Carth. 129. Pafch. 2 \V . & M. in the Exchequer Chamber, Brunetti
V. Levven.
3. ^\'here in a Declaration there are Matters infenfibly exprefs'd, and show. 14.;.
other Matters feniibly exprefs'd, and a Verditl and Damages given lor S. G. S: S. P.
the Plaintiff, thofe Damages Iball be intended to be gi'ven for that which is
well laid. Carth. 131. Pafch. 2 W. & M, Nightingale and Fowles v.
Bridges.
4. It Damages are given /« Trefpafs of Battery, which was declared of
as a 'time not yet come, it is the fime thing as if no Time had been al-
leg'd ; and after Verdi£t it ihall be intended that another 'Tunc was pro'J'd,
2Salk. 662. pi. 3. xMich.SNV. 3. B.R. Aaonv. Eels.
(^- g) .Mg-
Trial.
See Tit (K; g) Judgment arrefted. ff^M Thing may arrejl
cca) Judgment.
'A'
Matter map lie allC^Ctl to arreff a 3itltlO;niCnt which appears ill
by the Record itlelf. 12 1^*4. 24.
Matter oF 2,'. But u S^^ait cait not allcgc a Matter in Faft to atrcft a JtitiQ;^
Faft IS not ii^j-jij yy)n\ch does not appear in the Record, bCCaUfC tl)ePartiC0 CnunOt
Svt- trptljemic. 12^.4.24.
dift, but a
W);f of Error mujl hebrotight. Arg and not denied. 11 Mod. 156 pi. 2. Mich. (5. Annx B. R. Falmouth
V. Strode.
3- As it i0 not a n:ooti piea to arreft a JtiUffment that a juror was
challenged, and that alter a Man upon the Tales bearing the fame Name
was fworn, iiccaufc it cauHOt appCiit to tfjc court t|)nt fje iis tlje fame
pcrfon, luitfjout aUcijtns lip fatter m jfact tijat !je 19 tljc fauicpec=
ton. 12 1;). 4. 24.13*
4. after a rjcrutft for tlje plaintiff, tlje Defendant cannot fap m
3rreft of 3|UtlgniCnt, that his Attorney had not any Warrant in Court,
becaufc it map be tijat tlje iBarrant lua^ DeliBec'D to a 3luaice of tljc
court tudo ijass not pet ncliticr ti it to tijc CicrU of tije i©arrant0,
or it map U tljat \)t luas marie W attornep tip mxiu 19 ^. 6. 7.
aoniBijcti, Dulutatur II 5^»4-.44- Contra 14,!)* 4- 16. Curia.
5. (^ had Judgment in an Action upon the Cafe at the Affifes, and Da-
mages were given to him to 30 1. It was moved in Arrefl: of Judgment,
that the Venire facias ■'j.as dc Duodccim^ and that one of them did not appear^
fo as there ivas o^e taken de Circumjiantibus j and the Entry in the Roll was,
that the [aid Juror exaBits Fen it, but the Word Jurat us ivas omitted, and
for that Caufe the Jud2;ment was Itay'd. Godb. 177. pi, 246. Pafch.
8 Jac. in C. B. (Quod's Cafe.
6. Trefpafs for Battery andfalfe Imprifonment on fuch a Day and Place,
the Defendant yV/y^z/i'd'^ en another Day and Place by Virtue of a Writ &c.
and traverfed that he was guilty aliter vel alio Modo, or at another Place j
upon which Ijfue was join'd, and tlie Plaintiff had a Verdicl; but the
Judgment was arretted, and a Repleader awarded for the Badnefs and
Incertainty of the IlFue. 2 Lev. 164. Hill. 27 & 28 Car. 2. B. R. Mailers
V. Wood.
7. It was found by Verdift, that a Warrant of Attorney yv^s forged, and
Judgment enter'd according to it was fet afide upon Motion. 12 Mod.
318. Alien. II W. 3. W^orley v.
8. Debt upon an Award, the Defendant lets forth a void Award, and
pleads Performance, the Plaintiff joins I [J ue upon the Performance ; Ver-
dict lor the Plaintiff; And moved this in Arrefl of Judgment, and
Judgment thereupon arrefted. 12 Mod. 635. Hill. 13 Vv. 3. Anon.
9. 'If there be no fnjfcicnt Certainty in that which is the Gijt of the Ac-
tion, there is no Foundation for a Verdift ; for it can't appear whether
the Damages given by the Jury be proportionable to the Demand, or
whether it be extravagant and excelfive, and fb there would be no Power
to attaint the Jury if they gave an ill Verdift, and if no Verdift can be
given on fuch improper Allegation, there can be no Judgment. G. Hill,
of C. B. 98.
So where 10. The. Copy of the Iffae delivered concluded & pr.ediffus quercns Jimi-
the Dejen- n^^y^ whereas it ought to have concluded & priediftus dfendcns &c. the
•wa.s inferud Court faid, that let it be ever fo immaterial a Miftake, it is irregular i
intheP^per- and a 3 it is in the Copy of the IfFue, we muft flay the Judgment upon
it.
Trial. 46 1
it I Barnard. Rep. in B. R. 58. Trin. 2 Geo. 2. Scrimplliavv v. Book, injow.
^rO^O"^- _ (lead of the
Plijwtiff'a ; but in the Record the Plaintiff's Name was inferted, and the IfTue properly join'd ; it was
moved to fet alide the Verdid: for that Reafon ; but 2 lllaes being join'd, and a General Verditt found
^or the PlaintitF, the Court refufed to make any Rule. Barnes's Notes in C.'B. 529. Eafter 6 Geo. 2.
Thompfon v. Simmons.
ir. In Trover, Defenddnt pleaded Noh ajfitmpjit, and thereupon IfTue Rep of
was join'd, and Plaintiff obtain'd a Verdift. It was moved for Defen-^''^'^ *"
danc in Arreft ot Judgment, and the Court made a Rule to Hay the En- S (-; "/'
try of final Judgment, till Caufe Ihewn by the Plaintiff. Barnes's Notes Geo. 2. fays
in C. B. 316. Mich. 8 Geo. 2. Noble v. Lancalter. the IiVue be-
ing immate-
rial. Judgment was fet afide and a Repleader order'd.
(K. g. 2) Var'uvice between Verdiui and DecJaraUoj7j sce^Mifcaft-
I- T JF tije \\'ords ill action upon tlje Cafe left out of t!)e Declaration see infra.pi.
1 make a material V ariance ftOm tljC iiBOrO0 fOUnti bp ti)Z ©CrUtCt, ' 5 S C.
tljc 3ftion fljall abate* ^p Reports 14 Z% Sir j. s.dnam and Mjjo,
per Curiam*
2. So if more be put lu tlje Declacatiou tljan is founti bp tlje i^cr^
Uict, if it be material tlje action fljaU abate* $j9p Ecportsi 14 3%
3. 3;f a S^an brings action upon tbe Cafe for fapinn:, Thou pro-
curedll 8 or loof thy Neighbours to perjure themfelves, antl tije 3iUrp
finn tijat Ijc fain, ihou halt caufed 8 or 10 &c. tl)i0 i0 a material ©a=
riance i for ije map be a Eemote Caufc, tljat is to fap, Caufa fine
qi!a non, toitljout ^Procurement* £!9. 4 Sia* 15.^, bctuieen fef'» and
Munoii bp CanficlD*
4. 3If tljere be a a^ariance bettneen tlje 35ertJict ann tlje Declaration Roh. Rep,
in an action on tlje Cafe for VV^ords, either by \\^av of Surplus or De- 4^8. s. P.
left in tlje Dcclnuatian, pet if tlji0 i^^atter of tlje variance be not ma- Tsee infr™'
terial in the Extenuation of the Aftion or Damages, tlje SCtiOU UJtU lie pi 15 sc —
notiuitljftanninij; tlje at)ariance, 9^p Reports, h 3ia* Sir j. * S!dnam t And. up.
againjl Mayo, per CUriaUl* Stntl fO bettUCCn t Boughton and the Btfrop P' 'f.^"^""-
of Coventry and Lichfield. — Mo^iai '
pl 285.
Broughton's Cafe S. C. S. C cited Cro. E. 192 S, C, cited Roll Rep. 428. in Cafe of Sid-
nam v. Mayo.
5. As if tbc Declaration be tljat tbe Defendant fain tljat tlje ^fcr grear
plaintiff \$ a ftrong Thief, anti tlje ©crcict finn tbat Ijc fnin tljat Ije piaSdfF had
xm a Thief, m tljc aaiOH lie0 i for tlje ilBorn firong is not mate= judgment
rial* D* 6. C 6. 75. 22. to recover
upon thefaid
Verdift D. 7 5. pl. 22. Mich. 6 E. 6, Burges v. "VS'arenford — - Dal. 9. pl. ;. 7 E. 6. S. C. S. C.
cited Roll Rep. 42S. and that it was adjudged no Variance, becaufeit was not material.
6. So if Declaration be tbat tbe Defennant fain, i fay &c. ann tlje R"" r^p-
aDcrnict finn tljat ije fain i affirm, or i doubt not &c. tlje action lies s f ^,7''
for tljis IS not material* S^p KepcrtS, 14 3a* itrrlecare.
[This is the'
Cafe of Kext v. Yeomans^ 4 Rep. I 5. b. pl. 5 but I do nnt oblrve that DiiTcrcncc taken thei-.]
6 B 7 So
a62 Trial.
See Infra, 7. So tf tijC DeCltiratlOU lie tljflt Ije rain That the Plaintiff would do
pl. 15. S. C. fuch a Thing, tiUtl tljC aDeCQiCt fintISi tijat !)C fatn I think in my Con-
fcience that he would do tbe CijUW; f C. tllC aCtlOU lie0 ; fOt (t 10 llOt
it material ioariniicc* $?3p EcpartsSj h- ^V/- J(j. .i)v//;/r;?^ ^«^ Majo^
a5}UBgeD,
j?.oii Rep. 8. But if tljc Declaration be tijat tlje Defennant fain That the
4i8 pl. 20. Plaintiff, Miuj a $|5ei'djaiit, is a Bankrupt, auB tlje 33cr5ict finngi
'^f:^,„,°L, tijat {je fain That he would be a Bankrupt within 2 Days, tljO' bOtij
iT^apo l©cir50 are actionable, pet it isi a material 3:)ariance i for tljep arc not
pe*r Haugh- tljc famc J^oi'osi* ^p Ucpott^, 1 4 3ia» 'B»
ton J. quod
fuit conccfl'um, per Doderidge ; becaufe they are different Words from thofc mentioned in the De-
claration.
Roll Rep. 9. So if tfjc Declaration be tbat Dcfennant fain tijat tije I;3lain=
^'""ci- ^f ' tiff is a Thiet, anB tljC DerQlCt finDS rljat ije faiD That he itole aHorfe,
^■mni}lm tijisi 10 a material a:)ariance* ^y Reports, 14 3a*
Per Haughton J.
Cro. J. 52S. 10. 3!n an !3Ctt0n of Debt for not fetting forth of Tythes, UpOU 2 E.
accoidinSv ^- ^^ ^^J^ Platntii? EieClare0 That J. S. was Parfon, and leafed the
^-\_/,^3^' Tythes to him for 5 Years, if he fo long fhould be Parfon, and fnould
folong live, * ailtl tljC SiUtP find that he leafed them for 5 Years, if he
ftouid fo long live, UJitljout tijc iBcrtig Snti flicuHi continuc Iparfon,
Ktlnot Pcttl}i0i0 not anp material a^ariance; becaufe tbe aooitioa of tijc
th^» Ground faiD J©orD0 i0 no more tljan tljr laia iJiip!iC0; tor tbe ieafc neter=
of the Ac- mines bp bi0 Deprivation or Ecfianatton, anti fo tbo' it be an 3531^
tion, nor is (jon jn }jacrii0:, pct It i0 iiot attp in Jubilance* 'SDr. 1 1 3ia. 05, ja*
ed upon the Leafe, but upon the Carrying aivay the Tithes, and the Allegation of the Leale is only an
Inducement to the Action ; and tlie Jury finding a good Lcafe and Title, tho' not exaftly as alleged,
the Plaintiff fhall have Jadgment. but had Debt been brought on this Leafe, fuch Variance perhaps
had been material, the Leale being the Ground of the Action. Brownl. 125. S. C. adjourn'd, the
Court being divided. 2 Bullf 85. S. C. adjudged by 5 J. for the PlaintiiF; but Haughton contra.
Mo. 8'54. pl. 1121. S. C. and by 3 J. contra Haughton, that the Variance is not material.
Cro E. 5o^ II. 3;n an miction upon tbe Cafe, if tl)t plaintiff riec!are0 tbat ti)Z
fc-ordit?' 2)efenliant fai"0 tijCfe l©Orri0 of ijer, fClitCCt, Thou arc a villainous
by^PoDharn' Qjr'ean, and a murderous Quean, tor thou didft murder my Wile i fO
and Fenner; flje fuppofc0 tbc i©orQ0 to bc fpohc to tOc pUiiiitiff Ijctfelf in tbe 2n
but Gawdy p^rfon, aiitJ tlje 31un) finti tbat be fpohe tbe fame moxw of tbe
e contra in j^Jjjinttff tO OHC % ^, Ht tljC ^D PerfOlT, fClllCet, She is &C. tbl0 10
aXher^- ^ uiatcrial variance, fo tbat tbep cannot be mtenDeD to be tbe fame
fore it was ilBorli0 ; aiiD If ii)z iljoulD recover upon tbefe iiBorti0, flje migbt alfo
adjourn-d tecobct upou t\)t otbet J©orti0» S^» 38, 39 €l 15. E* bctuieen *
— *Seepl. j^^ij^f ^„^ Johnfon. ^, loja, 05, E, betUSCCn t Jc'.mes and Harris,
fra'.s'^c per CunaiUi tbe plaintiff beinu abfeat at tbe €:iine of x\)z
^pealiinn;,
12. %\ an ^Sfrion upon tbe Care, if tbe plaintiff ricclare0 tbat
tbe Defentiant fain of \ym He is a Murderer, ann tbe lurp ftno tbat
be faio tbat He was a Murderer, tijis 10 uot auD material a^arlauce -,
for uibcn be fam ll)e i0 a $i3urtiercr, Vi i0 uot inteuneD tbat be rno tbe
act in prafenti, but before, i^. 38, 39 ^l* 05, 3R, a&reen.
^ Bum. 56. 1 3. %\ an mmw upon tbe Cafe, if tbe plaintiff Declares tbat tbe
^ c. and sDcfcntiant fain tbefe i©ortJ0 to tbe Plaintiff Thou arc $c, ann tijc
and Croolfe ^lUtp find that he fiid of the Plaintiff Thou art &c. and that the Plain-
T. held the tiff was prefent at the Time Of fpeal^inft tlje l©OrD0, tbi0 10 llOt au?
verdia material variance, inafmucb a0 tbetl9ort!0 arc tbe fame, Ip, lo
good, and 31^^ 03^ ^^ bettUeen Jamei and Hams. ^^xm.
Trial.
463
r
14 3n an action .uposi tlje Cafe, (f tljc 13!aintiff Jiuiam tijat tlje 't^. 'he
iDcfCutiant faio tijcfc JDorD.s to the Piaintiit, Thou art &c. aiiU tije ^^'j;;;f„
Jurv fold that he faid of the Plaintift'Thou art Szc. and that the Plain- have his
tiff was abfent at the Time Of fpCal^InQ; Of tIjC UDOfDjS* 3it reciil0 tljat Judcrment;
tijc laft 13nit of tIjc aDcrutct 10 not contrary to t!jc firtt part, aiiD pet ^ut Fleming
it is not anp material mriancc, tijcUBoroo bcmn; ali one* 2:)ulii=!;rJ-^,"""
tatur. Ip. 10 Iia, 15, R. bnmZW Jaims and Hams. Cafe was
afterwards
ended by Compofition, and fo no Judgment was given,
15- Jn an!:icti'on upon tlje Cafe for tOefe W^i'^% if sir John sid- Ron Rep.
denham might have his Will, he would kill all the true Sijbjefts in i^J"- P'- ^°'
England, and the King too, ann ijc ijs a^^atntainet otlSaptftrp, antj ^^t\ '#
of relic!iiau0 perrons ■■> ano tije Defendant pleaoeo otijer I©orti0, Adjud-ed'
abfqiie Ijoc $c» ann tlje Jiiri? fino tljat Ije fpokc tijcfc JIBoros, \3ioc= f^'-.tho
ilCCt, 1 think in my Confcience that if Sir Jolin Siddenham mi2;ht have ^'r'V(1*^~~
his w ill &c. aun all ti)e ot^er jJB>orti0i it fccmd tijtfi 10 a material I c a?°'
EDanancc, fo tljat tlje plaintiff cannot lja\3e Snngmcnt ■■> for tljotislj judged for
tl)e naonsd founn wiU bear Action as lucll as tljc Jt9ort?s in tlje Oe= ^he piaintifF.
ciaratlon, vet tlje iiBortig tijunn are not fo abfoUite as tlje ilBorns in — '^';° J-
tlje Declaration, nor moUeCretiit in tije Car fo fuilp as tlje JBorns fc Hauth
in tlje Declaration, iuljiclj is tlje jforce of a Planner, anij tljen tljei) ton doubt"-
are not tljc fame aBorns in jForcc ann effect* Ipobart's Ecports^, ^d ; but the
243. betuiecn stddt^uham and Man, i\\ wnt Of Crtcr, tljo' Juogment %'^r ''"^^
luas Bi^cn for i;31aintuT m t^ms's^'Bcnclj* >S wZ^
and gave
Judgment for the Plaintiff. Afterwards a Writ of Error was brought in the Exchequer- Chamber, and
there Hobart, Winch, and Denham were of Opinion that the Verdici: was found for the Defendant, the
Words found by the Verdift varying from thofe mention'd in the Declaration ; But 4 others being of a
contrary Opinion, the Judgment was affirm'd. ]\Iich. 16 Jac. Hob. 180. pi. 21-. S. C.
16. jf tljc JJBorBS are Iain in tIjc Declaration, i knoiv him to be a Hob. isr.
Thiei, ann it be faimu i think him to be a Thief, tijis 10 fl material p'- "J" , '^'f
a^ariauce* Jpobarts Reports, 244. the ait of
Sydenham v. Man.
17. Jn an action upon tlje Cafe, if tljc [Plaintiff Ucclares upon an '^-^-'O
Allumplit to be periorm'd on Requeft, atcer the Return of the Defen- ^°'- ■'9-
dant irom L. to N. anO tljc Jutp fint! tljc ptomirc to U maCc to be ^^
pCrfOrUl'lJ after the Return ot the Detendant trom L. to N. without any
Requeii, iu laio tijctc nccos not anp Ecqtieft ■■, but tlje Defentiant
at Ijis Peril ougijt to pcform it tuitljin a coii^cnicnt ^^ime atter Jjts
Return, tljis is a material sDariance, ann fo not tlje fame promife*
^, 31, 32CI. 'B. bCtlOeen Peeter and Carter, aDjUOlICD. EepOttCD
#iclj» 31, 32(!CK^»K*
18. 3n an action upon an Affumpfir, if tlje plaintiff declares tljat
tlje DCfen5ant lUaS indebted to him in 22 1. 10 s. and promifed to pav
it upon Requelt, aittJ tljC JlltP find tljat tljC DcfeaQant tUaS indebted
to the Plaintift' in 10 1. for a certain Thing, and in 12I. los. for ano-
ther Thing, without finding any Special Affumplir, tljl'S IS 3 tliatC'
rial i:>ariance ; for Ije Ijas ceclaret« upon one affimipfit laijcre tljcre
arc 2 federal afftinipfits in Latu, uiljiclj cannot be one anB tlje (ame
promife, '®r. 4 Ja. 15. E* betiueen Barhr and Ro^^k. ipm*
19. 3in an Ejettione JTimis of 20 Acres Of lanU, if U}30n JSOt 5 Eulft iSj.
@UiltP plCaHell, tljc 3iUrp find him Guiltv oi the Moiety only, anD ;^''?- ''V'*'^
JQot ^uiltp of tlje Eeamie, pet tlje plaintiff njall ijabe JuDirmcnt. Jf ntaufr 5,
p. 4° €1 ^> E. Scabnghfs Cafe, aOllltJgCtl. ^. 7 la. 13. bj? COfeC ifrSn
for tl)e MfC. £19!' ECpOrtS, 14 la. betlUCCn Cooptr and FranUm. COn= ^i'<-'s it to'
tra Com. oaraccbrioije, 4H- tJ* have been
10 adjudt'ed,
contri tdSraftbfiDJt'sCafc, in PiC and the whole Ccurt fuid to the Pl,:int;iF, tha: his belfwav
V.O'.lld
Trial.
■u-ould be to have a ludgment for a Moiety as a Coheir. Roll Rep. 585, 586. S. C. in a Nota at the
Efid fays, it was argued that where an Ejectment was brought for the whole Land, and the Plaintiif has
Title to a Moiety only, that he flionld not have Judgment for any Part, unlefs he ought to have it for
all, according to PI. C. IBraabriDie'^f Cafe, 424. b. and afterwards according to the Kefolution afore-
fiid, Judgment was given for the PLiintift" for the Whole. Cro. J. 400. pi. 9. S. C. but S. P. docs not
appear.
20. 3f a 9Bau bringd Trefpafs of 20 Todds of Wool, anti upon tlje
<©cncral Miit pleatit-o, tlje 3lutj) find t!jc DcfenHaut (Sutltp of 20
Fleeces oi w ooi, jjct It 10 a ffooti aD£f5tct, aun 110 material aDai'tauce*
Cr» 42 €U 03. K. btmmX Willon and Tuckwcll, aOiicgcQ.
» Orig. is 2 1 . So in ^rClpar^ oi a Cart-load of Corn, if tljC * JUtp Upon J0Ot
(Defendant) fi;ut|tp pleaBCtI, find him 0Utltp Of 20 Sheafs Of COttt; tljlS IS" a gOOti
mma. Cr. 4- €l 05. K. iper Curiam*
22. 31 in Ejeaione firms, tljC }£>lamtlfFlieClare0 upon a Leafe made
by 2, antl n;t^e0 in CljUlCnCC that one of the Lelfors was Leifce for
Life, tijC Remainder to the other ; tljlg i0 a material l^atiSnCC
from tije Decinration, inafmucij m it 10 oulp tlje leafe of tf)e
Cenant for life. ^p. 10 3ia. 05. E. bcttocen Efj^ia^d and Long m
jUtlgCO.
23. So if a 99an Beclarc^ of a Leafe mace bp 2, where the one has
nothing in tlje lanB, ann io tioin for ijim, pet it 10 a materia! ©a^
riance. 90icl). 10 i,n. 05. E. betuieen England and Long aD)UDgeiD.
24. So If a 90dX\ Declared of a leafe made by Baron and Feme, anD
gitieSj in (StitneUCe a Leafe made by the Baron alone, tlji^ igl a mm-
rial a^ariance. 2|9. 10 3a. 05. K. aDjutigen.
25. 3if a ^an ncclareis of a Leafe made by 2, anti it appears upon
tije (JcllitlCnce tljat the 2 Leffors were Tenants in common, ailH fO lelje--
ralleafeSi tW iss a material a^ariance. ^\z% 10 ^a. 05.3a*
per Curiam, anO faiB to be fo aHjungcri.
26. But otljenuife it is, if it appears upon tlje Cijinence tljat tlje 2
leCTors were Coparceners ; for It IS oue Icafe being iTiatie bp tijcm.
$59. 10 3a. 05. R.
27. 1\\ an Action upon tlje Cafe upon a Promife againft an Admini-
ftrator, if piailitlft' declares that Tellator was indebted to him in 55 1.
and Defendant, being Adminiltracor, in Confideratione &c. promifedto
pay iti anti uponiRou alTunipfit pleaiieti,if tlje Jurp find that he * af-
fum'd to pay 30 1. Parcel of the 55 1. but not the Reiidue ; tljiS IS fl
material a^ariancc between tlje Declaration ann aDcrnict. ^o tljc
iE5laintilf fljall not Ijatie Jungmcnt ; for it is not tlje feme Jpromife.
Crin. 14 Car. 05. K. betUieen Kinchmman andthe mpop oj Ofay in
jrclanti, upon tlBrit of error upon Jutiement in JrelanQ. anD
tlje lungmcnt rcncrs'D tor tljis Caufe among otljers. 3!ntratur.
pU. n Car. J?\Ot. 1141-
28. 3n Action of Walle for Cutting and Selling of Trees, Upon MO
IBalfe Done plCaOeC, if tlje^Ut)? find that he eradicated the Trees, and
did not cut them down^ tljis'lS fl iDatiauce. '^Crlu. 7 3!a. in tlje
common l^leas.
29. 3n an Ejeaione Jirniae, if tlje plaintiff neclares upon a Leafe
for Years of =5 Acres, mXi ill CbiCCUCe Ije lljeUlS bUt a Leafe of a
Moiety i tljiS is a material aDariance ; for it is not tlje fame leafe.
pafcl). 3 Iia. 05. tctuieen Bmwn and Ellis, |3er Curiam.
Cro. J. 200. 30. 3n a Prohibition, if tlje Plailltlff DeClateS upon a Prefcription ia
pl. 32. Mich, jviotlo Decimandi, lUBellCet, that every one who has 7 Lambs, or un-
v'Dod if '^^^ 7? ^^^^ P^y ^° ^^^ Parfbn an Halfpenny for every Lamb, ailD tljC
notS. P. SUrp find that the Prefcription is fo, but that it goes further, that if he
has more laUlbS tljaU 7, tljat tljeu the Parfon lliall have a Lamb, and
that he fliall pay to the Parifbioner an Halfpenny ; tljiS IS UOt tljS faUIC
prefcription, anti tijcrcfore ije ijas fallen in ijis prefcription ; for ijc
ougljt
Trial.
465
oii5l3t to Ija^P veljear^'B al! tlje prcfcnpnon. p. 7 ^jn, X\ bctuieeii
31. ^-^Jifc in ^yeji Chai/u-l ; the 'lenant pleaded to the ^J/tfc, and gave in
Evidence that he recover d this Land in Cunhcd againjl A. and the A^tfe [aid
that the noiv Tenant brought Writ in Ciinhed^ of which Wcji Chamcl is a
* Hamlet, againjl A. ivhick A. utftoff'd this Plaintiff pending the firjl Writ, * Oi-ig. is]
and the no-jj Te:ia?it recovered againji A. and the Tenant in Aid of the Verditi C^'-iTiel)
Jlje'-Jj'd Record of the Recovery m C. near W. And therefore, becaufe his
Record is contrary to the Ferdiff, the Verdift Ihall not lerve him i and the
Plaintiff recover'd. Quodnota; for now C. y W. each of them jhall be
taken a ViH by itfelf. Br. Verditt, pi. 73. cites 14 All'. 9.
32. In Caie againfl: Sheriff for an Efcape, it was found that the Party
was taken in Execution by th; former Sheriff, and not by Defendant, butii'e-
livered by him to Defendant ; yet the linpriionment and Efcape being
found, Plaintiff had Judgment. Cro, J. 380. pi. 8. Mich. 13 Jac. B.R.
The King v. Andrews.
33. In Trefpafs for taking one Parcel [of Cloth] containing iS Tards, and
another Parcel, containing 20 Tards, and for t-iao other Parcels, the Jury
found, as to the 5 Parcels of Cloth, that the Defendant cov« guilty. But up-
on a S\"rit of Erior, the Judgment was revers'd; for ic Ihall not be in-
tended that one of the ill Pieces, containing levcral Yards, were in
different Parcels ; and then the Jury have lound the Defendant guilty
of taking 5 Parcels, whereas the Plaintiff had declared only of taking
4 Parcels. 2 Roll. Rep. 415. Pafch. 21 Jac. The King v. Hoskins.
34. Ejecimcnt was brought of a Retiory, and upon Not guilty pleaded S. C. cited
the Defendant was found Guilty of lithes "without Glebe, and could not V*^p "' '"r
have Judgment. Palm. 413. in Cafe of Jpaj)lte0 t3. StrOlUtJCl*, ^'^g-^'^l^f^
cites It as the Cafe of DClUlUilt iJ* fpUtiiJiCltOil i and the Counfel of the Stroud.
other Side agreed this Cale, becaufe the Glebe ivas the Principal. And
Crew Ch. J. faid he remembred the Cafei and Jones J. fiid that it Wiis
not found in that Cafe that the Tithes were Parcel of the Rectory.
35. An Error was affign'd, becaufe Plaintiff counted of a Grant byW. GodH. 159.
S. Knizht ; and it was iound he was not Knight; and ib it being; a void F, V-'^'^
Grant by that Name, and the Declaration untrue. Judgment therefore s p^ doss
ought to have been lor the Defendant. But all the Court conceiv'd, al- not appear,
tho' it is found that he was not Knight at the Time ol the Grant, yet it — Jo. 215.
is not material i for the Iffue being whether W. S. granted &;c. that P''I- ^•^■
Finding is idle and fuperfluous, and is not material ; and Judgment in T^,.y found
C. B. was affirm'd. Cro. Car. 174. pi. 19. Mich. 5 Car. E. R. Theihat the
Earl ol' Pembroke v. Bollock and Green. Grant was
36. £//? peradventure if the Iffue had been upon that Gr^vf /o Walter^f^^f°^'^^
Sands Knight ; and the Matter had been found, it had been material, j^^'^ '(,^"^^1.,^
Cro. Car. 174. inS. C, Name of
W.S. Efii;
But the Coui-t una Voce held it no Variance, but that the Verdift mairitain'd the Declaration, and
found a good Grant by Sir W. S. which was the IlTue. .Litt. Rep. i8i- S. C. Arg. 197. S. C ar-
gued 2.25. Mich. 4 Car. in C. B. adjudg'd for thi Plaintiff, nifi Caufa.
37. A. covenanted to pay B. fo much a ^lire for copying Bills, Anfwers
&c. And in an Aftion brought, it was found that the Defendant had not
paid for 5 Quires and a half; and {o Damages were given for more than
was in the Covenant, which was only to pay fo much by the Quire, and
does not mention any Hall-quire. And for this Reafon Judgment was
arrelled. Stile 12. Pafch. 23 Car. Needier v. Guell.
38. The Declaration was of an abfolute Leafefor 7 Tears, and the Ver-
di£l has found it a Leafe at Will, and fo it is not a Demife Modo & For-
ma, as the Plaintiff had declared. And this is a Variance in Subllance,
and not in Form onlv ; Per Curiam. Carch. 2oi. Hill. 3 \V\ & M.
B. R. Cudlip v. Rundle.
6 C 39 li^
/^66 Trial.
39. If the Defendant to an Information of Ufury pleads that foe nei^
tber had nor did take the aforefaid 20 1. fur hitere/} fit". Upon which the
Plaintiff takes Kilie, and the Jury find that the 'Defendant did take 10 1. by
Way of Ufury '-y this fhall not be accounted a Variance from the IfTue.
Brown's Anal. 12. 13.
(K. g. 3) Phiire facias de Novo.
I. Tif i1 JDCnire ftlCia^ lie quaflfd for Confanguinity in the SherilT, jj
i 3:)emre facias ne Md'^o fijaU be granteu to the Coroners. lo
2. 3:f at tljc Ecturn of an Inqtica tipon a miiixz facias, a Writ
comes from the King not to proceed Rege Inconiiilto, by which it is
awarded that he Ihall fue to the King, and alter a Procedendo comes^ a
nCiU mwiU faCtaSi fijali llTUe, anO not a Habeas Corpora. 22 (£»
^yefpafs 3- 3n Audita Querela againft 2, if the one dies after Iflue join'd and
ag:inijl 2, Nili prius fued, and after one of the Deiendants dies, a iDJnitC fac(a0 DC
who plead jU3o'yo fljau \^z aiuaructi* n E* 2. xrief 638. Odut fee 4 i^)* ?• 7.
and'af'^?the 3^^^^ Aflion upon the Statute of R. againft 3, if one dies after Iflue and
^medicTJthc before Verdift, and yet Procefs continues altcrwards againft all 3, and
Writ fhall upon a Diftringas an Inqueft is taken againft all, J)Ct tlji0 10 no Caufe to
not abate, arrcft Judgment, inafuiucij 30 tijc Wxit 10 not abated againft t!)e
venh"eTi- titljct 2, anD tljc ptoccf0 ant! Jniiucft \joiti againft ijim ioijo 10
cias fliall ilCaO.
it cannot be continued againft a dead Pevfon, nor the Procefs which was againft two, cannot be conti-
nued againft one only. Br. Ven. Htc. pi. ii. cites 7 H. 6 21.
So where three were received by Default of the 'Tenant for Life, and join'd IJfue, and Fenire facias ijjiied,
and was return'd, and at the Day ic was fliewn that one of the 9 was dead, and yet the T/Twe fiood by
Jward, and Venire facias de novo was awarded. Br. liTucs Joines, pi. 41. cites 19 E. 4. 4. Br.
Refceir, pi. 114 cites S. C.
But where an JHion was brought arrainfl B. and C they both join'd IJfue, and B. died. A fen. fac. was
iXtuarded to try the IJfiie between both, which was done, and found for the Plaintiff who furmifed B.'s Death,
and had '^iidgnieiit againfl C KeColved to be no Error, tho" it ilTued againft a dead Perfon, bccaufe one
of the Defendants being alive is fufficicnt. And fo Judgment affirni'd. Cro. Car. 426. pi. 17. Mich.
II Car. B. K- Tyffin v. . . . Jo. 567. pi. S. S. C. accordingly, by the Name of Tippen v.
fenton.
4. After an Inqueft fworn and charg'd, if any of them die before
Verdia, fl HEiu mwiu facia0 fljall not ilTue, but a Tales, ciu^ue*
12 jp» 4. 10.
5. "iw an Information upon tljc Statute of Ufury, becaufe tlje De^
fenoant tooU s 0, ct unum ^ooium 'QTritici, for Jntcreft for tlje
* loan of certain S^onie0, iuljere tlje 8 0, tDa0 accorning to si m
tlje 100 1» anU tlje JBulhel of \V heat more than the Statute allows i bUt
tlje Record of iS'iii Prius U)a0 Unum (Modum) tritici (fat Modi urn)
upon which the Plaintilfat the Aififes was nonfuited, but the Record in
Court good and right, fciiicet, (S^onium) auH bccaufe if tiji0 Bm^
ruit fljoum be recornet! in Court, ann tlje partp put to a neto Jnfor'
mation, no Jnformation luouin lie, inafmuclj a0 the Year and Day
ispaft, anti no Default toa0intlje j^lamtUf, butoni}) oftljeaEIerk
of tlje Jl^ifi l^riu0 -, tljercfore tl)i0 iQonfuit fljall not be recoroeo, but
a aDenire facias tie no\jo fijail be aiuavDeo, pafclj. 9 Car. 05. E»
bCtUJCCU Halls ami Sanders, ^et CuriaU?. JlUtratUt* |)tll» 7 Car.
Eott
rrial. ^67
^ot 1012. -isut It in not tjrnittcti, bccaufc tijc Kccom iuajsi not
COOD,
9. Sifter IITUC, ifattheNili Piius a Proteaion fie call for the De-*Br.En-
fendant, which is repealed before the Day in Bank, pct bCCtlUfC lj!0 ^^^'^ p'- '3.
Default 10 eccufcH at tlje JSifi l^xm bu tfje l^rotcctioit, aim tije f^' ^; ^
lt:rocer0 agmntt tije Jmiucil is nifcuntnuieb, a Dciure facial He noi^o //°'wrf
fljaii tie stanteti» 2.1 f^, 6. 20. ti, * 14 Jx 4- 23 b. »wfe. j/.»-
<ww that the
Kijl Prius was pit in before the Jufikes cf Nifi Priiis, the Litjiieji is Hemandabk only at the Day ofNijl
Pri:(S, and not at the Day in Bark ; and centra where the IVrit of Nijl Prius and Record is not put in before
the yitfiices of Nife Prius ; for then they are demandable at the Day in Bank, and then the Procefs is not
dilcontinued. Contra ut fupra ; and therefore per tot. Cur. the Plaintiff fhall have new Proccfsat^inll
the Inquell — Br. Dilcontinuance of Procels, pi. 13. cites S. C.^ Br. Protedion, pi. :S. cites
S. C. fir. Default, pi. 27. cites S. C.
In Deht they had Niji Prius, and to this the Defendant cafl Protelfion, by which the whole Inaiietl •aas
difcharp'd, and the Proteclion was repeal'd ajter the KiJl Prins, and before the Day in Bank ; and therefore
per Cur, It is as if no .appearance had been, or no Protection cafl, and therefore fhall have new Venire fa-
cia';, and not new Nifi Prius aj^ainft the firft fury. Br. Ven. fac. pi. 58. cites 11 H. 6. 14. Br.
Enqueft, pl.bS. cites S. C, But Br. Venire facia.';, pi. 27. cites 5 E. 4. 2. That no new Venire facias
lliall be awarded where Protection is cafi at the Kift Prius, and repeal'd at tie Day in Bank. But fays that the
fame Year, fol. 5. is contra, where they took the Inqucft anew Venire faci.is was awarded in fuch a
Cafe; therefore qusre for Contra the lame Year, fol 4 Br. Ven. fjc. pi. 27. Br. Piocefs, pi.
m cites 5 E 4 5. That in fuch Cafe a new Venire facias fhall ifluc; for the Jury is without Dav.
But fays tliat Ibid. fol. 4. is contra, and Diftrefs av.arded againfl the Hrfl- Jury; for they have Day in.
Bank, which feems to be the bell Law ; for the Parties have Day in Court, and it is agreed there •
Quod nota. But the fame Year 56, new Venire facias was awarded ; and it is laid there, tliat it has
been done both Ways. Br. Ibid.
But where Protection is cafi at the Day cf Nifi Prius, and the Juftices t.Tke the J':ir\ de lene EJfe, and at
the Day in Bank the Protection is allowed, the inqueft fliall be re-charged by Reliimmons. Per Prilut -
for now the firft Taking is void. Br. Enqueft, pi. 86. cites 35 H. 6. 44.
7. 3if after the Inqueft return'd by Habeas Corpora, the Parol be put
without Day by Aid of the King, and after a Procedendo comes, and
a Refummons is fued, a j^eiute facws He iiolia (Ijall be erantca ; fot
tljc ©ijetiff map return anotljer pannel .imnicoiatdp, 21 e* 3»
8- 3'tt a Praecipe quod reddat one pray'd to be received for Deiault ot
the Tenant, anil Demandant counterpleaded the Receipt, anU tljCW
ttJCrC at 31ffUe, anti at the Venire facias return'd the Sheriff recurn'd the
Vviic with the Fannel at his Suit, and alfo 4 other Writs with Pannel
by Procurement of the Tenant by Receipt, bj) iDljiCi) Plaintilf prayed
that he might fue againft the Inqueft according to the iirft Writ tDljiCl)
i)e ijatl COUtmcnC'D ; tor the Pannels do not agree in Nam.e of the ju-
rors: |3^ct inafmuclj as tijc Court cnmiat Unaia mijctijci* \)t rues tije
firft J©rit or tije reconu, Ije fljall not fue upon tljc one or tljc otljec
for tlje €)UfpiLian, but Ije (Ijail fue a o^enire facias ue uoDo, anli tijc
#ijcnff fljali be amerc 0 for returning 2 l^annels, as aboDc, to one
£)nranal. 5 €♦ 3> Cljallcnge 6.
9. Jf a Trefpais bC laid in Gray's-Inn Lane in S^itlBICfer, HUB UpOn ^'■''- T <?^9-
JI5ot ffuilti' pleaseti tlje laarties are at Wue, ann tijc Niii Prius RoU pi- §• s-c
is made Grave's-Inn Lane, aUU aftCt tbC lUrp atC fiUOm tIjiS ifau!t iS !!!-Godb '"
fOUnH, upon which the Plaintift' is noniuited, and the Noniuit enter'd, ^^s pi 42'
pet ti)c Plaintiff CjalUjaiie a aDenirc facias tcnoiio, liccaufeijeujas^caccord'-
nonftnteo upon anotijer laecorn, [aunj not upon t!je Reccm in '^s'-v.-— ;-
Court. Cr> 21 ja, 13. E* betlueen nufi^ atld b:.ugkficid ati)Uiin;eti, s c acco;^
tije uiljiclj Jntratur p. 21 ja. Eot. m. Sntiin tIjis Care ain^iy, bv '
precctient laas citeo in 9 3!ii* 05. E» one WiiUams^ CaCe atijuDseu ^ca ch j.
alfO^ and Dodc-
ridge ; but
Haughton J feemed contra. But it was rcfoV/cd that a new Diflringas ihould iilue-,
10. In a Ceffavit, iftljel3artieSarC atS'JTUe whether the IVlotherof S Rep 66 a.
the Plamtiffbe endow'd of Part ot the Seiiiniory, and PI.niuilF of the '" ifJtv
Trial.
Cites 18 £. Rdidiie, or whether tht;Facher oi'the Plaintiff granted it over to another ■
5.48. b. in j^j^-f, j-|jg Jurp tind that the Mother is indow'd Ofl^iltt, and that the
Ceilavit, be- p.^jhgj. ^f j-^e PlaintiH'did not grant the Reiidue, and they do not ap-
Inqu^eft"" portion the Services nS tljCJ) OU0;l)t, and lb the Verdifc"l is not full ; ailD
found Part tftcittouc fl mmxc fflcuis fljflU ifluc affatnH tijc firll furors* is
tobelieldof^ ,^ * 5»
^'"^.^f""'"" *i u And it fCCmS they iliall inquire all de novo, auD UOt OUlp Of
did not find tm iPamt \y ijicij isi oimttcn, 1 8 (£. 3 . 50, ^lu-ere.
•ivhat Ser-
vices it -vi-as held by, nor what Arrearages were due ; fo that the Verdici: was not fully taken, a Ve-
nire facias de novo Ihall be awarded to return a new Jury, and not a new Nifi Prius to try the fame
Iflue again by the fame Jury.
l( hujiiefthe li-el! taken in Part, and HI in the refi, it fhall (land in Part, and fhall be newly inquired
for the relt ; and this ieems to be by a new Jury. Br. Enquelt, pi. c)<). cites 9 H. 4. 7. and Fitzh. En-
queft;;. Br. Verdift, pi. 89. cites S. C.
♦ This feems milprinted, and that it fliould be (50) .
12. 3111 Replevin, if t\)Z JITUC l)C ^^'hether the Diftrefs was taken out
of the Fee of the Avowant, nilQ It I'd iound that it was, if t\)Z\> do not
inquire of the Damages, a mWVCZ laCia0 HC UODO fljall U fftnnteU.
13. %\\ an SftiOII of Battery againfi: 3, if they plead 3 feveral IfTue.s,
aUH Upon a lIBrit of iKtfi IPriU^ 2 of the Ilfues are lound for the
Plaintiff, and Damages tax'd, but nothing is found for the 3d Iffue one
^/; 1^'y , way or other, tijid \^ a 90\Md\, auB a mmt jfacta?^ ue noijo njall
of'theMat-imiCv ?[>. 8 Cat. 06. R* i\tmZZ\\ Ludlow and Binneoii, anjUBgCn ,
ter put in fiji^ Mmj nioisctJ III Slircft of JiiDijment*
fays vcthin^ a' to the reft, the Verdict is ill, and a Venire Facias de novo ITiall HTue, if no Judgment is
piven ; but if ftid^metit is given lioon fuch Verdidt, it pal! he revc.fed ; per Cur. 2 Ld. Rayrfl. 1521.
Fafch.'i Geo.'z. in Cafe of the King v. Hayes.
* VVhere an 14. J\\ a Wilt Of Valore Mariragii, if tIjC Wi^t bC upon the Tenure,
IT^; is aUll at il3tfi jpnU^ it 10 found lor the Plaincirt, and Damages and Colls
T'f w4 given lip tljv iiUri', but the Value of the Marriage is not found, bUt
]Tin,Zi'eH, ouuttcti DP ttsc StitP^ tW Default of tlje Slntu tljall not lie fupplicn
a new Ve- tjp a Wxxt Of Sinquiup tljereot ; but a Bcnire Jf acias tic noijo fljail be
nire Facias gfaiUcH, liccaufc tljcVerdift is * not perieft; atiO if tlje Sjurp IjaD
kwa ded fouim tljcDaJue au attaint inoulD lie, if it Ijati been unrcafonable ;
Tenk. 285. anu uiljcn if tljc 3ui:p [fijouinj iinu a <^\)\m toDereof au attaint tnouio
pi. '3- He, anu tljep cunt it, it fljait not be fupplieD bp an 3'nqueft of ©ffice
luijcreof no attaint Iic0, in prejumce of tlje pattie0> Co. 10.
Cheyney, 119. aQ)Ut)0eD.
15. 3jn a Detinue, if tljC 3iUtp finds Damages and Cofls, and no
Value, a0 tijcp ousbt, tlji0 fljall UOt be fupplien bpJBcitofJniiuii-p
of Damascg -, but sDenite if acia.s De nobo iljall be gtantcQ* Co* i o.
Chcyncy, 119. b.
16. Jtt a Quare Impedit, if tljClifUC be found for the Plaintiff, bur
W JOegllgence tlje JUrp do not inquire of the 4 Points, ftilicet, DC
IpIcnituBine, €x cuiu-s prsfcntatione, %i tempu0 ^enicffrc tran=
fiertt, anb tbe 33alue of tlje Cijurctj bp tlje l^ear ; t!ji0 ajall be fiip-
plieb bpllBritof31niiuirp uiitljout anp Dcnire facias De nobo, be
Cauie tlje Court ex Oflicio ought to have charged the |ury with thofe 4
Points Of Jmquirp, anb if tlje 3utp Ijab founn tljem, ho attaint uiouH»
lie ; fat it m^, ag to tbi0, an Jnquefl of Office onlp* Co. lo. 6%-
»ey, 119. Dubitatut 4 C0a. D. 135-
aBulft. 279- 17. 3]n Wxit of Annuity, if tljC 3flUe bC found for the Plaintiff, but
LSe^of '"' ^^J^ 3^"'^i' ^^ ^'^^ ^^^^^® ^"^' ^^'"^S'-'s °^ Coib, tl)i0 fljaU not be fupplien
■tT.
Trial. 469
Ijj) a i©rit of 31nqmn) ; but a mmz Stacm He \mo OjaU be gcanteU ®arn) ano
fiit tije Caufe afocernm* Co* 1 1. Be;jtham, 56. mS'^'^T'
^^c. Roll Rep. SS. pi. 4S. ©nxr i). 3^arclj, S. C. [But neitlierii Rep. nor 1 Bulft. nor Roll's
Rep. mention any thing of the Veil. Fac. de novo ; but that a Writ of Inquiry of Damages does not lie
in this Cafe.]
18. "Six ait Ejeftione Jfirniie againft Baron and Feme, UpOlt J0Ot Ci°. J- ^^7-
<Siiiltp pleaoen, ano a maitc Sincim gcantcn, tljc aurp find the Feme p'- ^/ ^ich.
Not Guilty, and filtO a Special Verditl as to the Baron, the which s^J^';^
@>pCCial ©ei'QiCt is after adjudged infufficient by the Court, a WtlUtC hd^'d^al-
IfaciasitienoliofljalUjegcauteD foe botlj, ass uicU tlje iFeme as tlje cordingiy—
"Baroitj ann upon tlji.s neu)l©nt tlje ifemc map be foimtuStuitp, P;'!.'" 191-
bccaufe tijc Kecoco aiio Mnc isi mtice, aiiD tljeccfoee tl)eic ©ei-mct ?ac"R'R
infufficient ni all, ano boio* S^iclj* 9 M* 'B* E» bettueen La,ig/ey i c but
a>;d Paj»e, aDjiiHseti ; tljtjs S0attec beinn; ntoijcri in ^rceft of 311100;= s. p. does
inent, anO tije ClerfeS fato tijat it Uiajs tijcit Courfe to grant tljc M- "°' ^pp^*""-
lui'c jfacias ne nobo foe tfjeiiaijoie*
19- J50 [ujljere] tljere are ftverai iflues join' D, ann tIjc 3ittrp find any
of them well and direftly, and as to the others find a Special Verdift,
which is imperfea, a ©enite ifaciajs be nobo fl)all be granteb for tljc
f^ljoie, anti tlje aurp upon tljig map fino contrarp to tijeir firft jf inii=
ing* in tlje CrCljeqUCr, aOlUbliCD iji tljc Lord Sheffield's
Cafe.
20. Jf in an action of CrcHjafiai of Afllxuk and Battery, and taking
of his Grain, tljC DcfCnOant, as to the Battery, jullifies in Defence of
his Grain ; UpOn lOljiClj tlje Plaintiff demurs, ailtl as to the Grain he
plea>ls Not Guilty, lOljcrCUpon tljCp ate at 3ifllie, anb it 10 found for
the Plaintiffi anb * tljC ^iUtP do not tax the Damages for the Battery,
which depends in Demurrer; 30 tljCp OUtyljt i in tlji0 Cafe it feem0,
if tljc Demurrer be after adjudged for the Plaintiff, VCt tljC H^amaffCSi
for It cannot be fupplieb anb tar'b bp a JlBrit of Jmiuirp of Dn=
maiTcss i but a aDcnire Jfacias be nobo ougljt to itfuc tb trp tlje
HSljoie, becaufe all is comprij'b \\\ tljcSDrtutnaU Dubitatuc 1 1 Car*
15* K. betbJCen Vajhman and Rowe.
(K. g. 4) Venire Facias de novo, /;/ (wfjat Cafes. ^p,^^ 1 5)
7. S) y- 15.
I. X^ A PI AS was awarded againft the Uiider-fljeriff charged to keep In C. B. the
\_j a Jury, and he permitted them to go and to have Meat and Drink ; JuiT/"'».^
for he upon his Examination confefs'd the jMatter, which is of Record ^"^^'^f'''''""
now, and he is Officer &c. and therefore C'pias &c. and againfi the ^e'lendant^
Jtiry^ becaufo the Matter is only Surmiie, Venire Facias was awarded, c.jff7c.T«,y/,;./
and another Venire Facias between the Parties at Iffue, to return a new ^'"" *''ejii>j
Jury. Br. Procefs, pi. 72. cites f 24 E. 3. 24. TSentL'fr
Charge ami
their FerdiB, had taken Meat and Drink, and pray'd new Venire Facias, and had it, and the Veidiil: tlieie-
by adjudged void. Brooke fays, it feems that /Wj JJatter ivas anjefi'd, er notably proied. Br, Jurors
pi. 12. cites 14 H. 7. I. '
♦ Br. Verdift, pi. 17. cites S.C, Br. Venire Facias, pi. 15. cites S. C.
2. In Replevin they were at I/pie, and Venire Facias ijfiied to the Sheriffs
of London, and the one Sheriff' return' d a Venire Facias for the Plaintiff,
and the other returned another for the Defendant, and both v, ere oufted,
and a new Writ made and deliver'd to the Plaintiffj to be fer\ ed De
novo. Br. Enqucit, pi. 103. cites 26 E. 3 6j.
6 D J. A
470
Trial.
3. A Jury appear'd upon a Habeas Corpora^ which wanted thefe Words
(aptid W.) by which the Inqueft was put without Day, and new Procefs
awarded. Br. Procefs, pi. 166. cites 31 E, 3. and Fitzh. Enqueft, 5.
p_P (^ A In Affife the Julliccs took thcVerdtCi of My where the \zth did not
pl.'io^!' dtes agree, and ic was awarded void, and a new Venire Facias awarded. Br.
s. C. \en Fac. pi. 25. cites 41 Aff 11.
Br. Verdift,
yl. 49. S. C. ^ j^ ^j^^ j^^j^ p^,-^^^ -^ Ad ion Perjhnal, the Defendant caji Proteffm
fr'2'^'cites "^^^''^ ^^ ^^'•'^ appear'd in Affife againft him the fame Day, at the Suit of^
21 R 6. 20. the fame Plaint ff; and becaufe he appear'd in one Suit to the Plaintilt*
S- G. and made Delault in another, the Jultices thought that it could not be,
and therefore took Inqnejl which gave Verditf Jor the Plaintiff'; and at the
Day in Bank this Matter was Ihewn, and it was awarded per tot. Cur.
that they did aniifs, by which the Plaintiff' fhew\i forth Repellance, which
was allowed, and no Party was demanded, or Procefs awarded againft
the firlt Inqueft, but new Venire Facias awarded ; quod nota. And fo
fee that where the Inqueft gives Verditf they are difcharged ; quod nota.
Contra it leems, if the Inqueft had remained (or Default of Jurors clearly,
Br. Ven. Fac. pi. 12. cites 21 H. 6. 21.
6. li Procefs is not ferved againji the Jury, As i( againjl fomc, tio IJhes
are return d, or no Manucaptors, and Verdi61: is taken by them, this is
void, and new Procels Ihall liiue. Br. Procefs, pi. 165. cites 26 H, 6.
and Fitzh. Enqueft, 17.
7. Nifi Prius was taken after the firji Day of the Return of the Writ of
Nt/i Prius, and before the fourth Day, and therefore ill, and a New Ve-
nire Facias awarded. Br. Venire Facias, pi. 39. cites 33 H. 6. 45.
8. If 14 are returned in the Venire Facias, and one is omitted in the reji
of the Procefs againji them, this is fufficient in Arreft of the Inqueft • and
ihall commence at the Venire Facias again. Br. Enqueft, pi. 98. cites
34 H. 6. 20. and Fitzh. Inqueft 18.
9. In Affife, no new Procefs can be awarded i for the Recognitors
who are once return'd lliall ftand, but when a Jury is return 'd upon a
Ven. Fac. which is a judicial Proceis for the Trial of a certain lifue,
there if the Verdict be tmpcrfeti the Court may award a new judicial
Procefs, viz. a Venire Facias de Novo ; but in the Cafe of Alfife the
Court cannot do fo ^ becaule they are return'd upon the Original, and
becaufe the Writ ot Alfife of Novel Dilleilin, is Feftinum Remedium,
the Plaintiff Ihall have ^V''rit of Certificate of Aliife to fupply the firft
Imperfections (which happen by Delault of good Examination) accord-
ing to the Truth of the Matter. 8 Rep. 66. a. in Loveday's Cafe, cites
21 E. 4. 26. b. 27. a.
10. In Cafe, and Counts that he was feifed of a Meffuage and certain
Lands in E. to which Land, Time out of Mind &c. he had Common ap-
pendant in 400 Acres of Land in L. and that the Defendant had inchfed it,
andfo dijhirb'd him of bis Common, The Defendant pleads that he had fet
up a Vaccary upon Parcel of it neceffary &c. abfque hoc that the Plamtijf
had Common j this IKue was tried for the Plaintijf. It was moved in Ar-
reft of Judgment, that the Venire Facias and Trial was from L. only,
where it ought to be alfo of B. where the Land was, and that this Mil-
trial is out of all the Statutes of Jeofails ; and lor this Caufe it was ad-
judged that the Plaintiff, Nihil Capiat per billam^ and he could not
have a Venire facias de novo, for he had a Verditf given, which was cer~
tified. Cro. J. 114. PI. 13. Mich. 30 & 31 Eliz. B. R. Richmond v.
Webb.
And. 2;;. pi. II- I" Replevin, t\\& Tit^^ndLzut pewed that 7 Acres of 'Lun^ ralPd P.
154.. ^vii' is locus in quo, and at the Time oi the taking were holden of J. C. by cer->.
lauD ti. fain Rent, and other Services, and for Rent Arrear be 7nade Conuf'ance
SSs^o ^-f ^^'^'f ^° ^^^ ^''■^'^ J- ^- ^^^ Pl'iintift^ pleaded Mors de fon Fee, upon
bcS^cTac? which they were at Illue. And it w^sjoundthat th? Plaintiff was feifed
of
Trial. 47 1
Qf 7 Acres called P. holden of J.C. tit Jhpra. But the Jury fay that the Locus cordingly,
;/; quo contains 2 Acres, which is called P. and thcfe 2 Acres are, and I^^^^.^^
then were, held of A. and if upon the whole Matter videbitur Curise &c. ^J^. f^^^jj
And by the Opinion of the whole Court, Hors de fon Fee upon that does not an-
Matter is not ibund ; lor altho' it be found that the 2 Acres be holden Aver the
of A. yet it may be that they are -mthin the Fee of f. C. for it may be that ^|?"er ia
J. C. is Lord Paramour, and A. Mefne, and then within the Fee of J._C. ' ^^*
and therefore for the Incertainty of the Verdift, a Venire Facias de novo
was awarded. Le. 210. pi, 294. Mich. 32 & 33 Eliz. C. B. Greenwood
V, VN'elden.
12. In Afiimp/it &c. the Plaintiff declared, that whereas the Defendant
at London in Warda de Cheap was bound to J. S. the Defendant in Con/ider-
ation the Plaintiff would give &c. at London in TVarda prtediifa promifed
&.C. Upon Non alfumpfit pleaded, the Ve». fac. was de Parochia of St.
Mary of the Arches in Warda de Cheap, when there was no Parifb mention'' d
before in the Counts and after a Verditt this was objefted in Arreft of
Judgment. Per tot. Cur. the Plaintiff cannot have a Ven. Fac. denovo,
but he mull begin again, becaufe the Fault is in the Declaration, and
not by the Award of the Court only. Cro. E. 260. pi. 46. Mich. 33 &
34 Eliz. B. R. Bradilh v. Bilhop.
13. I'refpafs ; the Iffiie was. If the Manors of P. and Great H. were hol-
den of the Honour of Eweline ; the Ven. Fac. was of one Manor only, and
therefore ruled to be ill ; the Plaintiff ta.kes a Ven. Fac. de novo of both the
Manors, and the Ilfue was tried for him. It was objected that it is a
Miltrial, and that a Ven. Fac. de novo was not to be awarded but for
the fame Jury, or where the Verdicl is not well examined ; and the firll
Verdict. is here entred, and the Writ filed ; fo there Ihall be two Vcrdifis
cf Record for the fame Thing, and both full. But it being moved again,
the Court held it to be good, and the Plaintiff had Judgment. Cro. E.
260. pi. 47. Mich. 33 & 34 Eliz. in B. R. Horfeman v. Johnfon.
14. In Affiimp/it, Plaintiff declared that the Defendant in Conjideratiojt
cf 10 /. affimied to make two Lights into one ; upon Non alfumpJit they were
at Ilfue, and the Record of Ntji Pniis was to make two Lights (and one)
where it ought be (z«/oone.) And upon that at the Nili Prius the
Plaintiff was Nonfuited. And it was now moved, Whether the Plain-
tiff ought to have New Venire Facias upon the firjt I[Jue, inafmuch as
the firlt Venire tiicias did not ilfue forth upon the firll Record, and no
Nonfuit. Et Opinio Cutis, that he may go to a New Trial, but whether
he Ihall have a Venire Facias de Novo, or that the old Venire Facias fhould
ferve the Court doubted, for that the firll Jury was fworn. Golds. 136.
pi. 37. Skelt. V. \\"right.
15. In an A6tion upon the Cafe, upon a Promifc in Confidcrationthat he s.C. cited in
promifed to pay 10 1, within 6 Weeks, the Defendant a ff rimed to do fuch a the S. C. of
Thing, and for Non-performance brought the Aftion j and upon Non- \^^fl^f'{i
apimpjit pleaded, the Parties being at Iliiie, the Record of Niji Prias was pa"ini'^--s'— .
in Conftderation that he promifed to pay 10 I. within 6 Months. And for s. C. dtsd
this Variance being againll the Truth and the former Record, the Plain- Godb. 412.
tiff was Nonfuited, and upon Advifemcnt of 2 Precedents, a Ven. Fac. pJ 4-^-
de Novo was awarded ; and the Ilfue being tried for the Plaintilij Judg-
ment was given for the Plaintiff. Cro. J. 670 pi. 8. in Cafe of Voung
V. Englefield, cites Trin. 9 Jac. Farthing v. Dapper.
16. An Ejcffione Firm^ W3.s brought of $0 Acres of Land 10 Acres
of A-feadow, loo Acres of Pajliirc, and the ^nry found the Ejectment only
in 2 Clofes call'd Bl. Acre and Wh. Acre, Parcel of the faid Lands ; and by
the Court the Verdicl is naught, and the Plaintiff Ihall have another
Judgment, for the Judgment ought to be according to the Declaration of the
Plaintiff, and his Demand. And it does not appear of how much Execu-
tion may be made, and it may be that thofe z Clofes contain more than
was in the Declaration. And by the Court a Vanre F.i i.:s d^ novo was
awarded. Noy. 67. Bcum v. Felton. 17. lu
472 Trial.
17. In Cafe agaitifi a Gaoler for filtering J. S. in Esectition upon a Jiidg-
vum had tn ^nn, Term 2 Car. to efiape. It appear'd that the Record of Nijf
Frills mention' d the Judgment to be had in ^rin. Term 3 Car. whereupon
the Plaintiff was Nonfuit; and it was moved that by Reafon of this
MifpriloHj the Record ot Nili Prius not being warranted by the Roll,
the Nonfuit thereupon was void, and ought not to be recorded. And the
Court accordingly order'd a Diltringas de novo. Cro. Car. 203. pi. 8.
Mich. 6 Car. Week's Cafe.
If a Special iS. A Venire Facias de novo was order'd to Iffue, becaufe the Special
Verdift is yf,^^nj .jj^s impcrfeff. Sty. 176. Mich. 1649. Ratcliff v. Dudeny.
impertect, -^ -' ■' ' _ ^■' •'
and does not take in the whole in IlTae, a Venire facias de novo fhall be granted ; Or if the fpecial
Verdidt is fuch, that no Judgment can be given upon it; Per Cur. 2 Ld. Raym. 1 521, Pafch. 1 Geo.
z. in Cafe of the King v. Hayes.
19. One v:as filed Upon the Statute of Ini?iates, and the DZ/fn'/z^^J jurata
hare Date on a Sunday, and out oj 'Term., and fo is erroneous. The Ques-
tion here was Whether it be not help'd by the Statutes of Jeofails of 18
Eli?,, and 21 ]ac Roll Ch. J. held, that it was not ; but there Ihall be
a Venire Facias de novo, Nili. Style 307. Mich. 1651. Theoballs v.
Newton.
20. One of the Judges dying upon the Circuit., the -^Jfifes were adjourned to
another Place, and bejore the Sitting there the other Judge died, and a new
CommiJJton tffiied to another Judge to lit there, and the Caufe was tried
upon the old Jurata, returned before the other Judges. It was objefted that
this was a Millrial, becauie there was not a new Jury return'd ; but ic
was held that it was no Miflrial, becaufe the Judges not being named in
the Jurata, their dying is not material to make it void. Cites Stile 412.
Hill. 1654. Barker v. Elmer.
21. It a Venire Facias be rettirn''d, and not filed, a new one may be
taken out. Vent. 13. Pafch. 21 Car. 2. B R. Anon.
22. By 7 y 8 IV. 3. cap. 'i^. Ij the Plaintiff' do not proceed to Trial the
f.rji Afffes after the Tefte of the Hab. Corp. a new Venire fhall iff tie.
Skin. 667. 23. V^on an Indi^iment of Murder, it was held per Holt Ch. J. that
^^^^^p ^i^ihe Ver did be imperfe if, no Judgment can be given, but a Venire de
5 Mod. 287. Novo ought to illuei lor tho' it is a Special Verdict, }et it cannot be
S. C. but not amended by the Notes in Felony, as it might in Civil Cafes. Ld.
S- P- Raym. 141. Hill. 8 & 9 W. 3. The King v. Keite.
24. If a Jurj is dijchargcd at theAJfifes, in order to have a View, there
is no need of a Ven. Facias de novo i but it is fufficient to have a Dijirin-
gas for the fame Jury, with Decern Tales at the next Afftfes ; but it is pro-
per that the Entry upon the Roll Ihould be. That the Jury was dif-
charged for that Reafon, and order'd that for the future fuch Entry
iTiould be made. Comyns's Rep. 248. Trin. 2 Geo. i. in C. B. Anon.
25. -B. and W. were indiifed on 2 feveral Indictments ; but by Mijtake
the Pannel of the Jury, that were to try B. was ret urn'' d upon IV.' s Dijlrin-
gas; and the Pannel oi' the. Jury, that were to try W. was returned upon B.'s
Dijlrifigas ; for which Reafon the Court thought that both Indidments
were tried by Perfons without Authority, and accordingly awarded a
Venire Facias de novo, i Barnard. Rep. in B. R. 108. Mich. 2 Geo. 2.
The King v. Willis.
S. P. ac- 26. In Cafe for feveral Sets of fcandalous Words fpoken of the Plaintiff,
cordingly. ]^g obtain'd a Verdift, and the Damages were found intire, though fomc of
Not"" in ^^^ Words Were not affionable. A Venire Facias de novo was moved for,
C. B. 3^6. on Payment of Cofts, that the Plaintiff might fever his Damages accord-
Eaft. SGeo. ing to an ancient Rule of Court; which was granted by the Court.
2 Smith V. B;irnes's Notes in C. B. 332, 333. Mich, 6 Geo, 2. Anger v. Wilkins.
Hayward. — jj j jjj o
Rep. of Praft. in C. B. 118. S. C. and S. P. accordingly.
Trial. 47 c^
(K. 2. 5) Venire facias de Novo. In vvh^t Cafes to ^/;^See(K.g. 3)
Jame Jury.
I. "QERCur. li inqiiejl be well taken in Part ^ and illin the reft^ it fhall g^ Verdidl
£f^ Hand in Par:, and Ihall be newly inquired for the reft ^ and pi. 89. cites *
this leems to be by a new Jury. Br, Enquell, pi. 99. cites 9 H. 4. 7. S.C.
and Fitzh. Enquell 33.
2. In W'alte in two Vills, if the Writ of Enquiry he not well ferv'd in the
me Vtll, all pall he inquired de novo^ for all the Inquilition fhall be by
one and the fame Inquell, and at one and the fame Time. Br. Retorn
de Briefs, pi. 39. cites 12 H. 4 3.
3. If Ntji Prius ceafe hy Prote^ion, and at the Day in Bank it is re-AttheKifi
peal'd, new Procels lliall be made againft the Jury ; but if it be difal- ^'''"^ ^^o'
low'd at the Day, the Inqueft ftall be taken by his Default. Br. Pro- "^1°" '^ ,
r \ -tT^ <r.t/, andyet
cefs, pi. 170. cites 14 H. 4. 16. ihtjupL
took tbefer-
d'lB^ and at the Day in Bank the ProteBion was ripeaVd 5 and becaufe it was allow'd at the Day of the
Nifi Prius, therefore the taking of the Verdift is ill ; by which Procefs iffued againft the Jury arain.
Contra if the Proteftion had not Iain by the Law, then the Verdift had been good. Br. Verdift' pL
70. cites 14 H. 6. 2. Br. Procefs, pi. 146. cites S. C. Br. Enquell, pi 25. cites S. C.
4. The J^tiry having once given their Verdi ff, the' it he imperfeff, fliall S Rep. 5j.
never be fworn again upon the fame Iffue, unlefs it be in Cale ot Jfpfe, ^^..^^- ^j
when the Party is to recover by View of the Jurors ; Per Coke and § c'^accoi-d^-
Fleming Ch. J. and Judgment accordingly. Cro. J. 210. pi. 2. Mich, ingiy, by
6 Jac. B. R. Cook v. Laneday i cites 21 H. 6. 20. 20 E. 3. Oifice de Kame' of
Court 20. 2 Mar. Br. Inqueft 86. Loveday s
Cafe.
Jenk. 2S5. pi. 15. If the Judge receives an imperfeft Verdift, there can be no further Procefs againft
the fame Jury, becaufe they are difcharg'd by the Acceptance of their Verdict ; and therefore in this
Cafe there mull be a Venire facias de novo to give a more perfect Verdidt ; but becaufe the fame Jury
often are at feveral AlTiies on the Continuance of the Jury Procefs, therefore by the Statute of - &
8 W. 5. cap. 52. a Venire facias de novo is given, if the Caufe be not tried the firft Affiles Gilb,
Hill. :4. 7 5.
(L. g) Venire facias de Novo. TFlioJJoall grant it.
I. T jfi? a Scire facias upon a Recognizance in Chancery, if tfjE IPilttiC^
JL arc atJflUC, upon UlljiClj tljC Record is fent into B. R. and there
it appears that the Venire tacias is not well awarded, tljE IDCiltrC faCtHS
lie Ji^JOlia fljall tie atnamctl in B. R. and not in the Chancery, £^« 10
3a, at5,ia» Ijcttueen Wood and Hmt, pecCunam*
(M. g) N^u' Trial. The Antiquity thereof.
I. A Fter Verdift for the Plaintiff, it was mov'd, upon Certificate of
^/\_ the Judge that it pafs'd againft his Opinion, that Judgment
tuight be arrefted, and that there might be a new Trial, as had been
6 £ done
474-
Trial.
done heretofore in like Cafes. But Roll J. contra, though it has been
done in C. B. For it was too arbitrary for them to do it, and you may
ha-je your Attaint againft the Jtiry^ and there is no other Remedy in Law
for you ; but it were good to advife the Party to fjfter a new Trial for
better Satistaftion. And let the Defendant take 4 Days from hence to
fpeak in Arrelt of Judgment, if the Poltea be brought in i if not, then 4
Days from the Time it lliall be brought in. Sty. 138. Mich. 24 Car.
B. R. Slade's Cafe.
10 Mod.202. 2. In Aftion for Words, viz. Calling the 'Plaintiff 'Traitor &c. the Jury
W'i'' '^ gave 1500 /. Damages. Whereupon a Motion was made for a new Trial.
iiiGiTcof the '^'^^ Counlel for the Plaintiif oppos'd it, as a thing without Precedent j
£luitn Ij* the Counfel for the Defendant inlilted that the Court had Power in Cafes
i^Elflon extraordinary, as the prefent Cafe is, to grant a new Trial. And Glyn
(Lorf ora- q\^_ j_ f^jj^ \^ jg jn ^he Difcretion of the Court, in fome Cafes, to grant
^Jj°"jj"p^.^^ a new Trial J but this mull: be a judicial, and not an arbitrary Di rec-
iter Ch. J. tion ; and it \s jreqnent in our Books for the Court to take Notice of Mi fear ~
that the riages of Juries, and to grant new Trials upon them : And it is for the
gi-antingnew p^.f^p/g's Benefit that it pould befo; for the jury may fometimes, by indi-
about^e^sl^" rect Dealings, be moved to lide with one Party, and not to be indifferent
when the ' betwixt them ; but it cannot be {o intended of the Court, wherefore let
fir!t new there be a new Trial in the next Term, and the Defendant fhall pay
Trial was £^j[ Colts, and Judgment to be upon this Verdict to Hand for Security
e'iceffiveft'of '^o pay what Ihafl be recover'd upon the next Verdifc't, Sty. 466. Mich.
Damages— 1655. Wood V. Gunllon.
Wm's Rep.
215. Mich. 1712. in theCa'e of the ®ueenll.l5£i<.iDU')> Corporation ;Ld Parker cites thisCa!e as the
firrt Cafe of a new Trial uhich ue find in our Book's, and that it was after a Trial at Bar. Ibid. 214.
he fays that one Reafon w hy we do not find this Praftice more ancient mav be that there are no Re-
ports of old Motions ■ It is faid to have been denied to be true that ISIew Trials began at that
Time. JSlich. 1758. B. R. in Cafe of Dormer V. Fortefcue.
3. There have been new Trials anciently, as appears from this, that it is
a good Challenge to a Juryman, to fay that he hath been a Juror before in
the fame Caufe ; Per Holt Ch. J. 2 Salk. 648. pi. 20. Hill. 11 VV. 3.
li. R. in Argent and Darrell's Cafe.
(N. g) Ne\v Trial. Gra??tcdj hi lahat Cafes.
I. T F an Order made at the AJJifes be grounded on Agreement, and VerdiCi
\^ had there, in Purfaance thereof, the Court will grant a new Trial,
if the Plaintiff rcfufe to Jiand to it. i Keb. 478. pi. 6. Pafch, 15 Car. 2.
B. R. Howel V. Smith.
2. A new Trial was mov'd for, on Suggeftion of Deed inrolfdfudden-
ly trumfd on the Defendant at the Affifes, whereby heftjfer'd Verdtif againjf
him, whereas there was no fuch Deed ever inroll'd ; which the Court re-
fus'd, altho' no Remedy be againlt any Parties for Forgery or Perjury.
I Keb. 568. pi. 15. Mich. 15 Car 2. B. R. Noy v. Tucker.
3. It was infilled upon as a Rule, That nothing jhall be a Ground to
direQ a new Trial to avoid a Judgment at Law, that would not be Ground
for a Bill of Review to reverfe a Decree ; and a Confeffion fubfequent to a
Decree is no Ground for a Bill of Review. Chanc. Cafes 43. Hill. 15
& 16 Car. 2. Curtefs v. Smalridge.
4. The Court faid they would hardly grant a new Trial where a Ver-
di£t might become Evidence in a Criminal Caufe. 12 Mod. 319. Mich, li
W. 3. Richardfon v. Williams.
5. li
Trial. 475
5. li there be Evidence of both Sides, and Vnrdiii cigdinji the Strength
oj Evidence, if fuch Trial be not peremptory, there ought not to be a
new Trial. General Caufes of new Trials are IVant of due Notice, Prac-
tice, or Mifdetneanor in Jury, in either Party or their yigevts, the Abfence
of J'onie materialWitnefs, which they could not then have, Verdift againfi
Evidence, exce/fivc Damages 8z.c. per Cur. 12 Mod. 439. Hill. 12 VV. ■<.
