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Section 366 Conditional Estates, part 41 - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]

Edition used:

The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.

Part of: Selected Writings of Sir Edward Coke, 3 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Section 366
Conditional Estates, part 41

| Also albeit a man cannot in any action pleade a condition which toucheth & concernes a freehold, without shewing writing of this, as is aforesaid, yet a man may be aided upon such a condition by the verdict of 12. men taken at large in an assise of Novel disseisin,1 or in any other action where the Justices will take the verdict of 12. Jurors at large. As put the case, a man seised of certaine land in fee, letteth the same land to another for terme of life without deed, upon condition to render to the Lessor a certaine rent, and for default of payment, a re-entrie, &c. by force whereof the lessee is seised as of freehold, and after the rent is behinde, by which the lessor entreth into the land, and after the lessee arraigne an Assise of Novel Disseisin of the land against the Lessor, who pleads that he did no wrong nor disseisin, and upon this the Assise is taken; in this case the Recognitors of the Assise may say and render to the Justices their verdict at large upon the whole matter, as to say that the defendant was seised of the land in his demesne as of fee, and so seised, let the same land to the Plaintife for terme of his life, rendring to the lessor such a yeerely rent payable at such a feast, &c. upon such condition, that if the rent were behind at any such feast at which it ought to bee payd, then it should bee lawfull for the Lessor to enter, &c. by force of which lease the Plaintife was seised in his demesne as of freehold, and that afterwards the Rent was behind at such a feast, &c. by which the lessor entred into the land upon the possession of the lessee, and prayed the discretion of the Justices if this bee a disseisin done to the Plaintife or not. Then for that it appeareth to the Justices that this was no disseisin to the plaintife, insomuch as the entrie of the Lessor was congeable on him; the Justices ought to give judgement that the plaintife shall not take any thing by his writ of Assise. And so in such case the lessor shall bee ayded, and yet no writing was ever made of the Condition. For aswel as the Jurors may have conusance of the lease, they also aswell may have conusance of the Condition which wasdeclared&rehearsed upon the lease.

“verdict of 12. men.”

Veredictum quasi dictum veritatis, as judicium est quasi juris dictum.2 ,3Et sicut ad quaestionem juris, non respondent juratores, sed judices: sic ad quaestionem facti non respondent judices sed juratores.4 For Jurors are to try the fact, and the Judges ought to judge according to the Law that riseth upon the | fact, for Ex facto jus oritur.5

“taken at large.”

There bee two kinds of verdicts, viz. one generall and another at large or especiall. As in an Assise of Novel disseisin brought by A. against B. the Plaintife makes his plaint, Quod B. disseisivit cum de 20. acris terrae cum pertinentiis,6 the Tenant pleads, Quod ipse nullam injuriam seu disseisinam praefato A. inde fecit, &c.7 the Recognitors of the Assise doe finde Quod praedict. A. injuste & sine judicio disseisivit praedict. B. de praedict. 20. acris terrae cum pertinent’ &c.8 This is a generall verdict. The like Law it is if they finde it negatively. And Littleton here putteth a case of a Verdict at large or a speciall Verdict, and it is therefore called a speciall Verdict or a Verdict at large, because they finde the speciall matter at large, and leave the judgment of Law therupon to the Court, of which kinde of Verdict it is said, (l)9Omnis conclusio boni & veri judicii sequitur ex bonis & veris praemissis & dictis Juratorum.10

And though Littleton here putteth his case of a Verdict at large upon a generall issue (which in the case hee puts it was necessary for the Tenant to plead, yet when Issue is joyned upon some speciall point, the Jury, as shall bee said hereafter in this Section, may finde the speciall matter, ifitbedoubtfull in Law, for as much as doubt may arise upon one point upon the generall issue as upon the generall issue. And as a speciall verdict may be found in Common | Pleas, so may it also bee found in Pleas of the Crowne,11 orcriminall causes that concerne life or member.

A Verdict finding matter incertainely or ambiguously is insufficient, and no judgement shall be given thereupon,12 as if an Executor plead Pleinment administre,13 and issue is joyned thereupon, and the Jury finde, that the Defendant have goods within his hands to bee administered, but finde not to what value, this is uncertaine, and therefore insufficient.

A Verdict that finds part of the issue, and finding nothing for the residue, this is insufficient for the whole,14 because they have not tryed the whole issue wherewith they are charged. As if an information or intrusion bee brought against one for intruding into a mesuage, and 100. acres of land, upon the generall issue the Jury finde against the Defendant for the land, but saith nothing for the house, this is insufficient for the whole, & so was it twice adjudged. (m)15 But if the Jury give a verdict of the whole issue, and of more, &c. that which is more is surplusage, and shall not (a)16 stay judgement, for Utile per inutile non vitiatur,17 but necessary incidents required by law, the Jury may find.

