good for that it is a debt every where and not like a debt that ariseth by matter collateral But Twisden â—ust doubted Whitehead vers Browne Pasch 15 Car. 2. B. R. The Jury may find Estoppels as the taking Estoppels When the Estoppel is found the â—ourt may judge according to the eâ—pecial matter of a Lease of a man 's own Land by Deed indented or the delivery of a Deed before the date as in Debt by an Administrator upon a Bond dated 4 Aprilis 24 Eliz The Defendant pleaded that the Intestate dyed before the date of the Obligation and isint nient son fait upon which they were at Issue and adjudged that the Jury might find that the Bond was delivered the 3d of April because they are sworn ad veritatem dicenâ—um though the parties are estopped to plead a Deed was delivered before the date but they may plead a delivery after the date because it shall never be intended that a Deed was delivered before the date but after it may But if the Estoppel or admittance be Estoppels within the same Record in which Issue is joyned then the Jurors cannot find â—ny thing contrary to this which the parties have affirmed and admitted of Record though it be not true For the Court may give judgment upon matters confessed by the parties and the Jurors are not to be charged with any such thing but only with such in which the parties vary li. 2. 4. li. 4. 53. Co. Lit. 227. A Decree in Chancery shall be tryed by a Decree Jury and not by it self for it is not a Record but a Decree Recorded The Chancery as it is a Court of Equity is not a Court of Record But touching things agitated in the Petty Bag Office it is a Court of Record The Jury may find Deeds or matter of Records not shewed Record if they will though not shewed in Evidence Finch 400. They may inquire of things done before the memory of man lib. 9. 34. Null tiel Record is not to be tryed by a Jury but upon the general issue c. they may find a Record The Jury may find a Warranty being Warranty given in Evidence though it be not pleaded Nay the â—ury may find that which cannot be pleaded as in Trespass upon not guilty The Jury may find that the Defendant leased Lands for life upon Condition Condition and entred for the Condition broken Tho. this cannot be pleaded without Deed yet the Jury may find it Lit. Sect. 366. Where a Collateral Warranty binds this may well be given in Evidence For although it doth not give a right yet in Law this shall bar and bind a Right Lib. 10. 97. But this matter comes more properly under the Title Evidence wherefore we will proceed to that See also in Chap. 13. CAP. XI Evidence and Witnesses EVidence Evidentia This word in legal Evidence understanding saith Coke 1. Inst 283. doth not only contain matters of Record as Letters Patents Fines Recoveries Inrollments and the like and writings under Seal as Charters and Deeds and other Writings without Seal as Court-Rolls Accounts and the like which are called Evidences Instrumenta But in a larger sense it containeth also Testimonia the Testimony of Witnesses and other proofs to be produced and given to a Jury for the finding of any Issue joyned between the parties And it is called Evidence because thereby the point in Issue is to be made evident to the Jury Probationes debent esse evidentes id est perspicuè facile intelligitur And this Evidence with Bracton we may term probatio duplex viz. viva as Witnesses vivâ voce and Mortua as by Deeds Writings and Instruments and violenta praesumptio in many cases is plenâ— probatio and therefore if all the Witnesses to a Deed be dead then the Deed shall receive Credit per collationem sigillorum scripturae Presumption c. but especially if there hath been a continual and quiet possession which is a violent presumption 1 Inst 6. for no man can keep his Witnesses alive If a thing be generally referred to proof Proof this shall be intended proof by Jury but if other manner of proof be agreed upon that shall take away the proof which the Law generally intends by Jury Hob. 127. As if I promise to pay what mony you prove B. borrowed this may be proved in the same action brought upon the promise Vide Rolls tit tryal 594 595. Men that are so branded with Infamy Witnesses that they cannot be Jurors for which see before who may be Jurors cannot be Witnesses yet per Glyn Ch. Just and Newdigate Just Mich. 1657. B. R. Conviction of common Barretry hinders not from being a witness but Maynard Sergeant held strongly against it At Lent Assises Suff. 1657. St. John Ch. Just C. B. would not allow one who had been whipped for petty Larceny to be a Witness but Earl Sergeant said they ought to be stigmatici that are disabled from being Witnesses Yet per Roll. Ch. Just one burned in the hand for Felony may be a Witness for he is in capacity to purchase Lands and his fault is purged by his punishment Stiles 388. The Wife cannot be a Witness for or Who may be Witnesses against her Husband 1 Inst 6. that is in case of a common person between party and party but between the King and the party on an Indictment she may although it concerns the Feme her self as in the Lord Audley's Case Hutt 116. So she may have the Peace against her Husband And so it was resolved in John Browne's Case Trin. 25 Car. 2. B. R. on the Stat. of 3 H. 7. cap. 2. vid. 1 Cro. 492. The King cannot be a witness by his Letters under his Signet manual One attained of Piracy cannot be a witness to prove another guilty If he accused another before he was attainted and afterwards confesses he wronged him this confession shall be rejected because he is attainted A woman cannot be a witness to prove a man to be a Villain Co. Lit. 6. 