Tryals per pais, or, The law concerning juries by nisi-prius &c. by G.D. of the Inner Temple, Esquire.

PRECEDENTS, Containing the forms of Challenges to the Array, &c. and the Proceed∣ings thereupon. Pleas Puis le Dar∣rein Continuance; Demurrers upon the Evidence; Bills of Exception, &c. And the Law concerning the same, very useful for all Lawyers and Pra∣cticers; especially at the Assizes, &c.

A Form of Challenge to the Array.

ET nunc ad hunc diem scil't &c. venit predict' A. Quer' & B. Defend {per} attor∣nat̄ suos, & Iuratores fuer Impanellet̄ & demand & venerunt, & Inde predict' B. Ca∣lumniavit Arrajam̄ panell' predict' quia, &c.

This must be read by the Councel in French, and delivered to the Clerk to read it in Latin.

A Challenge to the Array, because the She∣riff is Cousin, &c.

Et su{per} hoc idem Henricus Vernon calump∣niat Arraimentsi pannelli p̄dict' quia dic. quod panellū illud arriat' fuit {per} quendam Johannem Zouch Militē jam & tēe Arrai∣ment' pred fact' vic̄ pred Com̄ Derb' qui quidem vic̄ est consanguineus pred Johannis Maners vizt. filii Georgii Zouch Arī filii Johannis Zouch Mil. fil' Johannis Zouch Arī filii Johannis Zouch Arī filii Willielmi Domini Zouch filii Alan Domini Zouch filii Willielmi Domini Zouch filii Elizabethe filie Willielmi Domini Roos Patris Williel∣mi Domini Roos Patris Thome Domini Roos Patris Elianore Matris Georgii Man∣ners Militis Patris Thome Comitis Rut∣land Patris pred Johannis Manners Et hoc paratus est verificare unde petit Iudicium ac quod panellum pred cassetur, &c. que qui∣dem calumpn̄ {per} pred Tho. Stanley dedic̄ {per} N. Sturley de Beachiff At̄ & R. F. de T. Ar̄¦triatores ad hoc electos & juratos com{per}ta est vera Ideo panellum pred cassetur & amovea∣tur, &c. Cokes Ent••ies, 340.

A Challenge because the Sheriff is Tenant, &c.

Et su{per} hoc idem Johannes Dom̄ St. John dic̄ qd J. D. At̄ vic̄ Com̄ p̄d jam existit quod{que}

idem J. D. tenet duodecim acras prati cum {per}tin̄ in Budenham in Com̄ p̄d de ipso Johanne Domino St. John ad voluntatem {per} reddit 40 s. eidem Johanni Domino St. John annuatim solvend Et ea de causa petit bīe Domine Regine de ve fac' hic xijcem, &c. ad triandum exitum p̄d superius junct̄ Co∣ronatorib{us} ejusdem Domine Regine in Com p̄d dirigend, &c. Super quo p̄d Tho. dic̄ qd p̄d Jo. D. non tenet p̄d xij acras prati cum¦{per}tin̄ nec aliquam inde parcell' de p̄fat̄ J. Domino St. John ad voluntat̄ {pro}ut idem Jo∣hannes Dominus St. John superius allega∣vit Ideo non obstante Calumpnia p̄d Jo. Dūi St. John ad p̄fat̄ vic̄ Precep••n̄ est eidem vic̄ qd ve fac. hic, &c. Cokes Entries 397.

A President of a Challenge for Default of Hundredors which hath been several times made use of at the Assises.

Et super hoc p̄d A. B per C. D. Attorn̄ suum ven̄ & Calumpn̄ Arriament̄ pannell' p̄d quia dic̄ qd villa de Dale in Com̄ p̄d in qua quidē villa causa Actionis oritur & in narratione p̄d quet̄ locatur & oriri suppon̄ est & Tem∣pore arriamenti pannelli illius fuit & adhuc existit infra hundred de Downs in Com̄ p̄d quod{que} modo vic̄ Com̄ p̄d non Retorn̄ seu impannellavit aliquos hundredos be hundred de Downs p̄d ad triand exit int̄ partes p̄d modo junct̄ nec Iur̄ modo Impannellat̄ &

retorn̄ habent seu aliquis eorundem Iur̄ ha∣buit vel modo habet aliquas t̄as seu tenen̄••ta infra hundred de Downs p̄d nec habent ha∣buer̄ seu aliquis eorundem Iur̄ habuit tem∣pore Arriamenti pannelli p̄d seu unquam antea vel postea seu habitant vel Commo∣rant aut aliquis eorundem habitabat vel Commorat̄ infra hundred pred modo vel Tempore Arriamenti pannelli illius Et hoc parat est verificare unde pet̄ Iudicium Et qd pannellum illud Cassetur, &c.

This must be under Councels Hand, and the Proceedings herein you may read before, if they Demurr thus

Moratur in Lege

W. T.

Ioynder in Demurrer

G. D.

The Form of a Challenge made by the De∣fendant, because the Plaintiff is the She∣riffs Cousin.

Et super hoc p̄dictus Defendens per A. B. Attorn̄ suum ven̄ & Calumpn̄ Arraiament̄ pannelli p̄d quia dic̄ qd pannellum illud fact̄ & arriat̄ fuit per C. D. At̄ modo & Tem∣pore Arriament̄ pannelli p̄d vic̄ Com̄ p̄d quiquidem vic̄ est Consanguineus E. H. gen̄ modo dimissori quer̄ in narratione pred quet̄ mention̄at videlt̄ fillius G. H. gen̄ filii

K. L. fillie M. N. filii O. P. Patris Q. R. Matris p̄d E. F. modo dimissori quer̄ in nar̄ p̄d nominat Et hoc parat̄ est verificare unde pet̄ iudgm̄ & qd pannellum illud casse∣tur, &c.

If the Plaintiff deny the Kindred and Affi∣nity, then thus,

Nient Cousin par le Manner

W. T.

est Cousin

G. D.

Then are two or more Triors sworn, but seldom more than two, and (after they have heard the Proofs and Evidence given to make good the Defendants Plea) they give their Verdict accordingly.

Note, The Plaintiff may if he please De∣murr upon the Challenge.

A Challenge to the Array, because no Knight was retorn'd upon the Jury.

Et super hoc predictus Com̄es {per} A. B. At∣torn̄ suum ven̄ & Calumpn̄ Arraiament̄ pannelli Assize p̄d quia dic̄ qd ip̄e est & Tempore Arraiamenti pannelli illius & an∣tea fuit Et adhuc est un̄ magnat̄ & pa∣tium hujus Regni Angliae & v••cem & locum in quolibet Parliamento ejusdem Regni ha∣bens Et qd Arraiament̄ Assize pannelli p̄d

Arraiat̄ fuit {per} C. D. Mil' nuper vic̄ p̄d Com̄ E. nullo Millite in eodem pannello Arriament̄ illius n̄iat̄ & retorn̄ existen sicut esse debuit secundum legem hujus Regni Angliae & hoc parat̄ est verificare unde pet̄ Iudgm̄ Et qd pannellum illud Cassetur, &c.

Vies tiel Challenge in le liure de Monsieur Plowden & demurrer sur ceo joinder in de∣murrer & Iudgment que le pannell ill soit casse en le Case del Count de Darbie, fo. 117.

A Challenge against the Sheriff for Retorn∣ing the Jury at the Instance, Request, and Denomination of the Plaintiff.

Et super hoc eadem A. B. {per} C. D. Attorn̄ suum ven̄ & Calumpn̄ Arraiament̄ pannelli ejusdem Iurē quia dic̄ qd pannellum illud fact̄ & arriat̄ fuit {per} E. H. mil' modo vic̄ Com̄ p̄d & Ministros suos ad demoninatio∣nem & promotionem ipsius quer̄ & infavorem ejusdem quer̄ & hoc parat̄ est verificare unde pet̄ Iudgm̄ & qd pannellum illud cassetur, &c.

To which the Plaintiff may plead that the Array of the Pannel, pred bene & equalit̄ factum & arriat̄ fuit {per} p̄dictum vic̄ & Mini∣stros suos, &c. juxta officii sui debit̄.

Or the Plaintiff, if he will, may confess it. But if he Plead, then the Iudges immedi∣ately assign Triors to try the Array, which seldom excéed two, who being chose and sworn, the Associate or Clerk in Court doth declare and rehearse unto them the matter and cause of the Challenge, and after he hath so done, concludes to them thus, And so your Charge is to enquire whether it be an even and Impartial Array, or a favou∣rable one; and if they affirm it. Then the Clerk enters underneath the Challenge.

Affirmatur.

But if the Triors find it favourable, then thus,

Calumpnia vera.

A Challenge because that the Town is within a Hundred of which the Plaintiff is Lord, and Prays a Writ to the next Hundred.

Et super hoc p̄d A. dic̄ qd predicta villa de Dale de qua transgr̄ p̄d facta fuit est infra hundred de B. Et quod ipse est Dn̄s ejusdem hundredi quod{que} omnes lib Tenentes in∣fra hundred illud sunt infra districtionem ip∣sius A. Et ea de causa pet̄ brē Dom̄ Regis de venire faciend hic xij &c. ad triand exitum predictum de prox visū in Com̄ p̄d ex••ra hundred p̄d ville de B. prox adjacen̄ vic̄ Com̄ pred dirigend Et quia p̄d Defendens hoc

non dedīt ei conceditur, &c. Jo. p̄cept̄ est vic̄ qd venire fac̄ hic in Octab sc̄i Hillary xij, &c. de prox & visū in Com̄ p̄d extra hundred pred predicte ville de Dale prox adjacen̄ {per} quos, &c. Et qui nec, &c. ad Recogn̄ &c. quia tam, &c.

Challenge because the Sheriff and two Coro∣ners are Tenants of the Plaintiff, and a Ven. fac. awarded to the rest of the Co∣roners.

Et su{per} hoc p̄d A. B. dic̄ qd tam p̄d C. D. mi∣les nunc vic̄ Com̄ p̄d qm̄ E. F. & G. H. duo Coron̄ sunt Tenentes ipsius nunc I. Et in∣fra districtionem suam Et ea de causa pet̄ br̄e ipsius Dom̄ Regis de Ven. fac. hic xij, &c. E. A. & R. P. resid Coron̄ ejusdem Dom̄ Regis in Com̄ p̄d dirigend ad triand exit p̄d & quia p̄d W. hoc non dedīt ei conceditur, &c. Jo. prec̄ E. A. & R. P. quod Ven. fac. hic, &c.

Challenge where after the last Continuance the Cosin of the Plaintiff is made Sheriff after Issue joyned.

Quia tam, &c. Ad quem diem hic̄ veū partes, &c. Et vic̄ non misit br̄e Et super hoc predictus Quer̄ dic̄ qd post ultimam con∣tinuationem placiti videl' postea Octab sc̄i Michis ultimo pret̄ito de quo die loquela p̄d

ult̄ continuat̄ fuit hic us{que} ad hunc diem sci∣licet tali die ultimo pret̄ito Dominus Rex nunc per lr̄as suas patentes Commissit cui∣dem A. B. mil'i custodiam Com̄ p̄d quarum quidem literarum paten̄ pretextu idem vic̄ Com̄ illius jam existit Quiquidem A. B. est Consanguineus p̄d quer̄ vizt̄ fil', &c. Et ea de causa pet̄ breve Domini Regis de venire fac. hic xij, &c. Coron̄ Dic̄ Com̄ Regis Com̄ p̄d dirigend Et quia predictus Defendens hoc non didicit̄ ei conceditur, &c. Et prec̄ est Coron̄ Dom̄. Regis Com̄ p̄d ven. fac. &c.

Challenge because the Sheriff is of Councel with the Plaintiff, and hath received Fees, and the Defendant doth deny the Chal∣lenge, therefore the Venire fac. awarded to to the Sheriff notwithstanding.

Et super hoc p̄dictus quer̄ dic̄ qd quidem A. B. vic̄ Com̄ p̄d modo existit quiquidem A. B. est de consiliis ipsius quer̄ & habet de eodem quer̄ Annuum Redditum sive feod xxl. Et ea de causa pet br̄e Dom̄ Regis de veni' faciend' hic xij, &c. Coron̄ Dom̄ Regis Com̄ p̄d dirigend Et quia predictus defendens hoc dedic̄ Iō non obstante allegationis p̄d que•• prec̄ est vic, &c.

Challenge because the Plaintiff is Brother to the Sheriff.

Et super hoc quidem querens dic̄ qd A. B. miles modo vic̄ Com̄ p̄d existit & frater ejusd quer̄ Et ea de causa pet̄ br̄e Dom̄ Regis de Venire faciend' hic xij, &c. Coron̄ dic̄ Dom̄ Regis Com̄ p̄d dirigend Et quia p̄d defen∣dens hoc non didicit̄ ei conceditur, &c. Iō, &c.

Challenge where the Plaintiff is Sheriff, and one of the Coroners in his Tenant.

Et super hoc p̄d Quer̄ dic̄ qd ipse est vic̄ Com̄ p̄d & qd sunt in eodem Com̄ Duo Co∣ron videlt̄ R. H. & R. D. quod{que} idem R. H. unus Coron̄ ejusdem Com̄ ten̄et de ipso quer̄ unum Messuagium, &c. {per} fidelitatem & an∣nuum * 1.1 reddit singulis annis ad festa, &c. per equales porc̄ones solvend Et eis de causis pet̄ br̄e Dom̄ Regis de Ve fac. hic xij, &c. p̄sat̄ R. D. alt̄ Coron̄ Com̄ pred dirigend & quia, &c. conceditur Et precept. est eidem R. D. qd, &c.

Another Challenge to the same purpose.

Et su{per} hoc idem quer̄ dic̄ qd A B. vic̄ &c. * 1.2 ten̄et 10 a••r̄ t̄re cum pertin̄, &c. de ipso quer̄ ut de Mannerio, &c. per fidelitatem, &c. Et ea de causa pet̄ br̄e ut supra.

