Tryals per Pais OR THE LAW CONCERNING JURIES BY Nisi-Prius c. Methodically Composed for the Publick Good in the 16th Year of the Reign of our Soveraign Lord CHARLS the Second King of England Scotland France and Ireland c. By S. E. of the Inner-Temple Esquire Per testes solum lex ipsa nunquam litem dirimit qua per Juratam xij hominum decidi poterit Cum s◠modus iste ad veritatem eliciendam multo potior efficatior quà m est forma aliquarum aliarum legum orbis Fortescue cap. 31. London Printed by John Streater James Flesher and Henry Twyford The Assigns of Richard Atkyns and Edward Atkyns Esquires 1665. The PREFACE THE Philosopher could not see a man unless he hear him speak Loquere ut videam Speech is the Index of the Mind and the Mind only discriminates the Man For although an Ideot who hath but the shape of a man may with silence so hide his folly that strangers to his Manners cannot discern him from a Sophister Yet doubtless Silence is the greatest Enemy to Learning the Grave wherein oblivion buries the Parts and Knowledg of the bravest spirits Wherefore Learned Salust from this takes his Exordium Omnes homines qui sese student praestare caeteris animalibus summa ope niti decet ne vitam silentia transeant veluti pecora Those men who would excel Beasts should labour that their lives might not passe in such silence as Beasts do It seems he deemed that man little inferior to a Beast who acted nothing to prolong his Memory For this he held to be the duty of every man saying Quo mihi rectius esse videtur ingenii quà m virium opibus gloriam quaerere quoniam vita ipsa qua fruimur brevis est memoriam nostri quà m maxime longam effiiere In my opinion 't is far better to acquire Glory by the Riches of Wit then strength and because our lives are short of themselves we should indeavour by Ingenuity to eternize their memory And to effect this Nulla dies sine linea Nulla dies abeat quin linea ducta supersit No day should passe over our heads wherein we should not act some memorable exploit Men should not live like Snails never stirring out of their Houses but be active I mean not busie-bodies in other mens matters but in their own Callings of which the wise Cato tells us Every man should give a reasonable account And if we believe the famous Seneca Nihil est turpius quà m grandis natu senex qui nullum habet vitae suae argumentum quo diu se vixisse dicat praeter aetatem Nothing is more unworthy than an old man who hath nothing to shew for his Antiquity but a Gray-Beard who is no sooner dead than forgotten long before he is half rotten yet who is so apt to deride the Endeavors of other men as this antient Ignoramus whose wrinckles in his face worn-out looks and many years sway more with the vulgar people than all the Arguments of Law or Reason Had Seneca been such a silent Momus the World would never have been blest with his so learned Works And doubtless writing Books is needfull in no Science more than in the Law For without Books how would the Lawyers do for Arguments at the Barr or Resolutions at their Chambers Whence the Oracle Sir Edward Coke pronounces this Omnes debere Juris-prudentiae libris componendis animum adjicere That all men ought to addict themselves to the Composing Books of Law some to the Reporting of the Judgments and Resolutions of the Judges who are Lex loquens and some to the collecting of these Cases and Resolutions methodizing and fitting them for some particular purpose as Littleton Standford Fitzherbert Crumpton Perkins Finch c. and indeed most of the Law-Books extant if not all setting aside the Reports are nothing else but Collections out of others This I speak not in derogation of them in the least for as 't is equally if not more laborious so 't is full as glorious Judiciously to cull out authentick Cases out of the Volumes of the Law where so many are no Law and rightfully place them in a particular Treatise as 't is to report the Judgements and Resolutions from the mouth of the Court for the Reporter is but the Courts Secretary and Cook 's Institutes merit as much as his Reports And Ash's Tables Fitzherbert and Brooks's Abridgment are as useful as the Year Books themselves of which kind of Collections one Elegantly thus breaks out Quo quidem beneficio haud scio aut aliud aut legum Candidatis magis gratum aut Reipublicae magis commodum aut divini honoris illustrationis magis idoneum vel cogitando quidem consequi quisquam poterit Then which benefit I know not whether any man can even imagine another either to Lawyers more grateful or to the Commonwealth more profitable or for the illustration of divine honour more fit For with the least labour a small price and little time they present you with those Resolutions and