8. Neither can the party to the usurious Contract be a Witness against the Vsurer in an Information upon the Statute of Vsury But Kinsmen never so near Tenants Servants Masters Counsellors and Attorneys c. may be Witnesses A Counsellor may be a Witness to the Agreement c. but not to validity of an assurance nor to the Counsel he gave March Rep. 43. If a Witness being served with Process and having money sufficient to bear his charges or less if he accept it do not appear to give his testimony he forfeits 10 l. to the party damnified and must recompence his damages 5 Eliz. 9. If a Witness commit wilful perjury he loseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz 9. A party robbed is allowed a
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. Account 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. Arrest and then a delivery of a Capias ad sat at the suit of B. to the Sheriff is good Hob. 55. But a taking upon 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 Consimili casu Substance 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 Alienation 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 Warranty 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 Juror said by the Court that if either of the parties to a Tryal 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 upon his Oath and he ought not to be examined in private by his Companions And it was also said that if a Robbery be done in Crepusculo the Hundred shall Robbery 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 Demurrer upon evidence High-way into which his Gelding fell c. upon Not Guilty this evidence was given that the Plaintiffs 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 Action sur Case 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 Demurrer upon evidence 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 upon 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 Record 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 evidence 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 Demurrer 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 Deed. evidence 't is 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 Record 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 dismissed 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 parties 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 Demurrer 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 Debt yearly The Defendant may plead payment of the robe and shall not be put to the general Issue Servants wages 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 upon nil deb for the Plaintiff must prove he served so indebitatus Assumpsit non Assumpsit upon the promise in Law an extinguishment by taking a Bond Extinguishment 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 dubitatur 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 personal action once suspended is gone for ever But acceptance of a Bond shall not extinguish Rent nor arrerages of an account before an Auditor of Record because these are of a
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 Tenant 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 declaraâ—ion of use which otherwise would result to the Woman and her Heirs and â—o other uses may be proved than what are in an Indenture of uses subsequent to the conveyance c. lib. 9. 8. 5. 26. Tenant in tail with remainder in tail to A. Reversion 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 determinable 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 remainder 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 aâ—d the conclusion may be confessed and avoided Resolved the Warranty doth not barr the remainder 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. 'T is 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 statum 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 determinate 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 â—elf is torâ—ious Note there are some titles to which a Warranty doth not extend as in the Case of an Eschange condition upon a Mortgage Mortmain consent to a Ravisher 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 displaced out of their Original essence Collateral Warranty 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 Freehold cannot commence in futuro and the Grant being void at the Commencement the Attornment afterwards 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. 'T is 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 Conusor cannot be transferred to him but by the fine the right is extinct whereof the Disseisor shall have advantage 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 definitive Against a Certificate 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 against Certificates only of information it may be As against Certificates upon Commission out of any Court or of the Commissioners that affirm a man a Bankrupt 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 Upon a Return thing returned no averment lyeth against it As the retorn of a Sheriff upon some Writs as a Writ of Partition