Challenge because the Wife of the Plaintiff is Kin to the Sheriffs Wife.

Et super hoc idem Querens dic̄ qd p̄dicta * 1.3 Bridgitta nunc uxor H. I. modo vic̄ Com̄ p̄d consanguinea A. uxori prefat̄ quer̄ videlt̄ fillia Misororis ipsius A. uxor̄ prefat̄ quer̄ Et ea de causa pet̄ br̄e, &c. Coron̄, &c.

Challenge because the Plaintiff is the Sheriffs Servant.

Et super hoc idem Quer̄ dic̄ qd ipse est serviens & de librea R. T. millitis modo vic̄ Com̄ p̄d & ea de causa, &c.

Challenge after the Jury Impannelled, re∣torn'd and called, because the Prie in Aid is Sheriff, and of the Councel of the Plain∣tiff, and a Distringas Jur' with A. 10 tales Coron' awarded.

Et modo hic adhunc diem ven̄tam p̄d R. Ac p̄dicti J. S. & W. V. qui se seperatim junrer̄, &c. quam p̄d W. M. {per} Attorn̄ suos p̄d & Iur̄ inde impannellat̄ exact quidem eo∣rum ven̄ & quidem eorum non ven̄ prout pa∣tet in pannello, &c. & super hoc p̄d R. H. ac p̄d J. S. & W. V. qui seperatim junxer̄, &c. dic̄ qd pred J. S. modo vic̄ Com̄ p̄d existit quod{que} idem J. S. est de feodo p̄d W. & consil∣lie

in premissis & aliis negociis suis etaliis de causis pet̄ br̄e de distrinḡ Iur̄ Iure pre∣dicte unacum 10 talib{us} de visu p̄d eis imponend Coron̄ Dom̄ Regis Com̄ p̄d diri∣gend * 1.4 super quo quesit est a p̄dicto W. M. si∣quid pro se habeat vel dic̄ Sciat quare br̄e illud Coron̄ Dom̄ Regis Com̄ p̄d distrinḡ Iur̄ Iure p̄d unacum 10 talib{us} de visu pred eis impon̄end ratione permissorum fieri non debet quia dic̄ qd non Iō p̄c' est. Coron̄ Dom̄ Regis p̄d qd distrinḡ Iur Iure p̄d {per} omnes terras, &c. & qd de exit, &c. Ita qd habent corpora, &c. ad fac̄ Iuram p̄d Et appon̄ ei 10 tales, &c.

Challenge because the Plaintiff is one of the Sheriffs of London, and the Ven' fac' awarded to the other Sheriff.

Et super hoc p̄dictus Querens dic̄ qd ipse ac quidem Johannes Blunt miles sunt vic̄ London & pro eo qd ipse est unus vic̄ London pet̄ qd processus de Venire fac. hic xij, &c. ad triand exit p̄dictum p̄fat̄ J. B. tantum diri∣getur, &c. & quesit est a p̄fat̄ defend siquid dicere Sciat quare processum illi p̄fat̄ Johan∣ni Blunt altero vic̄ &c. tantum ea ratione fieri non debet qui dic̄ qd non Iō prec̄ est ei∣dem Johanni Blunt altero vic̄ &c. qd Ven. fac. in Octab pur: Ita qd p̄dictus querens in nul∣lo se intro mittat̄ xij, &c. per quos, &c. & qui nec, &c. ad recogn̄ &c. quia tam, &c.

Challenge to the Deputy Sheriff, because he Impannell'd and retorned the Jury at the instance and denomination of the Plaintiff.

Et super hoc p̄d Defendens Calumpn̄ Ar∣raiam̄tum pannelli Iurate p̄d eo qd pannel∣lum illud factum & arraiat̄ fuit {per} T. W. sub vic̄ Com̄ p̄d ad denominationem pred quer̄ & in favorem & promotionem ejusdem quer̄ Que∣quidem Calumpnia {per} Triatores ad hoc elect & Iurat̄ Comperta est vera Iō, &c.

Challenge by the King's Serjeant upon an In∣dictment of Felony, because the Sheriff re∣torn'd the Jury of Life and Death at the i••∣stance and request and denomination of the Prisoner.

Laurentius B. nuper de A. in Com̄. pred. gen̄. capt̄ &c. Recitando totum indictamen∣tum us{que} Iō fiat inde Iurā &c. super quo A. B. serviens Dom̄ Regis ad legem pro eo∣dem Domino Rege Calumpn̄ Arraiament̄ pannelli Iur̄e p̄d quia dic̄ qd pannellum il∣lud fact̄ & arraiat̄ fuit {per} Henricum Fortescue vic̄ Com̄ p̄d ad denominationem p̄fat̄ Lau∣rentii & in favorem & promotionem ejusdem Laurentii quequidem Calumpn̄ {per} Triatores inde Iur̄ compert̄ est vera Iō pannellum a∣moveatur & cassetur, &c. & Ven••••e ••a••. award∣ed to the Coron̄.

Challenge by the King's Serjeant for the King to some of the Jury for Default of Freehold, to the value of 40s. per Annum.

Super quo facta publica proclamatione pro Domino Rege, &c. ac quidem J. G. miles ser∣viens dic̄ Dom̄ Regis ad legem nunc pro eo∣dem Domino Rege ven̄ & quidem Iur̄ modo comparen̄ videl't J. L. in Iuram̄ p̄d Iurat existit Et quia resid Iur̄ ejusdem Iur̄e modo Comparen̄ non habent acras seu tenementa in Com̄ p̄d ad annuum valorem xl s. a pannel∣lo illo penitus extrahuntur, &c.

Mich. 23 and 24 Eliz. Rot. 109. There∣fore * 1.5 came thereupon the Iury before the Lord the King at Westm. the day, &c. and who neither, &c. to Recognize, &c. because as well, &c. the same day is given to the said parties there, &c. at which day before the said King at Westm. came the said Parties by their said Attorneys, and the Sheriff sent not the Writ; and upon this, the same * 1.6 Plaintiff saith, That after the last conti∣nuance of the said Plea, that is to say, after the Saturday next after, &c. now last past; from which day the said Plaintiff was conti∣nued here until this day, that is to say, the day, &c. R. P. Esq; late Sheriff of the said County of E. from the same Office of She∣riff of that County was duely amoved, and the said King now by his Letters Patents,

ha••h Committed unto one T. P. Knight, the Custody of the said County of E. by pre∣tence of which said Letters Patents the said J. P. now remaineth Sheriff of that County, which said T. P. of A. at A. aforesaid, took to his Wife Anne of the Blood of M. now the Wife of him the Plaintiff; that is to say, the Daughter of R. D. the Son of W. D. Knight Father of Anne, Mother of the said M. now Wife of him the Plaintiff; which said T. P. Knight, and A. had Issue betwéen them A. P. yet alive, and in full life remaining at A. aforesaid, and this he is ready to prove, &c. And out of that cause he prayeth a Writ of the Lady, the now Queen, of Venire fac. to try the said Issue in form aforesaid joyned, to be directed to the Coroners of the said County; and because the said Defendant doth gain-say, and doth not grant that to be true, therefore notwith∣standing the same Challenge, a Command * 1.7 is to the Sheriff, that he make to come Twelve, &c. of the Visne of B. by whom, &c.

Easter Term, 38 H. 8. Rot. 558. And here∣upon * 1.8 the Defendant doth Challenge the Ar∣ray of the Pannel of the said Iury, because he saith, That that Pannel was made and arrayed by A. and C. Coroners of the said County at the Denomination, and in favour of the Pannel of the said Plaintiff, and this he is ready to verifie, and requesteth that the same Pannel may be quashed. And the

said Plaintiff saith, That the said Pannel by the said Coroners was well and equally made; and not at the denomination, nor in favour, nor in promotion of the said Plain∣tiff; whereupon the said Iustices by the con∣sent of the said Parties, did choose and as∣sign D. and E. two of the said Iury now ap∣pearing, to try the said Challenge; which said Tryors being elected and tryed, say up∣on their Oaths, That the said Pannel was well and faithfully made and arrayed by the said Coroners, and not at the denomination, neither in favour nor in promotion of the said Plaintiff; whereupon the Iurors of the said Iury being called, tryed, and sworn, say, &c.

A Precedent of Challenge to the Array.

May it please you, Mr. Baron, This En∣quest you ought not to take, for that Sir John Ramsden Knight, Sheriff of the County of York, who did retorn the Pannel betwéen the said A. Plaintiff, and B. Defendant, is Co∣sin to the Plaintiff, &c. and shew how of Kinn, &c. and so where the Challenge is for lack of Hundredors, or other principal Challenge put it down, &c. and this he is ready to averr, whereof he prays Iudg∣ment, and that the said Pannel be quashed.

Or thus, And now at this day S. &c. comes the aforesaid J. S. Plaintiff, and J. B. De∣fendant by their Attorneys, and the Iurors also impannelled and demanded did come, and thereupon the said J. B. doth Challenge the Array of the Pannel aforesaid, be∣cause, &c.

This must be put in Writing, but under Counsels hand, where the Challenge is to the Poles, it is in short way by a Verbal Challenge; see the learning of this is excel∣lent, and copious in our Books.

A Precedent of a Plea after the last Con∣tinuance.

And now at this day, &c. comes such a one Defendant by J. C. his Councel, and saith, This Action the Plaintiff against the Defendant ought not to maintain; for that after the Quindene. of the Holy Trinity last past, from which day until such a day in Mi∣chaelmas Term next, unless the Iustices of Assizes before come such a day, &c. the Action aforesaid is continued, &c. the Plaintiff by his Déed dated, &c. did Release, &c. and shew the Matter what it is, whether in abate∣ment in Bar dilatory, or peremptory, as the Case is, &c. and this he is ready to averr.

Note, Brook in his Abridgment, tit. Con∣tinuance, 61. & 83. says, That after the Inquest is awarded to inquire of Damages, The Defendant cannot plead a Plea Puis le darrein Continuance, because he hath no day in Court to Plead.

The day of Nisi prius, and day in Bank are all one; so that a Release made betwixt these days cannot be pleaded in Bank; but it seems that a Release made betwéen the day of the Venire facias retorned, and the Writ of Nisi prius awarded, and the day of the Nisi prius may be pleaded at the day of the Nisi prius, but not after the Verdict, 21 H. 6. fo. 10. Bro. tit. Jour. &c. 31 tit. Continu∣ance, 76. 42. 27. 13.

A man shall have but one Plea after the last Continuance; for the Plaintiff shall not be delayed ad infinitum, 16 H. 7. 11. Bro. tit. Continuance, 59. 41. 45, 46. 5. 21.

After the Inquest taken by default, and before Iudgment the Defendant came and pleaded an Arbitrament, made after the last Continuance; And by the Opinion of the Court, he had no day in Court to plead this Plea, and 'twas said, That he could Plead no Plea in such Case, but as Amicus Curiae, and of matter apparent he shall be receiv∣ed; otherwise, he must resort to his Au∣dita

Quaerela 21 H. 7. 33. Broke ibid. 38.

But if the Iury remain for default of Iurors, the Defendant may plead a Re∣lease, &c. at the day in Bank Puis le dar∣rein Continuance, although he did not offer it at the Nisi prius, otherwise if the Iury had béen taken at the Nisi prius, 22 H. 6. 1. Broke. ibid. 30.

If it be pleaded at the Nisi prius, the Court Record the Plea, and discharge the Inquest, and give day to the parties in Bank, Bro. ibid. 34. 8.

In Debt after Issue joyned, the Defen∣dant at the Nisi prius pleaded Payment of part after the latter Continuance in Abate∣ment. And the Iury being discharged, and the Plea adjourned in Bank; for that no place of Payment was pleaded, the Plain∣tiff had Iudgment to recover his Debt, be∣cause after Issue joyned, no Respondes ouster can be awarded, L. 5. E. 4. 139. Aleyn's Re∣ports 66. in the Case of Beaton and Forrest.

Now, although when difficulty arises in the Evidence, the matter is most commonly (of late) found specially, and Demurrers on the Evidence are seldom used; yet in asmuch as it is sometimes done, and that our Pra∣cticer may be prepared with an Authen∣tick Precedent for that purpose, I shall

transcribe one out of Coke's Entries, fo. 134. viz.

Postea die & loco Infra Content̄ Coram * 1.9 Jacobo Dyer Milite Capitali Iustitiat̄ Dom̄ Regine de Banco & Nicolao Barham uno ser∣vient̄ dict̄ Dom̄ Regine ad legem Iustic̄ ip∣sius Dn̄e Regine ad assisas in Com̄ N. Ca∣piend assign̄ {per} formam statuti, &c. ven̄tam infra nominat̄ J. A. quā infra script̄ H. C. {per} atturnat̄ suos infra Content̄ & Iur̄ Iure unde infra fit mentio Exact̄ similit̄ vener̄, Qui ad veritatem de infra Content̄ dicend, electi, triati, & Iurati fuer̄ Super quo p̄d H. {per} quendam J. B. de Consilio ipsius H. C. manutentione exitus interius Iunet̄ Coram p̄fat̄ Iust̄ Iur̄ p̄d in Evidentijs oftend & dic̄ quod, &c. [Here recite the Evidence truely] unde petit̄ Iudiciū, & qd Iur̄ p̄d veredict̄ suum de & su{per} infra Content̄ pro ipso H. reddant, &c.

