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body_n heir_n male_n remainder_n 9,097 5 12.3740 5 false
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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A38736 Tryals per pais, or, The law concerning juries by nisi-prius &c. by G.D. of the Inner Temple, Esquire. G. D. 1685 (1685) Wing E3413A; ESTC R36204 212,735 464

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Elegit and of Hab. Corp. from a Mayor c. But if the retorn is not definitive as upon a Rescous c. an averment doth ly and upon this it may go to Tryal So if it be a return to indanger a mans Life or his Inheritance an averment may be had against it Dyer 348. 177. So it lyeth against the returns of Bayliffs of Franchises so that the Lords be not prejudiced in their Franchises thereby Goldsb 139. 129. pl. 23. An action for a false return an averment doth ly against the Sheriff return Winch 100. and so it doth Upon or against a Will or Administration it lyeth although they be under Seal of the Court. in any other action than in that the retorn was in Any averment may be upon a Will or any part of it that may help to expound it and of such a thing that may stand with the Will and may be collected out of the words As which Son he meant c. lib. 8. 31. 41. But no averment against or besides that which is expressed in the Will or which cannot be gathered to be the mind from the words nor of any thing that doth not cohere with the Will especially if it be about Lands As in the Lord Cheyneys Case lib. 5. 68. A devise to A. and the Heirs of his body the remainder to B. and the Heirs Males of his Body on condition that he or they or any of them shall not align c. no averment shall be taken to prove by Witnesses or other evidence that the Devisor intended to include A. within this condition by the words ●e or they for the construction of Wills ought to be collected out of the words of the Will in wriing and not by any averment or proof out of it It lyes against the Rolls or Records of County Against Court Rolls or upon them Courts Hundred Courts Courts Baron As that there is no such Record or it is not as it is certified 34 H. 6. 42. 9 E. 4. 4. No Averment or proof is to be admitted against Against common presumption or reason common presumption as that there was more Rent behind when the acquittance of the last Rent was made 1. Inst 373. Nor against common reason as that Land doth belong to Land or to a messuage Plo. 170. lib. 437. If the matter contained in an award and the matter Upon an award in the submission do not agree it will hardly be supplied by an averment Dyer 242. 52. If the Defeasance of a Recognisance be dated before Date the Recognisance it may be averred to be delivered at or before the time of the Recog entred into Perkins Case 147. Things apparent or necessarily intendable by Law need not be averred manifesta non probatione indigent Quod constat clare non debet verificari lib. 11. 25. Plo. 8. Chief Justice Anderson held Godbolt 131. that if Devise one devise Lands to the Heirs of J. S. and the Clerk writes it to J. S. and his Heir that the same may be holpen by averment because the intent of the Devisor is written and more and it shall be naught for that which was against his Will and good for the residue But if a Devise be to J. S. and his Heirs and it is written but to the Heirs of J. S. there an averment shall not make it good to J. S. because it is not in writing which the Law requires And so an averment to take away any surplusage is good but not to increase that which is defective in the Will of the Testator But with submission if the Law should admit of such averments it would be as mischievous one way as the other and no man could know by the words of the Will what construction to make nor what advice to give but this shall be controlled by collateral averments out of the Will and instead of proving the Testators Will it would be the destroying of it If the partition be by Writ although it be unequal Partition yet it shall not be avoided by averment but shall bind the Feme Coverts And such averment against the retorn of the Sheriff shall not be good 1. Inst 171. A valuable consideration in a Bargain and Sale Consideration not expressed may be averred 2. Inst 672. A consideration which consists with the Deed and not repugnant may be averred as in a Bargain and Sale if a particular consideration be expressed and the general clause of other good causes and considerations or without that general clause yet other considerations may be shewed so if the particular consideration be love and affection yet payment of money may be shewed so a precedent intent of uses and Uses to levy a fine may be shewed to guide the use of the fine Rolls tit uses 790. As if I covenant by Deed to purchase Land and then to levy a fine or make a Feoffment thereof to the use of another and afterwards purchase and levy a fine or make a Feoffment this use shall rise For the Deed is an evidence of the precedent intent and the uses of a fine or Feoffment may be directed by the precedent intent and yet such intent is countermandable But a covenant to purchase and stand seised of Lands to uses shall not raise the use after the purchase because the use is to rise by the Deed and at the time when the Deed was made there was no Estate in the Land ibidem So if one joyntenant covenant to stand seised of his Companions part if he survive yet no use shall rise if he did survive because at the time of the Covenant he could not grant nor charge the Land ibid. 'T is true that a fine sur grant and render unless it Fine sur grant and render use be in special cases cannot be averred by parol to be to any other use or intent than what is expressed in the fine Feoffment or other conveyance But there is a diversity betwixt a use and consideration for when a fine Feoffment or other conveyance import an express consideration a man may aver by word another consideration which may stand with the consideration expressed but the parties cannot by parol aver any other use than is contained in the same coveyance Also no averment shall be against the consideration expressed But yet in some cases a fine Sur grant and render may be ruled and directed in part by averment per parol and this is when the original Bargain and Contract betwixt the parties is by Indenture or other Deed As where it is agreed by Indenture that a Fine shall be levyed of certain Lands by the name of a certain number of Acres to divers persons and that they shall grant and render the Land again in fee simple which shall be to certain uses the Fine is levyed of the Land but there is some variance betwixt the number of Acres comprised in the Fine or the Fine is levyed
