that the very reading of the Law will make a man Master of any of those Sciences And since Rhetorick is Ars ornatè dicendi and consisteth of those two parts Elocution and Pronunciation How can we read in our Law-Books those Learned Arguments Elegant Speeches and Judgements pronounced with such Eloquence and Elegance of words and matter and not conclude that Rethorick 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 Annals 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 Eulogical 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 excellency 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 always judges according to his capacity or affection for which cause if I were 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 Bracton l. 1. fol. 1. Vt si quid superfluum 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 connive at 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 A Summary of the Contents of each Chapter in this Book CAP. I. THE Derivation of the word Jury The Definition Antiquity and Excellency of Juries by way of Preface p. 1 CAP. II. Of an Issue and the divers sorts of Tryals thereof and when a Tryal shall be by a Jury and when not when by the Spiritual Law When by Certificate when by Battail 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. p. 7 CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs When well awarded c. p. 35 CAP. IV. What faults in the Venire facias shall vitiate the Tryal what not when a Venire facias de novo shall be awarded when several Ven. fac When the Ven. fac shall be betwixt the Party and a stranger to the Issue Who may have a Venire facias by Proviso and when p. 50 CAP. V. Why the Venire facias runs to have the Jury appear at Westm though the Tryal be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs of the Justices of Nisi prius Of the Tales at Common Law and by Stat. when the Transcript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is nonsuited he may have a Distringas de novo p. 66 CAP. VI. 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 of the number 12. And when the Tryal shall be per primer Jurors And of Inquests of Office And when to remain pro defect Jurator p. 83 CAP. VII Who may be Jurors who not who exempted and of their Quality and Sufficiency p. 90 CAP. VIII Concerning the Visne from what place the Jury shall come c. p. 98 CAP. IX Challenges p. 130 CAP. X. Of What things a Jury may inquire when of spiritual when of things done in another County or in another Kingdom when of Estopels and when not when of a mans intent c. p. 173 CAP. XI Evidence and Witnesses p. 181 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 Ven. fac per medietatem linguae and of Challenges to such Juries p. 351 CAP. XIII The Learning of general Verdicts especial Verdicts privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by Default Inquests of Office c. Arrest of judgement Variance betwixt the Nar and the Verdict c. ◠359 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 theirs will make the Verdict voyd Evidence given them when 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 amercement affered by the Jury p. 416 CAP. XV. What punishment the Law hath provided for Jurors offending as taking reward to give their Verdict Of Embraceors Decies tantum Attaint Several fines on Jurors What Issues they forfeit and of Judgement for striking a Juror in Westmin c. p. 430 Precedents containing the Forms of Challenges to the Array c. And the Proceedings thereupon Pleas Puis le Darrein Continuance Demurrers upon the Evidence Bills of Exception c. And the Law concerning the same Very Useful for all Lawyers and other Attorneys Practisers especially at the Assizes A Form of Challenge to the Array p. 449 Challenge to the Array because the Sheriff is Cousin c. p. 450 A Challenge because the Sheriff is Tenant c. ibid. A Precedent of a Challenge for default of Hundredors which hath been several times made use of at the Assises p. 451 The form of a Challenge made by the Defendant because the Plaintiff is the Sheriffs Cousin p. 452 A Challenge to the Array because no Knight was returned upon the Jury p. 453 A Challenge against the