Judgments which lye scattered in the voluminous Books of the Law which would otherwise cost much time pains and charges to find out The thoughts of which publick good first gave life to these Endeavors of mine Not that any one should in the least imagine that I am so guilty of vain ostentation as to believe that my Parts or Abilities can perform any thing in this kind like other men No Ipse mihi nunquam Judice me placui I could never yet please my self with my own labours much lesse are they worthy to please others haud equidem tali me dignor honore However when I consider that no man hath yet written particularly concerning this Subject and of what generall use it is I doubt not but that this Treatise will receive a favourable construction from most men and a plausible acceptation from others The Use of the Book The use of it is in a manner Epidemicall since mens Lives and Estates are subject to that Tryall per Pais here demonstrated but in particular the Practisers at Law especially Atturneys Solicitors Clerks c. and all Jurors for whose directions it is of singular use are chiefly concerned herein But I will not hang a Bush out to invite and prepossess your Judgments Vincat Utilitas The profit which every ingenious Reader shall gather out of it will speak more for it than the best Eulogical Preface And for my own part I profess my self to be Philomathes but can plead no other Plea than Not guilty to Polymathes I must confess never any man took a Law-Book in hand with greater affection to it than I and notwithstanding the hard-favoured objections which some men cast upon it I really think the study of the Law to be the most pleasant Study in the World And he which delighteth in the study of any other Art or Science must consequently be delighted with this For the
knowledg of the Law as Doderidge saith is most truly stiled Rerum Divinarum humanarumque scientia and worthily imputed to be the Science of Sciences for therein lies hid the knowledg of every other Learned Science So that he which gives himself to the study of Divinity may here fill himself with holy and pious Principles of Divine Laws For Fortesoue cap. 3. Lex est sanctio sancta jubens honesta prohibens contraria sanctum etenim oportet quod esse sanctum definitum The Law is a holy Sanction or Decree commanding things that be honest and forbidding the contraries Now the thing must needs be holy which by definition is determined to be holy So that in this respect saith Fortescue men may well call Lawyers Sacerdotes that is givers or teachers of holy things For the Lawes being holy it followeth that the Ministers and setters forth of them must be givers of holy things and so by interpretation doth Sacerdos signifie and doubtless he which duly considers those Rules of Theology which lie scattered throughout the whole body of the Law must needs conclude our Lawes to be Commentaries upon the Old and New Testament and do so much bear the Image Legis Divinae that they may well be attributed to the Most High The Rules of Grammar Philosophy natural Political Oeconomick and Morall as also the Grounds of Logick both from the Predicable and Predicament c. and of other Arts and Sciences so much abound in our Books that the very reading of the Law will make a man Master of any of those Sciences And since Rhetorick is Ars ornate dicendi and consisteth of those two parts Elocution and Pronunciation How can we read in our law-Law-Books those Learned Arguments Elegant Speeches and Judgments pronounced with such Eloquence of words and matter and not conclude that Rhetorick is the Glory and Grace of a Lawyer Though some not gifted that way would perswade us that the Law hath little relation to it If any man be delighted in History let him read the Books of Law which are nothing else but Annalls and Chronicles of things done and acted from year to year in which every Case presents you with a petite History and if variety of matter doth most delight the Reader doubtless the reading of those Cases which differ like mens faces though like the Stars in number is the most pleasant reading in the World I thought to have expatiated my self in this Eulogicall Commendation of the Study of the Law But when I consider the Glory of the thing it self I think it but in vain to light the Sun with Candles and as no Arguments will perswade one to love against Nature so he whom the rarity of the Law it self cannot invite to study it will never be forced to it with the fist of Logick or other perswasion Wherefore 't is now time to expose my self to the Censure of the Reader who alwayes judges according to his capacity or affection for which cause if I was to chuse my Reader I could wish with Caius Lucilius