B. R. Anon.
6. W. brought Debt on a Bond for Payment of 1500 /. and upon Non efi n. B. What
iCiim join'd lUue, and went to Trial, but there being ^reat Reafbn to is within the
rn.
tore Judgment was enter 'd up, the Plaintiff' moved and obtained a new \\^^' \'^q^ js"'
Irial, and had aVerdiii. Thereupon xht Plaintiff at Law brought his firompig.4ig.
Bill to ha-vc Satisfafficn out of a triijl EJlate for this Eond-Debt, the per- — Abr. Equ.
fonal AHets falling iliort, the [pretended] Obligor [deceafedj having*^'**'"' V'^'
lubjected his Real iillate to the Payment ot his Debts. [The DefendantLy'^y^^T^^^
tnjijhd that the Bond was forged, and had madejlrong Proof of it ; but that 419. S. C.
being the Point tried at Law, the Court would not enter into the Proof oi^^' ^■°^^
it, or permit the Depojhions to be read.] The fingle Q^iellion was W'he- g^ 'Ld?^*^^'
ther the Court, upon the Circumltances of this Cafe, would decree a rVbrtakeT^
Satisfadion out of the Trult Ellate upon the Credit of the Verdict, with- from Tome
out dir^6ling an Illue, or gi\ ing the Defendant an Opportunity to try it '^^^^
again ; and the Court decreed j or the Plaintiff's. But on Appeal to the Houfe
cf Lords a new Trial was direchd, and the Bond found to Lc forged. 2 Vern.
378. pi. 344. Trin. 1700. and 419. pi. 382. Hill. 1700. Wharton v. Til-
ly, & e contra.
7. When a 'Trial has been twice had on the fame JJfue, and both Verdi fls
agree, it would be unreafbnable to grant a new Trial. 1 1 iMod. i. pi. i.
tall. I Ann. B. R. Anon.
8. When no material Caufe can he ffyewn, this Court will always have
too great an Efteem lor a Verdift, as to grant a new Trial. And yec
when any unforefen Accident happens, or Ibme fudden Impediment, as
Sickncfs &c. to a IVitnefs, and a Trial is had, and a Vcrdifct given tor
the Plaintiff, which might have been given lor the Defendant, had that
Wicnefs been produced, in fuch Cafes this Court will grant a new Trial,
on paying Colls ot the lormer Trial. 11 Mod. i. pi. i. Ealt, i Ann.
B. R. Anon.
9. Upon a Trial, a Point in Law was fiarted by the Judge, and the
Counfel did not take it up, but inftfled upon ether Fafts, which were found
C-gainfi them j whereas had they infijhd upon the Matter of Law fiirr'd by
the Judge, the Ferdiff mufi have pafs'd for them. The ^^eltion was.
Whether this is fufficient Caufe to move for a new Trial ? Parl<:er
Ch. J. held, that if the only ill Confequence of this Verdift was the
Matter of Colls, the Party ought to fufter for his Counfel's Negietl ; but
if the Party's Right be bound by it, then he thought it hard for the Party
tolofehis Right by his Couniel's Slip or Miltalce. Bat the other '3
Jullices being of a contrary Opinion, his Lordlhip fiid there mull bene
new Trial ; and that he fo far aliented to his Brothers, that tho' a Ver-
dict Ihould leave the Party remedylefs, yet if the Counfel does not only
not infill, but exprefsly waives it, there ought to be no new Trial, ip
Mod. 202. 203. Hill. 12 Ann. B. R. The Queen v. Hellion Cor-
poration.
10. Experience Ihews, that new Trials are grant able as well for a Fault
in the Judge as Jury, in Caufes tried at Nili Prius, becauie the Judge of
Nili Prius afts rather in a Minillerial than Judicial Capacity, and the
Ground and Foundation of granting new Trials, when either the Judge
or Jury are to blame, is one and the fame, viz. doing Juftice to the
Party ; Per Parker Ch. J. 10 Mod. 202. Hill. 12 Ann, B. R. in tlie
Cafe of the Queen v. Hellton Corporation.
II. The
Trial.
1 1. The fame Reafon "johich wtll warrant a Motion in Arrefl of Jitdg^
incnt, •uuill likcwife -warrant the like Motion for a new Trial. Arg. and
feemd admitted, only that a Motion for a new Trial could not be made
in another Term. , 8 Mod. 264. Trin. 10 Geo. 1725. The King v.
Pollard.
12. In EjeBmmt a Verdift pafs'd for the Defendant, but a new Trial
was granted, the Mortgage Dced^ under which Defendant claini'd^ ap-
fearing to be a Counterfeit by the Stamps the Dye which imprefs'd it not
being made till feveral Years after the Date of the Deed ; for tho' where
A'htter of 'fitle is the Difpute, and the Dejendant obtains a Verdtif, a new
Trial is always denied ; yet this is an extraordinary Cafe where the Re-
venue is concerned. Barnes's Notes in C. B. 318. Mich. 8 Geo. 2. Baker,
on the Demife of Brown, v. Petcher.
13. In Fje^ment tried at Bar, Iffue was Whether the Defendants were
in Poffcjfion of all or any Part of the Premtffes in Q_ueftion. The Evidence
that 'ii^i^j given to prove the PoirefTion was uncertain. The. Jury found
that the Dfendants were not in Po^efjion of all or any Part of the Premifles.
It was fuggejled fir a new Trial., that this Fail is found by the Jury ex-
prefsly agamfl Evidence., and therefore pray'd a new Trial ; but it was
denied to be granted, and in delivering the Opinion of the Court it was
. laid down as an undoubted Truth, That ij the E.vidence be doubtful, no
tjew Trial pall go.^ but it muft be contrary to Evidence. MS. Rep. Hill,
12 Geo. 2. B. R. Smith and Dormer v. Parkhurft,
(0. g) New Trial granted in what CafeSi In refpeci of
the y^cfion.
'the Court I^
never, or
I
N Aftion on the Cafe, for Words fpoke at feveral Times, fonie
___^ whereof were actionable, and fbme were not. After Verdict for
Very rarely, the Plaintiff, Judgment was arreltcd, and thereupon it was moved to
^^]z\^ln have a Venire Facias de novo, and try it again. Qu^Ere, well if ic
jBhm for fliould be granted. Sid. 144. pi. 25. Pafch. 15 Car. 2. B. R. Anon.
Words; per
Holt Ch. Ji 2 Salk. 644. pi. 4. Pafch. S W. 3. B, R. Anon.
2. Denied in EjeBment, tho' the Verdift was given againfl; Dire8:ion
of the Court in Matter of Law. 2 Jo. 225. Mich. 34 Car. 2. B. R.
King, Leilee of the Earl of Thanet v. Fofter.
3. A Bill was exhibited fetting lorth, that the Defendant in a Reple-
vin had avow'd tor a Rent-Charge, and Ifluc was taken thereupon upon
the Seilin of the Grantor, and it was found for the Deiendant ; which
Verdi£l the Plaintitf complain'd of, alleging that the Rent pretended
to be granted, had not been paid in 50 Tears, and other Circumflances to
render the Grant fufpicious &c. The Lord Chancellor decreed that there
Ihould be a new Trial, the Complainant paying the Colls of the former.
Note, This could not have been tried again at Law, becaufe the Verdicl
in Replevin is conclulive. 2 Vent. 351. Pafch. 33 Car. 2. Anon.
^.4. The Reafon why one Trial in Ejelfmettt will not bind the Inheritance,
i\^°'lkvifavit ^^ ^^°"^ '■h^ Nature of the A6lion, and not from any Rule in Law that
vcl non, one Trial Ihall not bind the Inheritance ^ for it would in a proper Ac-
Avhich was tion j but a Decree in Chancery is final, therefore one Trial upon aa
found againfl i^^YuQ dircfted may fettle the Right. MSS. Tab. Tit. Trial, cites 1721.
SSwIs Lomax v. Rider.
urged tor a new Trial, that it was the Riik of the Court mt to bind the Inheritance without 2 Trials at
kaft;
Trial. 477
Jeaft ; and in tlic Gale of an Ejeftment at Law, the Party is at Liberty to try his Fortune, totics quo-
ties Sec. But Ld. Chanc. (aid. He knew of no fuch Rule ; and as to the Cafe of Ejedtment at Law, he
laid the ancient Courfe of Law was otherwife , for in a Real Adion, as Affife &c. Recovery tliereia
Vas always a Bar to a new Affife, and tlie Party grieved was put to a Writ of a higher Nature &c and
the 'Trying loties tjttoties tifov Ejeciment is caviti^ to the new PraHice of tryiyio Titles that fway, wherehi^ the
Parties ieins, f Bilious, cjieTiial cannot he made life of as a Bar to another. And a new Trial was denied,
ro Jffidavit or Certificate of tie Judge being produced. 2 MS Rep. Mich. 4 Geo. 2. in Cane.
(P. g) New Trial granted, in what Cales. In Rerpe6t
of the A61:ion's bc'r,ig hard, or the Pka d'ljhoneji.
T. A i^^ ABion was brought againji the Hundred fur a Robbery, and Yer- S. P. cited
Ji\_ diiSt was given for the Deiendant, and a new Trial was granted, jr*^' ^^v^"-
2 Salk. 644. pi. 2. cited in the Cafe of Smith v. Bramlton. qI^^ ^f '"
»iinitl) l)v
JrfillTiptOn. Arg. as Trin. 1^9 1. B. R. Horton v. the Hundred of Edmonton. And Ibid. 6i, 63.
lays, that a like Cafe was in Trin. 5 W. & M. C. B,
2. In Cafe for negligently keeping his Fire, per quod the Plaintif's Hotife Ld. Raym.
■was burnt ^ the Verdict was for the Defendant; and after great Debate and ?^? '^^'''v
Conlideracion a new Trial was denied, becaule it is a hard Aftion, and £„„]„ . ^'
the Jurors are Judges of the Facl. And yet Holt Ch. J. declared he was 5 Mod. S-.
not fatisfied with that Verdift. 2 Salk. 644. pi. 3. Mich. 7 Will. 3. B.R. S C. by the
Smith V. Frampton. ^^me of
Crompton accordingly. — In delivering the Opinion of the Court. Hill. 12 Geo. 2. in the Cafe
of *iinitl) anO "JDormcr lU ^arfel)UrlI, it was obfcrved that the Hardfhip of a Cafe had been a Rca-
Ibn for retuling new Trials, and cited 2 Salk. 644.
In C.'fe for negligently keeping his Fire, a Verdidt was found for tlie Plaintiff, and a new Tri,il o-ranred.
But per Cur. had a Verdict been for the Defendant, we would hardly have granted a new Trial be-
caufe 'tis a hard Aftion. 2. Salk. 655. pi. 34. Pafch. 5 Ann B. R. Dunkly v. Wade.
3. Upon Non-ajfumpftt pleaded, the Jury found for the YY'AnxX'S., tho' In deliver--
the Defendant gave good Evidence of her Coverture ; and the Court would J^"-^ t'^e Opi
not grant a new I'rial, becaufe there was no Reafon why the Defen- Ccu t HilL
dant who lived here as a Feme fok, Ihould fee up Coverture to a\ oid the 12 Geo. 2.
Payments of her juit Debts. 2 Salk. 646. pi. 11. Hill. 8 Will. 3. B. R. »" t''^ <^afc
Deerly v. the Ducchefs of Mazarine. of S'mitl)
mix i). ^arbl)UrSJ, it was faid that the Honefty and Equity of a Cafe had been a Reafon for rcfufing
anew Trial, and cited the principal Caie.
4. Leflbr brought Trover againji the Lefjee for 'Trees cut down, yet be-
caule theLeffee did it in Trenching, and the Plaintiff' had thereby greater Ad-
vantage, tho' the Jury found for the Defendant, yet the Court would
not grant a new Trial. 2 Salk. 647. pi. 15. Paich. 10 W. 3. Starr v.
Wade.
5. In Debt upon Bond againji an Heir, he pleaded Riens per defcent, but S.C. cited
07nitting to bring the Settlement to the Trial, the VerditJ ivent againji him. ^^ Holt Ch.
And a new Trial was denied, becaufe it was an honeft Debt. Cited per Caie"of ^
Holt Ch, J. 2 Salk. 647. Mich. 10 \\\ 3. in Cafe of Wits v. Pole- i^nig b.
hampton. Jllbirron,
^ 3Salk. 5fi[.
pi. I. Mich. 10 W. 3. B. R. -S. C cited by Holt Ch. J. Holt's Rep. 706, 707. pi. 12. in Cafe of Le-
Blanc V. Har"ifon.
6 F 6. A
47^ Trial.
"Salk. ^6i. 6. A Motion was made lor a new Trial, becaufe the Defendant hav-
pl. i.ftlich. ing pleaded a Covipofition tvitb bis Creditors, had foi-^ot to carry down IVit-
lo W. q. ^^n^^ ^j. ji^g I'riai to prove the Stibfcr iters Hands. Sed per Curiam, it was
S£sx"" denied, becaufe the Debt was honelt. 2 Salk. 647. pi. 16. Mich. 10 W.
by t!ie 3. Wits V. Polehampton.
Name, of
King V. Alberton.
7. Aftion for 50 1. Penalty for fel/i//j^ half a Tint of Cherry Brandy.^
The Faft was proved upon the Trial to be done by Defendant's Wife ; but
feveral Circumftances appeared to lliew that Ihe was unwarily drawn in
lyfalfc Pretences. Ld. Ch. J. Eyre, who tried the Caufe, directed the
jury to find for the Plaintifl: ■■> but they found for Defendant contrary to
Evidence. A new Trial was denied, the Aifion being hard, and the
Cafe having been reprefented to the Commiffioncrs of Escife, who refiifcd
to direh a Profcciition. Barnes's Notes in C. B. 311. Eafter 6 Geo. 2 Phi-
lips, Qui tam v. Scullard.
(Qi §) ^^cw Trial granted in what Cafes, in Rerpe6t
of the Adion being Cr'tmhial.
And all the i.rTpHE Defendant being indiifed for Murder, and the Jury being
F"^f"d°b -1- ^sked whether they were agreed on their Verdict, they an-
inpf a^sked " fwer'd they were, and that their Foreman Ihould fay for them, who
■ivereofthe faid that the Defendant wjls guilty of Manjlaitghter, whereupon the refi
fame Opini- qj ffj^ Jury difagreed, and faid it was not their Verditl ; then Quia Vere-
on with the (jj£^y^ illud Curiae hie Incertum Vitiofum & minime fufficiens in lege
tha't'it'h^ad videbatur, the Court asked the Defendant whether he would be dif-
often been charged of this fiiid Verdict and Jury, who agreed to itj he was tried by
fodone be- another Jury upon the fame Inditlment, and Ibund Guilty, and had Judg-
fore. Ibid. ^^^^ ^^ ^^ hanged. i And. 103. 26 Eliz. Manfell's Cale.
And where 2.. A new Trial will not be granted where the Defendant is acquitted
Defendant in Criminal and Capital Cafes j but ocherwife it is where he convitled.
•was acquit- \^q^ q, Mich. 12 Car. 2. B. R. Anon,
led in an In-
fer Periurv and an Affidavit was read that one of the Witneffes wasabfent by Reafon of Sicknefi, the
Court denied to grant it. Lev. 9. cues Mich. 15 Car. 2. the King v. Bowden.
S. C. cited 3. An Information 'of 'Perjury v/^3 found for the King. A new Trial was
Arg. Ld. moved for upon feveral Affidavits, but the Court doubted if they had
Baym. 63.in pQ^^rgr ^q grant it without Confent of the King's Counfel, tho' it appeared
^mitli i). ^^ them that there was Caufe tor granting it, and it feem'd to them that
jframptoii, they could not grant it. Sid. 49. pi. 12. Mich. 13 Car. 2. B. R. Read
that it was y. Dawfon.
agreed that .
in Information of Perjury where the King is Party, a new Trial might be granted with Confent of liii!
Counfel and where he is not Party, that it might without fuch Confent ; but Mr. Northey fiid that
Mr. Siderfin is miftaken in that Cafe, for that' in the 5d W. & M. in B. R. between the jibing ftnO
S>tOn6 in an Information of Perjury, a new Trial was granted to the Defendant without fuch
Confent.
4. But in Debt by Informer, the Court agreed that they might grant
£ new Trial upon Caufe, without Confent vf the King's Ccwnfel, becaufe
the
Trial.
479
the Party has Interell. Sid, jo. pi. 12. Mich. 13 Car. 2. B. R. in Cafe
oi Read v. Dawfon.
5. Upon an Indi£lmenc of Perjury^ the WitneJIes who could prove it ^" tjie pre-
'■sere cirrefied for great Sams as they -were going to the jijjifes, and committed, "'^'"S -f^^™
fo that they could not he frefent at the 'trial ^ and thcreiipn the Defe',jdants\^l^''l\]^^^
icere acquitted i on Affidavit of this Matter, the Court was moved for a all of Opini-
new Trial, he for whofe Benefit the Perjury was being found guilty of ?"> accoid-
contriving this Arrelt ; but all the Court except Windham J. faid they i!]?n'°l'?'^
could not grant a new Trial in Perjury, becaule the Record of the Ac- takeiTher^
quittal was betbre them i and they faid that all the Jullices of Serjeant's by Wind-
Inn in Fleet-ftreet were of the fame Opinion. But VV'indham J. faid that ham J. See
the Books are only that the Life of a Man is not to be put in Jeopardy ^'d. 149. pi.
twice for one and the iame Ofience ; but this is a Crime which doth not Le\, ' j^T '
reach Life, and therefore he was for extending Juftice, that the Inno- The Siting
cent might not be punilh'd for the Guilty, efpecially when the Means t*' &>ir
by which the Party efcapcd Juftice is a greater Crime than the firft. 3!ol)" ^acfe-
Sid. i;3- Pl- 3- Mich. IS Car. 2. B. R. The King v. Fenwick and n° w THal^
•H-Olt. . was denied,
becau'eina
Ciiminal Cafe. In a Report of this Cafe communicated to me fi-om a MS. of Ld Cli. J Kelyng,
he fays, tiiat Hyde Ch. J. Twifden, and himfelf agreed, that no Trial ought to be where the Party
was once acquitted for any Crime that concerns Life, or Member, or v/hich would make the Party in-
famous; and fays the Mifchief might be very great if the Party fiiould be put to a new Trial, for rhen
Iiis Adverlary would fee where he fail'd, and might ufe ill means to prove what he fiil'd in before ; and
that upon Search, no Precedent was found that ever any new Trial was granted in fuch Cafe except
two in the Time of the late Troubles, which his Brother Twifden faid were by Conlent, and that the
Court did not regard thofe Precedents as differing from all in good Times.
6. The Court will not fuffer any new Trial /;; Perjury, altho' the Par- ^- C- cited
ties do confent^ after acquittal, nor in an Information againlt the Defendant ^^^ 1"
for Subornation of Witnejfes to prevent the Evidence for the King, will fuffer i\iiVh :o
a new Trial now he is found Guilty ; but they committed him to Pri- Car. :.
fon for the prefent. i Keb. 638. pl.V Hill. 15 & 16 Car. 2. B. R. Pri- B- «■ ''^
mate V. Jackfon. ^ ^^
Marchant.
7. In an Information of Perjury, the Defendant "X'as acquitted. It was
fuggefted for a new Trial, that the Catife "-juas appointed for trial at Ear in
Mtch. term, and then the Defendant put it off for Want of Notice, and by
Reafon of Privilege of Sir H. North, in ichofe Cauf'e the Perjury was afftgnii, ^ .
he being a Parliamtiit Man, and yet as fcon as ths * Defendant was gone out p r. ';'„''',
of town, the f Prcfccutor brought the Caufe to trial by Provifo, and fo was ^ (j^.- j^ '
acquitted of the Perjury j but the Court denied it becaufe the Privilege Defendant,
was in civil Caufes, and the Ch. Juftice never tries any Criminal Caufe
4: till Notice given to the Profecutor fvvorn, but the Court order d the t Till 0.ith
Pradtce to he examined. 2 Keb. 179, iSo. pl. 2. Pafch. 19 Car. 2. B. R. m.iceDf Ko-
The K i ng and Haughton v. Walter. [J^^f "^\l\^^ '"^
8. Williams oppoled new Trial in Debt on the Statute for felling Wme cmov.
without Licence, being a Criminal Matter, which being a popular Aftion,
differs not from an Information. But per Cur. the Verdict being Special
and not drawn up, the Court would not regard it, but gave new Trial,
the Jury being headftrong, and a^atnfi all Evidence. 2 Keb. 226. pl. 84.
Pafch. 19 Car. 2. B. R. The King v.
9. A new Trial was pray'd, on Certificate ff the yz/rt'^^ before whom
the Perjury was tried, that the Verdifi was againfi the E.vidence. Sed
non allocatur ; but this is Caufe of Mitigation of the Fine, but there
can be no Trial de novo for, or againft, the King. 2 Keb. 403. pl. 14.
•Mich. 20 Car. 2, B. R. The King v. Marchant.
10. IndiB-
4^o
Trial.
lo. Iiidiofment of Extortion hc'm^ found ior the Defendants, againfi the
Dire^ion oj the Judge, a new Trial was mov'd for, but denied. cKeb.
404. pi. 18. Mich. 20 Cur. 2. B. R. The King v. Payton & , . .
T.utHill. ; II. A new Trial was never granted in Perjury; ocherwife in iJ^srrc-
&4jac. 2. ^^,, . Per Cur. Cumb. 58. Trin. 3jac. B. R. Anon.
B. R. a new -^ _ ,
Trial was granted in Perjury, m the fudges I>:f'oYmat:on that it was a malidciis Prcfeciition, but it iTiall
rot be ^''^ritcd without I'uch Information, iinlcfs the Attorney General, or King's Counfel confent to
it. Comb. 75. Hill. ; & 4 Jac. 2. B. R. Anon.
P. was indicted and comilied of Per jar)-, and now moved to fet afide the faid Conviftion, it appearing
upon Affidavit that he could not be ready to male any Defeme at the Trial ; and upon this Motion the Ver-
dict was (it afide upon Payment of Colts, and etitring into a Rule to try it for:hwi:h. 8 Mod. 289. Trin.
10 Geo. 1725. the King v. Purfell.
12 Mod 8. 12. Information for an Jffatilt and Riot ; and a Verdi ff for the Defen-
S.C. that (i.ijjts that they were Not guilty. A new Trial was mov'd for, upon
beinlo'fly Affidavits of the FacJ, and that the Judges Dtrea ions were_ to find the Af-
againit Evi- fault ; which was oppofed, becaufe in a criminal Proceeding, and noCor-
dcnce, but niptiou or Pratficejbeiiicd; and a new Trial was denied, for that the
no Fraud a Qq^^^ ^^^^ there could be no Precedent ihewn for it in Cafe of Acquittal.
wa^denTed. Show. 336. Mich. 3 W. & M. The King V. Davis & al.
. s c.
cited Ld. Raym. Rep. 65. in Cafe of Smith v. Frampton accordingly.
Garth. 407. 1 3. The Defendant was indicted for a Libel, and acquitted j and upon
S. C. but a Motion lor a new Trial, it was denied. It is never done in Criminal
.& P. of new Q^jgg \yhere the Delcndants are acquitted, unlcfs fome Fraud or Trtck is
not'aope"" proved, but never yet has been done merely upon the Reafon that the
. Lord Verdict was againll Evidence, 2 Salk. 646. pi. 13. Pafch. 9 W. 3. B. R.
Raym. Rep. The King V. Bear.
414. s. c
but S. P. does not appear.
14. The Attorney-General moved for a new Trial at Bar for the King,
upon an Indiftmen: for Perjury ; but it was denied, becaufe the King is
not tnterejled in the Indiftment, ocherwife than m Point of common
Juftice. 3 Salk. 362. pi. 4. Anon.
15. The Court does not grant new Trials where the Verdi£l: is for the
Defendant in Penal ACiions, as Perjury, Forcible Entry &c. Arg. and not
denied. Ld. Raym. Rep. 63. in Cafe of Smith v. Frampton.
16. In an Indictment lor keeping a common Ba-wdy-hotife, a new Trial
was granted, where the Acquittal was by Surprife upon the Profeciitor for
Want of Notice, it being brought on by Defendant. 12 Mod. 9. cites
Mich. 3 Ann. TheQiieenv. Coke.
17. Upon an Information in Nature of a ^uo Warranto againft the De-
fendant, for cxercijing the Office of a Mayor of Shafisbury, the Jury gave
a VerdiCf for Defendant ; and upon a Motion for a new Trial, Baron
Price, who tried the Caufe, was fpoke with, and certified, that in his
Opinion theVerdici i<cas againji Eifdmcc. Whereupon it was debated
whether a new Trial ought to be granted in Cafe of an Information,
which it "Was inftjied was a criminal Proceeding, the Court was equally
divided, Parker then Ch. J. and Powis againit a new Trial, Eyre and
Pratt now Ch. J. contra ; whereupon the reft of the Judges were ad-
vifed with, and Prat this Term acquainted the Court that they alfo were
equally divided, fo no new Trial granted. MS. Rep. Mich. 5 Geo.
B. R, The King v. Bennet.
(R. g) New
Trial. ^8 1
(R. g) New Trial granted, in what Cafes. u4ft6r
Defence.
I. 'l>>i an KSiion oi' Debt for Refit, the Plaintiff declared in Michael-'
J[ mas Term l;ilt, and laid the Demife to be Anno primo Jacobi fe-
cundi Regis. The JJetendant pleaded Nil hab. in Tenementis, and the
PlaintitFs Attorney deliver'd a Copy of the IJfne, where the Demife was
laid Anno prituo Regis nunc, and fo the Niji Prius Roll was at firji. But
it was obferv'd that the Plaintilf-'s Attorney had amended it, but gave no
N'otice thereof to the Defendant's Attorney, nor delivered him a new Copy
of the Ifjtte, andfb went to Trial, which proceeded, the Nili Prius Koll
being right j and a Verdict was tbund tor the Plaintiff. And it was
mov'd that there fliould be a new Trial granted ; for the Defendant was
furpris'd to find the Kecord right, when they had a wrong Copy of the
Ilfue. But it appearing to the Court, that the Defendant notwithjiand-
ing proceeded in his Defence, and the Verdift was altera long Evidence,
the Court would not let it alide, but order'd the Plaintiffs Attorney to
attend lor the undue Practice in making an Amendment in fuch Manner.
2 Vent. 73. Mich, i \V. & M. in C. B. Anon.
2. If the Defendant appears, znd makes Defence, he fhall never have a
new Trial iot Want of due Notice. 2 Salk. 646. pi. 12. Hill. 8 W. 3.
B. R. Thermolinv. Cole.
3. In Aftion for W'ords, a Rule was for the Sheriff to return a Special
Jury, who, notwithftanding the Rule had been lerv'd upon him, return'' d
only a common Jury. After Trial this was mov'd by Delendant lor anew
Trial, which was denied, becaufe he had made a Defence; for fince if the
Verdift had gone for him, he would have had the Advantage of it, it is
fit he lliould fubmit to it, that it is gone againft him ; Secus if he had
not made a Defence. 12 Mod. 567. Mich. 13 \V". 3. Anon.
4. Gould. J. faid no Cafe could be inltanc'd where u Verdift was fet
allde, where there had been a Defence and full Evidence, except it were -^"'' where
for Matters difcovefd after the trial. 12 Mod. 584. Mich. 13 \V^ 3. in ]jJtZ^^f
Cafe of Watfon v. Sutton. I)efe/ce,\nd
thereof a^oes to Trial, and puts the Plaintiff to the Charge of proving his IlTu?, he Hiall never after, in
rt^-ftSi of that Matter, iiave a new Trial. 12 Mod. 584. ISlich. 13 W. ;. in Cafe of Wacfonv,
iiutton.
(S. g) New Trial. Granted, in what Cafes, ylgahijl
one Defendant^ ojohere there are more.
I. \ Sfault and Battery againft A. B. and C. Upon Iffue join'd on
Jf\^ Son Aljdiilc demefnc, B. and C. were acquitted, and A. Jound
Guilty ; and it was certified by the Judge to be againft Evidence. On Mo-
tion for a new Trial, the Court faid it could not be granted, except againft
all j Whereupon the Attorney for the Defendants confented for the two
Defendants which were acquitted, that they fhould undergo a new
Trial, and quit the Colls which they might have from the Plainciff on
their Acquittal, and A. confented to pay the Plaincilf 's Colts ; and io a
6G new
482
Trial.
new Trial was granted againft all,
V. Spark. Coleman and Hunr.
12 Mod. 275. Hill. II W. 3. Bond
2. In Trefpafs and Falfc hnprifonment againft feveral Defendants, the
Plaintiff had a Verdict; and afterwards it was mov'd tor a new Trial,
becaufe, as to one of the Defendants, the Verdi^ was againft Evidence. Sed
per Curiam, This cannot be done ; for the Court cannot fet alide the
Verdifct as to Tome, and not as to others ; and to grant a new Trial as
to all, would be a Prejudice to thofe who are duly acquitted. 3 Salk.
362. pi. 3. Mich. 5 Ann. B. R. Sir Ch. Berrington's Cafe &al.
(T. g) New Trial granted for what Caufes. M'ljcle'
meanors of, or Ohje^'ious as to the Jury.
Cro.E. 1S9.
Jiletcalf V.
Dean.
Cro. E. 411.
Vicary v.
Farthing.
The Court
denied to
grant a new
Trial, upon
Affidavit
that the
ywry tt'enf
by Votes,
tho' Ser-
jeant Strode
faid it had
been granted
in the like
Cafe. Comb.
14. Pafch.
2 Jac. 2.
B. R. Anon.
Sid. 411.
pi. 7. S. C.
Pafch. 19
Car, 2. B. R.
but S. P.
does not
appear.
I. TT was moved for a new Trial, I'hat 2 of the Jurors were of Kin to
\^ the Plaintiff. Roll Ch. J. faid, It is not now material whether
they be of Kin or no; for the Defendant Ihould have taken Advantage
of that upon his Challenge at the Trial. Styl. loo. Pafch. 24 Car. Ay-
lett V. Stellam.
2. The Court was moved upon an Affidavit, That one of the Jurors
that gave the Verdift againll the Plaintiff, had a Suit in Law depending
at that Time with the Plaintiff, and therefore that the Trial was not in-
different, and therefore it was pray'd there might be a new Trial. But
the Court fiid it could not be, and ask'd the Party why he did not chal-
lenge the Juror for this Caule at the Trial, for want of which he had
now lolt that Advantage. Styl. 129. Mich. 24 Car. Loveday's
Cafe.
3. In Cafe oi Misbehaviour in the Country, (as by Plaintiff's delivering
Papers &c. to the Jurors after they are gone from the Bar) no Notice
will be taken of it upon Affidavits, unlefs it be indorfed upon the Poftea ;
per Twifdeu J. Sid. 235. and faid it is fo held. Cro.E. 189. pi. 17,
411. 626.
4. In Cafe for mifuling a Horfe, a new Trial was pray'd, becaule the
Jurors being divided 6 and 6, they agreed by Lot, putting 2 Six-pences into
a Hat, and that which the Bailiff took, that way the Verditi ftoould go,
which was for the I-'laintiff', and 2d. Damages; but the Court denied it,
becaufe it appear'd only by pumping a Juryman, who confefs'd all ; but
being againlt himfelf, it was not much regarded. Alfo the Court can-
not grant new 'trial without punijhing the Jury, which cannot be by this
Confeflion againft themfelves. And by Windham, This is as good a way
of Decilion as by the Itrongefl Body, which is the ufual way, and is
fuitable in fuch Cafes to the Law of God. Twilden doubted it would
be of ill Example ; and in %\l pIjlKp SlCtOU'lS Cafe, on fuch Verdift,
on Fillip of Counter, a new Trial was granted, but here it was denied.
I Keb. Si I. pi. 87. Mich. 16 Car. 2. B. R. Prior v. Powers.
5. Foreman of the Jury was Brothcr-in-Law of one of the Creditors of Sir
A. B. about whom the Quellion was If Bankrupt or not. Moreton and
Rainstbrd held, that this is no fufficient Realbn for a new Trial, but
Keeling contra. Vent. 30. Pafch. 21 Car. 2. B. R. Sir R. Cotton v.
Daintry.
6. After Verdict the Plaintiff paid the Jury 4/. a Man, whereas the
Rule of Court is, that they coming out of Hertfordfloire Ihall have but
2.0s. per Man. Kelyng and Twifden held, that a new Trial fhould be
granted ; but Moreton and Rainsibrd contra. Vent. 30. Pafch 21 Car.
a. B. R. Cotton v. Daintry.
7. Mif-
Trial. ^Sc^
7. Aiifdemeanor of a Coroner tn returning a Jury is no Ground in Equi- If the She-
ty lor a new Trial j buc is examinable in the Court where the Aftion ''-^ *'«'"'■"«
was brought, and not ellevvhere ; per Ld. Keeper Bridgman. 3 Ch. Rep. ^J ""^^ '^°""
42. 20 May, 22 Car. 2. Barker v. Eaft. Rule "f*
Courr, or
commits any fuch Irregularity to the Prejudice of either Party, it may be a good Caufe to fet alide the Ver-
diA. II Mod. J. pi. I. Pillh. I Ann. B. R. Anon.
8. Upon a Motion for a new Trial it appear'd that the Solicitor for the
Plaintilf(who alio was an Attorney) had wrote 2 Letters to 2 of the Jury
before the Trial, iraportuning them to appear^ and Jetting forth the Hard-
Jhips that his Client had fujferd in the Caufe, and how he had Verdifts
f jr his Title. The Court let afide the Trial for this Caufe, and commit-
ted the Solicitor to the Fleet for this Mifdemeanor, being embracing of
a Jury; and before his Difcharge made him pay 10 1. to the Party,
towards the Charges of the Trial. 2 Vent. 173. Pafch. 2 VV". & M. in
C. B. Anon.
9. A new Trial was granted upon Affidavit, that the Foreman declared
the Plaintiff Jhould never have a Verdi ff, whatever Wttneffes he produced.
2 Salk. 645. pi. 8. Mich. 8 W. 3. B. R. Dent v. Hertford Hundred.
10. In Kjetlment, after a Trial at Bar a new Trial was moved for 2 salk (??o
upon the Merits of the Caufe, and alfo on Affidavits that feveral Wit- pi. 27. fi\\i
nelfes abfented themfclves in Holland^ by reafon of a Report fpread abroad toicft to.
there, that the Witnejfcs already come over were laid by the Heels ; but it ^rofurnor,
did not appear that the Plamtif did fpread it, or occajion'd the Spreading fn^v'^'bu"^'
of it. And tho' the Court was dillatislied with the Verdift, upon feve- fays, that"^
ral Reafons, one whereof was that the Trial lafted above 16 Hours, the Denij
and abundance of Evidence given on both Sides, yet they agreed on their ~ F'^*^ "^"^
Verdia in half an Hour's time ; yet they would not grant a new Trial, ao-'ainn^'h^
7 Mod. 156, I Ann. B. R. Grovenor v. Fenwick. Ocinion of
the Ch. J. as it feemed.
1 1. Upon an IlTue join'd, in an Action between my Lady C. H. In this Cafe
Daughter of the Duke of Leeds, and the Filhcrmen of Milton, a Letter ^"^^«' J-
was written by the Duke of Leeds to every particular Juryman^ wherein he m"*'h^'7'
d fires their jppearance at the Trial, and concludes his Letter in thefe Cafe inC.B
Words, viz.. Which IJhalltake as a great Obligation, particularly from your- where a
Jelf, andfhall be glad of an Occafton tofhevo how much 1 am. Sir, your Hum- ^'''^''g^f
bte Servant. Upon which tlie Defendant moved for a new Trial. Re- '^"''. '" "
folved per Cur. that no new Trial Ihould be granted 3 becaufe the De- cln[tIlTthat
fendant having Notice of fuch a Letter long before the Trial, might the Plaintiff
have moved tor a Trial at Bar, which the other Side had oifer'd to con- '^'■" ^ A;^*^
fent to. But taking the Letter, as it is in itlclf, 'tis of dangerous Con- ^j^"^",' ^'"'
fequence ; for it is a Temptation to the Jury to be partial, and takes ofFnVw'^Trfal
their Indiflerency. 11 Mod. in. pi. 7. Pafch. 6 Ann. B. R. 118, 119. wasgramed,
pi. 4. Trin. 6 Ann. B, R. Lady Herbert v. Shaw. ai^i the
^ Writer
taken up and committed.
12. A Motion for a new Trial, upon an Jffidavit of 1 1 of the Jury that
they had agreed on a Ferdiif for the Plaintiff, and 5 s. Damages, but by
Mtjlake the Foreman gave a Verdi ff for the Dejendant ; a new Trial was
granted upon Payment of Cofts. Rep. of Pra6t. in C. B. 66. Mich. 4
Geo. 2. Baker v. Miles.
13. After aVerdi£t for the Plaintiff a new Trial was granted, be-
caufe one Hooper, who was challenged upon the principal Pannel, and the
Challenge allow' d, was afterwards fworn upon the Jury as a Talefman, by the
Name of Hook. Although it was inlifled upon bv the Council for the
Plaintiif, that the Yerdift was given to the Satiifuftion of Denton J.
who
484. Trial.
who cried the Caufe. 2 Ld. Raym. Rep. 1410. Mich. 12 Geo. Parker
V. Thornton.
(U. g) New Trial granted for what Caufes. JFitrnffis
hhg abfent, or being of ill Fame,
I. ^^TOTA, on Motion for new Trial for want of Witnefles material
_|^^^ to prove the Ciijlom of the Manor of E. to cut 'trees, the Court re-
fuled it, being of -Things lying in ptibiick Notice of the Country. But if it
were a Trial on a Deed, or luch Particular, wherein any material Wit-
nefs is wanting, they will grant a new Trial ; per Curiam, i Keb. 485.
pi. 21. Pafch. 15 Car. 2. B. R, Anon.
A new Trial 2. Verdift for Defendant. Plaintiff' fuggefied, for a new Trial, that 3
ought not pf j^jg material }Vitne£es, which were fubp^na'd, did not appear, whereby
cd forewarn" he lail'd in his Proof But the Court denied it ; lor if he had found his
of Evidence, V^'itnelies had been abfent, he might have been Nonfuit ; and if this were
■which the admitted, every Verditt might be fetafide; for it would be but the
Party might plaintiff's leaving a VVitnels or 2 at home, and then fuggelt the VV^ant
have had at ^^ ^^^^^ ^-^^ q^^^^ ^^^ ^ ^^^ Txh\. Freem. Rep. 80. pi. 89. Pafch. 167?.
had not ; Paradile v. Shelley.
but if he
can trove that Enieaiotin ha^e been ufed, hit prevented hyfome unforeseen Jaideiif, as Sicknefs &C. it may
be good Caufe of new Trial. 6 Mod. 22. Alich. 2 Ann. Warren v. Fuz.
3. A new Trial was mov'd, becaufe the Caufe came on at 7 in the Morn-
ing, and an old Witnefs could not rife to be there Ttnie enough. But it was
denied, unlefs he would malce Affidavit of what he knew, and would
anfwer, fo as the Court might judge of it, and how it was material. 2
Salk. 645. pi. 7. Mich. 8 W. 3. C. B. in an Anonymous Cafe, cites it
as one Coppin's Cafe.
_ „ > d 2 4- li' ^ VVltnefs who prov'd a Bond at a Trial, which is fuggefted to
Vern.4''7. have been ibrg'd, had been convitled oi Perjury, or the Party oi For-
in Cafe 'of gery, it is good Caufe lor a new Trial. 2 Vcrn. 378. pi. 354. Trin.
Tovey V. i-yoo, Tilly V. Wharton.
Young. ^ Motion for a new Trial, the Cafe was in a Battery. It appeared
that the Plaintiff had a material Witncfs that he knew to be ftck, and yet
•accnt on with the Trial ; whereas he Ihould have paid Colls, and put off
the Trial. Holt doubted if the Court could grant a new Trial. Powell
faid, it being in the Cafe of Battery, which might affeft a Man all his
Life, he was inclinable to grant a new Trial ; but it appearing he might
have had another IVitnefs to the Jame Purpofe, they were unwilling to
grant one. Adjourn'd. 11 Mod. 52. Pafch. 4 Ann. B. R. Cockcroft v.
JSmith.
6. It was adjudg'd to be good Caufe for granting a new Trial, that
the Defendant did arreil and imprifon one of the Plaintiffs Witnefjes till the
Trial was over. 11 Mod. 141. pi. 10. Mich. 6 Ann. B. R. Davies v.
Daveril.
7. New Trial denied, the Onus Prohandi lying upon the other Side, and
the WitneJJes being Seafaring Men. MS. Tab. Tit. Trial, pi. 3. cites
Dec. I. 1718. India Company v. Ekins.
8. Eje£lment. Defendant mov'd to let afide the Verdift, upon Affi-
davits that fome material IFitneJJes for him abfented them/elves, and did
not
Trial.
not appear on the Trial. The Court rejected the Affidavits, as immate-
rial. Barnes's Notes inC. B. 317. Mich. 8 Geo. 2. Letgoe v. Pitt.
485
(W. g) New Trial granted for what Caufes. Judges not
admltthig; Evidence.
^s
I. T F a Judge at a Trial does erroneotijly over-rule a Matter ofier'd in
X Evidence, the regular VV^ay is to tender a Bill of Exception ; yet
if upon luch Matter the Party will fuifer the Trial to go on againfl him,
it is good Caufe of a new Tiial. Per Cur. 7 Mod. 53. Mich, i Ann.
B. R. Anon.
z. Good Caufe of new Trial, where the Judge who tried the Caufe S. P. - Mod.
denied to admit that for Evidence which was legal Evidence. Per Cur. 6 ^\ ^^r'^d
Mod. 242. Mich. 3 Ann. B. R. Anon. Thomkins '
V. Hill.
3. It is good Caufe to grant a new Trial, that the Judge who tried the ; Mod 64.
Caufe cver-rul'd good Evidence, or admitted tha.t which was no Evidence, Mich, i Ann.
and that tho' the other Party has a Remedy by Bill of Exceptions. 6 P- H°if'
Mod. 307. The Queen v. the Inhabitants of the County of Wilts.
(X. g) New Trial granted for what Cauies. New Evi-
dence or Matter dijcoverd after the former Trial.
1. \ Recovery in a Trial at Bar, was fet afide on new Matter dilcover'd,
_£%_ and altirm'd on Rehearing. Arg. Chan. Prec. 194. in Cafe of
Tovey V. Young, cites 11 Nov. 15 Car. 2. H^lUnpijrCPgi Xt. IdZ^tOtl.
But lid Keeper W^right taking Notice of this Cafe cited, "obferv'd tnat it
does not appear what that new Matter was.
2. An A6lion was brought againll: an j4dminiJlrator, who pleaded Plene This Cure
Mminifiravit, and the Trial was brought down by Provilb j and at the '■^^'^.'7 ii\ovt-
Trial the Defendant being put to prove a Sum of $0 I. paid before the 1^ lain- \ '^s'^r^V
tijj's Original, which not being provided to do, a Verdul ivas againjl TovVy v.
htm ; yet after folding the Note, whereby his Witnefs was enabled to Young, 2
fwear that Matter, on a Bill brought here, a new Trial was granted. '^e''n-45"-
Arg. Chan. Prec. 193. in Cafe of Tovey v. Young, cites it as 11 p'eb. a nnt'eiia\'^^'^
28 Car. 2. Hennell v. Kennell. Witnef/was
abfent ac the
Trial, and a Voucher fince difcover'd to make out the Payment of the Sum of 50 1, but cites it as the
Cafe ot i|;rnbillanp(SraIiam b. i^OllanD. Abr. £qu. Cafes :;7-. pi. 2. S. C. in the very fame
Words, whence it is worthy of Obfervation, that the Abridgment of Equity Cafes was publifh'd a
"Year before the Book call'd Precedents in Chancei-y, whence it was taken by the real Author of that
Abridgment, but not then come to the Hands of the Publiflier.
3. Upon a Motion to ftay Proceedings on a Bail-bond, Defendant pro-
duc'd a Releafe under Seal of the Plaintiff; and thereupon the Plain-
tilFs Attorney fufpecting it,confented to deliver a Declaration forthwith,
and that the Defendant ihould pkad the Rcleaft, and i'o try it; which
6 H bfiilo;
Trial.
being done, the PLiiiititf' was aonjtiited at the Trial j but ajter it being
difcover'd to be a notorious Forgery^ a Motion was made tor a new Trial.
But the Court faid they could make no Rule in the Cafe, the Plaintiff
beincf out of Court upon the Nonfuiti but lincfe the Pvule to ftay Pro-
ceedings upon the Bail-bond was not abfolute, but till the Court ihould
further direft, the Court laid that was Hill before them, and therefore
let the Rule be, that they ihew Caufe why Proceedings Ihould not go on.
Quod nota. 7 Mod. 54. Mich, i Ann. B. R. Hyon v. Ballard.
4. If a Party have Caufe of Challenge, and knows of it fime enough before .1
the 'Trial^ if he does not challenge he Ihall not have a new Trial. Con- \
tra if he has not timely Notice of it. Per Cur. 11 Mod. 119. in Cafe
of Lady Herbert V. Shaw. ,
5. New Ttial of an IlTue denied, upon Evidence difcover'd Jince the
'Trial, tho' it was urg'd for the new Trial, that one Trial ought not to
conclude, efpecially where a Freehold is in Queftion. MS. Tab. Tit.
Trial-neWj pi. 2. cites Jan. 21. 17 17. Bilhop of Durham v. Liddell.
6. Defendant fuggerted for a new Trial his having made 2.MiJiake up-
on the Trial of the llfue m a Point of Evidence, which would have en-
counter'd the Evidence given againfi: him, and that the Miftake was dif-
cover'd Jince the Trial. But the Court difallow'd the Motion. Gib. 46.
Hill. 2 Geo. 2. B.R. Anon.
(Y. g) New Trial granted for what Caules. Damages
being exceJJJvc, or too fmall.
t. T N Trover Sec. for all the Goods in a Houfe "which the Plaintiff pof-
J[ fefs'd, exceffive Damages being given, it was moved for a new Trials
paying full Cujls, and giving a Judgment for Security, tho' he has Rem.edy
by Attaint ; and it was granted (Ni]i) without Certificate of the Judge be-
fore whom the Caufe was tried. 1 Keb. 133. pi. 59. Mich. 13 Car. 2.
B. R. Rawlins v. Marfh.
2. Cafe by a Cuftom-houfe OfHcer, for faying that the Plaintiff fet his
Hand to the Petition to bring the King to Jtijiice. Afcer a V'erdifct for the
Plaintiff, and 700 /. Damages, it was moved for a new 'I'rial, upon Ac-
count of the exceffive Damages ; and becaufe the P I aintiff'^ s Attorney [aid y
bejore the Trial, the fury were their Friends, and underjiood their Buftnefs.
But the new Trial was denied ; and Windham J. faid, If the Damages
were excelfive an Attaint lies, and the Words of the Attorney fliall not
injure his Client, unlefsexprels Embracery is proved, i Lev. 97. Pafch.
15 Car. 2. Roe v. Hawkes.
3. Cafe tor Words fpoken by the Defendant, Sheriff of London, to the
Plaintiff, who was a fubftantial Citizen, (viz..) Thou art a beggarly
Rafcal ; go pay thy Debts. The Jury gave 800 1. Damages ^ upon
which a new Trial was moved for, 'As, jor exceffive Damages. Eutt he Judge,
before whom the Caufe was tried, reporting that the Plaintiff gave the
Defendant no Provocation, and that he believed the Jury gave a Verdiif ac-
cording to their Cc}f-:c/ices, Judgment was given for the Plaintiff 2
Jones 200. Hill 33 &: 34 Car. 2. Bolcfworth v. Pilkington.
4. On a Motion for a new Trial for Exce/fivenefs of Damages, it was
faid by Holt Ch. J. that the Jury are to try Caufes with the Affiltance of
the Judges, and ought to give Reafons when leq^aired, that if they go
upon any Miflake they may be let right ; and lor their noc doing lo,
and for Excellivenels of Damages, a new Trial was granted. Comb.
357. Hill. 8 W. 3. B. R. Ann Alh v. Lady Alh.
S' In
Trial.
487
5. In an A&ion ot the Cafe, jcr faying of a Wim-Merchant that he fold^^ i" an
hy falfc Meafurc, the Damages given ^txt only 203. and upon this ^-^^'"^"t™
new Trial 'xas moved for ^ upon Account of the SmaUnefs of the Vamages-^ If \?clt7ahtm
but denied by the Court. And the Ch. J. faid, that where the Damages 'Mcpfatum^
are exceOive the Court has fometimes interler'd j in feme Inftances they fui- thefe_
have even increafed them themfelves, and that in violent B.tteries, tho' ^oi'^is viz.
formerly only in Mayhems; but Verdids have never been fet alide lor my~'Loi-dr'*
the Damages being too fmall. To which the rell of the Court agreed. G— r, he
2 Barnard. Rep. in B. R. 177. Mich. 6 Geo. 2. Hayward v. Newton, »s a Rogue,
and all on
liis Side are P.ogues ; if the Mob would ftand by me, I would drive them all, or lay the Town in Heaps.
The Words were proved upon the Trial, notwithftandint^ which the Jury found only \zA. Damages.
On Motion for a new Trial, by reafon of the Smailncfs of the Damages, it v/as denied, there being no
Precedent «f this Kind, tho' it has been frequently granted for excefiive Damages. Barnes's Notes in
C. B. 527, ;28. Trin. 15 Geo. 2. Ld. G r v. Heath. Rep. of Praft. in C. B. 104 Gov/er v.
Heath, accordingly.
Tho' the common Rule holds, 'fhat no new 7'rial or new Writ of Inquiiy fliall be for fc6 fmall Da-
mages, yet zvLere there it aContrivaitce it differs. 2 Salk. 647 . pi. 17. Mich. 10 W. 3. B. R. Anon.
in
(Z. g) Nevv Trial granted for what Caufe. VerdiB
beino; affahnl Evidence. And in what Cafes ths
Judge's Certificate is necellary.
1. TF the Court believes that the Jury ^^w their Verdi ff againji f^wV Holt Ch. J.
j[ DireBion given them, the Court may grant a new Trial ; per Glyn *-^"^> ^^^^ '"
Ch. J. Stile 462. xMich. 1655. Wood V. Gunfton. ,!ew tL'i
■we ought
not altogether to rely on the Certificate of the JuAge who tried the Ciufe, but upon the Reafon of the
1bi7:g; and that fometimes he would grant a new Trial againll the Certilicate of a Judge, if in his
Judgment and Confcience the Matter deferved a Re-examiuation. 12 Mod. 336. Mich. 11 VY. 3,
Anon.
2. On Motion for a new Trial, fuggelting that the Verdift was
againll Evidence. Vatighan Ch. J. who tried the Caufe, refiifed to certi-
fy ; but faid Ore tcnus to the Judges cf this Court, that it was againfi
E'vtde/ice. And per Curiam, there ought to be a Certificate, which is as
much a Record here, as the Affidavits among which it is filed ; and the
Motion was denied. 3 Keb. 351, 352. pi. 11. Mich. 26 Car. 2. B. R.
Sc. Bar v. Williams,
3. It was moved lor a new Trial, on Parol Jlffirm.ition of Hale Ch. J.
to Rainsford J. that the Trial zvas againji Evidence. Twilden and Wild
refufed to grant it, the Jury being Judges o):^ the FaQ: ; for tho' Verdi£t
be againll Evidence, it is not to be fet aiide without a new Law. Con-
tra by Rainsford, who faid that Juries arc wilful enough ; and denying
new Trial here, v/ill but fend Parties into the Chancery. Yet new
Trial was denied. 3 Keb. .398. pi. 100. Mich. 26 Car. 2. B. R. Mar-
tyn v. Jackfon.
4. The ReafoH of granting ne'-jo Trials upon Verdi ffs againji Evidence at
the Afftfes^ is becaufe they are fubordinate Trials appointed by >\'ell;m.
2. cap. 30. ubi de paucis articulis & facilis ell Examinatio. 2 Salk.
648. pi. 20. Hill. II \V^. 3. B. R. in Argent and Darrel's Cafe.
5. The Court declared they would not xccc'ue an Account of aTrialSoxht'Ld.
by AJfdavits, it having been done on Affidavits but very improperly 3 Chancelloj-
tor it is onlv hearing on one Side ; and that for the future they would not '^^'^'■"•E^d he
-It-i • I 1 /-^ r / 1 I J 1 L j-ii- -r would never
2;ran!: new Trial withoui: Certihcate oi the Judge, that he vras diiiatif- „
ficd '^
488
Irial.
Trial with- £ed with the Verdift. Select Cafes in Chan, in Ld. King's Time. 13
out the PaiLh. II Geo. i. in Curia Cane. Hill v. Hill.
nioir; and that he fliould have greater Regard to the Judge and Jury than to Affidavits, on which he
ftid he would never examine inio the Trial. Sel. Cafes in Chan in Ld. King's Time, 20. Trin. 11
Geo. I . Soam v. Danvers.
But February 16. 1 726. a nev/ Trial was directed, altho' there was noJiidireiCertificale, >wr no Evi-
dence hut tvhat lias in the P^trties Power at the lime of the f.rfi Trial ; but one Part of the Order dircded
that the former Verdict fhould not be given in Evidence upon the nev/ Trial. Ret'erfcd. I^ISS. Tab.
Tit. Trial-New, pi. 6. cites Ployer v. johnlbn.
6. Bill by the Devifee of the Land againft the Heir at Law, to efla-
bliili the Will of theTeftator; and upon the Hearing, the IJJi^ Devl~
favit vcl non was direfled to be tried at Law; and afterwards upon the
Trial there was a VtrdtB for the Will. And now Defendant's Council
move for a new Trial, without any Certificate from the J udge, or Affi-
davit relating to the Trial ; but iuftfied it was a doubtful Cale, and Evi-
dence both Ways, and that by the Rule of the Court the Inheritance of an
Heir at La'-jj pall not he finally bound^ and concluded by one 'trial. King
C. faid. He knew no fuch Rule of the Court, and he faw no Reafon for
it, and denied the Motion ; but gave the Defendant leave to apply to the
Judge, and if he was not iatisfied with the Verdict, they might move it
again upon fuch Certificate ; per King C. MS. Rep. Mich. 4 Geo. 2,
in Cane. Durant v. Durant.
7. In Eje^ment the Ch. J. certified. That the Premiffes in ^aejlion
•were Cofyh'oJd^ and both Parties clainid under one C. -who had made zfe~Ji-
ral Surrenders ; that the ^ufUon upon the Trial isoas.^ Whether C. was
Compos mentis at the time of the Surrender under which Defendant claimed ;
that nothing ivas obje^ed to C.'s Infanity, till 12 J'eais afer fuch Surrender ;
and that the Ch. J. was of Opinion the Strength of the Evidence was with
Defendant. The Court order'd a new Trial, upon Payment of Colls.
Barnes's Notes in C. B. 317. Mich. 8 Geo. 2. Letgoe, upon the Demife
of Wheeler v. Pitt.
(A. h) New Trial granted for what Caufe. Other
Matters i?i General.
S. P. Br. x.'T~\EBt again ft Executors, who pleaded Riens enter Mains, and
Enqueil-, pL j^ found that they had Enter Mains by Nili Prius, and did not fay to
4 cues . ^,y^,j^ Value, and a new Iffue was join'd more fpecially to find the Iflue ;
and fo fee Iffue twice tried. Br. IfTues Joines, pi. $. cites 40 E.
3- ^5-
2 Freem. 2. The Wife of S. had pawned her Husband's Plate to C. for no I,
Rep. 1 7 S. In Trover iS". recovered 11$ I. Damans againft C. and Tud£:ment for it.
pi. 2,9. o 1^ ^ g-jj ^^.^g J.Q i^g relieved againlt this Judgment, for that S. was privy to
the Pawning, and had no I. and the Proofs being read, it appear'd that
S. had conjefs'd fo much ; which, if it had been proved at the Trial, it
was agreed S. could not have recover'd in the Trover ; and there being
fio Proof now that he could not, by reafon of any Accident, have his Wttnejjes
at the Trial, the Court would not, on any Negleft of his, grant a new
Trial. Chanc. Cafes, 43. Hill. 15 & 16 Car. 2. Curtels v. Sirial-
ridge.
3. A new Trial was granted on an IJftie direBcdout of Chancery, and
found for the Defendant, the Matter in Queltion being of Value, and con-
cerning
Trial.
489
cerning all the Copyholds in the Manor ; but Plaintiff to pay Colts. aVern.
75. pi. 6S. Trin. 1688. Edwin v. Thomas.
4. Bill for a new Trial on a Bond, fuggefting that her Mark was Ibid, cites
forg'd by one Webb, and that by Surprize Defendant had re^over'd Tewkc's
againlt her at Law, all the pretended IVitncflls bung dead. A new Trial s"''^fi^u'^
■was order'd, 2 Vern. 240. pi. 223. Alich. 1691. Codrington v Cafr '' ^
^\^ebb. ^ "
5. A new Trial was granted, becaufe the Coinifel --jucre ahjl-nt, not
thinking the Caiifc wonld come on, and no Defence was made. But a like
Motion was denied in E. R. Per Holt Ch. J. 2 Salk. 645. pi 7 Mich
8 VV. 3. C. B. Anon.
6. One was ordered by the Judge of Affife to be hang'd in Chains, the
Officer hang'd him in privatofolo ; the Owner brought T'refpafs, and upon
Not guilty pleaded, the Jary found for the Dejcndant, and the Court
would not grant a new Trial, it being done for Con^veniency of Place, and
7iot to affront the Oiioner. 2 Salk. 64S. pi. 18. Hill, lo \\ . 6. Sparks v.
Spicer.
7. 'frefpafs agaitifl 10, 2 of them make 'Default, and the reji acquitted
hyVerdiH certified to be agatnji Evidence, and a VVrit oi Enquiry of Da-
mages againft the 2 'was executed, and a new Trial mov'd ibr, and denied
per Cur. becaufe Plaintiff had Damages and Colls againll 2 ; and Hole
laid the Jury ought not to be allow'd to fever the Damages, and that in
Aftion againrt 12, and 2 of them make Delault, tlie rctl acquitted
againft Evidence, yet there ought to be no new Trial, becaufe there
were Cojis once recovered. But here he Ihould have enter'd a Non Prof
againft thefe 2, tho' even io, 1 durft not warrant him a new Trial. 12
Mod. 233. Mich. lo W. 3. Spark and Spicer.
8. It was mov'd for a Trial at Bar laft Paper-day in the Term, in an
Adion againfl the Governor of Neij-llrk, for Matter done by him as Go-
vernor i and granted, becaufe the King defended it. 2 Sal.k. 625. pi. 5.
Palch. 12 VV^ 3. B.R. Ld Bellamont's Cafe.
9. New Trial is not to be granted for Matter omitted, to be infifted on izMod jS+J
at a former Trial. See i Salk. 273. Mich. 13 W . 3. B. R. W'atfon v. S C. be
Sutton. ^ ^■
10. The Plaintiffs being London Cheefemongers, and having formerly Chan. Prec
hought Chccfe in London by EatJors, found, that akho' they paid their Eac- i'-'?- S. ^•
tors, yet the Dairy-men not being paid by the Eatfors, many Times ft''^^^^^tC'^\^
the Merchant, and made him pay for the Chafe again. They gave Notice Chccib foi-^
fublkkly, that they -would not buy by Eaflors, nor be anfsierable for them ; his I'rinci-
yet after fuch Notice given, were fued by fuch as acted as Factors, and pal, and
Verdifts wereobtain'd againft them in Suffolk j and brought their gjji ^'is" ^i-eaks,
for a new Trial in an indifferent County. But the Court would not re- ti'on'Ts' ""'
lieve in this Cafe, but difmiis'd the Bill. 2 Vcrn. 437. pi. 401. Pafch. bmnghr
1702. Tovey & al. v. Young & al. . at^ainit the
r> -a-. Principal,
and a Recoveiy at Law. The Plaintift here endeavour'd in the Court of Law to have <^ot a new Trial,
but was denied it ; and now tlii.s Bill was brought, and fuiigellcd for E(]uity, that before the Cheele
was bought, he had countermanded the Authority of the Fadtor, and that the Defendant had Notice
of it; (but that was denied by the Anfwer, and not prov'd ) Another Suggeftion was, that there could
not be an indifferent Trial in Suffolk ; for that almoft all the Freeholders there were concern'd in In-
tereft, and haddeclar'd they never would find againft their Countrymen. The PlaintitFlikewiie found
out fince the Trial, that the principal Witnefs on whofe Tellimony the Recovery was had was Part-
ner with the infolvent Faftor. Lord Keeper faid, that Bills for new Trials ought to be reduc'd to
Ibme Certainty : The Grounds for Relief were ufually Parti.xlity hi the Jurors, or new Diicoverles; the
Court where the Caufe is tried, may, if they fee Caufe, grant a new Trial, which here you have at-
tempted, but could not prevail ; and I cannot grant a new Trial for Partiality. New Matter may, in
fome Cafes, be Ground for Relief, but v. niHJi not be what 'xas tried before; nor when it cow/?/?/ i»
Swearing only, will I ever grant a new Trial, i:?ilefs it appears by Deed or tf 'riling, or that a IFitnefs on
■whofe I'eftimony the Verdift was given, <wai con-uicfed of Perjury, or the fury attainted ; and it does not
appear the Witnefs and Plaintift at Law were Partners. And if the Jury had declard they /would find for
the Plaintiff, the Court at Common Law would have taken Order in" it. Note, This was firft heard at
the Rolls, and difmifs'd ; and now that Decree confirm'd on Appeal. [Abr. Equ. Cafes 5-S. pi. 7.
cites 2 Vern 43-. S. C. but ftatev v. aj here out of Chanc. Prec. and in the very VS'ords of that Book,
6 i tho-
490 ^ ^^''^^•
tht/not mention'd. And from ihis, and Icveral other luch Inftances, I am ftrongly induc'd to think
that that Fine Abridgment is the Work of a very ingenious Gentleman deceas'd, who had the Cuftody,
if not the Property, of the original Cafes, and who, as I have been inform'd, did in his Life-time de-
clare that he washimfelf the Author of fuch Abridgment.]
11. Maintenafice IS uct a fufficicnt Cuufe to grant a new Trial, tho'
Euihraceryis. Arg. iiMod. ii8. Trin. 6Ann. B. R. in Cafe of Lady
Herbert v. Shaw.
12. A new Trial was granted, hzc^xn^c 9. great Lord concern'' d'mihQ
Caufe/^r upon the Bench at the 'Trial. Cited per Holt Ch. J. as a Cafe ia
Ed. 3cl's Time, ii Mod. 119. in Cafe of Lady Herbert v. Shaw.
13. It was mov'd for a new Trial, becaule the Pcfiea was eaten with
Rats. But the Court denied it ; for there was Part of it remain'd, and
particularly the Coll;s and Damages, written with the Party's own Hand.
II Mod. 206. pi. 7. Hill. 7 Ann. B. R. Fowbert v. Ekins.
14. A Special Verdiil was fray' d and direded^ hat t\\t Jury found gene-
rally ^ whereupon a new Trial was granted lor that Reafon. Cited by
Parker Ch. J. W'nis'sRep. 213. in Cafe of the Queen v. Bewdley Cor-
poration, as the Cafe of Brillol v. Cooper.
(B. h) New Trial. Granted. At ^ji'hnt Time.
A new Trial !• T -^ ^^^° Time of Roll Ch. J. a new Trial was granted after a Trial
was granted J^ at Bar, becaufe the Plaintiff had delivered a Paper to the Jurors
ajteraTrial after they went from the Bar. Sid. 235. pi. 41. Mich. 16 Car. 2. B, R.
Arj^Tvern. '" "^^e Cafe of Goodman v. Cotherington, cites it as Ld. Shandois"'N
45° cites II Cafe.
jNov. 1 5 Car.
i. Humphreys V. Peyton.' Chanc. Prec. 194. cites S. C. But fays it docs not appear in that Cafe
•what the new Matter was.
AndtheCafeof3'Of0t).it;anbn', was cited iVcvn 4;;. in Cafe ofS'ciJC)' ij, jEcung, as S Dec. ^Jac.
s. to prove that a new Trial has been granted after aTrial at Bar, in a Cale between the Chefhire Dairy-
men, and the London Cheefemongers.. S. C. cited in the S. C. Chan. Prec. 194. Arg. that the
Chelhire Faftor alleg'd that he fold to the Chec!en:orgcrs as a Merchant, and not as a Factor. Bur
Ld. Keeper Wright laid that this Cafe was tried in Nottinghaafhire, and rot in Chefhire, and went
ivilhotit Dejevce ; and yet a new Trial was denied at Law, but granted here, becaule the Right had
never been tried ; But that was not Partiality. But after a Trial at Bar, 710 new Trial ivas ever erant -
e^ purely hecrarje the Jury went agaivf Evidence, except at the End of the Lift Reign, which was irregu-
lar. 12. Mod. 95. Pdfch. b W. 5. Anon. -12 Mod. izS. The King v. Melling.
Upon a Trial at Bar, the Iffue was, whether the Copyholders by the Cullom, fhould pay on their
Admittances, certain or uncertain Ftne.s, l^recedents were produc'd both Ways ; but the Court was
Satisfied that the Fines fliould be uncertain, but the Jury gave tlleir Verdict contrary ; and therefore,
and becaule it appear'd by Affidavit that fome of the principal Freeholders nam'a in the Venire facias
%verc never fummon'd, it v/as mov'd for a new Trial ; but becaule full Evidence was given, the Court
■ivould not grunt it without the Confcnt of the other Side ; for it was faid that Trials at Bar were 16-
lemn, and of great Authority, and that tho' the Court was not latiificd, yet the Jury, who are the
|;roper Judges of theFaft, v.a<,. Sid. 50. pi. 26, Mich. 1 5 Car. 2. B. R. Wheeler v. Honour.
There has not been known above two new Trials upon fiich Motion, after a Trial at Bar, one of
which was in a Cafe where 3 IMen had been robb'd, and one fued the Hundred, and it was found
againft him ; but the other 2 lucd, and each obtain'd a Verdict ; and thereupon the Court granted a
new Trial, for the laft 2 Verdicts were againft the ift; Per Cur. Sid. 5S. pi. 26. Mifth. 13 Car. a.
B. R. Wheeler v. Honour.
In Cafe of i^ilig Leflee of the Earl of Thanet v. ;JfcCt'r, 2 Jo. 224. 225. Mich. 54 Car. 2. B. R. a
Motion was made for a new Trial ; but the Court confidering that the Trial was at Bar, and in an Ac-
tion of Ejectment, where the Trial was not a final Bar, denied the Motion, tho' all the Court declar'd
their Opinions againft the Verdict.
A Motion was for a new Trial after a Trial at Bar in Ejeftmcnt, as being contrary to Evidence. But
denied by the Court, Rokeby contra. Per Holt, Anew Trial is never granted after a Trial at Bar in
Ejettment, but where there hath been ill Prafticc, becaule Plaintiff may bring a new Ejcdtmenr. a
Sulk. 0.iS, Hill. 11 W. 3. Argent v. Daiiel. Garth, jo;. Mich, n W. 5. B R S. C. Ar.dfays
x:
Trial. 49 1
it was laid down as a Rule, that after a Trial at Bjr, no new Trial fhall be granted in any Cafe, unlefs
there has b^ en form Corruption or Mifdemeanor in the Jur)-, Ld, Raym. Rep. 514. S. C. accordin''ly ■
and tho' they thought it was given exprelsly againft Evidence, yet they refus'd to grant a JSIotion to
Jhty the Entry of tlie Judgment, the* pray'd by Reafon of the Stock which was upon and in the Land,
till the Defendant might bring a new Ejeftment. S. C. cited Hill. 12 Geo. 2. B. R. in delivering
the Opinion of the Court, in the Calc of ^mitlj atlO jDonniT b» ^acfeljurff ; and fays, than
&a!k. mentions no Judgment to hnve been given in that Cale, yet he had feen a MS. of good Authority,
w here Judgment was againft a new Trial ; and that no Cafe was cited wherever it has been granted
after a'Trial at Bar in Ejettmenr.
After a Trial at Bar, a new Trial being mov'd for, was denied, tho" the f'erdicl was different to a
private ferdi^ which they had ei-jcn o-jer h'ight ; and they refufcd to give the Court a Reafon for it. 7
Alod. 97. Trin. i Ann. B R Gay v. Crofs. S. C. cited 2 Salk. 650. in Cafe of JfcilU'lCk li. (SroU
lienor, that by Confent of all Sides one Point ii'as to he found fpcciatly ; and yet the Jury found a general Ver-
diif and the Court would not grant a new Trial.
New Trials have never been granted here, after a I'rial at Bar, hut of Ijfues cut of Chancery, which
being only to fatisfy tiie Confcience of tlie Chancellor, arc not Strii5ti Juris. 2 Salk. 650. pi. 27. Hill.
1 Ann. B R. in Cafeof Fenwick v. Lady Grofvenor. S. C. & S. P. cited in deliverinp the
Opinion of the Court. Hill. 12 Geo. 2. B. R. in the Cafe of Smith and Dormer v Parkhurft
MS. Rep.
Where the Evidence is doubtful, a new Trial ihall not be granted after a Trial at Bar ; and therefore
it was denied in the Cafe of »>0amcs; i). BanidrDlSoil, and the ;SlllCfU i), tlje 2lUarD£ll Of tl)e
jflCtt; but where it is againlt Evidence, it m.iy, according to Sti. 462, 466. iillOOD U. ^UnCoil,
tor exceffivc Damages. And yet the Jury are the proper Judges of the Damage. So a new Trial was
granted in the Cafe of ^ir joffpl) iUlUtp In JSobtrfS, after a Trial at mr, becaufe the Verdift
wa.s againll: Evidence ; and the Queltion wa.s Compos or Non Compos, which was meer Matter of Fait.
Per Cur. 2 Ld. Raym. 1560. Palch. 10 Geo. Sir Chrift, Muft^rave v Nevifon. S. C. cited in deli-
vering the Opinion of the Court. Hill. 12 Geo. 2. ]i K. in the Cafe of Smith and Dormer v Park-
htirft.
A new Trial was denied after a Trial at Bar, on an IlTue direftjd out of Chancery to C. B. and tho'
upon fendin<; it back to C. B. to know if it wa<i proper to be tried again, the LdChief [ult. acquainted
Ld Chanc King, that very ftrong Evidence had been given on bith Side's; lb that he could not have blam'd
the Verdii51: on which Side foever it had been given ; yet his Lordfhip, and the Matter of the Rolls de-
nied a new Trial, for that otherwife there would be no End of Suits, and that the fendin"- it to be tried
at Bar wasthat it might be final. 2 Wms's Rep. 565. Hill. 1729. Coker v. Farewell.
Powell J. faid he thought nothing ought to be a Groww./ for a new Trial, after a Trial at Bar, but
tuhatu-ciiid make the Jury liable to an Jttaint. VYms's Rep. 213. JSlich. i;i2. in Cafe of the Queen v.
Bewdley Corporation,
2. The Court may as ivell grant new Trial on Noijfait as after Vcrdicl^ in <^uare
and upon Affidavit oi Surprife, tiiere being an Agreement to try it in the impedn the
Alternoon, and the Cauie in the Morning being the laft Caule, it was P'-^i^ti^s
granted Per Curiam, the Plaintiff paying Colts. sKeb. 8ii. pl- 26. ]7''^"^"-/-'"''
Mich. 29 Car. 2. B. R. Catesby v. Emans. n,;J*.j f^^ ^
new Trial.
The Defendant infirted that the Plair.tiffs •sere cai of Court l,\ the Non/:iil, ard the Court could not admit
the Plaintifts to move. But it was anfwer'd, that the ^leftter/ here w.is, // tie Ncnfuit c.'as reaularly oh-
tain'd, and whether or no tie Plaintiffs open'd the Canfe , and if that Objection fliould prevail i[ would
be Exceptio cjtifdein rei ciijus petitur di£clutio. The Court order'd Proceedings to be ftayM till Mi- l^;*
Probyns's Opinion ihould be ask'd ; aiid afterwards on his Certificate, the Rule wa^ dilchai'^'d Reu
of Praft. inC. B. 63. Eaft. 4 Geo. 2. Jefus College in O.xford v. Vaughan. ^
3. One fliall not move for a new Trial * after A'fotio.ii in Arrefl offtKJo-. skin. (JSr.
nii.nt ; but after Motion for a new Trial, he may move in Arrefl ofp' '• S.C
judgment : So after Motion in Arrefl; of Judgment, Defendant cannot ^^^ ^-
move for anew Writ. 2 Salk. 647. Mich. 9 VV. 3. Turbervill v. Stamp, s.^'c'^not^''
s. P.'.
Comb. 459 S.C. not S. P. 1 Ld. Raym. 2(^4. S. G but not S P.
*S. P Nor to fet afide a Writ of Inquiry of Damages ; Per Cur. i2 Mod. 15!). Mich. qVV •",
Anon. '
4. Upon a Trial at Bar, for the Forfeiture of the Office of Warden of
the Fleet for voluntary Efcapes, one Efcape was prov'd by a IVitnefs^
who being ask^d if be never was burnt in the Hand for Jlealing a Tankard,
anfwer'd. No. A new Trial was pray'd upon producing the Record of the
CoHviiiion j but was denied, becaufe it was a Tri.al at Bar, and alfo be-
caufe
492 TriaL
caufe ic is no Reafon for a new Trial, that thofe concern'd for the De-
fendant £:^7«c «;/prf/)rtr'rf to make his Defence. aSalk. 653. pi. 35. Ford
V.Tilly. ^ .