Peer of the Realm or Lord of Parliament Where there must be a Knight returned of the Jury 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 of the residue And if others be joyned with the Lord of Parliament yet if there be no Knight returned the array shall be quashed against all So in an attaint there ought to be a Knight returned to the Iury. If two Peers sue as Gentlemen and admit themselves so in pleading 't is no challenge to say no Knight is returned for the Sheriff is in no fault And when the King is party as in traverse Where the King is party of an Office he that traverseth may challenge the array as hereafter in this Section shall appear and so it is in case of life And likewise the King may challenge the array and this shall be tryed by Tryors according to the usual course The array challenged on both sides shall be quashed And if two estrangers make a Pannel and not in favourable manner for the one party or the other and the Sheriff returns the same the array was challenged for this cause and adjudged good If the Bayliff of a Liberty return any out of his Franchise the array shall be quashed as an array returned by one that hath no Franchise shall be quashed Challenge to the array for favour He Challenge to the favour that taketh this must shew in certain the name of him that made it and in whose time and all in certainty This kind of Challenge being no principal challenge must be left to the discretion and conscience of the Triors as if the Plaintiff or Defendant be Tenant to the Sheriff this is no principal Challenge for the Lord is in no danger of his Tenant but è converso it is a principal Challenge but in the other he may challenge for favour and leave it to tryal So affinity between the Son of the Sheriff and the Daughter of the party or è converso or the like is no principal challenge but to the favour but if the Sheriff marry the Daughter of either party or è converso this as hath been said is a principal Challenge or the like But where For the King the King is party one shall not challenge the array for favour c. because in respect of his allegiance he ought to favour the King more But if the Sheriff be a Vadelect of the Crown or other menial servant of the King there the challenge is good and likewise the King may challenge the array for favour Note upon that which hath been said it appeareth that the challenge to the array To the Array is in respect of the cause of unindifferency or default of the Sheriff or other Officer that made the Return and not in respect of the persons returned where there is no unindifference or default in the Sheriff c. for if the challenge to the Array be found against the party that takes it yet he shall have his particular challenge to the Polls In some Cases a Challenge may be had to the Polls and in some Cases not at all To the Polls Challenge to the Polls is a challenge to the particular persons and these be of four kinds that is to say Peremptory Principal which induce favour and for default of Hundredors Peremptory this is so called because he Peremptory Challenge may challenge peremptorily upon his own dislike without shewing of any cause and this only is in case of Treason or Felony in favorem vitae and by the common Law the prisoner upon an Indictment or Appeal might challenge thirty five which was under the number of three Iuries but now the Statute of 22 H. 8. the number is reduced to 20. in petite Treason Murder and Felony and in Case of high Treason and Misprision of high Treason it was taken away by the Stat. of 33 H. 8. but now by the Stat. of 1 2 Phil. Mary the Common Law is revived for any Treason the prisoner shall have his challenge to the number of 35. and so it hath been resolved by the Iustices upon conference between them in the case of Sir Walter Raleigh and George Brooks But all this is to be understood when any subject that is not a Peer of the Realm is arraigned for Treason or Felony But if he be a Lord of Parliament and a Peer of the Realm and is to be tryed by his Peers he shall not challenge any of his No Challenge of Peers Peers at all for they are not sworn as other Iurors be but find the party guilty or not guilty upon their Faith or Allegiance to the King and they are Iudges of the fact and every of them doth separately give his judgment beginning at the lowest But a Subject under the degree of Nobility may in case of Treason or Felony challenge for just cause as many as he can as shall be said hereafter In an appeal of death against divers they plead not guilty and one joynt Venire facias is awarded if one challenge peremptorily he shall be drawn against all Otherwise it is of several Venire fac Note that at the common Law before the Stat. of 33 E. 1. the King might have challenged peremptorily without shewing The Kings Challenge restrained cause but only that they were not good for the King and without being limited to any number but this was mischievous to the subject tending to infinite delays and danger And therefore it is Enacted Quod de câ—tero licet pro Domino Rege dicatur quod juratores c. non sunt boni pro Rege non propter hoc remaneant inquisitiones c. sed assignent certam causam calumniâ— suae c. whereby the King is now restrained Principal so called because if it be Principal Challenge the Polls found true it standeth sufficient of it self without leaving any thing to the Conscience or discretion of the Triors Of a principal cause of challenge to the Array we have said somewhat already now it followeth with like brevity to speak of principal Challenges to the Polls that is severally to the persons returned A principal Challenge is nothing else but such matter which proves evident favour or enmity in the Iuror and therefore it belongeth to the Iustices to draw the Iuror and not to leave the decision to Tryors 21 E. 4. 