sembled to a Writ of Trespass, for that in the said Case of g Fitz. Brief. 622. Bro. 80. Trespass, 60. Fitz. Brief. 578. Bro.70. Contra, agreed. H. 5 H. 8. Kelw. 167, a. pl. 4. Theol. Dig. lib. 11. cap. 7. § 1. 29 Ass. pl. 62. it is adjudged, & that in Trespass, if one of the De- & S. P. 10 Mod. fendants was dead before the Writ purchased, the Writ should 251. abate and so is it touched by the Way in many other Books and Cases since that Time. But yet it was said, that in the Case of Robert Passelow, in h M. 47 Ed. 3. 18. pl. 35. and in the Case of Michel and Gilbert, in T. 44 Ed. 3. 18. pl. 10. the contrary was adjudged, viz. in the first Case, that in Trespass the Writ shall not abate, where one named in the Writ was dead the Day of the Writ purchased; and in the other Case it was adjudged, that the Writ shall not abate, where it was pleaded that one named in the Writ was not in rerum naturâ the Day of the Writ purchased, for that he was dead before; and it was said that there are more Books adjudged this Way than the other. But it was argued, that although the Writ of Trespass should abate in such Case, yet it might not be resembled to the principal Case. For the Law favours the Assize, and the Expedition in it, more than in Trespass: And also in Trespass, the Person is the chief and original Cause of the Action, and the Plaintiff shall punish the Person of the Defendant in Trespass, and then if any of the Defendants be dead before the Writ purchased, it stands with some Reason to abate the Writ: but in the principal Case the Land is the chief and original Cause of the Action, and then if the Land and the Estate remains, and there is a Disseizor and Tenant, it is sufficient for the Plaintiff. And therefore for these Causes it was prayed for the Plaintiffs, that the Writ might stand, and that this Plea might not be enquired, and that the Assize might be taken upon the Plea of nul tort, &c. On the contrary it was argued for the Defendants, that the Plaint E contra, for the ought to abate because this Assize of fresh Force shall pursue the Defendants. Order and Pleading of Assizes at Common Law. And in Assizes 3. See 8 Co. 159, b. Kelw. 167. pl. 4. at the Common Law, the Plea pleaded here shall abate the Writ, because it proves that it was not well purchased. And it was alledged, M. 27 H. 8. 26. that it is holden in 27 H. 8. in a Quare Impedit, that if it be pl. 9. Bro. Brief. pleaded for one of the Defendants that there is nul tiel in rerum naturâ as one named in the Writ, this shall go in Abatement of the whole Writ, otherwise in case of Misnomer of one. And so shall it be in an Assize, which has been resembled to a Quare Impedit. And it was said, that the common Opinion amongst Men learned in the Law has always been, that dead before the Writ purchased, or, mul tiel in rerum naturâ, shall abate the Writ against all, in Actions as well several as joint, and in all Actions in general. And so it was prayed that the Plaint here might abate. And hereupon the Court would be advised: and they gave Day further. And in the mean Time Southcote, of the Middle Temple, one of the Deputies of the Sheriff of London, and Judge in the Cause, consulted with divers of the Justices, and prayed their Advice in the Case, and all the Cases before alledged by the Counsel were written in a Paper, and delivered to Hales, one of the Justices of the Common Bench, and he perused all the Books where the Cases were alledged, and read the Books cited, and found them according as they were cited, and afterwards said to Southcote, that no Man, learned in the Law, could shew any Book adjudged contrary to the Books cited. And N 2 because • Wing. Max. reg. 74. pl. 11. [ *91 ] + Booth, 269. 270. because there were here many Books the one Way, and none the other Way, he advised him to follow the Judgments before given. And this he also said to me myself. And at another Day afterwards in the Guildhall aforesaid, the Court said, we take the Law to be, that the Plea does not go in Abatement of the Plaint against alt, but only against the said Agnes. Wherefore we award the Plaint good against the others, and also do award the Assize * Afterwards the Plaintiffs Counsel, having well considered the Matter, perceived that the Case was argued prematurely, and before the proper Time; for the Assize ought to have enquired the whole Matter, and if they had found the Exception, viz. that there was no * such Person in rerum naturâ, as the