Quod ea quae scribo neque ab indoctissimis neque à doctissimis legi quod alteri nihil intelligerent alteri plus fortasse quà m ipse de se That this Treatise might not be read of the most Learned nor of those who are not learned at all because these understand nothing and the others more perhaps than my self However I put this Request to all Ut si quid superfluum Bracton li. 1. fo 1. vel perperam positum in hoc opere intervenerit illud corrigant emendent vel Conniventibus oculis pertranseant Cum omnia habere in memoria in nullo peccare divinum sit potius quà m humanum That if any thing be superfluous and placed amiss in this Work That they will either correct and amend it or without carping connivea◠it since to remember to do all things right and nothing amiss is rather the part of a God than Man wherefore let him which never offended cast the first stone S. E. To the Reader I Thought to have made a Table to this Book but when I considered the particulars hereof were collected under general Heads and Titles and the matters therein pointed to with Marginall Notes I concluded to present you onely with the Contents of the Chapters but would advise you not to rely altogether upon the view of the Contents For what you cannot finde there you may perhaps finde in the Chapters at large ERRATA SOme Errors have risen from the Press for instance fo 133. where D. is the last letter of the line in the Margent add where the Trespass was committed in the County of S. Likewise the false pointing in some places may seem to alter the sence as a Comma being put for a Period c. But the Reader having long since espoused Jurisprudence and thereof got Issue a good Judgment is bound per la Courtesie dengleterre to amend or wink at such misprisions pa. 17. line 19. for Cro. 2. read Cro. 1. p. 76. l. 3. add in Civitate Westm next to Margaretae p. 163. l. 11. for Aliens r. English p. 142. l. 1. add in next be fo 210. at the end of the Title of the 14th Chapter it should be An Amercement affered by the Jury fo 223. li. last for offered read afferred A Summary of the Contents of each Chapter in this Book Cap. 1. Fol. 1. THe Derivation of the word Jury The Definition Antiquity and Excellency of Juries by way of Preface Cap. 2. fo 5. Of an Issue and the divers sorts of Tryalls thereof and when a Tryall shall be by a Jury and when not when by Certificate when by Battail and when by an Almanack c. What Issue shall be first tryed per Pais what shall be tryed by the Court and what by examination of the Attorney Sheriff c. Cap. 3. fo 24. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Essiors and when to Bayliffs Cap. 4. fo 38. What faults in the Venire facias shall vitiate the Tryall what not when a Venire facias de novo shall be awarded when severall Ven. fac When the Ven. fac shall be betwixt the party and a stranger to the Issue Who may have a Ven. fac by Proviso and when Cap. 5. fo 50. Why the Ven. fac runs to have the Jury appear at Westm though the Tryall be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs of the Tales at common Law and by Stat. Where when the Transcript of the Record of the Nisi prias differs from the Roll whereby the Plaintiff is non-suited he may have a Distringas de novo Cap. 6. fo 64. Of the number of the Jurors and why the Sheriff returns 24. though the Venire facias mentions but 12. If he returns more or less no Error and
Visne Visne next adjoyning in what Cases or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where the men are priviledged from serving on Juries out of that place as the Isle of Ely c. the Plaintiff may pray a Venire facias of the Visne next adjoyning and if the Visne be in Wales Wales ou bâ—iefe le Royne Court the Venire facias shall be directed to the Sheriff of the next English County to cause the Jury to come De propinquiori Visne of his County to the Visne in Wales adjoyning Fitz. Abridg. tit Visne 8. Jurisdict 24. If the Visne is in some part misawarded Visne misawarded in part or sued out of more places or fewer places than it ought to be so as some place be right named this is ayded by the Statute of Jeofailes which hath ended the differences in many Cases reported in our Books concerning this point wherefore I purposely omit them Error Infamy where the Land lies for that the Iuâ—gment was given by default against the Defendant being an Infant upon Issue that he was of full age adjudged that the Tryal should be in Norfolk where the Land was and not in Middlesex where the Action was brought Cro. 3. part 818. If the Visne cometh from a wrong place May be out of a wrong place by Consent yet if it be per assensum partium and so entred of Record it shall stand for Omnis Consensus tollit errorem 1 Inst 