11. Principal Challenges to the Poll may be To the Polls reduced to four heads First Propter honoris respectum for respect of Honour Secondly Propter Defectum for want or default Thirdly Propter Affectum for affection or partiality Fourthly Propter Delictum for Crime or Delict First Propter Honoris respectum As any Principal Challenges to the Polls Peer of the Realm or
one challenged by the Plaintiff and the other by the Defendant When the Tryal is to be had by two Counties the manner of the tryal is worthy of observation and apparent in our Books If the four Knights in the Writ of Right be challenged they shall try themselves and they shall choose the grand Assise and try the challenges of the parties If the cause of challenges touch the dishonour or discredit of the Juror he shall not be examined upon his Oath but in other cases he Juror examined shall be examined upon his Oath to inform the tryors If an Inquest be awarded by default the Defendant hath lost his challenge but the Plaintiff may challenge for just cause and that shall be examined and tryed Wheresoever the Plaintiff is to recover View per visum juratorum there ought to be six of the Jury that have had the view or known the Land in question so as he be able to put the Plaintiff in possession if he recover In Proprietate probanda and a Writ Challenges to inquire for waste the parties have been received to take their challenges But passing over many things touching this matter I will conclude with the saying of Bracton Plures autem aliae sunt causae recusandi juratores de quibus ad praesens non recolo sed quae jam enumeratae sunt sufficiant exempli causa 1 Inst 157 158. Treat doth signifie as taken out or withdrawn Treat what and is applied to a Juror that is withdrawn by consent or removed and discharged by challenge A Juror sick was withdrawn and another sworn Palmers Reports 411. If the Defendant do not appear at the tryal Challenge lost when he is called he loseth his challenge to the Jurors although he doth afterwards appear 'T is a good challenge to a Juror to say he A wrong name is returned by another name in the Pannel A Juror appeared and said he had no No Freehold Freehold and prayed that he might not serve yet the Judge would not spare him for he may have an action against the Sheriff for returning him Rolls 2 part Reports 483. CAP. The Challenge pro defect Hundred must be written in Parchment and tâ—e Council must arraign it in French upon which the Defendant may take issue or demur The Clerk or Associate in Court must call the Jury over and ask if they have any Lands within the Hundred or had at the time of the Array of the Pannel and whether they dwell or did dwell in the same And upon examination if it appear clearly that they have no Lands or Tenements nor dwell in the Hundred then the Clerk is to mark them by the side of every of their names thus prâ—ter Hundred but if he find there be two Hundredors he is to resort back to the praeâ—er Hundred and swear them in order So that you see the Tryal whether Hundredors or not is determined by the Courts examination by the Poll severally But if the Council demur and the other side joyn in demurrer the Iudge of Assises may affirm the Challenge and over-rule the Demurrer or allow the Demurrer good and proceed to the Tryal of the Cause or if the Iudge doubt it may be determined in Bank but this is great delay If the challenge be adjudged good the Court awards Que le pannel il soit casse At Common Law there ought to have been In Cities Corporations Burroughs and Towns and Counties this Challenge cannot be 4 Hundredors returned and appeared in all actions pro meliori notitia causae in controversia for vicini vicinorum facta scire praesumuntur But by the Statute 35 H. 8. ca. 6. six are to be returned and appear But since by the Statute 27 Eliz ca. 6. if two Hundredors be returned and appear it is sufficient in all personal actions But in real actions there must be six or else Remanet pro defectu Jur. The Court shall appoint two Tryors in a challenge to the Poll and if they find two indifferent the first Tryors shall be discharged and the two that are found indifferent being sworn to try the Issue shall also be sworn to try the rest of their Fellows At Common Law there used to be returned 24 upon the Venire and afterwards a Habeas corpora with a Decem Tales and if a full