5. Where a 'Trial is had upon a View, this Court will not eaHly be in-
duced to grant a new one ; lor the View is fuppofcd to govern the Jury
more than^the Evidence at the Trial, and therefore in fuch Cafes there
ouo-ht to be fome great Irregularity in the Jury to obtain a new Trial.
II Mod. I. pi. 2. Ealt. I Ann. B. R. Anon.
2 Salk. (j)-r)- 6_ III the Court at Brijfol, ihQ Plai?!tiff^ had aVerdiB and Cojis taxed,
h ^h' Nanie^"'^ ^^"^^^ ^ 2.d Scirc facias againft the Bail, they furrender the Principal,
01 \he ''"''^ and a Tear after the Cofis taxed, the Judge oj that Court granted a new Trial,
Mayor Sec. and thereupon the Court of B. R. made a Rule for an Attachment Nill,
ofBi-iftol's jind that the Rule for a new Trial be let alide. 7 iMod. 84. Mich, i Ann,
S^?'kS B. R. Hall v. Hiil.
held per Cur. that a new Trial cannot he i^r.inteil in an inferior Court, and that the Court blamed this new
Trial a Year after the firil. — 5 i>ail<. 56;. pi. 7. S. C fays, that the' a new Trial ou<;ht to be al_-
lott'd it" freflily purfued, yet 'cis a Mifdemeanor in a Jud_';e to grant it after the Party has reftcd lb
Ions' under a fornx-r one ; and it may be a .<^ueJlion, whether any Curt can ^(?j-n?it a new 'Trial _ to be had
hejm-c themfehes. There cannot be u new Trial at Bar, as there may be at Nifi Prius ; for in the laft
Cale 'tis but reafonaBle that the Court fliould judge how the Judge of Nifi Prius has executed his Au-
thority.
A^itrfecmA *j. Upon a Trial at Nifi Prius, the Jury gave excejive Damages, and
rer^/ffc/' </;e thereupon a new Trial was granted. Th^ zd Jury gave the fame Da-
is not fit'to " '«^<?^'-^5 and now it was moved lor anothernew Trial, but denied j for
grant a new there niult be an End. But feveral Cafes were cited \Vhich the Ch. Juf-
Trial, be- tice allovv'd, that where upon the 2d Trial the Jury have doubled the
caufe the Dama";es, a ^d Trial had been granted. 2 Sulk. '649. pi. 2c. Mich,
Jo'fiL'l X Annie B. R. Clerk v. Udall.
Verdidl; but , _
if there were any Pradlice Ufed in obtaining it, it's othcrwife; pet* Holt Ch. J. 6 Mod. 22. Mich.
2 Ann. in B. R. Anon.
8. One cannoi: move in Arrefl of Judgment till the Plea RoILis made
up, and the Verdict there entred of Record 5 but one may move for .1
new Trial before fuch Plea Roll is made up. G. Hilt. C. B. 38.
In this Cafe p. On a Motion for a new Trial, the Verdift being againlt Evidence,
Mr.Attorney '^^^g objetled that there being a Speciid Verdi61: no new Trial could be
?Ld. Car- granted, tor by the CoutictPs Jrgiiiiig the Special Yerdicl they had confeiited
berrp'sCafe to it. Ld. Ch. Baron laid, the Jury tound their Verdi£t contrary to his
tried at He- Opinion and Direction, and he thought the Special Verdift no Hin-
reford At- France of granting a new Trial, for tf there is Alatter of Law, the
heofFer'd to Co///;r/7 mufl fign the Notes, but may waive it afterwards. Price B. faid,
•;ive Dug- that Ld. Ch. B. being of Opinion that the Verdi6l wasagainlt Evidence,
dale's Baro- he thought there mull be a new Trial, and the Council having Jigned
nage, and ^^ Special Verdict does not alter the Cafe, lor it is only faving a Matter
Things in *^^ Law, and is ex abundanti, and does not help when the general Part
Evidence, of the Verditt is wrong, but then if the general Part of the Verdict is
•which being againft the Plaintifl" again he will itill have the Benefit of arguing the
over-ruled, J>^^[^l of Law, which will be a Hardlliip upon the Defendant, and thcre-
a gjjl ^f £^._ fore the Plaintilf ought to come into Terms. Page B. thought there
ceptions, and mull be a new Trial, but if the Plaintiff had put Delendant to tiie Charge'
fign'd it. of arguing the Special Verditt, it would then have been too hard, but
Yet after j^ow no more Ex pence than if ic had been a General Verdift. MS. Rep.
that this XT • 1 !-• 1 1
Court grant- Namniock y. f arewv 11.
ed a new
Trial upon his Motion.
10. New
Truft. 493
lo. New Trial was never granted in another 'Term after the fign-^'^'^'^-^- 1758.'
ing the Judgment. 8 Mod. 264. Trin. lo Geo. 1725. The King v. fj^^^Jj^J*^^^ '
Poulard. Interbcu-^"
tory Judg.
ment entred it is too late to move for a new Trial, tho' in the fame Term. King v. Armftrong.
ir. It was moved for a new Trial after the 4 Days expired hut before
Judgment entred on the Verdiii i and obtain'd a Rule to ihew Caufe ; but
the Court declared that for future no fuch Motion IhoLiIi be received
alter the 4 Days, unlefs where the Foundation of the Motion be a Fa^
not difclofed to the Party till after that Time. Barnes's Notes in C. B. 323.
Mich, il Geo. 2. Willis an Attorney v. Bennet.
(C. h) New Trial, Granted on njohat Terms.
F new Trial he granted for Irregularity^ there lliall be no Colls paid
for it ; but if Defence be made, it may help the Irregularity. If
new Trial be upon the Merits of the Caule, there mull be Colls j per
Cur. 12 Mod. 370. Pafch. 12 W^ 3. Anon.
2. Note, In many Cafes upon granting a new Trial, the former Ver-
dicl ought to Hand as a Security ; for otherwife the Party againft whom
it pafled, might fpirit away the Evidence on whofe Teltimony it was ob-
tain'd, and fo without any Corroboration of his Right, deprive him of
the Benefit of his Verdi6ti per Cur. 12 Mod. 439. Hill. 12 W. 3. B. R.
Anon.
3. Where there is a new Trial directed, the Party that moves for ic
mull pay the Charge of the former^ and depoftte Money ^or the Charge of the
New. MS. Tab. Tit. Trial cites Feb. 17, 1724. Ld St, George v.
Martin.
For more of Trial in General, fee dtttentiniCnt attH JCOfatl^, Di>
magC0, error, CiJiHenCC, JlUngmentlS, and other Proper Tides.
Truft.
(A) //7^^/ it is. ^Nd Ruks relating to Trufts. See (D)
I. ^ I "^ R U S T S are of the fame Nature no^xj that Ufes ivere at the Common Abr. Equ.
I Law. Arg. Allen. 15. in Cafe of the King v. Holland. Cafe. 220.
^ p i r^ r
of Symfon v. Turner. S. P. Ar<;, Vent. 1 50. in Cafe of Smith v. Wheeler. ■ A Truft i.s but a
r.e-iv N.inie gheii to a CJe, ar.d invented to defraud the Statute of Ufcs Are Sti 40. in Cafe of the Kinc
V. Holland. °
^94- Truit.
Ufe and 'fritft are fynoyihiwiis Tevms, and are ufcd as fuch in the Stat, of 27 H, 8. and no Difference be-
tween a Will and a Deed. Arg. Gibb. 10. (aid to have been iblemnly detcrmin'd in the Cafe of Brougli-
ton V. Lan;;ley al' Langlcy v. Baldwin. Pafch. 2 Annas.
They ave fymmmoiis in the Law ; per Holt Ch. J. 1 1 Mod. 21 1. The Common Law will not
diftinguifli between Trufts and Viei; perPowel J. 213 Ibid, Pafch S Ann. BR. in Cafeof Ld. Altham
V. Ld. Angtefea.
2. Holding the Pojfeffion and difpcfnig thereof at his TVill and Pleafure,
and making Leafes thereof when the legal Eltace is in others, are Signs of a
Truft ; per Cur. Chan. R. 52. 6Car. i. Earl of Newcaftle v. Earl of
SuHolk.
3. A Mortgage is not merely a Trull, but a Tith in Equity ; per Hale
Ch. B. Hard. 467. Trin. 19 Car. 2. in Scacc. in Cafe of Pawlet v. the
Attorney General.
Ibid. ;S. ^ ^ Trufl: is a Right to receive the Profits of the Land, and to difpofe of
Arg. inS.C. ^j^^ Land in Equity i per Peniberton. Arg. Mod. 17. in the Cafe or Smith
V. Wheeler.
5. Trulls are ^oi.'6r«V/ by the Intention of the Party ; per Ld. Keeper.
2 Vent. 367. Hill, i & 2 Jac. 2. in Ld. Pawlet's Cafe.
6. In every Truft is implied a Contraff ; per Holt Ch. J. Skin. 279.
Hill. 2 W. & M. in B. R. in Cafe of Boullton v. Sandiford.
7. A Court of Equity will never adjudge a Man to have broken a Trufl in
a higher Degree, when he may with equal Reafon be adjudged to have done
it in a lo-ixcr ■■, per Parker C. 10 Mod. 500. Trin. 8 Geo. i. in Cafe of
-Le Croy v. Ealtman.
8. Iruffs and legal E.flates are to be governed by the fame Rules ; and
this is a Maxim which has univerfally prevail'd. It is fo in the Rules
of Defcewt, as in Gavelkind, and Borough Englifh Lands, there is a
Pofijfio Fratrts of a Truft as well as of a legal Eftate. The like Rules
in Limitations, and alio of barring Entails of Trufts, as of legal Ellates ,
Per the Mafter of the Rolls, who faid he thought there was no Excep-
tion out of this General Rule, nor is there any Reafon that there fhould ,
and that it would be impoffible to fix Boundaries, and Ihew how far,
and no farther, it ought togoj and that perhaps in early Times the
Neceffity ot keeping thereto was not ft;en, or thoroughly conlider'd. 2
Wms.'s Rep. 645. Hill. 1732. in Cafe of Sattoa v. Sutton.
(B) What amounts to a Truft.
1. /'^N E poflefs'd of Leafes for Years devifed them to his Wife, and
\^ hoped JIm would leave them to his Son, and died. Her 2d Hui-
band granted the Leafes away : The Son fued to be relieved, but was
difmiis'di for it was no Truft for the Son. Cited by Ld. Chancellor,
Chan. Cafes, 310. Hill. 30 & 31 Car. 2. in the Cafe of Civil v. Rich,
as a Cafe which he rcmember'd in the Ld. Egerton's Time.
2. A. for 80 1. conveys Land to B. abfolucely. A. brings a Bill to re-
deem. B. by Anfwer inlifted, that the Conveyance was abfolute, with-
out any Provilb or Agreement for Redemption ; but confefs'd that after
the Sol. paid with Intcrett, it was to be in Trujl for the Plaintiff's Wife
and Children. Plaintiff replies to the Anfwer, and there was no Proof
of the Truft, yet it was decreed to be a Truft lor the Wife and Chil-
dren. 2 Vern. 288. pi. 277. Pafch. 1693. Hampton v. Spencer.
3. A. was Excommunicate, and fo could not make a Will, and there-
fore took this Method to difpofe of what he had, viz. On his Death-bed
he gives all his Goods to B, and afterwards appoints B. to pay fuch Debts
and
Truft. 495
and Legacies out of them. This proves it to be a Trull, and the Court
decreed B. to account. 9 Mod. 113. 116. Mich. 11 Geo. i. Mitford v.
Ld. Herbert, Pritchard, and Croom, & al'.
( C ) What ihall be conftrued a Truft ht^ween Prhks
in Eftate.
I. ll. ' Xectitor i): 'Triiji furrenders, and rene'ws a Leafe ; the Renewal
l"^! fliall go to the Benefit oiCefiiiy que triiji. Agreed per tot. Cur;
viz. Ld. Keeper, and Twifden, Wyld, Rainsford, and Windham J.
Chan. Cafes, 19 1. Mich. 22 Car. 2. Holt v. Holt.
2. A Man is Guardian or Truftee for an Infant ^ to whom Lands are
defcended or devifed, but the Title is revera in a 3d Perfon. If the
Truftee or Guardian buys in the 1'itk of this 3^ Perfon^ this fliall not be
taken to be a Truft for the Infant ^ for he is at Liberty to purchafe it as
well as any body elle , and fo it was held in the Cafe of COUlbClS SUH
'2C()rO0;UiartOU,per Cancellarium. 2 Freem. Rep. 52. pi. 59. Pafch. 1680.
Lelley's Cafe.
3. There were three Leffees of a Church-Leafe ; one furrenders the
Leafe, and renews in his own Name ; it fhall be a Trull for all. Vern.
276 pi. 277. Mich. 1684. Palmer v. Young.
4. On the Son's Marriage the Father fettles a Leafe for Tears, held of
the Queen Dowager, on the Son for Life, to the Wife for Lije, and then to
the IJJae of that Marriage. The Son covenants from Time to Time to re-
new the Leafe, and to afftgn it to 'Truftees to keep the Leafe on Foot as
long as the IVife, or any Child of the Marriage fhould live. The Son renews
the Leafe in his own Name, and makes no Afjignment thereof to the Truf-
tees, and dies greatly indebted, without Alices. Per Cur. The Leafe is
bound by the Marriage-Agreement, and Ihall not be Alfets, nor liable
to Debts. 2 Vern. 289. pi. 278. Pafch. 1693. Plowman v. Plowman
& e contra.
5. Mortgagee of an Advowfon appendant, till Foreclofure, is but in
Nature of a T'rufieefor the Mortgagor ; and if the Church becomes void,
tho' the Mortgagor has no Bill, yet being ready, and ofiering to pay the
principal Interell and Cofts, if the Plaintift' will not accept his Money,
Interelt ihall ceafe, and an Injunction to Itay Proceedings in theQuare
Impedit ; for the Mortgagee can make no Profit by prefenting to the
Church, nor can account for any Value, in refpe£t thereof to fink or
lellen his Debt ; and the Mortgagee therefore in that Cafe, until a For-
leiture, is but in Nature of a Trullee for the Mortgagor. 2 Vern. 401.
Mich. 1700. Amhurll V. Dawling.
6. One joint Purchafor <f an EJlate in Moieties, buys in Incumbrances at
an under Value,, and had leveral Abatements made to him, yet the other
fliall have equal Benefit, the Purchafe being made for their equal Bene-
fit, and on a mutual Truft between them. Abr. Equ. Cafes, 7. pi, 13,
Trin. 1728. at the Rolls, Carter v. Home.
(D) Cw-
496
trult.
( D) Co}^ruci'ioNS of Trufts. hi Equity. In General.
How.
I. \ Devife of a Trull: is not govern'd by the 32 H. 8 and therefore,
£\ and becaufe of feveral Accidents which cannot be forefeen, this
Court doth foniecimes difpvfc of Trulls acccrduig to the prefiimptivt: Inten-
tion of the Parties, without regarding the IfriCt ^.Vords of his Declara-
tion i per Ld. Keeper. Fin. K. 159 Mich. 26 Car. 2. in Cafe of Nurfe
V. Yarmouth.
2. In the detcrnnmng Matters cf Trujls^ Chancery haS always agreed
with the Reaibi'S ot tlie Law in tne Limitations oiUfcs ; per Cur. Fin.
R. 341. Hiil. 30 Car. 2. in Cafe of Ford, Ld. Grey v. Lady Grey
& al.
3. In the Conltruftion of a Truft, the Intent of the Party is to govern,
and Courts of Equicy have always in Cafes of Trults taken the fame
Rules of expounding Trults, and of purluiLg the Inter.tions or the Par-
ties therein, as in Cafes of Wills, and that e-en in Point of Limitations
of Eliates, where the Letter is to be as ftrictly purfued as in any Cafe j
per Ld. Sommers. 2 Verh 311. pi ?oi Hill. 1693. m the Cafe of Shel-
don V. Dormer.
4. r\ Trult in Equicy is guict. .. „^ the fame Rules, and capable of the
fame Liuntaitcns as the Policlfjon was at Law, and there is no Manner
of Difference between them. Arg. Ch. Prec. 345. pi. 255. in Cafe of
Eure V. Holland.
(E) RefpJt'u/g Tnijl. What.
Refulting I- 29 Car. 2. cap. "rj Roviries that a 'Triiji refalting by Implication of Law.,
Trufl-s are 3. S. 8. \f or transferred or extingui/lfd bj aA of Laii'^ pall be
fived indeed ^jj f this Statute had not been made.
by the Sta-
tute of
Frauds and Perjuries, but are only faved, and left as they were before the JB. Now a bare Declaration
ly P.irot before the Adi, would prevent any refulting Truft. Ar^. and the Court feem'd to be of that O-
pinion. 2 V'erii. 294. pi. 2S5.Trin 1695. Lady Bellafis v. Compton andFrankland.
Tho' luch Trulls are excepted, yet they mujl anfe upon the Face ef the Deed it/elf. Arg. Ch. Prec.
104.
This mull relate to Truft and Equitable Interclls, and cannot relate to an UJe, which is a legal Eftate.
VS'm.'s Rep. 112, 113. per Ld Ch. Mich. 1709 Lamplugh v. Lamplugh.
2. irtijlee by Appointment of Cefly que Trttji conveys to A. and B. Decreed
to be a Truft in A. and B. tor the Cefty que Truft. Fin. R. 320. Mich.
29 Car. 2. Fleming v. Page and Blaker.
3. The Daughter s Portion being charged upon the Father* s Land, (he
at the Requeft of her Father, had rekafed her Interejl in the Land to the
Intent that he might be enabled to make a clear Settlement thereof upon his
Son. It was declared by the Ld. Keeper, that if this were done bv the
Daughter without any Confederation, there would be a reiulting Tiult in
the Father, whereby he lliould be chargeable to the Daugiicer lor fu
much Money. Freem. Rep. 305. pi. 373. Lady Tynell's Cule.
4. A.
Triift. 4.p7
4. A. feifed in Fee convey'd the Lands to the Defendant for 1000
Years, in Truft, that whereas diverfe Suits &c. were touching the
Lands, the Defendant poiild defend the Suits ^ (Nota, Defendant was Te-
nant of the Land then, and before, to B, the Plaintifi') and TitlQwith
the Profits^ and yearly jiccount to A. of all the Profits, and pay to him, his
Executors, and Adminiftrators, the Surplus of what he fliould not expend,
and fliould pay an annual Sum after his Death to B. the Plaintili, and
another annual Sum to C. and died. B. the Plaintiff was A.'s Coulin
and Heir, and fued for Account and for the Lands, in Regard that a
Trull refultcd to the Heir after the exprejfed Trtijfs "were ferformd. But
Ld. North difmiffed the Bill. 2 Ch. Cafes 140. Pafch. 3^ Car. 2. Baily
V. Cotton.
5. 'The Wtfe joined in a Fine fur Conceffit of her Jointure^ in Order to VeiTi.215.
a Mortgage or Security j This is not an abfolute Departure with her In- ^'□"'^'^^'J?
terefljbut there refulted a Truft for her when the Security or Mortgage is ^' "^"
paid to have her Ellate again, as if it had been a Mortgage on Condi-
tion, and the Money paid at the Day 5 per Ld. Keeper North. 2 Chan.
Cafes, 162. Hill. 35 & 36 Car. 2. Broad v. Broad.
6. A. par chafed in the Name of B. and paid the purchafe Money, B. af^ Where a
iign'd to T. A. pray'd by his Bill, that the Eflate might be convey'd to ^^^" ^^y^
him. T. denied that he knew its being bought with the Plaintiff's Mo- ^her'sName
ney, but believed it was bought with the proper Money of E. lor her and and pays the
her Heirs, and that lie claim'd it as Heir to E. and inlifted on the Sea- Money, it
tute of Frauds &c. there being no Declaration in Writing of any Trull will be in
lor the Plaintiff^ at length Proofs were read, but they amounting only to T^^\ ^°*'
■what had paf^ed in Difcourfes, and been ozvn'd [y the Defendant, and being the^Moncy
doubtful, the Mailer of the Rolls difmilfed the Plaintiff's Bill, the tho* no Deed
Prools not being fufficient to ground a Decree upon. Vern. 366. pi. 359. ^^ declaring
Hill. 1685. Galcoigne v. Thwing & al'. for tie s!a'
tute 29 Car.
2. of Frauds, does not extend to Trufts raifcd by Operation of Law. 2 Vent. 5<Ji. Pafch. 35 Car. 2. in
Cane. Anon. If A. buys Lands ard pays the Putchafe Money, and the Conveyances are made to
B. this is a Refulting T'ruft admitted ; Arg. Vern. 109. in Cafe of Riddle v. Emerfon. •= Where it
pt.uuly afpear'A upon the Evidences of both Side.s, that the Confidcration AJomy of the Purchafe wai the
proper AJoyiey of J- had it not been for the Statute of Frauds, this would have made a Refulting Truft ;
and B- rtfter J.'i Death executing a Declaration of T'rit/}, this plainly took it out of the Statute. Wms.'s
Rep. 529. Trin. 1 7 1 6. Ambrole v. Ambrofe. So v/here J. agrees for a Leafe for 99 Years, B. ad-
iai:ces the Movey, and the Leafe is taken in the Name of J. This is a Refulting Truft, and out of the
Statute of Frauds, J. having by Letter acknowledged the Trufl. MS. Tab. Tit. Trufts, pi. 4 cites Feb.
12, i-i7.0Harav. ONeil.
7. Executor in Trufl Ibr an Infant Refiduary Legatee renews a Leafe
in his own Name, being Part of the Tellator's Perfonal Ellate, and hav-
ing mortgaged it, alTigns the Equity of Redemption to a Trullee to fc-ll
' for Payment of his own Debts. The Trullee lells to one who had No-
tice of the Infant's Title. The Purchafe was fet alide. Vern. 484. pl.473.
Mich. i687.\Valley V. Walley &c.
8. A. Mortgagee ajftgns over to B. and declares a Truji by Parol to C. and
D. — B. acknowleges the Trufl. It was infifted, that there being anexprefs
Trull, tho' by Parol only declared toC. and D. that fhall prevent a refult-
ing Trufl to A. And the Court feem'd to be of that Opinion, and inclined
to decree for the Plaintiff. 2 Vern. 294. pi. 285. Trin, 1693. Lady Bel-
lafis V. Compton and Frankland.
9. Grant of a Next Avoidance to one who knew nothing of it, and being Abr. Equ.
examined in a Caufe, he depofed he did not purchafe it ; Per Ld. Som- Cafes 5Sr.
mers, 'tis a Refulting Trull for the Grantor, there being no other Trull P'- 4- S. C-
declared. Ch. Prec. 80. pi. 70. Hill. 1697. Duke of Norfolk v.
Brown.
10. A Trullee purchafes Lands out of the Profits of the fruji Eflate, and 2 Freem.
takes the Conveyance in his oivn Name ; tho' probablv, if he cannot make ^^P ^^9 pi-
6 L other 3- Hill.
49B
Truft.
1698. S C other Satisfaction for the Mifapplication, thefe Lands may be fequelkr'dj
fays the j, ^j^gy cannot be decreed to be a Truft tor Cefty que Truft, no more
^°eLdClian than if A. borrows Money of B. and purchafes Land with icj thofe
ceUo.-, M^f- Lands are no Truft for B. For it is mt a Truft m Writing i and a rcfiilt-
tei- of the ifig e^rtijl it Cannot be, becaufe that would be to contraditl the Deed by
Rolls, and Parol Proof, dire£lly againft the Statute of Frauds. But if the Purchale
^°*^^-il V had been recited to have been made with the Profits of the Truji Efiate^ this
■were a
Opinion.that appearing in V\^riting might ground a refulting Truft. On Appeal to the
tho'it \\as a j-i^jufe of Lords, this Decree was affirm'd. Ch. Free. 84. pi. 77.
hard Cafe, Mich. 1607. Kirk V. Webb.
yet they ^ . ,' , r r
could not reach it ; for it had never yet gone lo tar.
A Truftee managed the 'leftator's Perlonal Ellate, and kept Teftators Ledger and Journal, and en-
tred all himfelf, and therein entred the Perfo?ial Efiate Dehlor to Lands hatght, naming them particularly,
and died Per Ld Wright, thefe purchafcd Lands fhall not be a Truft for the Peifons intitled to the
Perfonal Eftate, and faid it was not fo ftrong a Cafe as ^i^irfe to. 3Utbb, for there wasa Defeft of the
Perfonal Eftate to anfwer the Demand, which in this Cafe there is not. Ch. Prec. 163. pi. 135. Palch
I -01. Heron, v. Heron.
11. A. employs his Steward to Ptirchafe with his Money, and he takes
the Conveyance in his cien Name. It was faid that the Court had relieved
in fuch Cafe. Arg. Ch. Prec. 104. pi. 92. Mich. 1699. in Cafe of Newton
V. Prefton.
12. So if a Man makes an ahfolute Conveyance, hut continues in Pofjejfioii^
and pays Jnterejt, and takes Jcqaittanccs. And a Truft that arifes by Im-
plication of Law, is excepted out ot the Statute. Arg. Ibid.
13. Teftator empoiverd the Executor to lay out the Perfonal Eji ate in
Land, and fettle it on A. and his Hens. Being about to purchafe, he told
A.'s Motlier of it, and asked her Confent, but took the Conveyance in
his own Name, and no 7'rufi in Writing was declared, but it was proved
that he had feveral Times declared it mufi be fold to make A. Satisfaction i
yet the Court (tho' inclined to decree a Conveyance to A. the Executor
being dead infolvent) declared it could not, becaufe there was no exprefs
Proof of the Application oj the Trufi AIcTfjey. And the Cafe of Bl'Ck atlU
tJBCbb did not govern this Cafe ; for there the Party did not know him-
felf to be a Truftee, and had difpofed of the Lands. Ch. Prec. 168. pl.139.
Trin. 1701. Halcot v. Markant.
a Vera. 440. 14. Adtmnifiratrix of an Inteftate's Eftate of 900 1. Value, and one Pare
P'-404- i^i"' whereof belong'd to the Adminiftratrix, and the 2 other Parts to B. and
toaro SC C. lays out 500 /. in Lands, and takes the Conveyance tn her ozvn Name j
fays the Ad- The Matter of the Rolls, on a Bill againft the Heir of the x^dminiftra-
miniftratrix trix, decreed 2 thirds of the 500 1. to B. and C. out ot the Land as Per-
fettled the {q^^i Eftate, and if not paid the Land to be fold ; But Ld. Wright re-
heTfelf for verfed this Decree, as contrary to the Cafe of Kirk and Webb, Ch. Prec.
Life, Re- 171. pi. 142. Mich. 1701. Kinder v. Miller.
mainder to
B. and C. her Daughters in Tail, Remainder to her ov/n Right Heirs. B. and C. died without Iffuc
Inteftate [the Mother as it leems being dead before.] The Plaintiff, as Adminiftrator to B. and C. and
their next of Kin, brought a Bill to have z thirds out of the Land as Perfonal Eftate j and the Mafter of
the Rolls decreed accordingly, but was reverfed by Ld. Keeper, it being within the Rcafon of Kirk
and Webb's Cafe.
15. Truft refults to the Party from whom the Conftderation moves. MS.
Tab. Tit. Trufts, pi. i. cites March 4. 1706. Pelly v. Maddin.
16. Lands are devifed to 3 Perfons and their Heirs, to the Ufe of them
and, their Heirs, on the Trujls after mentioned, and then direfts feveral
Eftates for Life and in Tail, hnzfays nothing of the Remainder in Fee. Per
Cowper C. This is not within the Reafon of the Cafe, where a Devife
or Grant is in Truft for Payment of Debts, there the whole Eftate is
affefted with the Truft j but here the Remainder is not aflecled
with any Truft declar'd j but one of the 'Trnjlecs being no Relation, it could
not
Truft. 499
not be intendi-d a Provifion, as it might have been if the Devife had been
to a Relation only. And decreed the Remainder in Fee to the Teftator's
right Heir. 2 Vern. 644. pi. 572. Hill. 1709. Hobart v. Countefs of
Surfblk, Maynard, Colchelter & al'.
17. Devifes if Lauds to an Executor upn Trtifiy and to the Intent that the
fanie^ or fo much thereof as Ihould be needful, lliould be fold for Payment
of Debts and Legacies, this was decreed a beneficial Legacy, and not a
refulcing Truit, and Parol Evidence admitted to prove the Intent. MS.
Tab. Tit. Trulls, pi. 6. cites Feb. 13. 17 10. Dockfey v. Dockfey,
18. Devife of a Rent-charge to his U'lfe in Trttji nevertheJefs for Payment ^"^ De'Jfi
of Debts and Legacies /or 13 Tears, and then he gives his Wife other Lands *? ^: j't" n
in Augmentation of her Jointure i the Surplus of the Rent-charge after the and Confi-
Debts and Legacies paid, is not a beneficial Trull for the Wife, but a dence that
refulting iruji to the Heir. MS, Tab. Tit. Trulls, pi. 2. cites May 25. he pould fay
1 7 12. Wvch V. Packington. Mthetefia-
I J " ^ tors jufi
Debts, is a refulting Truft to the Heir after Debts paid. MS. Tab, Tit. Trufts,pl. 5. cites March n<
1727. Kirrick v. Bransbey.
19. A. feifedofthe Manor and Patronage of VValtham, by Will gives
loo 1. per Ann. Rent-charge, and the Right of Nomination to the
Church, to 6 T'ruJleeSy andthoje, when reduced to 3, to chufe others. Five
were dead, and D. the only furviving Trujiee infeoff^d others to Jill tip the
Number ; they nomiaate to the Church, being a Donative. Per Couper
C. the Neglect of filling the Number, will not extinguifii or determine
the Right to do fo by the only furviving Truftee. It was only direc-
tory to them i and it was decreed for the Truftees, and that the Right
of Nomination did not refult back to the Owner of the Manor. 2 Vern.
748. pi. 655. Hill. 1 716. Attorn. Gen. ad Rel'. Tracy & al', v. Lady
Floyer, Campion, Cowper & al'.
20. Devife of perfonal EJlate for Payment of Debts and Legacies, and
the Overplus to be difpos'd as T^ejtator fhotild by Codicil direif ; and further
deviftd Part of his real Efi ate to be fold for Payment of particular Debts, and
the Reftdue as he fhould by Codicil direB ; then by his Codicil he diredis^
that the Overplus offuch real EJlate pall go to his Executors for Perform-
ance of his Will i and then adds, I hope 1 have made a fufficient. Provi-
fion tor Performance of my Will j and ;/ there be any Overplus of my per-
fonal EJlate after full Performame, I give it to J. S. Adjudged that the
Surplus of fuch real Eltate iLali go to J. S. and not relult to the Heir.
MS. Tab. Tit. Trulls, pi. 3. cites March 11. 1717, Tyrwith v. Trott-
man.
21. If a Man makes a Conveyance for fuch Perfons and fuch EJiates as
he fhall appoint, znAht makes no Appointment, the Trull mull refult to
him and his Heirs ; Per Ld Chancellor, who faid that no Rule is more
certain, and that Trufts in Equity mult follow the Rules of Law in the
Cafe ot an Ufe ; and that it would be fo in the Cafe of an Ufe, is un- ,
doubtedly true, and that was Sir Edward Cleer's Cafe in 6 Rep. Gibb,
223, Hill. 4 Geo. 2. Fitzgerald v. Ld. Fauconbridge.
22. Trulls arifing ly Operation of Law have been but of 2 Kinds, either
•where the Conveyance has been taken in the Name of one Man, and the Pur~
chafe-money paid by another, or where the Owner of an EJlate has made a
voluntary Conveyance of it, and made a Declaration of the Trvjl with regard
to one Part of the Ellate, and has been Jilent with regard to the other Part
of it. The Reafon why this Court has allow'd a Trull by Operation of
Law to arife in the latter Cafe, has been, that the Party, by declaring
Part of the Trull to be for another, and by faying nothing with regard
to the other Part of it, Ihews his Intention to be, that the other was to
have only one Part of the Trull ; and confequently he himfelt ought to
have the Benefit oi the other Part of it. Tliefe have been the only 2
Inltanccs
500 Truft.
Inllances of Tiuits aHow'd of, to arife by Operation of Law, fince the
Statute of Frauds and Perjuries, unlefs where there has been a plain or
exprefs Fraud, ^¥here there has been a Fraud in gaining a Conveyance
from another, that may be a R.eafon for making the Grantee in that
Conveyance to be conhder'd meerly as aTruftees Per Cur. Barnard.
E.ep. in Cane. 388. Hill. 1740. in Cafe of Lloyd and Spillit,
(F) Advancement. PFhat an Advancement, and what
a Trtij}.
I. (^ I R. W. R. being poJPfs'd of a 7'erm of 100 Tears of he h^v-
\3 ing a Determination to purchafe the Reverfion in Fee of the fame
Land, conveyed his Term to his cldeft Son, to the Intent it Ihould not be
drown'd ; and therefore about 40 Eliz. he purchased the Fee ; and after
in the • Jac. he committed Treafon, and was attainted. And it
was decreed in the Exchequer, that the King fhould have the Land dif-
charg'd of this Leafe, viz. in Pofleflioni and altho' no Fraud be found
in the Cafe, but only it appear'd by Circumftances of Witneffes here
examin'd, that Sir W. R. look the Profits ot the Land, and held Courts
in his own Name until the Attainder, yet the faid Alfignment was con-
ceiv'd to be in Trult • and therefore decreed to be void againfl: the King
as for Fraud, altho' he was convicted of Treafon a long Time after, and
fo the King's Title fubfequent to the faid Alfignment. Lane 48. cites
it as Sir Walter Ralegh's Cafe.
S. P. Litt. 2. The Father purchased Latids /;/ his Son's Name, who was an In-
Rep. 54S. fant at the Age ol 1 7 Years, and he would have fufferd a Common Re-
Anon, by covery as Tenant to the Precipe : but the Court would not fulfer him,
Ch Tuft ■"■^^' ^"3' ^^^^'^- o ^^^- Anon.
3. The Earl of L. purchas'd a Manor in the Lady Gorge's Name, be-
ing his Daughter, and afterwards kept Courts and made Leafes in his
own Name, and always took the Profits, and then fold it to Sir
Mountague.; and the Lady G. never queftion'd it in the Life of her Fa-
ther: Yet it was held in B. R. unlefs there be fome Fraud difcover'd, it
is not within the Statute 27 Eliz. tho' there be many Badges of Fraud.
Cro. C. 550. pi. 2. in Cafe of Crifp v. Pratt, cites it as held 10 Car.
B. R. The Lady Gorges's Cafe.
Neir Chan. 4- A Purchafe was made by a Father in the Name of his Son, an Infant
Rep. 68. of 5 Years old. The Eftate was afterwards fequefter'd for the Delin^
^'^'v 'h"" ?''^^9' of the Father, and fold to the Defendant. Hide C. inclined to
— "r M the decree it a prefumptive Truft, and Hale Ch. J. and Windham J. Judged
Father /)«!■- Affiftants, declar'd it a Truft. But the Matter was compromis'd between
chas'ii a Copy- the Plaintiff (who was the Father) and the Defendant. 3 Chan. Rep.
hoidTtnt- o 23 May, 15 Car. 2. Sir G. Benion v. Stone.
ment in the ^ *' ^ ' -^
Name of the
Defendant his eldeji Son, an Infant of about ii Tears old. The Father afterwards laid out 400 I. in Im-
provements, paid the Purchafe-money, and all the Fines, and enjo/d during his Lije ; and having furren-
der'd it to the Ufe of his Will, devifed the fame to his Wife for Life, and afterwards to the other Plain-
tiffs his younger Children ; and made other Provijtons for the Defendant, who having rccover'd in Ejeiirment,
the Bill was to be relieved againll it; for that the Defendant was but a Truftee for his Father in the
Purchafe. But the Lord Chancellor conceiv*d, that he being but an Infant at the Time of the Pur-
chafe, the' the Father did enjoy during his Life, that the Purchafe was an Advancement for the Son,
and not a Truft for the Father. 2 Vern. 19. pi, 12. Pafch. KjSj. Mumraa v, Mumma.
5. Where
Truft. 501
5. Where a Piirchafe is made by a Father in his own and his Son's ^ Fieem.
Name^ it iluH prima iacie be intended an Advancement lor the Son, and ^'^P' '"';?'•
not prefum'd a Trull, unlefs dechir'd fo. Chan. Cafes 28. Mich. ^15 accordingly.
Car. 2. Scroop v. Scroop. °
6. Lord of a Manor cannot declare a 7r///? of a Copyhold granted to
his Son, tho' he took the Profits always by his Conlcnt. Chan. Cafes
261. Trin. 27 Car. 2. Dowdfwellv. Dowdlwell.
7. Where the Father purchafes /';/ the Name of a Son tinadvant'd., with- Fin. Rep.
out any exprefs Declaration of the Truit, this is an Advancement of the 5'^ S. C.
Son, and not a Truft for the Father. Chan. Cafes 206. Hill. 28 & 29 JJl^gS""^^'^^
Car. z. Ford Ld Grey v. Lady Grey. Preferment
becaufe be-
tween Father and Son'//)e BhoA is afufficient Confider/ttion to raife an Ufe to the Son ; and that in all Cafes
ivhatfoever, wliere a Truft fhall be between the Father and Son, contrary to the Confiderarion and
Operation of La Wi the fame ought to appear upon very plain and coherent, and binding Evidence -
and not by any Argument or Inference from the Father's continuing in Pofleflion, and receiving the
Profits, wliicii fomctimes the Son may not in good Manners contradict, efpecially where he is advanc'd
but in Part. And if fuch Inference dial! not be made by the Father's Perception of Prof ts, it fhal! never
be made from any V\'ords between them in common DifcoUrfe ; for in thofe there may be o-reat Variety
and fometimes apparent Contradiitions. Now where there is no clear Proof of anyTrult between the
Father and Son, the Law will never imply a Trult, becaufe the natural Confideration of Blood,' and
the Oblij^ation which lies on ihc Father in Confcience to provide for his Son, are predominant and
muft over-rule all Manner of Implication.s. And herein the Law of Trufts does (as it ou<;ht to do)
zp-Q.cvi\x.\\x\M Lixiv of Ufa before fie Statute of H. S. and therefore, if before that Statute, the Father
bad made a FeotFment to a Stranger without any Confiderarion, the Law railed an Ufe without any
Implication to himiclf ; but if he made a FeotFme.n to his Son, no Ule did arife to the F.nher bv Imoli-
cation, becaufe the Blood, which is afufficient Confideration, did H.-c and fettle the Elhte in the Son.
It is true, yiherctheScniim-irned in the Life-time of his Father, and bv him * ftilly adv^inc'd, and in a
manner, emancipated, there a Purchafe by the Father, and in the Name of his Son, may be a Truft
for the Fiither, as much as if ith.id been in the Name of a Stranp;er, becnufe in that Cafe all Prefump-
tionsor Obligations of Advancement ceafe. But inhere the Son is not ndv.-inc'd, or but advanc'd or
emancipated ;;i Part, in fuch Cafe there is no Room for any Conftruition of a Truft by Im'jlication ■
and without clear Proofs to the contrary, it ought to be taken as an Advancement of the Son.'
* A Purchafe by the Father, is made in the Name of a Son f-c'jided for before, it is only a Truft for
the Father ; for having already provided for him, he is under no further Obligtition to provide more
for him than for a Stranger ; and were it otlierwife, no Father could truft his Child ; Per Ld. Chan-
cellor. 2 Chan Caiesz3i. Trin. 29 Car. 2 Elliot v, Elliot. S. C. cited VVnis's Rep. 6o3. in
Cafe of Loyd v. Read.
8. AVhere the Father purchafes in the Name of the Son, it has frequent-
ly been decreed an Advancement, and not a Truft, tho' the Father takes
the Pro/its and keeps Frffcjfion } and tho' the Father, after [itch Purchafe^
declares the 'Truft ^ yet it is not good, unlefs tlie Truft be declared before
or at the Time of the Purchafe, and fo the Ld. Chancellor agreed. 2
Chan. Cafes, 231. Trin. 29 Car. 2. Elliot v. Elliot.
9. A Father /)//i-ci7^/^j the Revcrfion and Inheritance, in his own Name,
of Lands of which a Leafefor 3 Lives was then in Being, and atterwards
purchafes the Leafe for 3 Lives in his Son's Name, it is decreed a Truft
and not an Advancement. Fin. R. 373. Trin. 30 Car. 2. Hcdgkinfon v.
Moor.
10. A. a Grand-father, Ivught A Chamber in the Temple in the Name of
B. his Nephew, in Tnifi JorC. his Grand-fon, and furnilh'd a Study there
with Law-Books, and the Chamber with Bedding, and other Furniture.
After A. made his Will, and B. Executor, and gave C. 500 1. A. before
his Death fent the Key of the Chamber to C.'s Mother ; but B. after A. '3
Deceafe, broke open the Chamber &c. and pretends that A. told him
that he bought the fame for B. But a Truft appearing on the Proofs
for C. it was decreed that B. Ihall deliver an Inventory to C. or his iVlo-
ther, and at C.'s Age of 17 fliall deliver all into C.'s PolFeffion, and af-
lign all his Right &c. to C. and his Affigns. But if C. dies before ifj,
living B. then B. to have the Chamber i and B. to give his own Recoo--
niiance to pay C. the 500 1. at his Age of 17, tho' by the Will it was
was made payable at 21. Fin. Rep. 382. Trin. 30 Car. 2. Moor v.
Agar,
6 M II. Gnwd^
^02 Truft.
11. Grand-father takes Bonds So'. /« the Name of his Grand-children.
i'er Lord Chancellor, There is a great Difference in fuch Cafes where
the Father is dead, and where he is alive ; tor when the Father is dead,
the Grand-children are in the immediate Care of the Grand-father, and
if he takes Bonds in their Names, or makes Leafes to them, it fhail not
be adjudged Trults, but Proviiion for the Grand-children i unlefs it be
otherwife declared at the fame time, and decreed accordingly on that
Reafon. 2 Chan. Cafes, 26. Pafch. 32 Car. 2. Ebrand v. Dancer.
12. Lord of a Weft-Country Manor (on the Refufal of his Tenants
to renew their Leafes) makes a Leafe to his Daughter for 99 Tears of the
Premilies, and alter fells the Manor to A. who has Notice of the Leafe ;
but took a Collateral Security that the Daughter, when of Age, Ihould
furreuder. Ld. Chancellor held, that it is not aTruft for the Father,
but an Advancement for his Child. Vern. 467. pi. 450. Trin. 1687.
^ g .J, Jennings v. Selleck.
Report it-'^ ^"i- ^- Jointcnant of a ^d Part, conveys his 3d Part to the Ufe of hifn-
ftlf, in cafe felf jor Life, Remainder to his Wife j or Life, Remainder to his Son in Fee,
of the in- and at the fame Time makes his Will, and gives the fame Lands to his
tii-e Fee, Son in Tail, charged with his Debts. Decreed, that the Son is not a
would not Trullee for the Father in the Settlement ; but if the intire Fee had been
have been convey'd to the Son, it had been otherwife. 2 Vern. 28. pi. 19. Trin.
aTruft. 1687. Baylis V. Newton. [Quaere. The Cafe is incorreftly printed in
Vern.]
A Baron j^. Baron purchafes a Walk in a Chafe, and takes the Patent to hi'mfcif
S'Jw to* ^W hjs IVife, and ;}. S. for their Lives, and of the longeft Liver of them.
h'imrcif ° P'^r Ld. Jeffries, This ihall be prefumed an Advancement and Proviiion
Wife, and for the Wife; for Ihe cannot be a Truftee for her Husband. And de-
Daughter, creed to the Wife for her Lile ; and il J. S. Ihould furvive her, then to
and their ^^ ^ Truft for the Executors of the Husband, and to be applied
an Advance- '^°'^'^'"ds Payment of his Debts. 2 Vern. 67. Trin. 1688. Kingdom v.
ment, and Bridges.
notaTiuft,
and a Mortgage bv him fliall not bind the Lands after his Deceafe in the Life of the Wife and Daugh-
ter. Ch. Prec. i. Hill. i6Sq. by the Lords ComminTioners, Back v. Andrews. 2 Vern. izo. pi. 120.
Hill. 1690. S. C. accordingly.
15. The Father pnrchafcd the Inheritance of Hoiifes See. of the Nature
cf Boreugh Englip, in the Name of his 2d Sen, and died ; and the youngeft
Son, who by the Cultom is Heir at Law, p-eferr'd his Bill againll the 2d
Son, to have a Conveyance ot the Ellate to him, aliedging that the 2d Son
was only a Truftee for his Father. It was proved, that the Father paid
all the Purchafe Money, and that he had laid out great Sums of Money in
Building upon it, and improving it. On the other Side it was proved,
that the Father, before he purchafed, declared he intended it for his zd Son,
and fome ether Parol Difcourfe to that Piirpofe. Cur.' Difmifs the Bill; for
that it is a fettled Rule in this Court, that whenever a Father purchafes
in the Na.me of a Child unprovided for, it is intended a Proviiion, and
not a Truft, unlefs it be otherwife proved, and the Proof lies on the
other Side ; and it was alfo before the Statutes of Frauds and Perjuries,
and is ftronger fince, becaufe Declarations of Truft ought to be in Writ-
ing; tho' in other Cafes aTruft will refult, where it appears that another
paid the Money. 2 Freem. Rep. 252. pi. 319. Mich. 1701. Shales v»
* T V Shales.
I • tal^ifi"' ^^' Tlie Father purchafed in a younger Son's Name, and a Nephew^ s,
the Profits," Lands of Inheritance; and alfo purchaled a Term for Years (of which
muft be in- he himfelf had the Inheritance) in the fame Son's and the Father's Mo-
tended as ther's Name, tho' the whole Purchafe Money was mentioned to be paid
Ihe^stn"'" by the Father, and tho' he * took the Profits during his Life, and died.
Ibid. 11; — leaving the Son about 8 Years old. And tho' aReverJion, expettant on his
S. P. 6ci Mother's Death, was fmkd upon him, yet Ld. Chancellor held tiic Son
. to
Truft.
503
to be unprovided for^ not-wlthjianding fach Reverjion after his Mother's Admitted by
Death, and he might ftarve in the mean time ; and that the Truftees Ld. Chan-
having dtfclalnid, made it ail one as it" the Purchafe had been in the "/'°'';.^^'?r
Son's Name only. Wms.'s Rep. iii, 112. Mich. 1709. Lamplugh v. jhe'pather
Lamplugh. had took the
Profits after
theClild's coming cF Jge, and when of Difcrction to claim liis Right Hill. 1719- Loyd v. Read.
.-is where A. a Grand-mother, ptnhafes an Avnttity in the 14 /. per Cent. Annuities for Lives, for 100 1. in
the Kame of E. her Gr.ind-child- The Father of E. gave A. the Grand-mother, a Bond to repay her the
100 1, in cafe E. fliould die in the Grand-mother's Life. A. kept the Tally, and received the Annuity
during her Life, and difpofcd of it by her Will to F. another Grand-child. Decreed by the Chan-
cellor, that the receiving the Income, and keeping the Tally, and no Claim having ever been made by £".
fliew'd that E. was but a Trultee for A. and that the Bond c^iven by the Father, in which no men-
tion was made of a Trull, did not make it to be fo. Wms.'s Rep. 60;, 608. Hill. 17 19. Loyd v.
Read.
(G) Declaration oi Tiw^t fiiff cunt. What.-
I. TTl'TOiJD.5' which are not altogether fo artificial, will ferve to dire61
W a Truft, which will not ferve to limit an Eftate ; per Lord
Keeper. Fin. Rep. 159. Mich. 26 Car. 2. in Cafe of Nourle & al' v.
Yarworth.
2. 2.9 Car. 2. cap. •}. S. 7. Ena£ls, That all Declarations or Creations of Ids donht-
'triijls Iball be manifefied by fotne Writing Jign' d by tke Party, or by his laji ^J^! whether
Will in m-iting, or elfejhall be 'void. dolh eS
to Ufes, be-
caufe they are not mention'd there, but only Trufts; notwithftanding we take Trufts and Ufes to be the
fame, in vefpeft of Trufts in their larger Extent, and fo within the Statute of Ufes; per Holt Ch. J.
Holt's Rep. 7 56. in Cafe of Bulhell v. Burland.
This Claure extends to Strangers only, and not to the Conufee of a Fine ; for there needs no Writing
to declare the Ufe to him, and therefore it cannot refuk without a Parol Averment. But when a Fine
is levied, and it is to the Ufe of a Stranger, then it is within the Statute, and muft be declared in Writ-
in"- ; per Holt Ch. J. 1 1 Mod. 214. in Cafe of Ld. Altham v. Ld. Anglefey. The Conu(ee has
the V^c by the Operation of Law, and fo there is a Tenant to the Precipe. Holt's Rep. 7 58. S. C.
It is not neceflary for a Truft that relates to the Peifonalty, to be in \\"rit;ng by this Statute ; per Par-
ker C. 10 Mod. 40J. in Cafe of Nab v. Nab.
S. 9. Jffignments of 'frufr spall be in Writing, Jign'd by the Party ajjign-
ing by fitch laft Will, or elfepall be of no EfeB.
3. A Truft was decreed of a Term for Years aflign'd, tho' the Truft
was not exprefs'd in the Deed ; but it having been fo dechired by the Af-
lignee, and he having given Bond to perform the Trnfl, the fame was de-
creed. Fin. R. 356. Pafch. 30 Car. 2. Goodwin v. Cutler.
4. A leafed tor 3 Years to B. by Deedj but by Parol agreed it fliould
be in Truft for B. and C. jointly. C. pays a Moiety of the Rent.
Whether this be within the Statute of Frauds, was doubted by Charlton
J. who fat in the Ld. Chancellor's Abfence. 2 Vern. 108. pi. 97. Mich.
1682. Riddle v. Emerfon.
5. A. makes his Will, and his Wife Executrix. — B. the Son after- s. C. cited
wards inveigles the Mother to get A. to make a new Will, and to name Chan. Prec.
B. Executor, promijing that his Execiitorpipjhoiild be only in T'rufi for his 65' Mich.
Mother. Ld. Keeper North, notwithft"anding the Statute of Frauds and in°Aif^n-,
Perjuries, decreed for the Mother, it appearmg to be a Fraud, and a Cafe.
Truft, tho' no Truft was declared in Writing , and order'd the Son to
be examin'd on Interrogatories, for Difcovery of the Eftate. Vern. 296.
pi. 290. Hill. 1684. Thynn v. Thynn.
6. R. M,
50-4.
Truft.
6. R- M. devi-fes 1500 /. to A. and B. for ftich Ufes as 7'tjiator had de-
clared to them^ and by them not to be difclofed. A. in the Lite of ii.
writes a Zd-mr, dilcloling the Truft i it is a good Declaration of the
Truft. 2 Vern. 106. pi. 105. Trin. 1689. Crook v. Brooking.
7. 1'. OH his Daughter'' s Marriage to H. fettled certain Lands^ hut omitted
Dale and Sale^ wah Intent that f a Purchafe (loould offer of Lands more
convenient to B.'s FJlate, the other might be fold and fich Lands be pur-
chafed. Soon alter a treaty was on foot by W. R. on Behalf of B for Fur-
chafe of the Manor of E. and W. R. and B. articled to pay the Furchafe
JVloney, and the Conveyance was taken in the Name of W. R. and A. the
Father of B. and to the Heirs of A. The Purchafe Money being 3000 1. is
mention' d in the Purchafe Deed to be paid by A. and ivas really by him bor-
Yowd of C. on a Mortgage cf his own Efate. A. held Courts there, and at
thofe Courts declared it was his Son B.'s hjlate. About 2 Years after, A.
borrows 3000 1. of J. N. to pay off C. and J. N. takes a Security off- B.'s
Landsj viz,. Dale and Sale, and thereupon A.'s Security was dilcharged;
A. was a Party to this Security, and gave a Receipt on the Back for the
3000 1. Aicervvards A. devifed this JVUinor of £. inter alia lor Payment
ot his Debts. The Queftion was, if here was a Truft for B. fui?iciently
declared in Writing, according to the Statute of Frauds. And per Lds.
Commiffioners, we think it a 1 ruft upon the Face of the Deeds ; and de-
creed for B. the Plaintiff. 2 Vern. 167. pi. 154. Trin. 1690. The Earl
of Plymouth v. Hickman.
8. A Mortgage v.- as made by way of abfolute Conveyance, and a Defea-
fance prcpar'd to be executed at the fame Time ; and asfoon as the Mort-
gage was executed, the Mongagee fnatch'd it up, and refus'd to execute
the Defeafance. Arg. Ch. Prec. I03. 104. in the Cafe of Newton v.
Prefton, faid to have been reliev'd, tho' it did not feem to be within the
Letter of the Statute ol Frauds and Perjuries.
9. B. takes a Mortgage of A. for 700 1. but Part of the Money was
C.'s, but there was no Declaration in Writing. Powell J. allow'd the
Proofs to be read, but would not decree the Truft. Ch. Prec. 103. pi.
92. Mich. 1699. Newton v. Prefton and Briggs.
ID. A. being in Poifeffion of the Oftice of Clerk of the Crown &c. irt
B. R. in which B- has alfo an Fflate ior Life, procures B. to furrender, and
folicits a Patent for himfelfand C and takes a Noteirom C. promiftng to
declare a Trufl from A. The Patent afterwards is obtained ; A. dies in
Debt, and without calling ior a Declaration of this Trult. This Note
was held to be a fuficient Declaration ot Truft. Chan. Cafes in Ld.
Talbot's Time 97. Trin. 9 Geo. 2. Bellamy v. Burrow.
(Hj Perjormd. How.
S.C. cited I- T)Erfonal Eftate was devifed to the Wife, on Truft mt to difpofe
Vern. 414. J^ thereof, but for the Benefit of his Children. She by Will gives on-
w??^^°^ ly 5 s. to one Child. It was decreed the Eftate to be divided equally.
Thurburne. ^^^^- ^6. pl- 63. Mich. 1682. Gibfon V. Kinven.
—And Ibid.
415. fays that one main Reafon in this Cafe was, that the Wife had married a 2d Husband, and fo
might be influcnc'd.
2. A, by Will direffed that his Lands pould come and dcfcend' to his 3
Daughters, infiicb Shares and Proportions as his Iffe by Deed in U'nting
Ihould
.Jt,-
Truft. /^o5
Jhould appoifit. The VV'it'e Hiade an unequal Dillribution, whereupon one
of them brought her Bill, inhlting that Hie had behaved herielf dutiful-
ly, and pray'd Relief The Defendant pleaded the Will, and that what
the W lie did was in Purfuance of that Power. Upon long Debate, the
Court declared the Caufe was proper, and relievable in Equity; butfaid
it was difcrenionarv whether to relieve or not, and took Time to confi-
der of it, and to be attended with Precedents. Vern. 455. pi. 352. Hill.
I & 2 jac. and ibid. 414. pi. 392. Mich. 16S6. 'WAi v. Thurbane.
3. Mr. Colfon dtvifed 10,000/. together with his Houfe at Ken-
fington, wherein the Plaintiff and D. his Wile then lived to be fettled upon
D. and her l(fne in fiich Manner as his Esectitor poiild think Jit with the
Approbation of the [aid D.- — D. has 8 Children by C. and there is a Provifton
jor the eldeft Son by the Marriage Settlement ; Bill was brought for the
Direction of the Court for the Execution of this Truft in the \Vill.
Cowper C. iaid, this Truft in the Will being Executory muft be fo car-
ried into an Execution in a Court of Equity as to fecure the 10,000 1. to
the Children of D, and tho' there is no exprefs Dire£lion to lay it out in
Land, yet being direfted to be fettled together with an Houfe which is
a Fee Simple, it is proper lor the Executor to lay it out in Land, and
then make a ftrift Settlement to D. lor Life, with Remainder to the Chil-
dren in fuch Proportion as the Executor with the Approbation of D.
lliall think tit, but if they can't agree about the Proportion, then to be
referr'd to a Matter for his Direction therein. Mr. Vernon propofed
4000 /. to the eldcji Son, and 6000 /. amongjl the other Children, which
Ld. C. feem'd to think a reafonable Proportion. MS. Rep. Mich. 4 Geo.
in Cane. Clark & Ux. v. Fellows.
( I ) Creditors. Truft for Vaymcnt of Debts
favoured.
1. f I "1 H E Father 'Tenant pur aiitcr Vie made d Lcafe for 99 2~ears, as 2 Chanc.
J[_ was pretended, but was to A. and B. and their Hetrs Habendum ^^P- 'o°-
for 99 Tears, which was inlifted was void, and then the Truft annexed ^' ^ ^"f ^'^"^
to tne Leafe is void. Ld. Keeper faid, ihtTxu^h for Payment of Debts, fi^l^x^o'
and that Hull fupport the Truft. Chanc. Cafee, 249. Hill. z6 8c 27 Car. the Deed ap-
2. Leech v. Leech. ^e^y'd can-
it was a f^ood Deed, and that the cancelling thereof did notdiveft the Eftate of the Truftees therein
named, and that tlie Truil thereby created, ought to be perform "d.
2. Where by an Act of Parliament there was a Special and Limited
T'rufi tor Payment of Debts in a Schedule thereunto annexed, and --jL'ithin
the Ttme therein appointed, and after the Payment of thefe Debts, there
was a General Truft for Payment of any other his Debts which he fliould
•appoint. The General Truft can't take Place till the limited Truft be
fully executed, and the limited Truft being at an End by E-fflutlton of
the Times mention'd in the Aft, and not all executed, no Court can proceed
on the Special Truft or caufe any Execution thereof, io that the Special
Truft being determined, the General Trutl muft be fo likewife. Relolved
by the Ld. Keeper alliited by North Ch. J. and Turner, and Rainsford
J. Fin R 129 141. Mich. 26 Car. 2, \\ eld v. Lady Wentworth
^ al'.
6 N 3. A.
Truft.
3. A. felled ot Lands (in Fee as he thought, but in Truth he was only-
Tenant) in Tail, demifed the fiime for looo Tears to Trullees for Pay-
ment of Debts in a Schedule. Afterwards other Debts appear'd, and the
Entail being difcover'd, A. levied a Fine to bar the Entail, and defiroy
that Deed of 'Triifi and execute another to the fame T'rujfces in Fee, and to i>!-
fert other Debts, The Court held that the accepting the new Deed of 7'rufi
was no Breach of Trull, and decreed the Truftees to pay the Debts in
both Schedules, the real Incumbrances according to their Order, and
the Rell in Proportion. Fin. R. 478. Mich. 32, Car. 2, Woodhoufe &
al' Creditors of Sir R. Combes v. Cotton & al.
4. Lands were fettled in Trult lor Payment of Debts ottt of the Rents
and Profits ot the fame or out cf the annual Rents and Profits; tho'
fuch Words as (out of the Rents and Profits) would in Cafe of a Will
impower a Sale, yet not in Cafe of a Deed executed. Vern. 104. pi. 90.
Mich. 1682. Anon.
(K) Set q/jds in Favour of Creditors, and of the Parties
firft in the Truft. On Circumftances.
I. A III Coiifideration of Marriage between him and M. and for a Join-
_/~\» tare ajjign'd certain I'crms jor Tears, whereof he was poflefled
to J. S. and W. R. in Trult to permit A. during his Life, and M. during
her Life, and the Heirs Male of their Bodies after their feveral Deceafes,
to take the Rents IJfues and Pro/its during the feveral Terms therein to
come, if the faid A. and M. or any Ilfue of their Bodies fliould fo long
live, and if they fliould be all dead, then to Daughters «&c. and cove-
nanted upon Purchafe of the Inheritance of any of the Premises, or Ibme
other therein mentioned, to procure the like Conveyance. In one of the
Terms there were about 32 Y^ears to come, in another about 24, and in
another about 45. Upon a Reference to the Judges from the Chancery, to
which A. and Al had applied to enable them to fell the Premilles for
Payment of Debts, and jor a frefent Relief and Maintenance for themfelves
and Education of their Children, they took Notice that the Trult was
not fix'd upon any Perfon certain after the Death of A. and M. that the
Words (Heirs Males) in Cafe of Inheritance would be Words of Limita-
tion and not of Purchafe, and that fuch Limitation of a Term would be
void and go to the Executors, and that the Terms being of no longer
Continuance it was not unlikely but A. or M. might furvive the faid
Terms, and of what fatal Confequence the not enabling the Sale would
be, and that this Cafe not falling within the General Cafe of Trufls, and
M. being willing to join in a Fine, they certified that it was fit that an
Agreement made by them for a Sale Ihould be decreed j and the Judges
Certificate was confirm'd. Chanc. Rep. 9. 2 Car. Lydda (als. Lyddal)
V. Vanlore.
2. A. on Marriage cf his Sifter (who had 200 /. for her Fortune) with B.
advanced 600 1, more of his own Money, in Conlideration of which 800 1.
an EJtate was convefd to A. in 'tntjl for a Jointure for his Sifter, the Re--
viainder to the IJJue of her Body, Remainder to the Heirs of B. A. paid
500 1. of the 800. and after was prevailed upon by the Necejfities of B. to
deliver tip the Articles, and for 5 1. to releafe to B. B. and his W'ife by
Deed and Fine fell the Lands, the Wife dies leaving C. a Daughter, B.
is living, C. is decreed to have the 300 1. unpaid, with Damages, and
A. to pay it accordingly. Chanc. Cafes 124. Hill. 20 & 21 Car. 2. More
V. Grice.
3. Upon
Truft.
3. Upon a Marriage Settlement the Queltion was, \V'hether aTruftee ^-d. Keeper
for prelerv'ing Contingent Remainders Ihall be decreed to join in a Sale ^.°" ^^^
of Part (tlie Marriage Portion not being fully paid, and the Neceffities ^r'abft it%nd
of Celty que Trull very urgent) lor Payment of Debts, they having fio ikid he had
I/fiic, and there not being any Probability of their having any^ having been I<"own Peo-
married 1 2 Years. Ld. Keeper North laid he could not decree a Breach ^}^ ™med
ofTrulti and if it hath been done, it was it may be, where Recom- ^khout F-
pence was made. 2 Chan. Cales 144. Trin. 35 Car. 2. Davis v. Weld. fuc, and af-
ter hadChiU
di-en ; but on Importunity, gave Time to fearch for Precedents. Vern. 181. pi. 177. S.C.
(L) Determined. When.
1. y ANDS were convey'd on T'rujl till fiich Debts ^aid. An Account
J J was decreed, and that on Payment of what was due to the Truf-
tee. Defendant, he fliould reconvey to the Plaintiff and his Heirs, tho'
Defendant and his Ancettor had enjoy'd them for 20 l''ears without any
Claim. Fin. R. 262. Trin. 28 Car, 2. Berrington v. Mafon.
2. A. made a Deed of Gift of Goods, Habendum to Truftees/or the
Ufe of his Wife for the Term of her natural Life, and then to remain to
his Children. Afterwards the Goods were taken upon an Execution a-
gainft A. (ibrthe Deed was not good againll a Creditor.') The Goods were
Ibid by the Sheriff for 800 1. A's Steward paid the Money, and re-
deem'd the Goods, and A. gave Bond for Re-payment, and accordingly
repaid the Money, and the Bond was cancell'd , lb that A. gatnd a new
Property, and his Executor lliall have the Goods againit the Deed of
Gilt. So, upon producing the Teltatum Fieri tacias, and the Bill of
Sale by the Sheriff^ and the Bond cancell'd, the Executor had aVerdiSt.
4 Mod. 51. Mich. 3 W. Sz M. B. R. Countefs of Winchelfea v. Lady
Maidltone.
3. Devife of Lands to Executors till Debts paid, is but a Chattel In-
tercft, and determines at Law when the Truit is fuiolied ; Per Cur. z
Vern. 404. pi. 373. Mich. 1700. in Cafe of Hilchins v. Hilchins.
(M) Re'v'rued. In what Cafes.
A Truft was broken, and then a full Bar to the Cefly que Truft, and
yet the Land coming afterwards into the frnftee's Hands, he was de-
creed to convey the Land icfelf, as the bell Meafure that could be taken
in that Cafe. Vern. 148. pi. 139. Hill. 1682. in Cafeof Bovey v. Smith,
cites it as the Cafe of Ld.Canmore.
2. Trullee/f//.y the Land to a Stranger who had no Notice of theTrufl-, 1 Chan,
and after a Fine with Proclamation, and 5 Years paft, the Trujlee for ^^^■'_^^f_
valuable Conlideration really paid, re-par chafes thefe Lands of the Yen- y^^^ S^ pi
dee. Decreed that the Truilee Ihall Hand feifed in Truft as at firft, as -4. s. C. re-
if the Land had never been fold, or any Fine levied. Vern. 60. pi. 58. heard ; but
Mich. 34 Car. 2. 1682. Bovey v. Smith. \^f^l^, ^'j;'""
clar'd lie could not fee what they could o'^jcd to the Decree at the former Hearii'g ; a::d :ha: he wa<i
the
5o8
Truft.
tlie more ellabUfh'd in his Opinion, having difcours'd with North Ch. J. who concurr'd with him ;
and faid that in this Cafe the t'ine had not dcftroy'd the Truft; for^a Fine being but a Conveyance,
did not C'ltiii-^uini or (eparate the Trull: from the Land, but transferr'd them both together. S. G.
cited 2 Vern^K. 23 5. in Cafe of Cook v. Sadler, as that it was a reviv'd Truft.
So per Englelield and Brown, If Land had defcendcd to the Heir of one who had bound himfelf and
his Heirs in an Obligation, tho' he was difcharg'd by his having alien'd the Aflets, yet if he had re-
purchas'd the fame Land, he (Tiould have been charg'd. Qiiod fuit conceffum ; tho' at another Day
Fitihbert and Shelly denied this Cafe. Br. AlTcts per Defcent, pi. i. cites 26 H. S. i.
* All who
come in in
Privity of
Efinte, or
<u;ith Notice,
or without
Confideration.,
neral.
to
37 & 38 Eliz. and it is not
neither is the Boyer to believe one
buy ir, if he tell him there is a Truft.
(N) Bound by it. //7jo.
I. A Conveyance "was ahfolnte in iVords^ and yet there is a Bruit of a 'irufi^
_/\ ht!t doubtful whether there be a Truft or not. C. on the hear-
ing the Bruit bought the Land, yet pall not be concluded by fuch a Bruit,
as Sir Tho. Egerton faid, Cornuallis Cafe "
like the Ule at Common Law,
which would not have him
Toth 284.
2. A Suit is depending for a Irujl, and after upon Hearing the Irujl is
prov'd, then that is a fufficient Notice of Trult to any Man which
buyeth it (hanging the Suit) my Lord faid, in Diggs and Boys. Toth
2S4. cites 16 May, Pafch. 40 Eliz.
3. One that cmies in in the Pojl, lliall not be liable to a Truft, without
exprels Mention made by the Party ; and therefore they only are bound
by it who come in in * Privity of EJlate ; Per Hale Ch. B. Hard. 469.
Trin. 19 Car. 2. in Scacc. in Cafe of Pawlet v. the Attorney General.
are bound by it; Per Hale Ch. B. Hard. 469. in Cafe of Pawlet v. the Attorney Ge-
4. 'tenant in Dozver is bound by it, becaufe fl^e is in in the Per, but
not a Tenant by the Curtefy, who is in the Pojl ; Per Hale Ch. J. Hard,
469. in Cafe of Pawlet v. the Attorney General.
(O) Tniftce. ffho fiiall hzfald to he a Truftee.
1. T F Lands are nwrtgag'd to A. and B. where A. only pay eth the Money,
j| and the Intention was that B. ftiould take nothing; now B. fhail
be compelled to rckafe to A. Gary's Rep. 19. cites 27 Eliz.
2. The Defendant made a Conveyance in Truft, and after Cefiy que
^ruji fells the Inheritance, the Truft Ihall go in Equity to the Purchalor.
Toth 106. cites 8 Car. Lord Roberts v. Lea.
Comb. 8. 3. LeQee in Ej eminent is a Perfon in 1'rujl, and fee up by the Practice
Clofe V. of the Court, and is in the Nature of an Officer of the Court, and ihall
VauxjS. C. be within the Power and Control of the Court ; and therefore having
recovered and brought Trefpals for the mean Profits, and then releas'd
the Action, the Money, which was in the Sherift"'s Hands w^as rul'd
to be deliver'd. Skin. 247. Hill, i & Jac. 2. B. R. ... and Clofe.
4. Joint
Truft. ^09
4. JctHt Adortgiigces are Trultees ior each other. Carch. 16. Mich.
3 Jac. 2 in Cane. Anon, lays it had been fo held.
5. An /«/^;;^ may be aTruftee^ As where F. gave Lottery I'ickets But where
•amonglt her Servants, upon a Condition that if any of them came up a ^" '^/"f^ "
Pri7.e of 20 s. or more, her Daughter lliould have a Moietyof the Lot. One I'l^pfther^
of the Ticlcets happen'd to produce 1000 1. Lot. The Daughter brought inhuSm's
a Bill for a Moiety i and the Condition being prov'd, Ihe had a Decree, ^'^"'■i and
2 Vern. 560. pi. 508. Trin. 1706. Scot v. Haughton. another's,
is lilt S Tears old, anH (6 unfit to be a Truftee, it muft therefore be intended to be for his own Ben:fit
Wnib'sRep. iii. Mich. 1709. Lamplugh v. Lamphigh.
6. Alaficr of a Ship goes a Trading ^ojage, and dies. The Succejfor
opens pnbiukly the RffeBs cf the Deceafed, and then fends a Letter tnclos'd
with a Bond to the iVidow^ to be anfiverabk for Intereil, at the Rate of
Relpondentia Bonds. Decreed per Harcourc Ld Keeper, that the Siic-
'ceffor was a. Trultee. lo Mod. 20. Palch. 10 Ann. in Cane. Brown v.
Litton.
7. Guardians by Statute are only Truftees ; Per Lord Macclesfield.
Wms's Rep. 704. Trin. 1721. Duke of Beaufort v. Bertie.
8. Copyhold for 3 Lives was granted to Baron and Feme, and J. S. for
their federal Lroes fncceffrje, and by the Copy it appear'd that the line
paid was the Money of the Baron and Feme. Lord C. Macclesfield de-
creed, that J. S. is in Equity to be intended but as a Truftee tor the
Baron and Feme, and the Survivor of them ; and that it being men-
tioned in the Copy that the Fine was paid by them, is llrong Evidence
of its being fo, which, tho' the Court will not look upon as conclufive
yet any Evidence given to contradi6t it ought to be \ery clear and full
in order to prevail. VV'ms.'s Rep. 781. Hill. 1721. Benger v. Drew.
9. An Executor is no more than a Truftee made by the Teftator ; Per Carth 45S
Cur. 8 Mod. 126. Pafch. 9 Geo. i. Goodright v. Opie. Mich. 10
in the Cafe of The King v. Rains.— See Chan. Prec. 90 Hill. iiigS. in Cafe of the Earl of VN'orrinTon
V Langham. Per Ld. Macclesfield, Ch. Prec. 54-. Mich. 1-20. in Cafe of Nicholas v. 'Nicholas —
II Mod 161. Hill. 6 Ann C. B. by Ld. Ch. J. Trevor, in delivering the Opinion of the Cuun in the
Cafe of Arthur v. Bokenham.
ID. A. was feifed of a Copyhold of Inheritance, and having no Iirue,
but E. his Sifter was hi.s next Heir, who had C. a Son, and beino- de-
lirous that C. Ihould have the Copyhold, he made B, gi've a Bond to C. to
pirrcndsr the Copyhold.^ upon C. 's Requeft, to C. and his Heirs. A. dies,
C. enter'd, and died feii'ed, leaving no Iffue but 2 Sifters, who were his
Heirs. It was decreed per Lord Ch. that B. the Mother was a Truftee
for C. her Son, efpecially lince llie carried the Jigreetnent into Execution.,
by permitting him to enjoy during his Lite. 9 Mod. 62. Mich. 10 Geo
Alilon's Cafe.
11. A. had a long Exchequer- Annuity for 99 Years, which was fettled
on the Husband for Life, Remainder to the Uife for Life, Remainder for
Provijson for Children ; and had Liberty, by Decree of the Court, to borro-a:
300 /. on It, which was done, and this placed in B. the Lender's Hands^
as a Security till Payment, with Intereft. B. ftibfcribes it into the South Sea
Stock in 1720. A. brings his Bill for a Re-conveyance i it was held, he
could not be conJider'd as a Truftee, as he had it only for a particular
Purpofe, and had no Authority to fubfcribc. So decreed to account for '
the Profits, and to reconvey on Payment of Principal, Intereft, and
Cofts. Cales in Chan, in Ld. King's Time, 51. Mich. 11 Geo. i. Tho-
mas V. Puddlesbury.
12. Where the Husband fhall be look'd on as a Truftee for his Iftfe.
See Baron and Feme, Eennet v. Davis.
6 0 13 //
5io Tru
13. If a Ainu takes an hihiritance after Notice of Articles to fettle his
Eftate, he is deem'd a Trultee. See Comyns's Rep. 700. pi. 276. Mich.
13 Geo. 2. Skirme v. Meyrick.
( P ) Truftee. /Fbo iliall be faid fetfed as a
Trtift.
ee.
