and alfo the Performance thereof, is wholly done or to be done beyond Sea, and it fo appears to be, there wants Trial in our Law. But here the Affumpfit, which is the Ground of the Action, was at London, and therefore must neceffarily be tried (where the Action is brought) or fhall not be tried at all. And the Arreft which is in Iffue is not the Ground of the Action but the Affumpfit, and the Arreft is the Breach of the Affumpfit, and fo must neceffarily be tried where the Affumpfit, which is the Ground of the Action, was made. Vin. Abr. Tit. Trial, 4. pl. 8. cites 6 Rep. 47. b. in Dowdale's Cafe cites Mich. 30 & 31 Eliz.

An Obligation with Condition that if the Obligor brings the Merchandizes of the Obligee from Norway beyond Sea to Lynn in England, that then, &c. this may be tried in England; per Vavifor and Fineaux accordingly. Br. Trials, pl. 154. cites 11 H. 7. 16.

Retainer in England to ferve beyond Sea fhall be tried in England. Br. Trials, pl. 93. cités 7 H. 7. 8. per Huffey Ch. J.

In the Cafe of Drake and Beere, Trin. 15 Çár. 2. B. R. 1 Siderf. 151. 1 Keb. 528. this Difference was agreed by the Court, viz. That a Jury in an inferior Court may inquire of Things out of the Jurifdiction, if they be but for Increase of Damages, as is 1 Cro. 571. Ireland verfus Blackwell; but if they inquire of any Thing iffuable out of that Jurifdiction, it is naught. Cro. 101. 2 Cro. 503.

Error was brought to reverfe a Judgment Jurifdiction given in the Palace-Court, in Indebitat. for that of Courte. the Defendant was indebted to the Plaintiff infra Jurifditionem, for nurfing of a Child,

not

Inferior
Courts,

Estoppels.

When the Estoppel is found, the Court may judge according to the especial

Matter.

Estoppels.

not faying, the Nurfing was infra Jurifdicti

onem.

Wadh. Windham, Juftice, held it good, for that it is a Debt every where, and not like a Debt that arifeth by Matter collateral: But Twifden Juftice doubted. Whitebead verfus Brown, Pafch. 15 Car. 2. B. R. 1 Keb. 512.

Vide Saunders's Reports, 1 Part, 73. Peacock against Bell and Kendall. The Plaintiff declared the Defendant infra Jurifdi&tionem indebitatus fuiffet to the Plaintiff in 391. pro diverfis Merchandizis per quer. eidem Defendenti ante tempus illud vendit. & deliberat. Held nought in an inferior Court, for not faying ibidem vendit. &c. but good in a fuperior Court, and in the County Palatine of Durham, for that is an original and fuperior Court.

The Jury may find Eftoppels, as the taking. of a Leafe 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 Inteftate died before the Date of the Obligation, and iffint nient for fait; upon which they were at iffue; and adjudged that the Jury might find that the Bond was delivered the third of April, because they are fworn ad veritatem dicendam; 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 within the fame Record, in which Iffue is joined, then the Jurors cannot find any Thing contrary to this, which the Parties have affirmed and admitted

2

mitted of Record, though it be not true, for the Court may give Judgment upon Matters confeffed by the Parties; and the Jurors are not to be charged with any fuch Thing, but only with fuch in which the Parties vary. Lib. 2. 4. Lib. 4. 53. Co. Lit. 227.

2.4.

A Decree in Chancery fhall be tried by a Decree. Jury, and not by itself; 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.

tion.

Exemplification of a Decree in Chancery, Exemplificawhich has Bill and Anfwer, allowed good Evidence. Keb. 1 Part 21. Deeds, &c.

The Jury may find Deeds or Matter of Re- Records not cord, if they will, though not fhewed in Evi- shewed. dence. Finch 400. They may inquire of Things done before the Memory of Man.

Lib. 9. 34.

The Jury in many Cafes may find Matters Foreign in a foreign County, Conditions, Records, County. Releases, &c. As in Battery of the Plaintiff's Servant in one County, and Lofs of Service in another County, this Damage in the other County may be inquired of by the Jury of the County where the Battery is laid. The like of Affets, becaufe tranfitory; otherwife of a local Trefpafs, &c.

Nul tiel Record is not to be tried by a Jury, but upon the General Iffue, &c. they may find a Record.

The Jury may find a Warranty, being gi- Warranty. ven in Evidence, though it be not pleaded: Nay, the Jury may find that which cannot be pleaded; as in Trespass, upon Not guilty, the Jury may find that the Defendant leafed Lands

for

Condition. for Life, upon Condition, and entred for the Condition broken; though this cannot be plead

Jury is bound by Eftoppel Party leaves

unless the

the Fact at large by Pleading.

ed without Deed, yet the Jury may find it. Lit. Sett. 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 fhall bar and bind a Right. Lib. 10. 97.

Where the Plaintiff's Title is by Estoppel, and the Defendant pleads the General Issue, the Jury are bound by the Eftoppel; for here is a Title in the Plaintiff, that is a good Title in Law, and a good Title, if the Matter had been disclosed and relied on in Pleading; but if the Defendant pleads the fpecial Matter, and the plaintiff will not rely on the Estoppel when he may, but take iffue on the Fact, the Jury fhall not be bound by the Estoppel; for then they are to find the Truth of the Fact which is against him, Thus in Debt for Rent on an Indenture of Lease, if the Defendant plead Nil debet, he cannot give in Evidence, That the Plaintiff had nothing in the Tenements; becaufe, if he had pleaded that specially, the Plaintiff might have replied the Indenture and eftopped him; but if the Defendant plead Nibil babuit, &c. and the Plaintiff will not rely on the Estoppel, but reply babuit, &c. he waves the Eftoppel, and leaves it at large; and the Jury fhall find the Truth notwithstanding his Indenture. Salkeld 276, 277.

1

CHA P.

CHA P. XI.

The Furies Oath; why called Recognitors in an Affize, and Jurors in a Jury. Of the Trial per medietatem linguæ; when to be prayed, and when grantable. Of a Trial betwixt two Aliens, by all English. Of the Venire facias, per medietatem linguæ, and of a Challenge to fuch Juries.

HE Jury having heard their Evidence, Affize, Enlet them now confider of their Verdict: queft and But firft they must remember their Oath, Proof, are which in Effect is, To find according to their taken for the Word Jury. Evidence, and therefore they should have had Vide 28 E. it before the Evidence, but that the Form and 3. 13. Order of the Venire facias (which I have tied myself to follow) leads me to it after their Evidence, in thefe Words, Ad faciend. quan- See Chap. 1. dam Juratam. I have already fhewed the Derivation of this Word Jurata, and what is the legal Acceptation of it; only observe with our Great Mafter Littleton, That the Word Inft. 154. Affife is fometimes taken for a Jury; so, as the learned Commentator doth well paraphrafe, that the Word Affife is Nomen Equivocum Equivocans, because fometimes it fignifieth a Afifa for Jury, fometimes the Writ of Affife, and fome- Jurata. time an Ordinance or Statute; but Jurata is Nomen Equivocum Equivocatum, because we always understand that Word (according to the aforefaid Definition) to be a Jury of twelve Men, fo called, by reafon of the Oath they

take, Truly to try the Suit of Nifi prius, be- The Juries

tween

Oath,