125. CAP. IX Challenges YOu have already séen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges And fâ—r this I shall present you with my Lord Cooks Collection 1 Inst 156. The rather because he hath taken more pains in the gathering and methodizing this Learning then any other one point whatsoever And I know no Reason wherefore I may not as well use his method for the perfection of this Treatise as he hath used other mens method and matter especially Perkins whom he seldom cites for the perfection of hiâ— Iudgment hath the preheminence of Invention and the Law hates nothing more then Innovation wherefore I shall follow his method in the description of a Challenge omitting the Book Cases and Authorities cited by him Challenge Challenge is a word common as well to the English as to the French and sometimes signifieth to claim and the Latine word is vendicate sometime in respect of revenge to challenge into the field and then it is called in Latine vindicare or provocare Sometime in respect of partiality or insufficiency to challenge in Court persons returned on a Jury And séeing there is no proper Latin word to signifie this particular kind of Challenge they have framed a word anciently written Chalumniare and Columpniare and Calumpniare and now written Calumniare and hath no affinity with the verbe Calumnior or Calumnia which is derived of that for that is of a quite other sense signifying a false accuser and in that sense Bracton useth Calumniator Calumniator to be a false accuser but it is derived of the old word Caloir or Chaloir which in one signification is to care for or foresée And for that to challenge Jurors is the mean to care for or foresée that an indifferent tryal be had it is called Calumniare to challenge that is to except against them that are returned to be Jurors and this is his proper signification But sometimes a Sommons Sommonitio is said to be Calumniata and a Count to be challenged but this is improperly And forasmuch as mens lives Fames Lands and Goods are to be tryed by Jurors it is most necessary that they be Omni exceptione majo es and therefore I will handle this matter the more largely Challenge is twofold A Challenge to Jurors is twofold either to the Array or to the Polls to the array of the principall Pannell To the Array and to the array of the Tales And herein you shall understand that the Jurors names are ranked in the Pannel one under another which order or ranking the Jury is called the Array and the Verbe to array the Jury and so we say in common spéech Battail array Array for the order of the battail And this array we call Arraiamentum and to make the array Arrairare derived of the French word Arroier so as to challenge the array of the Pannel is at once to challenge or except against all the persons so arrayed or impannelled in respect of the partiality or default of the Sheriff Coroner or other Officer that made the Return And it is to be known Principall Challenges that there is a principal cause of challenge to the Array and a challenge to the favour principall in respect of partiality as first if the Sheriff or other Officers be of kindred or affinity to the Plaintiff or Defendant if the affinity continue Secondly If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole array shall be quashed So it is if the Sheriff return any one that he be more favourable to the one than to the other all the array shall be quashed Thirdly if the Plaintiff or Defendant have an Action of Battery against the Sheriff or the Sheriff against either party this is a good cause of challenge So if the Plaintiff or Defendant have an action of debt against the Sheriff but otherwise it is if the Sheriff have an action of debt against either party or if the Sheriff have parcel of the Land depending upon the same Title or if the Sheriff or his Bayliff which returned the Jury be under the distress of either party or if the Sheriff or his Bayliff be either of Counsel Atturney Officer in fée or of Robes or servant of either party Gossip or Arbitrator in the same matter and treated thereof And where a subject may challenge the array for unindifferency there the King being a party may also challenge for the fame cause as for Kindred or that he hath part of the Land or the like and where the array shall be challenged against the King you shall read in our Books By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a Péer of the Realm Where there must be a Knight returned of the Jury or Lord of Parliament be demandant or Plaintiff Tenant or Defendant there must a Knight be returned of his Iury be he Lord Spiritual or Temporal or else the array may be quashed but if he be returned although he appear not yet the Iury may be taken