In the Cafe i. T F Feofee to Ufe makes Feoffment over, the 2d Feofiee is feifed to the
Vern. 149. Hill. 16S2. the Lord Keeper, in the Debate, put this Cafe to Serjeant Maynard, J. feifeA
in Fee hi Trull for B for full Corf deration cor.'jeys to C t lie Punhafer havinc; Notiie of the 'Irufl ; and after-
wards C to ftrengthen his oivn Ejtate, leues a Fine. Whether 6 the Celty que Truft, be not in thatCafe
bound to enter within ^ Years ? And the Council were all of Opinion, that he was not; for here C.
havinp purchafed with Notice, notwithftanding any Confidcration paid by him, is but a Truftee for B.
and fo'the Eftate not being difplaccd, the Fine cannot bar.
2. A. zd Vendee^ having Notice of a prior Sale to B. at the Time of the
Feoffment to A. — A. is feifed to the Ule of B. Kelw. 85. pi. 9. Pafch.
21 H. 7.
3. The Plaintiff's Father, being a Batchehr^ purchafed an Eftate in the
Defendant' s Name ; but after having Ill'ue the Plaintiff, the Court decreed
that the Lands Ihould go to the Plaintilf, and be re-affured by the De-
fendant. Toth. 184. cites 4 or 5 Jac. Hungate v. Hungate.
4. The Detendant promifed to procure a Leafe of certain Lands for the
Plaintiff from the Concradtors, btit pafs'dthcfameto bunftll ; yet order'd
and decreed, that the fame Ihall be pafs'd to the Plaintiffj according to
the firft Agreement in Feb. 8 Jac. Toth. 261. cites Egerron v. Eldred.
June, II Jac.
3 Chan. Rep. 5. Alter -i Contra^ for Ptirchafe of Lands, tho' they are CopyhoJd, the
4" in totidem Vendor Hands trulted for the Purchafor, as he Ihall appoint, till a Con-
So where a ^eyance executed ; per Cur. Chan. Cafes 39. Trin. 15 Car. 2, Davie v.
Copyholder Beardlliam.
having for
Money agreed to mortgage Land, he ftands truftcd for the Mortgagees. Chan. Cafes, 171. Martin v. Sea-
mor. So where the Cotitmcl to fell was made by Lrjjee ptr miter Fie, who died before he convey'd to
the Purchafer; and a Bill being brought againit tlie Heir, who enter'd, and hM ai Special Occupant,
tvhodemurr'd, becaufe being Occupant he was not privy to his Father, who made the Contraft ; but
upon advifing with the Judges, he was order'd to anfaer. Nelf Chan. Rep. 106. i; Car. 2. Stephens
V. Baily.
6. A. and B. being in Treaty of Marriage, and feifed each of Copy-
holds of Inheritance, tniitually fiirrender the fime to the Ufe of them two,
and the Survivor of them, and bejore the Marriage one dies. The other
enter'd on the Man's Copyhold, and enjoy'd the fume about 30 Tears.
The Lord Chancellor decreed a Re-furrender^ and an Account of the
Profits from the Death of the Man. Vern. 432. pi. 408. Hill. 1686.
Hamond v. Hicks.
7. A. and his Wife, being Aflignees of a Leafe, mortgaged to B. — A. be-
comes infolvent, and the 'Title not good. C. who had the Real Title., made
a Leafe in Trtififor A.'s Wife, in Coinpaffion to lier. The Malter of the
Rolls decreed the Truftees for A.'s Wife to make a new Mortgage to B.
laving to C. the additional Rent referved on the new Leafe. 2 Vern.
ir. pi. 7. Mich. 1686. Seaborn v. Powell, Auftin, and Mackley.
8. If
Truft. 5 1 1
S. It -i. has a Biprnp's Leafe for 21 Years, and A. creates a 'truji there-
upon, and after the Biiliop dies, and the Succeflbr tor a Fine rme-jus the
Lcaff, tho' he is not compellable to do it, and tho' there be no tritfi of the
zd Leafe^ yet Equity will fubjeft it to the ibrmer Truft. Sic di6lum
fuit by Serjeant Powis in Cane. 6 Mod. 57. Mich. 2 Am. Anon.
9. D. having more than 3000 1. per Ann. warned M. the Plain-
tiff, is:ho had 10,000 /. Portion^ and fettled 1000 1. per Ann. upon her for
her Jointure, and the greatelt Part of D.'s Eftate was fettled upon the
lirft and every other Son in Tail Male fucceffively, as ufual in Marriage-
Settlements. D. ran greatly in Debt, and J^. his eldeji Son being of jiiU
Jge, D. upon a Calculation of his Debts, and the Value of his Eftate for
Life, with Impeachment of Wafte, agreed with J. to convey all bis Efiate
to htiii, and J, covenants to pay all D.'s Debts, and to allow him 500 1.
per Ann. Rent-Charge for his Lite. Jnd further, (upon which the
Queftion arifes) that jf. frail indemnijy D. from all Debts, Charges, and
Expences for the Maintenance of the laid M. being then feparatcd by Con-
fent, M. brings a Bill againji D. her Husband, and J. to have an Allow-
ance for ha- AJaintenance &c. Cowper C. faid. That by this Covenant
to indemnify the Father from maintaining his V\'ite, the Son has taken
upon himfelf the Charge of maintaining her, and as to this Purpofe
ftands in the Place of the Husband, who is bound to give his Wile aa
Allowance, if he voluntarily feparates from her i and he took the Son if*
this Cafe to be in Nature of a 'Triiflee for the IVife, fo far as a reafonabk Al-
lowance jor her Maintenance ^ and tho' the Son doth oiFer to maintain her
at his own Houfe, }et he did not think Ihe is bound to accept that Of-
fer j for tho' he ftands in the Place of the Husband a» to her Main-
tenance, and a Husband is not bound to allow any thing to his Wife for
I^laintenance, if he offers to take her home, yet in this Cafe here lies no
fuch Obligation upon the Wife to live with the Son, and tho' ihe refufes
Ifie ought to have a reafonable Allowance ; and order'd her to be allow'd
200 1. per Ann. MS. Rep. Trin. i Geo. Cane. Dutton v. Dutton
&al.
10. P. applied to A. a Broker, to help him to 850 /. fipoa 1200 /. South Sea
Stock. A. procured the M'^ney, and took a Transfer of the Stock to himfelf ,
but P. gave a Bond for Payment of the Money borrow'd to B. and alfo
took aDfeafance jroni B. for the Stock. A i^y^ Days after the Stock was
transferr'd, and before the Time of Redemption A. fold and transferred the
Stock by Order of B. who proved infolvent ^ and the Plaintiif by his Bill
pray'd to have a Satisfaction againft A. for the Stock, upon Payment of
Principal and Intereft, A. having fold the Stock and received the Money.
Lord C. Macclesfield held, that A. was aTruftee tor both Parties, and
was guilty of a Breach of Truft in felling the Stock before the Time
expired for Redemption. MS. Rep. Hill. 8 Geo. in Cane. Philpoc v.
Helbert and Hodges.
1 1. Leafe of the Profits of a Market, devifed to a Trujlee for the Benefit of
an Infant. Leffor, before Expiration of the Leafe, e.xprefsly refufes to renew
to the Infant, becaufe there could be no Diftref^, and the Intant cannot
covenant i whereupon the 'trujlee takes it himfelf. He fliall be obliged
to convey to the Infant, and account for the Profits ; but to be indem-
nified from the Covenants in the Leafe. Sel. Ch. Cafes in Lord King's
Time, 61. Mich. 12 Geo. i. Kecch v. S.indford.
(Q^) Truftee.
^12 Truft.
( Q^) Truftee. Iln Po-xer.
S. p. Br. i.TT^EoITees might grant tiecejfary Offices, as Stevvardfliip'^, Bailywicks^
Fci'tFinents j^ ^^._ ^y^q' [j^gy j^^^y not grant jiiiiuitties to learned Men to defend
^'- dtesV ^^^ Land. They may alio, as it Teems, give Fees to Counfel, and Ihall
H -. II. have Allowance thereof, fo far as they are from being Maintainers,
PerHuiley Gary's Rep. 14. cues 8 H. 7. 12.
and Brian
Ch J. that they may grant all ordinary Ojfues, without the JJfevt of the Heir, during his Nonnge ; biu 770*
grant Fees for Life without his AfTcnr, at hi.s full Age. And per Keble, they may do this for the Prufit
of the Heir without his Ailent, and this v. as in Cancellaria.
2. A Trullee may fue in his oivii Name. Toth. 285. cites lo Car.
Windfor v. Sneath.
2 Ch. Cafes, 3. Where Truftees are appointed to fell Lands for the Payment of Debts,
115. S. C. i\^Q Sales by them made, or v\hut was more than ftifficient for Payment of
the Debts, are not good. Vern. 487. in Cafe of JJBljaJcp % Ji^OrtOn,
cites the Cafe of Culpepper v. Alton.
4. Lands fettled in Trull for Payment of Debts out of the Rents and
Profits of the fimie, or out of the Annual Rents and Profits, tho' luch
Words as (Out of the Rents and Profits) would, in cafe of a \\'ill, cm-
power a Sale, yet not in cafe ot" a Deed executed. Vern. 104. pi. 90.
Mich. 1682. Anon.
So of a Por- 5. Devife of 100 /. to an Infant, payable at 21 ; but if he dies, then to
non to be £ ^^d in the mean time the Interelt to be for his Maintenance. The
Mired__^^ut^ Trullee with 20 I. of the 100 A puts the Child out yjpprentice, who died
by a Mar- before 21. Per Commilfioners, it was decreed that it be allow'd the
riage Settle- Truftee, on Accouut. 2 Vern. 137. pi. 136. Pafch. 1699. Franklin v.
meiit. Ch. Green
Wa^rr'v^ 6. Equity of Redemption "iuas conve/d to A. in 'Truji for Payment of Debts,
Warr. and the Surplus to B. J. agrees with the Mortgagee to turn Interefi
into Principal. This Agreement of the Truftees Ihall bind B. tho' he
was no Party to it. MS. Tab. Tit. Truft, cites Jan. i9ch, 171 1. Con-
way V. Shrimpton.
7. If A. devifes Lands to Triijfees to fll for fuch a Price as they fkoiild
think ft, for Payment of Debts, Lord Macclesfield faid, that there could
be no Doubt but this Court ^ at the Dcfire of any lingle Creditor, might
■i^vAinoiild interpofe, and order the Eltate not to be fold as the Truftees
Ihould think fie, but (or the bejl Price before the Mafler. Wms.'s Rep.
704. in the Cafe ot Duke of Beaufort v. Berty.
( R ) Truftee. His Power, Retainer by him.
Brownl. 76, I- "D ILL by A. againft B. fuppofing B. had a Leafe of A.'s Teftator
77. S. C. by' _|3 in Truft ; but becaufe B. had disbiirfed leveral Sums oi Money for
the Kame xh& Teftator, it was decreed that B. Ihould retain the Leale, and that
*'^Wren°'^'' for the Overplus of the Value he fhould pay to A. the Executor, a great
ham accord- Sum of Money. Roll Rep. 56. cites it as the Cafe ol Harwood v,
ingly. Wraynham.
2. A.
"'- V"-fT^''-VMft'W**^'^^"*^^*-"-^-'* ■- ■ " I'l
Truft. 5 1 c^
2. A. employ 'd C. to purchaie Land for him, and to take up Money to
pay for it, which C. did, and 'took, the Parcbafe in his own Name, — A.
lued C. in Chancery to have the Lands on Payment of the Money. But
C. on other Occalions, was engaged for and on Behalf of A. and infifted
for them alfo ; and A. could not have a Decree, but muft pay the one
Money as well as the other. Cited by Ld. Chan, in the Cafe of Brad-
born V. Amand. 2 Chan. Cafes, 87. pi. 34. Car. 2. as decreed by Lord
Keeper Bridgman.
3. Where a Truftee for Sale of Lands for Payment of Debts, pays to
the Value of the Lands, thereby he becomes a Purchafer himfelf Chan.
Cafes 199. Pafch. 23 Car. 2. Lambert v. Bainton.
(S) Truftee. Power. .^i??j- of Truftee. HowfarprC"
judicial to Ce/ly que Tnij}.
I. A PofTefs'd of a Term ajffigns his Interefi to 4 Perfbns, on T'rttjl and
jr\« Confidence, to theUleof himfelf for Lite, and after to fuch
Ufes and Purpofes as he iliall declare by his laji Will. A. by his Will
devifed this to B. his Son, and to the Heirs ot his Body begotten. Re-
mainder over, and makes B. Executor. B. for 1600/. fells this to C. and
dies. The 4 Alfignees are dead. Adminijfrator of fnrviviiig JiJJignee (B.
dying without \'^ut) grants his Interefi to D. and he in Remainder (who
had an Annuity out ot the Term, and who by Deed fold it to C. and alio
releafed to C. all his Right in the Term) join'd with him in the Grant
to D. Per tot. Cur. Tlie Alignment was not void againll C. by 27 El.
4. but the Remainder over was void, and yet the Sale of B. toC. had been
good, if no Affignment had been, but the Alignment made it iU. Jo.
213 pi. I. Mich. 5 Car. B. R. Baker v. Sir Wm. Lee.
2. A Man conveys Land in Trull. T'rufiee commits felony. Thefe
Lands ihall ht forfeited^ tho' he may have Relief in Equity j per Bridg-
man. Cart. 67. Pafch. 18 Car. 2. in C. B. in Cafe of Geary v. Bear-
croft.
3. h.purchafes Lands in Mortgage in B.'s Name, in Truft for A. B.
was Debtcr by Judgment.^ 5 et the Lands are not aJtefted with the Judg-
ment; but if it appears that aMotety was only in Truft, the Judgment
lliall affetl that Moiety. Fin. R. 63. Hill. 25 Car. 2. "Medley v.
Martin.
4. An Annuity was granted for 21 Years our of Lands to J. S. and W".
R. in Truft for M. The Lands were granted over to J. D. and the
Truftees releafed to him. Decreed that the Arrears be all paid to iM.
notwithftanding the Releafe, and tho' the Term was expired, fo that
they were not recoverable at Law, and that the Lands Ihall be ftill
charged therewith. Fin. Rep. 411. Hill. 31 Car. 2. Watfbn v.
Corbet.
5. A. purchafed South Sea Stock for 750 1. which brought in 50 1. per
Ann. A. intrujts B. with the Orders and Minutes to recerje the Interefi.
B. gets another to perfonate A. ind fells the Stock to C. for 950 1. and
after transferring it, B. leaves the Kingdom. A. upon hearing.this,
gives Notice to C. and forbids C. parting with the Stock ; but however
C. fells it to D. tor 1090 1. and D. fells to E. for 1100 1. A. brings
I'ro'ver againft C. and recovers 750 1. Damages. 8 Mod. 9. at NiliPrius,
in C. B. betbre Sir Peter King, Mich. 7 Geo. Monk v. Graham.
6 P ■ (y) Truftee.
514-
Truft.
See Fines, (f) Truftec. Powcr. u^Itenation by htm. How it
(Y. 4) \ J A *
operates.
I
F my Feoffee upon Confidence do hifeoff another bona Fide, that
knozveth not of the Confidence, I am without Remedy. But ii" the
2d Feoffee have Notice of the Ufe, he iliall be compell'd here to per-
form it. Gary's Rep. 13. cites Fitz,. Subp. 19. 5 E. 4. 7.
S. C. cited 2. Feoffees to Ufe of Feoffor and his Fleirs, were dire£led hy his lafi
I Rep 1 1 1, lym to fell the Land for Payment of his Debts, and died. Th& Jirfl Feoffees
in (SrenDosl p^^^g ^ Feoffment to other Feoffees for Performance of the Feoffors Will, who
\lw;^'%^l'^-^ made a Sale. This Sale was not good. But the Power to make Sale
and (aid the was perfonal to the firfl; Feoffees, the' upon fuch Sale the 2d FeofTees
Pvcafon is might Well make a Feoffment to the Vendee of the firfl Feoffees ; for as
becaufe tlie ^^ j.j^g Land, the Feofiinent by the firfl to the 2d Feoffees was good ;
fe'ins merely ^ut the Power to fell remain'd Itill with the firll, and could not be
collateral to ttansfcrr'd to the 2d. Kelw. 45. Tr. 17 H. 7. pi. i. Anon.
the Right of
the La7id —Tht original Ufe , which was devifed to be fold, remain'd untouch 'd by the Feoffment, and
the Vendee fliall be in by the Feoffor, and not by the Feoffees, i Rep. 175. b. 174. in Digges's Cafe,
cites S. C.
(U) yi^is of Cejly que Tn/ft, and Truftee. Of (what
Effe^ as to defeatiijg the Truft, and deftroying con-
tingent Remainders.
Abr Eqii. I. r I \ HO' at Law, by the Trirftees concurring in any A61 to prevent
Cafes 385. I the Riling of the contingent Remainder, it was formerly held
S. C. came ^^^'^ ''^ ^^^ ^O"" ^^'^^ dellroy'd and gone ; yet Cowper C. held this to be an
on Mich, exploded Opinion now in Chancery as to Perfons, who are to come in and
II Ann. be- be conlider'd as Pitrchafers under the Marriage Settlement and Portion. But
fore Ld. C. ^^ ^^^ 'voluntary Remamaers ^ (as a Remainder to the right Heirs of the Body
■whoatre'ed °^' "^^e Husband, and after to his right Heirs, neither of which can be
that tlieliruefaid to be within the Purchafe of the Marriage Portion, but only the
of that Mar- £rll and other Sons &c. of the Marriage) this Court will not affill them
be confidtr'd '^'^ fupport the Remainder io dellroy'd. See G. Equ. R.. 34. Mich. 10
arParcha- Ann. Tipping V. Piggot.
fors ; but
that the Remainder to the right Heirs of a ^d Perfon is a voluntary Settlement, and the Confideration
of the Marri.jge cannot extend to it ; and if a voluntary Settlement is barr'd at Law, there is no Re-
lief in this Court ; that there is fome Doubt whether the Confideration of the firft Marriage fhall ex-
tend to the Iffue of the zd Marriage; but it can never be carried to the Limitation to the right Heirs
in Fee; that in this Cafe the Plaintiff ought not to be relieved in this Court, being as much a Volun-
teer as the Defendant ; and therefore fince the Plaintiti- has got the legal Title, he mull keep the filiate ;
That fome Conveyancers have been of Opinion, that a Man might lately purchafe in the C.ife above, if
the Truftees join'd in the Conveyance to bar the contingent Remainders, tho' there were Iffue of the
Marriage ; but that it is a dangerous Experiment ; and that this Court would certainly give Relief to
tht Iffue of the Marriage, wfio come in upon a valuable Confideration againft a Purchafor with Notice.
And the Bill was difmifs'd with Cofls. MS. Rep.
2. Lands were devifed by A. to J. N. and J. S. and their Heirs in
Trullj and to the Ufe of D, his Sifter for Life, Remainder to J. N. and
J.S.
Truft. 51?
^. 6". arid their Heirs during D.'s Life, to fiipport ^c. Remainder to the
Ufe of the fir fi ^c. Sons of D. in Tail Male ^c. Remainder to JV. R. in
Fee. D. married B. and being enfeint of a Son, (foon afterwards born)
B. and D. and W. R. join'd in a Fooff'inent to [other'\ -Tnijlces, to the Ufe
of B. and his Heirs, and levied a Fine to the new 'Tritjhes to the fame JJfes.
After which [as it (eems, tho' not exaftly thus Hated in the Cafe, which
only mentions that thev covenanted to levy a Fine] J. S. and J. N. by
Leafe and Re/eafe, convey d the Premilfes to B. in Fee ; and in about a
Fortnight after a Son was born, and named C. It was refolved by Lord
C. King, affifted by Lord Ch. J. Raymond, and Reynolds Ch. B. That
when the Truftees join'd in the Leale and Releafe to B. and his Heirs,
this deftroy'd the contingent Remainders. 2 Wms.'s Rep. 610. 612,
Mich. 1732. Manfell v. Manfell.
( W ) Ccfy que Ti-ufi. Tf^ho is, and Ho^ confiderd.
I. T TE is Tenant by Sufferance. See Kelw. 41. b. pi. 2. Pafch. 17 See pi. 3,
\f\ H. 7. 42. b. pi. 7.
2. A. appointed by his Will that his Eftate (being 2500 1.) be divided
into two Parts, and bequeathed one half to B. and the other to C. the
Son of B. an Infant, 700 1. whereof was in Bonds taken in the Infant's
Name. The Court thought the 700 1. was Part of the Perfonal Ellate,
and to be divided accordingly. Chan. Rep. 86. 10 Car. i. Bates v,
Alicklethwait.
3. Cefty que Truft is tenant at Will always to the Txuftees. Arg. See pi. t.
Show. 73. in Cafe of Pierce V. Smith.
4. It is a conftant Rule in Chancery, that Cefty que Truft fliall have
the Benefit of the Thing, if he be to have it, to all bit aits but to forfeit ;
per Ld. Keeper Wright. Ch. Prec. 215. Hill. 1702. in Cafe of the At-
torney General for Hindley v. Sudell, Hesketh, & al'.
5. A. feifed in Fee had IlFue B. and C. and other Sons, and J. K. and Ibid. 25-.
L. Daughters, and upon Marriage of B. with M. he fettled a good Part The Re-
ef the Premilfes tipun B. and M. and the Ifjue of the Marriage, ivith po'ter fays
Power to raife 1300/. for Daughters, if no Ifjue Male. B. and M. died Decree' was
without Ilfue Male, leaving 2 Daughters. Afterwards A. by Indenture affiim'd by
fettled the Premifjes to fe'veral Ufes, fubjeft to the 1300I. with Power of Ld. C.King,
Revocation, and Limitation of new Ufes. A. by Jndoilement revoked thc^" ^.^^r
old, and limited a new Ufe to C. in Fee j but yl. continued PoJfcJJion, neither, Dec'"? 2"?
for what appeared, had he any other Eftate. A. paid the 1 300 /. and took ' ''
Receipts from his Grand-daughters. Atter on a Treaty of Marriage be-
tween C. and S. he and C. covenanted to fecure 60 1. a Year to S. for a
Jointure, and that A. fliould have 50 1. a Year out of the Preraifles for
his Life ; and that, fubject to thefe Rent Charges, the Premiiles Ihould
be fettled on C. for Life, Remainder to his firft &:c. Son in Tail Male
by that Marriage, with a Provifo in Default of Illue Male to raife Por-
tions for Daughters of that Marriage, Remainder to D. Grandfon of A.
by another Son, Remainder to E. Grandlbn of A. and Son of J. in Tail
Male, Remainder to the right Heirs of A. All the precedent Eftates
being determined, E. brought a Bill lor a Conveyance, purfuant to the
Articles. Ld. C. Macclesfield, upon its being inlifted on by the Counfei
for the Plaintiff to have been a Truft in B. (before this laft Settlement
for A.) laid, that what very much helps this Cafe is the Appointment of
this Eftate by A. by the Indorfement to C. in Fee, and alio A. having
p.iid
5i6
Truih
paid the 1300/. to his ± Grand-daughters, taking their Receipts for the
Money whereby he obtain'd an Interell in Equity in this Eftate,
at leail'a Trull tor the Railing 1300 1. upon icj and it cannot be in-
tended but that there was fbme private Trull betwixt A. and C. for that
the former would not part ivith all he had in his Life-time to C. which is
rendcr'd ftill clearer by his continuing in Po£}j/ion after his appointment
to C. and by the Son's fnbmitting to accept fuch Limitations as in the Arti-
cles i and upon thefe Conlideracions, and looking upon the Limitations
to D. and E. to be Part of the very Marriage-Agreement, on account of
ihe feveral Intereffs'of A. and C. in the Eftate. His Lordfliip decreed a
Performance of the Covenant. 2 VVms.'s Rep. 245, 256. Mich. 1724.
Ofgood V. Strode.
(X) Cefty que Truft. His Power.
1 Rep. I SI. I. ^^^Efty que Truft hath Jils Hahendi and Jus Difponcndi ; and tho' in 11
\- '.".S!^"-" V^ Law he hath neither Jus in Re, nor Jus ad Rem, yet in Equity ■
—So-Vhe'e 5'*^ hath both. Arg. Mod. 38. in Cafe of Smith v. Wheeler. 1
lie \% Cefty
que Truft of rtP^_//?i;//7v. Mo. So6 pi. 1095. Mich. 5 Jac. in Cane. Cole v. Moore. Cefty que
Truft of rt Surplus has but a bare PoiTibility, and cannot fell. Chan. Cafes, 208. Trin. 23 Car. 2. Arg.
in Cafe of Lord Cornbury V. Middleton. Unlefs the Truftees are Parties. Chan. Cafes, 175.
Trin. 2.2 Car. 2. in Cafe of Backhouic v. Middleton. Any Difpofition by Cefty que Truft is bindinv;
iipn tie 7'ii.Jlee in a Court of Equity, and even at Law. Arg. Chan. Prec. 415. — Arg. G. Equ. R. 100.
2. Cefty que Truft of a perfonal Eftate may fiie in Chancery to have an
Account againft the Executor or Adminiftrator, and at the fame Time
• in the Prerogative Court, to inforce them to bring in an Inventory, 3
Ch. Rep. 72. 4 Dec. 1671. Digby v. Cornwallis.
The Re-, 3. Cefty que Truft may bring ^Vroz/w? againft t\iQ Bailiff appointed by
aNot^'lhat ^^^ "J^^-ii-ftee to manage the Eftate of Cefty que Truft, after fuch Bailiff
theTruftce ^as accounted to Truftee. 2 Chan. Cafes, 121. Trin. 34 Car. 2. Pollard
was dead ; V. Downes.
but he fays,
that that was not yielded as the Rc.ifon. Ibid .
^'^''"■^'-^ 4. Mortgagor in Fee, after the Mortgage- Money paid, is a Cefty que
'Vrin Vjac. Truft ; and a Will of the Lands made by fuch Mortgagor, before the
2. 1685. S C. Mortgage, (notwithftanding fuch Mortgage, and that for want of a
accordingly Reconveyance the Eftate in Law was in the Mortgagee, and fo a Ver-
— Ibid^^-"'''' *^'^ at Law pals'd againft the Devifee of fuch Mortgagor) is good, and
pl 5;47s.C. ^°^ revoked by fuch Mortgage, efpecially in this Cafe, where there was
confi'rm'd on a Republication after the Dilcharge of the Mortgage. 2 Chan. Rep.
Appeal. 297. 36 Car. 2. Hall v. Dench.
5. It has been held by fome that even a Bargain and Sale inrolled by
Cefty que Truft of an tijlate T'ail, lliall bind the Illue in Regard that
fuch a Truft is not within the Statute De Donis. Cited per Curiam,
Vern. 440. pl. 412. Hill. 1686. in the Cafe of Carpenter v. Carpenter,
alias, Walhborne v. Downes
It was doubt- 6. Common Recovery fuffer'd, or Fine levied by Cefty que Truft ofaii
it'^'warno*'^ Eftate Tail, has the fame Effect in Equity as it would have at Common
fettled Inte- Law, in Cafe the legal Eftate was in him. Refolv'd by Ld. C. Vern.
reft vefted ; R. 440. Carpenter V. Carpenter.
and Bridg-
man Ch. J. was of Opinion it fliould not. But it was referr'd to a Cafe and the Judge.-; to conflder of
Truft. 517
ir. Chan. C.iQs 68. Pafcli. 17 Car. 2. Ld Digby v. Langworch. For more as to this Matter, fee
Fines (D^ (Y. 4) Recovery Common ^I)
7. Tender to Cefty que Truft of Money due on a Bond and a Refufal,
is a good Plea to A£tion of Debt on the Bond njade to Truftee. Lucw.
577. Lynch and Templeman v. Clemence.
(YJ Cefty que Truft. ^f^oa forjciud by him, and
ivhere Bair d.
I . 'TP RUST Lands were feized into the King's Hands for a Contempt
jL ot Cefty que Truft (and not for Eebt or Damages to the King.)
Cited per Hobarc Ch. J. Godb. 299. pi. 416. in Sir Edward Coke's
Cafe, as Sir Robert Dudley's Cafe.
2. Cefty que Truft of KJiate for Life levies a Fine 'tis no Forfeiture^ but
good by Scat, of i R. 3. i. during his own Life, and if Proclamations
pafs there needs no Claim or Entry within 5 Years. Arg. Godb. 319. in
Cafe of Sheffield v. Radcliff
3. Cefty que Truft for Years m.2.y forfeit his Intereft ior Felony^ but 5 Chan. Rep.
Cefty que Truft in Fee cannot ; per Hale Ch. J. Hard. 467. Trin. 19 56. in Cafe
Car. 2. in the Exchequer, in Cafe of Pawlet v. the Attorney Ge-*'^^'lS^"°''r
„„_„! ■' nev General
"eral. ^ s,„ds s P.
accord indv
Nels. Chan. Rep. 152, 155. S. C. accordingly. Hard. 495, 495. S. C. accordingly
4. Cefty que Truft in Fee or Fee Txd forfeited by Attainder of Trea- Nels. Ch-in.
fon, and the Eftate is to be executed to the King in a Court of Review ^"^P- '5'^
by the Stat. 33 H. 8. 27 H. 8. 10. 3 Ch. R. 34. Pafch. 21 Car. 2. in the dem Verbt"
Exchequer, Attorney General v. Sands. —But not to
the Lord by
Efcheat by Attainder of Felony. 5 Chan. Rep. 56. S. C. Hard. 495. S. C. accordingly.- 2 Freem
Rep. 150. pi. 157. S. C. accordingly.
5. An Jlien is Cefty que Truft of an Eftate ; the Truft belongs to the Hard. 495.
King. 3 Ch. R. 35. in Cale of Attorney General v. Sands cites Hoi- ^^- ^c-
land's Cafe, Trin. 23 Car. i. Kef'?l^~^
S.C. accordingly. 2 Freem. Rep. 1 50. pi. i 5;. accordingly. '
6. If Cefty que Truft dies 'without Heir the Land fliall be difcharged of Nels. Chan,
this Truft. As if Tenant in Fee of a Rerc Charge die without Heir or ^^P- ' Si-
be attainted of Felony, the Land is difcharged. 3 Ch. R. 36. Attorney j^^^" ^^cord-
General v. Sands. "
7. If Cefty que Truft is indebted to the King, he fhall have Execution 5 tlhan.Rep.
of this Truft bath by the Common Law and tlie Practice of the Court of ^^p*'- '^ ^"'^
Exchequer. N. Ch. R. 132. in Cafe of Attorney General v. Sands. ingly "!!!!!?''
2 Freerp.
Rep. 150. S. C. accordingly. Hard. 495 S. C. accordingly. S. P. Hobart Ch. J. Godb. 299.
pi. 416. cites Babington's Cafe.
8 Truft of a Lcafe in Grofs lliall be forfeited for Felonv, as the Cflcl^^'''^' 49<J-
Of @>aniCrfCt's Cafe in Hob. DilCCOmb's Cafe, and Cro. J. 15abmQ;-f_^"^''°''^-
tpn's Cafe, and ^it ^ EalCSD's Cufej but otherwife of a Term af- .^^i-'ehan
6 Q^ lign'd
Truft.
518
Kep. 1 3 5. ilo-ii'd over to wait on the Inheritance. 3 Chan. Rep. 36, 37. the 5th
S.C. accord- j^efolution in the Cafe of the Attorney General v. Sands.
aPreem. Rep. 131. S.C. accordingly.
9. A Fifie with Proclamation and non Claim v/ill bar a Truft, and fo
'twas rcfolved in the Exchequer, and an Eulry on the Land by a Cefty
que Trull is not fufficient Clawi^ but it mulT: be by Subpoena ; per Ld.
Keeper Finch. Chan. Cafes 268. Mich. 27 Car. 2. Clifford v. Asbley.
10. If a Truftee does by Fraud and Combination with theCelly que
Truft, endeavour to evade any Penal Law, as the Statute of Simony &c.
under Pretence that a Truft is only cognizable in Equity, and that E-
quity ifiould not aflift a Penalty or Forfeiture ; yet Chancery will aid
Remedial Laws, and not futfer its own Notion's to be made Ufe of to
elude any Beneficial Law. Abr. Equ. Cafes 131. Pafch. 1706. Attorney
General v. Hindley.
(Z) Truftee. Matters between Debtor and Creditor of
Ce/hy que Tnijl^ and Cejly que Truft and Truflee.
I. T F a Debtor will collude with fome of his Friend /// Fraud of his
J^ Creditors, and the Friend break 'triijl with hwi, this Court will not
punilh the Breach ; } et (JJreett atlU COttrCli's Cafe to the contrary
(Fraus non eft fallere fillentem.) Gary's Rep. 18.
2. Henry Earl of Derby, con-veyd certain Lands in Trtijt to D. his
Servant /or Payment of his Debts, upon Mediation of an End of Contro-
verlies between the Daughters of F. eldeftSon of Henry, and VV. his youn-
ger Son, now Earl, yirticles were letdown that IV. Jhonld difcharge all
his Father's Debts, whereupon D. convey d the Leafes to W. The Credi-
tors fued D. in Chancery. And order'd to purfue their Remedy againft
Earl VV. Cary's Rep. 34, 35 cites Hill, i Jac.
3. A. has Goods in the Hands of B. and mortgages them to C. After
the Goods had been fome time in the Hands oi B. B. fold them. Per
Finch Chan. A. by the Mortgage diverted his Property, and the Goods
became C.'s, and B. became Truftee for C. and C. muft anfwer for his
^riijlee B. \y\\o [old the Goods after the Mortgage. 2 Chan. Cafes, 226.
Hill. 28 & 29 Car. 2. Perkins v. Avery, Brown, and Baker.
4. Where two Ft^rions feveral/y tritfi a Third, if one of the two muft
lofe, he that triijledrncift mttjl be the Lofer. 2 Chan. Cafes, 76. Mich. 33
Car. 2. Taulurier v. Ward.
5. Cefty que Truft fues a Bond in the Name of the Truflee. The Defen-
dant contelies a Judgment, and to prevent Execution, pays the Money to
the Truflee, who gives a Warrant of Attorney to a new Attorney to ac-
knowledge Satisiuction on the Judgment, which was done. Decreed
per Commillioners, that the Obligee pay the Money over again to the
Plaintiff", with full Cofts, it being a Fraud to pay the Money to the
Truftee, knowing it to be the Plaintift''s ; and the naming a new Attor-
ney was the principal Evidence of the Fraud, and Diitance of Wales
from London allow'd no Excufe, 2 Vern. 197. pi. 181. Mich. 1690.
Pritchard v. Langher.
6. A. and B. Truftees of Money /or the feparate Ufe of a Feme Covert,
lend it to C. who gives Bond to A. and B. and the Truft is declared in
the Condition. The Fe7m keeps the Bond. B. received Money tor C.
and
Truft. 5 1 p
and on fettling their Account, B. gives C. a Receipt Jor the loo/. as re-
ceived lor the IJk of the Feme. B. becomes infolvent. Per Ld. Keeper,
The Payment to B. (he not having tlic Bond) is not a good Payment.
2 Vern. 539. pi. 483. Hill. 1705. Baldwin v. Billingfley.
7. If Cefty que Trull mortgages Lands, and there is a.Defeff in the
legal Conveyance, (as in the principal Cafe there was a Defect of a Surren-
der) yet that fliall be fiipplied in Equity ; lor if afterwards the Trullee
could, by any Conveyance by him made of his legal Intcrell, defeat
the former Conveyance of the Celly que Trull, no Purchafer can be file.
Arg. G. Equ. R. 14. Hill. 7 Ann. in Chancery, in Calc of Oxwith v.
Plummer.
8. A Tejfator appoints B. Executor, and orders certain Money to he laid
out on Land-Security , for the Bene fit of C. The Executor calls in the Money,
and therewith purchafes Land, which he fiys was done in Purfuance of
the Will. B. dies, not leaving A{[ets to pay his own Debts. The Land
thus purchafed Ihall be for the Ufe of C. Sel. Ch. Cales in Ld. King's
Time, 57. Trin. 11 Geo. i. Anon,
(A. a) In Cafes where a Tru/iee is fo co?2vey. Ho^jd he
is to do it, and to ivbom.
I. t I IRE Defendant by his Anfwer confelleth he was Joint Purchafer
\ in Trujl with the Plaintiff's Father, to them two, and to the
Heirs uf the Plaintiff's Father, of the Lands in queltion ; and that he
never received any Profits thereof j and that he meant, at the Plaintiff's
full As,e, to convey the Lands to the Plaintiff and his Heirs, according
to the Trull. It is order'd and decreed the Defendant Ihall forthwith,
upon Notice to him given, convey his Ellate in the Lands to the Plaintiff
and the Heirs of his Body begotten, with fuch Remainder over, as in the lajl
Will and Tellament of the Plaintiff's Father is exprefs'd, at the Colls of
the Plaintiff Gary's Rep. 95, 96. cites 2.0 Eliz. Young v. Leigh.
2. li 'Tenant for Life and Remainder-man in 'Tail join in a Bill againll
Trultee, the Court will decree the Trujlee to convey to them, or to whom
they appoint, and poffibly he may pay Colts for refuting to convey and
putting his Celly que Trull to the Charge of an unnecellary Suit. Arg,
A Vern. 346. in Cafe of Bowater v. Elly.
3. Where a Queltion arifes how a Trull ought to be executed by a
Conveyance, there is no better Rule than to oblerve and Ibllow what has
been done at Law, in the executing Conditions that are Matters executory,
and to be perform'd {o far as the Cafe will admit of i Per Cowper C,
2 Vern. 736. pi. 644. Hill. 17 16. in Cafe of Newcoraen v. Markham.
4. A. deviled Land to a Company in Trull to convey to B for Life, Chan. Pi-l..
Remainder to his firll &c. Sons for their Lives fuccellively, and fo to 455. pi 291
their Iflue Male for their Li res only. Remainder over. Per Cur. An '?■*"• ^'^™''<1-
Attempt to make a perpetual Succeffion of Eftates for Life is \ ain, and g^EoTk"
an inipra£iicable Perpetuity. However the Trulfees mujl make as ftritf a 128. S.'c.^^'
Settlement as may be, fo that the Perfons in Being are to be made only in the
Tenants for Lile , but where the Limitation was to be to a Son not in '<'me Wc-d,
Eeing, there he mull be made Tenant in Tail Mail. - 2 Vern. 737. pi. p^.^'gnj
646. Hill. 1716. Humberllon v. Humberllon. fems u-an-
fcrib'd fron)
the MS. of thut Book Wms.'s Rep. 3;: pi SS. S. C. accoi-dirgly.
(B. a) Tiullee,
ec.
520
Truft.
( B. a ) Truftee. Favour d or Indemnified.
But otlier- I. rTpRuIlees were decreed their Cofts and Charges^ and all jull Allow-
uife if he ^ ances, but not any thing tor their Care and Pains in managing
^^'^]T ^ the Truft. Fin. R. 361. Trin. 13 Car. 2. How v. Godtrey and White.
CjUi* Vcrn.
:^\6. pi. ;i2. Pafch. 1685. Bonirhon v. Hockmere. Tniftee demanded 2500 ). Charges and
Expences for managing a Truft for more than lo Years, in which Time he had received iccoo !.
and paid the fame all away to Creditors, and the Defendant had not furcharged the Plaintiff 6 d. This
Court took Time to confider v/hat was fit to be allbw'd in a Matter of this Nature ; and having confi-
der'd tliat the Defendant was a Friend to the Family, and undertook the Truft at their great Importu-
nity, he having a coniiderable Eftatc when he undertook the Truft, and confidering the Ch.irges of fur-
wv;?)^ the whole Ertate, letting and letting the fame, looking after Ten.itits, adjuftinR their .-Iccouvts, call-
ini in their Rents, returning Monies toCreditors, ?.nd treating' with and ftating tl.eir Debts, and procuring
and agreeing with Purchafers, and for LaivCharges, and for keeping Servants and Horfes, and employing
others in Jourreys to London and ellewhere, and'his Care there, (lying from home a long time) was of
Opinion that the Defendant might well deferve the whole 2500 1. yet doih allow but 2000I. which
the faid Defendant is to have. a'Chan Rep. 1 5S, 1 59. 31 Car. 2. fo. 845. Hctherlell v. Hales.
Truftee 2. Bill by Infant Legatee by her Guardian againft Adminiftrator
ought not durante Minoritace of an Executor, for a Legacy and Deeds to be brought
to pay Cojls into Court &c. the two Iniants being Coheirs. Decreed accordingly;
yhere there ^^^ ^,^^,^ ^^^^^ ^^^^ ^^ Breach ot Trult, the Adminiltrator was order d bis
inZ!u Tco/s. Fin. K. -136. Mich. 26 Car. 2. Maplet v. Pocock.
Alod. 560.
by Ld. Keeper Wright, IMich. 19 W. 5. Anon.
3. A. Truftee for B. did at the Reqnefl of B. agree for a Leafe of aHottfe
for 21 Years, and articled for it. Decreed that A. perform the Agree-
ment. On a Bill hereupon brought by A. againft B. and the Lellbr, fet-
ting forth that the Lellbr was willing to accept B. for his Tenant. De-
creed that B. accept a Leafe, and lign a Counter-part, pay Arrears and
Damages to Lellbr, indemnify A. againft the former Decree, and reim-
burfe his Charges &c. Fin. R. 224. Trin. 27 Car. 2. Doegood v. Al-
len and Robinfon.
4. A. was indebted to B. and B. having intruftcd J. S. to fue A. for
the Debt, A. depofited loo /. m the Hands of J. S. to pay B. -what tifon Ac-
count pould appear due toB. from A. and to return the Overplus, and J^. S.
gave a Bond to A. to that Ptirpcfe. A. died before the Account was fettled.
The Adminiftrator of A. fued J. S. upon the Bond, and B. fued J. S. for
the 100 1. Upon a Bill by J. S. to knoia -whom to pay the Money to, he
being willing to pay it to whom it belonged, and for th^at Purpofe paid
it into Court ; and great Accounts being urged to have been between A.
and B. an Account was decreed as to A. and B. But J. S. to have his
CoJls, he having beha\ed well, and the Bond to be deliver'd up. Fin.
R. 258. Trin. 28 Car. 2. Hackett v. Webb and Willey.
5. Truftee's Houfe was robb'd of Money, Part of which was received
by him for an Infant, for whom he was Truftee. The Robbery was
proved. He was allow'd the Money ol' the Intant's, which was proved
only by the Truftee's own Oath. And per Finch C. He was only to
keep it as his own. 2 Chan. Cafes, 2. Hill. 30 & 31 Car. 2. Motley v.
Morley.
6. Truftee ^£;«^ y//£<^ obtained a Difmiffion, and had Co/?.f paid him as
of Courfe, but were Ihort of his real Cofts, yet ia Account between T'rufiee
and Cejly que 'Trufl, he Ihall be allow'd all neceifary and true Cofts.
2 Chan. Cafes 138. Hill 34. & 35 Car. 2. Amand v. Bradburne.
7. Truftees
Truft. ^2 1
7. Trullees relying upon aDij'miJfmi Jign' d and inroll'd lor their Indemni-
ty in paying Money, Ihall thereby be indemnified. 2 Chan. Rep. 410.
2 Jac. 2. Kcctleby v. Lamb.
8. Where the Words of a Will are dubious, Truftees afting under it are
fiivour'd, and the Court will not decree it a Breach of Trull i As where
Money was devis'd to be laid out in Land, and fettled on the Children
of J. S. and the Truftees lay out the Money in a Purchafe, and fettle ic
on C. andD. the 2 furviving Children of J. S. and their Heirsi And one
of whom had IlTue afterwards, and died. The Court obferv'd that here
was nothing in the Will to direft them otherwife. 3 Chan. Rep. 214
Pafch. 1688. Sanders v. Ballard.
9. No Trnftee was ever yet bkm'd for doing -joithout Suit what this
Court by a Suit would have compell'd him to have done. See Vera. Rep.
346. pi. 318. Hill. 1697. in Cale of Bowater V. Elly.
10. Cejfy que 7'ruji of Eaji-India Stock and Bond being beyond Sea
drew a Bill on'Trufiee, and promifed to fendEriefts to pay it withal. De-
fendant the Trultee accepts the Bill, and before the Day of Payment the
Plaintiff Cefty que Truft fails. Defendant fold Stock and Bond at the
then current Price, to raife Money to pay the Bill; but the Price was
then very low, and the Stock alone would raife Money enough to pay the
Bill. Per Lord Wright, The Want of Effefts was fufficient to juftify
the Sale without Orders, for fo much as was neceflary to pay the Bill.
But fince the Stock alone was fufficient, the Defendant muft anfwer the
Value of the Bond as tt was -when Plantiff direifed it to be fold when the
Price was much advanc'd. Chan. Prec. 205. pi. 167. Mich. 1702. Henri-
ques V. Franchife.
11. li on a Bill to call a Truftee to account, he by Anfwer fubmits readi-
ly to it, tho' he be found in Debt, yet he ihall pay Intereft for the Ba-
lance from the 'time o/'the Account liquidated only, and no Cofts, if he
has not misbehaved; but if he pretends the Eftate to be indebted to him
and is found in Arrear, he Ihall pay Intereft from the Time of the Bill
and Cofts, as the Plaintiff muft have done if he had been tbund indebted
to him ;Per Ld Wright. Ch. Prec. 254.pl. 206. Hill. 1705. Parrot v.Treby.
12. A. and B. being Joint-merchants, have Goods jointly between
them; A. delivers the -whole to C. in truji for his Executors, and dies, and
C. delivers them to the Executors accordingly ; B. as Survivor, brings
trover againjl C The Court held that there is no Survivor in Merchan-
dize, but an Account given by the Statute ; and C. having perform'd his
Truft, is difcharg'd, fo that the Aftion lliould be brought againft the
Executor. 11 Mod. 223. pi. 17. Pafch. 8 Ann. B. R. Anon.
13. A. Trufiee of an KJiate was at great Charges relating thereto. After-
wards the Cejly que truji affign'd his Intereji to C. A. brought a Bill
againft C. to be reimburs'd, and C. brought a Crois-bili co have a Con-
veyance. Ld Chanc. Macclesfield decreed that C. can be in no better
Cafe than he under whom he claims ; and therefore as Equity would noc
alhft the one, {o neither v/ill it the other, without paying A.'s Charges
in relation to the Truft. Wms's Rep. 780. Hill. 1721. Troct v. Daw-
fon.
14. If a Truftee does an A5i to avoid a Hazard to which he may be other-
wife liable, and the Cefty que Truft does not give or oiler him Security to
indemnify him, he is juftifiable in fo doing. See 2 Wms's Rep. 455.
by Ld Chanc. King. Pafch. 1728. Balfti v. Hyham.
15. It is a Rule, that the Cefty que Truft ought tofave the trufiee harm-
lefs as to all Damages relating to the truft ; and it is within the Reafon of
that Rule, that where the truftee has honeftly and fiirly, without any
Poffibilicy of being a Gainer, laid down Money, by which Cefty que truft is
difcharg'd from being liable lor a vaftly greater Sum lent, or from a plain
and great Hazard of being fo, the Truftee ought to be repaid ; Per Lord
Chanc. King. 2 Wms's Rep 455. Pafch. 1728, Balfh v. Hyham.
6 R [C. a)
'£;2 2 Truft.
(C. a) Truft ee. In what Cafes ohligd to jom tn Convey-
auce avhhj or to, Cefty que Tru/h
■F
^Eojfees trufted Jur the Good of a Wife, were compell'd to join in
a Sale of Lands. Toth. 168. cites Hill. 2& 3 Car. Ayre v.
Jennings.
S>oio perform 2. The Time for the 1'rtiftees to fell Lauds being elaps'd, fo that they
a Triifi.Vm. have no Power to execute the Truft ; yet decreed the Trultees to pro-
R. 55. Hill, j-ggj ^jjh the Sale notvvithltanding. Chan. Rep. 183. 12 Car. 2. Witch-
Mofdvv cottv. Zouch.
Mofelv. 3- J- S. by a Marriage Settlement was Tenant j or 99 Tears if he lliould
fo Ion 1:5 live, ^'"^^ Remainder ro Triiflees and their Heirs during his Life,
to fupport Contingent Rtmainders, with Remainder to hisfrfh and every
other Son fticcejfively in Tail Male, Remainder to Tritfleesjor 500 Tears in
Truft to raife Portions for Daughters, z/ there were no IJftie Male, or that
fuch Ilfue Male died without Ilfue before 21 ; J. S. had Ifflie a Son, and
being of Age and about to marry, he and his Father bring a Bill to have
the Trultees join in making an EAate, in Order to fuffer a common Re-
. covery, that he might be enabled to make a Settlement on his Marri-
a<^e i and it was urged, that the Truftees were only Trultees for the
Son, and ought to execute Ettates as he ihould direit, he having the In-
heritance in him, and that the End of the Trult was to hinder the Fa-
ther from defeating the Son of the Eftate j on the other Side it was
urged, that thefe Trultees were not only Trultees for the eldeft Son,
but were delign'd as a Guard to the whole Settlement, that the Mother
being living there might be other Children, and for the Trultees to join
would be a Breach of Truft, and if there Ihould be Daughters, they
■would by this Means be intirely ftripped of their Portions i and tho'
the Term for raifing them was unskiltully drawn, in putting it behind
the Ellate Tail to the Sons, yet this Court had fet it fometimes before
thofe Eltates There being a Daughter in this Cafe my Ld. Harcourt di-
retled, upon giving Security far "the Daughter's Portion, that the Truftees
fljouldjotn in a Recovery. Abr. Equ. Cafes 386. Trin. 11 Ann. between
Frewin v. Charleton.
is. C. cited 4. On the Marriage of A. with M. Lands were fettled on A. for ^^
by Lord C. Tears, ?/ he Ihould fo long live, Remainder to 'Truftees during his Life,
King,^ffi^- Remainder to the firjt Sc. Son of that Marriage in Tail Male fucceffively,
Ch ^Tuih'^ Remainder /o /^e_/^r/? ^c. Son rf any other Afarriage, Kemzinder over.
Raymond, They had a Son who is living, but Ad. is dead. The Truftees are like-
and Rey- wife dead. A. and his Son, now of Age, bring a Kill againil: the Heir of
""w*"*--^ the furviving Trultee, an Infant, that he may /o/'a in making a Tenant to
Rep Ti? ^^'^ Pra-cipe, in order to fuller a common Recovery for the making a
Mich. 1752. Settlement on the Son's Marriage. Lord C. Parker refer r'd it to the
in Cafe of Mafter to ftate, whether it was tor the Good of the Family, who report-
M^"f ii ^ '•'^ ^^^^ '*■ ^^^' ^"^ ^^^^^ ^ "^^^ Settlement was necelfary, and that it
SC cited could not be without a Recovery, And his Lordlhip faid that Truftees
Arg. and not joining in fuch Cafe, might be greatly mifchievous to a Family for
Ld. C. King whofe Benefit the new intended Settlement plainly is j for thereby the
faid, that g^^^ jg ^j^jy j;o be Tenant lor Life inftead of Tenant in Tail, which may
^me Cafe to preferve the Eftate longer in the Family j and M. being dead, there is an
come before End of the Contingent Remainders by that Marriage i and as to any
him, he Remainders by another Marriage, no Remainder, not in Elle, ought to
would do the ^^ ^^ much regarded as this Remainder in Tail aftually velted in the
IhTt the dc- Son i and ordered the Heir of the Truftee to join, and the Mafter to
direft
Trull:. 523
dire6l a proper Conveyance. W'ms's Rep. 5j6. Trin. 1719. Winning- cieeing the
ton V. Foley. ' Truftees to
■' joni in this
Cafe, was to preferve the Efiate in the Family. 2 Wms's Rep. 5 So. Mich. 1726. But the princi-
pal Cafe there, being a Settlement with like Limitations, and A. had 2 Sons C. and D. A. hating mort-
pa^ed the Premiffes, he and C. covenanted to fiiffer a Recovery, and to procure the fitrvivingTruJlee to join.
But the Truflec refufing to join in makin;^ a Tenant to the Prse.ipc, tlie Mortgagee pray'd a fpecifick
Performance, and that the Truftce might be compell'd to join, w!io fubmitted to do as the Court
fliould direft. But the younger Son D. refufing to confent, LordC. King faid that then he would not
take away any Man's Right, and fo would not decree the Truftee to join. 2 Wms's Rep. 979. Mich.
1-26. Townfend v. Lawtonand Montague Sel Cales in Chanc. in Lord King's Time 71. S. C
Lord Chancellor faid, that in SUlliniligtOn'^' Cafe it was done on Account of Marriage, and to re-
fctle the Ellate in the fame Manner, which he would alio do ; but this is for an Alienation, fo on quite
different Foundations, That he would not take away the Rcmainder-min's Choice, but let the Truftec
do it, or let it alone.
5 Cejfj que T'ni[l in 'Tail by Devife of Lands chared "juith AHntiities^
brought ii Bill to compel the Trullees to join in a Recovery. This was
laid to be an idle Prayer , for that a Devile to an Ule is as much an Ufe
executed as any other Conveyance to an Uk. Lord C. Macclesfield
faid, that if this be a Doiibt, it is reafonable that the Trullees Ihould be
decreed to convey ; and if they have no legal Eftate it will not hurt
them ; and fo far the Bill feems proper, that as the Plaintiff has a Right
to the Eftate Tail in the Truit, fo the 'Tntjlecs pooiild convey an Efiate
Tail in the Lands^ and then he may fuffer a Recovery ; but if any of the
Aiinaities are fiill fnbftftivg^ he did not think that without the Confent of
the Annuitants, the legal Eftate can be forc'd out of the Truftees who are
intrufted as well for them for their Annuities, as for the Plaintijf in re-
fpe£l to the Relidue of the Profits of the Lands. 2 Wms's Rep. 134.
Palch. 1723. Cartaret V. Cartaret.
(D. a) Truftee. j^ccoioitahk. How far. see (k. a)
I. "T F a Truftee lets out Money to fuppofid able Men (tho' they fail") he If A. be i»-
j[ Ihall not be charged for more than he received. Toth. 233. cites tru[fedwith
1 3 Car. Carew v. Penillon and Hales. !i'= ^f'""'> °^
•' B. to Jay it
lends it to one who pafTes for a Subftantial Jble Man at that 'fime, and takes a reafonable Security forit
as his Bond &c. and after the other becomes infolvcnt, A. fliall not be charged ; per Holt Gh I ar
Nifi Prius at Guildhall. 12 Mod. 509. Pafch. 1 5 W. 5. Anon. ' -^ '
2. Truftees for preferving Contingent Remainders, are not punilh'd in But fee c
Equity tho' they break their Trufts and deftroy them ; per PoUexfen. contra per
Arg. Pollex. 2?o. in the Duke of Norfolk's Cafe. ^^■- . I,
" VV' ms s Rep.
<5l4. 616
617. Mich. 1-32. m Cafe of Manfell v. Manlcll.
3. If a Truftee, who is a near Relation, applies more than the Interefi of
the Child's Portion in its Maintenance and Education, he lliall not be al-
low'd it, unlefs it be one Sum paid plainly for the Benefit of the Child,
fuch as to put him out Apprentice. Freem. Rep. 78. pi. 85. Mich. 1681.
Swinnock v. Crifp.
4. Truftee is only to be charged with fo much as he receives, and fhall not
ftand charged for the Receipts of others ; per Finch C. Vern. 44. pi.
43. Pafch. 1682. in the Cafe of Man v. Ballet.
5. Truftee
Truil:.
524-
BiirhrSIil 5. Trultee iliaii not be charged with imaginary Values^ but only as a
be charged B^iiifi: Vern. 144. pi. 138. Hill. 1682. Palmer v. Jones.
i«Ci/e "j^ "' . . ^han he received, but then the Proof mud be very ftronp ; per Ld. North.
^7evnlScit« the Cafe of Mollis v. Montague. S. P. Fir.. R. 88. Hill. 25 Car. z. m C.fe of
Bells' V. Bells.
And by Ld. 9. Where a Truftee or Exetutor makei hiterejt, they Ihali be account-
Keeper, if a ^y^ for it, the' not empower'd or dire£led to place out at Intereft ; per
^o^lv-l xo' Ld. Keeper. 2 Vern. 548. pi. 498. Pafch. 1706. Lee v. Lee.
1*0 Intereft, lets the Money lie hy him, h- fhall be accountable for Intereft. 10 Mod 21 . Pafch. 10
Ann. in Cane, in the Cafe of Brown v. Litton.
S. C. But .y. The Maficr of a Ship goes a 'Trading Voyage and dies ^ the SucceJJor
that to re- opgns publlckly the Effects of the deceafed, and sht^n fends a Letter in-
the'Defai- clofed with a Bond to the Widow, to be anf-joerabk lor Intereft at the
dam for his" Rate of Refpondentia Bonds, it was decreed by Harcourt Ld. Keeper,
Care in trad- that the Succellbr was a Trultee and Ihould be anfworable tor fvhat he
ingwithit a£lually made of the Money, deducing reafonable Allowance for La-
(LVw/^^Te a bour and Skill ; and he feem'd of Opinion, that if a Trultee fhould trade
po^erSnlary with the Money, he fliould be accountable not fr Intereft onJy^ hutlikt-
jorbisPahij wife for the Pro/its of the Trade, and that at hi.s own Peril, becaufe he
and Trouble ^q^^^ of his own'Head, without applying to the Court of Chancery for
na<^^ment^" Direftion in difpoling of the Money. 10 Mod. 20. Pafch. lo Annse in
thereof, and Canc. BroWn V. Litton.
in the mean „ , ,.r , -n o r t. c /-
Time Cofts to be refcrved. VSmssRcp. 140. 142. Pafch. 1711. S. C.
8. A. hotight 990 /. Sleek, and had it transferred to B. The S. S.
Stock rifing, A. dejircd B. to transfer to him the Trult Stock. B. trans-
fers 500 /. and promifed to be accountable Jor the iv/?, but defired A. not to
infill upon the Transter of the Relidue at that Time, and alfo advifed
A. not to part with the 500 I fuppoling Stock would rife. A. did not
fell the 500 I. Stock. B. mortgaged loool. Stock to the S. 8. Com-
pany, and then fold out the Stock which he had in his own Name ex-
cept 80 1. but had Itill other Stock in another's Name. The Price of
■Stcckfalling, A. brought a Bill tor the Value of the Stock when fold by
B. or at the Time when he requefted B. to transter. But decreed per
Parker C. that B. uas accountable to A. only Jor Stock and Dividends, and
he would take it that the 490 I. Stock was part of loool. Stock mort-
gaged to the Company. 10 Mod. 499. Trin. 8 Geo. i. in Canc. Le-
Croy V. Eaftman.
9. A. feiled in Fee dcmifed for 500 Years to B. C. and D. in Trtifi to
fay Debts, and for a Charity. B. purchafed the Rcverfion of A.'s Heir at
Laiv, and with Confent oj C. cut doi^n a large Quantity of Twiber ; the De-
ir.ife was not without Impeachment of Walt. Ld. C. King held this
Confent of B. to be a Breach of Trult. And alter upon the Court's pro-
poling it, a Sum of Money was agreed to be paid to the Charity, and fo
the Matter was compromifed. 2 VV^m.'s Rep. 397. Mich. 1726. Bays v.
Bird.
Cafes it! 10. Lands were devifed to J. S. and W. S. and their Heirs in Truji to
Chancery in ^^ -yfe of A, his Silter jor Life, Remainder to J. S. and W. S. and their
T^mT 2 5°2.' •^"^•^ '^"""<? •^•'•^ -^'-/^ tofupport &c. Remainder to the Ufe oithejirfi i^c.
Trin.'6 Geo. Sons of A. m Tail Male, Remainder to B. in Pee, A. married B. and they
a. S, C. ac- about a Fortnight betore the Birth of a Son, in Conjunction with J. S.
cordingly, ^^^ y^ 5. the Trultees made a Conveyance contingent, by which the
h noTa Pur- Remainder was deltroy'd, and the Fee limited to B. A Son is born and
chaforfora named C. then B. died, and then A. died, C. brought his 3ill and wa»
valuable relieved by Ld. G King, affilted by Raymond CE. J. and Reynold's
Ch.
Truft. 5*25
Ch. B. And they held, that had the Premifles been convey' d to a Strati- Confidera-
ger without Notice, and for a valuable Conjidtrat ion fuch Purchafbr m^ft N°o"ice"thc^
have held the Lands difcharged of the Truft, and C. have taken his Eftatelhall
Remedy againll the 'Trujiees only, yj\\o •■jsould have lem decreed to pur-he recon-
chafe Land with their own Money equal in Value to the Lands fold, and 'i^l'^ ^"fj}^
to hold them upon the fame Trufts and Limitations as they held thofe "*'''"^' ^^^^'
fold by them. 2 Wms.'s Rep. 610. 613. Mich. 1732. Manfell v. Man-
fell.
(E. a) Accountable, lohere he fuhjlitnks an Attorney.
I. T7^7 HERE Truftee gave Authority to the Servant of Cepy que ^ruft
y \ to receive the Rents and Profits, who afterwards promifed
not to charge the Adminiftrator of Trultee with any Monies fo received,
this Court would not charge her. Fin. R. 5. Mich. 25 Car. 2. Jiedel v.
Bedel.
2. Where a Truft is put in one Perfon, and another whofe Intereft is
intrufted to him is damnified by the Negle^ of fuch as that Perfon im-
ploys in the Difcharge ot that Truft, he fliall anfwer for it to the Party
damnified ^ per Holt Ch. J. 12 Mod. 490. Pafch. 13 VV. 3. in Cale of
Lane v. Cotton.
3. If one devife to Truftees, and by exprefs Claufe therein ^/wj them
Tower to appoint Agents to manage the Land, and they appoint one then
folvent, and good, tho' after he prove infolvent, they lliall not anfwer for
himi Secus if he were not folvent at the Time at which he was nomi-
nated. But if there were no fuch Dire ff ion or Power in the Will, the
Truftees are bound to anfwer Ibr her Agents at all Events 3 per Ld.
Keeper Wright. 12 Mod. 560. Mich. 13 VV. 3. Anon.
4. So in Cafe of Money to be laid out at Interejl ; per Ld. Keeper
Wright. 12 Mod. 560. Mich. 13 W. 3. Anon,
(F. a) Breach of Truft. irhat. 5'— cp?pi.
I. A Man was enfeoffed to the Ufe of a Woman fok, which taketh an
Jf\ Husband, they both/I'// the Land to B. who pays the Money to
his Wife, and fhe and her Husband pray the Feoffee to make Eft ate to B.
Afterwards her Husband dies. Now by the Chancellor and all the Juf-
tices, flie Ihall have Aid againft the firft Peoilee by Subpoena, tofatisfy
her for the Land ; and if the 2d Feoftee were conufant, a Subpa^na Ihall
be againft him for the Land ,; for all that the Wife did during the Co-
verture (as they fiid) foall be taken to be done jor Fear cf the Husband,
Gary's Rep. 18, 19. cites 7 E. 4. 14. Subpoena Pltzh. 6.
2. If aTruftee compounds a Debt withConftnt of Cefty que Truft, this
is no Breach of Truft. Fin. R. 58. Hill. 25 Car. 2. Newman v. Jones
and Trelilian, & al'.
3. Where there are 4 Truftees to grant Leafes, and a Leafe is made by
Authority of 3 only, it is a Breach of Truft, and luch Leiiee can have no
Relief in Equity. 2 Chan. Cafes, 202. Mich. 26 Car. 2. Rothweii v-
Hulley. , '
6 S 4. A
526
TruPc.
4. A Truftee may and ought; to produce Writnigs &c. but they cannoc
rule him to do it in B. R. Per Hale Ch. J. "Vent. 197. Pafch! 24 Can
2. B. R. in Cafe of i>irS. Jones v. Lady JVlanchefter.
5. Nothing is more common than, where an Eftate is limited to Huf-
hand and Wi\e for Lijc^ Remainder to 'Triifites for preferving contingent
Rei?2a!nders,' then to "the i, 2, t^'c Son, ior theTrullees to convey to the
tenants for Life, there being m Child, nor Likelihood of Children ; and if it
be for the Good of the Family, this was never accounted a Breach of Truft.
Sic Diftum fuit. Skin. 78. Mich. 34 Car. 2. B. R. in Cafe of Lady
Stafford v. Lueliin.
6. A Commiffary releafed the Aiminijlratioti-Bond, after it was put in
Suit at Law, and Ilfuejoin'd j fo that the Defendant pleaded this Re-
leafe puis Darrein Continuance. It was inlilled, that if it was in the
Commiflary's Power to releafe this Bond, the Statute would be of no
Force. And per Powell J. The Do£lor has not done well in giving this
Releafe, and it is a Breach of Trull. Qusre quid inde Venit. Holt's
Rep. 660. Hill- 7 Ann. Butler v. Hammond.
aVern. 754. ^. A_ convey'd to the Ufe of hi^nfelf for g^ Tears, if he fo long live,
i^ ^- ^l Remainder to 'Tr/i/ees and their Heirs, during his Life ^c. Remainder to
Clie 1). ^^^ U^^ of ^'^^ Heirs of his Body, Remainder to himfelf in Fee. — A. has
£li)Sborn, 2 Sons, B. & C. and A. and the 'trtiflees, and B. the eldeft Son, when of
That if the Age, join'd in a Feoffment and Fine to J. S. in Fee^ by way of Mortgage.
Truftees -g^ ^j^^ without llfue. Lord C. Cowper held this to be plainly a con-
^Fm"\nA tingent Remainder, being limited to the Heirs of the Body of A. and
Fecffmnit, that it is deftroy'd by the joining oi' the Truftees who had the Freehold,
with the He faid, that had the Remainder been limited to the eldifi Son in Tail,
Peifon in j^j^ jojnjng would prevent a Breach of Truft ; but in this Cafe A. can-
EihtTTlfl "ot have an Heir of his Body during his Lite j fo that B.'s Joining is
is vefted in not fo material here. And yet he thought it hard, that when the Heir
Equity, tho' apparent joins it fnould be a Breach of Truft, as the Limitation is here;
there is a y^^^ ^^^ "j^jg Liniitation was to carry the Settlement as far as might be,
c() Years"'" ^"^ the Truftees appointed to prelerve ought not to deftroy the Re-
(if he fo' mainder. But a Bill being brought by C. in A.'s Life-time, to kt alide
long live) the Mortgage, his Lordlhip thought it untimely, and that he had no
of the Pre- jj^jght then to bring it ; for he neither was, nor pollibly ever might be
prevemshis the Heir of A. his Father, unlefs he furvives A. which was uncertain.
PolTeffion, Wms.'s Rep. 3S7. Mich. 1717. Elle v. Osborn.
it is no
Breach of Truft ; for they are Truftees purely for the Tenant in Tail, and to prefcrve his Eftate, and
not to ftand in Oppofition to iiim, for the Sake of thofc that are to come after him ; per Cowper C.
The Report of this Cafe is not fatisfactory ; for it caraot be faid that the eldeft Son, where the Re-
mainder is limited to the Heirs of the Body of the Husband by the Wife, can, during the Life of the
Husband, have any Eftate veftid in him in Equity, more than he has at Law ; for Nemo eft Haeres Vi-
ventis. Per Cur. 2 Wms.'s Rep. 615. Mich. 1752 in Cafe of Manfell v. Manfell. ^TheEditsr
adds a Note, that this particular Cafe was obferved only by Ld. Raymond. Ibid.
8. A Term was created by Marriage-Settlement for raijing 3000/.
for Daughters Portions, payable at 1 8, or Marriage j in Default of Iff tie
Aiale, with a Poiver to the Father^ ivith Confent of the Truflees, to revoke nil
theUfes. The Wife died, leaving a Daughter, her only Child. The
Daughter married. A Bill was brought by the Daughter and her Huf-
band againft the Father, for railing the 3000 1. and it was inlifted, that
it would be a Breach of Truft in the Truftees to join in fuch Revocation.
But Lord C. Macclesfield thought it might not only be juftifiable, but
commendable in them, under [onieCircumftances, to confent to fuch Re-
vocation ; As it the Daughter Ihould be drawn in to marry fome unwor-
thy Man, who fliould ufe her in a nioft barbarous Manner, and Ihe
fhould afterwards die without lifue, upon which the Husband Ihould fue
ibr the Portion -, fo if fhe Ihould leave Children, the Truftees might
reafonably
■~ *- ^lJ.,-«ilfe=—
Truft. 527
reafonably confent to carry the Porcion from fuch Husband to the
Children. 2 Wms.'s Rep. 93. 102. Hill, 1722. Reresby v. New-
land.
9. jr/w; <?// the Remainders arc "jcjled Remainders in Tail, the 'frtif-
tees may join in making a Tenant to the Prttcipe^ in order to the I'uffering
a common Recovery. But tf any Remainder is in Contingency^ the Trul-
tees appointed to preferve contingent Remainders ought not to join in
lutfering a Recovery to bar any fuch Remainder ^ As where the Re-
mainder was to the Life of the Body of J. (Jiill living,) and A. has IJfue C.
a Son, and D. a Daughter, and the Trultees join with C, in a Bargain
and Sale inroll'd, for making a Tenant to tlie Praecipe to fufFer a com-
mon Recovery, which is fulfer'd accordingly, and C. dies, leaving an
Infant Son. Now if the Son ihould die without Iliue, in the Life of A.
in fuch Cale D. would be Heir of A.'s Body. This would be a Breach
of Trull, and the Title not good. See 2 Wms.'s Rep. 201. JVlich. 1723.
a Note there, as io laid by Mr. Talbot Solicitor Gen. in Cafe of Marlow
V. Smith.
10. A. feifed in Fee dcvifed Lands to J. S. and W. S. Trnjlees, and their
Hars, to theVfe of D. bis Sifier for Life, Remainder to J. S. and W. S.
and their Heirs, during D.'s Life, to preferve 6?6\ Remainder to theUfe of
the Jirfi ^c. Sons ofD. in Tail Male &c. Remainder to J. N. in Fee. D.
married B. and being enlient of a Son, (foon afterwards born) B. and D.
and jf. N. joined in a Feoffment to Trujtees to the Ufe of B. and his Heirs,
and covenant to levy a Fine to them, to the fame Ufes. [A Fine was levied
accordingly.] Alter wards J. S. and IV. S. iy Lcafe and Releafe, convey to
B. in Fee ; about a Fortnight after which a Son was born, and named C.
On a Bill by C. it was relolved by Ld. C. King, affifted by Ld. Ch. J.
Raymond, and Reynolds Ch. B. That the Joining ol the Trultees was
a plain Breach of Truft, tho' it had not been before judicially deter-
min'd ; and that in Common Senfe, Rcafon, and Juftice it was capable
ot no other Conftruclion ; and decreed all Parties to join in convoying
a like Eftate to C. in Tail Male. 2 Wms.'s Rep. 610. 612. Mich. 1732.
Manfell v. Manfell.
11. But where an Eftate is limited to A. for Life, Remainder to his Jirfi
^c. Sons in Tail, tho' it be a plain Wrong in A. to do any Act to deiiroy
thofe contingent Remainders before the Birth of a Son, notwithftanding
his legal Power to do fo ; yet, as in this Cafe, where there is no Trujiee
there can be no Trull, nor confequently any Breach of Truft, and there-
fore a Court of Equity can have no Cognizance of fuch aCale, nor Han-
dle for Relief, the Matter being left farely to the Common Law ; and the
appointing Truftees has been introduced to prevent this Inconvenience.
Per Lord C. King, aliifted by Raymond Ch. J. and Reynolds Ch. B.
2 Wms.'s Rep. 612. Mich. 1732. in Cafe of Manfell v. Manlell.
12. A. had a Great Grand-daughter B. and a Great Grand-lbn C. and
devifed Lands to W. R. and IV. S, their Heirs and Affigns, in Triiji to re-
ceive the Rents Sc. till B. pall marry or die, and to pay her 100 1, a Tear
for her Maintenance, and with the Relidue to pay his Debts and Lega-
cies, and alter in Truft for B. and upon farther TriiJl, that if fhe marry a
Proteflant of the Church of England, and pe be then 2.1, or, tf under 2.1,
fuch Marriage he with Confent of JV. R. then to convey the EJlate, with all
convenient Speed, to the Ufe of B. for Life, without Impeachment of Wajie,
voluntary IVaJle in Hcufes only excepted j Remainder after her Death to her
Husband for Life ; Remainder to the IJfue of her Body, with fe\eral Re-
mainders over. But if fhe married not as by the Will dire£led, then to
convey to Truftees, as to one Moiety, to the Ufe of B. for Life, Re-
mainder to Truftees for preferving contingent Remainders ^ Remainder
to her firft &c. Son &c. and the other Moiety in like Manner to C. —
A. died. B. foon after atrain'd her Age of 21, and about 6 Years after-
wards applied to the Truftees (llie being then upon aTiCuy of Mar-
ri;i!rp.
528
Truft.
riaee but not aclually married ) for a Conveyance of the Eftate to her-
felf for Life, Remainder to her intended Husband for Life, Remainder
to the IfTue of her Body. One Trullec executed fuch Conveyance, but
the other refufed. Lord C. Talbot faid, That the Traftee who executed
the Conveyance had done wrong; for nothing was to veil: till after her
marrying a Proteftant ; and therelore the Trultee, by conveying and en-
abling B. to fuft'er a common Recovery, (as ilic has aftually done) has
done wrong. Cafes in Equ. in Ld. Talbot's Time, 3. Mich. 1733. Lord
Glenorchy v. Bofvill.
(G. a) Breach of Truft. Relk'ved as to Remahider-many
or Reverlioner ^c.
■A.
Convey'd Lands to B. in Truft for Payment of Debts. B. fold
_ _ P^r?, and which wasy?/^(;/f«? /opiTj' all the Debts, and more. —
Afterwards B. joins in a Marriage-Settkintnt of the rejl of the Land on a
Stranger. The Heir brings his Bill to fet afide the Marriage-Settlement
as fraudulent, and decreed accordingly. Fin. R. 469. Mich. 32 Car. 2.
