The Jury find that Thomas Nicholas was possessed in Manner as the Defendant in her Plea hath alledged, and that he did make, seal, and as his Deed deliver, the Indenture in the Plea mentioned; which said Indenture follows in these Words; and so set forth the whole; in which, after a Recital of the Lease, and a Deducement of the Title down, are these Words, viz.
The said Thomas, as well for and in Consideration of the natural Love and Affection which he beareth to the Defendant his Grand Child, as for other good Causes and Considerations, hath granted, assigned and set over, and by these Presents doth grant, assign and set over unto the said Mary, her Executors, Administrators, and Assigns, all the said Cottage, Barn and Lands, and all and singular other the Premisses herein before recited or mentioned, with the Appurtenances to the same belonging or appertaining; together with the said recited Lease, and all Writings and Evidences touching [200] the Premisses, to have and to hold the said Cottage, Barn, and Premisses, and every Part thereof, with the Appurtenances, unto the said Defendant Mary, her Executors, Administrators and Assigns, from and immediately after the Death and Decease of the said Thomas Nicholas, Party to these Presents, and Mary his Wife, unto the End of the Term; and for and during all the Rest and Residue of the said Term of 1000 Years, which shall be therein to come and unexpired, by and under the yearly Rents, Covenants, &c. expressed in the said Original Indenture of Lease.
Then the Jury leave it to the Court, whether the Deed of Assignment be good in Law or not, and conclude specially, if the Assignment be not good in Law, then they find for the Plaintiffs, and assess Damages 50l. and 40s. Costs; and thereupon, &c.
Argument for the Plaintiff in Error.—And now it was argued for the Plaintiff; and it was said in the first place, That this Case was extraordinary, that tho' the Majority of the Judges in Westminster-Hall were of Opinion with the Plaintiffs, yet they were forced to sue this Writ; they had the four Judges of the King's Bench, and the then Mr. Justice Powell, and the then Baron Powell concurring with the King's Bench; and the Chief Baron Atkins being absent, the other Five in the Exchequer Chamber reversed the Judgment, it having been resolved upon the Stat. of Eliz. which erects that Jurisdiction, That the Concurrence of six are not necessary to reverse, but only that six must be present to make a Court; so that here were six to five for the Plaintiff, and yet he hath lost it.
How far Vi & armis material.—Then it was argued, That there had been two Things insisted on below; one was the Finding of Damages generally; and the other was to the Validity of the Assignment; and as to the Finding it was said, That the Matter of the Force is mere Form; and if there had been no Non prosequi, the same could not make an Error; That in C. B. and B. R. the Issue upon the Vi & armis, &c. is seldom or never taken Notice of, no Entry is made of it upon the Postea at all, unless a Wounding or some such other special Matter were mixt with it in the same Issue; That 'tis held in the Case of Law and King, 1 Saund. 81. If nothing be answered to the Vi & armis in a special Plea, 'tis well upon a general Demurrer, and the 7 H. 6. 13. and 1 H. 7. 19, are plain, That if the Party have the special Matter, which he pleads, found for him, the Vi & armis shall not be inquired of: So if the Defendant have Judgment against him, upon Demurrer to the special Matter pleaded by him, the Vi & armis shall never be tried, tho' Issue were joined upon it, but the Party shall be fined upon the Capiatur, &c. without any Inquiry: So is the King and Hopper, 2 Cro. 599. in a Scire Facias, on a Recognizance for the good Behaviour, special Matter pleaded, held, That the Jury need not inquire about the Vi & [201] armis, if such Special Matter be found for the Defendant; much more is it so, in case it be found for the Plaintiff; for there the Act which is found imports it, &c. and it shall be intended to be Vi & armis, &c. and the Book of H. 6. is full in it, no need of any Inquiry in such Case. And in this Point both the Courts having concurred, the Counsel for the Defendant did not contest it.
Where Damages must be found or not.—Then, as to the other Matter of the Damages, which should have been inquired of upon the Demurrer, 'twas said, That they were released upon Record: And, 'tis plain, that the Jury have found nothing upon that, because the Conclusion of the Verdict doth shew, that they inquired and found Damages only as to the Concessit or Assignavit; they assess
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