Distress of either party this is a principal Challenge But if either party be within the distress of the Juror this no principal Challenge but to the favour If a Witnes Witness named in the Déed be returned of the Jury it is a good cause of Challenge of him So it is if one within age of one and twenty be returned Infant it is a good cause of Challenge Challenges arising from the Jurors own Act. Vpon his own Act as if the Juror hath given a Verdict before for the same cause albeit it be reversed by Writ of Error or if after Verdict Iudgment were arrested So if he hath given a former Verdict upon the same Title or matter though betwéen other persons But it is to be observed that I may speak once for all that in this or other like Cases Former Verdict he that taketh the Challenge must shew the Record if he will have it take place as a principal Challenge otherwise he must conclude to the favour unless it be a Record of the same Court and then he must shew the day and terme So likewise one may be challenged Indictment that he was Inditor of the Plaintiff or Defendant either of Treason Felony Misprision Trespass or the like in the same cause If the Juror be Godfather Godfather to the Child of the Plaintiff or Defendant or e converso this is allowed to be a good Challenge in our Books If a Juror hath béen an Arbitrator Arbitrators chosen by the Plaintiff or Defendant in the same cause and have béen informed of or treated of the matter this is a principal Challenge Otherwise if he were never informed nor treated thereof and otherwise if he were indifferently chosen by either of the parties though he treated thereof But a Commissioner chosen by one of the parties for examination of Witnesses in the same cause is no principal cause of challenge Commissioner for he is made by the King under the great Seal and not by the party as the Arbitrator is but he may upon cause be challenged for favour If he be of counsel Counsel Servant or of Robes or Fée or of either party it is a principal Challenge If any after he be returned Eat or drink at the parties charge do eat and drink at the charge of either party it is a principal cause of Challenge otherwise it is of a Trior after he be sworn Action brought either by the Juror against either of the parti s Actions of malice or by either of the parties against him which may imply malice or displeasure are causes of principal Challenge unless they be brought by Covyn either before or after the return for if Covyn be found then it is no cause of Challenge other Actions which do not imply malice or displeasure are but to the favour as an Action of debt c. More 3. Parson and Parishes In a cause where the Parson of a Parish is party and the right of the Church cometh in debate a Parishioner is a principal Challenge Otherwise it is in debt or any other Actâ—on where the right of the Church cometh not in question If eitâ—er party labour the Juror and give him any thing to give his Verdict To labour the Jury tâ—is is a principal Challenge But if either party labour the Juror to appear and to do his Conscience this is no Challenge at all but lawful for him to do it That the Juror is a Fellow-Servant Fellow Servant with either party is no principall Challenge but to the favour Neither of the parties can take that Challenge to the Polls To the Polls which he might have had to the Array Note if the Defendant may have a principal cause of Challenge to the Array if the Sheriff return the Jury Venire facias to the Corâ—ners the Plâ—intiff in that case may for his own expedition alledge the same and pray Process to the Coroners which he cannot have unless the Defendant will confess it but if the Defendant will not confess it then the Plaintiff shall have a Venire facias to the Sheriff and the Defendant shall never take any Challenge for that cause and so in like cases But on the part of the Defendant any such matter shall not be alledged and Process prayed to the Coroners because he may challenge the Jury for that cause and can be at no prejudice Challenge concluding to the favour Challenges to the favour when either party cannot take any principal Challenge but sheweth causes of favour which must be left to the conscience and discretion of the Triors upon hearing their evidence to finde him favourable or not favourable But yet some of them come néerer to a principal Challenge then other As if the Juror be of kindred or under the distress of him in the reversion or remainder or in whose right the Avowrie or Iustification is made or the like These be in principall Challenges because he in Reversion remainder or in whose right the Avowry or Iustification is is not party to the Record otherwise it is if they were