Smeaton v. Povey, Vanlempur, & al'.
Chan. Free. 2. Truftees appointed to preferve contingent Remainders joined in a
308^. pi. z-^O. Conveyance to dejiroy tke Remainder before a Son was horn ; and this was de-
Id^Kce* • creed a plain Breach of Truit, and that whoever claiin'd under thisCon-
Haicourt veyance, having Notice of the Truft, or by a voluntary Settlement,
faid he fhould be liable to make good the Eftate ; per Harcourt Ld. Keeper
•would not 2 Salk. 680. pi. 8. Mich, o Ann. in Cane. Pye v. George,
fcruple fet- ^ ^ .
tino- afide the Conveyance.. This was only faid by Ld Havcoiirt in the! Cafe of Pye v. Gorge,
and he faid it was Co plain and realbnable, that if there was no Precedent he would make one. But
the principal Cafe was, that a Son nuas Lorn hefofe ihe Cnveyame by the Truftees ; and the Eftate being in
Mortgage, the Son came into Equity, after the Death of thel'enant for Life, to redeem, Wms.'s Rep.
128. Mich. 1710. Pye V. George.
S. C cited and approved by Lord C. King, aflifted by Raymond Ch. J. and Reynolds Ch. B.
but laid that it was not decreed, 2 Wms.'s Rep. 614. Mich. 1732. in Cafe of Manfell v
jVlanfell.
3. A 7,d Perfon fettled Lands on the Husband for 99 Tears^ if he fhould
fo long live ; Remainder to T'riijtces and their Heirs during the Life of the
Husband., tofipport oic. Remainder to thejirjl Sc Sons of the Husband by
the Marriage ; Remainder to the right Heirs of the Husband. The Hul-
band, VV^ife, and Truftees join'd in a Sale of the Premifles. Afterwards
the Husband and VViie died, without ever having had any Illue. A remote
Heir brought his Bill to be relieved againft this Conveyance, as a Breach
of Truft j But the Court difmifs'd it ; lor that fuch remote Heir "was not
intended to be provided for by fuch Settlement. Cited by Ld. C. King, af-
lifted by Ld. Ch. J. Raymond, and Reynolds Ch. B. Mich. 1732. 2
Wms.'s Rep. 6x6. in the Cafe of Manfell v. Manlell, as the Cafe of Pye
V. Gorge.
S. C. cited 4. A Settlement on Marriage of A. "with M. -was made by J. S. to the Ufc
by Mr. Ver- of A. for 99 7^ears ; Remainder to E. and F. Trujlees, for 99 fears ; Re-
non. V^^ms.s niainder to ^rujices during the Life of A. to fupport contingent Remainders ;
Trln I- 10. Remainder to M. for Life ; Remainder to the iji &c-. Son of the Marriage i
in Cafe of Remainder to the Heirs of the Body of A. Remainder to the right Heirs of
Winnington A. There was no If he of the Marriage, and the Remainder in Fee
V. toley. being contingent, in regard the Limitation to A. was for Years only,
and
Truft. ^29
and the Eltate not moving t'rom A. (tor it lb, the Remainder limited to
A. had been the old Reverlion) the Trullees join'd to deltroy this con-
tingent Remainder. On a Bill brought by a remote Relation, the Court
retuled to punilh the Trullees, as dijiingtiijbing between a voluntary Set"
tlc7Hefit and one made on a lialuabk Coijideration. And upon this Cafe
being cited, the Mailer of the Roils laid, That if a Son had been after-
wards born, it would have been a Breach vf 7'riifi ■■, but this Remainder to
the right Heirs of A. being a remote Limitation, and not within the Confe-
deration of the Settlement, Equity would not punilh it as a Breach of Trull.
See Wms.'sRep. 358, 359. cited there as Mich. 1713. Sir Thomas
Tippen's Cafe.
5. A Remainder in Taii being vefled in the ferjl Son, the Trujiees join'd
with him in fiiffertng a Common Recovery i and yet it was held no Breach
of Trull, tho' agaiiiji the Confent of the Father ; for when fuch Remain-
der was vetted in one of full Age, a fubfequent Remainder was not to
be regarded j neither was it Aflets in Law or Equity. Cited per Mr.
Vernon, as ^o held lince the Cafe of Sir Tho. Tippen fupra. Wms's
Rep. 537. Trin. 1719. in Cafe of VV^innington v. Foley.
(H. a) Settlements decreed to he broke hi upon in what
Cafes, and Truftees to join.
I. A Jfter Marriage made a voluntary Settlement to himfelf for Life, Re-
jf\« mainder fo Trnjtees to fupport (^c. Remainder to his firfe'Sc. Son
i« iT^// i'uccelEvely, K.tma.]ndQr to himfelf in Fee. And afterwards hav-
ing contrafcled Debts, he 7nade another Conveyance to other 1'riijlcesfor Pay-
ment oj his Debts. The Creditors bring a Bill, and (inter alia) inlill that
the Trullees in the lirll Settlement join in the Sale to dellroy the Con-
tingent Remainders. The Mailer of the Rolls, upon ftewing a Prece-
dent of a like Decree, ordered that the Trullees lliould join to dellroy
the Contingent Remainders, and be indemnified, it being at the Suit of
Creditors, and for raifing Money for Payment of Debts. Wms's Rep.
358. Trin. 1717. Ballet v. Clapham.
(I. a) Breach of Truft. Truftee Bound in his own
Eftate. How far.
I. \ Being indebted to B. in 300 I. and to fevcral other Perfoas in
£\.* 1800 1. intrulls B. with his whole Real and Perfonal Eftate,
under a particular Jgrcement made between themlclves, and went beyond
Se'a. Upon Jiis Return he brought a Bill againlt B. fuggelling a Breach
of Trull, and that B. had a great Sum of Money oi A.'s in his Hands.
B. anfvvered, that the Ellate was indebted to him a large Sum of Mo-
ney, and among the relt charges 50 /. per Annum as paid to J. S. for
ksking after the EJlate as Bailijf, and would leave A. to account with J. S.
6 T who
^D
OQ
Truft.
who was appointed Bailijf' by B. which A. cannot compel J. S. to do, he
never being intrulted by A. The Court direfted an Accctint on Security to
be given on both Sides, to anfwer and pay what ftiall be due to each other;
and the Plaintiff not to difmils his Bilij and to revive it if it lliould
abate ; and that the Account be perlefted. And the Security being
given, A. to have his Houlhold Goods, or the Value, and the Pofieffion
of the Lands, and if any Cclliijion appear bcfJi'een £. and J. S. then B,
Ihall be charg'd with what J. S. receiv'd. Fin, R. 132. Mich. 26 Car.
2. VVhitlock V. Mead.
2. hill to compel Trullees to accept a Trull, and to come to an Account,
or to transfer and releafe. One of the Delendants anfwers he is willing
to aft, and ojjfers Conditions, viz,. The Mailer to take his Jccount every
Tear tor what actually comes to his or any of his Agent's Hands, and
having all his Colls and K>:penc(s ; To be chargeable lor no more than he
or his Agents actually receive, and for no Lois in putting Money out,
or for Money rais'd out oi the Eltate v/ithout his '■jjilful Negligence or
Default • That if he, or any Baililf or Agent under him be roWd, or by
fextraordinary Accident Ihall lofe the Money receiv'd, or any Bailiif,
Agent or Receiver, lliould run away, or become infohent^ he or his Exe-
cutois not to be accountable or chargeable therewich. And when an-'/t-
coiint \sjlatcd, the lame Ihall hcjinal. Decreed accordingly. Fin. R.
258. Trin. 28 Car. 2. Hulley v. Markham and White.
Fia R. 4z8. 2. A. iy Articles agreed to pay B. the Plaintill's Father 2100 /. for cer-
J*lich. 51 ^^jf^ Land, and covenanted 10 enter into 7 Bonds J or the Money, 300 1. each
?^p "' A Bond. A.enjoyd\.\\tL.-3LV\A, but no Conveyance was made to him. JS. died,
ingly, by and made D. and E. Executors in T'rafi lor the Plaintiff an Infant. 600 1.
Mame of v^r^g paid. $ ot the Bonds being due, D. deliver'd them up, zndtcikes Bonds
Jennings, ^^^ ^^^ ^-^.^^ Jsdme (ot the lame Sums) and the Names of his Co-Executor.
I V Gorces 500 1- Intereji ivas hereby loji to the Infant. Payment was decreed ac-
and Hely cording to the Times in the firlt Articles, and D. and A. to be charg'd
therewith, tho' D. had on taking the new Bonds releas'd A. of the Ar-
ticles. 2 Chan. Cafes 235. Mich. 29 Car. 2. Hilliard v. Gorge.
4. Truftee having paid a Portion to an elder Daughter at the Time it
was due, and the tjiate decaying, lb that the others mull come fliort, and
not having taken Security, mult make good the Lofs to the rell, abating
proportionably out of each Party's Share according to the Lois, z
Chan. Cafes 132. Hill. 34& 35 Car.2. Tilfley v. Throgmorton.
5. A Trultee in a Recognizance rekafes it without any Conjideration ;
and therefore was decreed to pay the Principal and Interell, but foasnoc
to exceed the Penalty. Yern, 342. pi. 335. Mich. 1685. Jevon v.
Bulh.
a Chan. Rep. 6. Trultces of an Infant having fi'Sd Money out of the EJiate, ptirchafe
567, S. C Lfffi^s with It, and which lay near the Infant's Ellate, with the Con-
accordmgly. ^^^^ ^^ ^^^ Grandmother, declaring the Trult for the Benefit of the In-
fant, if he, when of Age, Ihall agree to it. Infant dies within Age.
The Trullees Ihall account to the Executors of the Infant lor the Money,
but the Profits of the Land lliall be fet againll the Intereft. Vern. 4^5.
pi. 410. Hill. 1686. The Earl of Winchelfea v. Norciifte.
(K. a) Breach
Truft. 5 5 1
(K. a) Breach of Truft. PuniJJjd hozvfar.
I. r I 1H E Suit was to be reliev'd upon a Leafe made to the Defendant
J^ in Trult to the Ufe of the Plaintiffi and becaufe it {o appear'd,
it was order'd that the Plaintiff ihould enjoy the Lands againjt the Defen-
dant^ and all claiming under him that had Notice of the Trult. yind if the
Leale were fold tofiich as had no Notice of the Truft, then the Defendant
pall pay to the Plaintiff /o much Money as the Lcafe -'joas worfh. Gary's
Rep. io8 cites 21 Sc zzEUz. Rooke v. Staples.
2. Young purchased Lands in the Name 0/ one Mafon, to the Ufe of
him and his Heirs, and dyinga////jo«/' declaring any fettled Determination
of this Trull or Confidence, Dethicke a Kinfman procures Mafon to convey
the Lands to him, and he conveys it over to Infants ; Merick a nearer
Kinfman, fues in Chancery as next Heir. If the Benefit of the Trull
appear to appertain to Merick, notwithltanding the Conveyance to In-
tants being decreed lor them, they Ihall hold by the Decree during the
Minority, and a Provifo for the Infants to appear at full Age ^ Per Cook
Attorney veniendo de Weftm. And there appearing noceruiin Difpoling
thereof, it was order'd that Mafon Ihould repay the Money he had for
making the Conveyance to Dethick, and Merick to have the Lands or-
der'd tor him. Cary's Rep. 42. cites 11 Ottob. i Jac. Merick v. Mafon
& al.
3. Truftee having broke his Truft, by * delivering up a Bond, and p'
taking Security to iave him harmlefs, was decreed to pay the Money TrFn'^Vcai-
and Intereft ever lince the Bond was due. Fin. R. 241. Mich. 27 Car. 2. Powell v.
2. Chaplain v. Coe and Hart. Stokes.
4. Cefty que Trull in an A6lion on the Cafe agalnft his Truftee, fliall
recover for a Breach of Trull in Damages. Jeiferies C. cites Ld. Hobart.
Vern. 344. pi. 335. Mich. 1685. Jevon v. Bulb.
.5. One of the Truftees of a Judgment given by Barou en Marriage, to
fettle a Jointure on the Feme, achWii'lcdged Satisfafiion ; tho' he having
iiime Colour for doing it, and by the Excufes he made, and that from the
Circumllances of the Baron, there was no Probability or Polfibility of
the Security's being of any Signification, yet he was condemn'd in Cofts,
and lett to anfwer Damages, if the Feme thought it worth while to
bring a Quantum Damnificatus, But Cowper C. declar'd, that if the
Truftee had done it deftgnedly and corruptly. As for a Reward &:c. he
fhould have been decreed tojland in Place of the Baron, and to make good
the Marriage Agreement. 2 Vera 617. Mich. 170S. Hales v. Van-
derchem & Ux. & Coles.
7. A. purchased a Copyhold in the Name of J. S. who gave a Bond of ^^^ }^'^' it
200/. Penalty, tofitrrender to fiich Pofcn Sc as A. his Executors or Ad- ^''^ i"/''t«'i
minijirators pould appoint. A. died, [J. S. did not furrender according p|,,jnt„^ |.j^^^
to the Condition, as is to be fuppofed, tho' not ftated] The Admini- m:ide his
llrator brought an Aftion, and recover'd the Penalty, and receiv'd it, Eieclion,
and after brought a Bill to compel a Surrender, and would have kept the ^^ taken hi>
200 1. alfo. But LordC. King thought it not reafonable to keep both, Law'uno^'
but that Defendant mull account for the Profits to the Plaintifl^ who has the Bond,
in Equity a fpecifick Right to the Lajid, but the 200 1. and Intereft to ^^^ that the
be deduced. Mich. 1725. 2 Wms's Rep. 3 14. Moorcroft v. Dowding. ^°"'^ ^''.^'
by the Judgment ; and that the Penalty of the Bond ought to be taken as a Satisfaftion for the Breach
of the Condition, and as a Price paid for the Land, yet the Eftate being 100 1. a Year, and the Pe-
nalty of the Bond did not amount to the Profits received by the Defendant ; and the Condition exprcfsly
declaring a Truff, the Plaintiff is intitled, notwirhftarding the Judgment, to have an Execution of the
Truff, and conlequently an Account of the Profits, deducing thereout the Money levied U'on the
Execution. And decreed accordinglv, with Colls, for the Plaintiff MS. Rep. of S. C.
8. A.
532
Truft.
8. A Tniftee who acts, is not to be charg'd as a Mortgagee for what
he had, or might have received, hat culy fur bis a ffual Receipts. Sel.
Ch. Cafes in Lord King's Time 53. Mich. 11 Geo. i. Harnard v.
Webller.
(L. a) Truftee. Security, h ivhaf Cafes be Jhall ghe
Security^
-w
'Here a Trullee is infolvent, the Court of Chancery will com-
pel him to give Security before he Ihall enter upon the Trult.
See Carth. 458. Mich. 10 W . 3. E. R. in Cafe ot the King v. Raines.
1 Salk. 299. 2. An Executor in Trtijl for Infants being fuggeited to be infolvent, he
— "m d was by the Court ot Chancery injoin'd Irom mtermeddling any further
i-6.\o5° ' with the Affets, than to fatisiy a Legacy bequeath'd to himlell, until he
s'c. lliould give Security. Carth. 458. Mich. 10 VV. 3. The King v. Raines.
Ld. Raym.
llep. 262. S. C. but neither of thofe Books mention any thing of this Point.
(M. a) Truftee. Difchargd or Removd. In what Caies.
I. /^NE Truftee was decreed., at his own Requejf^ to rehafe to the other
V^ and his Heirs his Trull, and that t.he other Ifiould fell the Pre-
milies devifed to be fold. Fin. Rep. 380. Trin. 30 Car. 2. Travell v.
Danvers, Meers and Holbetch.
2. A Truftee was removed out of the Truft, tho' much againft his
Will. 2 Chan. Cafes 130. Mich. 34 Car. 2. Uvedale v. Ettrick.
(N. a) Co-Tnijlee. Chargenhk how far Jor the A6is
and Receipts of the other. .
Toth. 151, I. T F there are two Truftees, and one of them without Warrant of the
152. S.C— j^ Party that trufts him, or of a Court of Equity, affjgneth hisEftate,
p/°s s' b ^^^ ^^ Alfignee receives the Profits, and becomes infolvent, he that
the Truf- made the Affignment Ihall anfwer it ior him; but the other original
tees_ both * Truftee fhall anfwer tor no more than what he receivech himfelf i and
leal'd the jj-j q.j^{q fuch original Truftee becomes infolvent after his Receipt ot the
of the^A^l^" Profits, neither the Affignor or Allignee Ihall be anfwerabJe for them,
iignment, Bridgm. 38. Trin. 9 Car. in Cane. Townly v. Sherborne and Chaloner.
and join'd
in Acquittances for Rent for a Year and half; but the other never meddled further. Rcfolved by-
Lord Keeper, adiftcd by 4 Judges whereof Crooke J. was one, that the other being only a Party in-
trurtcd, fljall not be I'.nfvvcnibk for more than came to his Hands ; for it was the Default of him who
liult
533
put them in TruO, to repoH: Tiult- in one wlio was not able to [.ay ; and lie being truftt-d as well as
the other, the other fhall not be compellable to male good his Defect ; and lo revcis'd a Decree
whereby the otlier Trullee was made liable to pav.- S. C. cited 2 A-'ern 516. and fays, that" the
makmi; joint Trultees by the joinit^tr jn Ecceipts to be anfwerable for each other (as in the above
Ca!e; leem'd to be ag.iinll natural Juftice, unlefs they had fo join'd in Receipt, as not to be dilHno^uifh'd
what had been rcceiv'd by one, and what by the other ; That there indeed, of Necellity th.ev muTb both
becharg'd^with the whole ; and that is from their own Negleiltor Default ; As if another Man fhould
blend his Money with mine, by rendrinii; my Property uncertain he lofes his own ; and that there was a
piiference between Joint-truftces and Executors; Executors may act feparately, if they think fit • but
if a_ Trull-eftate is to be (old, the Trultees mult both join in Conveying, and alfo in Receipts ; other-
wife no one will purcha'e And fince one Tiuftee has equal Power, Authority, and Intercft with the
other, the one cannot in Reafon infill, or dclire to receive more of the Confiderarion -money than the
other, or to be more Trultee than his Partner or Co-Trnlfee. ^S. C. cited NeK Cliau. Rep. m
in the Ci'eof Crifp V. Spranger and VVeffwood.
* Per Li. Wright. 12 Mod. 560 S. P. Mich. 75 W. 3.
2. If upon the Proofs or Circumflances, the Court befatisfied that there
he Dolus Afjfas, or any evil Pra6lice, Fraud, or ill Intent in him that
permitted his Conipajuoa to receive the whole Pro/its, he may be charo'd,
the' he received nothing. Bridgm. 38. in Cafe of Townly v. Sherborn
and Chaloner.
3. If an Obligation be made ro 2 in Trujl, and one of them rekafcsthe
'whole Debt, as by Law he may, this Ihail not charge his Companion
for any Part. Bridgm. 38. June 6. 9 Car. Per Cur. in Cane, in Cafe of
Townley v. Sherborn.
4. A. feifed of a Farm, employs B. in tfie Management of it ; A. makes
his Will, and B. and C. Executors in Truft for JJ. his Son, an Infant.
B. goes on with the Management of the Farm, as before, in fatting
Cattle, and fends them to C. to fell. C. fells the Cattle, and buys lean
Cattle, amounting to the whole Money, which he returns to B. B. after
prov'd liifohent. PerLd. Chanc. C. has committed no Fault in what he
did i it is true, where the Receipts can be dillinguilh'd, each Trullee is
to h&charg'd with fo much as he receiv'di but C. ought not to be charg'd
with his Receipts, becaufe he laid ait the Money for Stock to be fatted oft
the fame Farm, which was afterwards dilpos'd of by B. Nelf Chanc. Rep.
109. 19 Car. 2. Crilp v. Spranger and Well wood.
5. Each Truftee Ihall be charg'd lor no more than what he actually re- Bridgm 57.
ceiv'd ; but where they join in Receipts, there they Ihall be all charg'd j J°^^/'''^^ '^"
Per North K. Vern. 301. Spalding v. Shalmer & St. Amand & aP. ^ ^3u°dB~
Tiuftees re-
cewd I coo /. each, on Sale of a Truft Eftate, and both joined in Receipt for the Money, as they did iti
the Sale and the Conveyances B, became infolvent. Wright K. doubted if A. fhould anfwer the
whole. 2. Vern 504. pi. 455. Trin. 1705. Fellows v. Owen. — Wms's Rep. Si. pi. S5. Mich. 1705. S C.
TheCefty que Truft was prefent, and confenting to the Payment as above; and at his Importunity the
Truftees join'd in Acquittance for the whole. Decreed that A. fhould not anfwer for B.'s looo 1.
6. A. made z Conveyance to federal ^ruflees for Payment cf Debts, and S.C. cited
thev all joined in a Sale, but one only received the Money, and became in- ^ ms's Rep.
Iblvcnt J the others were not charg'd^ cited PerLd Keeper. Chanc. Prec. -['(^j-ob^'^'^
173. Mich. 1701. in the Cafe of Aplyn v. Brewer, as the Cafe of Heaton 15 w. 5. and
and Marriot. reheard
Jan. 27. r
J Ann. Ibid. S2 S. C cited per Lord Cowper. A. and B. Truftee.s, by Mr. Lyfter's Will.
A. received all. Tho' B. join'd in the Sale to a Purchalbr, yet he was not charged. Wms's Rep. Si. in
Cafe of Jf elloto^ iJ. S^itCljell anO ©toeu ; cites it as lately ac.iudged in the Cafe of Woodcock and
Widdall.
7. Refiduary Legatees brought their Bill againfi B. and C. the Executors, S. C. cited
for an Account and Payment of the Surplus, who put in a joint Anfwer, ^rg. Wms's
and in a Schedule annex'd fet forth all their Receipts and Payments, -^^^'^^^ ^y
and make themfelves jointly Debtors for the Balance i and inter aP for peiiov^-s v.
6 U 200 1,
534
TrulL
o zool. EaA-Indi:i Stock in their Hands undifpos'd o£ After the Anfwer
ric:cvs"'d''at put in, the Defendants /t// the faid Stock, and join in the Transfer, and
the Roll's, divide the Money, each receiving io6 1. C. became infolvent, and B. in-
Hill. 1-04.— \\{[q^ that he ought to be charg'd only with 106 J. which was all that
w^' •^"k'^ h^ recei v'd. Th'e Caufe was firlt heard at the Rolls, and the Decreejoint
z^z'^'and"'^' againft thein both, and confequently B. liable to pay the whole ; and
iakiit had upon Appeal Lord Keeper aflirm'd the Decree. And as to the Cafes of
been hdd jff{jcii|30 anBClUCn, and of lacatOn antl ^aittOtt cited, v/here altho'
^"TaS?" 'J^'ii-Ulecs had join'd in felling and conveying a Truif Eftate, yet each
Wilkins V. vi'as charg'd but with his own Receipts, it was anfwer'd, that thofe
Allen. Cafes -where a I'rnfiec joins only for a Conformity, and in order to pafs over
S. C. cited jj^g Eitate to a Purchafer, which * cannot be done without hisjoining or
by Lord relealing to his Co-Truitee, differ jrom the Cafe of Executors, who need
^vho faid it net join, but may ad feverally, if they think fit ; each may fell, affign,
was a ic/;^n- or releafc the whole wirhouc joining with the other. And in the Cafe
liiry Mt\n cited of jf£UOtl30 f ©lUCn, what Vv'us done was with the Privity and
tiiem, being /^^ ^^^^.^jion of the Celly que Trull. 2 Vern. 570. pi. 516. Hill. 1706.
to fell the Murrell v. Cox and Pitc.
dUHn'mf^'d it from the Cufe of ^fllch'0 iJ. S^ifcljel ailfl fiDtDEH, that there what the Truftees
did was necej[ary for the SatisfacHon of the Mortgagee. Wms's Rep. S5.
+ Abr. Equ. Cafes 247. 248. S. C accordingly ; and that as to the Cafes cited, that the Truftees there
v.cre Truftees of a veal EJlate, where there was a Ncceffity for both to join.
8. If one Truflec direHs the 'Payment of the T'rtifi-money over to the other ^
and joins in the Deed, he charges and makes himfelf liable for the De-
fault of the other. Said to have been fo held lately in Cane, in the Cafe
of Serjeant "W'ebb's Will.
9. jane Cox, by Will in S724. gave 650 1. to R. and 2 other 'fruf-
tees in Tri/fj-to bmld and endow an Alms-houfe in Cornwall, for Mainte-
nance of 5 poor \\''on)en, and made M. and N. Executors, and appointed
the 650 1. to be paid within 6 Months after her Death, with Intereft.
J?, liv'd in London, and the other draftees iii Cornwall. R. call'd on the
Executors /or //&e Money, who rejris'd to pay it, tmlefs the 2 other T'riiftees
would join in Receipt; he procures a Receipt, and received all the Money, and
paid atTimes by Direflions of the other Truftees, for Buildings &c. 400!.
and about 4 Tears ajter the Money Jirfl received fails, and is now infolvent. On
a Bill for Account "againft all 3 Truftees, Ld. Chancellor faid the Queftion
is how far the 2 other Truftees are anfwerable tor R. That it could not
be expected that all iLouId meet together to receive ; but if they had, ei-
ther one muft have had theCuftody of the whole, or it muft be divided
into Shares. Suppofe all the Money had been lodg'd in Banker's Hands
Bona fide, and he hud fail'd, fliould the Truftees have been anfwer-
able &c. And if they intruil one of themfelves lor Convenience or Ne-
ceffity, at a Time when he is folvent, which is no more than making
him their Banker, Ihall Equity punifh where there is no Default ? and
this is the very Cafe of CfjUrcbtU ailU C^OprOrt ; and to charge Truftees
in fuch a Cafe, would make the Cafe of Truftees very perilous, which
are necctiary for the common Good and Convenience of Families &c.
And faid he faw no Reafbn why Truftees may not make one of themfelves
their Caf})ier, where there is no Fraud ; that this was a reafonable Thing at
that Time, R. was the only Truftee who liv'd in London, where the
Money was paid &c. and as to an Objection made as to the letting the
Money lie fo long in R.'s Hands, he faid the Cafe of R. differs from the
Cafe of a common Banker, where the Money may be drawn out at Plea-
fure ; but here R. had as good a Right to the keeping it as the others,
and all paid out to about one 3d, and he was intrufted by the Teflatrix
as
Vacat. 535*
as much as the other. And decreed R. only to be chargeable. MS.
Rep. Trin. Vac. 1734. Attorney General v. Randall & al'.
(O. a) Co-Truftees. In what Caies they muft all
jom.
I. A Term was convey'd to 2 Truflees. One difagreed, and the oJ/j^r
±^%^ made a Lcafe in Bjetlment. And Hale Ch. J. held that he was
a good Leflbr, becaufe the other Trullee's Difagreement made the
Elbte wholly his. Vent. 130. Pafch. 23 Car. 2. in Cde of Smith v.
Wheeler.
2. Where there are 4 I'nifiecs to grant Leafes, and a Leafe is made hy
the Authority of 3 onJy^ 'tis a Breach of Truft, and fuch Leifee can have
no Relief in Equity. Chanc. Cafes 202. Mich. 26 Car. 2. Rothwell v.
Hulfey.
(P. a) SurSivhig Triiflee. His Power.
I. nn'HE Court order'd the {nxvWmg Joint Feoffee to make Sale of So where a
JL Lands for Payment of Debts, as well as if the other had been ^^^" [before
living. Toth. 168. cites Mich. 12 Jac. Billingney v. Matthew. of pSudT
. . and Pciju-
nes] gave Inttruftions for bKU ill to be put into Writing that his Atefuages eind Lands pen! d he fold by
A. u),d B for P.iymer.t of his Debts and Legacies, and made R. and S. his Executors, and died without
further Publication oi his Will, one of the Truftees died ; and the Survivor and the Heir were com-
pjil'd to fell, decaufe the Lands were tied with a Truft which would furvive in Equity. Hard. 204,
TMich. 1 3 Car. in Scacc. G williams & al'. v. Rowel 8c al".
For more of Truft in General, fee CnfilUt, CreCUtOtS, S\\\t§,
*j5narmait, potucr^, Eecc^erp Common, S)£ttlemeutsi in Cf)an=
CCrp, ^ft0, and other proper Titles.
Vacat.
(A) Li what Cafes it fhall be made. \_And n.vheh.']
I. TiF a Clerlt of t!)e Jl^mg'0 XenCf) enters a judgment tIjCre ag.iin(t
X the Command of a Judge of the Court, a JDilCnt mfiP tt lliilJC Of
it in another Term Dp ©mCC Of t!je CCiStt* -iL'f, .} Jil* 03^^ IR, bCtrJCClt
Rcfiney luui Rol'iiifcn. mS)UB3£D»
2. J,
936
Vacat.
S.C. cited 2. T. S. iniprifon'd in the Counter at the Suit of W. in Order to get
Kolis Rep. himfeif removed to the Fleet as a more agreeable Prifon, made a
11^ Mich. _gg^;^ as tQ B. and got it put tn Suit, and J^iidgmoit tbe;-enpn on his con-
izjac inthe ' ^ ^^^^ j^j^^^^ ^^^ ^_ k„erj^ noihtiig of all this Matter. This Matter
S^nSe beinldilcloled to the Court by W. and B. difclaiming the Debt and
of Day. V. Suit, J. S. was remanded to the Counter, and a Vacat made ol the Re-
Hungatc. cord. D. 249. b. pi. 84. Harrifon's Cale, alias, Worley v. Harriibn.
3. G. obtain'd Judgment a^ainjl J. S. by can/iiig another Per/on to ap-
pear for him, J. S. having no Notice thereof, and a Vacat was made of it,
becaufe it was obtain'd by Praftice. A rg. Roll Rep. 115. in Cafe of
Day V. Hungate cites 24 Eliz. Grevill's Cafe.
4. Execution was iindtilyfiied upon a Judgment in Debt confefTed by the
Ld. Cobham, and after his Imprifonment for Treafon the Plaintifl fued
an Elegit, and it was order'd that Vacat Ihould be made of the Re-
cord thereof Mo. 631. pi. 866. in Cafe of Gillibrand v. Hubard
cites Mich. 38 & 39 Eliz. Serjeant Hele's Cafe.
5. A. confejjed an Atiion in the Name of H. and he was fentenced in
the Star-Chamber, and that Vacat lliould be entred on the Roll of the
judgment. Mo. 631. pi. 866. in Cafe of Gillibrand v. Hubard cites
Mich. 38 & 39- EiiZ'- Helcombe's Cale.
^ p. 6. A. levies a Fine by another'' s Name qf the other's Land, the Fine
(^E b Opl was order'd to be vacated. Mo. 630. Mich. 38 & 39 Eliz. in the Star-
4?'s. C Chamber, Gillibrand v. Hubard.
7. In Fjefiment, one E. was the Defendant's Attorney in a Judgment
given agatnjl the Defendant by Fraud betii'een the Defendant's own Attorney
and the Plaintiff, and Execution thereupon ; but becaufe at another
Term it appear'd to the Court by Examination that the Judgment was
had by Covin and Fraud, a Vacate was made of the Judgment and Re-
Ititution to the Defendant. Palm. 197. Trin, 19 Jac. B, R, Chapleyn
V. Allen.
8. A. takes a Judgment in the Name of B. who dies, and Adminiflration
is committed to J. S. A. enters Satisfaction on the Judgment ; J. S. the
Adminiftrator ot B. moved that the Entry of SatisjaBion be vacated, and
this appearing on a Report of the Mafter to whom it was referred, the
Court faid the Defendant had good Equity, but they could not help
him, and the Rule was to vacate the Entry of the Judgment, Niii. 7
Mod. 13. Pafch. I Ann. B. R. Anon.
9. After Judgment obtain'd, a Satisfaction -was entred upon the Re-
cord by Virtue of a forged Warrant of Attorney, the Court order'd the En-
try to be vacated. Barnard. Rep. in B. R. 320. Trin. 2 Gto. z. ^Vilfon
V. Charlefworth.
10. A Warrant of Attorney was to enter tip Satisfa£iion on a Judgment of
12/. 10 J. whereas the principal Sum recover' d was 12 1. 10 s. and for
Cojfsj\os. and 13/. 10. j. more by Way of Incrementtm, which in the
whole amounted to 28 1. fo as there really was no fuch Judgment as for
12 1. 10 s. but for 28 1. And the Court faid, that for that Reafon the
' Judgment ought to be vacated ; but the fame was vacated upon the other
Reafon, in the Plea above. Barnard. Rep. 320. Trin 2 Geo. 2. VVilfon
V. Charlefworth.
For more of Vacat in General, fee fin^Slj 31UUgment, and other
proper Titles.
Value.,
537
Value.
(A) Ho'vo to be computed. In Reference to Time.
t. T N a Replevin the Cafe upon the Evidence wis that before the Sta- 3 Le, 114.pl.
j^ tuce of ^jiia Emptores terra-rum^ a. Man made a Feoffment in Fee P'-. '65.
to hold ot him by the Service of Solvendi poll quamlibet Vacationem £T"^'^q V
live alienationem, the Value of the annual Pro/its of the Lands ; per Cur. ^\^^'^ q j'„
the Value ihall be intended fuch a Value as was the Value at the Time totidcmVer*
of the Feoffment made, and not as 'tis mproved by Succeffion of Time. bis.
2 Le. 117. pi. 158. Mich. 29 & 30 Eliz. C. B. Marlh v. Jones.
2. The Value oi Lands ''jjtthin the Statute of i £. 6. ofMonaJferies &c.
is to be regarded as it was at the Time of making the Will &c. or at
leall as it was at the Time of making the Statute, and if it was of grea-
ter Value atterwards 'tis not conliderable. Cro. C. 456. pi. 1. Pafch.
12 Car. B. 'R. Humphreys v. Knight.
3. Vouchee ffiall not Render in "S'alue more than it was at the Time of
the Warranty, and the Value of the Land is to be refpecled ultra Repri-
fas. Cro. C. 436. in Cafe of Humphreys v. Knight cites 6 E. 2. Voucher
258. 19 H. 6. 46.
4. Co-veui'.nt to fettle La-nds of fach a Value. This relates only to the Time
of the Settlement, unlefs the Covenant is further. That they fliall con-
tinue of fucii Value. Vern. 217. pi. 215. Hill. 1683. Speke v.
Speke.
5. If one devife Land to the Value of 100 1, a Tear to another, it is
Prima facie the bell Rule of Valuation to ellimate them at the Value
they were at the Death of the Devifor ; per Hole Ch. J. 12 Mod. 526.
Trin. 13 W. 3. B. R. Berty v. Dormer.
( B ) By n.vhom to be fet.
I. T TALUE and Eltimation oi Jewels, and fuch Things, is always
y as the Buyer will account of them, and eileem them. Arg.
Bridgm. 127. in the Cafe of g)OUtijei;n ll. 1^)0113, and cites xMich. 38 6c
39 Eliz,. C. B. Davenport v. Simpfon.
6 X (C) Plead-
538
Variance.
(C) Pleadings.
I. TN an J^ion on the Cafe for 20 Gtiiaeas, the Value need not be fet
X forth in the Declaration, but may be given in Evidence to the
Jury, But in Del^t for them it is otherwife i for the Aftion on the Cafe
IS brought for Damages. Carth. 255. Mich. 4 W. & M. in B. R. Font-
zell V. Burrows.
For more of Value in General, fee "Dtbt, jf OVeifflt C^Oncp, and other
Proper Titles,
Variance.
(A) Betzveen the Coiwt and the SpecialPy.
1. TiI3 ait Ejeaione JFitmae, if tIjC Plnitttlff declares upon a Leafe Of
1 a ifatm Call'D "D* of the Parilh of St. Mary Loades Civi-
tatis Glofter, atlU Ihews in Evidence a Deed Of LCaft Of tljC filiD
iTarm in tU Parillj of St. Mary Loades, juxta Civitatem Glouceller.
"^W 10 not anp i^nriance ; foe it map be in tljc pariflj of tlje Citp,
ann ^ct SDnt of tijcCitp; fot Juxta ej;clutie!ei it out of tfje Citp*
ISJafCt)* i5 3!a» 'B* 1I» Robinfoti agahjl Buddon and others. ^Djutltjcll
Upon Ciiinencc at Q5ar»
2. But otljenuifc it ftan been, if Ije ijan Dcclaveti of a icafe of tlje
JFarm in the fiid Parilh in Civitate, antl fljClU'D a "^ZttS Of ICafC Of
tljc lauQ in tlje 13anflj )ui;ta CtUitatcm ; for if it be m tljc Citp it
cannot be )uj:ta Ci^itatems for 3jurta implies tbat it i0 out of tlje
Citp* }9* 15 3a» 'B* JR« Robinfon and Buddon. SlgrCCD pCt CU-
riarn*
Sodlliehtof 3. Debt for 30 Stone of JVool, and the Obligation was one Sack of Wool ;
9^<i»-*^,andand yet good ; lor all is one. Br. Variance, pi. m. cites Itin' Derbv,
lS-?r in the Time of E. 3.
Br. Variance, ,
pi. III. cites Itin. Derby in the Time of E 3,
4. In Aflife in C. the Tenant pleaded Jointenancy by Deed in B. and
it was faid that where the Deed of Jointenancy varies in Name of the Vill,
or
Variance.
S39
or J^iiantity of the La»d, that this is not good. Quaere if B. be a Ham-
let oiX. and fo pleaded j for then it feems good. Br. Variance, pi. 6g.
cites 24 Aff 6.
5. A Man fued Execution upon a Statute- Merchant againft the Conu-
for, as Executor of the Conufee ; and the Obligation was A. JK Son of
JT. £. Merchant and Citizen of E. and the J'cjiament "xas V/. of B. Mer-
chant and Citizen of E. omitting (Son of T.) and for the Variance he
could not have Execution, but was awarded by the Court to a Writ upon
the Cale ; quod nota i but at this Day an Alias Diffns will ferve as ic
feems. Br. Variance, pi, 49. cites 24 E. 3. 67.
6. In Alfife of Corody the Plaint was Apprender froin Week to JVeek, and
the Specialty was fo, or from 15 to 15 jD^jj, and yet the Plaint was awarded
good. Quod nota. Br. Variance, pi. 72. cites 29 AH." SS-
7. By /Matter ex poj- Faiio, a Man may vary from the Specialty. Br. j^ where a
Variance, pi. i. cites 2 H. 6. 9. ' Feme fih
gr.vits Sec.
/ivA after Jlie takes Baron, or where a Squire grants, and after is made a Knight, Duke, or the like. fir.
Variunce, pi. I. cites 2 H.(5. 9.
8. Where the Grant is of the Office of Packing of Merchandize in Lon-
don^ taking fuch Profit, he ought to fay that the Cloaths and Pelts
whereof he is grieved, were Merchandize which came from bevond
Sea, or to be carried from hence beyond Sea, and if not, then ill'j for
where a Grant, or Cnftom, or Pardon &c. are Specially upon fuch Particula-
rities^ there he ought to purfae it Verbatim. Br. Plaint, pi. 4. cites 22
H. 6. lo.
9. A Bond was enter'd into for Payment of 80 /. of the Money of
Weji-Jerfey. The '?V\\i\i\'^ dalared for %ol. of the Aioney of F.nglaiid ^
but was uonfuited. Ld. Raym. Rep. 697. Mich. 13 V\'. 3. JBafs v.
Firmen.
10. In Debt for Rent, the Plaintiff rt'^^r/^^rWo/' i:r Pozverto make Leafcs
generally-^ but upon producing the Deed, wliereby the Power was re-
ierv'd, it appear'd to be a Power, with Reflriclimis to make Leafes for 21
Tears m PojjeU'ion, and not in Reverjion rendraig the ancient Rent, and not
difpvnifhable ofWafle. Holt Ch. J. at Kingfton Affiles held this a mate-
rial Variance. 2 Ld. Raym. Rep. 792. 793. Trin. i Ann. July 1702.
Sands andTafli v. Ledger.
11. In Debt lor Rent, a Dcclaratiou was of a Leafe rendring Rent 15 /.
per Ann. but the Leafe itfelf was rendring 15 /. per Ann. Rent, and 3
Fozvls ; and thereupon the Plaintitfs were nonfuiced. 2 Ld. Raym. Rep.
793. Trin. i Ann. Sands and Taili v. Ledger.
12. In Covenant the Plaintiff declared of a Deed bearing Date on fuch a
Day of March, Anno Domini 1701, and on fuch a l^earofthe King; but
upon Oy tithe Deed had neither the Words {ylnnoDomim) ncr{Anno Regni.)
^ut the Court held this no Variance; for it was implicitly in the Deed.
2 Salk. 658. pi. 2. Trin. i Ann. B. R. Holman v. Borough.
13. In Debt upon a Recognizance, the VliiintiiF declared as on a Recogni- AS.ire h-
zance ackncwledg\i in C. B. Coram G. ifreby AIil. y Socin fuis ; but the S'^'^ ^^"^
Record produced was a Recognizance taken before Nevil J. at his Cham- li'^'^ "f°" *
hers in Serjeant' s-Inn, and by him brought and dcliwred into Court. Th\s ackaow^"''
was held a Variance, 2 Salk. 659. pi. 4. Mich. 2 Aim. B. R. Chetley leg'dby the
V. Wood. Utfendant,
Oyer thereof, and of the Condition. The Condition recited in the Scire facias was, that the Defendant
fhould give Notice ofTrial Profecutori (et) ejus Cler,ico ; but the Condition of the Recop-nizance en-
ter'd upon the Oyer was, that the Defendant fhould give Notice of Trial Profecutori (aut) ejus
Clerico. This was held to be a manifeft Variance ; and thereupon Judgment was given for the Defen-
dant. aLd. Raym. Rep. :$■;. Pafch. i Ann. The Queen v. Ewer. ; Salk. '564. pi - S C bur
{>. P. does not appear. ' Mod. 9. S. C. Sc S. P.
14. In
c^^o A^endorand Vendee.
6 Mod. 22S. 14. In Debt on Bond, the yiawuA' declared of a Bond made to him to
S. C. accord- ^^rj, ^q /. to the Plaintiff himfelf ; whereas the Bond was for Payment oi
''^S'y- 40 J. to the Plaintiff'' s Attorney, or bis Jljpgns (not faying to the Plaintiff
himfelt") But this was held no Variance. 2 Silk. 659. pi. 5. Mich. 3
Ann. B. R. Roberts v. Harnage.
s Ik (?<5o i^- -A" Information for a Libel fd forth feveral 'fcandalous Matters
S. C. accord- therein concain'd, but in the f:tting torch one of the Sentences of the
inc^ly ; a- d Libel, it was recited with tiie Word (Mr) inriead of (A^o?) This was
fuysNotc, held fuch a Variance, that Judgment was given for the Deiendant. 11
t^l^tL. Mf^d- 78- pl- 12. 84. pi. 4. 95. pi. 4. Mich. J Ann. B. R. The Queen
not altered V. Dr. Drake,
by this Al-
teration of the Words. Holt's Rep. 54;. S. C, Uc. with the Arguments.
16. In l^eht upon an Obligation, the VliimnS dichred againjl Johannem
Meredith nwper de Parochia-Santlce Ann^ IVeJfm.in Com' prad' Vi6tualler ai'
di£l. Johannem Meredith de Parochia Sanclse Ann^e. The Defendant pray'd
Oyer of the Obligation^ which was fet forth in Hsc Verba, and was Jo-
hannem Meredith de Parochia SanB^Anriie in Qjin. Middle fex^ and demurr'd
geneially ; and the Court upon the firft Argument feeming to think it a
material Variance, the Plaintiff pray'd Leave to difcontinue, & habuit.
MS, Rep. Mich. 5 Geo. B. R. Arnold v. Meredith.
For more of Variance in general, See C^ifCaRlllg, ^^ifUOrmet,
'Siriill, and other Proper Titles.
Vendor and Vendee.
(A) Difpiitcs hctzveen them. Bills to carry Articles hito
Kxecut'mj. /' ^^ ,^
S. C. cited I. TlILL for a fpecifick Performance of Articles, for the Purchafe of
Arg. loMod. Jj Lands &c. in Kent. The Cafe was, the Plaintiff <2f/w^ to fell
5°^ i" Cafe ^^^ Manor and Lands in A. in Kent to the Defendant by a Particular^
fa ^dtD 'wk'^f'^tn the Manor and Royalties are mention'' d^ but no Value fet upon them
3(Lerl)inEre, therein. It happen'd that the Plaintiff had no Title to the Manor j hut had
as Pjfch. 8 ijccn in Poffeffton of the Royalties for feveral Tears. The Defendant objeifed
Gio. I. And ^gainft going on with the Purchafe, that this was a ContraB at a South
beine ac-" ^ea Price, viz, 46 Tears Purchafe; and 2dly, that tho' no Value was fet
knowledT'd tipoii the Manor and Royalties by the Particular^ yet they are valuable in
that this theiufelveSy and was a great Inducement to him to purchafe the EJlate, and
Manor was there-
Vendor and Vendee. 54.1
therefore lince the Plaint iff cannot llriflily pertorm his Part of the Agree- of little or
menc, by conveying the Manor, he ought not to have the Aid of a Court r° Value,
of Equicy to compel the Defendant to pay the Money, lince he cannot ji^^j jj,g
have the full Benefit of the Agreement ; and lor this lall Reafon the Bill other Cir-
was difmifs'd, but vi^ithout Colls, if the Plaintiff would deliver up the cumftance in
Articles : Per Macclesfield C. MS. Rep. Hill. S Geo. Cane. Sir Geo. '^'^ S^"'^'
_ , ' „ , '^ vu. the un-
Hanger v. Kyles. vealbnable
Price, was
that which really inclin'd the Court to lay hold upon a Point too inconfiderable othenvife to have
been taken Notice of.
2. A Bill for the fpecifick Performance of Articles for Purchafe of InthisCafc
Land, was brought ly Vefidor, in which Articles was a Provifo on or be- ^^'^ f'vi i!"^'
fore I oth November to lay fuch an Ahfira£i of the Title before Cotinfel of Ven- -pj^g ^^3
dee^s^ as theypould * approve. The Agreement was tor 40 Tears Purchafe. very mate-
The Bill was difinifs'd with Cofts, becaufe the Tirk was /lot laid before rh\, hecmCc
Couiifel -jcithtn the Twie limited; Per Parker C, 10 Mod. 503. Trin. 8 ^'^^ ^"^^°^
Geo. I. in Cane. Lewis v. Lord Lechmere. Stock from
■whence the
Money for the Purchafe was to arife, was fallen near Two-thirds after the Time fo limited. Ibid.
* A Covenant to m.tke fuch a Title as Vendee s Counfel pall approve of, means no more than that the
Plaintiff fliould make our a good Title ; for if the Counlcl diGpprove of a good and clear Title (^fuch
a Title as a Court of Law or Equity would take to be a good Title) yet the Vendee will be bound by
his Bargain. See 10 Mod. 505. in Cafe of Lewis v. Ld Lechmere.
3. yf/7^ another Point was, but not determin'd, whether it be confiilent S P debated
with the Rules ot Equicy to decree a Performance in Specie of/o estrava- ^ntheHouic
gant a Bargain as a Sale of Land at 40 Years Purchafe, tho' it feems that^^^ unde'tir-
that influenc'd the Decree. See 10 Mod. 503. &:c. in Cafe of Lewis v. mined, and
Lord Lechmere. a Decree
made upon
another Point. See G.Equ. Rep. 155. 15^. Keenv Stukely. In which laft Cafe, it was determined in
the Court of Exchequer (before it went up to the Houle of Lords) that they would inforce a Ipecifick
Performance of fuch Contradts, if the Price was reafonabk at the Time the Cuntraii aas made, how dif-
proportionable foever After-accidents might make it. Arg. 10 Mod 504.
4. Alfa it was held, that upon mutual Articles there ought to be mu-
tual Remedies ; and therefore the Vendor may come into Equity for a fpecijick
Performance.^ as well as the Vendee. And Parker C. was of Opinion, that
the Remedy the Vendor had at Law upon the Articles, was not ade-
quate to that of a Bill in Equity for a fpecifick Performance. 10 Mod.
506. in Cafe of Lewis v. Lord Lechmere.
5. Decreed, that where Articles were not obtained with the Jiri[fefl
Fatrnefs., the Conveyance to be fet alide, and the Purchafe to Hand as a
Security lor the Conlideration-money. MS. Tab. cites Feb. 5. 1702.
or Feb. 28th. 1722. White v. Lightburne.
(B) Difputes between them reht'iiig to the Title.
I. rr^HE Plaintiff bought of the Defendant the Reverfion of a Copy-
X. hold which he could not enjoy., and confefs'd by the Defendant's
Anfwer ; thereupon a Subpoena is awarded againft the Defendant, to
fhew Caufe why he Ihould not repay the Money received upon the Bar-
gain. Gary's Rep. 132. 133. cites 22 Eliz. Picketon v. Litecoce &
alios.
6 Y 2. A,
c^A2 Vendor and Vendee.
Where a 2. A verl^al Sale was made of a 3d Part of a Ship to £. B. gives Bond
Mm fells a j-^y ^^^ Money, and the Ship is delivered into his Pojfejpon ; B. demands a
^'""her°it Bill of Sale o^ the Vendor, without which he cannot make a fatisfactory
Islni^lie'd Title to any other Purchafor. Vendor refiifes, B. fends the Ship a Voyage^
that the and after [ties to have his Bond deliver d tip. Vendor then offers a Bill of Sale.
Vendor fliall ^ refufes. Decreed the Bond to be delivered up, and the 3d Part &c.
Twceh^Bm re-affign'd to the Defendant. 2 Chan. Cafes 5. Mich. 32 Car. 2. Legate
of Sale to V. Hockwood. '
the Vendee,
but not unlefs it be demanded; Per Finch Chancellor, z Chan. Cafes 5. Mich. 52 Car. 2. Legate v.
Hockwood.
3. A. articles with B, for the Purchafe of Land of B. and upon look-
ing into the Writings it appears that B. has no 'Title to the Land. This
Court will never decree the Payment ot the Purchafe-money. Arg.
Nels. Chan. Rep. 189. 1691. in Cafe of Sands v. Fleetwood.
4. A. agreed to purchale a I'erin for Tears of B. and his Wife^ which
fhe had as Executrix, and on which was a Mortgage of 210 1. An jif-
Jignment was executed, and B. gave a Note of 2.\ol. to the Mortgagee, and
0/240 /. to B. and his Wife, being the whole Purchafe-money, and a Re-
ceipt was indors'd. But after it came out, that B. and his Wife, before
Marriage, had agreed to fettle it on thenifehes and their Ifftie. B. and his
Wite brought a Bill lor the Money, and A. brought a Crofs-bill for the
Difcovery of the Articles, and to have up his Note ; and by Anfwer de-
nied Notice at the Time of the Purchafe. B. and his Wife admitted the
Articles, but inlilted that the Premilfes are in Middlefex, and the Ar-
ticles "Were never regifter'd in the A-Iiddlefex Office, and fo void as againft A.
But the Matter ot the Rolls difmifs'd the original Bill with Colls, and
Coftsalfo on the other, and the Note to be deliver'd up, and A. to re-
alfign. And this Decree affirm'd by Lord Chancellor. Mich. 1727.
Abr. Equ. Cafes 357. pi. 11. Beatnilf v. Smith.
(C) Difputes. RdciUrig to frarrantks and Couenmits.
Ibid.Thelike I. ^"1 Purchafed Church-Lands in the Rebellion in Fee, and after-
Cafe and De- ^_j* wards fold them to H. and covenanted that he was lawfully fei fed
be 6 Months ^''- ^'^'^ ^^"^^ Proof being made that 'twas declared upon the Sealing, that
before be- the Vendor fhoitld undertake for his own Atf only. It ^vas decreed that the
tween Farrer Defendant, who had recover'd by Judgment at Law, ihould acknow-
andFarrer. ledge Satisfaftion on the Judgment, and pay Colts. Chan. Cafes 15.
Mich. 14 Car. 2. Coldcot v. Hill.
2. A. purchafed Lands of B. which were charged with a Rent of 40 1.
per Ann. A. fells part of thefe Lands to C. and covenants that the fime
are free of Incumbrances done or committed by him. Ld. Keeper inclined
to relieve, becaufe the Vendor knew the Lands were charged with the
Rent, and 'twas a Fraud to fell them without difcovering that Incum-
brance. N. Ch. R. 118. 19 Car. 2. Harding v. Nelthorp.
S-C. cited per j. A Purchafor of Crown Lands in the Rebellion fells part to A. and
fon 2 Ver"n covenants to mzkt further Affurance. On the King's Rellauration, he had
i6o.byName ^ Leafe for Years made to him for 300 1. under the King's Title. De-
of Taylor v. creed he lliould aflign his Term in the Part he fold. Chan. Cafes 274.
Tabor. Hill. 27 & 28 Car. 2. Taylor v. Debar.
(D) Vendor
Vendor and Vendee. 543
(D) Vc/idor arjd Creditors of Vendee. Difputes, Re^
lat'ing to Purchqje Money unpaid, and what fhall be
laid Payment.
I. 'V TINE hundred and Fifty Pounds is to be paid by the Vendee to
j[_^ the Vendor. The Vendee by the Vendor's Order pays 500 1. Pare
to a Bond Creditor^ and takes an AJJignment to himfelf ot the Bond, and
likewife other Money to other Creditors by Vendor's Order, but took
Security for Re-payment on certain Conditions. Decreed to be tio Pay-
ment to the Vendor, fo long as the AfTignment of the Bond, and the Se-
curity for Repayment, were kept on foot, and not deliver'd up to be
cancell'd. Fin. R. 84. Hill. 2$ Car, 2. Magfon and Sitwell v. Fane,
Clayton, & al'.
2. A. fells to B. who covenants only againft A. and ail claiming by, But Teepag.
from, or under him. — B. fecured the Purchafe-Money ; but before Pay- ??^ '°"ypo_
nient the Land was evitfed^ but not by any Title under A. but by a Title >■"*''"
Paramount. — B. fued to be relieved, that he might not be forced to pay,
feeing the Land was loft ; and was relieved by the Lord C. Ex Relatione
Churchill. 2 Chan. Cafes, 19. Hill. 31 & 32 Car. 2. Anon.
3. A. fells Land to B. who afterwards becomes a Bankrupt, Part of
the P lire hafe- Money not being paid. A. Ihall not be bound to come in as
a Creditor under the Statute ; but the Land Ihall Itand charg'd with the
Money unpaid, and that without any fpecial Agreement for that Purpofe.
Vera. 267. pi. 267. Mich. 1684. Chapman v. I'anner.
(E) Difputes relating to the Particulars of ihe Eftate.
I. A Covenants th^t he is feifed in Fee Simple, where in Truth it was a. anided
x\.* Copyhold in Fee', according to the Cuftomi Per Cur. The Cove- to i^r/i;,-/ ^nJ
nant is not broken, and the Jury Ihall give Damages in their Confciences ''"'^o, to B.
according to the Rate the Country values Fee Simple Land more than ^g^ { ""p^^
Copyhold Land. Noy 142. Grey v. Brifcoe. Ann. and
upon the
Granting and Conveying thereof B. was to pay 9 5 Tears Purcbafe. But B. difcoverint^ afterwards that
50 1. per Ajin. was Copyhold, and therefore refufing to go on, A. brought his Bill, but Ld. Macclesfield
would not decree a Specifick Execution it being unequitable and a Matter proper for a jury to mitigate
Damages, butorder'd the Money paid to be return'd, but without Cofts. Ch. Prec. 5:5. Sir H. Hicks
V. Philips. S. C. cited Avg. 10 Mod. 504. in Cafe of ?lfUMS tl. ?lli. S.frl)mcrC, laid that the
Vendor offer'd to procure an InfrmuJjifement of the Copyhold or make any Compeiifaticn in the Price, and vet
the Court difmifled the Bill, the Price being unrealbnable. In the Cafe of Hicks v. Philips, Ld.
Chancellor faid, there was no Colour for a Court of Equity to afuft this Contraft ; but if the Plaintiff
had fued at Law upon it, this Court would fet fuch a Contract afide as to the Copyhold, and that i:
was a clear Cafe, but that he would not determine"upon the Point of a hard Bargain, but upon the other
Point, order'd the Articles to be deliver'd up, and cancell'd and the Money paid down to be repaid.
MS. Kep.
2. A, agreed for the Purchafe of the Manor of S. from B. for 4000 1. "^he Parti-
B. gave in Particulars, but omitted a Copyhold Tenement, of which he'^"'^'''^,^^°^*
was feiled before he was feifed of the Manor, and \^■hich was about 24 1. ^oWa/li"
per Ann. and in the Rentall given in had made himfelf Tenant for 4s. cfchs\teda
6d.
dAA_ Vendor and Vendee.
Ittie before, gd. per Ann. Quit-Rent. — But the Words of the Conveyance to A. be-
and was not -^^^^ ^^^^ jj-jg jljancr^ "With all its Rights, Manbers, and Jppiirtenanccs, A.
intended to ^^^^j^ include the 24 1. per Ann. or as much as was Copyhold, and held
mefheiVent. of the laid Manor, tho' never agreed or intended to be ibid, nor men-
545.Sii-VVni. tion'd in the Particular, and B. enjoy'd it 6 Years after the Conveyance.
Beverfliam's j^ecreed that A. re-gratit the 24 1. per Ann. to B. in fuch manner as that
^n "c^es f'^'^h Part ol it as is Freehold may be held by B. and his Heirs, and what
i94.Pafcir is Cop\ hold may alio be held by B. and his Heirs, h\xt fab jeii to fuch
26 Car. 2. Rents,' Dtittes, and Se-roices as lefore A. purchafed the faid Manor, and
Taylor v. ^^.^^ ^ p^y ^_ ^\i Arrears of Rent tor the faid Farm, lince the Purchafe
BeverHiam. ^^_ ^ ^^^^ ^ perpetual Injunclion to ftay A.'s Proceeding at Law &c.
Fin. R. 80. Hill. 25 Car. 2. Tyler V. Beverlham.
3. A Purchaler of feveral Parcels of Land had Land convey" d not men-
tion d tn the Particular by which the Purchafe was made, nor intended to
be conveyed, but decreed back to the Vendor. 2 Chan. Cafes, 195. Palch.
26 Car. 2. Taylor v. Beverlham,
Clnn. Rep. 4. A. enters into Articles with B. to convey to B. and in the Articles
io<5. S. C. jj. ^-as faid the Lands coniplcatly contain' d fo many Acres as mention'd in
according y. ^^^ Particular ; yet in that very Particular, and alio in the Coni'eyance,
it was faid fo many Acres by EJhmation. Decreed that the Defendant,
having taken a Conveyance, ihall not refort to the Articles, or to any
Particular, or to any A\ erment or Communication ; for fuch Things Ihall
never be admitted againlt the Deed, and lo denied to make any Allowance
for DejeB of Acres or oi Commons., but where there were more Lives than
charged in the Particular, there Ihall be a Deduction. Fin. R. 3io.Trin.
29 Car. 2. Twyford v. W'arcup.
5. A. purchafed the Manor of D. in which were certain Lands caWd B.
and P. The Manor at the Time of the Purchafe, was in Mortgage for a
'Term of Tears, and .the Mortgage was paid off, and the Term aj/ign'd in
Trufl: to^attend the Inheritance i afterwards A. upon the Marriage of his
Son fettles part of thefe Lands, and aiuongfl them the Lands call'd B. and
P. but no Care was taken ol the Mortgage Term that flood out ; after-
wards A. being m PcjJ'cffion, contraits with the Defendant to fell him all
the faid Manor except the Lands call'd B. and P. but pe-dvs part of the
Lands of B. and P. as part that he •would fell, but the Defendant did not
know that any part of the Lauds were call'd by that Name, and in the Con-
veyance to the Defendant there is an Exception of Lands call'd B. and P.
After the Purchafe Money paid, the Delendant was evifted of part ot
the Lands calPd B. and P. (which he did nor know by that Name, for
they had been ihewn to him as part ot his Purchafe, and he had paid lor
them) by the Plaintiff who claim'd under A's Son ; upon which the
Defendant having jcund the oldT'erm that was on Foot at the Time of A.'s
Purchafe, got an Afjigmnent of it, whereupon the Plaintiff brought
his Bill to be relieved, and to have an Alignment of the Term ; and
that as to the Lands call'd B. and P. he was no Purchafor of them, lor
they were exprefsly excepted in the Conveyance i but my Ld. Chancel-
lor was ol Opinion, that tliefe Lands being Ihewn to the Defendant as
part of his Purchale, and he not knowing them to be excepted by the
Name of B. and P. was in Equity a Purchafor of them ; and the Court
ought not to allill in deleatingof them, and therefore difmifled the Bill
as to all the Lands purchafed by him. Abr. Equ. Cafes 355. Mich. 1698.
Oxwick V. Brockett.
6. A. was polfefs'd of a Term in 3 feveral Houfes, and purchafes a
Term in 2 other, in his own and his Wife's Names. A. mortgaged the
3 firlt, and died, and left his Wife Executor, who gave out Particulars
Jor Sale of all 5 Houfes. B. agreed to purchafe all, and they were con-
vey'd by the Name of all the Houfes as were in Mortgage. The Wile being
afterwards inform'd, that the 2 lalt purchas'd Houfes were her own by
Survivorfliip
Vendor and Vendee. c,^:^
Survivorlhip, and not liable to her Husband's Debts, nor convey 'd toB.
as not being in Mortgage, Ihe refused to let B. have thofe 2, tho it appear d
in the Caule jhe had often [aid pe had fold them as well as the other 3 to B,
Upon a Bill by B. tho' the Court was fatisfied that A. had covenanted to
convey all 5 to B. and thought fhe had lb done, yet there hcing no Agree-
ment in Writing as to the 2 Hoiifes not contain'd in the Conveyance, the
Statute of Frauds and Perjuries would not let them decree the convey-
ing them i for tho' the Particular was in Writing, and thofe 2 Houfes
mention'd in it as well as the others, and tho' it was proved that that
Particular was Jhewn to B. yet 'twas not proved to have been fhewn to
him on the PnrchaJ'e, nor that he purchafed ly it. Ch. Prcc. 29. Mich. 1691.
Cals v. ^^^aterhoufe.
( F ) Diijputes as to ^ccide?jts kfallifig the Eflate after
the CoNtra^.
I. \ Articles on behalf of B. for the Purchafe of 4 Houfes in Ja-
£\_' m.iica, and to pay 800 1. for them. A. upon feveral Pretences
delay'd the Performance. The Vendor brought a Bill for a Specifick Per-
formance. Pending the Suit, the Houfes are fwalloiv'd by an Earthquake.
Notwithftanding which, and that A. had net Effetis of B. fufficient to
pay for the Purchafe, yet a Specifick Execution was decreed. And the
Decree affirm'd in the Houle of Lords. 2 Vera. 280. pi. 267. Mich. 1692.
Cafs v. Rudele & al'.
2. A. by Articles reciting that he had a Church Leafefvr 2 Liz-es co-
venanted to convey his Title to the Premifes by fuch a Day to J. S. as
J. S. or his Counl'el iliould advife ; after the Articles and before the 'Time
for the Con-oeyancc, one of the Lives dropt. Ld. Keeper decreed that in
Regard here was no Default in the Seller in making the Conveyance, the
Lois of the Lite ought to be born by the Purchalor. VVms's Rep. 61,
62. Mich. 1702. White v. Nutt.
3. As if the Reverftuner articles to fell the Revcrjion expeffant upon z
Lives, and one had died before the Conveyance, the Purchafor in fuch
Cafe Ihould have the Benefit of it, and both in this and the former Cafe
the Ellate is as convey 'd from the Time of the Articles feal'd ; per Ld.
Keeper. Wms.'s Rep. 62. in Cafe of W'^hite v. Nutt.
4. But his Lordlhip feem'd to think that if all the Lives had dropt in The Rc-
the firrt Cafe before the Execution of the Conveyance, it might "have P°''''^'' "^'^^-^^
been another Conlideration ; for that the Money was to be paid upon the th^jf ' ^^
Conveyance, and no EJi-ate being left, there could be no Conveyance. Wms.'s o Ah irj)^a
Rep. 62. ut fup. White v. Nutt. tinftion b?-
twecn the
Lofs of Part and of the Whole, and refers to the Cafe of Cafs v. Rudele, which fee fup. pi. i.
5. Ifyf. htiys a Houfe, and before the 'Time agreed upon for Payment o?
the fame, the Houfe is burnt down byCafiialty ofVire.. A. will not in Equi-
ty be bound to pay for the fame, and yet the Houfe may be built, up
again ; per the Mafter of the Rolls. 2 Wms.'s Rep. 220. Pafch. 1724.
in Cafe of Stent v. Baylis.
6. A Reverjiou cxpetfant on an EJlate for Life was decreed to be fold to
the bejl Purchafor. J. S. was reported and abfolucely conjirm'd to be fuch,
but the Conveyance was not executed long after, before which J. S. was
order d to bring his purchafe Money into the Bank ^ the Life f el! m. The
6 2 " ' Mailer
Vendor and Vendee.
Malter oi" the Rolls decreed J. S. to pay Intereft from the Time of his
being abfolutely confirm'd the bell Purchafor to the Time of bringing
the Money into the Bank ; for from the Time he was fure of his Title,
tho' the Life had dropt the next Day, and the Life wearing from that
Time was equivalent to taking the Profits, and had he taken the Profits
he mull: have paid Intereft. And the Party was thenceforth a Truftee
for the Purchafor ; nor did it appear that j. S. had the Money lyhig hy
him, and therefore the Intereft belong'd to the Seller, or to the Trufts
for which the Eftate was to be fold. 2 Wms.'s Rep. 410. Pafch. 1727. Ex
Parte Manning.
(G) /r/jfcb of them is to do thefrfl Aoi. .
"A.
In Confideration of 100 1. promifed J. S. th.it B. and C. jhonld [ell
X A- J'^- ^"'^'^ Lands, Provi/b that J^. S. fhotild pay on fuch certain-
Day to B. and C. 2000 /. at which T'lrac B. and C.Jhould be ready to convey
to f. S. the faid Lands, and on Default of Payment of the 2000 /. at the
Day J. S.pvidd lofe the 100/ and the CntratJ for the Land to be void.
T. S. neither paid or tender'd the Money at the Day, which was the firft
A£t to be done, and he has no Remedy for Repayment of the 100 1.
Godb. 337. pi. 432. Trin. 21 Jac B. R Killigrew v. Harper.
2. If one be to feal a Conveyance generally, there the Counfel of the
Purchafer is intended to draw the Conveyance, and then the Purchafer ought
to tender them; per Windham J. and not denied by any. Lev^ 44.
Mich. 13 Car. 2. C. B. Webb v. Bettell.
(H) Vcfidee and Vmdee. JD'ifputcs between them.
I. A Has 4 Feoffees to his Ufe, B. C. J), and E. A. fells this Land to F.
jr\» and requires B. and C. to pafs the EJlate of it to F. and A. alfo
requelts B. and C. to requeft D. and E. in the Name of A. that they alio
Ihall pafs the Eftate to F. and they and B. and C. do all this, and pafs
tlie Eftate accordingly toF. but A. did not fpeak with D. and E. to this
Purpofe ; A. afterwards fells the fame Land to G. and requires D. and E,
to make an Eflate to him of it, and they do fo. Upon a Suit in Chancery
by F. againft D. and E. they were difcharged by the Advice of the Jus-
tices, tor A. did not perfonally require them to make an Eftate to F.
F. may fue A. and alfoG. if G. had Notice of the firft Sale^ and G. may
alfo fue A. for this Deceit. Jenk. 107. pi. 5.
2, A. agreed for the Purchafe of Land oi ]. S. and was to pay down
200 1. which A. was to give Bond for, but if the Purchafe went on,
was to go as pare of the Purchafe Money ; but J. S. pretending Incmn~
brances demanded Payment of the 200 1. which A. tender'd and J. S. re-
fufedj afterwards B. agreed with A. for Purchafe of the fame, it being
generally faid that A. had receded from the Agreement, and B. paid
300 1. in part. And decreed the Purchafe of B. to ftand. Fin. R. 332.
Mich. 29 Car, 2. Huntington v. Howes & aP,
3. But
Ventre Infpiciendo.
547
3. Btit if the Vendor not afTifted by any A(i ofthefrji Vendee fells and
conveys the Land to a 2d Vendee, having Notice of the preceding Contraft,
in fuch Cafe, as from the Time of the Contraft, the Vendor was to be
conlider'd as a Truftee for the firft Vendee, {o Equity flill transfers the
Trult to the 2d Vendee, and the 2d Vendee may in fuch Cafe be com-
pell'd to a Specifick Performance. Arg. 10 Mod. 527. 528. in Cafe of
Acherley v. Vernon.
For more of Vendor and Vendee in General, fee COltDitfOUlS, jftiUlHj
l^UrCljafOr, and other Proper Titles.
*
Ventre Infpiciendo.
* See Brac-
ton, Lib. 2.
cap. 52. Dc
parcu Suppo-
iito &c. per
torum.
( A ) Awarded by whom, and in what Cafes.
I. ^UJfices of Peace may award the Writ of Ventre Infpiciendo as well
J as Jultices of Gaol Delivery J Per Frowike Ch. j. & tamen Du-
bitavit. Kelw. 51. pi. 4. Trin. 18 H. 7. Anon.
2. Sir F. W. died. His Lady enfeint. P. who married Sir F. W.'s Cro. E. 56^.
eldeft Daughter, and who had the greateft Part of the Eltate fettled on P'- 5 '■. Pa'ch.
him upon the Marriage in Default of Illue Male, attempted to fuller a (^ ,, l\^^
Common Recovery, in order to bar the Remainder in Uie, limited to Writ was
the firft Son ot Sir F. and fo dilinherit the Ilfue en Ventre fa mere. The to caufe her
to
to be
Widow of Sir ¥. petition'd the Judges and the Lords in Council, .^
Iky his Proceedings, fuggclling that Ihe was with Child j which was ^-^.^^^^^rr^^*
granted. V\ hereupon P. I'uggelted in Chancery, that Ihe was not with by iilFcmen
Child, but by ibch Pretence detain'd the Evidences of the Lands, and >" ''•>« Pre-
ftopp'd his iuffciing a Recovery, and pray'd the Writ de Ventre f nfpi- -^^;^''^ "/ *'''
ciendo, which was granted. Whereupon tht Sheriff s of London, with a lX;^ui^lt'
which was
J/irj (f Women, zvhereof 2 ivere Midwivis, came to the Lady's Hoiifc, and done accoi-d-
into her Chai?d'er, and fent to her the M'omen, fsvorn by the Sheriffs before, to ingly, and
fearchj try, and f peak the Truth whether Jhe was with Child or not. 'The Jictuni'd that
Men all went out, and the Women fearcF d the Lady, and gave their Verdiit Week^fone
that f]je was with Child i whereupon the Sherilis return 'd the VVrit ac- with ChUd.'
cordingly. Moor 523. pi. 692. 39 Eliz. Dame Willoughby's Cafe. Whereupon
anotlierVVrit
iflued to theSheriff to keep her in fuch a Houfe, and that the Doors Jl:c!!hi he 'U.-eU guarded, and fhould cai:fe
her to be view'd every Day by fame of the U\men named in the If rit, and that fonie of them jhould be prefent
at herDelti'ery, to fee if Stale orFemale; and afterwards he retui'n'd that he had done according!)-, and that
flie was dcliver'd of a D.;ughtcr.
3. A Widow married again within a Week after the Death of her frji
Husband, whofe Coufin and Heir brought the Writ de Ventre Infpi-
ciendo, dire6led to the Sheriff of London i who return'd, that he caujed
her to be fearch'd by fuch Matrons, who found lier with Child, & quod
paritura fuit within 20 Weeks. It was then pray'd that the Sneritf
might take her into his Cuftody, and keep her till flie was dcliver'd.
But becaufepe ought to live with her Husband, the Court would not take her
from him, he ent ring into a Recognizance that flje fijould not remove from his
then Dwelling- Houf~e, and that one or tzvo of the If'ou/cn return'd by the She-
riff
Win. ;i.
S. C fay.'!
the Writ
was directed
to t!ie She-
riff, to in-
quire by 21
Anichtj and
I 2 IFomeVi
in the Pre-
fent i of ij?e
548 Veftry.
Kmghts; and riff Jho II Id fee her every Day, and that fwo or three of them flooiild be preftnt
thattheSlie- ^^ the Deiroery ; and a Writ was awarded accordingly to the Sheriff of
nfF executed g^^^j.^ ^^^ afterwards flie was deliver'd of a Daughter, who was found
Co. Litt. by Inquilition to be the Daughter and Heir of the ill Husband. Cro.
8. b. J. 685. pi. 2. Pafch. 22 Jac. B. R. Theaker's Caie.
4. A. by Will gave a Sum oi Money to be laid out in Land, and fettled
on E. (an extravagant Perfou) for Life, Reniiinder to hisjirji Sc Son in
^ail Male, Remainder to his Daughters in 1'ail General, Remainder to a
Charity. B. married a Woman ot ill Reputation, and dying foon after,
the \\ ife pretended to be with Child. The Mafter of the Rolls decreed
the Mafter to appoint 2 Midwives, who Ihould refort to the Widow,
fearch her, and fee whether Ihe was with Child or not, and attend at
the Birth i whereupon, and after Attendance on the Mafter, Ihe at length
declared that flie was not with Child. Cited Arg. zWms.'s Rep. (591)
Trin. 1731. as the Cafe of the Attorney-General v. La Roche.