Lord of Parliament as a Baron Viscount Earl Marquess and Duke for these in respect of Honour and Nobility are not to be sworn on Juries and if neither party will challenge him he Propter honoris respectum may challenge himself for by Magna Charta it is provided Quod nec super eum ibimus nec super cum mittemus nisi per legale judicium parium suorum aut per legem terrae Now A Peer may challenge himself the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realm The Peers Peers and Commons of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses And in Iudgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tryed for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tryed per Pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a Tryal either at the Kings Suit or between party and party a Peer of the Realm shall not be impannelled in any Case Secondly Propter Defectum Challenge Propter defectum 1. Patriae as Aliens born 2. Libertatis as Villains or Bondmen and so a Champion must be a Freeman 3. Annui sensus i. e. liberi tenementi First what yearly Freehold a Iuror ought to have that passeth upon Tryal of the life See before cap. 7. Quorum quilibet habeat 4. l. c. of a man or in a Plea real or in a Plea personal where the Debt or damage in the Declaration amounteth to 40. Marks Vide Littleton Sect. 464. Secondly this Free-hold must be in his own right in Fee-simple Fee-tail for term of his own life or for another mans life although it be upon condition or in the right of his Wife out of antient Demesne for Freehold within ancient Demesn will not serve but if the debt or Damage amounteth not to 40. Marks any Freehold sufficeth Thirdly he must have Freehold in that County where the cause of the action ariseth and though be hath in another it sufficeth not Fourthly if after his return he selleth away his Land or if Cesty que vie or his Wife dyeth or an entry be made for the condition broken so as his Freehold be determined he may be challenged for sufficiency of Freehold It seems before the Statute 2 H. 5. free-hold of any value was sufficient for there Freehold of 5. s. was sufficient 3. H. 4. 4. by that Statute in all Pleas real and personal where the Debt or damage or both together amount to 40 marks the Juror must have 40. s. Freehold In an Attaint they must be able to expend 20. l. per annum In an accompt upon the Receipt of 100. s. if he count to his damage 200. s. if the Juror hath but 20. s. or under 40. s. 't is sufficient because he shall not recover damages and so this is not within the Statuts 10 H. 6. 18. for the sufficiency of Jurors See Rolls tit Tryal 648. A man seised of the Mannor of Dale enfeoffs a stranger upon condition to pay yearly to J. S. and his Heirs 40. s. Rent J. S. dies seised of this Rent and then his Heir takes it Yet the Heir hath not sufficient Freehold Land to the value of 40. s. is given to Husband and Wife and the Heirs of their two bodies begotten who have issue a son the Husband gives the Land by fine to an estranger and his Heirs and dies the Wife enters and dies seised the son hath not sufficient Freehold to be a Juror A man seised of Land to the value of 40. s. within the County of Mid. and of Land to the value of 12. within the County of Sussex and grants a Rent-charge of 40. s. issuing out of all the said Land to a stranger in fee the Grantee hath sufficient Freehold to be a Juror in both Counties See many speculative cases upon this subject in Williams his Reading upon the Statute 35 H. 8. cap. 6. 4. Hundredorum First by the common Challenges propter defectum hundrrdorum Law in a Plea real mixt and personal there ought to be four of the Hundred where the cause of action ariseth returned for their better notice of the cause for Vicini vicinorum facta praesumuntur scire And now since Littleton wrote in a Plea personal if two Hundredors appear it sufficeth and in an Attaint although the Jury is double yet the Hundredors are not double Secondly If he hath either Freehold in the Hundred though it be to the value but of half an Acre or if he dwell there though he hath no Freehold in it it sufficeth Thirdly if the cause of the action riseth in Hundredors divers Hundreds yet the number shall suffice as if it had come out of one and not several Hundredors out of each Hundred Fourthly if there be divers Hundreds within one Leet or Rape if he hath any Freehold or dwell in any of those Hundreds though not in the proper hundred it sufficeth Fifthly if the Jury come de Corpore Comitatus or de proximo Hundredo where the one party is Lord of the No Hundredors Hundred or the like there need no Hundredors be returned at all Sixthly if a Hundredor after he be returned sell away his Land within that Hundred yet shall he not be challenged for the Hundred for that his notice remains otherwise as hath been said for his insufficiency of Freehold for his fear to offend and to have Lands wasted c. which is one of the Reasons of Law is taken away Seventhly he that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Eighthly his Challenge for the Hundred is not simpliciter but secundum quid for though it be found that he hath nothing in the Hundred yet shall not he be drawn butremain praeter H. that is besides for the Hundred and albeit he dwelleth or have Land in the Hundred yet must he have sufficient Freehold Note This challenge for want of Hundredors must be given in writing presently and the other party is to demurr thereto if opposed If a challenge be that there is not any Hundredor returned it may be averred to the Court that there is not any sufficient within the Hundred which is not within the Fee of the Plaintiff although this be not returned by the Sheriff and this be found true by Tryors the Array shall be affirmed 45. Ass 1. If the King be made party by aid prayer and sufficient Hundredors do not appear nor are returned yet the Pannel shall not be quashed but a Tales of Hundredors shall be returned But