made parties by aid Râ—script or Voucher and yet the cause of favour is apparent so it is of all principal causes if they were party to the Record Now the causes of favour are infinite and thereof somewhat may be gathered of that which hath béen said Favour and the rest I purposely leave the Reader to the reading of our Books concerning that matter For all which the rule of Law is that he must stand indifferent as he stands â—â—sworn The Subject may challenge the Polles where the King King is party And if a man be out-lawed of Treason or Felony at the Suit of the King and the party for avoyding thereof alledgeth imprisonment or the like â—t the time of the Outlawry though the Issue be ioyned upon a collateral point yet shall the party have such Challenges as if he had béen arraigned upon the crime it self for this by a meane concerneth his life also Propter delictum As if the Juror be attainted or convicted of Treason or Felony Challenges propter delictun or for any offence to life or member or in attaint for a false Verdict or for perjury as a Witness or in a conspiracy at the Suit of the King or in any Suit either for the King or for any subject be adjudged to the Pillory Tumbrel or the like or to be branded or to be stigmatique or to hâ—ve any other corporal punishment whereby he becommeth infamous Infamous for it is a maxime in Law Repellitur a sacramento infamis these and the like are principal causes of challenge So it is if a man be outlawed Outlawed in trespass debt or any other action for he is Exlex and therefore is not legalis homo And old Books have said that if he be excommunicated he could not be of a Iury. Sée
a Non decimando in evidence so may the King and any other spiritual persons li. 2. B. of Winchesters Case either by â—nity of possession reall Composition or other cause to shew it discharged Coke said it was no Evidence for it is a prescription in non decimando Curia contra For a spirituall man may prescribe in non decimando and by the Statute of 31 H. 8. he shall hold it discharged as the Pryor held it and if he held it discharged non refert by what means for it shall be intended by lawful means the Iury afterwards found for the Plaintiff Cro. 3. part 206. Vpon non assumpsit in a generall Indebitatus assumpsit Indebitatus assâ—mpsit the Defendant may give in evidence payment at any time before the Action brought but upon a speciall promise to pay mony c. it is otherwise Causa patet for in the first Case if there be no debt the Law will infer no promise If a church-Church-Book or any thing else is given in evidence which ought not to be allowed the Court above cannot quash the Verdict except it be certified and returned with the Postea Postea 26. Asâ—â—se pl. 4. Brownlow 1 part 207. But the Court may order a new Tryall upon cause shewed as for excessive damages c. CAP. XII The Juries Oath why called Recognitors in an Assise and Jurors in a Jury of the Tryal per medietatem linguae when to be prayed and when grantable Of a tryal betwixt two Aliens by all English Of the Venire facias per medietatem linguae and of Challenges to such Juries Assise Enquest and Proof are taken foâ— the word Jury vide 28 E. 3. 23. THe Iury having heard their Evidence let them now consider of their Verdict But first they must remember their Oath which in effect is to finde according to their Evidence and therefore they â—hould have had it before the Eviâ—ence but that the form and order â—f the Venire facias which I have â—ed my self to follow Leads me 〈◊〉 it after their Evidence in these words Ad faciend quandam Juraam I have alâ—eady shewed the â—â—rivation of this word Jurata See Chap. 1. and what is the legall acceptation of it only observe with our great Master littleton That the word Assize 1 Inst 154. is â—ometimes taken for a Jury so as the Learned Commentator doth well paraphrase That the word Assise Assisa for Jurata is Nomen Aequivocum Aequiâ—ocanâ— because sometime it signifieth a Jury sometime the Writ of Assise and sometime and Ordinance â—r Statuâ—e But Jurata is Nomen â—quivocum Aequivocatum because we alwayes understand that word according to the aforesaiâ— definition to be a Iuâ—y of twelve men The Juriâ— Oath so called by reason of the Oath they take Truly to try the Suit of Nisi prius between party and party according to their Evidence Why called Recognitors in an Assise and Jurors in a Jury And as in an Assise the Jurors are called Recognitors from these words in the Writ of Assise facere Recognitionem so upon a Nisi prius they are called Juratores from these words in the Venire facias Ad faciend quandam Juratam In ancient time the Jury as well in Common Pleas as in Pleas of the Crown were 12. Knights 12 Knights as