Et pd J. A. {per} quendā C. J. de Consilio suo * 1.10 dic̄ qd materia {per}d {per} p̄fat̄ H. C. Iur̄ pred su{per}ius in Evidentiis ostent̄ minus in lege existic ad pro band exitum interius Iunct̄ pro parte ejusdem H. quod{que} ipse ad materiam illam in forma p̄d in Evident̄ ostent̄ necesse necesse non habet nec {per} legem terr̄ tenet̄ re∣spondere, & hoc paratus est verificare, unde pro defectu sufficient̄ mater̄ Iur̄ p̄d in hac parte ostens. Idem I. petit̄ Iudic̄▪ & quod Iur̄ de Veridict̄ suo su{per} Exit p̄d reddend ex∣oneretur

& debitum suum infra spec̄ una cum dampn̄ suis occasione de tent̄ debiti illius sibi addiundi cari, &c.

Et p̄d H. C. Ex quo ipse suffic̄ mater̄ in * 1.11 lege ad manutenen exit̄ infra Content̄ pro parte ipsius H. Iur̄ pred su{per}ius in Evident̄ ostens. qd ipse {per}at̄ est verificare, quā quidem materiā p̄d J. non dedicit nec ad eam aliqua∣liter respond sed verificationem illam admit∣tere omnino recusat pet̄ Iudic̄, & qd pred J. ab actione sua pred versus Eum habend pre∣cludatur, ac qd Iur̄ pred de Veredict̄ suo su{per} exit̄ pred reddend onerentur, &c.

A Precedent of a Demurrer upon the Evidence.

And now at this day the said Plaintiff and Defendant by their Attornies did appear, and the Iury likewise did appear and were sworn, &c. upon which Sir T. W. Ser∣jeant at Law, of Councel with the Plaintiff, gave in Evidence so and so, and repeat it truely, and did require the Iurors to find for the Plaintiff, upon which, J. C. of Councel with the Defendant saith, That the Evidence and Allegations afore∣said alledged, were not sufficient in Law to maintain the Issue joyned for the Plain∣tiff, to which the Defendant néedeth not, nor by the Laws of the Land is not holden

to give any Answer; wherefore for default of sufficient Evidence in this behalf, the Defendant demands Iudgment, that the Iurors aforesaid of giving their Verdict be discharged, &c. and that the Plaintiff be barr'd from having a Verdict, &c. Then the Plaintiff joyns and says, That he hath given sufficient matter in Evidence, to which the Defendant hath given no An∣swer, &c. and demands Iudgment, and that the Iury be discharged, and that the Defendant be Convicted; then the Iury may give Damages, if Iudgment shall hap∣pen to be for the Plaintiff, &c.

A Bill of Exception.

Memorand. That the First day of August, * 1.12 An. 1650. before T. P. and W. Iustices of our said Lord the King for taking of Assizes in the said County assigned, in a Plea of Trespass and Ejectment, which J. S. in the Court of our said Lord the King before himself, by Bill doth Prosecute against E. B. supposing by the said Bill, that the aforesaid T. B. &c. and recite the substance of the Declaration, or what it is, &c. and the Issue, and then what the Evidence to prove the Defendant guilty was▪ &c. which here was a Surren∣der of a Copyhold out of Court, &c. and that he desired the Iury aforesaid to give

their Verdict for the said T. B. of and up∣on the Premisses, and that he likewise desired the Iudges aforesaid that they would inform the Iury aforesaid, that the Sur∣render aforesaid out of Court made, was good and effectual in Law, and the afore∣said Iustices, the aforesaid Surrender of the Land aforesaid, with the Appurtenan∣ces made out of Court of the Mannour a∣foresaid, in form aforesaid, did affirm to the said Iurors was not good in Law, by which the said Thomas for that the aforesaid matter to the said Iurors in Evidence shewed doth not appear, &c. did request of the said Iustices according to the form of the Statute in such case provided this pre∣sent Bill, which doth contain in it the matter aforesaid above by him to the Iu∣rors aforesaid shewed, by which the said * 1.13 Iustices at the request of the said Thomas this Bill have sealed at D. aforesaid.

1. Westm. 2. 31. 13 E. 1. When the Iustices will not allow a Bill of Exception upon Prayer, if the Party impleaded ten∣der the same unto them in Writing, and requires their Seals thereunto, they or one of them shall do it.

2. If the Exception sealed be not put into the Roll, upon Complaint thereof to the King, the Iustice shall be sent for, and if he cannot deny the Seal, the Court

shall procéed to Iudgment according to the Exception.

This Bill of Exception is given by the Statute Westm. 2. cap. 31. before which Statute a man might have had a Writ of Error; for Error in Law either, in reddi∣tione Judicii, in redditione Executionis or in Processu, &c. which Error in Law must be apparent in the Record, or for Error in sait; by alledging matter out of the Record, as the death of either party, &c. before Iudg∣ment. But the mischief was if either par∣ty did offer any exception, praying the Iusti∣ces to allow it, and the Iustices over-ruling it, so as it was never entred of Record, this the party could not assign for Error, because it neither appeared within the Record, nor was any Error in fait, but in Law, and so the party grieved was without remedy until this Statute was made.

This Act extendeth to all Courts, to all Actions, and to both parties, and to those who come in their places, as to the vouchee, &c. who comes in loco tenentis.

It extendeth not only to all Pleas Dila∣tory and Peremptory, &c. to Prayers to be received, Oier of any Record or Déed, and the like; but also ••o all Challenges of Iurors and any material Evidence given to any Iury, which by the Court is Over-ruled. 2 Inst. fo. 427.

All the Iustices ought to Seal the Bill of Exceptions, yet if one doth it, it is sufficient, if all refuse, it is a contempt in them all. And the party grieved may have a Writ grounded upon this Statute, commanding them to put their Seals Juxta formam Statu∣ti. & hoc sub periculo quod incumbit nulla∣tenus omittatis.

The party must pray the Iustices to put their Seals, but if they deny it, they may be commanded, and may do it after Iudgment.

If the party grieved be dead, his Heirs or Executors, &c. according to the Case, may have a Writ of Error upon this Bill of Ex∣ceptions. And no diminution can be alledged, for the parties are confined to the matter in the Bill.

If the Iustice dye before he acknowledgeth his Seal according to the Act, a Scire sac. shall go to his Executor or Administrator, for the Death of the Iudge is the act of God, which shall not prejudice the party: As in the case of a Certificate of the Marshal of the King's Host, that the person outlawed was in the King's Service beyond Sea, in a Writ of Error a Scire fac. shall go to the Marshals Exe∣cutor or Administrator upon shewing the Certificate.

If the Iudge denyeth his Seal, the party may prove it by Witnesses, ib.

Error of a Iudgment at the Grand Ses∣sions in the County of Pembrok, in an Assise of darrein Presentment, by Henry Cort against the Bishop of St. Davids, Dorothy Owen & al. for the Church of Stackpoole.

The fourth Error assigned was, because the Issue being, whether H. Cort did last present one R. D. the last Incumbent who was instituted and inducted upon his Presen∣tation: The Plaintiff offered in Evidence Letters of Institution, which appeared to be and so mentions that they were sealed with the Seal of the Bishop of London, because the Bishop of St. Davids had not his Seal of Of∣fice there, And those Letters were made out of the Diocess; And the Defendant had de∣murred thereupon, That those Letters were insufficient, and the Demurrer was denyed, which Jones said was an Error, because they ought to have permitted the Demurrer, and should have adjudged upon it. But it was held that the not admitting of the Demurrer ought not co be assigned for Error: for when upon the Evidence the matter was over-ruled by the Iustices of Assize, That was a proper cause of a Bill of Exceptions, and the reme∣dy which the Statute appoints in that Case; And for the matter of the Letters of Institu∣tion sealed with another Seal, and made out of the Dio••ess, it was held they were good enough, for the Seal is not material, it being an Act made of the Institution, & the writing

and sealing is but a testimonial thereof, which may be under any Seal, or in any place. But of that point they would advise. Croke 1. part 340.

Note, This Bill is to prevent the precipitancy of the Judges, and ought to be allowed in all Courts, and in all places of Pleadings, and may be put in at any time before the Jury have given their Verdict.

But this Bill is rarely used, there being impar con∣gressus, betwixt the Judge and the Councel; and the Prudence of the Judges induce them to find special Verdicts in Cases of doubt and difficulty.

A Release Pleaded at the Assises after Issue joyned.

Et pred. Def. in propria persona sua ven. & dic. quod pred. Justic. Dom. Regis hic ad caption. Jur. * 1.14 pred. inter ipsum Def. & prefat. Quer. procedere non debent quia dic' quod post xii diem F. ult. preterit. de quo die Jurat. pred. inter partes pred. continuat, fuit, & ante hunc diem [scilt. diem de Assise] scilt. primo die M. Anno, &c. apud, &c. pred. Quer. per nomen, &c. remisit, relaxavit, &c. Et hoc, &c. unde pet. quod Justic. pred. ad captionem Jur. pred. ulterius procedere nolunt.

The Death of one of the Defendants Pleaded after the last Continuance.

Et pred. Def. per A. B. Attorn. suum ven. & pred. T. non ven. & super hoc pred. Def. dic. quod post ult. concinuationem placiti pred. scilt. post xv. Pasche ult. preterit. de quo die loquela pred. ult. continuat. fuit hic usq. ad hunc diem scilt. in Cro. sce. Trin. tunc prox' sequen' & ante eundem diem scilt. decimo die Maii ult. preterit. pred. T. apud A. pred. obiit Et pet. quod null. process' nec aliquid aliud in placito pred. ulterius versus prefat. T. fiat Et quia pred. J. & K. hoc non dedic. Ideo null. process. nec aliqui•• aliud in pla∣cito pred. versus prefat. T. fiat, &c.

A Baron Challenges the Pannel because no Knight was retorned of the same.

Et sup. hoc idem T. calumpniat arraiament. pa∣nelli pred. quia dic. quod ipse est & tempore arraia∣ment. panelli il••ius fuit Baro hujus Regni Angliae, lo∣cum & vocem habens in quol. Parliamento hujus Reg. Quod{que} in eodem pan••llo nullus Miles nominat. & retorn. existit Et hoo paratus est verificare unde petit Judicium & quod panellum illud cassetur, &c.

Evidence, and demurrer upon Evidence, Middleton against Baker. Cro. Eliz. 42. fol. 751.

In Eject. It was held by all the Court upon evidence to a Jury, That if the Plaintiff give in evidence any matter in writing, or Record or a sentence in the Spi∣ritual Court, (as it was in this case) and the Defen∣dant offers to demurr thereupon, the Plaintiff ought to joyn in the demurrer, or wave the Evidence, be∣cause the Desendant shall not be compelled to put matter of difficulty to lay Gens, and because there cannot be any variance of a matter in writing. But if either party offer to demurr, upon any evidence given by Witness, the other, unless he pleaseth, shall not be compelled to joyn, because the Credit of the testimony is to be examined by a Jury, and the Evi∣dence is incertain, and may be enforced more or less. But both parties may agree to joyn in demur∣rer upon such evidence. And in the Queens Case, The other party may not demurr upon evidence shewn in Writing, or Record, for the Queen, un∣less the Queens Councel will thereto assent; But the Court in such case shall charge the Jury to find the matter specially, as appears 34 H. 8. Dyer 53. But this is by Prerogative. vide lib. 4. 104. the same case, and 1. Inst. 72. where my Lord Cook says, If the Plaintiff in evidence shew any matter of Record, or Deeds, or Writings, or any sentence in the Ecclesi∣astical Court, or other matter of evidence by Testimony

of Witnesses or otherwise, whereupon doubt in Law ariseth, and the Defendant offer to Demurr in Law thereupon, the Plantiff cannot refuse to joyn in de∣murrer, no more than in a Demurrer upon a Count, Replication, &c. and so è converso, may the Plaintiff Demurr in Law upon the evidence of the Defendant: but the Kings Councel shall not be enforced to joyn in Demurrer; but in that Case, the Court may direct the Jury to find the special matter. So that the se∣veral sorts of evidence make no difference, as to the joyning in Demurrer. 1. part Leon. 206.

Darrose against Newbott. Cro. 4. Car. fol. 143.

In Error of a Judgment in Bridgewater: The Error as∣signed was, for that, in an Action upon the Case far As∣umpset, the parties being at issue, a demurrer was joyned upon the evidence, and thereupon the Jury discharg∣ed, and afterwards judgment was given for the Plain∣tiff, and a Writ of Inquiry of damages awarded, and damages found, and Judgment thereupon: where the Jurors which came to find the Issue, although by the Demurrer they were discharged of the Issue, yet ought to have assessed damages conditionally, if judgment should be given for the Plaintiff. And in proof thereof was cited Newis and Scholastica's Case in Plo. Com. fol. 408. and the old Books of Entries, &c. And it was said by the Court, If these Precedents be good Law, th•••• it may be inquired of by the same Jury conditional••y: But it may be as well inquired of by a Writ of Inquiry of damages, when the Demurrer is determined: And the most usual course is, when there is a demurrer upon evidence, to discharge the Jury without more inquiry. But as My Lord Chief Baron Montague held at the Assises in Cambridgeshire, 1682. it may be one way or other.

In the Assise by R. Newis and Scholastica his Wife a∣gainst Lark and Hunt, which was taken by default, The Precedent in Plowd. Com. as to this matter runs thus. Recogn' Assisae pred. exacti vene∣runt, qui ad veritatem de premissisdicend. electi, triati, 8 ••••rati fuerunt, sup. quo Willielmus Bendlows Ser∣viens

ad legem de consilio predictorum R. & Scho∣lasticae in manutentione Assisae pred. coram Justic. Dominae Reginae de Banco hic in evident. Recognit. Assisae pred. dixit, quod diu ante diem impetration is Assisae pred. quidam H. Clark fuit seisitus, ••c. Et condi∣dit testamentum & ultimam voluntatem sua in scriptis, inter alia, unde pars inde in hiis Anglicis verbis sequi∣tur, videl. Also this is the last Will and Testament of me the said Henry Clark, for and concerning, &c. Et ulterius idem Serviens ad legem ex parte pred. R. & S. dedit in evident. eisd. Recognit. quod, &c. Quo∣rum pretextu idem jam Serviens ad legem exigit quod iidem Recogn. Assisae pred. Assisam pred. de te∣nementis pred. cum pertin' in visu, &c. pro parte ipsorum R. & S. triari & comparere debeant, &c. Et veredictum suum dare debent quod. pred. W. Lark & J. Hunt dictos R. & S. de tenementis pred. cum pertin' in visu, &c. disseisiverant, &c.