Defendants had alledged, and had also found a Disseizor and Tenant, then the Matter ought to come in question, and that would have been the proper Time to dispute the Point of Law arising thereupon, and not before. For the Plea pleaded, ut supra, was not answerable; for if a Man pleads in Assize in Abatement of the Writ, Joint-tenancy on the Part of the Plaintiff, or Joint-tenancy without Deed on the Part of the Tenant, or pleads that the Tenements are in another Town, or that the Plaintiff or Tenant is mis-named, or the like Pleas, and pleads over, viz. et si trove ne soit, nul tort, &c. as he ought to do in such Cases, the Plaintiff shall not reply to the Pleas in Abatement of the Writ, nor are they answerable: for when the Defendant pleads in Abatement of the Writ, and pleads over, et si trove ne soit, nul tort, his Conclusion is, et de hoc ponit se super Assizam, and the Entry shall be, et Querens similiter. And so the Plaintiff shall say nothing else but similiter, and shall not answer specially to the Plea pleaded before nul tort. But if the Tenant in Assize pleads Joint-tenancy by Deed with a Stranger, there the Demandant ought to answer it: for there he that pleads the Joint-tenancy shall not plead over to the Assize, but shall stay upon that only, and shall pray Process upon the Statute, and therefore the Plea is an swerable; but in the other Cases the Plaintiff shall not answer to the Matter pleaded in Abatement of the Writ; neither shall he in our Case, and then if it is not answerable, by the same Reason the Plaintiffs might not demur upon it, for a Man may not demur upon that which does not require an Answer. And therefore the Matter ought to be enquired by the Assize, as it was done in the said Cases of 23 Ass. pl. 10, and 26 Ass. pl. 63. For which Reason the Counsel for the Plaintiff, taking the Law to be as is said before, prayed the Court that, when the Assize was sworn, they might first enquire of the Matter pleaded in Abatement of the Plaint, viz. if there ever was any such Agnes in rerum naturâ. And the Court, at the Prayer of the Plaintiffs, charged the Assize to enquire of this first, who found, that there never was any such Agnes, Wife of the said Ralf Foxley in rerum naturâ, as the Defendants had al ledged. And further they found, that some of the Defendants only disseized the Plaintiffs of Part of the Tenements, and shewed the Certainty thereof, and of this they acquitted the rest of the De fendants: And others disseized the Plaintiffs of another Part, and of that they cquitted the rest of the Defendants, and so of a third and of a fourth Part, and thus they found four several Disseizins at Damages several and Costs entire, four several Times, and by the Defendants severally, and assessed Kelw. 48. pl. 1. several Damages, viz. for every Disseizin a Penny against all the Verdict. Disseizors Disseizors of each Part, and £6:19s8d for the Costs of Suit as Bailiff to a One may not appear in an Assize Corporation, without War S. P. 1 Vent. 48. T. 12 H. 7. 26, a. Bro. CorMonstrans de faits, 113. Trespass, 288. Bro. Corpora tion, 47. Vin. Abr. tit. Corporation, K. pl. 26. poration, 51. P. 4 H. 7. 6. In the same Court another Assize of fresh Force was brought Panel v. Moor, by Thomas Panel, Parson of the Church of Honey-lane in Lon- &c. don, against Thomas Moor and the Corporation of Mercers of London, upon a Disseizin done to the Plaintiff, of a Cellar under the same Church; and Moor appeared in proper Person, and the Corporation by Bailiff, and his Warrant was demanded, and he had no Warrant; and the Assize was prayed against the Corporation, because by Law they cannot appear by Bailiff without his having a Warrant in Writing, so that upon the Matter they rant in Writing, had made Default. And the other Party said, that it should be Vide 3 P. Ws. done in this Writ as in Assizes at Common Law; and the Writ 425. of Assize saith, Put by Suretics and Safe Pledges the aforesaid (Defendant) or his Bailiff, if he cannot be found, &c. and so the Writ warrants the Appearance of the Bailiff. And to prove that a Bailiff may be to a Corporation without Deed, the Case of Trespass brought by the Dean and Chapter of Paul's, in *12 H. 7. was cited. Against which on the other Side was cited the case in 4 H. 7. of Debt brought by the Dean of Paul's. And also on this Side it was said, that although the Writ speaks, vel Ballivum suum, as is shewn before, yet this shall be intended such a Bailiff as