If the matter and substance of the issue bee found, it is sufficient as Littleton himself sayeth hereafter.18

Estoppells which bind the interest of the Land, as the taking of a Lease of a mans owne Land by Deed indented, and the like, being specially found by the Jury, the Court ought to judge according to the speciall matter, for albeit Estoppels regularly must be pleaded and relied upon by an apt conclusion, and the Jury is sworne ad veritatem dicendam,19 yet when they finde veritatem facti,20 they pursue well their oath, and the Court ought to adjudge according to Law. (b)21 So may the Jury finde a warranty being given in evidence, though it be not pleaded, because it bindeth the right, unlesse it be in a Writ of Right, when the Mise in joyned upon the meere right.

| (c)22 After the verdict recorded, the Jury cannot vary from it, but before it be recorded they may vary from the first offer of their verdict, and that verdict which is recorded shall stand: also they may vary from a privy Verdict.

An issue found by Verdict shall alwaise be intended true untill it be reversed by attaint, and thereupon upon the attaint no Supersedeas is grantable by Law.23

If the Jury after their evidence given unto them at the Barre, doe at their owne charges eat or drink either before or after they be agreed on their Verdict, it in finable,24 but it shall not avoyd the Verdict: but if before they be agreed on their Verdict, they eat or drink at the charge of the Plaintife, if the Verdict bee given for him, it shall avoyd the Verdict: but if it be given for the Defendant, it shal not avoyd it, & sic è converso.25 (d)26 But if after they be agreed on their Verdict, they eat or drinke at the charge of him for whom they doe passe, it shall not avoyd the Verdict.

(e)27 If the Plaintife after evidence given and the Jury departed from the Barre, or any for him, doe deliver any Letter from the Plaintife to any of the Jury concerning the matter in Issue, or any Evidence, or any escrowle touching the matter in issue, which was not given in Evidence, it shall avoyd the Verdict, if it be found for the Plaintife, but not if it be found for the Defendant, & sic è converso. But if the Jury carry away any writing unsealed, which was given in evidence in open Court, this shall not avoyd their Verdict, albeit they should not have carryed it with them.

By the Law of England a Jury after their Evidence given upon the Issue, ought to bee kept together in some convenient place, without meat ordrinke,28 fire or candle, which some Bookes (f)29 call an imprisonment, and without speech with any, unlesse it be the Bailife, and with him onely if they be agreed. After they be agreed, they may in causes between party and party give a Verdict, and if the Court be risen, give a privy Verdict before any of the Judges of the Court, and then they may eat and drinke, and the next morning in open Court they may either affirme or alter their privy Verdict, and that which is given in Court shall stand. But in criminall cases of life or member, the Jury can give no privy Verdict, but they must give it openly in Court. And hereby appeareth another division of Verdicts, viz a publique Verdict openly given in Court, and a privy Verdict, given out of the Court before any of the Judges, as is aforesaid.

A Jury sworne and charged in case of life or member,30 cannot be discharged by the Court or any other, but they ought to give a Verdict. And the King cannot be Non-suit, for he is in Judgement of Law ever present in Court: but a common person may be non-suit.

“in an assise of Novel disseisin or in any other action.31 ”

Here it is to be observed, That a speciall Verdict, or at large may be given in any Action, and upon any issue, be the Issue generall or speciall: and albeit there be some contrary opinions in our Bookes, yet the Law is now settled in this poynt.

“by which the lessor entereth.”

Here it appeareth that the condition is executed by re-entry, and yet the Lessor after his re-entry shall not by the opinion of Littleton, plead the Condition without shewing the Deed, because he was party and privy to the condition: for the parties must shew forth the Deed, unlesse it be by the act and wrong of his adversary, as hath been said, (m)32 but an estranger which is not privy to the condition, nor claymeth under the same, as in the cases abovesayd appeareth, shal not after the condition is executed in pleading, be inforced to shew forth the Deed: and by this diversity all the bookes and authorities in law which seeme to bee at variance are reconciled. See also for this matter the Section next following.

“the Recognitors of the Assise may say.”33

Here it appeareth that the Jurors may find the fact, albeit the Deed bee not shewed in evidence, and the rather, for that the Condition upon the Livery (as hath been said) is good albeit there be no Deed at all.

“and prayed the discretion of the Justices.”

That is to say, They, (having declared the speciall matter) pray the discretion of the Justices, which is as much to say, as, That they would discerne what the Law adjudgeth thereupon, whether for the Demandant or for the Tenant: for as by the authority of Littleton, Discretio est discernere per legem, quid sit justum,34 that is, to discerne by the right line of law, and not by the crooked cord of private opinion, which the vulgar call Discretion: Si à jure discedas, vagus eris, & erunt omnia omnibus incerta:35 and therefore Commissions that authorise any to proceed,36secundum sanas discretiones vestras,37 is as much to say, as, Secundum Legem & consuetudinem Angliae.38

“For as well as the jurors may have conusance.”

Hereby it appeareth, That they that have Conusance of any thing, are to have Conusance also all Incidents and Dependants thereupon, for an Incident is a thing necessarily depending upon another.

| If a Deed bee made and dated in a forraine Kingdome, of lands within England, yet if39 Livery and Seisin be made secundum formam cartae,40 the land shall passe, for it passeth by the Livery.

[1. ][Ed.: Writ to recover lands and tenements, where the claimant had been lately disseised.]