Et pred. W. Lark & J. H▪ in propriis personis suis dic. quod evidentiae & allegatione•• pred. ex parte pred. R. & S. superius allegat. minus sufficien. in lege existunt ad manutenend. Assisam pred ad quos ipsi necesse non habent nec per leg. terrae tenentur respondere unde pro defectu sufficien. evident. in hac parte pet. judi∣cium quod juratores pred. de veredicto suo in pre∣missis dicend. exonerentur, &c. Et quod pred. R. N. & S. ab Assisa sua pred. habend. precludantur, &c.

Et pred. R. & S. dicunt quod ex quo ipsi sufficien. materiam in manutentione Assisae pred. in evident. recognit. pred. ostend. quam quidem materiam pred. W. Lark & J. Hunt non dedicunt nec ad eam aliqua∣lit. respond. petunt judicium Et quod iidem Jurator. inde exonerentur, & quod pred. W. & J. de Assisa illa convincantur, &c. Sup. quo dict. est Recogn. pred. quod inquir. quae dampna pred. R. & S. sustinuer∣tam occasione disseisinae pred. quam pro misis & cu∣stagiis suis per ipsos circa sectam suam in hac parte apposit. si conting. judicium pro eisdem R. & S. in placito pred. sup. evidentias pred. reddi Qui quidem Recogn. dicunt sup. sacram. suum quod si conting. judicium in placito pred. pro pred. R. & S. sup. evi∣dentias

pred reddi, iidem R. & S. sustinuer. dampna occasione disseisinae pred. ad 13 s. 4 d. & pro misis & custagiis suis ad 20 s. Et quia Justitiarii hic se advi∣sare volunt de & sup. premissis priu••quam judicium inde reddant, dies datus est partibus predict. &c.

Note, several Exceptions were taken to the manner of giving the Evidence: First, for that the intire Will was not shewed, but part, and that this being the foundation of the Evidence, the whole Will ought to have been shewed; for there might be some o••her matter of substance, as a Condition, Limitati∣on, &c. in the parts not shewed. But all the Justi∣ces disallowed this Exception, and said, the party, in any Title or Bar, needs shew no more, than what makes for him. As in an Act of Parliament, in which are divers branches, 'tis sufficient to shew that branch which serves ones purpose; and not like the Case of a Fine or Recovery of 20 acres, where I must shew the whole Record, although I am concerned but in one acre, because the Originial is intire, and so is the Record grounded upon it. See also Fulmer••ton and Stewards Case. Plo. Com. 102. Another Exception was, That the fine was not shewed under the Seal of the Court, or the Great Seal but one part indented of the Chirograph was only shewn, which the Jurors were not bound to believe, because it wanted a Seal. But all the Justices were against this, and said, the Jury might find the Fine of their own knowledge, without the shewing of the parties; or they might find it upon the Credit of any Witness that had seen it, and the shewing the part indented, is the usual evidence of a Fine. (Note, a Fine indented and not exemplified under Seal, &c. shall not be de∣livered to the Jury, 34 H. 6. 25.) And they said, be∣cause it is only the Inducement of the verity to the Jurors, the party could not Demurr upon this; for the effect of the matter is, that ther•• is such a Fine which is amongst the Records. And this is the sub∣stance of the matter, and the part of the Chirograph is nothing but the Image of the verity, and there∣fore 〈1 page missing〉〈1 page missing〉

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suum coram Baronibus hic prestitum in premissis, dicit, quod, &c. (here recite the Evidence.)

Et pred. Attorn. Domini Regis pro eod. Domino Rege dic. quod evidentiae pred. superius dat. minus sufficien. in lege existunt, ad manutenend. seu pro∣band exit. pred. pro parte ipsius A. F. superius ad pa∣triam junct. unde ob insufficient. earundem evi∣dent. ac ex quo per evidentias illas non dedicitur fo∣risfactura bonorum pred. in informatione pred. spec. i em Attorn. Domini Regis pro ipso Domino Rege petit judicium ac quod eadem bona remaneant Domi∣no Regi forisfacta juxta formam statuti pred. Et pred. A. F. dic. quod evidenciae pred. superius ex par∣te ipsius A. F. dat. sufficien. in lege existunt tam ad manutenend. & proband. exit. pred. pro parte dicti A. F. superius ad patriam junct. quam ad excludend. Do∣min. Regem de aliqua forisfactura bonor. pred. habend. Ad quas pred. Attorn. Domini Regis, pro ipso Do∣mino Rege minus sufficienter respondit, nec aliquod pro ipso Rege allegavit; unde idem A. pet. judi∣cium ac quod pred. bona in dicta informatione spec. ei reliberentur, quodque ipse quoad premissa ab hac Curia dimittatur. Ideo ad judicium.

Note, In this Case, the agreement according to the Statute, was put in Issue generally, and yet the speci∣al agreement maintained the Issue.

And wheresoever the Evidence do••h not warrant, prove * 1.15 and maintain the v••ny same thing that is in Issue, that Evidence is defective, and may be Demurred upon.

Upon non est factum to a Bond dated at York: It * 1.16 was said, in this case, that, to prove the Bond made in another place doth not prove the Bond nor Warrant the Issue, because the delivery is intended to be where the Dare is; but the Witnesses prove the contrary, and so the Issue is not proved: But surely if this be found, the Plaintiff shall have Judgment as well as up∣on a Bond delivered before the date. 31 H. 6. Plo. 7. Rolls 677. But infancy, or made by Dures, cannot be given in evidence upon non est factum, lib. 5. Whelpdales Case, 119. because thereby the Bond is not void but only voidable: Otherwise of the

Bond of a Feme Covert, or Monk, for there the Bond is void, and so non est factum; and so of a Bond made to a Feme Covert, and the Husband disagree to it, or by Husband and Feme, Non est factum of the Wife.

In an Assise if the Tenant plead Nul tort, nul disseisin, he cannot give in evidence a release after the dissei∣sin; but a release before the Disseisin he may, for * 1.17 then there is no Disseisin upon the matter.

In a Writ of Right, if the Tenant joyn the Mise * 1.18 upon the meer Right, he cannot give in evidence a Collateral Warranty, for he hath not any right by it, and therefore it ought to have been pleaded. 1. Inst. 283.

Regularly, whatsoever is done by force of a Warrant, or Authority, ought to be pleaded. * 1.19

But, Note, in all Cases where one cannot have ad∣vantage of the special matter, by way of Plea, there he may have advantage of it in evidence: as for ex∣ample, The rule of Law is, That one cannot justifie the Death or Killing of a man; and therefore if one kill another in his own defence, he cannot plead this specially; but he may give it in evidence: and so in defence of his House, against Thieves and Rob∣bers, &c.

By the Statute 23 H. 8. cap. 5. any thing done by * 1.20 the authority of the Commission of Sewers, may be given in evidence upon the general Issue.

After taking the General Issue, the Defendant cannot give in evidence any thing that goes in discharge * 1.21 of the Action; as in Debt upon nil Debet, he cannot give in evidence a Release, nor a grant to cut Trees, * 1.22 to repair upon nul wast fait, nor making of a Ditch to amend the Meadow▪ but that he only lopped the * 1.23 Trees, he may, if wast be Assigned in succidendo Arbores, &c. Neither if a Statute was made that all * 1.24 Tenants for life should be dispunishable of wast, could he give in evidence this Statute, 28 H. 8. Dy∣er 28. for the discharge ought to be pleaded, because it admits a Cause of Action without it.

In Debt against Executors, and Assets inter marus, * 1.25 in Issue, 'Tis good evidence that they sold Land, by the

Will of the Testator, &c. and that they had the mo∣ney. And so that they recovered Damages in Trespass for goods taken in the life of the Testator, &c. 3 H. 6. 3.

In an Issue upon Villenage regardant to a Mannor, * 1.26 a Villain in gross, is no evidence, Dyer 48.

In wast by the Grantee of a Reversion, by Mon∣tague * 1.27 and Fitz. The Lessee may plead that he in reversion ne grant a pas per le fait, and give in evi∣dence, that he never attorned, or he may Traverse the Attornment at his election, Dyer 31.

In Trespass, Quare clausum fregit, the Defendant * 1.28 says that locus in quo, &c. is 6 Acres in D. which is his Freehold: the Plaintiff replies that it is his Free∣hold, and not the Defendants: The Defendant can∣not give in evidence, other 6. Acres in D. which are his Freehold, because the plea shall be intended to refer to the 6 Acres of the Plaintiffs, Dyer 23.

In Rescous by the Lord, upon not guilty, the * 1.29 Defendant shall not give in evidence, that he doth not hold; by Vavasour and Bryan: and so if he said nothing is behind in avowry, he shall not give in evi∣dence that he doth not hold of him. T. 9 H. 7. 3. * 1.30

In Assise, Feoffment pleaded, the Plaintiff said, he * 1.31 did not enfeoff modo & forma upon the Deed and Letter of Attorney to Infeoff upon condition found, if the Attorny made it without condition, this well proves the Issue for the Plaintiff, 13 E. 4. 4.

If one plead a Feoffment of a Jointment to his Com∣panion, or of a Feme Covert, the other may say ne enfeoffa pas, and give the matter in evidence; and the Court shall instruct the Jury of the Law, 18 E. 4. 29.

Upon the general Issue, any thing may be given in evi∣dence, * 1.32 which proves the Plaintiff had no cause of Action.

Trespass by the Warden of the Fleet, upon not * 1.33 Guilty, you may give in evidence, that he is not Warden, 4 E. 4. 7.

So in Trespass of a House, that he had no house there, or the Freehold of another, and not of the Plaintiff, is good evidence upon not Guilty: but in Trespass of Goods, 'tis no good Plea to say, the pro∣perty

was in another, although it is in a Replevin; and therefore it seems to be no good evidence in Tres∣pass, because possession maintains the Action against all but the owner; but that the property was in a stranger, and he gave them to the Defendant, is good. See before cap. Evidence, 27 H. 8. 25. But in Trover, * 1.34 that they were not the Goods of the Plaintiff, is good evidence, 5 H. 7. 3.

Cessavit, 〈◊〉〈◊〉 Count, that of diverse Lands held by * 1.35 entire service, upon non tenuit modo & forma, held by several services, is good evidence, for he had no such cause of Action, 10 H. 7. 24.

Upon the general Issue, for the Defendant by evidence to * 1.36 convey to himself the same Interest and Title, •• good evidence.

As in Trespass of Goshauks, Not Guilty, and evi∣dence, * 1.37 that he had a lease of that Wood for Years where they were taken, is good, for it is his Title, 16 E. 4. 2.

Account of Receipt, by the hands of J. S. the * 1.38 Defendant pleads Ne unques son Receiver, and evi∣dence, that J. S. gave this to him, is good, 2 H. 4. 13. So in Trespass, a Lease for Years, Tenancy at Sufferance, (but not at Will) That they were a strangers goods, who gave them to the Defendant, is good evidence, upon Not guilty. 22. Ass. 73. be∣cause by these matters he makes himself a Title, & sic de caeteris.

Upon the general Issue, if by the evidence the Defen∣dant * 1.39 acknowledge that he did the wrong, and justifie this, and gives matter that goes to discharge him of the act by Justification, this evidence is not good, but he ought to have pleaded it.

This rule is demonstrated, by those Cases where upon Not Guilty, in Trespass, the Defendant would say, the property was in a stranger, and that by his commandment, or as his Servant, he took the goods. Not Guilty, and that he did the Battery se defenden∣do. Not Guilty in maintenance, and lawful mainte∣nance. Insufficiency of Mounds. The Freehold of a stranger, and his Licence. A former recovery in another action. So for Common, Rent-service, Rent-charge,

Licence, &c. cannot be given in evidence upon the general Issue, for these matters in evidence are justifications, which go in discharge of the party, but not by Title, but by justification.

So where an Imprisonment or entry is given by au∣thority of Law, or by authority from any party, as for an imprisonment, by the Statute of Trespassers in Parks, putting a man off his ground, thrusting a man out of Church that troubles the Congregation in service, parting an Affray, and keeping the Quarrellers a∣part, in defence of himself, or his, Entry in per∣amblation, Entry to amend his Gutter leading to his house, as of antient time had been used. That it was a Common Inn. That he put in his Cattle by the Plaintiffs agreement. That he entred and took the Emblements after the death of the Tenant for Life. That the Plaintiff owed him money, and by his invitation he went into his house to receive it. That he took the goods, as a Hariot, Waif, E∣stray or Wreck. Or the Plaintiff took away the Defendants Cattle and he entred into the Close where they were, and took them again. That he took the Cattle damage seasant in his ground, or for an Amercement in a Leet, &c. That the goods were the goods of J. S. who delivered them to the Plain∣tiff to keep, and J. S. commanded the Defendant to take them; or excuse it, that the Plaintiff delivered them to him: That he took them by a writ. That as Schoolmaster he gave moderate Correction. These are excuses and justifications without Title, and therefore must be pleaded, and cannot be given in evidence upon Not Guilty.

So in an action de malefactoribus in parcis, he can∣not plead Not Guilty, and give a Licence in evi∣dence. So in an Appeal, if he plead Not Guilty, and shews that he was Sheriff, and executed his Office, or that he was ••oster, and killed him because he fled, and would not submit. vide 12 H. 8. fol. 1. The best Case of this matter.

Evidence which is contrary to that in Issue, or which * 1.40 is not agreeable to the matter in issue, is not good.