5. Lord C. King held this Writ to be of Common Right, and faid that
it is in the Regifter, tho' not in F. N. B. and is to fecure the next Heir
from any fuppolititious Births ; and that it lies for a Tenant in 'Tail, becaufe
when it was hrft allow'd, an Eftate Tail was a qualified Fee. And in
the principal Cafe, the VV idow being admitted to be with Child, the
Court vji\\.Jix a Place agreeable to both Parties for her to be at, till deljver'd,^
and where the Heir may at proper Times, I'rom time to time, on Notice,
fend Women to fee her, and to be prefent when the Child is born ; and
in that Cafe there is no (^ccafion to execute the W^rit in a ftrift Manner.
2 VV'ms.'s Rep. 593. Trin. 1731. £x parte Aifcough.
Veftry.
See injunc- ( A \ Powev of 3. Veftrv, {lud R'lzht of bam cit it.
tion, (A. 4) ^ '' ■" di J &
pi. 5 Mar-
tin V. Nut-
kin. I. "D Eplevin againft A. who avow'd, becaufe at a Convocation of the
j^ Parifhioners of W. to repair their Church, they t.ixd the Paripio-
ners at 10/. by thiir Afjhit, and to levy of every Carve of Land 6d. and of
every Cow id. Half-penny, and of every 10 Sheep a HalJ-penny ^ and be-
caufe the Plaintiff had Land, Sheep, and Cows, whicii amounted to 9 s.
and the Defendant was ordain'd to be Collector, and to diftrain thofe
who would not pay i therefore he dittrain'd the Plaintiff^ becaufe he
would not pay, and faid that fuch Cuflom has been there time out of
Mind And per Thorp, the AfTent and Cuil:om are not double, and the
Aflent is the Effect, and is inforced by the Cuftom; and by him it would
be more ftrongto maintain the Avowry, by reafon of a Cuftom, viz. to
diftrain if it were not by Atient. And per Belk. fuch Matter ought
to be affefs'd and order'd by the Ordinar)-. And Thorp agreed that
thofe who afTent Ihall be bound, by which he faid that he did not aflent
£0 the Sum, nor to the Diftrefsj prifl j and the others e contra. But fome
faid
Veftry. 5" 4 9
faid, that the Plaintiff Jiiight have demurr'd upon the Avowry. Qusere
inde j tor the Iliue was cal:en as above. Br, Cuftoms, pi. 6. cites 44 E.
3. 18, 19.
_ 2. La>i^s of 8 1. per x'\nn. purchaied in E. 6th's Time by a Parifli, ia
1'nifi for charitable Ufes, wAs improved bv Building to 450 1. and the
7'rujiees, by Order of Vcfiry for 1000 /. paid tor the Uie of the Parifh, grant
an AiiHuttyof 100/. pa Ann. to J. S. for Lite ■ and Ld. Wright thought
it no Breach of Trull, and decreed to pay J. S. the Arrears, and grow-
ing Payments. Ch. Prec. 225. pi. 184. Trin. 1703. Attorney-General
for Sc. Clement Dane's Parilh v. Lady Hart,
3. Cafe by the Plaintiff as a Parilhoner of C. againlt the Defendant, S Mod. 551,
Clerk of the Vellry tiiQxt, for putting the Vejiry Door, and /^ff/)/;;^ r^fef '54;Parcii.
Plaintiff out of the Room, fo that he could not come in to 'vote &c. Upon aa^^m"^''
Demurrer it was infilled that Aflion would not lie^ for if it fhould, then broU'ii U.
every Parifhioner kept out might have the like A£lion ; therefore to 3S.plaiiD,
avoid Multiplicity of Suits, this will not lie, unlefs he had fet forth fome ^- ^- ^"^ ''^-
particuLir Damage to him. But per Cur. The Plaintiff as a Parifhioner p^ai^tjff'^did
hath a Right to be prefent and vote in the Vellry, at the Ele£lion of Pa- mt fet forth
rilh-Officers, and as to all Races with which the Parilhioners are charg'd ; any Right
fo that this Aclion is his proper Remedy for the Injury done by the De- J^'V'^'^ ^^.
fendant, by hindring him to come into the Vellry-room ; for if it would j^totheRo^m
not lie, he hath no other Remedy. 8 Mod. 52. Trio. 7 Geo. 1722. the Court '
Brown v. Reyland, held that he
could not
maintain this Aftion ; but had lie fet forth fuch Right, theAftion would have laid, becaufeif he had
a Right, he muft have a Remedy to affert it ; and he has no Remedy but this Action ; for there is no
Breach ofthe Peace, or Injury to the Publick, fo as no IiidiAmem or Information can be good in this
Cau!e. But becaufe he did not fet forth a Right to enter the Room, which otherwile might be the
Room of the Defendant, where the Plaintiff had no Right to come, Judgment was given againft him
Una voce, and not upon the Merits of the Cafe.
4. A Veflry was calPd to coniider about building a Workhoufe^ where
it was agreed to, and to borrow Money for that Purpofe ; and that -who-
ever pould be bound jor it pould be indemnified by the Parip. This Order
was confirm'd by another^ and both lign'd by the Vicar and feveral of
the Inhabitants. 300 1. being the Sum agreed upon, was borrow'd of
A. to whom B. gave Bond tor it. An Order of Veflry was made for
railing the Money, but upon Appeal to the Quarter-Selhons by fome new
Parilliioners, was qualh'd. B. was fued on tne Bond, and paid the Mo-
ney, and then brought a Bill for Relief And the Mailer of the Rolls
decreed him his Principal, Interell, and Colls at Law, and in this
Court; and that the Delendants the V^icar, Churchwardens, and Over-
feers of the Poor, call a Veflry to make a Rate for Payment ; and if
any Inhabitant refute Payment, the Plaintiff to be at Liberty to apply to
the Court. And faid that he did not fee why the Court might not as well
compel thole who are not Parties to pay the Rate, as order Tenants,
tho' not Parties, to pay their Rents ; and becaufe the Defendants had
put in a fair Anfwer, their Cofls were decreed to be rais'd by the fame
Rate ; but faid, that if thofe who had appeal'd to the Quarter-Selfions
had been before the Court, they fhould have paid all the Colls, z
Wms'sRep. (332) Trin. 1731. Blackbourn v. Webfler & al.
For more of Veflry in general. See CljUrCljlUatUCItS, and other
Proper Titles.
7A
^
View.
^^o
(A)
* View*.
* When the
Normans
brought in
the Affile
before the
TuiU«s in I. 1 JI5 a ^V"ric of Right of the 4th Part of the Tithes and Offerings of
Eyre, there X '^ Church, if tfjC Tenant bC feifed of one 4ch Part, and the King of
it was ne- the Other 3, m tlje DtetO Ut^* t 38 ^» 3- 1 3-
cefiary for ^
the Pares, in
tlie firrt Place to view the Land, before they came to the Juftices in Eyre to give their Verdiifl ; and
then if tliey all agreed, the Judge immediately took the Verdidi ; but it they could not agree, then he
ask'd them the Rcafon of their Verdict ; and if 7 agreed, then there were 5 added de Attorciamento;
and this was the Practice in Normandy, as appears by Terraine 591. 592. Old Cuftomer, Ca. 95. fo. 71,
and in England, as appears by Fleta 64. cap. 9. fo. 250. Braft. lib. 4. Ca. 19. to iS).^ and Hale's Hift.
Common Law 120. 261. But it feems when thele Jurors were added by Way of Aftbrciament, they
likewife muft have a View, becaufe they could not be properly ftilcd Recognitors, unlcis they fpokc
upon their own Knowledge. Gilb. Hift. View of Exchequer 78. 79. cap. 5.
I Br. View, pi. 49. cites S. C. but not exactly S. P.
(A. 2) In what A6^ions at Common Law.
Br. View, i. r|-n|)e IDICU) lap not at Common LnUl in Dower Unde nihil ha-
pl. 22. cites J^ bet. 45 (S» 3. 17.
Error of a Judgment in Dower in Durham, where the Tenant crav'd View, and it was enter'd, SluU
fatis conflat Cun£, that the Httsbavd died feifed, Ne^ittur P'ifus ; then the Tenant -pleaded Ne unqtie feifie
aite Dower ; upon which they were at IlTue, and a Verdict for the Demandant, but the Jury gave no
Damages. The Error affign'd was, that the Demandant Jhoiild have ccunterpkaded the dying feifed, and
that a View oiicht not to le denied upon this Conflat Curia. But the Court held, that this being a Writ of
Dower unde Kihil habet, the View was not giantable in this Cafe by the Common Law ; and where in
the Books the View in Dower is counterpleaded, it is to be intended in JVrit of Right of Dower ; and
they affirm'd the Judgment. 2 Lev. 117. Mich. 26 Car. 2. B. R. Aftnial v. Aftmal. The Reporter
lays Qu^re de ceo ; but here the Tenant hiving pleaded, and fo took on him Notice of tie Lands, this
perhaps has cur'd the Wantof the View. Frecm. Rep. 575. pi. 485. S. C. but very imperfea:.-
SeeCG) pi. S. the Note on Paragraph 5.
See (C) pi. 2. jOOf in UBrit Of Intrufion. 45ec»3- 17-
iS.-
Br. View, pi. 22. cues S.C.
See CC) pl- 3- BOt in WXit, of Entry in the Quibus. 45 €♦ 3- i?-
19
Br. View, pi' 22. cites S. C.
Br. View, 4. JOOt Itt Nuper obiit; 45 O^^ 3. 17.
pi. 22. cites
S. C. Ibid. pi. 92. fays it appears in Nov. Nat. Brev. fol. 9. That View does not he in Naper
Qbiit. S. P. F. N. B. 197. {QJ S.P. For the Tenant cannot difclaim nor plead Non-tenure.
Br, View, pi. loa. cites It. Cane. 6 E z.
(B) h
View. 5 5 1
(B) //; fwhat A^lwm it lies,
I. T J15 a Cefl'avit Of tIjC CCflEt Of tljCCSliailt, tOljCrt tfjCLord has had SeeCC) pi.
X Seilin by the Hands ot the Tenant himlelf, Ije fljaH UOt fjailE tljCU- — *,^^
©ieuj, 2 $;, 4. 5. 1), 12 j|), 4. 1 8. 4 Ji)» 6. 29 . b, cumntten. * 48 e* dtes's c "
3.4. 81x6. 27. 22 e 3- 3 2mnnj[i:err» 2 c* 3- 44- aontuptJ*
2. CljC lame laU) lUljCfC tljC lOtD ijHS IjaO ^Clfill by the Hands of
the Father of the Tenant, ailD HOt bj) tl)C '(HCimilt IjiUlfClf. * 2 J)» 4. ^f ^<^^^ P'-
5 SiUJuriKeti. t 7 i|). 4- 15 atDUOseH. 22 e. 3. 3 aii)Ubgcti*vic^p, :;
2:>ubitatin: 3 ip* 6. 1 1. Contra 4^ <J£> 3- 4- cites s c-
t Br. View,
pi. 5-. cites S. C. But that in 52 E. 5. Ceflavit was brought itgainft Jhbot, and alkg'd Seilin by the
Ha7:ds of his Predccejfor, and demanded the View, and had it. Contra of Seiftn alieg'd by his owrj
Hands. Note theDivcrfity.
3. Jn a CDCffallit agalnfl Baron and Feme, for Caufe of the Tenancy
of the Feme, if Seilin be lain in the Feme only, )?£t tIjEJ? fljall HOt IjallC
tije ^im. 22 ec. 3- 21. aoiungcD.
4. 3In a CelTa^It againll Alienee of the Tenant, tljE iOlCtU \\t^. 2 J). See(C) pi.
4. 5. b. I :• Br,
5. On a Motion for a View in an hiAi^ment offrefpafs^ the Court fxid Y'^^' P'- 5^*
they did not think this was within the Statute j fo they refuled the Mo- "^"^■'^'•
tion, as it was at the Suit of a private Profecntor^ tho' if the Suit had been
carried on at the Expence of the King, they would have done it. Bar-
nard Rep. in B. R. 144. Hill. 2 Geo. 2. Anon.
(C) /;/ aahat JVrit or Aiimi,
ic. TiO UBrit Of Dower, It UOeS nOt lie where Earon died feifed. 21
JL €.4-22.
2. Jn f©rit of Dower of Rent, if tljC Baron died feifed of the Rent, * Br View
tlje tenant fljaU not Ija^c tljc ©ieiu citlje ILnnn ont of loljiclj tljc Ecnt p'- 19- cites
iSl fnppOfeO to M\Z. * 44 €♦ 3- 3 1- DUlJItatUt 3 13. 4- i8. Othemile s- ^■
it is If tljE 15aron tJitI not die feifed. 44 (£. 3- 3 1- 3 f3. 4. 18.
3. '2Dije Diifeifor ot the Baron (IjalUjatje tljC ^XZ^W WxH Of Dower ^'- '^'''^^^'.P'-
againlthim. zl),^.i. . S°C."^"
4. 3in Formedon the Demandant fuppofes that the Tenant has de- ^^ 'i« »"
forced him wrongfully, pet IjC fljaU !jal3C tIjC aDlClS)* 9 fp* 6» 41, b. Se'vie^-,
pl. 59. cit^s II H. 4. 19. and fee (L) pi. ;.
5. 31n a Curia Claudenda t|)C ©ICiU Iie0» * 46 C 3» 27, t 7 I), 4» rv.j^.^^
San * 8 il). 6. 27^ Fol. 7 2tJ.
* Notwithftanding that it is fuppofed to be of his own Wrong. Quodnota. Br. View, pl 25. cites
S. C. S. P. pl. 26. cites S. C.
t Br. View, pl. 56. cites S. C. per Hanke.
4: Br. View, pl. 54. cites S. C. by Babbingron Ch. J. S. P. F. N. B. 12S. (B)
■ 6. Jn a Curia Claudenda to the Nufance of his Franktenement tl)0 ^^ ''" ^"i*
one and of the other. F. N. B. 128 (B) in the new Note? (e) cites S. C,
^ Jn
5^2 V^g^^' .
7 3!n I0nt of Cultoms and Services tljC ©ICU) \iZ0. 2 |). 4, 5, (k
In Aftion 8 .^bljc DK^ iie^ in ll^i"it Of vvaiie. 11 p. 4. 75, lj» Coutta s
of- Wafte fi-j 6 27
tlie Jurors 'i^' "♦ ^ /t
fhall hivc the View of the Place wafteT &c. «/ «» Inadcnt to the Acikn ; for in fuch Aftion, at the
Common Liw thcv fliould have had the Viev/. 2 lull. ;o6. 2 Saund. 252. Mich. 22 Car. 2.
CBntlJ IJ tLOl'e, a View was awarded in a Writ of Walle, and the Precept was return 'd ferved, and
tifie lurors at'pc'ar'd ; tiU the Return did not mention that they had a View of the Place wafted ; but
i-efolved Tiuit tho" the View was not rettnv'd upon the Proccfs upon which the firft Jurors appear'd and
tried the'llTi'.e, yet it wa.s c;ood enougli, becaule they had the View, and the Returning it is not necef-
fdi-v ■ but the Court, upon the Trial, ought to examine whether they had it or not ; for 6 Jurors at leart
ouglit to have it, or c.therwiic the Jury fliall not be taken, and cites 19 H. 6. 65. b.
9. Illlje DiCUl !iCd in Seaa ad Molendinum fot CClTmo; Of tljC^nCCf'
tot Of tljc (jTcnant* 7 P- 4* §♦ li»
10. iDltt not UlljCrC it iSi for Celier of the Tenant himfelf. 7 I). 4.
8*b» Contra 17 €* 3.23*
Er Vieiv, 1 1 llBijcrC tljC Writ Tuppofes the Tenant to be in of his VV^rons^, \)t
p^ '^' ^ I fljnll not Ijaue tlic 3Diciu of tljc %\)\m ccutauriCD, bccaufc it 10 in-
T'.—- tcnBco ttjat Dc lacll l^noui.Ei it*
Ibid. p!. 10. .
S. P. cites 54 H. 6 9 10.
* Br View, 12. As in tlStit Of Entry, in Nature of Affife for lailH* * 34 ^)' ^'■
pl.^o^otes J 3^ 3 l^^ ^^ 14^ Ij.
S. p.' and fo in 'freff.^fs upon the Statute S H. 6. Br. Trefpafs, pi. 277. cites 5 H. 7. 2S.
In CcfTavit 13- So in Ceffavit. 34 IX 6. 10.
of his own _„^,^^.,- ■-r< /-i
CelTer. Br. View, pi. to. cites S. C. S. P. For fuch CefTer is his own Tort ; per tot. Cur. by
which he was oulled of the View. Ibid. pi. 62. cites 4 H. 6. 29.
* Br. View, 14. '^\)t 5DiClU tJOCJJ nOt lie in Action upon tlje Cafe for not repairing
pi. 2(5. cites ^ River, Ot not mounding of Rivers and Ditches, by which his Land
^^^So'in" is furrounded ; fOC It Id a Trefpafs in itS JRJatUtC* 4^ €. 3- 27- 7 P*
Cafe for not 4. 8. b» <atI5Ut!«CD» * tlBIjCtC Detank is in the Party himfelti OtIjCtUJife
repairing a juljctC in tljC l^CCBCCCtrOt* 7 0' 4- 3 1- 29 C* 3- 33- iaUjltUffCD,
Wall ot the
Defendant's, by which the Land of the Plaintiff is furrounded, tlie View was denied, becaufe it was
the Plaintiff's own Laches. But contra per Rickhill, if the Default h.id been in Time of the Prede-
ceflor. Br. View, pi. 56. cites 7 H. 4. S. Br. Aition fur le Cafe, pi. 52. cites S. C.
SecCB) pi. 15. JttCefTavit Of tljeCCfTcr Of tIjC Ccitailt, lOljere tlje Lord has
1- „ ^ had Seilin bv the Hands of the Tenant himfelf, 1)0 fljall ttOt Ijalie tl)C
ti7''pi 1 '" ©ici»* * 2 J> 4» 5> fa. 12 ]^, 4. 18. 1 4 1). 6, 29. b, anmittcn + 48 e.
cites S C. 3» 4. 8 l^, 6, 27. 22 (£♦ 3» 3 SHl)lHlQ;ClI*
t Br. Ceffi-
vit, pi. t8 cites S. C. Contra iP it be of another's Ceffer.
^ Br. View, pi. 83. cites S. C.
Sec CB) pi. 16. '2Clje fame lalU tOljCte tlje Lorn IjasS Ijati Seifin by the Hands of
2- , the Father of the Tenant, anti UtUt bp tljC Ccnailt. 2 J). 4, 5 ^0=
theSn nitigeti* Dubitattir ^ixe.iu it>.^, is aoiunpti, 22 e 3* 3
was by the ^J\)m^t'0. COlttta 48 €♦ 3* 4»
Fredecejfor of the Prior, who is the Plaintiff. Br. View, pi. 66. cites 57 H. 6. 25, 26.
See (B) pi. 17. 3[n Ceflavit againft the Alienee of the Tenant, I^C fljall ^alJC tljC
"^ ©ietti. 2JD*4.5. b.
See (A) pi. 1 8. 3u j©rit of intrufion tijc 3i>ieUj noe.s not lie* 2 ^, 4* 5.
19. 2t
View. 553
19- 3!t IIOC0 not lie in a UBrit of Entry in the quibus. 2 3^, 4, 5. ^ee (A. z)
14 I), 4. 33* t)» 8 |). 6. 27, Contra 2 (J];» 3. 44. b, aD)Utl{rCO» IfaVeme
dijfeifes another., and takes Baron, and the Difleifee brings Writ of Entry in the Quibus againft the Ba-
ron and Feme, the Writ fliall be De Quibus the Feme diffeifivit the Demandant; and in this Cafe the
Baron fliall have the View, becaufe he is a Stranger to the Tort &c. Kelw- iz6. b. pi. 88 per Kcble.
Cafus incerti teinporis.
20. loWt m Affife of Novel Dlfleifin tIjC JDiCUl Il'ejS* 3 Ih 4* H* b» In Affife the
II JiX4» 75 iU. View of the
furors is re-
quifite, but this never is rctnrn'd ; for perhaps the Sheriff or the Officer knew not whether the Jurors
had the View or not ; for the Words are (Et interim videant &c.) and not (Et interim Haberi Facias
vifum,) lb that tlie Jurors may view the Place walled, when the Officer u not prelent, and therefore
rJie Officer is not bound to return the V'iew ; but tliis ought to be examin'd upon the Trial and the
Party may challenge the Jurors for thisCaufe, if 6 of them at leall had not the View , and if the Offi-
cers return that they had the View, yet if upon the Trial it appears, by Examination, that they had not
the View, tlie Return fhall not conclude any of the Parties, z Saund. 254, 255. Mich, zz Car. 2. in
Cafe of Green v. Cole.
21. 3if tIjC Affife be adjudged by Default, or pleaded by Kaily, in
Certificate upon the fame AUrie, tljC JUCOrjS fljilU IjalJC tljE aDlClU, hZ-
cnufe It i^ of tljc (iimc jl^atiire of tlje Affife. 3 ix 4, 14* b.
22. OaUt nt Attaint upon the Affife tljC 3DtCUJ 0000 HOt KC, }iZim^Z T "^•'^''j P|-
m Eeco\)er}) fljnll not He fai) =0?eiD of tljc 3utor0. 3 ix 4» 1 4* b. pe; hui and
23. CljC fi;miC lam mWnt ot Error upon Judgment in Affife. 3 Hanke
l^*4» 15* clearly.
24. cije 3!>i'euj fljall be in RedifFeiim ; for it ougljt to be fallen upon E't-o'- «^»
tljc lai«J» 1 1 I)* 4* 94* Re^iffeijln.
n was af-
fign'd for Error, that the Sheriff took the Inqiieft of RcdifTeifin at the Fill, but not iipn the Land And
per Huls, in Wajie and Redijfeijin the Sherittmay make the Jury view the L.md or Place, and then
take the Inqueft in another Place. Br. Error, pi. 4;. cites 11 H. 4 6.
25. 'But in Writs which fuppofe a Tort, if tljC "Ccnaitt deinands the Br. View, pi.
View of another Thing than is in Demand, tije DlCtD fljall be gJ^tll^tCtJ* [? f"^'' '^^
S.P.
26. But in fuel) Cafe, if it appears to the Court that he is Tenant of Br. View, pi.
the Land where it is iliuing, Ije fl)aU UOt Ijalje tljC JDieUl. 34 V* cV""
6. 10, ^•^•
27. So in Quod permittat de Libera Falda in laUtl fje. IjC fljail IjaHje Br. View, pi.
tlie ©icuj of t^e lanti. 6 c* 4» i» ',9;,"f« .
i>. C. For It
may be that there is fome Land in which he has Frank-fold, and in fome not.
28. So in QXUOU permittat for Uraitning a Way, * 34 X% 6. 10, 45 * Br. View,
€> 3* 8. b* ' P'- i°- "f«
o. L*.
Sl'tod permittat was brought of the Plaintiff's own Seifin in the Debet & Soler, and counted of being
diiturb'd 0/ hislVay; and the Defendant demanded the View, and had it. Fitzh. Tit. Jour. pi. 55.
cites Trin. 50 H, 6. 8.
But in Quod permittat habere Viam ultra Terram, brought by the 'Tenant airainfl the Tenant of the Soi/f
the View v/as denied by Belknap, becaufe the Defendant was himfelf Tenant of the Soil where the Way
wasclaim'd. Br. View, pi. 21. cites 45 E. 3. S.
29. So in ClUOJJ permittat for Common of Pafture. 34 I), 6, io» Br. View, pi.
lo- cites
S. C.
30. So in £IU013 permittat for diverting a Water-Courfe. 2 j|), 4, Br. View, pi.
13* b* qi. cites
S. C. of a Quod Permittat in General.
31. So in Cui in Vita of a Rent, and fuppofes the Entry Of tlje 'Ce^ r^^^'V.^O
nant by Baron. 46 C* 3. 34* l5^^^
In Cui in Vita in tie Per, the Tenant demanded the View, and had it. Br. '^'iew, pi. 104. cites
ij H ;. 10.
7 B 32- In
' r o View.
See ( D) 32. 3|n Aflife of Nufancis t!)e JDlCtD DOClS not lie of that which makee
pl. 5- the Nuiance. 8 f^^ 6» i8* tl»
fit* "^Jii cincc '
pl -4. cites'i S E. 4. I. Contra, that in Nufance the Defendant Hiall have the View.'-- — -Br. View, pi.
, 'cites S H. 6. I S In Informatkn of'Kufat.cc, by Confent, the Jury may have the View. 1 2 Mod.
6i6. The King V. Clerk. But cannot have it without Conlent. Mich, i; 58. B. R. The King v.
Haddock.
s P. F. N B. 33. jn Suit of Mill in the Debet & Soiet, tijc DefenHaiit Sjnll Ijaljc
1^3- CC) tJj£; 5.")ieU), tljO' it be 13P W 0^1^ withdrawing. 17 (£, 3, 23^ ^0=
34. 3itt an Admeafuiement of Dower, DcfenHrmt fljall ItOt 1)3530 tljC
, a^ieU), becaufe flje cannot be ^ifconitrant of toe Lann U)l}tcD Hje Ijoioss
in Doujcr -, anD alfo tije action ntiic^ fcom ijec oicn M, 17 €♦ s-
67. au)ii5i);cQ*
See Br. View 35. |n Actions Perfonal, 30 VX Trefpafs, tJje B\Z^ i5OC0 nOt liC*
pl. 54. cues gj^ 27.
S. C. where 'i' / / , . ,
S. P. is mention 'd by Fulthorpe, and ieems admitted.
Br. Quod ei 36. (^^tiod ei deforceat, the Tenant demanded the View and could not
deforceat, pl. h^ve it be it he who recovers or his Alienee i for the Statute is Quod il
^—HTyi^w ^P^^ ^'^'^ amifit refufcitet aliud breve &:c. and goes againft the one and
pl. 20. cit'e? the other. Er. View, pl. 14. cites 41 E. 3. 8. 30.
1^ where the Tenant was oufted of the View and vouched to V/arranty a Stranger. The 7'evant
demanded the View becaufe he tt-.t/ a Stranger to tie frfi Recovery, and was oufted by Award ; for
Eelknap laid that ♦ Party Pr:vy or Stranger fvall not haie the Fie-w in this A^ion ; for this is ctijled by Sta-
tute Br View, pl. 91- cites 50 E. 5. 2S.
♦ S. P.' per Cur. Ibid. pl. zp. cites 50 E. 3. 25. Br. Qiiod ei deforceat. pi. 12. cites 50 E. 9. 12.
&50S.C.
37. In Cofitici^e^ the Tenant had the View, and the Writ was ^-
hated ajter the Fieiv^ becaufe he ought to have had Writ of Bel-
aid, by which he brought Writ ot Eefaiel, and was oufted of the
View in this j for the V iew was not neceliary. Br. View, pl. 24.
cites 46 E. 3. 15.
38. A Man Ihall have the View of the Land in a Pracipe brought
cfa Refit, he and may vouch Difcharge. Br. Parnor, pl. 4. cites 12
H. 4. 21.
39. View well lies in Writ oi^ Admeaftirement of Pajiure. Br. Admea-
furement, pl. 3. cites 8 H. 6. 26.
40. The Tenant demanded the View in ^aid juris Cla}?iat, and was
oufted ; quod nota Br. View, pl. 59. cites 15 E. 4. 28. _
S P.F "N.B. 41- Note that in a ^^uojure, a Man Ihall have the View^ for 'tis a
128. CK) Writ of Right, for Tenant in Tail fliall not have it, nor the Ne injiijie
Vexes. Br. View, pl. 78. cites 5 E. 4. 2.
Br. View, pl 42. In Writ of Right de Rationabili Parte between Coparceners, View
92. S. C. does not lie becaufe of the Privity of Blood. But in a Rationabili Parte the
View was granted H. 15 H. 3. becaufe the Anceflor did not diefsifed &i.c.
F. N. B.9. (m) (N)
(D) View
Ykw. 9 <^ 5*
(D) View. In what Writ or Adion De fen Tort,
ff'ljere other Th'im is hi Demand.
Vb
I. T JO t©r(t of Entry fur Difleifin of the Rent againft Difleifor, \X)t* Br. View,
i Ceimnt fljnll t)auc tlje iDictu of tlje lano out cf ioljiclj t'je Ecnt p'- 5=^ ^"'^^
10 iiruinn;. * 7 ID* 6. 44. b* aojuogcD. s d» 6. 27. ^- *-
2. So tit tlBrlt of Entry in the Q^uibus of a Rent of a Dilfeilln by Te- Br. View,
nant himfelf, !)C fljali IjilllC tlje i">ICU) Of tl)C lanO OUt Of UiifjiClj tljC ?• ' '• ^^•
Ecnt 10 mm>> 8 fx 6. is. b, 41 €* 3. 23. 44 e> 3* 3 1> 46 €♦ 3. t' , j%r;
34» 14 I). 4* 33. D» 3 % 4» i3 I). 22 $p. 6. 23* b, CUCM 30 |), 6, 8, Belknap—
32 Ip* 6, 5* b» 34 JP* 6» io» 35 rp* 6, 59, b» 36 $)♦ 6. 15, b* Br. View,
pi. 55. cites
S H. 6. iS.
3. 31ll Affife of Nuflince tljC CCltilllt AjflU IjiUjC tljC i)iCtU Of ti)e LaitU Tho' he le-
to iDbtcl) tlje jOufattCc 10 none, bccnuft it is ottjct tljtnn; tljait is in ^}^^ ''H^'^'
2:?nuano, 8 jp. 6, is. b. 4^ ^^ 3* 23. 17 C, 3. 9* b* is e. 3* 22. b* o^^wLn^
tor It IS of
other Thing than that in -which the Tort is done. Br. View, pi. i6. cites 41. E. %. zz. . S.P. but
not the View of that which iTnlccs the Nufance. Br. View, pi. 53. per Cottefmore cite.s S H. 6. iS.
Br, View, pi. Si. cites 18 E. 4. i. and that it fcems it lliall be of the Land [or Thing] to which the
Kufance is fuppofed to be done. • S.P. Ibid, pi. 94. cites 41 £. 3. 9.
4. Jit Admeafurenient of Pafture, tIjC DcfCtltiant fljali IjabC tIjC * Br. View.
aDiett) Of tije Land in which tfjC €011111101110 Cluim'tl, and to which P'-5- "tes
it i0 claimen ; fot it i0 otljct tljins tljaii tljat \\\ luljtcij tl)C €;ort i0 s p &> j-
fllpPOren* S Ip, 6, 27, * 9 1% e. 41, b. may be that
, . , . . the Defen-
dant is Lord of the Vill, fo that it fiiall not be admeafuved, or that it his own Franktenement • quod
nota. The View fliall be granted ; for it may be that it is common inGrols, and therefore he fhalt
have the View. Quire. Br. View, pi. 54. cites S H. 6. 27.
5. In Seffa Mclenditii of his own Ccffer^ the Defendant demanded the
View of the Land of which he demanded this Suit, and had it, and yec
it is another thing than is in demand. Br. View, pi. 98. cites 18
E. 2.
6. Dam fuit infra ^etatevi of a Rent againjl the Lejfee of his Father^ and Br Dum fuit
he demanded the View of the Land out of which the Rent is illuing, '"f" -T^fatem.
and he was oajled of the View :, quod nota, notwithftanding it was of an- P'-J ■'^'^"
other thing than is in Demand; ^lod minim \ And the Statute oih is
^md in omnibus per quod tenemcnta pctuntur fi dimiffio fati a fucrit tcnenti
y non ejus anteccfjbri^ non erit vifiis ccncedendus. Br. View, pi. 27. cites
46 E. 3. 33. 34.
7. Trefpafs, inafmuch as the Defendant and thole whofe Eflate he has
in 4 Acres of Land in B. us'd to repair certain Banks of the Sea, and for
»ot repairing, the Sea has furrounded his Land, and the Defendant demand-
ed the View of the Land by which he pall be bound to repair s Et non allo-
catur. Br. Action fur le Cafe, pi. 36. cites 7 H. 4. 31.
8. Kntry in Nature of JJ/ife of Land and Rent, -audas tothe Land the T'e- Br.Di'atories
nant pleaded in Bar, and to the Rent he demanded the View of the Land mi- P' ^ '^ft^*
de redditus provenit, and well i for tho' the Tenant is in De [on tort Dc-
mefne of the Rent by this j4B ion, yet contra of the Land unde redditus prove-
nit. Note a Diverlity. Br. View, pi. 58. cites 22 H. 6. 23.
9. Note per Littleton and his Companions, that in IVrit of Right upon
Difclainier, the fame Tenant who difclai}n''d fliall not have the View; lor
he is the fame Perfon who did the Tort, viz. Difclaimer. Br. View, pi.
80. cites 12 E.4. 14.
10. .y'pj):-d
,??6
View.
On View of lo. Jppaal uf Maihein, and allign'd the Maihem in his Shoulder. The
the Stroke in j^emandanc dcinanded the View of the Maihem, and could not have it.
Appeal of ug^aufe it; is De fon tort Demefne. Br. View, pi. 69. cites 21 H. 7. 33.
iSlLiihem,
JLide'd Maihem. Per Tiemaiic J. [who only was in Court] This is peremptory ; contra thofe of
Gray's Inn. Br. View, pi. 4. cues 6 H. 7. I.
II. In a Writ of Right of the Manor of D. Et de duabtis partibus Ciijio-
di^ Forejfa de C. the Tenant demanded the View, and had it, and Re-
turn was made ; but the Writ to the Sheriff was, that Habere faciat Vi-
fum manerii de D. &; duarum partium Cullodis &c. The Court held the
View not good i for the Forcjt ztfrlfpotild ha-ve beef! put z« Vjew, viz. the
whole Forelt, and not 2 Parts only of it- and an- Habere facias Vifum
de Novo illued. Le. 86. pi. 106. Mich. 29 Eliz. C. B. Livefay's
Cafe.
(E) View. In what Caies it does mt lie for a Collateral
Refpc^ • for takh/g Notice by Plea of the Thing.
i. Tif a C^ait takes Conufance of the Land, i)C Jljali HOt {jaiC tljC
X ^iC'lU* -9 €> 3- 3°- b.
S P. Qnt:-a '2. 3,11 fl Precipe quod reddat, or other Aclion, where the View lies
in Precipe of of 4 l^CtC0 Cf llailU, if tIjC Tenant pleads in Bar for Part, and for the
La,id nnd Reliduc demands the View, ijC fijalt U OUCteC Of tljC J^iCUl ; fOC b? tfjC
piZlTnal pica in a3ar, i)c tnU^ upon Dim Conufance of m uiljolc. 22 t^» 6.
cfthe Land, 23- b* 35 fp* 6. 6o. COlltCa 3+ fp« 6. 10.
he mny
lave the Ftew of the Land of which the Rent ijfues ; for Land and Rent are of 2 Natures, and the Land,
out of which the Rent ariies, h not in Demand by the Writ. Note a Diverfity ; for the Opinion was
that he fliall have the View. Br. View, pi. 5S. cites 22 H. 6. 23. Br. Dilatories, pi. 7. cites
B.C.
•
3- Jn iJBtit of Entry in Nature of Affife of 4 Acres of Land, and
20 s. Rent, If tfjg Tenant pleads in Bar for the 4 Acres, pct JjC fljall ijU'Ot
* Br. View, tije a^tcu) of tljc lano out of toIjicD tlje Kent tjs ifTuuiij -, fat of ttjtgs
pi. ,8. cites jLano Ije Ua^ not taken Conuaincc U? ti)e l^lea m OSac* * 22 $), 6.
■ 23- b. cufia ^4 i:^- 6. 10.
r>-'^^n 4. But III UBnt of entrp in il^atUtC of aiTife of a xManor, tf tfjc Te-
tol. -2S. p.^nt fays that 20 Acres of Land and 10 s. Rent make the Manor, and
^t^^"^^^!^^ demands the View of the Land out of which the Rent iffues, tjC (fjilUnOt
here, he is ' ijaUc tlje 3^ic% ticcaufc Ije took jOoticc of tl)c LaiiD out of tntjicf) it
intended ((Tuf^, mafnuiclj asi Ijc faps tljat all mahegi tfjc ®anot* 35 ^. 6. 50.
^Ren? aUjUBSeO.
and then he has Notice fafficient. And it was agreed that in this Nature of Aftion, becaufe the Te-
nant hfuppos'd to be in of his own 'Tort, he fliall not have the View of the thing in Demand, but he .may
have the View of another thin^ than is in Demand ; As in U'rit of Entry in tie ^ibtis of a Rent, he may
demand the V/ew of the Land undo &c. for there he is intended Tenant of the Land &c. and fhall h.ive
it; but in this Cafe he is (uppoled Pernor of the Rent ; for if he he Tenant of the Land, then the Rent is
extinii or fufpended, and then is not in EJfe to have the View. Br View, pi. 12. cites S. C. — And per Prifbt,
there, if Formedtn he brought of a Manor, he fhall have the View of the Land out of which tlie Rent
Parcel of the Manor is ifluing, and of the Demefnes alfo Ibid. And alfo in the principal Calc,
be fhall not have the View ; for he jhall * not have the View of Parcel, and the Manor is intiie ; and
therefore cannot have the View of one Parcel, and not of another. And of the Demefnes he cannot
here, by Reafon that he i-s fuppofed in by Tort; and therefore (hall not have it of the Land out o£
■which the Rent arifes. Ibid. Br. Dilatories, pi. 5. cites S. C.
* S. P. And of the whole it lies not ; for the Tenant himlelf did the Diffeifin ; and fo in De fon tort
Demefne. Qiiod nota. Br. View, pi 0. cites 28 H. 6. i.
5- Jn
\
7 "
-lew. 557
:f . 3!tl iJ9rit of Aid, If tljC Tenant fays that the Grandfather did not
die in England, but took his Voyage towards the Holy Land, and did
not returoj and therefore he ought to have a fjaecial VVrit, pjt ^t tlWP
after Dctuann tfje mm, nnti Ijc fljail ijaije tt, tljc fjc plcanji in ^mv
net as Ccnant. i3€*3-9iel2-
6. Lord and '2'cuant by Rent and Services ; the Lord releafes to the tenant
for his Life, and granted to the Son of the fame 'tenant, thai he and his Heirs
of his Bodyfhall hold difchargd of the Rent, and dies; the Fejue of the Lord
brought lint of Dower trgain/f the Son and Heir of the Tenant after the
Death of the Tenant, and the Heir pray'd the View of the Laiv tinde &c.
and becaufe the Rent is fufpended in the Polieffion of the Heir by Grunt
of the Lord to the Baron of the Demandant, and he in by the Lord, he
was culled of the View. Br. View, pi. 96. cites 13 E. 3.
7. Forviedon in Defcendtr, the Tenant demanded the View; Per
Chocke, the View you ought not to have ; for at another time yon brought
Scire facias of thejawe Land againji * us out of a Fine, where we laid ♦'Oiig. is
that the Fine was executed, by which you took nothing by your Writ jCVous)
and becaufe by the bringing of the Scire Facias he took Conufanceof the
Land, he was awarded to anfwer without the View. Br. View, pi. 65.
cites 39 E. 3. 38.
8. Dower, the Tenant demanded the View, and becaufe it ivas aL So where '
leged that he luas in by the Baron of the Demandant, and Hornby in a Plea the T'enant
oleaded took upon him Conufance of the Land in Demand, therefore he '" ^°7'"
was oulted ot the View. Br. V lew, pi. 33. cites 2 H. 4. 40. '^^^^^ 5^^^,^
Parcel, and
demandeii tie Fieiv of the other P^iire!, and was oufted by Award ; and tlie Reafon feems ro be becaufe he
hasileaded in Bar to Part, therefore he has taken Conufance of the reft, and lb oufted of the View.
Br. '^ icw, pi. S. cites 55 H. 6. 51. Br. Dower, pi. 4. cites S. C.
So in Dower, if the Tenant demands the View, and Demandant f.tys th.it her Barer, died feifed, and
the Tenant fays that he did * not die feifed, he fiiall not have the View ; for by this he has taken Conu-
fance upon himfelf &c. Br.. View, pi. 12. cites 55 H. 6. 59. — S P. Per Hank and Culpeper. Br.
View, pi. 40 cites 1 1 H.4. ^9. Contra if he had faidthat he did not die feifed of any Land in the
fame Vi'.l ; Quatre inde. Ibid.
* S. P. Per Heufter, that he ought to be oufted of the View. But Hull faid No ; by which the Ifl
fue was accepted. Br. View, pi. 47. cites 5 H. 5. 4.
In Dvvjer, the 'fenant demanded the Vieiu ; the Dem.indant faid that her Baron infecff'd the 7'enanf, and
that the 'Tenant as to 2 Jcres faid Ne enfeoff a'pas, and to the refi Kontrtntre. And per Cur. By the Plea
of Nontenure of the reft, he has taken the Notice, and then the View lies not. Br. View, pi. ]6. cites
2 E 4. 19.
9. Ciu in Vita againjl 5, and 4 confcfs the Action, and the $th deinands
the View, he fhall have it of the whole ; but if he takes the intire tenancy
of the whole upon him, he Ihall not have the View of any Part ; for he
has taken upon himfelf Notice. Br. View, pi. 46. cites 12 H. 4. 19.
(E. ^) For the Certainty of the Thing demmided.
[i] 6. T B |©rit of Right of Advowfon Of a Cl}UrClj, vvhere there is Right of
_ but one Church in the Vill, tl)e aDlCiU UOC0 ItOt llC, faCCaUfE Advowlbn,
lie tDcU hnoujjs tt)c Cljing nemanueu* 21 €. 3- si- In 3° €. 3- ^■f%'^!:'T
39e.3- 38. u. 2^3- 63.b. aomoscn. , . ,, „ £/tz
• [2] 7. 'MyZ fame latO, tho' there are 2 Churches Ht t!)C faUtC ©ill, if Churches of
they are of duerfe Saints, bCCaUft \)Z map tUCU tJltOUl tljC aOilOlUfOn Of '^^^ /"""^
tijc Cijurclj nemannen. 21 e» 3- 57- b* ^;„i' %ff
and demand-
ed the View of the Church in Demand. The Demandant faid that there is kit one Church of tie fame
JName, and pray'd that he be oufted of the View ; and the Tenant demurr'ii upon the Coimter-
7.C, pl^a;
5^8
View.
plea; by v/liich Piifot awarded him to anfwer without the View; Quod nota. Br. View, p], 70. cites
56 H. 6. 16.
Br. View, [3] 8. Jit UBttt Of Ri'ght of Tithes of St. Dunftan's Weft in Fleet-
Pl. 49. cites ^,^.et in London, tl)Z ©tCUl 1(00, tIjO' It 3OC0 not allege that there is any
^- ^- fuch Church in the fame Vill. 38 C 3- I3-
[4] 9. 3!ll WUt of Dower of the Marfhalfea of B. R. tl)t ©ietO
ticciS net lie, tecatifcit is certain cnougl) of tuljat tljingDoUier is oe^
tivantscD, iiiafniiicf) ns it is UJCll fenoiun tijat tljcre is but one l^^ing's
'Beiiclj in (Siwiann (pet it is tljere objected tDnt pcraniicntiu'e tlje
Ccnant IjolDS but part of it) 21 e* 3- si- b* iBnt tijerc tlje a^iein
granted De bene efle.
[5] lo- Jftlje Manor of A. be demanded, tI)C BJetU lieS ttJitljOttt
fmnm ttjat tljere is anotljer 09anoc of tlje (ame Burnt in tlje fame
=Diil, becaiife Jje cannot Imm Ijoui largelj? it e;tten5S iuit^out W^H}-
mn; it* 30 €♦ 3- 7- b*
(F) View. In what Cafes it lies. lu refpect of the Thhg
dema?2ded.
IB nBrit of Advowfon of a Church, tiDc a:>ieU) IS not gtantablc*
i8e»4- 46- b»
Advowfon, ITiallbe given in the Church Sec. tho' it lies not in Livery, nor is vifible or palpable. D.
523. b. pi. 30. Pafch. 15 Eliz. Anon.
The View I.
in W rit of
Right of
2. But in ttBrit of Advowfon of certain Tithes, tljC 3DieUJ Mt^^ iS
€> 3- 46- b.
Browni. 27. 3. jn a j^tit of Dower of Tithes, tlicte fljaU iiot be anp iDieUi ; for
fnr rJiv^r ^^J^ ^^"'^ cannot be put in iDiciu, tor tljep Bo not ifliie out of JLanD as
cordhigiy ^ ^^^"^3 nor fijali Oaiie tijc =Dieui of tJje ^itljes, bccaufe tljep are iiv
l3ifible* Cr* 7 3ia* 16. bp !©arburton faio to be aojuoijeii*
Ld Raym. 4. A View is nuly grantable where the Title is in J^tiejfion. 2 Salk. 665,
S C 'and" P^- ^- ^^^^^- S W. 3. C. B. Kempitet v. Deacon.
S. p. accordingly ; and therefore the granting a View, amounts to a Certificate that the Title came in
Queftion.
^^v,_y^,.xn (G) View. In what Cafes the View ihall be granted.
v^^x^vvL/ JVlxu it has been before.
I. A Jfter iDicui ijau in the fame Writ, \)z ffjail not fjatie tlje a^ieiu
xv apin* II 3E>»4. 19.
Br. View, pi. 2. 3f tl^C Dean and Chapter have tIjC IDlClU, aitll aftCt tljC Writ
16. cites abates by Death of the Dean ; in a UeUl HBtlt bP journes Accounts the
does n^o"' "^^ ^^^" flJ'^^" ^>^^^ ^^J^ ^^^^3 becaufc ije Ijan it iiot before, 4 » €♦ 3 • 2 3 .
mention the
^B^View, 3- 3]n liBrit againfl Baron and Feme, tijcp have tlje ^DlCtU, auH aftCt:
pl.iS. cites }©nt abates t>y Death ot the FemCj in new Writ againlt the Baron, te
fljail
View. 559
fljall ija^c tijc mm agm'it. * 42 e* 3- 23- b* Contca 1 2 jp, 6. 14. ^ c
29 €. 3- 45- b* aDjUOgCD* \^- •"^'■'^-
fz/ie quod
reddac ; and yet the Statute fays Quod vifus non concedatur nifi nbi vifus eft neceffarius ; and this was
the Common Law before ; Per Byngham. But the Statute ftys in the Negative, that where the Writ
abates after View of the Land by Nontenure, Mifnofmer of the Vill &c. the View fhall not be granted
again in a new V^''rit, W. z. cap. 48. Br. View, pi. 5(5. cites 21 H. 6. 4Z.
I V\^rit abated by Death of the Baron, the Feme had tiie View again. Br. View, pi. 2. citcsS. C.
4. So a fortiori, if tlje JJBrtt abatCSi by Death of the Baron, flftct tfe Br. View,
Bit% tijc Feme fljail ijaiic It nsatn, 29 c* 3- 46. Fs ^^,"'"
That the Feme in fuch Cafe was oufted of the View, the' the contrary was done 2 H. 6. 14. But that
there the Writ was not fi-cfhiy purchas'd, as in 58 E. 5. i. it was But fays Qiiare if there be any Di-
verfity ; and after, becaufc the/r/? JFrit was brought in D. \uxta IV. and this in D. without Mditton flic
for this Variance had the View.
5. lont if a 03an Ija^ tllC JDiCtd, antl abates the Wrlt for falfe La- See (H)pi,-
tin, in a neui mm ijc (ijaU not Ijaije tlje aDlcui* 42 c» 3- 23. ij. I: — -B"--
View, pi. 18.'
cites S. C But Ibid. pi. 44. cites 12 H. 4. 10. That in another Writ the Tenant fhall have the
View again. Quod nota ; for by Thirning it is out of the Cafe of the Statute. -The Defendant was
oufted of the View in fuch Cafe, by the Equity of the Statute. Br. View, pi. 51. cites 7 H. 6. 34. -
But Br. View, pi. 75. cites 5 E. 4. 142. Contra, viz. that the Tenant fliall have the View.
6. jf after ^im tijc ^^^rit be difoontinued, in a ncU) Jiarit Ije fljau
Ijatie tljc 3DieiB» lo p, 4. 6. in
7. Jf after tlje 33(CU1 tlje Writ abates by Jointenancy with a Stranger But if the
pleaded, in neui l©cit agamft IjHU an«3 tljc ^transer, tljep both mili"'""f ■'''''"*
ijaljetlje^ictD. 17 €.340- th^e'i'3
, -, \i abates, and
another ffrit is brought againft A. he fliall not have the View again ; Quod fuit concefliim. Br. V'iew
pi. 55. cites 21 H. 6. 42. *
8. 13 Ed. I. ca'p. 48. Tor View of Land it is ordain' d and provided.^ 'float In J'rxdpe
from henceforth Vie'wJhaU not be granted him., unkfs tn Cafe., ivhen View y/'qu°^reddat
Land is neceffary ; jis * if one lofe Land by Default^ and be that lofes moves ^demaZTh
a Writ to demand the fame Land-, j.-j^,^" ' * '
Stran<^e laid
the View he ought not to have ; for at another Time he had the J'tew in fuch another //"i/V, which was
abated after the f'iew for want of Form, becaufe the Name of tie Feme was fut before the Name of the Ba-
ron, viz. And that after the Dcatii of the aforefaid Alice and John, where it Ihould be John and Alice-
& non allocatur. But the View lyas granted again ; quod miium! For the Statute is Quod vifus eft'
concedendus ubi vifus eft necefTu-ius. Br. Viev/, pi. 5. cites ; H. 6 5:;.
* This Branch is not to be underftood according to the Letter ; for if one lofe by Default in an Af-
fife, and the Tenant brings a Writ of Right of the fame Lands againft the Rccoveror, he fliall have the
View. But this Branch is to be underftood of a ^lod ei Deforceat upon tie Recovery by Dejault, which
Writ is grounded upon the former Record, fo as the Tenant hath iufficient Notice thereby ; therefore
Party private nor Eftranger fliall have View in this Writ ; but othervvilc it is in the Cafe of the Ifntor'
Right ; for that is not grounded upon the Record. 2 laft. 4S0. '
And in Cafe when one^ by an Exception dilatory, abates a Writ after the In ?,-.(■.-/;?
View of the Land, 1/iod reddar,
the Tenant
demanded the View. The Demandant counterpleaded; for that at another Time he brought fmh If'rit
againfi tie T'enant and another, and they had the I'iew ; ctnd after the other died, and the Demandar.t came
into Court and fiew'd this ^U.jtter, ar.d pray' d Leave to innuire a better IVr it by Journey's Accounts, which he
had now broue,ht againfi him who furvived, Judgment if the !■ lew &c and a good Counterplea of the
View ; per Judicium Curise. For the Statute lays, where Writ fliall abate by Exception of the Partv
by Non-tenure &c. after the View of the Land, and then he fliall not have the View in the 2d Writ
but where the Writ abates by other Matter than bv Exception dilatory, exprefs'd in the Statute, there the Te-
nant pall have the View again; by which the View was granted again, quod nota, and Judgment n-iven
that he have the View. Br. View, pi. 7 5. cites 5 E. 4. 142. °
So in Formedcn the Tenant demanded the View. ,Per Norton, Jt another Time you brought fuch another IT'rit
againfi the fame Tenant and J. S. who had the View, and after the IVrit abated by the Death of J. S. Jud<»-
ment if the View &c. Per Hanck, Common Law or Statute does not ouft the View in this Cafe - ^r
the Statute is De male }ieminando f^'illa &c. for when it is abated after the View by a thing which comet
upon the Viem, there, in another fVrit, thcTenant jhnll mt have the View. Q>ntra upcn Death, as hare. And
lie
5*60
View,
he had the View ; quod rota. Br. View, pi. 4;. cites 12 H. 4. 4.-— G«/r^ Anno 29 E. 3. by Awards
as ';is faid there ; for the Statute is Comci.xtm- tif.n uhi vijus eft heceffarms Ihid^ ^ . , ^
t^he Writ muft be abat-d bv Exception, and therefore it the Demandant be nonfuited, the Tenant
ili.ll have the V,ew again, z'lnft. 4S0.- S P. Br^ Views pl^ico cites 22 E. 5. 9.
If tlie//"'i/ .-.Lates by Cor.vjiir.ct. of the DemmmUjit, and not by the l^lea and Exception of the Defen-
dant the Tenant fliall .have the View in the new Writ. 2 Inlh 4S0. _ _ . ,,
If'the Tenant hath tlie View, and the Demandant difcontinues his Suit, m a hew Aftion the Tenant
fliall have the View. 2 Inft. 4S0.
* A PrjEcipe Js hy Non-tenure^ or * inifnajning of the 'Town ^ or ffticb like,
is brought
arrainit a Fer^e, wlio abalci the I frit for mifnaming of the Town. The Feme takes Husband. In a nev>
Ji'rtt a<'ainrt Husband and Wife, they fliall have the View ;^ for albeit it be the Att of the Wife to take
Husband, yet for tliat the Husband was not Party to the lirll Writ, they fhall have View in the 2d.
2 Inft. 4S0.
+ Forwedon againft the Priors of Newark of Dart ford was abated, becaufe the Name of the Foundation was
the Priors of Dartfcrd, and the Tenatit had the Fie-w before the Matc»ie>it of the Writ ; and in a new IFril
the 'T'ena?}t demanded the Fiew, and the Demandant alleged this Matter, and tliat the Statute is Quod
vifus non concedatuv &c. and this Matter is comprifed in this Word Hujufmodi, and fo the 'Tenant pifs' d
ever, andpray'd Jid. Br View, pi. 64. cites 59 E. q.2-.
Thefe general Words {or fuch like) intend, that the Writ muH: abate for fuch a Plea dilatory, as doth
rife upon the Fiew ; as the 2 particular Exarr'ples of Non-tenure and mifnaming of the Town do. Bn:
when the iFrit abates for fime Dilatones which rife not upon the View, then in a new Writ the View fhall
be printed ; Js where the Writ is abated iov ^ointenancy , and the new If-'rit is brought againft them both,
they fnall 1-ave the View, becaufe in the new Writ another Perfn is join'd ; and fo it is if any wore or
lefs Land he coniain'd in the newlFrit- But if the fir ft IVrit after the Fiew abates for a Default of Form, or
for /,.-//e Latin, or by taking of Husband, in a new Writ the Tenant ihall have the View again, for thef;
Cafes are not within thefe \N'ords(or fuch like ;) for thcv rife not upon the Fiew, as the 2 Examples here-
in e.xprefs'd do. And bcfides, the firft was no Ilifficient Writ, and an infulHcient Writ and no Writ 15
all one; fo it is if one of the Tenants after the Fievj dies, in anew Writ the furviving Tenant Ihall havi;
the View a^ain, [andj albeit the Kcine came in as a Ferae fole by Receipt, and the Husband died ; iur
this did no" rife upon the View, but by the Aft of God. 2 Infl. 480, 48 1.
But if the firjf IVril were l^-ought in K. and the Tenant pleads that Part of the Lands extend into L. iri
a nev/ V\^-it for the I^ands of K. and L. though a new Trjwn be added, yet becaufe the new Town was
added by Force of the Plea of the Tenant hiwfelj, he was oulfed of View. 2 Inft 481.
It is not required by this Act that the td fF'rit fhould be brought frefhiy by Journeys Jccounts, the' it
be fo pleaded in many Books. 2 Inft. 4S1,
* This If he purchafe another Writ, * in this Cafe, and in the Cafe before-inen-
Branch ex- Fion'd^ from henceforth the View (Ijall not he granted, if he had View in the
tends not to /• /j ,>/,,, -* •' i^ t J
theCaufeof>/«'"^-^-
the Reco-
very by Default; for in the Quod ei Deforceat, the Writ being grounded direftly upon the former
Record, wherein the Tenant in the Quod ei de Forceat recovered in the former Writ, he hath fuffi-
cient Notice thereof, and therefore, as hath been faid, fhall not have the View. 2 Inft. 4S1.
And therefore thefe Words {in this Cafe) are to be referr'd to the laft General Words, viz. (or fucli
like,) and thefe Words (and in the Cafe before-mention'd,") are to be referr'd to the 2 Examples Dila-
tory, of Non-tenure, and mifnaming of the Tov/n. 2 Inft. 4S1.
This Branch In d Writ of Dower, where the Dower in Demand is of Land that the
extends not Htisband * alien' d to the Tenant, or his Anccfiors, where the ^tenant ought
to-i. Writ ^^^^ ^^ y^ ignorant what Land the Husband did alien to him or his Anceflm"^
-aide "ml'i} ^^'^' ^^' H'lsband died not feifed, yet from henceforth Vieiv jhall not he granted
habet ; for to the Tenant.
therein no
View did lie at the Common Law, but extends to other Writs of Dower, whether for Dower at the Com-
mon Law, or Ex aflcnfu Patris ad oftium Ecclefiae &c. or by Cuftom. 2 Inft. 48 1.
At the Common Law, if the Husband died feifed of the Land of Eftate of Inheritance, whereof
Dower is demanded, the Heir, or any claiming under him, fhould not have the View, becaufe it was
prefumed that the Heir was conufant what Lands his Anceftor had at the Time of his Death; and herewith
agrees Bradton, who wrote before this Statute ; Item denegatur vifus in Placito dotis de Terra & Tene-
ment), de tjuibus vir mulieris nuper obiit feifitus, quia habet tenens quod tantundem valet. 2 Inft. 48 1 .
But where the Husband alien d, there at the Common Law View was granted, which was a Delay to
the Demandant in Dower, (whole Life did fpend) and is taken away by this Aft, 2 Inft. 4S1.
If the Baron demife to a Feme, and dies, the Feme takes Husband, in Dower againft them, they fhall
have the View ; for the Alienation was not made to the Husband, but to the Wife, and the ASc fays
(to the Tenant.) 2 Inft. 48 1.
* If the Tenant dijfeifed the Husband of the Demandant, in a Writ of Dower he fhall have the View
for the Alienation, and therefore remains at the Common Law 2 Inft. 4S1.
Iti
View.
<;6i
In Dower of a Rent the Tenant ihall not have the View of tlie Land, if the Husband diedfeifed of the
Rent, nor the tenant of the Land have View thereof, if he had the Rent by the Releafe of ler Husband-
2 Inft. 4S2.
//; aJVrit of Entry alfo that is abated hecaufe the Demandant mifnamcd SCui inl'itii
the Entry, ij the Demandant purchafe another JVrit of Entry, if the 'Tenant '^'^f^''", -
had View in the JirJ} Writ, hefhalhiot have it in the jecond. Branch and
lb is a Sur
ciii ill I'itti. 2 Inft. 4S2.
In all Writs alfo, "-juhere * Lands le detnanded f by reafon of a Leafe \^De- This Branch
mife'] made by the Demandant or his Ancejior unto the 'Tenant, and not to ^P^^|" P^''"
his Ancejior, as that ivhich he leafed to him lemg Within Age, Not lakole of , Examples,
Mind, being In Prifon, and ^ fuch like, Vicwjhall not be granted hereafter, viz. of the
But if the Demife were made to his Ancejior, the View Jhall lie as it hath Dum fuic
done 'before. infra 3=ta-
■' . tem, & jNon
compos mentis, and In Prilbna, and generally in Confimilibus; and extends not tj thefe If'r/ts brought in
tie Per QpCui; for that is a Degree fartiicr than this Branch provides for. 2 Inft 4S2.
* Yet if any of thefe // rits be brjiight of a Rent, if the Tenant demand the View of the Land, tho'
Jt be of another Thing than is demanded, the Tenant fliall be oufted of the View. 2 Inft. 4S2.
t Here, as in many olher PLiccs, (Demife) is .ipplied to an Eftate either in Fee-ftmfle, Fec-tatl, or for
Term of Life, and lb commonly it is taken in many Writs. 2 Iiilt. 4S5.
This Branch is to be uiiderftoud oi Alienations made in P^iis, and not by Matter of Record. 2
Inft. 48;.
■^ By thefe Words thcPi-edeieJfr of a BiJI.op, or the like, is taken, tho' this Branch fpeaks of Ancef-
tor, and not of PredecelTor. 2 Inft 4S2.
It is to be obferved.that tlie E.xamplcs here put are of a Dum fuit infra actatem, andKon Compos men-
tis, and when the Heir brings either of thcic Writs of the Demife of his AnceJlor, from whom he
claims the Land as Heir, the VV'ords {and fuch like) fhall be intended of f frits of like Katiire; and there-
fore if .1 Siir citi in Vita be brought, fuppejing that the Tenant had not enter'd but by one D. late Husband of
E. Mother to the Demandant, ifhofe Heir he is, theTenant lliall have the ^"iew ; for he claims not as Heir
to him that made the Demife, and therefore it is nor Aftio confimilis. 2 Inft. 4S2.
It Infant within Age aliens to a Feme, mho takes Baron, and auei vvard> a Writ of Darn fuit infra xta~
tem is brought, the />'.iiv« fhall have tlie View, becaufe he was no Party to the Demife. Kehv. 126. b
pi. SS. perKeble. Cifus iiicerti temporis.
9. Right of Ad'Dowfon of the ^th Part of the Tithes and Oblations of the
Church of S. in L. againlt the Prior ot S. who demanded the View ; and
it appears by the Opinion ot Thorp that he may have the View, notwith-
Jiandmg that Finchden alleged, that at another Time the King hadfiich ano-
ther Writ againjt the Prior, in which he had the View, unlefs he f aid that it
was againjl the fame Prior who had the Vtew ; ibr if the iame Prior had
the View before, he fliall not have it again; per Thorpe. Br. View, pi.
49. cites 38 E. 3. 13.
10. Praecipe quod Reddat i» D. The Tenant had the View, and the
Writ abated, becaufe there was no fuch Vill nor Hamkt in the ;ame County.
The Demandant brought another Writ in N. The Tenant demanded the
View, and had it, notwithltanding the firll View, for [they were]
feverai Places. Br. View, pi. 50. cites 38 E. 3. 24.
11. If a Manor be demanded againlt me, except i Acre, and I have the
View, and after the Writ is abated, and another VV^rit is brought againlt
me [for the Manor,] I iLall have the View. The Reafon leems to be,
becaufe there is more in the 2d Writ than in the flnt. Br. ^ iew, pi.
23. cites 46 E. 3. 4.
12. Ctii in Vita. The Writ was abated, inafmnch as the Demandant in
the Writ did not make mention of whofe Demife he claimed, where the Tenant
had had the View twice before, and therefore the Tenant was oulled of the
View; but it was agreed, that if he was grieved in this Cafe, that he
may have a Bill feaPd of all this Matter, to have thereof VN'rit of Er-
ror. Br. View, pi. 103. cites 10 H. 7. 8.
13. In a. Precipe quod Rcddjt theTenant demanded a View, and an
Habere Facias vifum was awarded, and the Tenant came not to the Sheriff
te take the View ; if the Sheiiff returns this Matter, theTenant lliall ne-
7 D \er
562
View. _^
vfer have the View again ; per tot. Cur. Goldsb. 44. pi. 23. Mich. 29
Eliz.. Hoo V. Hoo.
J
( H ) View, ^t nahat Time.
Br. View, pi. | A T the Grand Cape return'd, if Demandant releafes the Default
45. cicess.c. • JA^ jjjg ccnaut fljall Ijaue tijc ©icun 12 1)^ 4- ip- &♦
Precipe quod 2. Jf OllC gagcs his Lavv of Non-fummons, UpOlt new Writ Ijr fljait
reridat ; ^t u^^^ j-jjg ^^jj;^^ 42 (Ir^ 3^ 1 1, fa» 16. 7 fp. 4* 8, 14 1), 6, 4, tJ*
Cape, theTc7iar.t n^aireA his Law cf Non-fnnimcvs, by which the /; nt ahateii, md the Uemandamhrou^h'
ether Precipe again'ft him, nnd lie dctr.ai-cled the View, and had it; for the Ley-j^ager is before
the View in the firft Writ, ard docs not take the Conufance of the Lard ; for he ought to be well
fummon'd before he ought to anfwer, be he Tenant or not ; nota. Br. View, pi. 61. cites 24 E. 5
,6 . S, P. per fuyn, and all the Juflices. Br. Saver Default, pi. 26. cites 14 H. 6. 4. — Br.
View, pi. 6-. cites S. C. Br. Joiinenancy, pi. 25. cites S. C S. P. Per Finch. Ibid. pi. 14 cites
42 E. 3. 10.
Br. View,pL 3. ^ftct r>np UltlX by Prcce Partium, Ijz fljilll JtOt !ja^C tIjCCJieJU.
25. cites S.C. j^ rt=^ Q, 4^
Br. View, pi. 4. Ij^U Action againft 5, if 4 confefs tljC SlCtlOll, pCt tIjC 5tl) ftall have
46^ cites jjj£; j^le^j of ijifj paxu 1 2 jfp. 4. 19 h.
In Z)Kr«r <7P.!/«/? /ei'sr^r/ Perfons ; fime of them renfeffed the JF.ion, and others dewnnded a Vieiv. All the
Tufticc.'; fee'm'd clear at the tirrt that they fhould have the View, inafir.uch as it does not vary in Dila-
tories &c. But according to 11 R. 2. and 46 E. 3. anrl 59 H. C. to the contrary and 14 H. 6. thcv
•were at len°-th oulled in this Aftion which is favour'd in Law ; but the Court offer'd to feal a Bill of
this Exceptfon, which was not anfwer'd. D. 179. a. pi. 41. Patch. 2 Eliz. Herbert t. Vernon.
For nothing 5. Jf Cotiufitnce cf Pleas be granted to a Franchife, and there Te-
is of Record ^^^^^ vouches a Foreigner, and therefore for Failure of Right th& Plea
*" f Th'^'o'T revives in Bank by Re-fummons ; tIjC CClWllt nWP IjallC tIjC ^m^ \)tXt
e"nai and "tijoMjc tafecsJ Coniifmicc of t[)c lauu Up tljc Doucljcr m tlje lran=
flatter of cljifc, bccatifc tljis Caufc of tlje Kcnwiscr i.s not of iaccorn Ijcre. i r
noTbeti"d"'^4-^7- IJ*
by'^Avernient. And therefore, per Cur. he fliall have the View. Br. View, pi. 42. cites S. C.
6. But OtIjettDlfe it ijatl been if the Franchife had demanded Conu-
fance attain, and the Demandant had alleged the Caufe of Failure of
♦Orig.is(et; Right by the Voucher * in the Franchife, and Tenant had confelled it.
1 1 J). 4. S7. &♦
7. Jif a ^ait abates a Writ of Coufinage becaufe it was brought of
the Poilelhon of |. B. Father of A. where A. was feifed after the Death
of J. B. ^ct in anciu itBrit Ije Iljafl IjaUc tIjc 3i)iciu. 13 1). 4' 7- ft-
See (G) pi 4 8. If ^\'rit be abated bp DCfCllOaitt lor talle Latin, J)et IjC fljall ijalJC
_z inft.4»i- tf)c ©ieu) in tljc feconn W\.\u 1 3 1), 4- 7- b,
Tf ne has View in Prxcipe quod reddat, and after abates the Writ for falfe Latin, or other Deftuir
°- nt he fliall have the View in another Writ, becaufe the Party there abated the Writ by Excep-
^.PP Amicus Curi.B ; for the E.^:ception was apparent ; but if the Tenant had abated it For othcr
Caufe not apparent, he fhould not have had the View. PI. C. 205. a. in Cafe of Stradling v. Morgan,
cites it as held J E. 4. fol- i42-
9. a {^an OjaU not babe tlje ai)iClb after Plea pleaded to the ASion.
-^vjv^O^ 10. aftCt tbe Defenbant bflSJ pleaded that the Plaintiff is an Alien
Fol. -90- born and demanded J udgment if he flwU be anfwer'd, \)Z fijai'i IjabC tbC
— ' ' ^\m.
View.
^63
IDlCtD, bCCaure tIjO' tIjC ISiCn be to tIjC ^aion, pet IjC has concluded Br. View, p/.
only 10 tlie Perfon, nnD lO It ffOCSi tO tljiU OUtin, 3 i)* 6. 55. Ctttlil fvi,Td?wif
in Dower, the Tenant pleaded that the Demandant is Alien, Judgment if he fhould be anfwer'd and
the Demandant pleaded an Enablement by Aft of Parliament.
IX. Jtt Praecipe againft i, if tl}Cone appears and the other makes De- Br. View, pi.
fault, and he who appears has Idem Dies, and at the Grand Cape re- "^^^ '^"'^sS.C.
turn'd both appear, and he who made Default contefles the Atlion, tljC c"p"°'^ ^"''^
otijci: fljall not Ijaljc tije aDieU), bccaufc \}\> tljc idem Dies rjiucn ijc (jau "
^nnc fuftlcicnt to tal^e Ji3oticc of tije InuD* 14 D. 6. 5.
12. 3in Praecipe quod reddat againlt 2 Jointenants, if tljC one con- Br. View, pi.
feffes the Aaion t'|)E otijcc lljaU itot fjaijc tl)c a^lctu aftct, bccaufeitf'^f'^-^-
luill be a Delap of tljc JuDirnicnt* 14 f)> 6. 5* 05nt ^imt, for it oui^cau
fccmc tijat It luoiiiu be pou Reafoit to ija^e t(jc ©leui i for upon tijisi fam
Ije map talte upon Ijimfelf tljc inttre 'SDcnanc)?)* ibid. pi. sc.
cites S. C.
for they ought to agree in Dilatorics. Br. Dilatories, pi. 9. cites 14 H.(f. 5. where it was faid to
have been oftentimes adjudged lately that he Jhould not have the View, Ad quod Jiifticiarii concorda-
verunt. But adds, Quxre Cauftm ; for if the one will be of Givb, there is no Reafon it iTiould pre-
judice the other.
[3. The 'Tenant cantiot fay that the Plaintiff or Demand a7it is an Infant^ * Orig. in
( pray that he be vieiv'd, but he mull firjl plead a Bar, * viz. Releafe (v'de)
i;
and ^
of the Anceftor with Warranty &c. and conclude that he prays that he be
%'ieivd. Br. View, pi. 93. cites I2 E. 3.
14. Precipe quod reddat againfi 4, 3 appear d^ and demanded the
View, and had it, notwithllanding that the 4?^ made Default^ and at
the Day the /^h appeared, and the Demandant releafed the Default, and he
demanded the View and had it, and /^e others --joere cfoignd; quod nota
bene. Br. View, pi. 90. cites 40 E. 3. 30.
15. Dower againft 2, the one -was ready to render Dower, and the other Br.Dilatorics
prayd the View ; and per Cur. they ought to agree in Dilatories, and p'- 4- cites
therefore Ihall not have the View j quod nota. Br. \'ie\v, pi. 7. cites '
33 H. 6. 21.
16. And ^i£re of the Mifchief if the Demandant brings the Writ a- Br. Dila-
gainjt them by Covin, where the one has nothing and he is ready to ren- '^"'■"^''' p'-4«
der. Br. View, pi. 7. cites 3 3 H. 6. 2 r . ^^^ J^ C -
H. 4. 19.
where the one confejfes the Jciton. Ibid.
17. Pnecipe quod reddat, the 1'enant demanded the View where the De~
fnandant and another who demanded Conitfance of the Plea were at Iff'ue
Whether the Land was within the Franchife cr not, and therefore the Te-
nant cannot have the View at this Time ; for if the Conufance Ihall be
granted, the View here is in vain, by which he was compell'd to join
to one of them and to ftay his View, and fo he did, and join'd to the
Demandant ; quod Nota. Br. View, pi. ir. cites 35 H. 6. 24.
18. Precipe quod reddat againfi 2, the one imparl' d and the ether
pray d the View ; and per Fitzh. he Ihall have the View, and well i and
yet it appears 33 H. 6. 21. that they ought to agree in Dilatories. Br.
View, pi. I. cites 26 H. 8. 2.
19. A. Y i&vf vna.yht after Imparlance. Jenk. 130. pi. 64. It was
mov'd whe-
ther in Plea of Land a Man fliall have the View after a tremri^l Imparlance ; and the Court were of
Opinion that he fliouldnot, becaufe he takes upon himfclf Notice of the Land ; and therefore he fhall
not plead Non-tenure or Jointenancy after Imparlance. Gut Lennard Prothonotary, and other Clerks
held the contrary as to the View, by Reafon of diverfc Precedents. D. 2:0. b. pi, 27. Hill. 4 Eliz'
Anon. Mo 32. pi- 107. Trin. 5 Eliz. Dyer and Wcfton denied a View to the Defendant be-
caufe he had imparl'd ; whereupon Bendloe faid that a Diterjity wa.s held hefiveen [w^arhxyice anfPrece
Partitim or Dies datiis; for by the Dies datus he affirms that he has Notice of the Thing in Demand, but
rot fo by Imparlance. And Lennard laid he had feen Precedents of View granted in a Seft.t ad ]\io-
lendinum after Imparlance, and that it had been often done In a Onod Permittat after Imparlance,
the
564
View.
the Defendant demanded a View, and rul'd by the Court that he might. Hutt. 28. about the 16 or
17 Jac. Brook v. Groves.
20. In \x\krm2Xi0r\ for a pnhJick Niifance the ]my fotifid the Defendant
p-niltr, yet becaufe it appear'd to be doubtful upon the Evidence, and that
the Jury had not had the View, tho' very proper in this Cafe, the Court
wilh'd the Parties to confent to let this Jury have the View, and to come
to Trial again ; and it was fo done by Confent. And this the Court did,
becaufe it was a ^nejlion of Right, and this Trial would be peremptory
to the Delendant. 12 Mod. 626. Hill. 13 W. 3. Dom. Rex v. Clerk.