Jury did not appear or were challenged then a Distringas with an Octo Tales and so to the Duo Tales if there was not a Tales de circumdantibus may be in the case of Aliens full Jury And this was the course until the Statute 35 H. 8. which gives the Tales de circumstantibus at the Assises c. and by the Stat. 5 Phil. Marie ca 7. where the King Queen or Informer c. are parties A Challenge may be taken to those of the Tales de circumstantibus By the Statute 33 Ed. 1. The King and those who prosecute for him must shew their cause of Challenge as betwixt party and party and left to the discretion of the Iustices The King or any one authorised for him may release his challenge Where the party may challenge the King may challenge 'T is no challenge to say the Juror is the Kings Tenant or that he is favourable to the King but 't is good to say the Sheriff or Juror bears grudge or malice to the Defendant where the King is party If the Juror hath any Freehold 't is sufficient although not to 40 s. a year For the Statute which injoyns that speaks only betwixt party and party The first who challenges be he Plaintiff or Defendant shall have the preference and advantage of his challenge If a Juror be once challenged and withdrawn upon the principal he cannot serve upon the Tales if he doth 't is Error and Iudgement may be stayed And so if he be challenged and a Jury remain pro defect Juratorum if he be sworn upon a new Distringas 't is Error not helped by any Statute of Jeofailes and a mis-tryal and a Venire facias de novo may be awarded Cro. Eliz. fol. 429. Whitbys Case Elisors may be sworn in some cases to return and impannel all Juries as should upon any Venire facias Habeas Corpora or Distringas Jur. come to their hands impartially indifferently and without favour or affection or at the denomination of any person The Record of Attainder Conviction Excommunication Outlawry c. or a Copy thereof ought to be produced to prove the cause of challenge thereupon Where bodies politick or Corporate are concerned a challenge may be taken which arises from the individuals as Brother to one of the Prebendaries is a good challenge where the Dean and Chapter are parties c. Hob. 87. so a Parishioner where the right of the Church comes in question at the Suit of the Parson 17. Ass 15. In High-Treason the prisoner may peremptorily challenge to the number of 35. which is under the
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
may be averred Or what or who was meant where there are two of a name c. lib. 8. 155. The Heir in tail cannot aver against a fine levied by his Ancestors That partes finis nihil habuerint lib. 3. 84 85. Leon 75 76. c. But when Tenant in tayl accepts of a fine and grants and renders the Land by the same fine which is Executory there if no execution be sued in the life of Tenant in tayl his Issue may aver continuance of possession c. in his Father for this stands with the fine and the acceptance of the fine alters not the Estate If a man and his Wife sell her Land for money and after levy a fine to the Vendee and his Heirs it may be averred it was for money and so carry the use to the Vendee without any declaraâ—ion of use which otherwise would result to the Woman and her Heirs and â—o other uses may be proved than what are in an Indenture of uses subsequent to the conveyance c. lib. 9. 8. 5. 26. Tenant in tail with remainder in tail to A. Reversion in see to himself bargains and sells Land c. and levies a fine to him with Proclamation with general warranty The Conusee infeoffs A. Resolved The Bargainee had an Estate determinable upon the death of the Tenant in Tail and also the reversion in fee which the Bargainor had and his Wife shall be endowed but this determines upon the death of the Tenant in Tail Resolved The fine doth not discontinue the remainder for this doth not pass any Estate but makes this Estate of the Bargainee durable c. so that it shall not determine untill the Tenant in Tail die without Issue aâ—d the conclusion may be confessed and avoided Resolved the Warranty doth not barr the remainder for this was annexed to the fee determinable c. and to the reversion in fee and doth not extend to the remainder for this was not displaced and the Feoffee of the Conusee cannot inlarge c. 