As appears, by several Cases, which you may find in the Chapter of Evidence. As upon the Issue, nothing passes by the Deed, you cannot give in evidence, that it is not your Deed, for this is contrary to the Issue, and to that which is acknowledged in the plea by impli∣cation, 5 H. 4. fol. 2.

And so upon Not Guilty, in assault and Battery, and evidence that it was done in his own defence, is not good.

And so in debt upon a Bail-bond, you must plead, that there is not the name of Sheriff in it, Et issint∣nient son fait, and cannot give it in evidence upon non est factum, for it is contrariant, 5 E. 4. 5.

So upon Issue of Common appendant, Common pur cause de vicinage, is not agreeable to the matter in Issue, and therefore cannot be given in evidence, 13 H. 7. 13.

Where the evidence proves the effect and substance of * 1.41 the Issue, it is good.

As to prove a Grant or Lease pleaded simplement, a Grant or Lease upon condition, and the condition executed, is good, for this proves the effect and sub∣stance of the Issue, 14 H. 8. 20. so a promise to the Wife, and the Husbands agreement proves a promise to the * 1.42 Husband, and this you may see in many Cases, in the Chapter Evidence.

In Trespass for goods taken, the Defendant, upon * 1.43 Not Guilty, in mitigation of Damages may give in evidence, that the Plaintiff had his goods again, 11 H. 4. 24. 19 H. 6. 34.

Justifiable maintenance cannot be given in evi∣dence * 1.44 upon the general Issue, but must be pleaded. The Master may justifie for his Servant. Any man for his kindred, &c. or to give money to the Poor, &c. But that he was of his Counsel, may be given in evidence upon the general Issue, for to give Counsel, is not maintenance. 22 H. 6. 35. 28 H. 6. 6.

Upon this Issue, the Defendant may give in evi∣dence, * 1.45 that he is a Lay-man not lettered, and that

it was read to him in another form, 15 E. 4. 18. but * 1.46 it is the best way to plead it, for the understand∣ing of the Jury, 39 H. 6. 9. Bro. Waiver 2.

In an Issue upon a prescription Traversed, the Plaintiff gave in evidence a Deed bearing date after the time of limitation, scil. After the time of R. 1. And the Defendant would have demurred in Law upon it, and well he might, per Cur. Whereupon the Plaintiff would not give this in evidence, but gave other evidence. 34 H. 6. 37. See Chapter Evi∣dence, fol. 230. where a Grant shall be taken as a Confirmation of a Prescription.

Note the opinion, 12 H. 4. 21. That a Deed made before the time of memory, may be given in evidence, although it cannot be pleaded. * 1.47

Upon Not Guilty, the Defendant gave in evidence, that by the Plaintiffs agreement he carried him from D. to S. and held good, because, what is done by the Plaintiffs agreement, is no Imprisonment. 14 H. 6. 2.

Upon Not Guilty, the Defendant said, his Master locked the Plaintiff into a Chamber of his House, and gave the Defendant, being his Servant, the Key to keep. 22 E. 4. 45.

Vide Repl. in Fitz. 34. Repl. of a Sow and Piggs, the Defendant justified for the Sow, and to the * 1.48 Piggs, pleaded he did not take them; the Jury found, that the Sow was with Pigg, when she was taken, and afterwards cast her Piggs, in the Custody of the defendant; and the Plaintiff recovered Damages, for says Bro. Aridg. tit. General Issue, 88. This is a special taking in Law.

Dower of rent. Hill. ne unque seisie que Dower la poit. * 1.49 Horton J▪ S. granted the rent to the Husband, pay∣able at Michaelmas next, and the Husband dyed be∣fore the day, and so he was seised in Law, and demanded judgment. Thirm. You shall say gene∣rally, quod seisie que Dower la poit, and give your Case in evidence, Et sic bene notwithstanding the doubt of the lay Gents, for they ought to credit the Law, and evidence is not to be pleaded. 11 H. 4. 88.

Tenant for life leaseth for years, who is ousted, and the Tenant for life is disseised; The disseisor leaseth for years, who sows the Land; The Tenant for Life dies; he in remainder in Fee, brings Tres∣pass against the Defendants claiming the Emblements * 1.50 by the Lessee of the Disseisor. Adjudged, that they had not the meer right, but in respect of their pos∣session, they should barr the Plaintiff, who had no right: and that the meer right was in the Lessee of the Tenant for Life, and that he might bring Trespass a∣gainst the Lessee of the Disseisor, and recover all the mean profits. But as to the entry into the Land to take the Emblements, this was good matter of justifica••ion; but in regard it was not pleaded, it could not be gi∣ven in evidence upon Not Guilty; and therefore the Plaintiff had judgment for the entry, and was barred for the residue. Note that the Lessee of Tenant for Life had right to the Land, and by con∣sequence to the Emblements, as things annexed to the Land, and the death of the Tenant for Life deter∣mins his interest to the Land, but his right to the Emblements remains.

It sufficeth to prove the substance, without any precise * 1.51 regard to the Circumstance. As if an Indictment be, that with a Dagger the offender gave another a mor∣tal wound, &c. and in evidence it is proved to be done with a Sword, Rapier, Club, Bill, or any other Weapon, the offender upon this evidence ought to be found guilty: For the mortal wound is the substance, and the manner of the Weapon is but the Circumstance; yet some Weapon, ought to be mentioned in the Indictment. And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors; To prove that B. stroke is sufficient, &c.

Manslaughter upon an Indictment must be found, if proved, because the killing is substance, upon which judgment shall be given.

Indictments for ••urther of Ministers of Justice, in execution of their Office, may be general, viz. that the prisoners, felonice, voluntarie & ex malitia

sua praecogitata, &c. percusserunt, &c. without alledging the special matter, which may be given in evidence, for the Law implyes malice prepensed. So if a Thief in rob∣bing kills the man that resists him, or a man is killed without any provocation, or without malice prepen∣sed that can be actually proved, the Law adjudges this murder, and implyes the malice; and in these Cases, the offenders may be indicted generally, that they killed of malice prepense, for the malice imply∣ed by Law, given in evidence, is sufficient to main∣tain the general Indictment. lib. 9. 67. Machallyes Case.

So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient. lib. 9. 119.

In Cromwels Case, lib. 4. 12. Although it was objected that in an Action of slander, If the Defendant will justi∣fie, he must justifie the same words & in the same sense, as it is laid in the Nar. or else he must plead, Not Guilty, and give the special matter, that is the variance in evi∣dence. Yet the Court held, that the Defendant should not be put to the general Issue, but might justifie, al∣though he varied from the Plaintiff in the sense and * 1.52 quality of the words: and might set forth the cohe∣rent words. As for calling the Plaintiff Murderer, the Defendant may shew that they were speaking of Hares, and the words were spoken in reference to killing of Hares.

Upon the Issue, if the Lord of the Mannor grant∣ed the Lands, per copiam rotulorum Curiae manerii pred. secundum consuetudinem manerii pred. To prove that there were customary Lands in the Mannor, and that the Lord of late granted the Land, &c. per Copiam rotul. Curiae, where it was never granted by Copy be∣fore, is no good evidence to find the Custom, or that the Lands, &c. were grantable or demiseable by Custom. Leon. 55. Kemp and Carters Case.

Forger of a Deed, in which is contained a demise of the site of the Mannor of R. and terras domini∣cales, &c. A Deed of the site, and all the Demesnes of the said Mannor, Exceptis duabus clausuris, &c. is good evidence, for it is not necessary to construe ter∣ras dominicales, &c. omnes terras dominicales, &c. for

Lands not excepted are terrae dominicales, and so the Count is satisfied by that evidence. Leon 139. Atkins and Hales Case.

Debt against an Executor, upon plene administravit, it appeared, that the Executor medled, and admi∣nistred, * 1.53 and then refused in Court, and administra∣tion was granted to another; and that several summs were recovered against the Administrator; it was said by Periam Justice, 1. That if an Administrator (who is a stranger) administer, without the Com∣mandment of the Executor, the Executor cannot give such administration in evidence, to prove his Issue. 2. That in the principal Case the Executor ha∣ving administred he could not refuse, and so the ad∣ministration is granted without cause, and what he did was without warrant, and no administration. Ieon. 134. Hawkins and Lawse Case. At Bury Assi∣ses 1682. before Judge Windham, The Executor gave the administration of the Administrator in evi∣dence, and allowed; but there, what the Administra∣tor did, was by the Executors consent, in Mr. Lun and his Mothers Case.

An Executor de son tort cannot give in evidence * 1.54 his retaining of goods to pay himself, for he cannot re∣tain; but if he takes out letters of Administration (although) pendente lite, he may retain for a Debt of as high a Nature and plead this in Barr, for the administration purges his wrong, and although he shall not abate the Writ by taking out Letters of administration, yet he may plead this in Barr. Stiles Reports. 338.

In a Replevin, the taking was supposed in R. The * 1.55 Defendant said that the place where, is 40 acres, par∣cel of the Mannor of R. which is his Fre••hold, and avowed for Damage seasant; The Plaintiff said, that

the place where, is parcel of the Mannor of R. in R. and conveyed title to himself in that; Absque hoc, that the Mannor of R. unde was the Freehold of the Defen∣dant. It was the opinion of the Justices, that the Plaintiff is estopped to give evidence that the De∣fendant * 1.56 had not any Mannor of R. for the words absque hoc and unde imply he had such a Mannor, but he ought to have taken it by protestation, that the Defendant had no such Mannor of R. in R. absque hoc that the 40 acres was the Freehold of the Defen∣dant, Dyer 183.

Trespass, concerning the Rectory of Norton Pinkney, which belongs to Oriel Colledge in Oxford, The Issue was, if there was a Vicaridge indowed there, or on∣ly a stipendiary Curat.

1. All agreed, that if a Vicaridge be erected and established, if there was no Endowment de facto of the Vicaridge, the Vicar could not claim any thing.

2. There was shewed an Impropriation, by the Li∣cence of the Pope made in the time of E. 2 Dod∣deridge said, that was not good, Jones è contra. And it will be perillous to such ancient impropriations, if now the consent of the King must be shewed; and at that time it was taken good by the assent of the Pope, without the King. Dod. denyed that the Pope without the King at that time could make an impro∣priation with the Ordinary and Patron. But Crew agre∣ed with Jones. And in things of such antiquity om∣nia praesumuntur solempniter acta, and said, that so it was ruled in a case before: And Jones said it was nothing to the Vicar, for the Vicaridge may be endow∣ed without the consent of the King, and 'tis not Mortmain. Palmers Reports 427. Erasmus Copes Case against Bedford.

Where hors de son fee is pleaded, a release of the Seigniory is good evidence. 8 E. 2. Fol. * 1.57 262.

In debt for Rent upon a Lease for years, the Issue being joyned, if the Rent was paid or not, the Defendant gave in evidence, for part of the Rent, That the Plaintiff was by covenant to repair the House,

and did it not, and thereupon he expended the Rent * 1.58 in repairing the house, and the question was, if this evidence will maintain the Issue. Gawdy conceived it did, for the Law giveth this liberty to the Lessee to expend the Rent in reparations, and recoup the Rent, V. 12 H. 8. 1. Fitz. tit. Bar. 242. 14 H. 4. 27. Fenner, It is no evidence, for if the Lessor will not re∣pair it, the Lessee may have his covenant against him. Cle••ch, seemed he might well expend the Rent in re∣parations, but he ought to have pleaded it, and cannot give it evidence upon the general Issue, and thereupon they moved the Jury to find the special matter.

So that it seemed to the Justices, that the Defen∣dant had liberty to expend the Rent in the repa∣rations (they being to be done at the Plaintiffs cost) but then that he ought to have pleaded this matter, as it was done in (almost) the like case. Fitz. tit. Bar. 242. Yet why might he not give it in evidence upon the general Issue? for if the Law allows this to amount to a payment of the Rent, then the De∣fendant own nothing, which maintains nil debet, and I think the other book of 14 H. 4. 27. rejects this sort of special plea, upon this reason, that the Plea amounted to the general Issue: But there in∣deed the Rent was pleaded to be laid out at the Plain∣tiffs command, here only by authority in ••aw. I should be glad if any one would reconcile those two Books better, I know there is another reason in the Book, (and assigned by Rolls in his Abridgment of the Case) why the Plea was rejected, viz. that the duty was acknowledged by the Plea, and therefore the matter of the plea not good, without shewing a Deed of it, but I should have been better pleased with him, if he had assigned the other reason, viz. that it amounted to the general Issue. Which made Cheyne that he durst not joyn in demurrer. For 'tis not pretended in either Case that the Deed order∣ed the Rent to be laid out in the rep••irs.

And in that Case in F. where there was no ex∣press order of the Plaintiff; it may be the Judges allowed the special matter to be pleaded, because

the Jury should not be intrusted with the Law upon the general Issue, which may be said for the special pleading this matter in our Case, although it may a∣mount to the general Issue.

But as to the residue the Defendant shewed, he paid * 1.59 it to others by the Plaintiffs order, which was held clearly good, for what is paid by the Lessors appoint∣ment is a payment to himself. Cro. Eliz. 223. Taylor against Beal. vide Rolls tit. Debt 605. 34 H. 6. 17. Bro. Debt 27.

Where a man is Estopped in pleading to speak * 1.60 against his own deed, yet he shall not in evidence; As in Isehams Case against Morris Cro. 4 Car. 109. upon evi∣dence at Barr, It was held by all the Justices of the Common Pleas, That where one makes a Lease for years of Land by Indenture, and hath nothing in the Land, and afterwards purchaseth the Land and aliens it; although it be a good Lease for years, by Estoppel against him and his Allence, by way of plead∣ing, and shall bind them, yet it shall not bind the Jury, but they may find the truth, and if they find the truth, the Court shall adjudge it to be a void Lease. vide tamen Rawlin's Case lib. 4. 53. Sut••on and Dickens Case Leon. 1. part fol. 206. 1 Inst. 47. 227. Ed∣wards against Omellhallum. Marsh. 64. James and Lan∣dons Case. Cro. 27. Eliz. fol. 36. Leon. 3. part 210. Bulstr. 2. part 41.