21. Before a Rule is made for a View, the Ven. facias mtijl be return d,
and then the Court may make a Rule, that fo many of the Pannel lliali
view the Premifles. 2 Salk. 665. pi. 3. Mich. 4 Ann. B. R. Anon.
(I) View, irho pall iuwe th V/e^w. The^ Party or
Jurors.
I. ▼ TIT 7 Here the Jurors ought to have tIjC 3i)iCtU, the Party fliall not
V V iJa^C m 3:>ieW* 8 l^, 6. 27. 9 ip^6. 41. ]}.
2 ju Aifife ot Novel DifTeiiin, tlje Parti) n)aUnat IjatJC tl)C 3DiCU)
of tlje tinntj nemanncQ, but tl)c Juroi;^* so€,i. n.b. 9 cp, 6. 41 .
jh 19 l3. 6. 43.
*3. 3nt©nt of 'A'afte, tije Juroi-js ousljt to ija^e t\)tmm, aiiU
nottlje mxtw 8 1).6. 27. 19 M, 6.
TheDefen- 4. Ju Alhle of Nufance, tljC 35Ur£lt0 fljnll l)d.U t\)t ©icUl* So €, 3-
dant fliall n. {)/ 6 l), 6. 41. b* I9 J^t 6. 43. 19 ZiW, 6.
vTewTn Affire of Nufance Lefore Jiiftkes cf Jjpfe, but the Jurors fhall have the View there ; Per
Belknap. Br. View, pi. Si. cites 50 £. 3. 11. But hi JJpfe of Kujunce Vtcmitiel, the Party fliall
have the View. Ibid.
Br. View, 5. tipOlt Prefentment of a Nufince, if Procefs iflues ao:ai!ltt tljOfC
pl. 72 cites ^^jjg jjji^ij committCl) tljC Ji^UQlltCC, anH aftCl* tijCP are atlliae with the
^- ^- King, tlje jurors fljall not l)a\3e tl)c mm. 19 ?aT. 6.
s-e (C) pl 6. 3i,n a Qyod Permittat, tijc Jurp fljall not \)dM tlje a^ieiu* 19
mluat the'jury have a View. zSalk. 458. in theCafe of P.Umerv. Poultney.
(K) View. Of what Tbh/g a Man fhall have
the View.
I. T JS a Curia claudenda for not inclofing his Honfe atljOinillQ; tO tljC
1 |)oiifc of tIjc Plaintiff, to tIjc JQufance of tlje Jpoufc of ttje
plaintiff, tlje Defenoant fljall ijabe tlje mm of Both Houies. 29
2. 31n Affife in Confinio Comitatuum for Common appendant to his
Franktenement in another County, tljC ©tCtU Rjall bC of the Common
and ot the Franktenement, tO lUljICij $C» n %), 4- 25. b»
3» Jf
View. 565
3- 3!f it Rent be ifluing out of Land in one Councv, and a Diftrefs is The Affifc
limited lor it in another County, in AlFife fOC it, it feeUlS tljat Onl? tlji0 J'^'Lh^t^„
lauo fljallbe put in mm out of loIjicO tlje lacnt ilTucg, Contra r the 'krd
C.3- iil- U* ClUierC 31 ^ir. 27. County; but
if both the
Lands be in one and the fame County, both Lands fliall be put in View. Br. Rents, pi. 2.2. cites la
Aff. 4. Br. Affile, pi. 151. cites S. C.
4. A Hnadred is a thing not mainourable, ^vhich cannot be put in
View ; and therefore Alfife lies not oi it ; Per Shard. Br. Affife, pi.
309. cites 30 AIT. 5.
3. In ^lod pernuttat of a Wa)\ the Defendant fliall have the View of
Walls which obfirii[is the IFay, and of the Way, and of the Lands to "-juhich
the Way l>elon£s. Br. View, pi. 10. cites 34 H. 6. 9. 10.
6. yifid in ^ncd Permittat of a Common of Pajlure appendant, the Defen-
dant Ihall have the Y'ltw of the Land in which See. and of the Land 7o
which It is appendant &c. Br. View, pi. lo. cites 34 H. 6. 9. 10.
(L) View. //7.w^ Thing fhall be put in View. \_Afd FoI. -^i.
I. T J13 AITjfe for Rent ifluing out of a Manor, tIjC Manor fljiin llC pUt
X in aDietD. i ii)* 4. 2. i (£» ^. 21.
2. Jf Aftion [bCj lor Rent, tljC Land out of which it tlTUCCi fl)aU bC^f ^''^ ^'"^
put nt nzMi. 1 1). 4- 2. I e. 3 21. t'i"
I HIV. Br. AITife, pi. 2. cites 3 H. 6. 10.
3- Jf tbC King, upon Grant of his Fee Farm of a Vill, referves a
Rent and Tenure, (ajSljC IIUIP) and after grants over this new Rent Xt-
fCtUCB, in Aaion fOt it bv the Grantee, ttjC Vill fljali liC pUt Jn 3D!Ctll ;
for tljE Rent imicG out of it liv a 93cruc. i ix 4. 3 b. %tt 3 5).
6. 21. b»
4. Jn Aflife of an Office, tljE Place of the Office fljaHbC pUt iUDlCUJ. Br. Affife,
3 i3» 6. 22. 21 (!£♦ 3. 5- 7- b« 22 Ip. 6. 10. pi. 2. citei
5. [So] Jn amrc Of tljC Office of tlie Serjeantv of the Church of 5 "-^/o.
Nichol, tijC Church fljall bC pUt \\\ ©I'elU ; fOC t!)C £DiTjCC arifCfj out QVofCDhJ
tljC S)OlU i8 C* 3- 27- difleired o£
the Profits-,
he fhall have Affife, and the Comrmn Batik fliall be put in Viev/. Br Afiife, pi. -6. cites Z2 H. 6.
9- '°-
Jnd where one is Crier of the C. B. and Exchequer, and C. B. is remcied to the County of Jlrk, and the
Crier is dilVeifed of the Profits of C. B there the Common Bank in tlie Coimty of York fliall be put in
View ; Per Newton and P.ifton. Br. Affife, pi. -6. cites 22 H. 6. 9. 10.
So where an Affifc was brought Dc liberoTenemento in VVcftm. and the Pltihit was of the Office of
one of the PhiJizers in C. B The Demandant made his Title in his Plaint, and alleged Seifm, by takinc
a Fee of ; d. for a Capias againft C. D. in a Plea of Trefpafs. 'fke Place zvlere the Plaintiff fate, when
he u-asfrfi admitted 10 tUc Oificc, was fut in J'leiv. Dy. Ii4.b. pi. 6;. Palch. z £c 3 P. & M. Vaus
V. Jefleren, Lynton, & Keble. S. C. cited 8 Rep. 4;. b. in Jehu V\'cbb's l^lafc.
6. [So] Jn strife of t!)C Office of Chefter-Herald, tbC Place where the Brovni. 27.
Chefter-Herald was at the Funerals of tljC Catl Of CreterfOlCmnijeJI ^"°" ''' ^■
map be put in a^tciUt Cr. 7 3la. 15* Puffin' ^ Cafe, aojutJijeii. acco?dirgi>-,
« but pot very
7 E 7. Jl
'^m
Br. View, pi. 7. Jf tljC iDcniaUtl be of the Moiety, or 3 Parts, of a Manor, !)C fljalt
59.citesS.C. {jjj^j jjjf J^)J(;^J flf ail the Manor. * 11 l)^ 4. 19. 18 (Q,^ 3. 46. Jb^
-T~cites I ? Afl". 21. S. P. where the Demand is of Moities, or 5 &c. Parts; and alfo cites 16 Aff. 2.
accordingly.
Bv View, pi. 8. 3in iin Aaion againft 4, 3 confefs tllK 3ftiO!t, aittl the other has
46. cite.S.C. ji^ie V lew 01 his Part, l)C fljall Ijalje tlje IDlCtD Of the 4th Part through-
out all the Land, and all the Land fljall IJC pUt IH ©ICtOt 12 Jp,
'^' 9.' Jn afflfC of Darrein Prefentraent tlje IWttSX^ fljall OatJC tlje ©ICtU
Of tljc Cljurcl)* III). 6.^.
10. In an AHile ol Common of Eftovers, nil tljC V\'ood fljaU be pUt
inJDieiUt 22 D* 6. 10. b*
BrAnTife, pi. J [_ '^^ ju Sheriii of a County brings Affife of his Office, aU tljC Coun-
76 cites S.C. ^y fljjjjj j;j; put (J, 33lCiO. 22 0* 6. 10. ft.
Br. NuGince, 12. jj| Allife Quare obllruxit viam to his Franktenement, by levying
pi. 9. cites of anHouie, tlje Houfe, Franktenement, and Way OUgljt tO bC ilfelD'O.
the Jury " Jp» + ^6.
ouj^ht to
have the View ; per June ; for the Nufance fhall be oufted, and it may be that Part of the Way only
is rtopp'd, and not the Whole, and then Part of the Houie ihall be oufted, and not the Whole. '
13, Ju Qflife for Hopping a Light by an Houfe IC^ICH, tlje Hohlc
levied, and the Franktenement to which &c. OUlp fijall be pUt III ©lettJ h
b.ecaiife tlje imijt cannot be put in =Dicin, 1 1 p. 4. 25. b.
14. If tijC Demand be ot Lund, anB tl)C ©ICUJ 10 gtanteH, every
Part oi the Land fljail U tljCtUn in a^IClD. 22 e* 3- 8- b*
jn Afftfc the 15. So ujljcrc tlje DcnianD isi of an Houfe, cberp patcel of tlje Ipoufe
Wn. ^vaw/ flj^^ii Uj piij. ij^ 3;)u>^3^ 22 e, 3- 8. b*
a I'oot of
Land hi Length and ; in nre.nith, and 2 Parts of a Mejfuage, and the Mciety of Z Parts of a Mejfiiage, and
6 d. Rent, with the Jfi'urtenanves in Ji" and that in the tnean time the Mejfiiages, Land, and 'fenements,
out 0} which the Rent anj'ei, be put in Vieiu And To the Claiife ofthelienv differs from the other Part of the
^'ri/,apd yet gobd; for the whole Houfe ihall be put in View. Br. Brief, pi. 275. cites 16 Aff. 2.
And iilVafte be afj'.pn'd in ever) Roan of a Hiuft, the View of the Houfe generally is fufficient. I
Le. 267. pi. 359. so Eliz. in C. B. Anon.
16. But if tljC Denianti be of a Manor, tbe Scite with the Appurte.^
ranees fljali bc put \\\ ^letD, anB not elierp ipatcel of tlje $^anor» 22
€»3>8»b.
Br. Rents, 17. li Rent he granted out oj no Land^ bat certain Land is bound to the
pi. 22. cites Dijtrefs, if tt be yirrarr, there in Allile this Land Ihall be put in View.
^■^- Br. Alhie, pi. 151. cites 10 Aff 4.
18. \Vhere the Danefnes of the Manor extend into 2 Vilh, both fhall be
put in View. Br. Aliife, pi. 476. cites 15 Alf. 11.
19. There is a Drocrjity between JJ/ife of a Rent-charge, andAfT^fe of the
Office of Stir'veyor of Packing of all manner of Cloths, Laiub-skins, Thrnmbs &£.
within the Liberty and Franchife oj London ; for in Caie of a Rentcharge,
every Parcel of the Rent charg'd Ihall be put in View ; but in this Af.
file of taking Packing &c. of every Merchant, there the Per/ow is char^d^
and not any Land, and the Houfe in -which the Merchandizes are, fhall
be put in View i Per Newton and Palton. Br. Affife, pi. 76. cites 22 IL
6. 9. 10.
20. Where a Rent-charge is graoted of Land in 2 Counties, Affife does
not lie ; for every Parcel is charg'd with the whole, and all the Land
ought to be put in View ^ but if the Counties join, it lies by the Statute
of 7 R.2. 10. Br. Aifife, pi. 76. cites 22 H. 9. 6. 10.
21. In Wajie, it was faid by Anderfon and Walmefly, thatz/ the Ijfue be
join'd upn a Collateral Point, As where the Party entred asDevifee or Exe-
cutor,
Ykw.
tutor, yet the Jurors ought to have the View oithe Place tor the Damages
given, altho' the Wafte be confefs'd ; for the liTue is tried by the
Verditl ; but otherwife if by Demurrer. But Glanvill was of acontrary
Opinion i for it is not fafficimt to come and view any Part of the Land in
Queltion, as in an Allife ^ bat the Jurors ought to have the View of every
Parcel, for the afleffing of Damages. 34 H. 6. 45. a. And if any of the
Parties dilFuade the Jurors from making a View, it is punifhable in the
Star-chamber lor hindering the Courfe of Juftice. Noy 5. Lichfield v.
Sanders.
22. In ^uod Permittat, the View was De Tenenrentis pr^ediffiSy which
was as well of the Lands to which the Nufance was, as the Lands which
was the Nufance. Hiitt. 28. Brook v. Groves.
(M) view. How the View is to be made. At isohat
Place.
i. A ^3^ tti^l? «is^<^ tljc aDieui to tijc 3!utor0 of an aiTifc tijcre, Br. Anire.
y~\ v\r<cie he may fee the Land without approaching to it, if ipC pi. 550. cites
Uaress not apptaaclj to it for Doubt of Death. 38 m. 23. %^~~fl\
2. Note, that in making of the View it is mt necejjary to foew ^^^JJcites^S c"''
Acre^btit ViXiL^ ^f^ the Ftcld^ and that he claims fo many Acres in th aiield
&c and another Field, andfoon ; ^i£re inde, Br, View, pi. 10 1. cites
It. Cane. E. 2.
3. If the Jurors came near to the Land, hut there is a Hill between them
and the Land, lb that they cannot fee it; yet the Law adjudges this a
fufficient View ; Per Knightley. D. 18. b. pi. 107. and not denied.
4. In an Aftion of /F^?/?!? of Wafte affignd in alFood, the Jury view'dthe
Wood only without entring into it; And it was holden, that the fame was But Meade
fufficient; for otherwife it fhould be tedious for the Jury to have had the Jufticc faid,
V^iew of every Stub of a Tree which had been fell'd. i Leon. 267. pi. T^^„^ '^
359. 20 Eliz. in C. B. Anon. \f^}^.
Cetera! Corners of the fVodd, then the Jury is to have the View of every Corner; but contrary where
Wafte isafF,ga'din the whole Wood. 1 Le. 2.6;. pi. 559. Anon.
(N) By how many it ought to be.
i.TN Aaioh oiWaJle, 6 of the Jurors at leaft ought to have the View.s. P. Br.
1 Br. Vie\V, pi. 95. cites 9 H. 6. 66. Wafte, pi.
-*• ^i ' ' 10. cites 9 H,
6. 55.
2. In AJftfe, 6 of the Jury ought to have the View, or ought to know the S. P_ Br.
Land; fo that they may put the Plaintiff in Poffeffion, if he recovers. Br. ^^^[%-^^^;.
View, pi. 89. cites 21 E. 4. 65. , S.C* and iz
E. 4.16. 17.
Co. Litt. 1 59. (s) fays it ought to be fo whercfoever the PbinlifF is to recover Per Vifum
Juratorura.
2- 3 ^^-4
'^68
View.
3. 4^5 Jl>in. cap. 16. Enafts, That in any A[iion brought in the Courts
at iVtJinnvfter^ where it lliall appear to the Court that it will he proper the
Jurors '-Jjho are to try the IJfues^ Ihould have the View of the Lands or Place
in ^tiefiion^y in order to underjland the Kvidence to be given at the 7'rtal^ the
Court may order fpecial \V>ics of Dijlringas or Habeas Corpora,^ whereby
the Sheriffs Jhall be commanded to have lix out of the firft 12 of the Jurors
therein named., or a greater Number, a: the Place in Queftion before the
Trial, who fo all have the Matters controverted /hewn to them by 2 Perfons in
the Writs.) named and appointed by the Court ; and the Sheriff fljall by a fpe-
cial Return upon the fame ^ ccrtijy that the Vuw hath been had according to
thefatd Writs.
4. 3 Geo. 2. cap. 25. S. 14. Enafts, That where a View pall be allowed, 6
of the Jurors, or viore (who (hall be conlented to on both Sides ; or if they
cannot agree, fijall be nam'd by the proppr Officer of the Cotirt^ or, if need
be, by a Judge, or by the Judge before whom the Catife fhall be brought on to
Trial) Ih.ill have thic View, and jhall be Jirji fworn, orfuch of them as ap-
pear on the Jury before any drawing ; and fo many only as Jhall be drawn, to
be added to the Viewers, assail make up the Number of iz.
(O) PiniiJJjmCfit for not taking the VtC'W, am hoi<:
hjffu'ircd.
l?i-. Ailife, I. TN^^/t', if the Defendant fays that the Jurors have nQt had theVtew,
pi. 259^ cites J[^ this lliall be tried by F.xamination of the Jurors fmgly, whether they
S. C^ That 1^^^^^ ij^,j ^^.g View, or knew the Land -^ fo that if the Plaintiff recovers, they
tlicm(blv°(:s "^-ly P'-^'^ him in Polfcliion &c. and fo it is us'd at this Day. But 'tis laid
fliall be exa- there per Fiflicr, that at Winchefter they tried it by Triors, which
min'd, if isnotufual at this Day. Br. View, pi. 87. cites 22Afr. 22.
they have _
had the View> and not to try it by Triots.
2. In JJfife in A. B. and C. the yury had made the View in A. and B.
and not in C. and therefore every one was amerced to 20 s. and com-
manded to do it againit the next Day, in Pain ot 20 1. each. Br. View
pi. 60. cites 29 E. 3. 50.
3. In Alfife, Array was challenged becaufe the Bailiff of W. haJ fitm-
Tiioned fame and caufed them to have the View, and return'' d others who were
not funimond nor had the View ; and becaufe the Bailiff was not prefent,
the Under-Bailiff was cxamin\l upon Oath, and confeffed it ; by which the
JuJiices awarded Non omittas for the Defendant to the Sheriff to pitt them in
who had the View, and others. Br. Procefs, pi. 182. cites 41 Alf 26.
4. In Alfife, It is the Office of the JuJiices to examine the Jury of the
Viezv, tor the Judgment is Quod querens recuparet per vifum Juratorunj,
which can't he without Error unlefs 6 have the View. Er. Affife, pi.
394. cites 21 PI 4. 65. and 22 E. 4. 16. 17.
S.P.Brooke j;. In Affile, the Court demanded the Jury, v^ho appear'd j and the
fays, Miror ! Jtiry was examined by the Court fever ally, whether they have had the View,
not'^been exa- ^'^'' /^/V/ that they had not ; wherefore a Day was given to them to have
min'd if they the View by fuch a Day upon Pain ot 100 s. each, and a Day given o-
knew the vcr to another Term. Br. Affife, pi. 395. cites 22 E. 4. 34.
Land, fo _ . ,
that they might put the Pl.iintifFin Pofredion if he recover'd ; for then it fuffices wuhout the View,
& habetur in Ufu. Br. AiTife, pf 70. cites 19H. 6. 43. — — S. P D. 6i. b. 62 a. pi. 33. Palch. 3S H. 8.
Pennington v. Morfe.
(P) Plead-
View. 1^6^
( P ) Pleadings.
I. rrn H E 'fenant caii't fay that the Plaintiff or Demandant Is an Infant,
JL and pray that he be •vie''^'d, but muji prft plead a Ear, viz. Rcleafe
ot the Anccltor with Warranty &c. and conclude that he prays that he be
meiso'd. Br. View, pi. 93. cites 12 E. 3. and Fitzh. Afliie 116.
2. In Dower, the Tenant demanded the View; per Read, the !7e»^»?In Bowh,
had nothing but by our Baron : And this was held a good Anlv^er. Br. ^f^^ "Tfiiant
fr- 1 • rr" demanded the
View, pi. 34. cites 2 H. 4. 24. y^^^^ the
Den:andant
ftiid that the Baron enfeoffed the Tenant ; Judgment if the View &c. and ivhkh Eflate he continued the Day
oj tie Writ ptirchafed ; and per Cur it is abetter Counterplea that the Tenant entred by the Baron with-
out fhewinf; by Feoffment, for he may enter by him diverle Ways; as by Feoffment, Fine, Difleifinj
and Releale &c. Br. View, pi. 05. cites 9 E. 4. 6.
L
3. In Do-JJer, the Tenant demanded the View, the Demandant fzld
that he dtffeifed her Baron, and fo in De fon Tort demefnc, &c non allocatur;
Contra of him who is in by the Baron, he fhall not have the View ; for the
one Matter may make t/fuc, and the other not. Br. View, pi. 38. cites 7
H. 4. 18.
4. In Dctcer, if the 'fcnant demands the Vie'in, it is a good Counterplea
that the Baron died fifed, and there per tot. Cur. the Tenant pall not fay
that he did not die fifed cj the Land in demand, for then he takes Conu-
fance of him ; but fhall fay that he did not die feifedof any Land in the fame
Villi and then well J ior Negati'va nihil implicat\ "Br. View, pi. 9. cites
34 H. 6. 3.
5. Writ of Entry in Natnreof Jffife of Land and Rent, the Defendant as * So'm Prji-
to the Land pleaded Jointena?icy, and as to the Rent demanded the Vie-u of the '■'i^f qi-iod
Land out of w hie h the Rent arifes \ and by the Jullices, he fliall not have /j^/'an/hg
the View of the Land in Demand in this A£tion, becaufe he is fuppofd demands the
to be in De fon tort demefne; but e contra of the Land out of which the View of the
Rent is ilfuing, by which the Demandant faid that the Defendant is ^/"'^. V"*^*'
* Pernor of the fajiie Rent ; Judgment if the View &c. and a good Counter- '^ Coun-
plea by the belt Opinion. Br. View, pi. 10. cites 34 H. 6. 9, 10. terplea that
he is Pernor
if lie Re7it. Br. View, pi. 12. cite 55 H 6. 55.
6. In Trefpafs, after Iffue join'd the Parties, and the Jury appeared, and S. P. Ibid. pi.
Day was given further .J^iia quidam feeerunt lufum k3 quid am non, whereas iS;.^ cires
iheEntryJhould have been ^iiodJffifa remanet capicnda pro dtfeffu Vij'tis ; and ^' ^'j 't ^5-
becaufe 'twas not, therefore Error j per Brown, Fairfax, and HuHeyjto™[[' '^"^^ '
ButTownfend contra. Br. Error, pi. 142. cites 3 H. 7. 13. Quidim
ron fecerent:
Vifum, it may be intended that ; or 4 have not had the View, whereas it is fufficient if 6 have h:id it.
And in this Cafe the Words being f)uidam non feeerunt Vifum & nuidam non venerunt, Ic.s < Aliifi
remanet &c. it may be that 16 appear'd and the reft did not, which is not material. And where
the Entry was Quod 'Juratores iinfanellati ccmparuerunt gf ciiiidam non habiierunt J ifum Qp ^isid.z)/: 1 en ve-
nerunt & ideo &c. The Comparuerunt & quidam i.on venerunt is repugnant, and therefore Error.
Br. Affife, pi. S5. cites 1 5 H. 7. 16.
7 F ( Q^) Pleadings
c,-jo View.
( Q^) Pleadings. iFbat Plea may be pleaded ajter the
View.
^ttfifhchad i. Y -V Entry far Diffeijin as Heir, the 'Tenant [aid that the Demandant
counter- J^ has an elder Brother alivc. Judgment of the Writ, and the De-
^'^T'l^tik- ^''I'^-'t^'^^^t [aid that the Land tn Demand is Borough Enghp, and the Tenant
c'Lred the f^'d that he had had the View, and becaufe the View was had before the
Cuficm in a Count, therefore the Demandant fliall have the Plea well enough ; for
CoMiterpiea, jj^g Land is Borough Englifh. Br. View, pi. 99. cites It. Not. Temp,
and the Te- p- ,,
riayided the
J'ieai-, and after flcaded that tie Dem.wdant Ind an elder Brother, there tlie Demandant fhall not fay that
tlie Land is Borough Englifh, contra to the General Count ; and fo it feems that there iliall be General
ITrit and Special Count- Ibid.
2. Bafiardy was pleaded after the View, and good ; for it feems that
this goes to the Atiion as "well as to the I'erfon. Br. View, pi. 85. cites
18 E. 3. 34.
* Mifprinted 3. After the View he pall not have Plea to the Writ, of which he may
for (E) 5. ijave Conufance before, without the View. Br. View, pi. 85. cites 21 * H.
3. 10. & concordat 12 H. 4. i.
Kr. Non- 4. As in Praecipe quod reddat, the Tenant demanded the View, and
tenure, p!. j^.^^j [^ . and after faid by Attorney that he was Villein to f. S. and held of
-i'e'^'-^o ^-'''^ in Villeinage,' Judgment of the IVrit. And per Judicium, He Ihall
— S. p!' Br not have the Plea that he is Villein, after the A^iew^ tor he has Conu-
Vicw, pi. flince as well before the View as by the View, whether his Perfon be a
15 cites 41 Villein or not. Br. View, pi. 85. cites 21 * H. 3. 10.
E. 5. 9. —
But he mav come in proper Perfon, and fay that he is Villein, after the View, well enough. Note a
Diverfity. Br View, pi. Ss. cites 21 * H. 3. 10 & 19 E. 2. Fitz.h. Vilknage, 33.
♦ Mifprinted for (E) 3. 10.
S. P. And a 5. By which he faid that he held in Villeinage of J. S. Judgment of the
Man^way Writ. And a good Pleaj for this is a fpecial Non-tenure, which ihall
]eml", and ^ome upon the View well. Br. View, pi. 85. cites 21 * H. 3. 10.
his Perfon be
frank, therefore fliall have this after the View; per Fitch. QiiiW son negatur. Br. View, pi. 15.
cites 41 E. 5. 9.
* Mifprinted for (E.) 5. 10
Br View, pi. 6. Praecipe of the Manor of Hannes. The Tenant, after the View,
%?,.ditsS.Cnj^ll fiot fayto the Writ that the Name of the Manor is Harres, hy reafon
of the View ; bat he may fay upon it, that No fuch Manor in the fame
County^ Per Thorp i aud the Tenant was compell'd to anfwer over. Br.
Brief, pi. 224. cites 39 E. 3, 13.
In Formedon, <j. In Formedon, after the View, the Tenant was not fuffer'd to plead to the
after the ■^^■^^ i^., j^gfault apparent in the Writ ; for he had Notice of it before the
St'was View. Br. View, pi. 13. cites 40 E. 3. 15.
not fuffer'd
to plead to the Writ that the Demand ought to be by Name ef a Moiety, and not by Name of 20 Jcres of
Land the Moiety of 4.0 Jcres of Land, becaufe it was apf>,rrent to him before the View, and did come upon the.
View. Br. Brief, pi. 43. cites 40 E. 3. 58. Br. View, pi. 41. cites 1 1 H. 4. -z. That in Forme-
don, tho* the Tenant has had the View, yet he may plead Matter apparent in the fVrit, in Abatement of
the U^rit, after the View; per Hill. Qiiod non negatur. Br. Brief, pi. 122. cites S. C.
S. A
View. 571
,^— _ ■ ■ - — -■ I ■ ■ ■■— I ■ I - ^ ■ ■ F- ^
8. A Man may pkad to the Writ for falfe Latin after the View. Br. ^P And
View, pi. 18. cites 41 E. 3. 21. and 42 E. 3. 23. roitfeems
thine:, apparent a Man fliall plead it, after tlie View, to the Writ. Er. Brief, pi. 57. cites 42 E 3 Z3 .
S. P. br. Brief, pi. 165. cites ; H. 6. 34. t j j
9. Praecipe quod reddat of the Manor of H. The Tenant demanded
the View, and had it ; and after the View [aid that there is H. without
AdJition, and H. L. --jjith Addition.^ and the 'fenetucnts are in H. L. with
Addition, Judgment of the Writ. And it feems there that he Ihall have
this Plea after the View, and that the Demandant ought to maintain the
Writ that they are in H. without Addition. Quaere; for it was not
plainly adjudged. Br. Briet^ pi. 52. (53) cites 41 E. 3. 29.
10. In Praecipe quod reddat, if the Tetiant ivitches^ and the Vouchee
comes and demands the P^iew, the Vouchee pall not fay after that the 'tenant
had nothing the Day of the' lirit pirchafed^ nor ever after ; per OpLnionem.
Nor in Formedon in Remainder, if the Tenant demands what he has of
the Remainder, and the Demandant lliews Deed, the Tenant fhall not
plead Jointenancy after ; per Finch. Quod non negatur. Br. Eftop-
pel, pi. 38. cites 45 E. 3. 2.
11. Cofinage by A. and in Wis Coxxnt made the Defcent from B. to B.
and from B. to JF. and from W. to A. now Demandant. Tank pray'd
Judgment of the Writ ; for it appears that he ought to have Writ of Be fail,
and therefore the Writ was abated after the View ; quod nota. And the
Reafjn feems to be, becaufe he did not make Count before now, and
now by the Count he hispewn the Matter htmfelf, which will abate the
Writi quod nota. Br. Brief, pi. 74. cites 46 E. 3. 15.
12. In Writ of Formedon, as Colin and Heir, the Cofinage was otirittedBr. Forms-
in thelVnt, and was exprefs'd in the Count, and therefore the Opinion of '^°"' P^- -^ 9-
the Court was, that the Writ fliall abate ; but becaufe the Tenant had^'^'
had the View, and was efibign'd upon the View, and the Count was be-
fore, and this Plea came upon the View, therefore he was awarded to
anfuer to the Writ; quod nota. Br. Brief, pi. 84. cites 49 E.
3. 20.
13. A Man may plead to the Jurifdiffion by ancient Demcfne, after the
View ; for this is a Plea which comes upon the View. Br. Jurifdi£tion, pi.
18. cites 5.0 E. 3. 9.
14. Dower in A. and B. and the tenant had the View, and after came5«/ he may
and faid that there is nofuch Vtll, Hamlet, or Place known, out of the Vtll^^''^ Join-
and Hamlet in the fame County, Judgment of the Writ. And becaufe he ^^'^'"n <»•
did not take it before the View, he was oulfed of the Plea. Br. View, f'^V'Kf^
\ ■ TT , ' ' '»/«'■ the I tew.
pi. SS- cites 19 H. 6. 10, for hekne«r
without the
View whether there be fuch Vill in the fame County or not. Ibid.
15. In Wafle alleg'd in B. in feveral Places there, the liTue was Whe- But ift-f'ajle
ther B. is a Vill by itfelf or not j by this Iffue the VValle is not denied, ^- ''Jfc'''din
and when the Jury fay that they have mew'd every Pared, they fhall'l^l''jf'f"'''
they fhall not fay after, that No Wafle done, or that there is nofuch Parcel. as of them" the
one of the Parcels is. Br. VV^afte, pi. 10. cites 9 H. 6. 6$- per Cur. Jury had mt
the Fiew,
of that they may iird no Wafte done; per Dyer J. i Leon. 26;. pi. ■559. 20 Eliz. in C. B.
Anon.
(R) Judgment.
^72 View. Vill.
( R ) Judgment.
* ^'" ^l''^" ^' f^^ ^ "^ ^'^^ againji 5, 4 confefs'd the A^iou of the Demandant, and
dtesS^C— \-^ "-^^^ Sf^ demanded the View, and the Demandant recover'd 4 Parts
Jmi H-dnk of the 4, and the 5th iliall have the View by the Name of the 5th Part
and Hull ot the Land, and all the Land Ihail be put in View. Per Skrene, If m
iiid, that in Truth the $th be 'Tenant of the Whole, and he onfled of the 4 Parts by Exe-
rtddlt '^"J'°" f''^^.^ I^ejhall haveAJJtfe; lor he Ihall not be bound by Judgment
agaivfl 2, given againft Strangers, ol the Land ol which he himfelf is fole leifed ;
the one plead- ik Concordat 4 H. 6. 26. 14 H. 6. 5. But Judgment of the 4 Parts (hall
ed iv Bar, fjQi: J} ay fjgre, unlefs he ivtll take the in tire -Tenancy upon him. which Hank
Iw.?,;: ^"d Hull agreed. Br. View, pi. 46. cites * la H. 4. 19.
lietv; the Demandavt anfiuer'd to the Bar ; and that if the one makes Default, the Demandant fliall reco-
ver Scifin of the Land of the Moiety, and that if the 5th had taken upon himfelf the intire Tenancy
of ail, he fhould not have had the View of any Part ; for he has taken Notice. Br. View, pi. 46 cites
12 H. 4. 19.
For more of View in General, fee DilUiage^, 'STual, (B.2) (F) (I. 2)
and other Ptoper Titles.
(A) Vill.
S. P. Ad- I "T^Y Intendment of Law every Pariflj \s ^Y'dl, unlefs it be Ihewn to
'^tfmt' O ^he contrary. Co. Litt. 125. b. (f)
6 W. 5. Wilfon V. Lavvcs S P. And if it contains more Vills than one, the other Party muft
Ihew it. Lord Raym. Rep. 22 S, C.
As to /';7/j and Parifies, the Law originally took Notice of a Vill only becaufe the Divifion of a
County into Parifhes was ofEcclefiafticjl Diftrihution ; but now, by Proccfs of Time, that Diftinftion is
taken Notice of in Civil Affairs ; per Cur. 2 Mod. 258. Trin. 29 Car. 2. C. B. in Cafe of Addifon v.
Otway.
2 Tho' 2. Place nan^d pall be intended a Yill or Town, yet always
the Date of a Deed pall be intended to be a particular Place or Houfe ; and
therefore if an Obligation bears Date at Antwerp &c. it ihall be intended
to be fuch a Tavern in London, and not fuch a Place beyond Sea. Arg.
and granted per 3 Jull. Lat. 4. 5. in Ward's Cafe.
3. If a Place be nanid generally, that Place fhall be taken to be, and in-
tended a Vill. 2 Salk. 501. Mich. 10 \V. 3 B. R. Vinkefton v. Ebden.
4. Every Vill mtifl have a Confiable ; otherwife it is but a Hamlet ; Per
Holt Ch. J. 12 Mod. 180. in Cafe of the King v. Hewfon.
For more of Vill in general. See jfiltCgi, COlOn atlU COimtp,
and other Proper Titles.
* Villein.
573
* Villein.
' Of the
Words Vil-
lein and
Villeinage,
and the le-
(A) ByConnfame, ^^^^
ll6. a. b.
II7.b. I20.
n 7. D.
I. TB an Aaion braUffljt ;i2;ainfl a Feme, if fljC takes Baron pending a. b.—
1 the w ric, fljE Hjall iiot 1)C tecciij'D afteriuarnsi to conftfei Ijcrfdf „f5'i T"
tobeaji5ief. tismio. TpLif"
all I'binirs ciei-e /« Common ; and wiien they increas'd in Number Battles increased between them • and
to avoid Mirchicf, it was ordain d that none piouM kill nmther in Battle, but that thofe v;hom they van-
/jiiijh'A jhotild be their Fdleins, to ufe at liisPleafure, or to kill them. And afterwards Princes ordain d that
none P'ould kilt tliem, tho' he was his Villein. Br. Villeinage, pi. 6j. cites Britton, fol. 77.
j Br. Villeinage, pi. 55. cites S. C.
2. Jtt a Native Habendo, if a Witnefs con fefles himfelf to be a Vil- Br. Villein-
iein ot the Plaintiff, tIjl.Si fljUU blltll IjiUt an5 tljC JflllC Of IjI.C OdOD? fOC"-'^' ^f}'
ton.
As if the Plaintiff, as he ought, offers in his Count to -prove the Villeinage by the Conjins and Kindred of the
Defendant, and thereupon produces the Uncles of the Defendant, ii'ho upon Exsmination ccrfcfi themfehes
to be Villeins to the Demandant ; this ConfefSon being cntrcd of Record, dees fo bind, that albeit they
were free before, they, and the Heirs of their Bodies, aVc by this Confeffion Bond and Villeins
forever; for the Uncles came in by due Courfe of Law in itn Aclion depending in Court. Co. Litt.
J 22. b.
3. 3if a S^an confcfTcg Ijinifclf to be a aDilfcitt to anatljcr, bp tW ali R- viu.in-
;ci JfTiic bant afteviuarDis fljaU be BiWtm^ atin jOlew* n ti.i?'''x^\^^-
}, ^ S. p. cues
4. a3ut not rucb IMz a0 mere born bcfore> n l:). 4- 93 b* vnkinase.
5. 3!!t Aftion of Trefpafs, if tljC Defendant pleads Villeinage in the
pleaded againll him, ailtl Judgment be given upon it, tiji? nj3{i binJl
ijim anti W Ipeirsto fap tUe comcari? mtim ttjc CuGutiiiuaiicc ortljc
fungmciTt. II fi), 4- 93- 18 (£* 3- 32. (Jt fCE»n0 iti.aiintentJen tijat
-aritle 10 mane tbat \yc fijai! be aDilleui bpDcrccut.)
7. But ttjtgi Ifeail not biliD his other Jliue born before t\)Z €^rial, Illlj0
are not l^eirgi to l)im, bccaufe tljC}? ate @itrann;cr0 to tljc ^wCcial, raiQ
cannot Ijaue attaint* n l;»4- 96- 18 €» 3- 32- ai3.utt!tjiD»
8. It feems it igi intentieO that Title is made by Prelcription, bj)
Uyit\) tlje 3iCue fljall be alfo Ijis ©iUcinjj* ,
9. If a Man will acknowledge himfelt //; a Court of Record lo be a "This is m-
Villein, who was not a Villein before, fuch a one is a Villein in grofs. ^/'^^^d in
Lc\om feme AcUo»
1". S. 185. ''^,,„^/,,
aganfi him
that made fuch a Confeffion, or where he is brought into Court by Courfe of Law ; for if he con:es hi-
to the Gurt extrajudicially, and not by any due Courfe of Lav/, fuch Confcflion is without VVarr.int <>f
Law, and binds not the Party, becaufe the Court had no Warrant to rake it. But if a PrR:;Ipe fe
brought againft one, he may confeft himfelf Villein to a Strargcr, ard that he holds the Lands iti Vil-
leinage of Ilim; and this <ha!l bind him Jndifi-\ tiiat Cafe the IX-rnv.id.ui; reply, th.i: he the Day
6 G of
S74-
Yiliein.
of his Writ purchas'd was a Freeman, and thereupon Iflui is t.ikea, and he is tried t^ be free, yet he jh atl
remain yniein to the Stranger, in Refpett of his Confcfiion. Co. Litt. i 22 b. (p)
(A. 2) Villein [by Conuiance] How.
* Br. vii- I. T riaciiwge cannot be confe©'!! in Court by Attorney, but in
■Tl\x.t' ^V prapcf l^iTfon. 4^ ^. 3- s. b* * ::i€,2- lo. t Centra -h
£. c C« 3- 2- b+
t Br. Vil-
leinage, pi. 9 cires S. C. that it W3<; admitted good, 2 Juflicesof the one. Bench and 2 of the other
being prefent; but Brook U-j^, Qiud niira.n I that he w.ii receiv'd by Attorney.
(A. 3) Villein. To ^jjljom.
I. TB an ^sxm\ br3ua;I)t an;amrt % %. if be confeffes himfeif to be a
\ Viilein to iuch a Bilhop, tho' the Bilhop was de^d at the Time,
I'ct tijc Conftiuon fljail binn ijiui i for be fljafl be a jDiUein to tOc
CijUrc!). 1 8 e* 3- 55-
Villein. The Po'Jjcr of the Lord over his Villein.
But he fliall I. r-p J3 (Q £ctt! UiaP pUt \0 aDlltCiU in tljC Stocks. 26 e* 3- 74-
TvT -i 13cr€)£tom
his Villem ; ^
for if he doc?, he fhall he inditired at the King's Suit ; but it fcems he ihall not have any Appeal of
Maihem againft his Lord ; for in fuch Action D.imtges only are recoverable; ib that after fuch Re-
covery the Lord may take them again from him. Lkt. S. 194.
2. In Replevin^ the Defendant a-vozvd bccaiifc the Plaintiff zvas his Vil-
hiit^ and held oj hnn fuch Land in Villeinage, and that the Ctijlom is that
they jhall fay fo much jer Marriage of his Dattghter without Licence, and lor
fuch a Sum &c. for marrying the Daughter of the Plaintiff without Li-
cence, he avow'd &c. And IlFue was taken that No fuch Cullom &c.
Qui£re i for a Lord may take all the Goods of his Villein, and need not to
■prefcribcto take a Fine. Er. Villeinage, pi. 8. cites 43 E. 3. 5.
Br. Labour- 3. Trefpafs of takirig his Servant, the Deiend^Lni jiijfified inafmiich as
ers, pi. 5. //7^ Servant ivas his Villein &c. And it was held no Plea unlefs he fays that
Br TrcT a^ /?c had need of a Man of his Art, by which he faid that he had need oj a
pl.'^-S. cntlShepherd, and the Servant was a Shepherd, and then a good Pleaj for the
S.C. S.P. Statute is Quod Domini prjeferantur in Viileinis fuis. Br. ViJIeinage,pl.
Ibid. 401. ,^ j^it-es 27 H. 6. 2. Hcydon v. Pallon &: concordat Gafcoign in Tref-
TV' Pafs 3 H. 4. 13. Quod nota.
(C) Villein.
Villein. 975
(C) Villein. JflM Things accpired by the Vtlk'ra the
Lord Jljall have.
I. T if a Dillcin recovers a Debt atjaiiifl 1110, aiiti before Grccution 31
i purcljnfc tl)c (^anor to luljicfj $ c* anQ mal^c a ifeoffiiicnt, it
fecnijj rijat tljc t>i\\m fljall not ijaijc erectttioii againff ine j for it
Xzzxm tljat tijc Debt U3a0 cttnict Dp tljc patcljafc ioitijout Claim, foe
110 Claim coulQ );iz^ tlji0 m Ijim, if tljc JuDsment DaD been agairm a
^traniTcr* Contra 1 2 1), 4. execution 28.
2. '^TijC LOr50 fijall ijaVlC tlJuc of which the Villein was in Pofleffion. When the
"■? QfT !" Villein ha':
_, . . , r J -, ,, . - anEftateot
any Thing certain, tli<e Lord fliall have it. Co, Litt. n-. a.
3. 30 if a Kent be grantcn to a ^iWziw, tijc loris fijal! Ijatic it, for if the vii.
tiji^ is uat a Cijofc lu action, but m i3)aiTeiTtan» 22 air* 3 7* ^T- " ^^'S"^
■ or It, the
Lord fhall have it. Br. Villeinage, pi. 57. cites no Book, but it ITiould be 22 AflT;;. as here. S. P.
And lo oi Common certain, Efioiers certain, and fuch like. Co. Litt. 117. a.
4. 'But t!)c Lort! fijni! net Ijaljcchofes in Aaion, bccaufe 5)e cannot ^r vn-
feiietljCm. Z-zM.^l- leinage, pi.
5. m if an Obligation be mat>e to a aDillcin, tijc lori! fljall not Ijaue l^ok^'bu"":
it 22 '^ff ^ 7 ♦ r I ') h
*6. %o if a Covenant bc iiiatic to a ©iHcin, tfjc lorn iT;a!l not Ijaijc " ait. 57^
it 22!air. 37* "?'';'"k —
And Br.
Chofe en Action, S. P. pi. S. cites 22 Aff. 3;. Co. Litt. 11 ;. a. S. P. becaufe thej lie in Privity,
and cannot be transfcrr'd to others.
7- 'Slje laUl ijS tIjC fame of a Warranty. 22 M. 37* If a FMin
punhaj'es
8. ^ Frank Feme feifed of Land married a Villein and had IJue^ and then
died, the Ifjue efitrcd, the Lord entred upon him before any Feoffment,
and after the Ilfue iufeoffed one whofe Eftate the Tenant had ; quod nota.
And therefore the Entry of the Lord is good if he be Villein. Br. Re-
pleader, pi. 21. cites 22 H. 6. 19.
(D.) //'hap
576
Villein.
(D) ff'hat Things Purchafed or Acquired by the
Villein the Lord fhall have. In Prejudice of a third
Perfo?7.
Br Vil- I. T Jf a Villein and another Piychafe, tljC JL0£5 fljall IjalJC H ^OlCtP*
leinage, pi. J^ 48 (£»3»I7*
II cites .— . r ^ ;
48 E. 3. 16. S. C,
Br. Villein- 2. "^yf ff Baron and Feme, the Baron being a Villein, purchafe joint-
cftt's to e'^ ^y ^"""?^ ^he Covertare, tfjC lOCD Ajtlil HOt fjaHe tl)i0 LnitH aftEC tljC
waccoidinglDeatDoftljcO^aron, t&o' l}c feifeD ittninngtljelifcoftljeaDtUem,
]y , for if" for t|)crc ate no ^oicttcis bctiucen CBaron ano Jfeme, fo ti)at tfje 053=
the Baron i-qh couin iiot fjaiic Datt'D tlje iFeme of anp Ipatt bp aitenatioiu 40
tlic Feme fhould have a Cui in Vita of the whole.
S.P And 3. 31faaDllMn ijad a common Sans Number, tIjC lOtU fljall tlOt
the fame jj^^jj, jf^ jjccaisfc tljcn \}t xM^ furcljaup tljc lano, ann fo preiuuice
ctZylLr-tijt'Wmttmmiu 'Dmt& u iptoKim,^-
t.ihi grant-
ed to a Villein, and fuch like Inheritances. Co. Litt. 117. a.
Br. Villein- 4, Jf a Villein within Aee be in Ward b)) ECafOlt Of latttl pCfCeilll^
age, pi. 59- ttitoliim, tljc icitj Of tljc mMn cannot ouft tlje ^©uatoian ann
"latthe Meat Di0 eilate, fortijcI^itlcoftDe ©uarDiau ijs eioer. Contta
Lord may 40 M* 7- l^Cl' 13CtfC|?>
enter and
ouft the Guardian ; Quod non negatur.
'"^'^-^'^^ 5. Jf il Feme Covert feifed of Land, confefs herfelf CD be a Kief of
1 ^^J-l'^\ ]' s- pet tW flJiili not prcjuUicc tijc ODaron nutinff tDe Cotiettute,
^-^^'^^ 18 an; 10.
6. If a Villein purchafes and caufes an Eftarc to be made to certain
Feoffees to his Ufe, or to him and others to his Ufa, the Lord may enter
as if the Villein alone had took the Eitate. Br. Villeinage, pi. 48. cites
the Statute of 19 H. 7. cap, 15.
(E) villein. By (whaf Means the Lord Ihall have the
Things purchas'd.
Br Villein- I- A Spe^i'^1 Seifurc Of <J?OOt!0 \$ fUffidCnt* n l)> 4. 2.
age, pi. 15. l\ 2. S)0 it rCCm0 a general Seifure \^ fuffincnt. ClUaete tUljat
cites 1 1 H. ijs tntenBeo bp general ^eiftite, talietljcc it be not Seifure of l^att in
that much ^'^'"^ ^^ ^^-"^ ^^J*^*^* Contta 1 1 I). 4- 2.
as to the General Scifin, and that Rolfe imparl'd to it; and fo Brook makes a Quire ifSeifing of Part of
the Good's in the Name of the whole, lliall be good ; As upon a Livery of Seifin of one Pan, in Name
of the whole in one and the fame County ; and lays it lecms that it is.
3. A
Villein. 577
3. A Claim only, of the Goods of the Villein, is not fufficient in Law,
but he miifi feife fome Part in the Name of all the Re/idae^ or the Goods
muft be within the View of the Lord, for the Claim and his View amount
to a Seifiire^ as the Claim of a Ward being prefent by Word is a fufficient
Seifure, albeit the Guardian lays no Hands on him. And fo note a Diver-
lity between a Claim of Lands or Tenements, and Goods. Co, Litt.
118. b.
4. In an Aftion of 'frefpafs or Detinue brought by the Villein, a Re-
kafe made to the Defendant by the Lord is a good Bar, for that amounts to
a Seifure and Grant. Co. Litt. ii8. b.
(F) Villein. y4t what Time the Lord may have th^
Purchafe of his Villein, by Claim or otherijoife.
I. npipec lOVD cannot fCt'fC tIjC (©0050 of tIjC IDlilCin after the Death
X o^ the Villein. 30 (£♦ 3. 22. ll. <3Qm(ttelI.
2. Jf tijC Villein makes his Executor, and dies, tljC LOCU CiinttOt S. P. Co.
fcife tljem in i\)t ri)anti0 of dje Creditor* * 3 13* 4- 1 6. Lut . 1 s b.
■ Br. Vil-
leinage, pi. 14. cites S. C. Contia if Seifer by Parol be made of the Goods or Claim of the Villein •
but Brook fays QuEre of the Claim.' Ibid. pi. 50. cites S. C. that it was agreed that if the Villein
dies before the Lord feifes the Goods, the Lord fliall not have them, bat the Executors fhall have
them. Quod nota. But if the Lord claims the Villein in the Life ot the Villein, and by Parol feifes
all his Goods, this fuftices, tho' he did not feife them in Faft ; Quod nota, by which the other faid
that the Lord did not claim, Prout &c. and fo to IlTuc. Br. Villein, pi. 75. if the Villein makes
Executor, and dies before the Lord feifes the Goods, the Executor fliall have them, and not the Lord
cites 47 E. 9. 23.
3. Uf tfjC Villein of the King purchafcs Land, and aliens before Ssi- S. P. And
fure, pet tljC Mm map ftife it* 9 P*^- 21- ifOC Nullum Tempus^.'f^h^Vil-
occurr^t Regi. Utt, 40. S^^W
fells them
before the King feifes then?, yet the King may feize thefe Goods in whofe Hands foever they be, becautc
Nu.'ltim tcmpHS occurrit Regi. Litt. S. 178.
4. In A//ife again fl 2, the one fiid that he was the Villein ofW. and held S P. Ibid.
the Land of him in Villeinage^ Judgment of the Writ i and the other plead- ?'■ 5 5^ cites
ed to the AJftfe. The Plaintiff replied that the Day of the Writ pure has' d^ b'J bIJ^.^' ~
he who pleaded Villeinage was 'Tenant of the Franktenement, and pending the pi. 285. cites
Writ infeoff'd the other nam'd in the Writ, abfque hoc that the Lord entered !>■ C.
before any Debate arofe^ and demanded Judgment if the Writ Ihould
abate ; and a good Plea i for the Affife was awarded. Quod nota. Br.
Villeinage, pi. 27. cites 24 E. 3. 64.
5. The Aif of the Law, as Defcent or Efcheat, may as well prevent If a Free-
the Lord of his Entry, as the A£t of the Party by Alienation. Co. Litt. '""" '•'"'^
^,0 h /ir«^ and
^^°- "• afterwards
ty CoTij effort
hecomes Bonct, and furchafes Lands in Fee., and hefore the Lord enters he dies feifed, and the Land dcfcends
to his Iffue, which is free, in this Cafe the Lord pall not enter upon the Heir ; and yet this is a Defcent,
and no Alienation. Co Litt. 1 1 8. b
So if the Land fo purchas'dhy the Villein, ef cheats to the Lord of the Fee hefore any Entry made hj the
Lord of the Villein. Co. Litt. 1 18. b.
6. If a Villein is diffeifed hefore the Lord enters., the Lord may enter into
the Land in the Name of the Villein., and thereby gain the Inheritance of
the Land : But ;y there be a Defcent caft, {o as the Entrv of the Villein
7 H ' be
?7B"
Villein.
be taken away, then the Villein muji ncontinae the EJtate of the Land by
Judgment and Execution, beibie the Lord of the Villein can enter. Co.
Litt. 1 1 8. b.
7. If a Nief bath Goods, ajid takes Baron, by this Gift in Law by
Force of the iMarriage the Lord is barr'd. Co. Litt. iiS. b.
Stud
. lib. 2.
cap.
Co.
iS.
Litt.
I1-.
a. S P,
124.
S P
a (q)
ts.
P. Br.
(G) Villein, h ^johat Capacity and Nature ths Lord
JJoall havs tbojc Things.
*S.P. Br. I. T^K. % Stun* 91- tint! 33 % 8. ©Cft. 194. CljC Villein of an
Villeinage, _|_^ * ExecutoF pQrchai'es Land, the Executor enters, \)t fljall HOt
?]• 4° ^'" Jja^e It In Siuue propria, but to tlje afe of t!je CsRatac, ano it fljall
Ii2affet0. Com. CD-rp. Dalt. 292. Conu 0i3arUlp235. iftljevii-
lein of the King which he has in Right of his Crown, purchafes Land,
and the King enters, fjC Iljali \)dSiZ nilH ijOlO It 111 W 'BOtip l^OUtiCli,
^Inn lij) xW%m% nnu 33 1)» §• ©ect. 194 3if a t Biihop who has a
Villein in Right oi his Church, enters into the Land purchased by his
Villein, ije ajainiolQ it in lAiuljt of ijt0 Ctjiirc!), bccaufs Ije Ijan tijc
Viiieinsge, x>\\\m\ t\\ cAMti DiOtt. SiiQ 'jp tiji0 33 1). 8. tljc lati3 is tije fame
p\- '°- "j^^' oftije Villein of a if Purfon, H'ljui) ijc Ijas lute (Ecclefisi "But itijj
Stud iif 2. otfjertuife if tijcp IjaHe tlje ©ilkin lute l3)topcio. g)0 it is of ©ooDsi.
cap. 1 8. 3i^«4 1 6.
S P. Co.
Litt. 124. b This PerquiHie fhall ^oro him and his Succeflbts. Co. Litt. 117.3.
4: S. P. Br Vilkinage, pi 70. cites D )ft & Stu^i. lib. 2. cap 18. So\i a. rdlein comes to one as
Executor to a Bip.'p, Pirrfoii &c /n Jure Ecapjl£, atid ke purchafes Lavd, tlie Executor enters, he fhal] not
have it in Jure Pr'oprio, bat as Executor, and fhall be AlTets ; and it" the Bifhop or the Parfon enters,
he fTiall not have it but in Juic Ecclefiie, becaufe they have not the Villein in Jure Proprio, but in
Auter Droit. Contra it" they had had the Villein in Jure Proprio. Br. Ville'inage, pi. 46. cites
52 H. 8.
Br. Villein- 2. 21 !l5, 6. 37. PCC PaffOtt, LefTcc at Will Of 3 f^J^aUOt tO MjiCf)
^2^' Pi- r • t!3ere arc aDiHcuis regaroant, nuip enter into lanD.ss purclias'n bp tijs
Za fays m\zm, ann fljafi ijane tlie lanQ in w mix l\mu OSut ^clijetton
jQuod Don <g)er)eant (am tijat 13c (IjaU enter ui tije EiuDt of tlje leffor,
nej^atur. — ■
S. P. Co. Littt. 124.3. b In Trefpafsfor claiminrr the Plaintiff as his Villein, the Defendant fays
that the Plaintiff is Villein regardant to the Manor of D of v/hich V/. B. was feifed in Fee &c. and
W. B. lea.^'d to him the Manor at Will; Judgment if he fhall be anfwer'd. And by the befl Opinioa
Tenant at Will fhall have the Plea, but the Lcffor not, Per Brian, till the Leafe be determined ; and
len.mt at IViil fliall have the Common appendant, and all Profits. And therefore it feems that hejhitii
have the Perqiiifite of a Villein in Fee ; for this is Profit. Quzre. Br. Villeinage, pi. 25. cites 15
jindm Affifc it was faid that Tsraior for Tears, or for Life, oi" Tenant in Tail of the Seigniory, JW/
lave Periftiifie of a FiUein who purchas'd in Fee, to them and to the Heirs of the Lord, notwithftanding
the particular Eftate, becaufe it is a Perquifite. Br. Villeinage, pi. 47. cites 5 E 4. 61. 6r. Eftatcs,
pi. 42. cites S.C.^ S. P Co. Litt. 124. a. b. S. P. as to the Tenant for Life or Years ; for they
have the Manor in Jure proprio pro tempoi-e Br. Villeinage, pi. 70. cites DoCt & Stud. lib. 2. cap.
18. But Br. Villeinage, pi. 41. cites P. 18 E. 5. That if the Lord had nothing in the Seii(7:ary but ir.
Jure Uxoris or in Jure Ecclefi£., and he enters into a Perquifite of the Villein, he fhall be feifed only in
Jure Uxoris or in Jure Ecclefia:. Qiiod nota. Br. Villeinage, pi. 41. cites 5 E. 4. 61.
S P Co. 3. :jf Baron feifed of a Villein in Right of his V^^ife, mttX^ I'ntO tlje
Litt. 124. b }0nrct)jjfe of tt)e ©iUcin, Ije fljall be feifea of it in JBd^^t of ttje Jfeme,
Pu^chaVrbc ann not in W 0U3n Eigijt. 1 8 e, 3- 29 !)♦ atJuiitteo*
after IfTuc
had, then the Baron fhall have the Perquifite to him and his Heirs, becaufe by the having IfTue he is
intitled to be Tenant by the Cui tely in his own Rijht.
(H) What
ViJlein. 579
( H ) Uljat Ejlatc the Lord fhall have in them.
!• T 3iC 39- 3if tljE Villein purchafes Land in Fee or Fee-tail, ti^E
i J iLflrtJ map enter intotljelant!, auQ ouft t!je©illem anu W
lotm for £lirr»
2. osut tijc com* i©alfingl)am, 555- 557- i^ntibioiijS, if tlje ©u^inthisCafc
inn pnrcDafe^ Eitace-Taii, mijctljer tlje JLortJ fljall ijaiie a ifee Detcc= '^^. ^""^j,
nunablc, ot onlu far Life of tijc iDilicm. XHit tljcre it igi put bj) tljcSX""
one l^artp, tljat if tlje lorn, after ijc ijaiS enter'D, uiitl manuuiit tlje termwubu
aDiIlcm, anD after tljca^illein Ijajjjffue aiiD rsiesf, tljc Slffuc fljall ouft«?^"'*^ ^ly-
tije lorn, lout Dr. f €)tuQ. 9°- li» 9 u tlje LoiO fljall IjaDe ttje in= "'^;!'„ J',.
tire propertp of tlje ©0000, anB tlje Uiljole lann anD €ftatc lot J,t Hei/of
life, antJ of tlje €flfate^CaiI ana jFee^8)imple ttljiclj tlje ©iJlein IjaD. w/ Bcdy, and
3no * If tije Ltflec for lite or ^ears, or e,rrct{tord of tijc i:)illeln,tj?e abroime
enter into tlje lanns purcljafen bp tije aDilIem in fee, tljej? fljatl ljauef'":^™?if„
jTee, liJerhm Si ©ecr. 94- intheDo-
nor. Co.
Litt. 117.3. * S. P. Co. Litt 117. a.
(I) /;/ what Nature.
I. r^a. $ ^ttin. 9°- 'Srije lom njall not ijaijc tlje Lanu purcljnfciJ
JL/ in lieu of tlje BiHem, becauie Ije lja0 tlje a^illein conttnunllp i
but iJC Hjall Ijatie it as a Profic coming by means of the Villein. \ph--
iun's €ca. 94- ^1)2 lorn fljall ijaue tlje lano as a perciuifite, bp
reafon of anotber 'ebljinn;* Com. 292. Cbe Dtilein id faio to be ttjt
€m-ic t|)at t&e lorn fljali Ijalje tlje LanU purcbafeu*
(K) Villein. What Acl: will be 3.v\ E/rfrnnch'tfement.
Ati m Law.
1. T JF mp Niet marries a Freeman, bj) tljid (bC 10 ftCei fOt alOrO Where a
J cannot bn^e -©refpafs for tafemg b^r from Ijun at anp 'Cime aP ^'^^ ^y {■'-
m tlje carriage. 46 €. 3- 6. 2::,;tlt
riej a Free-
man, and the Lord males a Feoffment of the Manor to -which his Nief was Ree;ardant, and the Baron dies,
the Fcutfee may take her within the Manor, as it feems there. But it is faid there, that he cannot take
her out of the Manor, unlefs by Warranty of the Feotfor. And fo it fcems that by the Marriage and
Licence fte is made in Grofs. Qusere. Br. Villenagc, pi. 23. cites 29 Afl'. 54.
2. jf a Jl^ief marries a jfreeman, tljis Ibail not be an}) Cnfran- co Litt.155.
rijifement after the Death ot the Baron. 21 M, 25. atJUlItteO* S'hc^PHvS'''
Ihall be only during the Coverture, unlefs the Lord him.felf marries his Nief, and then feme hold tUc
fhe fliall be free for ever. Ibid. 1 37- b. S.P.
3: Jf
580 Yiiiein.
Br. Villen- 3 3if 111^ Villein goes into ancient Demefne, and ftays there by a
age, pi. 29. Year and a Day, it fljall U flU (!5nftanc!jlfCmcnt. 39 €* 3- 6-
cites c>. C —
S. P. But the Loid may feife him in the ancient Demefne within the Year and Day ; and if after the
Year and Day the Villein fti-ays out bf the ancient Demefne, the Lord may feife him out of it within
the Year and the Day. Br..ViiIenage, pi. 68. cites 12 E. i.
The Reafon of this was in refpeB of the Service he did to the King in Plowing and Tillage of the Demefncs,
i:.nd other Litbcurs of Husbandry, for the King's Benefit. And herewith agree old Books, which fay, that
this Immunity was fometime granted by common Confcnt to the King for his Profit, and for the Help or
Eafe of his Villeins. Co, Litt. 137. b.
4. CljeLaU) Of Scotland agreciStiiitijtlji^* ®!*.eneEcg(am^ajeI!a=
tern, 36. t)» mtt in-
Br. ViUen- ^ -jgjjj- jj Vjllein Uia? UE Regardant to a Manor tDljfCl) 10 Ancient
cft« S C ■ Demelne. 39 C* 3- 6.
that this is no Infranchifemcnt, becaufe their Lord is ahvays in Poffeffion.
6. ./^ffife againlt a Fe7ne So/e, who pleaded that (Ije is Vilkin to J. N. and
held oi him in Villeinage, Judgment ot the Writ. The Plaifttiff replied
that Jhe efpoiifed 1'. C. a Frccma/iy pending the 7f rit &c. and therefore
awarded good. Br. Briel^ pi. 451. cites 18 AfT. 10.
7. It Tenant in Tail of a Alanor, to which a Vtlkin is Regardant^ difcufj-
tinties the Ma/ior^ and has Ilibe and dies, and tne Difcontiniiee injeoffs the
Villein of the Manor cum Pertinentiis, the Iffhe in Tail cannot enter, but
is put to his Formedon ; and if he brings Formedon and recovers the Manor^
he may feife the Villein, and the Recovery ot the Manor is no Manu-
millioni ior he cannot leife the Villein before that he has recover'd the
Manor. Br. Villenage, pi. 58. cites 24 E. 3. and Fitzh. Tit. Difcon-
tinuancc, 16.
* Br. Vil- S. If a V illein gets Seiftn and Unity of Foffejfton of the Manor .^ to which
leinage, pi. he was Regardant, this is an Enfranchifement ; and ii he be once frank,
42. cites I ; he cannot by common Intendment, become Villein after; ior Enfran-
£.4.2.8.1. chifiment for an Hour^ by lawful Title ^ willfervejor ever ^ and this feems
when it is by Grant of one that has Authority to infranchife him ; but if it
is by Tenant for Lite, * in Tail, or for Years of a Seigniory, it will not
ferve but only during their Interells. Br. Villenage, pi. 47. cites 33 H.
6. 13.
But after the 9- Two Coparceners., and the one inter-marries with the Villein., this
Deceafe of Villein and his F'eme Ihall not have Nuper obiit againlt the other Copar-
the Husband cener ; for the Villein is not inlranchifed by this Intor-marriage, and
me inau. theretbre is not able ro bring the Aclion againlt the other Parcener. Br.
i°6. b. Villenage, pl. 64. cites New Nat. Brev. lol. 223.
(L) Villein. fFJjat AB of the Lord fliall be an En-
franchifement in Law.
If the Lord i. T jf the Lord inteoffs his Villein of Land by Deed, tfjijSf I'lEJ flrt Clfr
7^ZLto 1 ftancUifeumm 24 e. 3. 32* amiiittcD*
£S^ of 2- ^0 it ajall tje, tljo' tljc Jfeaffment be without Deed. Contra *
any Lands 24 (£♦ 3* 32* JE)CC J©ill)P»
or Tene-
ments by Deed, or without Deed, in Fee-Simple, Fee-Tail, or for Term of Life or Years, and deliverj to
him Seijin, this is an Infranchifemenr. Litt. S. 206.
* Br. Villeinage, pl. 52. cites S. C. Per Wilby, that if the Lord infeoffs the Villein without Deed,
it is no Infranchifemenr. But fays Qusre inde ; for Littleton in his Tenure of Villeinage is clearly
contrary.
3. If
Villein. 5* 8 1
3. If the Lord makes to his Vilkin an Obltgatkn of a certain Sum of FoJ" when
Money, or grants to him by his Deed an Annuity^ or lets to him ^y^^^D^^^^^^^]j[°J^\^Q
Lands or 'Tenements for ferin of Tears, the Villein is infranchifed. Litt. viUcin to
S. 205. have an Ac-
tion againft
him, as for Debt or Annuity &c or gives to the Villein a certain or fix'd Eflate in Lands, Tenements,
or Hereditametits, as a Leafe for Years, this artionnts t» an hfraJicJ.ifement, not only during the Years,
but /or ever-; and albeit the Lenfe be made to the Villein viM:<iut Deed, yet it is an Infranchifemenr for
ever. Co. Lite. 15;. b. (u)
4. If the Lord makes to his Villein a Leafe of Land or Tenements, to
hold at Wtll of the Lord, by Deed or without, this is no Infranchifement,
becaufe he hath no Manner of Certainty or Surety of his Eftate, but the
Lord may oult him when he will. Litt. S. 207.
5. If Lord and Villein are, and a Man leafes to the Lord for Life, and
after grants the Reverjion to the Villein, and the Lord Tenant for Life at-
torns, this is no Intranchifement ; for he does not give any thing to the
Villein, and he cannot other wife come to the Reverlion than by his
proper Attornment. Br. Villeinage, pi. 75. cites 11 H. 7. 13.
(M) Vjllsin. frbat will bs an E.njramh'ifcmait of a
Villein.
I. Ti^ a Writ be brOUgijt againft Lord and Villein of Land purchas'd Br. Villem-
1 by the Villein, ailD m CUtta tt)CP UOllClj tit t\M ^iHUieC, A. age, pi. ^
Lord Simul cum prsedifto D. Villano luo ab omni Beneficio libertatis'-"'"^ ^- ^
prxclufb vocantur ad VVarrantum $C» tIjiSi 10 ItOt 311 (!i;nfranCJjire=
nient ; but if fie futfecis tlje =Dillcin to vouch generally. It taaulD be
otbertoifc. 33 Ip. 6. i. b»
2. 3jn France (Uiijece ebet? lam map mafee Em'tjljtd) if t!)e Lord of
the Villein makes him a Knight, tl)l0 IS a ^^anumiffiOn i bUt OtDCC'-
iDlfe it i0 If another Lord makes him a Knight. St^aftCv ^CiDeU JLlbtO
dtlegofiponour 318. b.
3. 3!u tije laitjg of tl)e Conquetot, (publiflj'ti at leaa linnet W
JF3aiTie) Si quis Servumfuum liberum velit facere, tradac Vicecomiti per
manum Dexcram in pleno Comitaru &quiecum ilium clamare debet de
Jugo Servitacis fus per ManumilTionem &ollendat ei liberas Portas, &
vias & tradat illi Libera arma, fcilicet, Lanceam & Gladium, deinde
Liber Homo efficitur. g)£!Qen'fli -^Itle^ Of fpOltaur 327.
4. It the Zor^ gives to the Villein Cloaths or Money for his Expences,
this is no Infranchifement. Contra if he leafes Land to him for Tears ;
for this is Intereft in the Land. But Sufferance or Agreement that the Vil-
lein fbal I take of a Stranger, is no Infranchifement. Br. Villeinage, pi.
75. cites II H. 7. 13.
5. If a Lord manumits his Villein emu tota Sequela fua, this is no Manu-
miffion for the Sons and Daughters born before the Manumillion clearly,
becaufe they are Villeins in Pofleffion, and fo ought to have fpecial
Words for them, notwithllanding thefe Words Procreata &c Procrean-
da. Br. Villeinage, pi. 26. cites 15 H. 7. 14. Per Frowike, Vavifor,
and Hasket.
6. Doubtlefs, by the ancient Common Law, a Reftdence for a Tear and
a Day within any free Burough, made the Party free of that Burough ;
7 i and
^82
Villein.
and tho' he was a Villein before, he thence forward became a Freeman.
II Mod. 189. inCale of the Queen v. the Mayor &c. of Hereford.
(N) Bringing of Adions. JFhat Aoilon brought by the
Lord will enfranchife.
Br Villein- 1. Tif a Villein recovers Damages in Trefpafs, for claiming him [as]
age, pi. 44- J[ his Villein, if the Lord brings Writ of Error, tW IS HOt flit (£n=
cues s^c.-- francljiremcnt. @o if !)c M\m Attaint 3 for tm 10 ta ncfeat tljc
Litt. i2-'. b. Jungmcnt. 18 (E* 4- 6. b»
2. If .2 F/7/t7a recovers Debt or Damages, ,^W ^tw ^^^ .Bo-/)' of the Defen-
dant in Execution^ and after he who ts m Execution pttrchtzfes the Manor
to which the Villein is regardant, the Defendant upon this Matter may
have Audita ^iierela^ and Ihall be difcharg'd out of Execution ; and the
Suit of the Auidita Querela is no Infranchifementj as it feems there. Br.
Villeinage, pi. 6i. cites 41 E. 3. and Fitzh. Tit. Audita Querela 18.
3. If 1 am intitled to recover Daraages for Land, and the Tenant infeoff's
my Villein and another, the Damages Ihall be loll for the Moiety ; and
therefore I ought to enter into the one Moiety, and Ihall have Afhion
of the other i and if he infeotfs the Villein alone, the Damages fliall be
fofl ; for if the Lord impleads his Villein, he is manumitted, Br.
Damages, pi. 176. cites 48 E. 3, 16. 17.
The princi- 4. If the Lord fites againft his Villein a Precipe quod reddat, if he re-
pal Reafon covers, or is Nonfuit after Appearance, this is a Manumiffion j for that he
hereof is, might lawfully have enter'd into the Land without Suit. Litt.S. 208.
for that by ^ ^
this Stilt he
evabks the Villein to he a Perfon able to render him the Land by Coiirfe of Law, whereas the Lord without any
fuch Suit might have enter'd. Co. Litt. 138 a.
5. So if hefue ag:iin(l his Villein an Aflion of Debt, or Account, or o^
Covenant, or of Trefpafs, or of fuch like, that is an Infranchifement ;
for tliat he might imprifon the Villein, and take his Goods without fuch
Suit. Litt.S. 208.
6. But if the Lord fue his Villein by Appeal of Felony, ischere he was
indiffed of the fame before, this Ihall not infranchife the Villein, tho" the
Matter ot' Appeal be found againfl the Lord ; for that the Lord could not
have the Villein to be hang'd without fuch Suit. Litt. S. 208.
For if the 7. But if the Villein were not indiBed of the fame Felony before the Ap-
Villeinbe ^g^/ fued againft him, and afterwards is acquitted of this Felony, fo as he
di*aed of"it '^^^^'^^^ Damages againfi his Lord j or the falfe Appeal, then the Villein is
then upon * intranchis'd, becaufe of the Judgment of Damages to be given unto him
the Acquit- againft his Lord. Litt. S. 208.
tal of the
Villein, the Villein fhall recover Damages againft the Lord by the Statute of Weftm. z. Quia multi per
malitiam &c. and confequently fhall be enfranchis'd ; but if the Villein be formerly indifted of the
Felony, then tho' the Villein be acquitted upon the Appeal, he Ihall recover no Damages againft the
Lord; for whenfoever the Lord giveth to the Villein a jii/l Caiife of Aciion, he is infr-mchis'd ; and there-
fore if the Lord kills his Villein, his Son and Heir pall have an jdppeal, and thereby his Heir ihall be
infranchifed, becaufe the Ofienceof the Lord gave to the Hsir a juft Caufe of Attion againft the Lord.
Co. Litt. 139. b.
(N. 2) Jfhat
Villein. 583
( N. a ) fnM \_udBmi] aga'ufl the Lord by the
Villein [will be an Infranchilement.]
[i] 2. Tjf a ^\M\\ tecol3cr0 Damaged m '^refpiifg apinfi tljcsr. vii-
X lorn foe claiminn; l)im a0 Ijiss ©lilcni, anQ tljc Lord brings i'^'"^?^' p'-
Error auO tljC Villein brings Debt upon the Jadgmenc, tljC lOCD lUa^ l^s*^ p"co
anriBcr to it ; ano it fljaii not be an Cnftancfjircmcnt, becaitfe it ac- Lite, iz-.b.
pcnugi upon tijc aungmcnt, ano fijall be rcnetfeo luitD it* 18 e* 4. 6.
b. Curia.
2. If Lord is indebted to a Freeman, who makes the Vtlkin his "Exe- He /hall not
ciitor and dies, the Villein flrall have A£lion oi Debt againft his Lord, ^'^-r'^I'^T"
as Executor. For it is to the Ufe of the Tellator and not to his own ^he Ufer of
Ufe, and the Lord may take the Villeinage by Prote^ftation, and then the this Aaion,
Pleading fhal I not infranchife the Villein. Br. Villenage, pi. 31. cites ''^caufe he
Old Tenures, fol. 2. 1^^;!\" by
' a Gift it!