the Law allows, viz. if the Defendant is a na tural Body, then his Bailiff without Deed, and if a Body corporate, then their Bailiff by Deed. And it was said, although the Law was that one might justify in Trespass as Bailiff to a Corporation without Deed, yet it is not like to a Bailiff in Assize; for there he shall plead touching the Right of the Freehold, and therefore he is in a higher Degree than a Bailiff of a Manor, who takes the Profits, and who justifies in such a base Capacity. And it was said, that a Bailiff of a Manor shall not have an Action of Debt for his Salary, without Deed, against any Corporation. And they had spoke to the Matter divers Days, and afterwards Cholm» ley and Southcote, Deputies of the Sheriffs of London, and Judges in the Cause, enquired the Opinion of the Lord Montague, and of Saunders, Serjeant, and of R. Brook, Serjeant, Recorder of Lon don, all of whom agreed in Opinion that the Bailiff might not ap pear without Warrant. Wherefore the said third Saturday in Lent the Court said, we have consulted with some of the Judges, and with several learned in the Law, and it seems to them and to us also, that the Corporation cannot appear by Bailiff without Wur rant in Writing. Wherefore we award that their Appearance be holden for none, because the Bailiff had not any Warrant. And afterwards the Corporation appeared by Attorney, and they and Moor pleaded to the Assize. And this Matter depended by divers Continuances с [*92] a Vide F. N. B. 181, b. 2 Inst. 415. 1 Finch, 296. Continuances until a certain Day, at which the said Moor (relicta verificatione sua) pleaded in Abatement of the Assize, that the Plaintiff had entered into the said Cellar * after the last Continuance, and thereof was seized in Fee in Right of his Church. And the Plaintiff è contra. And upon this the Jury gave a special Verdict, that is, they found the Matter at large, and prayed the Discretion of the Justices. And because the Verdict was not full and perfect, the Plaintiff sued a Certificate of Assize to make the Jurors come again to be more fully examined: who came again, and made their Verdict more certain. And the Effect of both their Verdicts was, that the Plaintiff had a Subpœna delivered to him to be examined upon certain Interrogatories concerning the Title of the Cellar, and after the last Continuance the said Moor desired him to dine with him at his House in Honey-lane, and being there with Anthony Skinner, Examiner, he was required by the said Thomas Moor to go into the said Cellar to see the Antiquity of the same. At whose Request the Plaintiff and the said Examiner went into the Cellar, and the Wife of the said Moor brought them two Candles to shew them the said Cellar. And when they had seen it, they came up and went out of it. And afterwards the said Examiner examined the said Plaintiff in the House of the said Moor upon the Interrogatories. And hereupon the Assize pray the Discretion of the Justices, whether the said Entry be such an Entry, as that the Plaintiff shall be thereby seized of the same Cellar in Fee in Right of his Church, as the said Moor by his Plea hath supposed. And they found the Seizin and Disseizin by Moor, and that the Corporation did not disseize the Plaintiff, and upon this Verdict the Plaintiff prayed his Judgment. And two Questions were moved upon this Verdict, which hung long in Abate. The first was, inasmuch as the Issue was joined upon a certain Point, viz. upon the Entry, whether the Jurors might give a special Verdict finding the Matter at large, or if they ought to have given a precise Verdict, viz. that he entered, or that he did not enter. For it was said that the Jurors may not give a Verdict at large, except in Assize, and a Writ of Trespass, or such like, where the general Issue is pleaded. The other Question was, if the Matter found be in Law such an Entry as shall abate the Writ, or not. And these Matters were debated in Guildhall divers Times, and hung until Trinity Term, in the second and third Years of the Reign of King Philip and Queen Mary, and then it was also debated. And it was said on Behalf of the Plaintiff, that the Statute of Westminster 2. cap. 30, which ordains, that the Justices assigned to take Assizes shall not compel the Jurors to say precisely whether it be a Disseizin or not, so that they do shew the Truth of the Fact, and require Aid of the Justices, shall be extended by Equity to other Cases besides Assizes, for there is as great Doubt in other Verdicts, as there is in Assizes: and the Statute was made to relieve the Ignorance of Jurors, and therefore The Jury may there is the same Reason in other Cases as in Assizes. And for give a special this Cause they may give a special Verdict, and find the Matter Verdict upon any Issue, as well general as special, and in other Actions as well as in Assize or Trespass, so that the Matter found at large, be pertinent to the Point in Issue, S. P. Co. Litt. 227, b. 9 Co. 12, b. 2 Inst. 425. Moor, 858. Hoh. 227. P. 26 Eliz. cited 1 And. 37. 