Note, That if a Demurrer be made upon the evi∣dence, the evidence ought to be entred verbatim. Kei••∣way 77. Where in account, against one generally as Bay∣liff, the evidence that charged him specially by rea∣son of his Tenure to collect, &c. was upon Demur∣rer held not good.

Matter of Surplusage shewed in evidence shall not * 1.61 hurt. Keilway 166.

Issue was upon a devise to A. Harding and her * 1.62 Heirs, modo & forma, and the Will given in evidence was A. H. shall have all my inheritance if the Law will allow it, and held sufficient to maintain the Issue, Hob. 2. so upon Ne unques receiver per maines J. S. a delivery from J. D. by the appointment of J. S. * 1.63

to the Plaintiffs use, is good evidence. Hob. 36.

Issue whether A. was taken by a Capias ad sat. at the suit of B. and evidence of a taking at the suit of C. * 1.64 and then a delivery of a Capias ad sat. at the suit of B. to the Sheriff is good. Hob. 55. But a taking up∣on a Cap. utlagat or cap. pro fine, with a prayer of the Plaintiff that he may remain for his satisfaction, is not. ibid.

In a Consimili casu, where the demandant counts * 1.65 of an alienation in Fee, yet the Defendant shall make his Traverse to the alienation modo & forma, and then the demandant shall maintain the Issue by an Alienati∣on in Fee, or in Taile, or for Life, for they are all alike material. Hob. 105.

In an Assise the Defendant pleaded the Deed of * 1.66 the Brother of the Plaintiff with Warranty, A Deed of the Father with Warranty will not maintain the Defendants Issue. Hob. 55.

In Bennets Case Stiles 223. In a Tryal at Barr, It was * 1.67 said by the Court, that if either of the parties to a Try∣al desire that a Juror may give evidence of some thing of his own knowledge to the rest of the Jurors, that the Court will examine him openly in Court up∣on his Oath, and he ought not to be examined in pri∣vate by his Companions. And it was also said that if a Robbery be done in Crepusculo, the Hundred shall * 1.68 not be charged, but if it be done by clear day light, whether it be before Sun rise, or after Sun set it is all one, and the Hundred shall be charged.

In an action of the Case for digging a hole in the * 1.69 High-way, into which his Gelding fell, &c. upon Not Guilty, this evidence was given that the Plain∣tiffs servant was driving the Plaintiffs Gelding in the way, and that by reason of the hole he fell, &c. Upon which it was demurred, because it was not proved that there was such a High-way, nor who * 1.70 digged the hole. Roll Chief Justice, This evidence is no more than a special Verdict, and it ought to find the way and the hole digged and all the matter conducing to the Issue, and therefore it is not good as it is: and a venire de novo was awarded. Stiles 335.

In Trover and conversion, there was a Demurrer * 1.71 joyned upon the evidence, and thereupon the Court directed the Jury to find Damages for the Plaintiff, if upon the argument of the Demurrer the Law should be adjudged for him, and then the parties desired the Jury might be discharged, and referred the matter to the Judges, to determine the Law up∣on the evidence. In this Case Roll Justice took this difference: If a record be pleaded it must be sub pede sigilli, or else the Judges cannot judge of it: But it may be given in evidence, and the Jury may find * 1.72 it, though it be not sub pede sigilli. And the Court advised the parties, for their own expedition, to let a venire facias de novo be Issued out, and to wave the Demurrer upon the evidence, because it was not good, nor could not bring the matter in question before them, that they might determine it; for one party saith there is a Writ, and the other saith, there is not a Writ, which is bare matter of fact for the Jury to determine, and not for the Court, and the Demurrer ought to have been, whether the Writ be good, or bad, and should have admitted that there was a Writ tiel quel, and then had the whole matter come legally before the Court, to wit, whether the evi∣dence given to the Jury be sufficient for them to find a verdict for the Plantiff upon the Issue joyned or not-For the matter of fact ought to be agreed in a De∣murrer to an evidence, otherwise the Court cannot proceed upon the Demurrer. And he said, if a Deed be pleaded, the party must shew it in Court, but in * 1.73 evidence 'tis not absolutely necessary to shew it, if it can otherwise be proved to the Jury; and so it is of a Record: and concluded, that the Demurrer was * 1.74 not good, and that there ought to be a venire facias de novo to try the matter again. Bacon Justice said, there ought not to be a venire facias de novo, but that judgment ought to be given against one party, to wit, the Defendant, for ill joyning in the Demurrer, to the intent the party that is not in fault may be dis∣missed, and the parties here have waved the Tryal per pays, by joyning in Demurrer. But Roll answered

that no judgment at all could be given, for both par∣ties be in fault, one by tendring the Demurrer, and the other by joyning in it, and the Defendant might have chosen whether he would have joyned or not, but might have prayed the judgment of the Court, whether he ought to join. The Court advised to search Precedents, for a venire facias de novo after a De∣murrer upon an evidence, and if there be any, they hold that the same Jury ought to come again, and not another. Roll said if a special Verdict be found insufficient, a new venire facias ought to Issue, and he saw no difference betwixt that and this Case. Wright and Pindars Case, Stiles 22. and 34.

In Debt for Servants Wages, viz. 20 s. or a robe * 1.75 yearly: The Defendant may plead payment of the robe, and shall not be put to the general Issue, * 1.76 where the payment is of another thing than money; but of money he must plead nil deb. and give the payment in evidence. And the Defendant may plead that the Plaintiff departed out of his service, and shall not be forced to the general Issue 9 E. 4. 36. Though surely that may be given in evidence up∣on nil deb. for the Plaintiff must prove he served: so indebitatus Assumpsit & non Assumpsit upon the pro∣mise in Law, an extinguishment, by taking a Bond * 1.77 (being a matter of a higher nature) for the Debt, may be given in evidence.

And Note, if an Infant buy Goods, and afterwards give a Bond, and this Bond be avoided by Infancy: Yet it seems the Contract shall not be revived. Sed du∣bitatur, Rolls tit. Extinguishment 604. for now, this Bond which was voidable, is become void, and a void thing shall not have such effect: But a per∣sonal action once suspended is gone for ever. But ac∣ceptance of a Bond shall not extinguish Rent, nor arrerages of an account before an Auditor of Record, because these are of a higher nature than the Bond, the Rent being real, and the other of Record. But the Bond extinguishes the contract, for the ar∣rears upon an Insimul comput asset, &c.

Acceptance of Rent due the last day, and an * 1.78 acquittance thereof, discharges all the arrerages due before. lib. 3. 65. Unity of possession, in as high an Estate destroys the prescription &c.

A seisure and condemnation in the Exchequer of for∣feited * 1.79 goods, may be given in evidence upon Not Guilty in Trover, but it must be pleaded in Trespass. In Trover of a Horse, that he is a Common Hostler, and that the Horse was put to him at Livery and dyed, is good upon Not Guilty. Rolls 1. part 22.

Upon Assumpsit the Plaintiff declares upon two con∣siderations, and a simple promise: If the Jury find but one, or a conditional promise, this doth not maintain the Issue for the Plaintiff. Leon 173. Musted and Hoppers Case.

Where the Issue is not perfect, no evidence can be applied, neither can the Justices of Nisi prius pro∣ceed to the Tryal of such an Issue. As whether the money was paid after the date of the Obligation, and the date was left out, and did not appear in the Record. Brown 2. 47.

In Debt upon a Bond, conditioned to pay 20 s. at * 1.80 the house of the Defendant the 7. day of May, upon payment at the time and place: The Jury found the payment before the 7. day, and prayed the advice of the Court, if this was a payment at the day. The Court adjudged that the payment and acceptance before the day, was as well, as if it had been paid at the day. Saviles Reports 96. Bond against Richard∣son. And so saies Cook 1. Institutes 212. The time and place are but circumstances, and if the Obligee or Feoffee receive the money at another place, or before the day, it is sufficient: Or a lesser summ before the day. But More 47. upon Issue of payment at the day and place, and evidence of payment a month before, and Demurrer upon the evidence. Dyer, Brown and Welsh, said this evidence doth not maintain the Issue, because before the day of payment there is no duty, land the day and place are parcel of the Issue, and the act on one day, is not an act done on another day: As if an Executor pleads payment at

the day, 'tis not good evidence to shew that it was paid before the day by the Testator, for this doth not prove the Issue, and yet there was not any duty re∣maining at the day, and therefore the pleading ought to have been specially according to the truth. Vide devant 198. And 'tis not like the Case, where the circumstances of time and place are pu•• only for necessity of Tryal; but, in regard that payment is the substance; why is it not sufficient to prove, as well as to find, the effect and substance of the Issue? And 'tis not the case of collateral conditions, where the condition is not to pay money, but to do some Collateral thing, as to deliver a Horse, a Robe or Ring, &c. or to pay money to a stranger, such Collateral conditions are more strictly to be observed. vide 1 Inst. 212.

Note, if there be a Demurrer, yet there may be a * 1.81 plea puis darrein continuance, and if the Plaintiff take Issue or demur to this plea, yet the Court must al∣so consider of the first Demurrer; for if upon that standing confessed by the Demurrer, the Plaintiff could not have his action, the Court cannot give judgment for him, howsoever the latter Issue or De∣murrer pass. But otherwise if the first had been an Is∣sue, for then nothing were confessed to his preju∣dice, and then that had been utterly relinquished by a second Issue, or Demurrer, Hob. 81. with a Quaere, &c. When this plea is pleaded, the Justices of Nisi prius cannot proceed to take the Inquest, neither can the Plaintiff reply there; but in Bank Bulst. 92. 93.

Per Doderige, In Trover and conversion of goods, * 1.82 if the Defendant derive a title from a stranger, this amounts to the general Issue, otherwise if from the Plaintiff. Latch. 186. And baylment of the goods to deliver to another, and delivery accordingly a∣mounts to the general Issue, and may be given in evidence upon it. Bulst. 3. part 209.

In Trespass against two, for entring into the Plaintiffs * 1.83 Land, if one pleads his Freehold, and the other that he entred by the commandment of him that pleads it is his Freehold, here is to ••e but one Issue joyned,

viz. by him that claims the interest, for upon that Issue, all depends: If it be found against him, his servant has no colour.

And in regard what may be averred, may be proved, and given in evidence; 'twill not be * 1.84 impertinent to draw a short scheme of Averments with which I will conclude.

To alter, qualifie, or abridge the operation of it if there be any apt words in the Deed, whereupon * 1.85 to ground it. As a grant to A. the Son of B. and he hath two Sons of that name, of the Mannor of S. and he hath two Mannors of that name, which Son or Mannor was intended, may be averred. And so may a consideration of a Deed that is besides, but * 1.86 not that is against the express consideration of the Deed: nor can any thing against the words of the Deed, either inlarge or restrain it.

Nor can a Use against or besides the express uses in the Deed; but where no use is expressed, or incer∣tainly * 1.87 expressed, it may, and also to reconcile a fine and the Indentures to lead the uses of the fine. lib. 2. 75.

But when a Deed is utterly incertain, no averment shall help it. As a grant to one of the Sons of J. S To two & haeredibus, &c.

An estate to a Woman for her life, may be averred to be made for her joynture. Dyer 146. lib. 4. 4. * 1.88 And that the thing granted to me by a new name is all one thing, with that which has another, or an old name. Dyer 37. 44.

A thing that is against or besides a Record, or any * 1.89 thing that is within it, shall not be averred. There∣fore the date of a Recognisance expressed to be taken at Dale, cannot be averred to be taken at Sale. But such an averment as may stand with the Record, may be admitted. As that the fine was before the Inrollment (being both in one Term) The uses of a fine or common Recovery may be averred: Or what, or who was meant, where there are two of a name, &c. lib. 8. 155. The Heir in tail cannot aver against a fine levied by his Ancestors, That partes finis nihil

habuerint, lib. 3. 84, 85. Leon 75, 76. &c. But when Te∣nant in tayl accepts of a fine, and grants and renders the Land, by the same fine, which is Executory, there, if no execution be sued, in the life of Tenant in tayl, his Issue may aver continuance of possession, &c. in his Father, for this stands with the fine, and the acceptance of the fine alters not the Estate.

If a man and his Wife sell her Land for money, and after levy a fine to the Vendee and his Heirs, it may be averred it was for money, and so carry the use to the Vendee without any declara••ion of use, which otherwise would result to the Woman and her Heirs: and ••o other uses may be proved, than what are in an Indenture of uses subsequent to the convey∣ance, &c. lib. 9. 8. 5. 26.

Tenant in tail, with remainder in tail to A. Re∣version in see to himself, bargains and sells Land, &c. and levies a fine to him with Proclamation, with general warranty. The Conusee infeoffs A.

Resolved, The Bargainee had an Estate determina∣ble upon the death of the Tenant in Tail (and also the reversion in fee, which the Bargainor had) and his Wife shall be endowed, but this determines upon the death▪ of the Tenant in Tail.

Resolved, The fine doth not discontinue the re∣mainder, for this doth not pass any Estate, but makes this Estate of the Bargainee durable, &c. so that it shall not determine, untill the Tenant in Tail die without Issue: a••d the conclusion may be confessed and avoided.

Resolved, the Warranty doth not barr the remain∣der, for this was annexed to the fee determinable, &c. and to the reversion in fee, and doth not extend to the remainder, for this was not displaced, and the Feoffee of the Conusee cannot inlarge, &c. 'Tis a Maxim that a Warranty barrs no Freehold, which is in esse, possession or remainder, &c. and not displaced before or at the time of the Warranty, although it be devested before the descent.