[2. ]Lib. 8. fo. 155. Lib. 9 fo. 13. Lib. 11. fo. 10.

[3. ][Ed.: The verdict is the dictum of truth, (as) the judgment is the dictum of law.]

[4. ][Ed.: And just as for questions of law the jurors do not answer but the judges; thus as for questions of fact the judges do not answer but the jurors do.]

[5. ][Ed.: The law arises out of the fact.]

[6. ][Ed.: That B. disseised him of twenty acres of land with the appurtenances,]

[7. ][Ed.: That he committed no tort or disseisin against the said A. therein, etc.]

[8. ][Ed.: That the aforesaid A. unjustly and without judgment disseised the said B. of the aforesaid twenty acres of land with the appurtenances, etc.]

[9. ](l) Trin. 33. E. 1. Coram Rege Nott. in Thesaur.

[10. ][Ed.: Every conclusion of a good and true judgment follows from good and true premises and the verdicts of jurors.]

[11. ]43. Ass. 31. Staunf. pl. cor. 164. 165. 3. E. 3. coron. 284 286. 287. 44. E. 3. 44. 41. E. 3. Coron. 451.

[12. ]40. E. 3. 15. 20. E. 3. amendment. 57. 18. E. 3. 49 in Cessavit. 30. E. 3. 23. 7. H. 4. 39.

[13. ][Ed.: Fully administered,]

[14. ]17. E. 3. 47. 18. E. 3. 48. 22. E. 3. 1. 18. H. 3. 56. 15. E. 3. Judgement 58. 2. H. 5. 3. 7. H. 6. 5. 7. E. 4. 24. 28. H. 6. 10.

[15. ](m) Hill. 25. Eliz. in a writ of Error between Brace and the Queen in the Exchequer Chamber. Mich. 28 & 29 Eliz. inter Gomersal & Gomersal in account in the King’s Bench.

[16. ](a) 32. E. 3. Cessavit. 25.

[17. ][Ed.: The useful is not vitiated by the useless,]

[18. ]Vid. Sect. 484. 485. Vid Sect. 58. 13. H. 3. garr. 26 15. E. 3. Ass. 322. 17. E. 3. 6. 18. Ass. 2. 35. Ass. 8.

[19. ][Ed.: to say the truth,]

[20. ][Ed.: the truth of the fact,]

[21. ](b) 1. H. 4 6. b. 27. H. 8. 22. b. Pl. Com. 515. Lib. 4. fol. 53. Rawlins case & ibid. Pledols case. Hil 31. Eliz. betweene Sutton & Dicons in the Common Place, the case of the Lease for years by Deed indented. 34. E. 3. Droit 29.

[22. ](c) 7. R.2 Coron. 108. Plo. Com. Freman’s Case, 211. 11. H. 4. 2. 20. Ass. 12. 16. Ass. 16. 22. Ass. 23 5. H. 7. 22.

[23. ][Ed.: A writ to stay the proceedings at law.]

[24. ]Pasch. 24. H. 8. of the Report of Justice Spilman in the Kings Bench. 11. H. 4. 17. 35. H. 6. Examin. 17. 29. H. 8. 37. Dyer. 35. H. 8. 55. 4. & 5. Eliz. 218. 14. H. 7. 1. 20. H. 7. 3.

[25. ][Ed.: and likewise conversely.]

[26. ](d) Pasch. 6. E. 6. in the Common place.

[27. ](e) 11. H. 4. 16. 17. 3. Mar. Jurors Br. 8. Vide Dyer ubi supra.

[28. ]Pasch. 6. E. 6. ubi supra.

[29. ](f ) 24. E. 3. 75.

[30. ]21. E. 3. 18.

[31. ]W. 2. cap. 30. 7. H. 4. 11. 8. E. 4. 29. 9. H. 7. 13. 23. H. 8 tit. verdict. Br. 85. 11. Eliz. Dier. 283. 284. 3. E. 3. Itinere North. 284, 286 43. Ass. 31. 26. H. 8. 5. 44. E. 3. 44. F. tit. Coron. 94 44. Ass. 17. 45. E. 3. 20. pl. Com. 92. 9. H. 7. 3. Vid. lib 9. 12. 13. Dowmans case. And see there many other authorities. 31. Ass. Pl. 21. 10. H. 4. 9.

[32. ](m) See more before in this chapter, Sect. 365.

[33. ]10. Ass. 9. 21. Ass. 28. 17. Ass. 20. 31. Ass. 21 23. Ass. 2. 39. E. 3. 28. 44. E. 3. 22. 10. H. 4. 9. 7. H. 5. 5. 9. E. 4. 26. 18. E. 4. 12. 15. E. 4. 16. 17. 11. H. 7. 22.

[34. ][Ed.: Discretion is to know through law what is just,]

[35. ][Ed.: If you depart from the law, you will go astray, and all things will be uncertain to everybody.]

[36. ]Lib. 10. fo. 4. case de Sewers.

[37. ][Ed.: according to your sane discretions.]

[38. ][Ed.: According to the law and custom of England.]

[39. ]1. H. 3. 17. in Gracye’s case

[40. ][Ed.: According to form,]