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7. IN an Assise brought in the County of Lincoln, before Gawdy and Owen, by Thomas Mounson Esquire, Demandant, against Robert West, Te∣nant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Te∣nant del Frank-tenant named in the Writ, and if that be not found, then Nul tort, nul Disseisin: And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint, and put in view to the Recogni∣tors
of the Assise, in manner and form as the Writ supposeth: And further that the said West therof disseised the said Mounson, namely of the Tene∣ments in the will of one Mounson: And did not find either the words of the Will, nor the Will it self what it was, &c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices, gave Iudgment, that the Plaintiff shall recover, &c. upon which a Writ of Error was brought in the Kings Bench, where it was moved that the Iudgment was erroneous: First, because the Iury have not found that the Defendant was Tenant of the Free-hold, agreeing with the form of the Plea, for the Writ of Assise doth not suppose him to be Tenant of the Free-hold, and therfore the Ver∣dict in this point not fully found.
The second Error is, that the Seisin of the Plaintiff is not required of, ac∣cording to the charge given to them, as well as the Disseisen, for the charge was that they should enquire of the Seisen of the Plaintiff, &c. But to both these the Court answered that the Verdict is well enough, notwithstanding these exceptions, for every Assise brought supposeth that there is a Disseisor, and a Tenant named in it, then this Assise being brought against a sole per∣son, supposeth him to be a Disseisor and Tenant also; and therfore the Ver∣dict saying, that he was Tenant as the Writ supposeth, is now as strong in this case, as if they had found that he was Tenant of the Free-hold, for the Tenant of the Free-hold ought to be named in the Writ: But if the Assise had been brought against two, or more, such a Verdict had not been good, for it sufficeth if any of them be Tenant of the Freehold, and then the Writ doth not suppose one to be Tenant more then another, but supposeth one Te∣nant to be named in the Writ. And therfore in such a case the finding ought to be speciall, to wit, that such a one is Tenant of the Free-hold, or that there is a Tenant of the Free-hold named in the Writ. But where one only is named in the Writ to be Disseisor and Tenant, it is sufficient to find as here, for by this it is certainly found that he is Tenant of the Free-hold.
And for the other point, although it be a good direction for the Iudges to the Iury, wherby they may the better perceive that there ought to be a Sei∣sin in him, or otherwise there cannot be a Disseisen by the other, yet in Deed he cannot be a Disseised who was not then seised: But the Assise having found the Disseisen the Seisen in Law, is found included in the Disseisen. But for the point moved, that the Verdict was not perfect, in as much as they found the Disseisen with a Nisi, it seemed to Gawdy that the Iudgment upon this Verdict was erronious, as where a Verdict in another Action is imperfect, a Venire facias de novo shall be awarded to try the Issue again: And if Iudgment be given upon such a Verdict it is error; so here the Ver∣dict in this point being incertain, there ought to have been a Certificate of Assise to have this better opened: But the three other Iustices held (as the case is) that the Verdict in this point is certain enough, for that which cometh before the Nisi (as it is placed) is meerly nugator. as in the case of the Lord Stafford against Sir Rowland Heyward, the Iury found Non assumpsit, but if such Witnesses say true (as they believe they did) Assump∣sit, &c. it was but a meer nugation.
But it seemed to Popham, that if the Verdict had been, if the words of the Will do not passe the Land, then that he disseised, and if they passe, then that he did not disseise; there if the words of the Will be not found, the Verdict had been all imperfect, but here the Verdict is full and perfect before the Nisi, &c. and therfore the Iudgment was affirmed.