3 Leon. 136. Per Anderson, C. J. S. P. C. 164, c. 165, a. And so is the Law now settled, notwithstanding some ancient Opinions (supra b.) to the contrary. T. 9 H. 7. 4, b. Per Brian. Bro. M. 9 H. 7. 13, b. Per Fairfax. Bro. ibid. 83. Dy. 118, a. pl. 77. N. Bendl. 37. pl. 69. Verdict, 56. b at с P. 41 Ed. 3. 10. pl. 5 Fitz. Account, 24. Bro. Verdict, 84. at large in any Issue in the Word, so that the Matter found at large does but tend to the Issue joined, and contain the certain Truth thereof. And hereupon the Case in 41 Ed. 3. was alleged, where, in a Writ of Account for £10, the Defendant traversed the Receipt, and the Jurors gave a Verdict at large, viz, that the Plaintiff delivered the Money to the Defendant, upon Condition that if the Defendant made him an Assurance of certain Land, he should have the £10, and if he did not make him an Assurance at such a Day, that he should re-deliver the Money to the Plaintiff, and they said he did not make him an Assurance of the Land at the Day, &c. and forasmuch as, upon this Matter found at large, the Law saith that the Defendant is accountable, he was adjudged to account. Ex quo a Man may see, that a special Verdict finding Matter amounting to the Point in Issue is good, and that Judgment shall be given upon it. And the Case in 26 H. 8. T. 26 H. 8, was alleged, where two as Church-wardens brought an Action, 5. pl. 25. and the Defendant said, that the Day of the Writ purchased they were not Church-wardens, and upon this they were at Issue, and the Jury gave their Verdict, that the one was Warden the Day, &c. and the other not: And there it is moved, whether or no this Verdict should be received, inasmuch as it is not precisely found whether they were Wardens or not, but there, by the Rule of the Court, the Verdict was so received and entered, for if the one was not a Warden, then they were not Wardens, and the Court, which hath Knowledge of the Law, may so adjudge upon the Verdict; so that forasmuch as it amounted to a direct Proof of the Issue, the Verdict was there held good. And the Case in 47 Ed. S. was alledged, wherein a Præcipe quod reddat upon the Default of the Tenant one came and shewed that the Tenant, who made Default, held the Tenements for Term of Life of his Lease, the Reversion to him, and prayed to be received, and the Demandant said that the Tenant had a Fee, and upon this they were at Issue, and it was found by Nisi prius that the Tenant never had any Thing in the Land, and also he who prayed to be received never had any Thing in the Reversion, and upon this Verdict found the Court were advised that it was receivable, for it was confessed both on the one Part and on the other, that the Tenant had an Estate for Term of Life, and the Inquest was not charged concerning that which the Party had confessed, and then when the Verdict finds that he had nothing, it follows from thence that he had not a Fee, and so the finding amounts to the Point of the Issue, though it has not precise Words. And many other Cases were put on this Point. From which, it was said, it appears that as well in general, as in special Issues, and as well in other Actions as in Assize or Trespass, the Jurors may give a special Verdict, finding the Matter at large pertinent to the Point in Issue. And so is it here. And as to the other Point, it was said, that this could not be adjudged in Law an Entry; for the Plaintiff came into the Cellar at the Request of the Disseizor, and to see the Antiquity of it, and for no other Purpose. And the Disseizor could not punish M. 47 Ed. 3, 19. pl. 42. Fitz Verdict, 20. Bro. 66. If the Tenant i House, desire the to see the An tiquity of it, this is no such Entry as shall cause the Assize to abate. S. P. cited 2 Brownl. 231. 1 Bulst. 9. Palm. 434. Booth. 269. Wing. Max. reg. 194. pl. 28. 2 Danv. Abr. 791. pl. 2, in notis. Vin. Abr. tit. Assize, X. pl. 44. tit. Entry, E. pl. 14. |