How, and in what Cases Special Verdicts shall be taken by Intent or Presumption, and what things shall be supplied.

I Devise all those my Lands in Shelford cal∣led Somerby, to W. in Tail remainder over, and it is not found per Verdict, that those Lands in the Action are called Somersby. But per Cur. for as much as the contrary is not found, it shall be intended, that he had not other Lands in Shalford, than those which were called Somersby, tho' that name be not at first given them; for it was, I Devise all my Lands in Shalford to his Wife for Life, and the remainder in Tail prout ante, Co. Eliz. 828. Peck and Channel.

It shall be intended, that the Reversion continues in the Party, as if a Special Ver∣dict find that A. was possest for years of Land, and that the Reversion in Fee was in B.* and that A. Devise the Term to C. after the Death of M. whom he makes his Execu∣tor, and dies, and M. enter, and during his Life C. after releaseth his possibility to B. and it is not found, that the Reversion con∣tinued Page  191 in B. at the time of the Release; yet it shall be intended to continue in him in a Verdict, it being found to be once in him by the same Verdict before, p. 13 Car. 1. B. R. Johnson and Trumper.

A Life shall be intended to be in being tho' not found,* as was Fretzvil and Mol∣lineux's Case. If the Jury find the Title of the Plaintiff to be under one, who was Lessee for Life, and they find the Estate for Life, but do not find the Tenant for Life is alive; The Life shall be intended and supplied, the conclusion and reference to the Court being upon other matter. Special Vedict in Ejectment found, that J. J. was deprived by the high Commissioners of a Benefice, and it is found in this manner, That such persons authorizati virtue Literar' Patent' Eliz. Reg.* and it is not found, that the Letters Patents were under the great Seal; yet this is good, and shall be intended in a Verdict, Tr. 13 Car. 1. B. R. Allen and Nash.

In Ejectment, The Verdict was on a Pro∣viso of Revocation of uses, That it should be lawful for the Covenantor, being in per∣fect health and memory, under his Hand and Seal, and by him delivered in the pre∣sence of three credible Witnesses, &c. It was agreed, That tho' the Verdict do not find the Covenantor was in perfect health and memory; yet that was well enough, for it shall be presumed, except the contrary were shewed,* and so for the presence of credi∣ble and sufficient Persons. Otherwise, if it were in the presence of sufficient subsidy Men, Hob. 312. Kibbet and Lee.

Page  192 If the Jury find that J. S. was seised in Fee, and devised the Land to J. D. altho' they do not find the Land was held in Soc∣age, yet that is good; for this shall be in∣tended, it being a Collateral thing, and it being the most common Tenure.

If the Jury find that J. S. was seised in Fee,* and made his Will in haec verba, and that he afterwards died; altho' they do not find he died seised, yet it shall be intended, he died seised, and so good. But

If the Jury find the Words of the Will, and yet do not find the will, the Verdict is not good

And if the Jury find a Bargain and Sale, and a Fine,* and do not mention Inrolment or Proclamations, it shall not be intended, Hob. 262.

In Ejectione Firme, the Verdict finds that E. D. the Lessor, and Conisor was seised in Tail of the Manor of B. at the time of the Recognizance, and that this Manor was delivered in Extent; but he doth not say that the Lands in the Declaration were parcel of the said Manor, and so its not found,* that this Land was delivered in Ex∣tent, and then the Defendant had no Title. Per Cur. its not material, it shall be intended in a Special Verdict; otherwise there is no Cause of a Special Verdict, Cr. Car. 458. Cleve and Vere.

It was objected in Corbet and Stones's Case, p. 1653. B. C. The Jury find that after a Fine levied, and before the Ejectment, the inter∣est of M. C. F. B. and K. B. of the Lands in Question, came to the Lessor of the Page  193 Plaintiff,* but shews not how. But per Cur. it is good enough, for when the Jury finds the interest comes to the Lessor, the Court intends all Circumstances, that shall conduce to that fact; for the Court doubts not when the Jury doubts not, 4 Rep. 65. Full∣wood's Case.

The Jury find that J. C. came before the Recorder of London,* and Mayor of the Sta∣ple, and acknowledged himself to T. R. in 200 l. Exception was taken, that there was no finding of any Statute there; for it was found, that this was secundum formam Statuti, and that it was by Writing. But per Cur. its good enough, for all Circumstances shall be intended Raym. 150.

And there is another Rule in our Books persuant to this last,* in a Special Verdict the Circumstances shall be intended, or in a Special Verdict, the Circumstances of e∣very thing need not to be so strictly found as in pleading. As in Ejectment, the Jury found he delivered the Lease upon the Land, but found not, that he had entred and claimed, Cr. Eliz. 167. Willis and Jer∣min. And in Goodall's Case, 5 Rep. it was resolved, That all matters in a Special Verdict shall be intended and supplied, but only that which the Jury refer to the Consideration of the Court.

