]58 MAXIMS OF THE LAW. 



the remainder to his daughter S. C. and the heirs of her 

 body, with a clause of perpetuity ; and the question comes 

 upon the point of forfeiture in an assize taken by default, 

 and evidence is given, and demurrer upon evidence, and in 

 the evidence given to maintain the entry of the daughter 

 upon a forfeiture, it is not set forth nor averred that the 

 devisor had no other issue male, yet the evidence is good 

 enough, and it shall be so intended ; and the reason thereof 

 cannot be, because a jury may take knowledge of matters 

 not within the evidence ; and the court contrariwise cannot 

 take knowledge of any matter not within the pleas; for it 

 is clear that if the evidence had been altogether remote, 

 and not proving the issue, there although the j ury might 

 find it, yet a demurrer might well be taken upon the evi 

 dence. 



But if I take the reason of difference to be between plead 

 ings, which are but openings of the case, and evidences 

 which are the proofs of an issue ; for pleadings being but to 

 open the verity of the matter in fact indifferently on both 

 parts have no scope and conclusion to direct the construc 

 tion and intendment of them, and therefore must be certain ; 

 but in evidence and proofs the issue, which is the state of 

 the question and conclusion, shall incline and apply all the 

 proofs as tending to that conclusion. 



Another reason is, that pleadings must be certain, because 

 the adverse party may know whereto to answer, or else he 

 were at a mischief, which mischief is remedied by a de 

 murrer ; but in evidence if it be short, impertinent, or uncer 

 tain, the adverse party is at no mischief, because it is to be 

 thought that the jury will pass against him ; yet, neverthe 

 less, because the jury is not compellable to supply the defect 

 of evidence out of their own knowledge, though it be in their 

 liberty so to do; therefore the law alloweth a demurrer 

 upon evidence also. 



REGULA IV. 



Quod sub certa forma concessum vel reservatum est non 

 trahitur ad valorem vel compensationem. 



THE law permitteth every man to part with his own interest, 

 and to qualify his own grant, as it pleaseth himself ; and, 

 therefore, doth not admit any allowance or recompense, if 

 the thing be not taken as it is granted. 



17 IT. 6. 10. So in all profits a prendre, if I grant common for ten 

 beasts, or ten loads of wood out of my coppice, or ten loads 