Law to the Ufe of the Tejlator, and not to his own Ufe. Co. Litt. 124. a.
3. The Lord upon a Writ of Covenant hroiight hy the Villein levies a Fine
to his Villein of Land ivhich is ancient Demefne ; the Lord of whom the
Land is holden reverfes the Fine in a Writ of Deceit ; albeit the Autho-
rity and JurifdiSlion of the Court is difproved, and that the Lord of
the Villem fliall be rellored to the Land given by the Finej yet it is an
Infranchifenienr, for that he anfwered to the Writ of Covenant and the
Fine was voidable and not void. And therefore being once an Enfran-
chifeviicnt it cannot be avoided by the reverjing of the Fine. Co. Litt.
138. b.
(O) villein. Enfranchifement. What ylct judicial will
make it.
I. TB action brougljt bp tlje aDiUein againff tljcLotU, iftljeLord
X emparies It \% au Cnfrancljifemcut. 22 (£, 4. 36.
2. Jf tlje Villein of the Demandant be vouch'd, if the Demandant
does no: counterplead it, ti}i0 tuiUbe ail Cnfrancljlfcmcnt, becaufe tt)e
pcoccfgi fljall be mane bettuccu tlje Demaitnant ano tije i^oucijee,
aim tlje eiToisn iieis asaiiift Oim* 48 e* 3- 1?-
3. In Slction bp tlje a^illem againft tlje lorn, if tlje viikin em- Br. vn.
parles, and the Entry is by the Allent ol the Parties^ ttji0 fijail be an icinage, pi.
enfrancDifement* 9 Ih 6- 67. '• "^" ^•^•
4. OSUt OtljerUJifc it i^ if tljC Court gives an Imparlance. 9 Ip, 6.
67.
5. 3n an action bp tlje aDillein apinft tljc lorn, if tbc Lord makes Br. vii-
a full Defence before he makes a Proteftation ot the Villeinage, tl)i0 '^'"^F' P'-
tDiU be an Cnfraiidjircmcnt, tbo' Ijc mafees a proteftation after='' '"" *
snarnsSi fottbtis l^rotcftation 10 ^oin, iuijen i)e Ija^ anmittcn ijiui able.
14^.6. 18.
6. IM
5%
Yiilein.
6. 3X1 a JBCl't of Bieftp, if t!)C Plaintiff be by Attorney tI)E Deftn=
5ant fljall be cnfrancijifeo, for fje ougfjt to be in Pcrfon* 26 e* 3.
76.
In Precipe 7. Jtt flit aCtiOH Ij? tU m\m affjailtfi !)i0 lorn, if tfje Lord makes
quod reddat, Attorney againft the Plaintirt" beiore Ilibe tender'd, this fhall be an En-
ft'd th™e franchifement, becaUfC t)C OUgljt tO be Ul {JtOpet PeCfOH, 26 C 3. 76.
piaiPtifF is amnitten*
his Villein 8. Qsut if after ifTue tender'd upoii tfjc ©lllienage tf)e loru mafeejs
Tif Manor'" ^^^'^"^^?'f''P"'^^"^f^^^^"^^^»^^^^''^' ^l^J-'^ J^i Jtot 311 CnfrancDife-
of D judg- nient. 26 e» 3. 76.
ment if he
fhall be anfwer'd ; and the other faid that the Plaintiff had made Attornev againft him as againft a Free-
man. Sed non allocatur; but he may plead the Plea well. Br. Villeinage, pi. 50. cites 39 E.
3. 16.
9. If a Man be jjnnfitited in Nativo Hahendo, the ViJIein by this is not
infranchiled, but Contra of a Retrawt. Br. Villenage, pi. 66. cites the
Regiiter 87.
(P) Villein, ^^t tchat Time he may hcjeifed.
Pr. Vil- I. r-p ^ e lorn cannot fCife W aDillein in the Prefence of the King,
f^tc. JL -7 air. 49-
. As if the Villein be a Prieft of the King's Chapel, the Lord cannot feife him in the Kirg's Pre-
fence, for that is a Protcftion to him. Co. Litt. 1 37. b.
2. The Lord cannot take his Villein out of amther^s Service, without
fir& giving Notice of the Villeinage. Br. Villeinage, pi. 13. cites 50 E,
3. 21.
3. if a Villein be made a fecular Chaplain, yet his Lord may feife him
as his Villein, and feife his Goods &c. But it feems that if the Villein
enters into Religion, and is frcfejed, that the Lord may not take nor feife
him, becau/e he is dead in Law. Lice. S. 202.
(Q^) Villein infranchiled. [Bj] JJ^hat 'Judgment.
I. T Jf Villein brings Affife againft the Lord, who pleads Villenage in
X_ him, and it be found againft him, and Judgment thereupon, tt)ilS
fbaU mafee bim ftanU rmtins tbe Continuance of tbe Juiigment. 4°
C. 3*48*b. i8(£, 3, 32.
2. anU fo \)\$ Heir fljaU be frank bp \u 18 c. 3. 32*
3- 3!f a ©illein btinglS Action againft the Lord, who pleads Ville-
nage in him, anH tbljS ^ found againft him b}? ^ZlWi^ the younger
Ifl'ues Of tbe ©illein3 before born, Ihali have Advantage thereof 30 toell
a0bt0|)eit, fo ions as tljelungment continues! i foe tfte paintiff
\% ptibp to ita anti uiaj? babe attaint* Contta is e. 3- 32.
(R) Plead-
Villein. ^j-g^
(R) Pleadings SCc.
I. T N Aflife the Defendant [aid, that he was Villein ofJV. F. and held TihtSo in Affifc
jI^ Tenements of him in Villeinage^ Judgment of the Writ ; and the°^ Mort-
Writ was abated i quod nota. Br. Villeinage, pi. 32. cites 8 Aff 14. ^Zhidllt °
/aid that he
•was Villein of the Lcird of R. by which he took nothing by his Writ. And fee that he did not fay that hi
held of him in Villeinage. Br. Villeinage, pi. 33. cites 1 1 All 1 2.
2. Trefpafs of Goods taken. The Defendant y7f/?i/3''^ ^y Command of his
MaJieVy to whom the Plaintiff' is Villein, defon tort Demefne ; and this is
no Plea for the Plaintitt^ without anfwenng to the Villeinage. Br. De fon
tort &c. pi. 23. cites 22 E. 3. 98. But that contra it is Anno 49 E. 3.2.
Tit. Ilfue 6.
3. In Prsecipe quod reddat the Tenant Hiid, that the Demandant is
his Villein, regardant to his Manor of D. Judgment if he ihall be an-
fwer'd i and the other faid that the Tenant had made Attorney againji
him^ as againft a Freeman j & non allocatur. But he may plead the
Plea well, by which the Demandant laid that his Grandfather was Baf-
tard and Advent iff'; but Ihall not have both, by which he faid Ballard
only. Br. Villeinage, pi. 30. cites 39 E. 3. ^6.
4. In Scire Facias it was faid per Belknape, That Frank and Adventife
was a good Plea in ancient Time where Villeinage was pleaded i contra
at this Day. But per Thorp, It is a good Plea at this Day ; Quaere inde.
Br. Villeinage, pi. 5. cites 40 E. 3. 17.
5. In Prcecipe quod reddat the Tenant cannot fay that he is Villein to
J. D. and holds of him in VtUeiuage, J. D. not named.^ Judgment vf the
IVrit.^ by Attorney i for a Man cannot bind himfelf to be Villein, as this
Plea Ihall do, by Attorney i but Ihall have it in proper Perfon, and before
the View ; tor he has Notice before the View if his Perfon be Villein
or not. But he may fay after the View, that he holds in Villeinage &c.
for it is a fpecial Non-tenure, and he may hold in Villeinage, and his
Perfon frank i and this per Finchden. Br. Villenage, pi. 6. cites 41
H. 3. 16.
6. In AlTife of two Acres, the Defendant faid that he was Villein of
H. S. and held the Land of hiin m Villeinage^ Judgment of the W^ric,
Plaintiff ?r/)//6'i^ that I'enant of the Franktenement the Day of the Writ pur-
chafed, prilt ; & non allocatur ; lor it is not warranted by the Statute,
by which he laid that Frank and of Frank Ellate the Day ol" the Writ
purchafed, and tound lor the Defendant, but that the Lord did not med-
dle with this Land. And yet, by the Opinion of the whole Court, the
NV^rit Ihall abate, by which the Pluintift' was nonfuiced, and yet the
Lord was not feifed, nor made Claim. Br. Villeinage, pi. 40. cites 43
All: I.
7. In 'Trefpafs it was pleaded by the Defendant, that the Plaintiff is his
Villein^ fudgtnent if he pall be anfwer'd. And the Plaintiff y2z//^ that his
Grandfather was Ad-ventiff, and born at D. in another County ^ and was
frank^ and pleaded a Fine levied by one who was then Lord of the Ma-
nor, to which he is claim'd as Regardant, and the Anceftor of the De-
tendant, lb that he who is Adventiff cannot pafs^ and it was held that
thofe Matters are double j and after the lilue was taken, if the An-
ceftor of the Plaintiff was Adventiff" or Not. And there it is faid, that
it is a good Plea, where a Man is claim'' d as Villein.^ to fay that fuch a one
his Anccf.or was a Baftard., Judgment if he fhall be received to plead Vil-
iemage it him &c. Br. Villenage, pi, 7. cues 43 E. 3. 4.
7 K ■ In
5^6
Villein.
8. In ^refpafs the Defendant pleaded Villeinage in the Plaintiff'^ Judg-
ment if he Ihall be anfwer'd ; and the Plai?iti]f protejlando that he and
all his Blood are frank^ and for Plea that he is Bajiardi prill. Br. Vil-
leinage, pi. 19. cites 19 H. 6. II.
9. "in Trefpdfs of Chatties taken, tht Defendant pleaded Villeinage in the
Plaintiff and the Plaintilfy^/V^ that he is a Bajtard. Markham laid, To
this he Ihall not be received ; for Efpoufals took Effeft between J. and
1V5. at D. which continued all their Lives, within which Efpoufals the
Plaintiff was born and begotten; Judgment if heftall be received to fay
that he is a Battard. Newton laid. All may Hand with Truth ; lor ic
may be that the Father was beyond Sea by 7 Years, and he born in the
mean time, and then all your Plea is true, and yet he is a Ballard.
Ivlarkham laid. Then we fay over that he isMulier; & non allocatur,
without laying and not Ballard ; and pray'd that all be entered ; but
Mulier and not Ballard, was enter 'd only, and no more. Br. Vil-
leinage, pi. 20. cites 19 H. 6. 17.
10. Villein lliall be intended always in the Service of the Lord, except
fpecial Matter be lliewn to the contrary ; per Newton and feveral ; but
leveral to the contrary, and therefore Qusere. And per Portington, If
a Man beats my Villein who is not aflually in my Service, I pall have Tref-
pafs Quod M. nativum & fervitium meum vcrberavit, per quod Servitium
fervientis mei per magnum tempos amifi; and recover Damages for the
Time that he might have been in my Service; for I might have cail'd
him to my Service at my Pleafure. And in Trefpafs Quod Villanum &
Servientem meum cepit, the Dejendant may jtijlify inafmttch as he was
Vagrant, and that he retain'd him according to the Statute. But where it is
Qiiod Villanum & Servientem meum in Servitio meo exillentem, there he
ouo-ht to anfwer over to the Service. Br. Villeinage, pi. 24. cites 22
H. 6. 30. 32.
11. Ini'reCpafs xht Defendant pleaded that before the Trefpafs, at the
Time of the Trefpafs, and after, he and his Feme were fei fed of the Manor in
Jure Uxoris, to which Manor the Plaintiff' was Villein regardant, and the
'Feme and all her Ancellors, and all thofe whofe EJfate llie has in the fame
Manor have been feifed oj thefild Plaintiff, andhis Ancellors, as Villeins
regardant to the fime Manor Time out of Mind , and becaufe he did
not fay that they are j)rf feifid of the Manor &.c. therefore ill ; for it
may be that they have alien'd the Manor after; quod Perfey conceffit.
jindQuxre if he ihall not fay that the Vilkin is yet Villem alfo; for ic
may be that he was Villein, and is now manumitted. Quaere; or if it
fhall be intended till the other pleads it; and fee Librum Intrationum
thereof. Br. Villeinage, pi. 4. cites 35 H. 6. 12.
12. If a Lord leafes the Manor, to which Villeins are regardant, to
J. S./or Tears, and a Villein brings Atiion cigainji the Leffee, he may plead
the Villeinage againd him, as the Lord himlelf might before the Leafe.
Contra of Lejjee at iVill of the Manor, becaufe he has it only at Will ; per
Littleton. ^V/.:fre of the Tenant at Will. Br. Villeinage, pi. 43. cites
14 E. 4. 6.
13. In Trefpafs againfl: C. for taking his Horfe Sec. C. pleaded that he is
* D aSj feis'dofthe Manor of D. to which P. is a Villein regardant, and that he
pi "'z. Pafch. and all thofe &c. have been feifed of the Plaintiff and his Ancefiors. The
1 1 'eHz. Plaintiff rep//£rtf that he is jree &c. abfc[tie hoc that the Defendant Sc were
©utUriJ* feifed of the Plaintiff' &. as of Villein regardant i and the Iflue is found
f^'^^found for ^^^ Plaintiff And upon Motion in Anell of Judgment, it is rul'd
a fpecial" that the Traverfe is well taken ; and cites * Dy. 283. accordingly. And
Verdift, by Hubbard, il a Man hath not Scilin of a Villein in grols within 6
that the Years, he fliall be barr'd by 32 H. 8. of Limitations in Nattvo habendo ;
hil^Anceftois lor Liberty is favour'd ; But yet of a Villein regardant the Seilin of the
Manor
Vifitor.
558
Manor to which See. is fufficient Seifin of the Villein. Nov 27. Hill, were feis'd
15 Jac. C. B. Pigg V. Caley. no.- Time^'
out of mind, and that they were feis'd all the Time of the Anceftorsof the Defendant as Villeins re-
gardant &c. till the I H. 7. But whether fuch Seifin of thefaid Manor be Seifin in Law of the Defen-
dant and his Anceftors, from the laid i H. 7. till the Writ of AlTife brought, they pray the Advice of
the Court &c. and if adjudg'd in Law a Seifin, then they find for the Plaintiff; if otherwife, for the
Defendant. But this Point was not adjudged, Mo. 1)0. pi. 22;. S. C. fays that ? Juflices
were of Opinion that Judgment ought to be given for the Plaintitf, but WalHi e contra ; but for other
Rcafbns they did not give Judgment on this Matter. And. 14. pi. 51. S. C. accordingly, by 5
Jufticcsagainft I, that as tothe Matter of the Verdift, the Plaintiff fhould have Judgment ; for they
held th.:t Seifin of the Manor is Seifin of the Defendant, as Villein ; but for other Reafons Judgment
■was not given. Bendl. 1S9. ij»2. pi. 229. S.C. accordingly.
For more of Villein in general, See I^OUCDCt, and other
Proper Titles.
(A) Vifitor.,
I. T_T S. Guardian of the Hofpital of R. brought Aflife againjl the Br. Depofi-
X~i» Axhbijhop oflork CJid W. P. and made Plaint cfz A^cjltiages and ".o". pl- \'3-
2 Acres of Land, and one of the Mcjjhages -xas the Hojpital ; for he conld '^^^^^^,^-\
firt have Plaint of Chappel^ or fuch like, but of a Meliuage ; and the g c. cited '
Bipop by Bailiff' pleaded Ntil tort ; and the other _/^/V that the Plaintiff "-ju as Lord Raym.
Guardian^ and before the tVrit brought rjoas deprived by the Ordinary in his j^^p- /•
Vilitationyor Default found in him, and after the Archbipop who is in Pa- g^.'^^" -^^ "
iron made Collation to W. P. the Defendant, of the fame Hofpital, and b. R. in the
demanded Judgment of the Writ brought by the Name of Guardian, Cafe of
v.here the Plaintiff is deprived, and the Defendant is Guardian, Judg- ^lliltipsU*
ment &c. and it is fufficient, without lliewing who is the Ordinary that ifff'dic Cafe
vilitcd i by which the Plaintiff peivcd that King E. 2. by his Charter ijjc. of F.xeter
gave to him the Guardianpip for his Life^ to hold as Franktenement, aadCoUe^e in "
ient a JVrit to the Efcheator to put him in Seijin, who did fo i and that one <^>^foid]
of the Mcpiages is the Hofpital, which is Lay fee, and the Guardian /).'?ji'j- ^^^s'^^'gi^h^
his 'tithes to the Parip-chiirch^ and is tax\i among Lay-people^ and not 5 'juft, that
among Clerks 5 and the Charter runs, that the King had given the Guar- a Collep;e
dianlhip ot the Hofpital, ut fupra ; That the Advowfon belongs to him, ^^^^ ^ '^^m-
by reafon of the Poffeffion, the Archbifhoprick of York being void, and ^ly q^^.^^_
in his Hands. And it was faid that this thing cannot be Spiritual, unlefs ration of 'the
by one ofthefe 2 Ways, viz. becaufe he has Poffeffion Spiritual, or Col- fame Na-
lege and Covent ; and he has neither the one nor the other ; and there- ture wuh
fore ? J not within the Vijhation of the Ordinary. And per Herle, every^f^^ ^'J^''"' '
Hofpital is vifitabk either by the Patron^ becaufe all is in Lay- fee, or by the took the
Ordinary, becaufe it is Spiritual ^ and if he be vilited and deprived with- Difference
out Authority, the Affife lies. And after it was faid that the Ordinary l^ ?"32S'S
had no Bufinefs to meddle with this, which may pafs by a Gift of the tifat'^ifaLav-
Lay Patron, without Lnffitution and Induffion. Per Herle, it is true if it man be pf-
had been by Name cfa Meffuage and Land, but now it is given by Name tfon of an
of
^88
Yiikor.
Hofpital, he of Guardian of an Hofpital, whereby common Intendment an Hofpital is
may vifitit, ^.jj^j^^tiie . and G. Scrope accordingly, and after by Confent the Affife
and depoie ^^^^^ awarded at large. And per Shard, Hafpitals are 'things amortiz'd
ujon good' ^nd navid according to the Adanner of their Foundation ; Ibme to be vilued
OLuCeTthe by the Patron, as oi'a Lay Peribn, and ibme by the Ordinary i and there
Matter; but _^|:g^gyeral Hofpitals which are vilitable by Lay Perfons who are their
Li^Cu patrons. Br. Allife, pi. 1 38. cites 8 AlF. 29. & 3 1-
and by Colour thsi-eof thr. M:iOcrbe ouOed, he flvill have an AfTife, because the Common Law will
not permit any Perfon griev'd to be withour Remedy. And iho' the Founder had an abfolute Power
over his Foundation, yet he could not exclude the (urililiftion of the Common Law, no more than if a
Manfhould devife Lands between A. and B. and his Intent was, that if any Diflcrencc ftould arife be-
tween them about the Lands, it fhould be determin'd by J N^ without Procefs, this Appointment
would be vain, and the Party griev'd might have his Kcmcdy by the Lav/. Befides, that the Law
will not allow any Cuftom, which in any Manner in:iy tend to the Support of arbitrary Power, accord-
ing to Litt S. 212. Co Litt. 141 and fur 'this Reafon will not permit the Vilicor to be without Con-
troul. And for thcfe Real'ons they were of Opinion, that they had here Jurifdiftion (the whole Mat-
ter being found fpecially) to examine and corrcft che erroneous Proceedings (it they werefuch) of the
Vifuor. But they agreed, that if the Ordinary deprive a Matter who is Ecclefiaftical, withour juft
Caufe, he fhall not have an AlTile, becaufe he hath other Remedy by Appeal ; and cited 8 Aff 29. ;i.
15 Rep. 70. D. 209. (iLolnntV'sCafe, D. 27;. And Holt Cn. J. agreed that a CoiJe^e and Hof-
pital are of the fame Nature ; but as to the Ohjeftion that the Matter may maint.^m an Affife, he faid
he could not, becaufe he is not fole feifcd. And fo he faid was Hale's Opinion often heretofore ; and
therefore he denied the Opinion inCovenev'.s Cafe, and Bagge's Cafe, to be Law, as Hale Ch. J. had
often done before ; befides', that thofe Caies are grounded upon an Error; for they rely upon the 8
All 29. ;o. for warranting that Opinion, whereas i'l Truth the 8 Aff. does not warrant any fuch Opi-
nion. 4 Mnd, 116. and 124, in the t). C of Phillips v Bury, the Cafe of S Afl". is cited by the
Name of &l)irax'0 Cal'c ; ai.d Holt Ch. J. gives for Reaibn why that Cafe of Shira.^c is not applicable
to the prurient i.s b-cau!e he having a Donative, and being deprived by the Archbifhopof York as Or-
dinary and Vifnor, and another being collated, the f>ucltion was, Who was Vifitor? And ir appear'd
plainly it could not be the Archblfliop, becaufe the Matter was not ipiritual ; that it was in the Cafe ot
a Lay Kofpiral which had ro fpirimal PcffefTon ; it was neither C:olItge nor Convent, and therefore
the Affile was held good, which proves nothing in the Cafe of a fpiihual Corporation ; for if the De-
privation had been by a proper Vifitor and one who h.id a lawful JunfdiCtio.i, his Sentence would have
been final, and no Al'fife could have been brouglu to e.-iamuie it.
2. If an Archhipop be conjiant Vijitcr, he may vilit and compromife
Things done tn bis PredtceJ'or's 1'ime. Per Pemberton Ch. J. 2 Show.
171. pi. 163. Mich. 33 Car. 2. B. K. in Cafe ot'the King v. Alfop.
He has the 3. If there be a Viliccr, E. R. has no JnnfJichon ; lor he is like n. Judge
intircPowcr, ^^py2'« Z^' /■/7«;;y^/i;^j. 2 Show. 1 70. The King V. Alfop. Per Dolben J
can be no ^^^^ ^o be lo refolv'd in Dr. Roberts's Cafe, per Hale Ch. J.
Jfpeal from
him, and it is almoft an arbitrary Power ; Per Pemberton Ch. J. Ibid.— Jpfeal lies from a De-
privation by a Vifitor asOnlhiaij, bat not as Patron. Parl.Cifes 46. in Cafe of Phillips v. Bury.
4. The Vifitor fhall determine all that relates to Perfons that are of the
Foundation^ bur he has no Power betbre a Perlon is made a Member ;
Per Holt Ch. J. Cumb. 238. 5 W. &M. in B. R. The King v. Preli-
dent &;c. of Sc. John's College, Oxon.
* The Cafe 5. Where'a Founder of an Eleemofunary Foundation appoints a Vifi-
of Philips V. tor, and limits his Jnrtfdi^ion by Rules and Statutes, if the Vilitor in
Bury. ^ny Sentence exceeds thofe Rules, an Atiion lies againji hiin. But otherwife
where he miltakes in a thing within his Power, tho' in this Cafe there
be not any Appeal over J Per Powell Jull. 2 Lutw. 1566. in the Cafe
of Gwynn v. Poole, fays this was agreed not only by the 3 other Juf-
tices, but alfo by the Ch. J. in the Cafe of* Exeter College.
6. Where the Poor (who are to have the Charity) are not incorporated^
but Trtijiees, according to the Cafe in 10 Co. there is no Viiitatorial
Power, becaufe the Intereft of the Revenue is not vefted in them ^ but
•where t hey ^-uu ho are to enjoy the Benefit of the Charity,<7)Y incorporated^ there,
to prevent all perverting of the Charity, there is by Law a Fi/uatorial
Pcjver ; and it being a Creature of ;^if Founder's own, it is all the Reafon
in
Viiitor.
589
in the World chat he ami his Heirs pould have that Power, unlefs they
devolve it elfewhere. Skin. 484. Trin. 6 W". & M. in B. R. per Holt
Ch. J. in Cafe of Philips and Bury.
7. The Common Law takes no Notice of Vifitors, but they were i?itro- q e u
dtic'd by the Canon Lazv. Refolved by 3 Judges. But Holt Ch. J. held Rep. V9.
that Villcation was not introduc'd by the Canon Law, but of Necelficy that it came
was created by the Common Law. Ld Raym. Rep. 78. Trin. 6 W. & ^"'^^ ^° "^
M. in B. R. in Cafe of Phillips v. Berry. ' fr°"?, '^^^
'^ - Civil and
Canon Law.
Per Ld. Ch. Baron Gilbert. Hill. izGeo. i. in Cafe of Birmingham School.
8. ^\^here the King is Founder, his Majelly and his Succeffbrs are G- Equ.
Vilicors i but where a prt-vate Perfoi is Founder, there fuch private Per- ^^P; ' z^-
fon and his Heirs are, by Implication of Law, Vilicors. Per Ld. C. n<;3^;„^^^j^^
King, aliiited by Ld.Ch. J. Eyre, and Ld. Ch. B. Gilbert. 2 VV^ms's Cafe of Bir-
Rep. 326. pi. 93. Hill. 172^. Eden v. Poller. mingham
School.——
Sel. Chan. Cafes in Lord King's Time ;6. S.C.
9. But the' this Vificatorial Power did refulc to the Founder and his
Heirs, yet the Foui^der nught -y^/? or fubltitute fuch Vifaatonal Right iit
any dhcr Perfon or hh Heirs. 2 Wms's Rep. 326. Eden v. Folter.
10. But they conceived it to be unreafonable and of mifchievous Confe- Where Go-
quence, that where Governors are appointed, thefc, by Conftru£lion of ^^.T"''^ "i^
Law, wit boat any more, potdd beViJitors, and ihould have an abfolute /.j'^'^"^^'|
Power, and remain excm'^t from being vifited then/fhes. 2 W'ms's Rep. accol'iuaL!
326. Eden v. Foiter. it muit be
intended
where they have the Povier of Goveniment only, and not where they haze the legal Eftale, and are intruded
with the Receipts of the Rents and Profics, which would be of mnft pirnicious Conlequence; and fuch
Privilec;e might of itfelf be a Temptation to a Breach of Truft ; Per Lord C- King, alElled by Lord
Ch. J. Eyre, and Lord Ch. B. Gilbert, z Wms's Rep. 516. 5i-. Hdcn v. Folter,
I r. ^?;^that (in the principal Cafe, where King E. 6. founded a School, G. Equ.
and by Letters Patents appoinced perpetual Governors thereol, enabling T.'^f- ^''^'
them to make Laws and Ordinances for the better Government of tiie j,j-i,QQj^'^^
f:.id School, but noexprefs Viiitor appointed, and the legiil Eltate of the Cafe, with
Endowment was veiled in thefe Go\'ernors) the IVcrd GovcrKor did not of it- the Opinion
f If imply Vifitor; and to make fuch Conllruftion againll the common and ^| ^'^^ h"^"^
natural Meaning of it, and when fuch llrained Conitrufition could not bgrt ACiV-
be for the Benefit, bat rather to the great Prejudice of the Charity, would ant to the
be very unreafonable, and would be making the King's darter operate LordChan-
to a double Intent, which ought not to be. Ibid. 324. 326. Eden v. S,""''"'- 777
,., ., ^ - r ./ Selert Cafes
■rOlter. in Chsn.
in Led
King's Time. 51J. S. C argued.
12. Power given to CommiHioners or Governors of Charities, to v,\ikc
By-Laws, muji be t?itended for the better regulating and prtfcrv^ng the Cha-
rities given, and not for the overturning of them ; and if the Commiliion
(or Letters Patents conftituting them Governors) give any larger Power,
they would be void only pro tanto. And notwithllanding fucl:i Power as
above, fuch Schools or Charities may be vilited. Per Lord C. King, af-
iiiled by Lord Ch. J. Eyre, and Lord Ch. B. Gilbert. 2 Wms's Rep.
327. Eden v. Folter.
For more of Viiitor in general. See C50iintiannijS, (B) }prcta=
gati^e, (C. f ) (D. f ) &;c. and other Proper Titles.
7L
Una
590
Una & eadem &c.
(A) One and the lame Pcrfon or Place.
I. T N Prcfcipe quod reddat, if the Tenant prays ylid cf him in the Rever-
j|_ Jion who comes in Per/on ready to join^ it is a good Iff tie for the Te-
nant to iay that he who ojfers ts not the fame Per/on. Br. Ilfues Joines, pj.
78. cites 7 H. 6. 45.
Centra if it 2. Trefpafs ot entring into his Hotife and breaking his Clofe in D. the De-
had been fendant faid that the Place called the Hoiife and Clofe ^ is one and the fame Place,
in Praecipe and not dtverfe ; Judgment ot the Writ, and no Plea to the Writ bv
^od reddat; ^^.^^^ . ^gr he may Jay Not guilty to the one, and jnfitfy to the other. Br.
Di'verfity ; Briel, pi. 185. cites 22 H. 6. 7.
one Cafe the Thing fliall be recover'd ; contra in the other. Br Ibid.
* Ori^. in 3. Scire facias againji me^ and another of the fame Name appears, the
the Year- Plaintiff may fay that he is not the fame PtrfoH, and the other fh a II not
Book is (Pur ^^^^ traverje to it, for he has Advantage thereof i * lor this is a Dilcharge
eftD^fcharge to me in this Attion ; Per Danby &.c. Br. Mifnomer, pi. $6. cites 8
vers moy in £.4- '"•
eel Aclion 4. In 7'refpafs of Goods the Defefidant intitled hinsfeJf by Gift of J. S.
*"^ and gave Colour to the Plaintiff, and the Plaintiff faid that J. S. and the
Plaintiff was one and the favte Perfon, and net diverfe ; and to the Flea
pleaded by the Manner &c. [nul Ley &:c.] and a good Replication ; for
1 it Jiands with the Bar ; quod nota ^ and theretbre the Defendant may take
thereof Ifl'uc. Br. Replication, pi. 52. (bis.) cites 13 E. 4. 7.
5. 'trefpafs by Dean and Chapter, if the Defendant pleads Leafe of the
Dean by aftrange Name and gives Colour, the Plaintiff may fay that this
Stranger and the Dean are one and the fame Perfon ; and conclude with Dc~
murrer, and good. Br. Replication, pi. ^$. cites 21 E. 4.
Centra if he 6. If in Precipe quod reddat 0/ the Manor of B. &.c. the Tenant pleads
ylead.s a Fine a Vine, Recovery &c. of the Manor oj O. he ought to aver that the one Manor
or Recovery and the Other are one and the fame Manor. Br. Pleadings, pi. 143. cites
cf the afore- j^_ g
faid JJ.wor ■' ■'
of B. For this Word afore/aid, is in EffeH an Averment that 'tis all one. Ibid.
Goldsb. Ill- 7- Debt againfl G. the Defendant and his Wife Executrix of W. late of
pi. 18. S. C. London, taylor ; the Detendants /i/e^^ i? iJ^co-y^ry againft them /y' y. ^S". by
accordingly, ^^^ Names ofG. and Eliz. his Wife Executrix of W. of London, Barber-Stir-
fh'^llnotbc g^<"^i ^^^ ^^'^'^ ultra the fum recover'd they had nothing 6cc. and upon
intended the this it was demurred, and adjudged no good Plea, becaufe they took
fame Peribn, «o Averment that W. Taylor and W. Barber-Surgeon were the fame
but rather Perfon. Cro. E. 127. pi, 2. Hill. 31 Eliz. B. R. Hooper v. Go-
thecoiitrary.^gjf^l
8. In Debt, the Defendant pleaded Utlawry in the Plaintiff' at the Suit
of B. in London ; the Plaintiff re/)//£^, that he was ofthePari(h of P. amithat
there was another oj the fame Name in the fameCtty and Parifh, who was oat^
law'd at the Suit of B. abfqtie hoc, that he was outlawed at his Suit. Excep-
tion
Uncertainty. ^pi
tion was taken to this Traverfe, becaufe he did notfayJbfque hoc^that hewas
eadem Perfona ; but it was anfwer'd, that where a Man is outlaw'd upon
mefne Procefs, and never appears, there the Traverfe ought to be Quod eft
eadem Perfona ^ but if once he appears, and is outlaw'd after Judgment^ there
the Court had taken Notice of him ; and 'tis fufficient to lay that he
was outlaw'd. But it might be otherwife if the Defendant had exprefsly faid
in Bar that D. the Plaintiff was outlaw'd, and that he is eadem Perfona^
there the Plaintiff fhall Hiy Abfque hoc that he is eadem Perfona. Where-
upon Lea, Haughton and Chamberlaine difallow'd the Exception, and
held the Traverfe good. Palm. i88. Trin, 19 Jac. B. R. Downes v.
Patts.
For more of Una & eadem &c. in General, fee ^ifnOfUlCr, and
other proper Titles.
Uncertainty.
In Grants ^c.
I. A Gift to A. or B. is void for the Uncertainty. Godb. 93. pi. 104. 4Le. ;8.S.C.
Jf\ in Cafe of Leeds v. Crompton. cites n H. 7.
10;. cites 12 H. 7. 13. So to o7!i of the CbiUren of J. S. he having four. 2 And. jo--. cites
7 E. 4- 19. ■ r
2. There is a Difference where a Thing h nnctnaXn to which a Cer-
tainty is added, and where 'tis certain in icfelf See PI. C. 191. b. in Cafe
of VVrotefley v. Adams, And Ibid. 395. a. in Cafe of the Earl of Leiceller
V. Haydon.
3. Warranty to zS Haredtbus, and appoints nor the Heirs of the one
or the other or of both of them, it is void. 2 And. 103. and Ibid. 141.
142. cites 21 H. 6.
4. If Debtor gives to the Creditor a Horfe or any other Thing in Satis-
faff ion of Part of' his Debt, this fhall be Bar tor no Part tor the Uncer-
tainty. 4 Rep. 3. in Vernon's Cafe.
5. A Contrast to fell as many Trees as can reafonably be fpared is void. D. 91. a. pi.
Cro. J. 262. pi. 26. in Cafe of Rogers v. Head, cites 1 M. Dyer. i°Ma^''^'''
in Cafe of Mervyn v. Lyds. z And. 142. pi. S2. cites S. C. that it is void.
6. Many Things that are uncertain in themfelves being reduced to Cer-
tainty by fuch Means as either the Law appoints or the Party himfelf af-
figns, may take efte£t i per Hobert Ch. J. See Hob. 174. in Cafe of
Stukely v. Butler.
7. An Uncertainty in Affumpfits, Obligations, Feoffments with War-
ranty, Covenants ^c. may be reduced to a Certainty by the Precedent
Communication and Agreement, both in refpeft of the Time, Eftate, Thing
and
Under-SherifF.
and Perfon. See Lat. 272. Sharp's Cafe Mich. 3 Car. where Inftances are
given of each.
8. Habendum in a Grant, tho' void in Law for Uncertainty yet may-
be ^ocrt? in Equity, and will be decreed. See Chan. Rep. 8. 4 Car. Corn-
wallis's Cafe.
9. It is ill in Criminal Charges. See 8 Mod. 328. 330. Mich. 11 Geo. i.
The King v. Brereton.
As to Uncertainty in Pleadings, fee Tit. Ccrtilintp and other Titles
of Pleadings. And for more of Uncertainty in General, fee
ConHitiOnSfj jfine^j (©rantSf, and other proper Titles.
Under-SherifF.
(A) Matters relating to Under-Jheriff.
Under- j. A ^ Under- fheriff was before the Conqitejl. Brownl. 64. in Cafe of
iherifFs have /A Norton V. Symms.
been lone in , . _ - _^, ,. _ . _,. ,
Ufe- perHobartCh. f. Hob. 15. pi. 25. in Cale ot Norron v bimms. In ancient Time he was
c^w'd SemfchMl"' Vicecotyiitis, bccaufe he cxercifed thc_ Office of the SheritF himfelf. p Rep. 48. b. in
the (ffrarl Of'*^llf^^^'"^^^'^ ^^'"^' cites Ingulph's Hiftory, 4.65. inter Confuetudines Scaccarii. And
o Kep '0 b 'fn S C. fav.s', that in the Statute of VVeftm. a. cap. 59. he is cM'd Sub^kecomes, and in the
II H. 7. cap. 15. he is call'd Shire-Clerk.
But the Sta- 2. I H. 5. 4. Enacls, That they "who have been Sheriffs Bailiff's for me
tute 6 H. S. /^^^^ p^iil not hear that Office by 3 J'ears next following, except m Sheriff-
afts, Thft"' "^'^^^ inheritable.
and all other Officers of Sheriffs may contimie and execute their Offices luithin the County of the Town of Brijioh
from Tear to fear, in fucb Sort as the tike do in London, without any Forfeiture^ notovithjianding the Statutes of
42 Ed. 5. 9. and 25 H. 6- ti.
On a Motion iVo Under-fferiff] Sheriffs Clerk, Receiver, or Sheriff's Bailiff, Jhall be
for an In- Jttorncy in any of the King's Courts, fo long as he bears fuch Office under the
formation ,t, n
againftone ^'^^'■#
for afting as
Under- flieriff of Huntingtonfliire, and alfo at the fame time atting as an Attorney, contrary to the Sta-
tute I H. 5. cap. 4. a Rule was made to fhew Caufe. z Barnard. Rep. in B. R. 195. Trin. 6 Geo, i.
Anon.
3. When a Writ is direfted to the Sheriff, (as a Writ on the Statute
of Northampton to remove a Force) by the Name of his Office, and noc by
a particular Name, nor doth exprefsly command him to do it in Perfon,
the Under-fheriff may do iti for it is a Writ grounded on the Stacute,
and not a Commijfton ; for then it had been otherwife. Cro. E. 294. pi. 9.
Hill. 35 Eliz. B. R. Levett v. Farrar.
Refolved ^^ Under-flieriff wrtj)' do all Minillerial Things which the Sheriff may
'^^k- ^'^h" ^°> ^^^ "°'- Jii'^i'^'^^- firownl. 64. Norton v. Symms.
Under-flierifFdid implicitly give him Power to execute all the ordinary Offices of the Sheriff himfelf,
which mi"-ht be transferr'd by the Law, As ferving of Procefs and Executions- &c. But he coald not
deal in ilf'rit of Redijdftn, becaufc in that the Sheriff is a Judge ; nor in that Cafe of the Writ of
Under-SherifE ^pc^
jrafie, where die Sheriff is commanded to go to the Place wafted ; becaufe it is perfbnal to the Sheriff"
liimlcif. Hob. 13. pi. ij. S. C.
5. If a Sheriff binds h.\sVnAeT-{hsx\^ not to returnVe».Facias''s, orto in-
termeddle with Executions r/7/ the Sheriff' be acquainted -joith it^ 'tis againft
Law, and ill ; per tot. Cur. Brownl. 64. Norton v. Symins.
6. Bond by Under-lherift' not to meddle with Executions beyond fuch Godb. 212.
a Sifln, is \oid. Brownl. 65. Trin. 7 lac. Norton v. Goldfmich. ^ ^■~~.
' . ' -' S. C. cited
11 Mod. 46S. inCifeof Pai-ker v. Kett. Brownl. 65. Pafch. 11 Jac. Norton v. Simms, S. P. .
Hub. 12. pi. 25. i> C. accordingly. Mo. 856 pi. 175- S.C. accordingly. S P. agreed by Ander-
ibn and Waimlley, in Cafe of lioucher v. \\ ilcman. Koy 51. Cro E. 440. pi. i Mich. '•7 &
^S Eliz. S. C. accordingly. Het. 157. Mich. 5 Car. S.'C. cited in Jfo;c"5 waft^ by Ld. Keeper in
the Star-Chamber, and agreed by Richardlbn to be good Law.
7. It was refolved, that the SheriiT may grant his Under-lherifFwick
to hold at the Sheriff's IViH only i for it was in his Choice to make or not
to make an Under-lheriftj but [or J to exercife it himfelf; That anUnder-
ll.eriff is in Effctf hut the Sheriff's Deputy^ and tiierelore, according to
the Nature oi a Deputation, muft be reinoveable as an Attorney is ^ ia as
il" the Sheriif ihould make him irrevocable, yec he make revoke him.
There is neither Common Law nor Statute Law that makes him im-
moveable. He is but in the Nature of a general Bailiff' Errant to the She-
rill", and to the whole Shire, as others are ov er the Hundred. His Oath
appointed by the Scacuce 27 Eliz. is. That he Ihall bear himfelf well,
lur ib long as he ihall continue in the Oiiice. It is neceilary both for the
Fublick Service, and lor the Indemnity ot the Sherili", that he be re-
moveable by the Sheriif! Hob. 13. pi. 25. Sir Daniel Norton v.
Simmes.
8. If a Return made by theUnder-fheriff he denied, it fhall be tried
by the Under- iherirt", and the Sheriff' cannot difavoiv it, if he contels him
to be his Under-lherifF. 9 Rep. 31. b. in the x\bboc of Strata Marcella's
Cafe, cites 10 H. 4. 7. b.
9. A Writ is directed to the Sheriff, and the Under-lherifF makes a * It fhon'd.
falfe Return^ the Sheritf ihall be amerced^ and not the Under-lheriif i Ibr ^^ ^- > ^
the Law doth not take Notice of him. Arg. Godb. 389. ci.es L. 5 '^' ''
E. * 45.
10. The Under-lherifF 0//^/-'? always to have his Deputy to be attendant
in Court J to receive and execute their Commands, and to account to the
Court of Bulinelies which may tAi out concerning the Sherid' and his
Office ; and he ought to file a tVarrant of Attorney Jor his High-fheriff' in
every one of the Courts at WeJiniinfier-HuU, by an Attorney ot each Court i
ocherwile an Attion upon the Statute lies againlt his High-lheriif for
fuch Negleft. 2 L. P. K. 511. Tit. Shcriil, cites Hill. 22 Car
£. R.
11. Under- Iheriff gave Bond to High-fkeriff wiihonx. Condition, but in-
tentionally for Pertormance of Covenants to lave the High-lheritf
harmlefs from Efcapes, and to pay the High-fi>eriff out of the Pro/its of thi
Office 400/. It was infilled tor the Plaintilt, that the Bond was void by
the Statute againlt Farming the Office. And tor the Defendant, that it
was the Plaintiti"'s own Agreement to pay it out of the Profits, and the
Under-lherifF was but his SubltitutCi tor if the Profits did not extend to
400 1. he was not to pay fo much, but to be accountable i and if they •
amounted to more, the Defendant had no Power to call him to Account
for more than the 400 1. only. Belides the Statute was not penal, nor
infliiSted any Forfeiture or otlier Puniihment on the Shcrilt, it' he had
farm' d the Office. Finch C. was of Opinion feemingly, that the 400 1.
ought to be paid ; but referr'd it to a Trial at Law in the next Couniy
whether he was to have the 400 1. or no. 2 Caar.. Cifes, 4S. Hill, y^i^ ,
33 Car. 2. Lockner v. Strode.
7 M 12. The
?94-
LJnion.
12. The High-lheriff, who need not make an Under-periff, if he wili;
may make his Bailiffs and Precepts to them ; yet if he make an Under-
Iheriff, of neceffary Confequence he gives him Power to make Bailiffs
and Precepts, without acquainting him therewith ; and this he can do
only by Virtue of his Deputation j per Holt Ch, J. in delivering the
Opinion of the Court. 12 Mod. 468. in Cafe of Parker v. Kett.
13. The Deputy-fl:ieriff vitift aii in the Name of his Princi-pal, bec^ufe
the Writ is direfted to the High-flieriff, and the Under-lheriff aits under
the Authority and Command of the Writ, and therefore mult aft in the
Name of him to whom the Writ is direfted j per Holt Ch. J. in deli-
vering the Opinion of the Court. 12 Mod. 468. Pafch. 13 W. 3. in Cafe
of Parker v. Kett.
14. An Under-lheriff, by Virtue of his Office, is included in fever al
II.
and
Atis of Parliament J tho' not named. 10 Mod. Arg. 289. cites W. 2.
B.
Elegit
1G6. b. Tit.
Elegit,
and 25 E. 3. 17. and W. 2. 18. F. N.
4 Rep. 64, 65. Fulwood's Cafe.
15. W\\zi&'dL Statute appoints anything to be done by the Sherij^y and
prefcribes no particular Aianiier tor doing it, that makes it neceffary to be
a perfonal Act, there the Under-iheriif may do it, tho' the Sheriff only is
mention'd. But where the Manner and Qrcumjiances injoind and pre-
fcribed by the Act, 7nake it a perfonal y/il, he cannot. Arg. 10 Mod. 290.
Hill. I Geo. B. R. in Cafe of Kitfon v. Fagg.
For more of Under-llieriff in General, fee fCt&, ^IjCClff, and other
Proper Titles.
* This Title
is mifplaced
in Roll, be-
ing put
after Tit.
'^Voucher.)
* Union.
( A ) Union. Advowfon. Good or fjot.
1
jf n Church and a Vicarage atC Uni'tCtl, being feveral PariOies, upon
^ a Surmife tl)?.t tljCp dXt diltant but a Mile, and but icw inhabi-
tants, and becaufe the Church of the Vicar is in Decay, tnljCCC tfjOfC
Surmifcs are falfe, tl)e aittOll 10 ilOlO* ^\Z% 9 €UU 15» E» Um£Zn Sir
Proliibi- Robert Mordant and Dobfon ; \^Zl CUtiaUt, iHl)eC£ tl)C CljUrCt) Of Walton
lion (M) pi. joeweii auH tije ©icanigc of iveihsbome, m tJ)e Diocefjs of aDorcefter,
" S.C. — ^^^ \mxz'i^ upon tljc imn Sdicmifesi ano tJje 2nt)aliitant0 [toerej
fuclJ in tije Sjpintiial Coutt to compel tljem to come to one Ctjurcb,
anti tljecefoce a proljibition ffcanteD, if no Caufe fljctan at a Dap*
anB aftettoatUis ^3\t% io3la* 03. E* a prolji&ition gtanteo ablu=
lutein
8
S.C. cited
per Powell J.
Ld. Raym.
Rep. 195.
Pafch. 9 W.
3 in Cafe
of Reynold-
fon V. Blake and tlie Bifhop of London.
it was fuggefted by one of tlie Civilians
— Cro. E, 501. in the Cafe of aiuffitl 1). ITiXJT'nf,
that the Union in that Cafe was made upon a falfe Surniife,
and
Union. 59^;
and therefore void: But the Court faid, that they were not to difpute of the Validity thereof; bcoiufe
that comes in Qiieftion in the Spiritual Court.
2. Annexation or Confolidation fhall be made •'cx^bere the Church is void^ See (C ) pi.
becaufe if it be made when the Church is full, it is void. And the fame^S. 5.i!i the
Law of Appropriation j per Kebill. Br. Appropriation, pi. 5. cites 6 ^ °^'^^'
H. 7. 13. 14.
3. It was agreed per omnes, except Townfcnd, that the Union and
Annexation of the Chapel of E. to the Prelident and Scholars of the Col-
lege of M. and their Succellbrs, is good. Contra Townfend, becaufe a
I'hitig united jh all he united to a 'Thing of the fame Nature^ and the Chapel
is a dead Thing, and fo is the College, and therefore fliall be united to
the College, and not to the Mailer and Scholars. Br. Appropriation,
pi. 9. cites II H. 7. 26.
B
(A. z) Union. By whom. Advowfon.
J^ tljcCilTent of tIjC Patrons, tljC Ordinary, and the King, aUUniOtl * S. P. and
_,^ Of two Cijurcljcs map be uiaoe* * 50 e. 3. 2"^* $p. 3 s* 39 ei, '"fy "''''"f
15, &, bCtlUCm \ Aujhn and Twine; pCC CUn?.m, EiCCCpt lp5Gpijani,p 'eLt to
lUljO OOllbtCn of whatfoever Value tijC CijUrCljCgi illT. ir, and who
111 all be
Patron. Br. Appropriation, pi 2. cites 50 E. 5 26 S C.
t Mo. 661. pi. 904. S. C. adjudged, That where tlie one Church was of lol. Value, and the other
of 81. and lay within a Mile the one of the other, the Ordinary might conlblidare them; and if the
Pjtron confirms it, and afterwards the King confirms it, this is a good Confolidation, as 'the Common
Law was before the Statute 57 H. 8. but otherwife fince. [The latter Part of the Report omitted he'-e
leems mifprinted.] — Cro. £. 500. pi 21. S. C. and held accordingly by 5 Juiiices ; and Popham ac-rted that
iuch Union was good at Common Law, and that it was not material w hether the Queen's A ire'nt be pre-
cedent or fubfequen: ; but thought it not good now, fince the Statute 57 H. 8. For iho" the Statute is
in the Affirmative, Tliat the Ordinary may make an Union where the Church is under the Value of S 1.
yet t!icrein is a Negative implied, viz. That he fliall not, where the Church is above 81. But Gaw-
riy ana Kenner c coi.tra, that the Statute is only in the Affirmative, and lb takes not away the Common
Law ; and that by Confent ot the King, Patron, and Ordinary, an Union may be of Churches of any
Value whatfoever. And afterwards upon hearing Civilians, who agreed that by the Canon Law the
<.)rdinary, with the Patron's Alfent, might have united 2 Churches, tho' either of them were worth
ICO I. a Year, and fufficient to maintain a Miniller ot itfelf, and tiiis by the e.'iprefs Text of the Canoa
Law, by Affcnt of Popham, it was adjudged tor the Defendant that it was a good Union.
2. SnamOn mat) be matie of 2 COurCljCSS, in Time of Vacation, by
Patrons and Ordinary, without the Alient oi the King, bCCaUti!^ tIjC i:UnS
tioeg not !ofe tbe oaencfit of lapfc bp it, m ijc Qocs in Cafe of Appro-
priation. ^, 38, 39 (£U 15, E» betUJCCn yiujlen andTwuie; pCC (HVL-
nam, 2),9€U.259«i9.
3. If the Churches, or Church and Chapel are in 2 Diocefes, both Or- See Tit. Pre-
dinaries muft concur to make the Union. Watf Comp. Inc. Svo. 329. ^c-ntatioii,
cap. 16. cites 11 H. 7. fol. 8. and 26. and Pi. C. 497. b. and io mull ^^- ''^ ^ ■'^'
both Patrons in all Unions ; and cites 11 H. 7. 8. 6H. 7. 13. 46 Alf
4. 50 E. 3. 46. 48 E. 3. 48.
4. If either of the Patrons be a BiJJwp, the Alient of the Dean and
Chapter muft be had. Watf Comp. Inc. 329. cites 2 Roll's Abr. 357.
Pafch. 10 Car. Leigh v. Hellier. See Tit. Prefentation (B. b) pi. 5.
5. I'j Car. 2. cap.^. S. 1. Ena£ls, Th'dt in every City or Town Corpprate,
li'hich hath a Mayor and jildermen, and particular Juftices of Peace^ hy
Charter or Conimijfiou, or Biuliff'or other Chief Officer, and ether AJJiJlants
by
S96
Union.
i^y the like Charter; and where z or more Churches or Chapels^ or a Church
and a Ch.^pj/^ atni the Parijhes thereunto belonging^ do lie within the [aid
CorporatiO'i, there the Bijhop^ by the Confent oj the Mayor, Aldermen, and
Jtijlices of the Peace, or other Chief Officer or Officers, and cf the Patron,
foall or may unite the [aid Churches or Chapels, or Church and Chapel, and
appoint at zvhich the Inhabitants pyall ufaally meet, and which of the [aid
Churches or Chapels (hall be united and annex d to the other, which fjall be
the Church Prefeatative. And the Parijhioners, Landholders, and Inhabi-
tants of the faid Parip fo united, J})aU after fnch united Churches become void,
pay all flic h Titles and Dues as did belong to the Incumbent ot the united
Church, unto the Incumlent of the Church or Chapel to which tt pall be fo
united.
(B ) Union. How It fhall be made.
Go. E, 500. I. I j^ mwit of Vacation Of 2 CIjUrdjC0 t\)Z Ordinary map Ullite attU
pl. z\^. C.^ J^ COtUOllCiUC tIjCni, by Aiienc ot ctie Patrons, the King confirming
obibrve°thr it i^tter, ano ttji9 ttiunn id ijooo, tijo' tije 1^1115 t>oe0 not commence
Reafpn of tljc iiuion, ixw^ t!)0' tljc i^atroH n;iiic0 m ^tiicnt before tljc anton -,
the Unimus fQ|; j{; js not uiateriul vvnicn ot' them commences the Union, it"theWordi>
?Ta ??' '-^^^ lufficient, tijo' tljc ©cDutatp bc tljc principal ^gcnt, bccaufe Ijc
fupra pl , fa)?0 Unimus &c. airo \)z l)as ti)c Cure of tlje ^oul.s* ^. 38, 39 ^K
2. in 'the oa. R. t)ettueen^/^t« and Twine, an)UDgeD.
Notes. 2. 37 i:/. 8. cap. 21. <y. 3. Enafts, thii an Union or Confolidation of two
Churches, or of a Church and Chapel in one, the one of them not being above
the yearly Value of 6 I. as valued to the King, and not difiant from the vther
above one Mile, may be had by the Ajfent of the Ordinary oj the Diocefe, and
of the Incumbents, and of all fuch as have a Right to the Patronages, being of
full Age. And fuch Unions pjall continue for ever in fuch Manner as iy
Writing under the Seals of fuch Ordinaries, Incumbents and Patrons, pall
he declared.
WatC Comp. S. 6. Provided that all Unions to he had within any City or Town Corporate.^
Inc. 8vo. luithout the Affent of the Mayor, Sheriffs, and Commonalty of the City, or of
Avs it feems /^'■''^^ Bodies Corporate of other Towns, by the Names of their Corporations an-
to him thjt der their Common Seal, fhall be void.
this Clauie
extetids to all Unions wh.uever that fhall be made, viz as well to thofe which fnall be made with the
King's Confirmation, as to thole tliit fliall be made accordinf^ to the Dirciftion of this Statute, becaule
the Words thereof are gei'cral, and with a NonO'jftinte. (.Quaire) And that Unions may be made
of Churches in Cities and Corporations, according to Stat 17 Car. 2. the Patronage whereof belongs to
Bifhops, feems to be warranted by tht. laid Stature ; hut it is a Doubt whether fincc the Stat. 1 Eliz. any
Union can be made of other Churches not within a City or Corp.oration, the Patronage of which i*
belonging to a Bifhoprick, fo as to bind the Succeflbr, ahhu'the Content of the Dean and Chapter be
had. And it feems that it cannot ; for altho' the Cafeof 5t,tl]jl)an9 IgtlUtT, 2 Roll. Abr. page 557. re-
ported by Rolls, feems to admit that fuch an Union is goc d, tlic Dean and Chapter confenting, yet ic
appears not but that that Cafe was before that Statute i hAlz for it is faid by the Report to be before
15 Eliz.
3. In 8H. 3. the Patron of A^t. purchas'd the Advowfou of the Reffory of
K in the fame County, and always after prefented only to the Church of M.
cum Capella de K. as appear'd by the Regiiter of the Bilhop of the Dio-
cefs i yet this does not make an Union 01 the 2 Churches, but K. remains
a Church in Right, and the Franktenement is in Sufpence, and not in
the Patron of M. as DiiFeifori for the Entry of the Patron in Time of
Vacation, is no Tort, nor gains any Erankcenement. And fo a Prefen-
t<ttioa
Union. 597
cation by the Queen to the Church of K. by Lapfe, was held good. Sav.
17. pi. 46. Pafch. 22 Eliz. Anon.
(C) Union. In what Cafes, and the Coniequences.
I. TF /tt'o Churches are feeble^ fo that the Parfons cannot have their Siijie-
\^ nance for the Charges which iffue out of theWy the Ordinary^ by jjjjcnt^' p
(f Patrons, may make Confolidation of the two, and make all one i and Law°"if^thc
tor Debate of the Prefentment Quare Imped it Ihall lie at the Common Churches
Law ; Per Finch lor Law, quod Nemo negavit. Br. Appropriation, pi. were very
I. cites 40 E. 3, 28. P?°'''.^''S,
^ "^ i\.wg s Con-
fent wasnotnecedary, becaufe his Concern was fmall ; but if they were of reafonabic Value, then his
Confcnt muft concur, becaufe an Advowfon lay in Tenure, and might be held in Capire; and therefore
the King might be prejudic'd in, his Ward, and alfo he might be barr'd of a Cafual Profit, as a Lapfe
which probably might happen fooner where 2 Churches were, than where there was but one; Per
Powell J. Ld. Raym. Rep 195. Pafch p W. 5. in Cafe of Reynoldfon v. Blake, and the Eiftiop of
London; cites 5 E. 3. 26. [But it feems mifprinted for (50) £. 5. 26. 2;]
2. 37 H. 8. cap. 21. S. 7. Enacts, that where the Inhabitants of any poor
Parijh, or the more Part of them, within one Tear after the Union or Confoli-
dation of the fame Parip, by Writing pall afjnre the Incumbent for the yearly
Payment of fo much Money, as with the Sum that the Parijh is rated at in
the King's Court, pall amount to 8 /. to be paid yearly by the Inhabitants to
the Incumbent and his Succeffors, fuch Unions or Confolidations pall be
'void.
3. I'j Car. 2. cap. 3. iS". 2. Enafts, That notwithjlanding fuch Union, U two
each of the Paripes pall continue diftinCl as to all Rates and Privileges, Churches
and Church-wardens pall be eleticdjor each. brunired
the Repara-
licn fliallbe (everal as before. Hob. 6-. pi. 71. in Cafe of Afton Pariili v. Caftle-Birmige Chapel. •
The 2 Churches of M. and N. were united by the Statute, and the Church of M. appointed to be the
Prefentative Church. Afterwards the Church of N. was demoiifh'd, and Houfcs built on the Ground.
F. was an Inhabitant within the Limits of N. and libell'd againft for rcfufing to contribute to the Re-
pairsof M. And upon a Demurrer to a Declaration in a Prohibition brought by him, the Qucftjon
was whether F. was contributory to the Repairs of M. It was argued for the Plaintiff, That an Union
of Churches intended no more at Common Law than a Confolidation of the Tithes, but that thr
Bounds thereof continued diftinft, as before the Union ; for an Union is always with Refpcft to, and
for, the Benefit of the Parfon, and not to confound the Diftinftion of Pariflies ; but that they fhall re-
main feparate to all Purpofes, notwithftandingthe Union ; and befide.s, it is provided by this Statute,
that the Pariflies lliall remain feparate. And the Court inclin'd to continue the Prohibition for the
Reafons above. Carth. 238. Pafch. 4 W.& M. in B R. Feldown v. Beale. See Stat. 4 & 5 W.
& M. cap. 12. Infra, pl.S.
Upon a Motion for a Prohibition to a Suit in the Ecclefiaftical Court, upon a Rate againft the Inhabi-
tants of the Parifh of M. to contribute to the Repair of the Church of S. to which Parifh the Pari:h of
M. y/as united hy the JB for rebtiilding the City of London; it was argued, that tho' by tliis ACt the
Churches are united, and this Church is become the Parifh-Church to both Parifhcs, yet the Parifhes
remain diftitift, and the Inhabitants of S. cannot make a Tax to charge th; Inhabitants of M. As if in a
JIarket-Town 2 Churches are united, and one of them is oidcr'd to be pull'd down and the other is the
only Church in common to both Parifhes, yet this does not unite the Parifhcs, (^i;cd fuit conccflum
per Holt Ch. J. But he faid, that there may be a Differeme between fuch an tVi. « iy the Patrons and
Ordinary according to their ordinary Power by Law, and an Union as here made by Jei of Parliamtnt ;
for in the firft Cafe the Churches are united, yet fuch Union does not make one tlie Parifh-Church to
the other Parilh ; but they as to this Refpeft remain as before ; but here the Church is become the Pa-
rifti-Church to both PaTifhes, and therefore it may be veafcrablc that both Parifhc<; fhould contribute
to the Repair of it. And upon being moved agian, the Court faid a Prohibirion fhall go, for
now the Church of M. is taken away, and the Church of S. by the cxprefs Words of the Aft,
made the Parifh-Church of both Parifhes, and in all Refpefts as if it had been alway.s the Pa-
rifh-Church of both Parifhes; and then by Confequerce, in Law both Pariflies ought to contribute to
the Repair of it. And it was not the Intent of the Act to difcharge the Pariih of M. fioni contri-
buting to any Parifh-Church, as they would were they not chargeable to the Rep.iir of this. The Rule
for Prohibition was difchargcd. Skin. 5SS. 616. Mich. : VV. 3. B. R The Parifh of St. Swi;hin v,
St. Mary Bothaw.
7 N Seif. 3.
598
Union.
The King S. 3. JV/^^ere one or more of the Churches (hall he full at the ^ime offuch
■was felled Union, the Union Jhall take Ejfefi upon the Jirji Avoidance, and the feveral
ot tlie Ad- p.^trons Ihall prefenc by Turns, in fuch Order as the Bipop, with the Con-
t'he'vica°3''e f^"( '^'j ^'^'^ A'lajor ^c. and of the Patrons, /hall determine, faving to the
of L. in the King all Tenths and Firjl-Friiits, and alfo referving all Procurations and
Diocefs of Penftons.
land and the ArchBp. of A. was feifed of the Advowfon of the R cftory of the Churchof A. The King's
Incumbent died, and during lucli Vacancy the ArchBp by an Inftrument &c. by Virtue of this Statute,
united L. and A. The King prefented another Vicar The Archbifhop refufed to admit him. The King
brought a Quare Impedit againft the ArchBp. and Judgment was given againft him in B. R. in Ireland
whereupon Error was brought in B, R.in England. The Courtwasof Opinion, that this Statute never in-
tended ans [hihri jhcrUH be made of the 2 Churches after an Avoidance in one ; for by the Common Law (by
which this Adt niuft be conftru'd) there could be no Union but by the Confent of both Patrons; nei-
ther could it be made iii p-^fnit:, but by the Confent of both the Incumbents, tho' the Patrons did agree
to unite tho' it might be made infutyro without the Confent of the Incumbents. Therefore it would
be verv'hard to conllrue this Statute lb as to make an Union good, where both theChurchesare not full
at the Time tlie Union was made ; for "ds not fo by \.he.Canon Laiv in Cafes of Prefentation and Confo-
lidation, and it is that Law v. hich jlmld direct in this Cafe. 'Tis clear that the King, cannot be diveftcd
of anv of his Prerogarives by general VN'ords in an Act of Parliament, but that there muft be plain and
exrrcVs Words for that Purpofe, tho' all his other Rights are no more favour'd in Law than the Righti
of his Subjects ; and 'tis likcv.ife clear, that general Words in an Aft of Parliament may be qualified
by fubfequent Sentences or Claufes in the fame Statute ; but certainly it was never the Intent of the
.Le."inature, by this Adt, to work a Wrong to any Patron ; but it this Union fliould be good, it would
divdf the King of that Right which was already vcfted in him, to prefent to this Vicarage; and fuch a
Conrtruction of the Statute would be a Damage not only to the Crown, but it may happen fo to be to
feveral other Patrons. Befides in this Cafe, tliere being 2 Benefices united after an Avoidance in one,
'tis plain that the Archbifliop m.ide the Union for his own Benefit, which is againft a Principle in Law.
The whole Court agreed that the Judgment in Ireland fhould be affirm 'd. S Mod. ;, 8. Mich. ; Geo.
1-21. The Kiig V. Archbifliop of Armagh.
S. 4. Provided that no Union made hy Virtue of this Afi, he effcdual, un-
til it be regirter'd in the Regijler-book of the Bipop.
S. $. No Union made hy Virtue hereof pall be effe^ual, where the fettled
Maintenance belonging to the Inciwtbents (hall eyic^td. 100 1. per Ann. unlefs
the major Part ot the Parifjioners under their Hands defire otherwife.
S 6. Eiicry Miuifer of Churches united according to this Ati, pall he the
Incumbent thereof, fo as fuch Minifter he a Graduate in one of the Univer-
Jities of this Kingdo/n.
^' ^S^^rh 4- Ejectment upon a fpecial Verdi£l, the Cafe was, that H. and P.
t'' Skin 2 Churches, were united by the yf/? of 22 Car. 2. cap. 11. for rebuilding
o'l(5 inCafe the City, to the Church of St. Mary le Bow ; but a Provifton was made,
of the Parifli that the Minifers incumbent before the Fire, fkould receive their ancient Re-
of St. Swi- fijcnue during their Lives, fo long as they afftfi to ferve the Cure of the
thins, fay.s, (^j^^j.^;!^ ^q j^g rebuilt, in fuch manner as the Biihop Ihall appoint. And
that It was , ,-i/m • jj;i ,-
refolved that iiiterwards by 22 y 23 Car 2.. cap. 15. it W2.s provided, that where any of
their Cures, the PariftJes united became void after the Fire, by Death or otherwife, the
and their firviving Incumbent fhould have the Profits of fuch vacant Benefice as amply
^^"e'^bfo- '^" ■?/ ^^^ """"''^ Admitted, Inftituted, and Induced to it. The Incumbent of
lutely taken H. furviving the other, claim'd the Reftory of St. Mary le Bow ; but
away, and adjudg'd againft him, that this Claufe extended only to fuch Churches
tfiat they as became void after the Fire, and before making the Aft. 2 Jo. 160.
were only ^^j ^ g j^ Pullenv. Hutchinfon.
Stipendia- •'-'
ries ; and that this Cafe was affirm'd in Error.
S. P. Lord ^. Union was oi Spiritual Conufance till 37 H 8. 21. and then the
Raym Rep. Temporal Court took Cognizance of it, and the Incumbency oi xhtChuxchts,
PowelM. united is fx^;«(f? ; but Tithes and Modus continue afterwards i Per
and 199. per PowellJ. But per Treby Ch. J. The ancient Church or Reftory remains
Treby Ch. not, but this is a new Creature, a new Church, a new Patronage, a No-
J^Pafch^9 vum aliquod Tertium. i Salk. 165. pi. 4. cited in Cafe of Harman v.
Cafe^of" Rennew.
Reynoldfon
V. Blake and the Bifhop of London.
6. Union
Union. 599
6. Union of Churches^ by Concurrence of Parfon, Patron^ and Ordi- That was
nary, -was at Common Lazv, but not of Parijhes; Per Holt Ch. J. i Salk. ^''' "' ""
165. pi. 4. Mich. 7 W. 3. B. R. Harman v. Renew. lUTo^c
Reitory to
another; but ftill the Parifhes were diftinft, and that made not the ParifTi Church of A. to be the Pa-
rifh Church of B. but the Incumbent was as well the Incumbent of B. as A. and is obliged to ferve the
Cure if neceffary. 12 Mod. 82. S. C.
7. Upon an Union at Common Law, or by the Statute of Hen. 8. tho'
one Church be united to another, yet this does not unite the Parifhes, or bind
the Parilhioners of the Church united, to reforc to the Church to which ic
is united, but it is only an jipprcpriation i)/"the one Church to the ether; fo
that the Incumbent and his Succeflbrs of the other Church, fhall be Par-
fons of the Church united ; but this notwithllanding he is bound to ce- <
lebrate Divine Service &c. in the Church united ; and the Inhabitants
are not bound to refort to the other Church j Per Hole Ch. J, Skin.
616. in the Parilhof St. Swithin's Cafe.
8.4^5 ly. & M. cap. 12. 8. c. Ena6ls, That -juhere any Churches fiall be This Statutd
united by Virtue of the Aif 17 Car. 2. cap. 3. and one of the Churches pall extends only
be denwlijlfd; as often as the Church Prefcntati've Jhall be out of Repair, or ^^^^^^^\i^.,
there pail be need of decent Ornaments for Performance of Divine Service, the tug of "the
Paripionersoftbc Parip,'whofe Church pall be then- demolip'' d,flmU pay, to- Statute 17
wards the Charges of fuch Repairs and Ornaments, fuch Proportion as the Car. 2. as
Bpop pall by the Union direff, and for Want of fuch Diretiion, <^»<^ tkird^^^^f^^f "^^^
Part of fuch Charges, as the fame jhall be rated; and in Default thereof ^r^f^f^^l
fuch Proceedings jhall be had againft them as for the Reparation and Orna- it, fo as to
ments for their own Parip Church. Unions made
■^ in other
Cafes, the fame ftill remains as it was, viz. the Parifliioners of the Church united are not contributory
to the Repairs and Ornaments of the Church to which the Union is made, accordint; to Hobart, 67.
Neither can they, I fuppofc, bury their Dead there, but muit provide Burial-places for themfclvcs as
before the Union made. Watf Comp. Inc. Svo. 554. cap. 16.
(D) Pleadings.
I. T_T E who pleads Union of a Chapel to the College &:c. pall fay who Br. Appro-
X~X. made the Union, as the Pope, or the Ordinary &c. For to fay priation, pi.
Concurrentibus illis que de jure in hac parte requiruntur is not fufficient 9citesS.C.
by fuch general Words. Br. Pledings, pi. 168. cires 1 1 H. 7. 8. w Year
fol. 26. that
the Avowry [it being in Replevm] was adjudged good, notwithftanding it was not exprelTed who
made the Union.
2. Union was made concurrentibus his quse in hac parte de jure re-
quirebantur; and exception was taken, that it was not f aid by whom the
Union was made; but it was anfwer'd, that this was the Aft of a Spiri-
tual Judge, and the Common Law would not examine it no more than
Sentences of the Spiritual Court, and cited 11 H. 7. 8. 26. And at that
Time the Law was very uncertain what Churches were poor enough,
which gaveOccafion to the making of the Aft 37 H. 8. cap. 21. which
gave jurifdiftion to the Common Law to examine if Unions were well
made; per Powel J. Ld. Raym. Rep. 195. Pafch. 9 V\^. 3. in Cafe of
Reynoldfon v. Blake and the Bilhop of London .
For more of Union in general. See appropriation^, ^KlSfiflVM
Mortmain, and other Proper Titles.
Union
6oo
Union of England and Scotland.
Ibid. 58;. I. /^UEEN 'Anne, by Letters Patents heanng DiXte after the Union of
fays the Dit- \J England and Scotland, created the then Duke of Queensbury,
fhkSfe was ^^^" ^ '^^^^'^^ ^^^^'> ^° ^^ ^^ Unglip Peer, by the Title of Duke of
that in the ' Dover &c. who by Virtue of that Patent was afterwards fummon'd by
late ^uke Writ to Parliament, and was introduced accordingly, where he took his
of iFiatTiil*_ Seat and continued to Jit and vote in two fticcejjive Parliaments, and no Ob-
^^^l^olv'd-^^^'"^^ "'^^ made to fuch his Right at any Time during his Life. The
by the Lords Duke died leaving his Son an Intant, who on his coming to Age peti-
(Thurfday tion'd the King to Caufe ^ Writ of Summons to be iflued for his coming
20 Decern- ancj voting in Parliament. This was relerr'd to the Houfe of Lords who
*hV"o Pa- ^^^^^ Counfel at the Bar of the Houfe, but upon the Debate, the Majo-
tent of Ho- rity of Peers were againft allowing the Claimant the Privilege of Sitting
nourgranted in their Houfe. Wms.'s Rep. 582. to 593. pi. 169. Mich. 1719. The
to any Peer Duke of Queensbury and Dover's Cafe.
Britain who was a Peer of Scotland at the Time of the Union, ITiould intitle him to fit in Piarliament.
2. In the Cafe of Lord Grantham q3 al'. v. Gordon upon a Forfeiture for
Attainder of Treafon Wms.'s Rep. 617. Hill. 1719. there is a Memo-
randum, that in that Cafe it was admitted by the Counfel of the other
Side, that by the late Statute for the Union of the two Kingdoms, Trea^
fonSy and Profecutions for 'treafon s, are the fame in Scotland as in England.
And there is a Note added at the End of the fame Cafe, that the like
Determination was made by the Lords in the December following, in
the Cafe of Grantham & al'. v. Farquharfon.
6oo
Union of England and Scotland.
Ibid. 58;. I. /^UEEN Anne, by Letters Patents hearing Diite after the U»ton of
fays the Dit- V^ England and Scotland, created the then Duke of Queensbury,
fhi^Cafe was ^^^" ^ "^^"^^^ ^^^^^ ^° ^^ ^^ Ktiglip Peer, by the Title of Duke of
tha^tin the ' Dover &c. who by Virtue of that Patent was afterwards fummon'd by
late ^ukc Writ to Parliament, and was introduced accordingly, where he took his
of^,^vn\\f Seat and continued to Jit and vote in two fnccejffive Parliaments, and no Ob-
^^^'^^oly'd-^^^'^" ^^^ made to fuch his Right at any Time during his Life. The
by the Lords Duke died leaving his Son an Infant, who on his coming to Age peti-
(Thurfday tion'd the King to Caufe i Writ of Summons to be iffued for his coming
20 Decern- an{j voting in Parliament. This was referred to the Houfe ot Lords who
'h' '"'pa ^^^^"i Counfel at the Bar of the Houle, but upon the Debate, the Main-
tent of Ho- rity of Peers were againft allowing the Claimant the Pri
nourgranted in their Houfe. Wms.'s Rep. 582. to 593. pi. 169. I\
to any Peer Duke of Queensbury and Dover's Cafe.
Britain who was a Peer of Scotland at the Time of the Union, ihould intitle him t
2. In the Cafe oi Lord Grantham y aP. v. Gordon upon
Attainder of Treafon Wms.'s Rep. 617. Hill. 17 19. th
randum, that in that Cale it was admitted by the Cou:
Side, that by the late Statute for the Union of the two K
fons, and Profecutions for Treafons, are the fame in Scotlana
And there is a Note added at the End of the fame Cafe
Determination was made by the Lords in the Decemb
the Cafe of Grantham & al'. v. Farquharfon.
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