Also in Molineux's Case, Cr. Jac. 146. It was excepted to a Special Verdict, That the Life of B. who was Tenant for Life,* and the Lessor in the Action was not found: But per Cur. it shall not be intended that she is dead, unless it been found. And in a Spe∣cial Page  194 Verdict, all necessary Circumstances shall be intended, unless found to the con∣trary:* But some things the Court shall not intend, as in Sadler and Draper's Case, Sir Thomas Jones, p. 17. where the Case was whether the next of the Blood being of the half Blood (i. e. whether the Brother of the half Blood of the Mother of an Infant, shall be Gardian in Socage of Land, by dis∣cent on the part of the Father,) Cro. Eliz. 825. But because the Verdict did not find that the Lessor of the Plaintiff, who claims to be Gardian in Socage, was proximus in sangine à quel, &c. that the Court shall not intend it, and so no Title found pro Quer. Ideo nil. cap. per Bill.

If the Jury find a Special Verdict (viz.) A. deviseth his Lands to his Executors quo∣usque they shall Levy such Money, or his Heirs shall pay to them the said Sum, and conclude upon the matter si, &c. but they do not find the Heir had not paid the Money.* This quousque the Heir pay the Money, is parcel of the Limitation of the Estate which ought to have been found: Otherwise, the Court who is to Judge upon the whole matter, shall not intend it, Tr. 19. Jac. B. R. Langley and Pain. But if in a Special Verdict, the Jury find J. S. was sei∣sed in Fee of Land, and made his Will, and by it deviseth all his Estate to B. paying Debts and Legacies, and refer to the Court the matter in Law, (viz.) whether a Fee passeth by this, but find not that B. had paid the Debts and Legacies; yet this is a good Verdict, because it is a Condition, Page  195 properly and not a Limitation, Tr. 1651. Johnson and Kerman; yet if the Verdict find that J. S. was seised in Fee of Land, and possest of certain Leases for years of other Lands, and by his Will deviseth his Leases to J. D. and after deviseth to his Executors all the Residue of his Estate, Mortgages, &c. his Debts being paid, and his Funeral expences discharged; this was not a perfect Verdict, the matter in Law referred to the Court being, whether the Executors had an Estate in Fee by this Devise in as much as it is not found, that the Debts were paid, &c. which is a Condition prece∣dent so as the Executors cannot have it till the Debts paid, and venire de novo granted, Hill. 10 Car. 1. B. R. Wilkinson's Case, Vide 2 Leon. 152. Allen and Hill's Case, Condi∣tion must be punctually found.

To this purpose it is laid down often in our Books as a Rule.* That if the Jury find the substance of the Issue it is suffi∣cient, as in Ejectment of a Manor: If the Jury find there were no Freeholders, and so it is no Manor in Law; yet it being a Manor in Reputation, and so the Tenants pass by the Leases, therefore this Verdict is found for him who Pleads the Lease of the Manor, for the substance is whether Bar∣gain and Sale, de modo irrotulat' and not said in six Months, its good in a Verdict but not in a Plea, 3 Keb. 180. vide supra Corbet and Stones's Case.

If in Ejectment a Lease is pleaded of a Manor, &c. and the Issue is quod non dimisi• manerium, and the Jury give a Special Ver∣dict, Page  196 That there were not any Freeholders but diverse Copyholders of the Manor, and that it was known by the name of a Manor, tho' it was not any Manor in Law for de∣fault of Freeholders; and tho' this was al∣ledged in pleading to be a Manor,* which pleading is made by learned Men, and tho' this was in an Action adversary and not amicable; yet, for as much as the Issue is triable by the Lay-gents, and in truth the Tenements in which, &c. pass by the Lease; the Verdict is found for him that Pleads the Lease of the Manor, for the substance of the Issue is, whether it were demised or not, Vines and Durham's Case cited, 6 Rep. 77. in Sir Moyle Fincheb's Case.

8.* It is a Rule in Law, in such Actions in which one cannot Plead, there the mat∣ter to be pleaded shall be found by Ver∣dict, and this well; but where the Party may Plead there the same is to be pleaded by him, 1 Bulstr. 166.

The Jury may find a Warranty being give in Evidence, for in Ejectment from Trespass, and in Act on the Satute of 5 R. 2. cap. 7. A Warranty is not to be pleaded (or other personal Action:) The nature of a Warranty, and to have benefit thereby, is to be by way of Voucher and Rebutter in a real Action; and must Plead or lose the benefit of it, but in personal Actions Colla∣teral Warranty cannot be pleaded by way of Bar; yet it may be given in Evidence to a Jury, and the same is to be found by Verdict of the Jury, Vid. ibid. Heywood and Smith.

Page  197 9. If any thing be omitted in the Decla∣ration, or if more is put in the Declaration than is found by the Jury, if it makes a material variance between the Declaration and the Verdict, the Action shall abate as if a Declaration in Ejectment be of a Lease of three Acres; a Lease of a Moiety will not Warrant the Declaration: But if the variance be by way of Surplus or Defect, if it be not material in the extenuation of the Action, or Damages, Action will lye.

10.* The Jury may give a Verdict by pre∣sumption, as to find Livery in respect of long Possession; but if they find the mat∣ter Specially, the Court will not adjudge this a Livery, 1 Rolls Rep. 132.

11. A Verdict that finds part of the Issue, and nothing for the residue is sufficient, Vide postea.

12. Fraud ought not to be presumed, unless it be expresly found, 2 Rep. 25. 10 Rep. 56. Cr. Car. 549. Crisp and Pratt.