appeares by Glanvill lib. 2. cap. 14. and Bracton fol. 116. The next words of the Venire facias are Inter partes predictas In the fourth Chapter I have instanced That in some Cases a Iury shall be awarded betwixt the party and a stranger to the Writ and Issue I will now shew what the Iury shall be when one of the parties is an Alien the other a Denizen and when both parties to the Issue are Aliens This Tryal is called in Latine Triatio bilinguis Jury per medietatem linguae or per medietatem linguae And this Tryall by the Common Law was wont to be obtained of the King by his Grant made to any Company of strangers as to the Company of Lumâ—â—rds or Almaignes or to any other Company that when any of them â—as impleaded the moyety of the â—nquest should be of their owâ—â—â—ngue Stan. Plea Cor. lib. 3. cap. 7. And this Tryal in some Cases â—â—s antiquity per medietatem linguae was before the Conquest â—s appeares by Lamb. fol. 91.3 Viri duoâ—oni Jure consulti Anglie sex Walliae totidem Anglis Wallis Jus dicanto And of ancient time it was called Duodecim virale Judicium 1 Inst 155. But afterwards this Law became universall first by the Statute of 27 Ed. 3. cap. 8. It was Enâ—cted that in Pleas before the Maior of the Staple if both parties were strangers the Tryal should be by strangers But if one party was a stranger and the other a Denizen then the Tryal should be per medietatem linguae But this Statute extended but to a narrow Compass to wit onely where both parties were Merchants or Ministers of the Staple and in Pleas before thâ— Maior of the Staple But afterwards in the 28th Year of the samâ— Kings Reign cap. 13. It waâ— Enacted That in all manner of Enquests and proofs which be to be taken or made amongst Aliens and Denizens be they Merchants or other as well before the Maior of the Staple as before any other Justices or Ministers although the King be party The one half of the Enquest or proof shall be Denizens and the other half Aliens if so many Aliens and forraigners be in the Town or place where such Enquest or proof is to be taken that be not parties nor with the parties in Contracts Pleas or other quarrels whereof such Enquests or proofs ought to be taken And if there be not so many Aliens then shall there be put in such Enquests or proofs as many Aliens as shall be found in the same Towns or places which be not thereto parties nor with the parties as aforesaid is said and the Remnant of Denizens which be good men and not suspitious to the one party nor to the other So that this is the Statute which makes the Law universall King concerning the medietatem linguae for though the King be party yet the Aliâ—n may have this Tryall And it matters not whether the Moyety of Aliens be of the same Country as the Alien party to the Action is for he may be a Portugal and they Spaniards c. because the Stat. speaks generally of Aliens Sée Dyer 144. And the form of the Venire facias Venire facias peâ— medietatem linguae in this Case is De vicenet c. Quorum una medietas sit de Indigenis altera medietas sit de alienigenis natis c. And the Sheriff ought to return 12. Aliens and 12. Denizens one by the other with addition which of them are Aliens and so they are to be sworn But if this Order be not observed it is holpen as a
taken by default What the Defendant looses by his default the Defendant shall loose his Challenges and by 28 Ass p. 42. tit Enquest in Fitz. he shall loose his Evidences also Bro. Enquest 10. Der. the Defendant pleaded a Release and the Plaintiff replyed non est factum and at the day of the Venire facias the Defendant made default and the Inquest was taken upon his default and found for the Defendant When the Defendant may be condemned by dâ—fault and when an Enquest must be taken upon the default for which the Plaintiff took nothing by his Bill And yet if the Plaintiff had prayed it he might have had the Defendant condemned by his default before the taking of the Verdict Et sic vide folly in le Plaintiff Bro. Ib. 5. But upon sucâ— Release and default in Trespass the Enquest shall be taken by default and the Defendant shall not be condemned by default though the Plaintiff pray it and the reason is because the debt is certain and the damaâ—es are incertain in Trespas Bro. Ib. 3. And Finch fo 4â—9 hath well collected out of Brooke that alwayes in an Action of Trespass whatsoever the Issue be Release Iustification c. and also in Debt Detinue Accompt and the rest which are for things in certainty if the Issue be taken upon a matter in fait onely as payment or that an Acquittance pleaded in Barr by the Defendant was made by Dures c. The Inquesâ— shall be taken by default if the Defendant makes default But in the last recited