Resolved, A Warranty cannot inlarge the Estate.

Resolved, the Feoffment of the Conusee was not a discontinuance of the remainder, because he was not Tenant in Tail; so of the Grantee of totum sta∣tum suum, &c.

Resolved, A Collateral Warranty may be given in evidence, and found by the Jury.

The Chief Justice held that by the Feoffment of the Conusee, the Remainder was not displaced nor put to a right, for his Fee simple, and his Fee determi∣nate pass, and the Feoffment which in it self is not tortious, cannot be tortious to another. Otherwise it is when Tenant for life, or remainder in Tail, &c. makes a Feoffment, for the Feoffment it ••elf is tor••ious.

Note, there are some titles, to which a Warranty doth not extend, as in the Case of an Eschange, con∣dition upon a Mortgage, Mortmain, consent to a Ra∣visher, &c. for in these Cases no action lies, in which Voucher, or Rebutter may be, neither shall a descent take away Entry in these cases, and cannot be displa∣ced out of their Original essence. Collateral War∣ranty shall barr dower, and yet an action is given for this. But a fine &c. and five years barr these titles, and dower also, if an action be not brought in time. Seymour's Case. lib. 10. 96.

Buckler and Harveys Case. lib. 2. 55.

Tenant for life leases for 4 years, and afterwards grants the Tenements Hab. from P. for life, after P. the Lessee attorns, then the Grantee enters and leases at will, to which Tenant at will the Tenant for life levies a fine Come ceo, &c. Rem. in fee enters.

Resolved, The Grant was void, for an Estate of Free∣hold cannot commence in futuro; and the Grant being void at the Commencement the Attornment after∣wards cannot make it pass; and that the Grantee was a Disseisor: but if the Grant had been good at the Commencement, and was only to have its perfection by a subsequent act, as by livery upon a Charter of Feoffment, &c. and the Grantee enter before the perfection, he is not a Disseisor, but a Tenant at will.

Resolved also, If the fine had been levyed to the Disseisor himself Come c, &c. he which had the right of remainder, may enter for the forfeiture, for it was agreed, that the right of a particular Estate may be forfeited, and entry given to him who had but a right. As if Lessee for years be ousted, or Tenant for life Disseised, and the Lessee for years brings an assisse, or the Lessee for life a Writ of right, &c. 'Tis a forfeiture.

Resolved also, That the fine being levied to the Tenant at will, it is a forfeiture, and he which had the right of remainder may enter, and the Tenants for life and at will also, shall be estopped to say quod partes finis nihil hab. &c. and of such estoppels which are by matter of Record, and trench to the disherison of them in reversion, &c. they shall take advantage although they are strangers to the Record, for they are privies in Estate.

Resolved also, If the Disseisee levy a fine to an estranger, the Disseisor shall retain for ever; for the Disseisee, against his own fine cannot claim the Land, and the Conusee cannot enter, for the right of the Conu∣sor cannot be transferred to him, but by the fine the right is extinct, whereof the Disseisor shall have ad∣vantage. But in Crok 1. part 482. 13 Car. it was moved, if the Disseisee, not knowing of the Desseism, levied a fine to a stranger, whether that should barr his right, and move to the benefit of the Disseisor: according to Bucklers Case; and said, if admitted, would be of very mischievous consequence, and by two Judges held, that it should not enure to the benefit of the Disseisor, but to the use of the Conusor himself, for otherwise a Disseisin being secret, may be the cause of disherison of any one who intends to levy a fine for his own benefit, for assurance of his Lands upon his Wife and Children or otherwise. 1. Inst. 277.

Not against such Certificates as are a defini∣tive * 1.90 Tryal of the thing certified, As the Bishops Certificate of Excommunication, Bastardy, lawful Marriage, &c. so Certificates of the Marshal of the Host, which is a Tryal, but a∣gainst

Certificates only of information it may be: As a∣gainst Certificates upon Commission out of any Court, or of the Commissioners that affirm a man a Bank∣rupt, which are not Tryable in a course of Law, but informations. lib. 7. 14 lib. 8. 121.

So of a return, if it is a definitive Tryal of the * 1.91 thing returned, no averment lyeth against it. As the retorn of a Sheriff upon some Writs, as a Writ of Partition, Elegit, and of Hab. Corp. from a Mayor, &c. But if the retorn is not definitive, as upon a Rescous, &c. an averment doth ly, and upon this it may go to Tryal: So if it be a return to in∣danger a mans Life, or his Inheritance, an aver∣ment may be had against it, Dyer 348. 177. So it ly∣eth against the returns of Bayliffs of Franchises, so that the Lords be not prejudiced in their Franchises thereby. Goldsb. 139. 129. pl. 23.

An action for a false return, an averment doth ly against the Sheriff return, Winch 100. and so it doth * 1.92 in any other action, than in that the retorn was in.

Any averment may be upon a Will or any part of it, that may help to expound it, and of such a thing that may stand with the Will, and may be collected out of the words. As which Son he meant, &c. lib. 8. 31. 41. But no averment against or besides that which is expressed in the Will, or which cannot be gathered to be the mind from the words, nor of any thing that doth not cohere with the Will: especially if it be a∣bout Lands. As in the Lord Cheyneys Case, lib. 5. 68. A devise to A. and the Heirs of his body, the remainder to B. and the Heirs Males of his Body, on condition that he or they or any of them shall not align, &c. no averment shall be taken to prove by Wit∣nesses or other evidence, that the Devisor intended to include A. within this condition by the words ••e or they: for the construction of Wills ought to be collected out of the words of the Will in wri∣ing, and not by any averment or proof out of it.

It lyes against the Rolls or Records of County * 1.93 Courts, Hundred Courts, Courts Baron. As that there is no such Record, or it is not as it is certifi∣ed. 34 H. 6. 42. 9 E. 4. 4.

No Averment or proof is to be admitted against * 1.94 common presumption, as that there was more Rent behind when the acquittance of the last Rent was made. 1. Inst. 373. Nor against common reason, as that Land doth belong to Land or to a messuage. Plo. 170. lib. 437.

If the matter contained in an award and the mat∣ter * 1.95 in the submission do not agree, it will hardly be supplied by an averment. Dyer 242. 52.

If the Defeasance of a Recognisance be dated be∣fore * 1.96 the Recognisance, it may be averred to be deliver∣ed at or before the time of the Recog. entred into. Per∣kins Case 147.

Things apparent or necessarily intendable by Law, need not be averred, manifesta non probatione indigent; Quod constat clare, non debet verificari. lib. 11. 25. Plo. 8.

Chief Justice Anderson held, Godbolt 131. that if * 1.97 one devise Lands to the Heirs of J. S. and the Clerk writes it to J. S. and his Heir, that the same may be holpen by averment, because the intent of the Devi∣sor is written, and more, and it shall be naught for that which was against his Will, and good for the residue. But if a Devise be to J. S. and his Heirs, and it is written but to the Heirs of J. S. there an averment shall not make it good to J. S. because it is not in writing, which the Law requires; And so an averment to take away any surplusage is good, but not to increase that which is defective in the Will of the Testator. But with submission, if the Law should admit of such averments, it would be as mischievous one way as the other, and no man could know by the words of the Will, what constructi∣on to make; nor what advice to give, but this shall be controlled by collateral averments out of the Will; and instead of proving the Testators Will, it would be the destroying of it.

If the partition be by Writ, although it be un∣equal, * 1.98 yet it shall not be avoided by averment, but shall bind the Feme Coverts. And such averment against the retorn of the Sheriff shall not be good. 1. Inst. 171.

A valuable consideration in a Bargain and Sale * 1.99 not expressed, may be averred. 2. Inst. 672.

A consideration which consists with the Deed, and not repugnant, may be averred, as in a Bargain and Sale, if a particular consideration be expressed, and the general clause, of other good causes and conside∣rations, or without that general clause, yet other consi∣derations may be shewed: so if the particular conside∣ration be love and affection, yet payment of mo∣ney may be shewed: so a precedent intent of uses, and * 1.100 to levy a fine, may be shewed to guide the use of the fine. Rolls tit. uses 790.

As if I covenant by Deed to purchase Land, and then to levy a fine, or make a Feoffment thereof to the use of another, and afterwards purchase and levy a fine, or make a Feoffment, this use shall rise: For the Deed is an evidence of the precedent in∣tent, and the uses of a fine or Feoffment may be directed by the precedent intent, and yet such intent is countermandable. But a covenant to pur∣chase and stand seised of Lands to uses, shall not raise the use after the purchase, because the use is to rise by the Deed, and at the time when the Deed was made, there was no Estate in the Land. ibidem.

So if one joyntenant covenant to stand seised of his Companions part, if he survive, yet no use shall rise if he did survive, because at the time of the Covenant he could not grant nor charge the Land. ibid.

'Tis true that a fine sur grant and render, unless it * 1.101 be in special cases, cannot be averred by parol to be to any other use or intent than what is expressed in the fine, Feoffment or other conveyance: But there is a diversity betwixt a use and consideration; for when a fine, Feoffment or other conveyance im∣port an express consideration a man may aver, by word, another consideration, which may stand with the consideration expressed; but the parties cannot by pa∣rol aver any other use than is contained in the same coveyance. Also no averment shall be against

the consideration expressed: But yet in some cases a fine Sur grant and render, may be ruled and directed in part by averment per parol; and this is when the original Bargain and Contract betwixt the parties, is by Indenture or other Deed: As where it is agreed by Indenture, that a Fine shall be levyed of certain Lands by the name of a certain number of Acres to di∣vers persons, and that they shall grant and render the Land again in fee simple, which shall be to certain uses, the Fine is levyed of the Land, but there is some va∣riance betwixt the number of Acres comprised in the Fine; or the Fine is levyed to one of the parties only, who grants and renders the Land, so that there is a variance betwixt the Covenant and the Fine, either in the number, time, or person, &c. Yet this Fine shall be averred to be to the uses in the Indentures. For the intent of the parties and the substance and effect of their original bargain and agreement, is chiefly to be regarded in all conveyances; and therefore the Law allows an averment by parol to reconcile the Fine and Indentures, although this sort of Fine im∣ports a consideration in it self, and regularly by a na∣ked averment by paroll, cannot be averred to be to any other use or intent than is comprised in the Fine it self; but by Deed it may be. lib. 2. 77.

And although a Fine be of so high a nature, that it will not permit naked averments against the pur∣port and Conusance of the Fine; yet when the Law requires one of necessity, and for conformity to joyn with another in a Fine, the Law permits, to shew the verity of the matter, to avoid prejudice, and confusion, As where Baron and Feme an Insant levy a Fine, which is reversed for the non∣age of the Wife, The Baron and feme▪ shall have restitution presently, and the Conusee shall not de∣tain this during the Coverture; for all the Estate passes from the Feme, and the Baron joyns for ne∣cessity, and conformity, and therefore the Law per∣mits, that the verity of this shall be shewed, and that the whole Estate shall be restored to the Wife

during the life of the Husband. Worsely and his Wife against Charnock. 30 and 31 Eliz. lib. 2. 77.

What may be averred contra & praeter Records, Fines, Recoveries, Deeds, Wills, &c. is very re∣quisite for a good Evidenc••r to be ready in, and therefore I have here given this taste, referring him to the Books at large, where he may see, what aver∣ments he in remainder, the Heir in Tayl, the Wife, her Heirs, Estrangers, Privies, Parties, &c. may have to Fines, Recoveries, &c. lib. 1. 76. lib. 2. 77. lib. 4. 71. lib. 9. 140, 141. lib. 2. 55. lib. 88. lib. 10. 50, 96. lib. 3. 51, 88. lib. 72, 74. &c.

In Assault and Battery, if the Plaintiff prove on∣ly * 1.102 the Assault, he shall recover, for an action of Trespass lyes for an Assault, of an Assault and Bat∣tery, * 1.103 Assault and menace, &c. see Rolls tit. Tres∣pass. 545. F. N. B. 91. a. &c.

To lay hands gently upon the shoulders of a man, and say that is He, against whom the Justice's War∣rant is: Or to serve him with a subpoena, proves * 1.104 no Battery.

These things following are good justifications, but cannot be given in evidence upon the general Issue.

Correction by the Parents, Master, Schoolmistirs. Apprehension of a common Cheater at Dice. Mol∣liter manus imposuit, upon one setting a Dog upon him. Beating one by the Husband in defence of his Wife. By the Master in defence of his Servant; or by the Servant in defence of his Master. Holding a man that cometh to stop the River to his Mill: or to throw down his Booth. Inevitably discharging his Musquet in the Plaintiffs face, at a Muster. Beat∣ing one in defence of his Poss••ssion of his Goods, House, Lands, Goods distr••yned, &c. By a Fo∣rester of one who resisted in the Forest. That he imprisoned another to prevent mischief. As the killing of another, with whom he was fighting, (not wrang••ing with words) until the fury be over.

An erroneous Process to an Officer out of a Court, * 1.105 having Jurisdiction, In aid of the Bayliffs: That the Executor entred the Plaintiffs ground, to take the Testators Timber there. That he had a Piscary, and put Stakes in the soil. Taking his Goods stollen, in the Plaintiffs house, upon fresh pursuit. Entring his soil to throw down a Nusance. Or to take my Cattle, which the Plaintiff put in his ground. To throw down the Plaintiffs house on fire, next mine. Breaking his Windows or house, to get out, where he imprisoned me. To take a handful of Grain out of his heap, who took one out of mine, and threw it into his. To carry away his Grain, or money which he threw into my heap To chase his Cattle with a Dog out of my ground, Damage seasant. To throw that into the Plaintiffs ground which he threw into mine. That my Cattle took a mouth••ul, &c. of his Grass, passing in the way I had over his ground, against my will. Throwing Goods into the Thames, out of a Barge to save the lives of the Passenger••. To fetch out of the Plaintiffs ground, the trees he granted me. To Dig his ground, to amend my Pipe there. That I hunted Cattle out of my ground with a Dog, which against my will run into his ground, I ••ateing and recalling him. A prescription to cut Grass in the Plaintiffs ground, lying nigh the Church, to estrow the Church, being but an easment.