actiâ—â—â— of debt c. If the Issue be upon the acquittance it self Release or other matter â—â—-writing the Plaintiff may pray Iudgment upon the Defendants default if he â—ill but if he do not pray it the Jury shall be taken by default as in 〈◊〉 action of Trespass The Jury may give a Verdict â—ithout testimony Verdict without or against testimony or against testimony when they themselves have Conuzans of the fact Plo. Com. 16. CAP. XIV How the Jury ought to demean themselves whilest they consider of their Verdict when they may eat and drink when not What misdemeanor of thâ—irs will make the Verdict voyd Evidence given them wâ—en they are gone from the Barr spoyls their Verdict For what the Court may fine them and where the Justices may carry them in Carts till they agree of their Verdict An Amendment offered by the Jury Jurors ought not to eat or drink THere is a Maxime and an old Custom in the Law that the Ju y shall not eat nor drink after they be sworn till they have given their Verdict without the assent and Licence of the Justices and that is ordained by the Law for eschewing of divers inconveniencies that might follow thereupon and that especially if they should eat or drink at the Costs of the parties and therefore if they do so it may be laid in arrest of Iudgment But with the assent of the Iustices they may both eat and drink as if any of the Jurors fall sick before they be agréed of their Verdict so soon that he may not commune of the Verdict then by the assent of the Iustices he may have meat or drink and also such other things as be necessary for him and his fellowes also at their own costs For by assent of the parties they may eat and drink Br. Jurors 2. or at the indifferent Costs of the parties if they so agrée or by the assent of the Justices may both eat or drink and if tâ—e Case so happen that the Jury can in no wise agrée in their Verdict as if one of the Jurors knoweth in his own Conscience the thing to be false which the other Jurors affirm to be true and so he will not agrée with them in giving a false Verdict and this appeareth to the Iustices by Examination the Iustices may in such case suffer the Iury to have both meat and drink for a time to fée whether they will agrée And if they will in no wise agrée the Iustices may take such order in the matter as shall séem to the may their discretion to stand with reason and conscience by awarding of a new Inquest New Inquest when the Jury cannot agree and by setting fine upon them that they shall finde in default or otherwise as they shall think best by their discretion like as they may do if one of the Iury die before the Verdict c. D. and Student 158. Wâ—ere if the Jury eat or drink it shall avoid the Verdict and where onely fiâ—eable If the Iury after their Evidence given unto them at the Barre do it their own Charges eat or drink either before or after they be agréed on their Verdict it is â—nable but it shall not avoid the Verdict But if before they be agréed on their Verdict they eat or drink at the charge of the Plaintiff if the Verdict be given for him it shall avoyd the Verdict But if it be given for the Defendant it shall not avoid it Et sic è converse But if after they be agréed on their Verdict they eat or drink at the charge of him for whom they do passe it shall not avoyd the Verdict 1 Inst 228. To give the Iury money makes their Verdict voyd by two Iustices Leon. 1 part 18. If the Plaintiff after Evidence given What delivered to the Jury after Evidence shall avoid their Verdict and the Jury departed from the Barr or any for him do deliver any Letter from the Plaintiff 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 avoid the Verdict if it be found for the Plaintiff but not if it be found for the Defendant Ec sic è converso But if the Jury carry away any Writing unsealed which was given in Evidence in open Court this shall not avoid their Verdict albeit they should not have carried it with them lb. How the Jury ought to be kept by the Bayliff By the Law of England a Jury after their Evidence given upon the Issue ought to be kept together in some convenient place without meat or drink fire or Candle which some Books call an imprisonment and without spéech with any When they may eat and drink See Smith's Common-wealth 74. unless it be the Bayliff and with him onely if they be agréed After they be agréed they may in causes betwéen 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 drink and the next morning in open Court they may either affirm Whâ—re there can be no privy Verdict or alter their privy Verdict and that which is given in Court shall staâ—d But in criminall cases of life or member the Jury can give no privy Verdict but they must give it