Distress by a stranger, as Bayliff, and the assent of the party. By the command of the Chief Justice, Or∣der of Chancery, &c. Rolls tit. Trespass. 559. That the Plaintiff ought to Impale against a Forest, and for default of Pales, the Beasts went in, and the Fo∣rester fetched them out.

These are justifications and excuses that must be pleaded, and cannot be given in evidence upon Not Guilty, unless it be in mitigation of Damages.

Trespass lies for goods stollen, although the Thief be convicted of Felony. Latch 144. ••arkhams Case * 1.106 and so I knew my Lord Hales held, although in Rolls tit. Trespass 557. 'tis said, if it appears on the

evidence that it was Felony, Trespass lies not. * 1.107 Which I think is not Law.

A man who sows the Land to halves with the Ow∣ner, * 1.108 or three agree to sow the Land, where two of them have no interest, and a stranger take the Corn, they cannot joyn in Trespass, having no interest but an agreement, but the owner only must bring the Trespass Cro. 3. part 143. Goldsb. 77.

Upon reversing an Outlawry, the party is restored, * 1.109 & may have Trespass, but upon reversal of a Judgment the party shall only be restored to the money for which the Sheriff sold his Term, upon a fieri fac. Cro. 3. part 270.

Upon Not Guilty in Trespass, Qu••re clausum f••egit, at the Tryal the Defend. shall not say that the Plaintiff is * 1.110 Tenant in Common; he should have pleaded this, and hath now lost this advantage: and if the Jury find it, their finding is not material. Cro. 3. part 554.

A man fells all his Woods standing, growing, &c. upon the pr••misses, to hold during the life of the Ven∣dor, rendring Rent; The Vendee cuts down all * 1.111 the Trees: if he cutts wood afterwards growing in the same place, the Vendor may have Trespass. Leon. 3. part 7.

If a Carrier lose goods, a special action of the Case lies against him, but not Trover, Roll. Abridg. 6. so of a common Carrier by Boat. Noy. 114.

Trespass lies for a Copy-holder against the Lord for cu••ting down Trees, that he the Tenant ought to have for repairs, Godb••lt 173.

By seisure of an Estray the Lord hath but the Custody, and not the property, and therefore if he works the Horse, Trespass lies. Yelverton 96, 97.

Trespass with a continuando cannot be for ta∣king a Horse, nor 10. Trees, &c. nor without a re∣entry of the dis••eis••d, unless his re-entry be taken a∣way by the act of God, or the Estate be determined, so that he cann•••• enter, as if Tenant per auter vie be disseised, and cestuivie que d••, for there his en∣try is taken away by the act of God; otherwise if it

be taken away by his own act, as if he release to the Disseisor, &c. 19 H. 6. 28.

General Trespass for breaking his Park, and ta∣king * 1.112 his Deer, &c. doth not ly at Common Law, but a Writ is given by the Statute Westm. 1. cap. 20. so if A. have a free Warren in the soil of B. A. shall not have Trespass, but case for entring the Warren and stopping the holes &c.

A Commoner cannot have Trespass for the Grass. * 1.113 After a supersedeas shewed to the Bayliffs, false im∣prisonment lies against them, not against the Sheriff; so against the Bayliff of a Franchise, if he takes o∣ther mens goods in execution upon the Sheriffs war∣rant, not against the Sheriff, nor against the party, unless he procure the Bayliff to take the wrong.

He that hath the Freehold in Law unless he hath * 1.114 actual possession cannot have Trespass. Therefore the Heir cannot have Trespass against the abater, nor against Tenant at sufferance, before he hath entred, and only from that time: but an Executor, or Admi∣nistrator shall, by relation, have Trespass from the death of the Intestate, &c. But a disseissee after en∣try, shall have an action for all mean Trespasses from the disseism, even against strangers, for he is resto∣red to the possession ab initio.

Trespasses cannot be maintained against him who comes to the goods lawfully, as by the Plaintiffs deli∣very, * 1.115 or under that, or by act in Law, &c. but detinue. But Trespass lies against Tenant at will, or him that I lend my goods to, who destroys them; for thereby the privity is determined. It lies against a Miller for taking Toll where none is due: For taking my Servant out of my service, for rescuing one taken at my suit out of the Bayliffs hands, for the Bayliff is my servant. For beating my Wife or Servant per quod, &c. Not against him that J. S. sells my Horse to, or has my goods from the Sheriff, although the Sheriff took them wrongfully. It lies for hunting a ••ox, &c. in my ground. Against Church-Wardens, who act by the Justices of the Peace's Warrant, if the Warrant be not good.

For digging so near my ground, that it fell into the Defendants pi••t: But not that my house fell into the pitt, for 'twas my f••ult to build so near another mans ground: for entring my ground, to take out his Falcon, which flew thither after Game. For kil∣ling my Tumbler in his Warren.

Although I sell the goods, it lies for a Trespass done * 1.116 before. Tender of sufficient amends before the acti∣on brought, is a good Bar, for a negligent Trespass, * 1.117 not for a voluntary one.

If a man enter into a place by authority of Law, * 1.118 and abuse this authority, he is a Trespasser ab initio, for his first 〈◊〉〈◊〉 shall be intended for this purpose. As if the L••ssor e••ter to view Wast, and stays there all night. If the Kings ••urveyor sells my goods. If the searcher abus•••• m•• stuffs. If a man will stay in a Ta∣vern all night. 〈◊〉〈◊〉 he detains a distress after amends tendred befor•• 〈◊〉〈◊〉 ••••ounding If a Bayliff refuse Bail, Trespass doth 〈◊〉〈◊〉 against him ab initio; but case, for the Sheriff or Undersheriff, not he, ought to take Bail; not against ••he party, nor Bayliff, or person in aid, if the Sheriff doth not return his Writ of Latitat, or makes a false return; but it doth against the Sheriff: So of an Officer of an inferior Court.

If the Lord work an Estray, Distress, &c. Or Exe∣cutors find a Bond and cancel it, thinking it was discharged, and it was not; They are Trespassers ab initio, although they came lawfully to the possession at first. Rolls tit. Trespass 563.

The Lunatick (and not the person to whon he is * 1.119 committed) must bring the action in his name for a Trespass done in the Land. Brownl. 1. part 197.

The knowledge, of evidence is so beneficial, and * 1.120 necessary, for all Practicers in the Law; That none can know too much, be too well versed, or too often conversant in it. Therefore to compleat this Trea∣tise, especially in this particular, I have drained the Law-books, o•• all, or the most principal Cases, re∣lating to it; and have added some observations, very fit for the unlearned, to know, and I hope not fit for the learned to reject.

FINIS.

Notes

• * 1.1

  Pasche 24 H. 8. Rot. 138.
• * 1.2

  Pasche 20 & 21 H. 8. Rot. 424.
• * 1.3

  Mich. 11 H. 7. Rot. 453.
• * 1.4

  Sur Hill. 9 H. 8. Rot. 343.
• * 1.5

  Entry of a Challenge af∣ter Issue joyn'd where the She∣riff is amo∣ved, &c.
• * 1.6

  Between Bark∣ley and Jeffer∣son.
• * 1.7

  Challenge gain-said.
• * 1.8

  Challenge to the Array, be∣cause the Coro∣ners made the Pannel at the Denomination of the Plaintiff.
• * 1.9

  ••ss. Postea.
• * 1.10

  Demurrer.
• * 1.11

  Joynde
• * 1.12

  Ebor. sc.
• * 1.13

  Clayton's Re∣ports.
• * 1.14

  ss.
• * 1.15

  Regula.
• * 1.16

  Non ••st factum.
• * 1.17

  Release.
• * 1.18

  Warranty.
• * 1.19

  Regula.
• * 1.20

  Sewers.
• * 1.21

  Regula.
• * 1.22

  Release.
• * 1.23

  Wast.
• * 1.24

  Statute.
• * 1.25

  Assets.
• * 1.26

  Villenage.
• * 1.27

  Attornment.
• * 1.28

  Trespass.
• * 1.29

  Rescous.
• * 1.30

  Avowry.
• * 1.31

  Feoffment.
• * 1.32

  Regula.
• * 1.33

  Trespass.
• * 1.34

  Trover.
• * 1.35

  Cessavit.
• * 1.36

  Regula.
• * 1.37

  Trespass.
• * 1.38

  Account.
• * 1.39

  Regula.
• * 1.40

  Regula.
• * 1.41

  Regula.
• * 1.42

  Other cases of evidence.
• * 1.43

  Trespass.
• * 1.44

  Maintenance.
• * 1.45

  Non est factum.
• * 1.46

  A witness may prove the contents of a Deed, or Will. Vaugh∣ans Rep. 77. Prescription.
• * 1.47

  Antient Deeds. False impri∣sonment.
• * 1.48

  Sow pigged, being taken in Distress.
• * 1.49

  Dower.
• * 1.50

  Emblements. Knivets Case. lib. 5. 85.
• * 1.51

  Regula. Substance. Circumstance
• * 1.52

  Copyhold. In Pilkintons Case. Stiles, 450. Rolls said, If Copies of Court Roll be shewed to prove a Cu∣stomary E∣state, the en∣joyment of such Estates must also be proved, o∣therwise the proof is not good. Forger. Totum & pars.
• * 1.53

  Plene admini∣stravit.
• * 1.54

  Plene admini∣stravit. An Executor pleads plene administra∣vit praeter a judgment, re∣plication, and Issue, that the judgment was fraudulent. The Obligee who had the judgment, was denyed to have evidence about his Debt, for he sweareth to have Assets for himself; and is interested in the thing. Before Judge Windham, at Bedford Assises, 1682.
• * 1.55

  No evidence to be given a∣gainst what is admitted up∣on the Record
• * 1.56

  Note Leon 3. part 210. If the parties admit a thing per nient dedi∣re, the Jury is not bound by it; but where upon the pleading a special matter is confessed, the Jury shall be bound by it. Impropriati∣on.
• * 1.57

  Hors de son fee.
• * 1.58

  Debt for rent.
• * 1.59

  Reparations. Vide the Cases of Re∣couper. lib. 5. 30.
• * 1.60

  Estoppel.
• * 1.61

  Surplusage.
• * 1.62

  Will.
• * 1.63

  Account.
• * 1.64

  Arrest.
• * 1.65

  Consimili casu. Substance.
• * 1.66

  Warranty.
• * 1.67

  Juror.
• * 1.68

  Robbery.
• * 1.69

  Demurrer upon evi∣dence.
• * 1.70

  Action sur Case.
• * 1.71

  Demurrer upon evi∣dence.
• * 1.72

  Record.
• * 1.73

  Deed.
• * 1.74

  Record.
• * 1.75

  Debt.
• * 1.76

  Servants wages.
• * 1.77

  Extinguish∣ment.
• * 1.78

  Acceptance. Rent.
• * 1.79

  Trover. Trespass. Vide Rolls 1. part 1. 2. A custom plead∣ed in Trover to take Corn to repair a bridge, and Cro. Eliz. 433. & 262. Promise. Imperfect Issue.
• * 1.80

  Payment.
• * 1.81

  Plea puis dar∣rein continu∣ance.
• * 1.82

  Trover.
• * 1.83

  Trespass. Freehold.
• * 1.84

  Averments.
• * 1.85

  Averment had upon or against a Deed.
• * 1.86

  Considera∣tion.
• * 1.87

  Use.
• * 1.88

  Upon or a∣gainst a Re∣cord.
• * 1.89

  A fine taken, by R. M. Esq; and retorned by R. M. Mili∣tem, upon the Ded. p. the Record not to be averred a∣gainst in Er∣ror. Yelverton 33. Cro. 2. part 11.
• * 1.90

  Against a Certificate.
• * 1.91

  Upon a Re∣turn.
• * 1.92

  Upon or a∣gainst a Will or Admini∣stration, it lyeth, al∣though they be under Seal of the Court.
• * 1.93

  Against Court Rolls, or up∣on them.
• * 1.94

  Against com∣mon presum∣ption, or rea∣son.
• * 1.95

  Upon an a∣ward.
• * 1.96

  Date.
• * 1.97

  Devise.
• * 1.98

  Partition.
• * 1.99

  Considerati∣on.
• * 1.100

  Uses.
• * 1.101

  Fine sur grant and render use.
• * 1.102

  Assault.
• * 1.103

  Battery.
• * 1.104

  Lunacy will not excuse in Battery, al∣though it will of Felony. Note a man may justifie an Assault and Battery, but not wounding or maiming of life or mem∣ber, or may∣hem in de∣fence of the possessi∣on of his Lands or Goods. 2. Inst. 316.
• * 1.105

  Tenant in com¦mon, cannot justifie to en∣ter into his Companions ground to take the horse they have in Common, al∣though he may take him elsewhere.
• * 1.106

  Trespass.
• * 1.107

  Felony.
• * 1.108

  Sow to halves.
• * 1.109

  Outlawry re∣versed.
• * 1.110

  Tenancy in Common.
• * 1.111

  Where Te∣nants in Com∣mon shall joyn in an action and where not, & what actions the one shall have against the other. See 1. Inst. 107, 200. &c. Woods. Trover a∣gainst a Car∣riers. Copyholder. Estray. Continu••ndo.
• * 1.112

  Park. Warren.
• * 1.113

  Commoner. False Impri∣sonment.
• * 1.114

  Possession. Entry. Relation.
• * 1.115

  Trespass.
• * 1.116

  Time.
• * 1.117

  Bar.
• * 1.118

  Ab initio.
• * 1.119

  Lunatick.
• * 1.120

  Note, the Chapter of Verdicts gives much light to know what evidence is good and what not.