'T is a Maxim that a Warranty barrs no Freehold which is in esse possession or remainder c. and not displaced before or at the time of the Warranty although it be devested before the descent Resolved A Warranty cannot inlarge the Estate Resolved the Feoffment of the Conusee was not a discontinuance of the remainder because he was not Tenant in Tail so of the Grantee of totum statum suum c. Resolved A Collateral Warranty may be given in evidence and found by the Jury The Chief Justice held that by the Feoffment of the Conusee the Remainder was not displaced nor put to a right for his Fee simple and his Fee determinate pass and the Feoffment which in it self is not tortious cannot be tortious to another Otherwise it is when Tenant for life or remainder in Tail c. makes a Feoffment for the Feoffment it â—elf is torâ—ious Note there are some titles to which a Warranty doth not extend as in the Case of an Eschange condition upon a Mortgage Mortmain consent to a Ravisher c. for in these Cases no action lies in which Voucher or Rebutter may be neither shall a descent take away Entry in these cases and cannot be displaced out of their Original essence Collateral Warranty shall barr dower and yet an action is given for this But a fine c. and five years barr these titles and dower also if an action be not brought in time Seymour's Case lib. 10. 96. Buckler and Harveys Case lib. 2. 55. Tenant for life leases for 4 years and afterwards grants the Tenements Hab. from P. for life after P. the Lessee attorns then the Grantee enters and leases at will to which Tenant at will the Tenant for life levies a fine Come ceo c. Rem in fee enters Resolved The Grant was void for an Estate of Freehold cannot commence in futuro and the Grant being void at the Commencement the Attornment afterwards cannot make it pass and that the Grantee was a Disseisor but if the Grant had been good at the Commencement and was only to have its perfection by a subsequent act as by livery upon a Charter of Feoffment c. and the Grantee enter before the perfection he is not a Disseisor but a Tenant at will Resolved also If the fine had been levyed to the Disseisor himself Come c c. he which had the right of remainder may enter for the forfeiture for it was agreed that the right of a particular Estate may be forfeited and entry given to him who had but a right As if Lessee for years be ousted or Tenant for life Disseised and the Lessee for years brings an assisse or the Lessee for life a Writ of right c. 'T is a forfeiture Resolved also That the fine being levied to the Tenant at will it is a forfeiture and he which had the right of remainder may enter and the Tenants for life and at will also shall be estopped to say quod partes finis nihil hab c. and of such estoppels which are by matter of Record and trench to the disherison of them in reversion c. they shall take advantage although they are strangers to the Record for they are privies in Estate Resolved also If the Disseisee levy a fine to an estranger the Disseisor shall retain for ever for the Disseisee against his own fine cannot claim the Land and the Conusee cannot enter for the right of the Conusor cannot be transferred to him but by the fine the right is extinct whereof the Disseisor shall have advantage But in Crok 1. part 482. 13 Car. it was moved if the Disseisee not knowing of the Desseism levied a fine to a stranger whether that should barr his right and move to the benefit of the Disseisor according to Bucklers Case and said if admitted would be of very mischievous consequence and by two Judges held that it should not enure to the benefit of the Disseisor but to the use of the Conusor himself for otherwise a Disseisin being secret may be the cause of disherison of any one who intends to levy a fine for his own benefit for assurance of his Lands upon his Wife and Children or otherwise 1. Inst 277. Not against such Certificates as are a definitive Against a Certificate Tryal of the thing certified As the Bishops Certificate of Excommunication Bastardy lawful Marriage c. so Certificates of the Marshal of the Host which is a Tryal but against Certificates only of information it may be As against Certificates upon Commission out of any Court or of the Commissioners that affirm a man a Bankrupt which are not Tryable in a course of Law but informations lib. 7. 14 lib. 8. 121. So of a return if it is a definitive Tryal of the Upon a Return thing returned no averment lyeth against it As the retorn of a Sheriff upon some Writs as a Writ of Partition
I Do allow the PRINTING and PUBLISHING of this BOOK Entituled Tryals Per Pais Or The Law of England Concerning Iuries by Nisi Prius Fr. Pemberton Tryals per Pais OR THE Law of England CONCERNING JURIES BY Nisi Prius c. The Second Edition Newly Revised and much inlarged with an Addition of Precedents and Forms of Challenges Demurrers upon Evidence Bills of Exception Pleas puisne Darrein Continuance c. Very Useful and Necessary for all Lawyers Attorneys and other Practicers especially at the Assizes By G. D. of the Inner Temple Esquire Per testes solum lex ipsa nunquam litem dirimit quae per Juratam xij hominum decidi poterit Cum sit modus isle ad veritatem eliciendam multo potior efficacior quam est forma aliquarum aliarum legum orbis Fortescue cap. 21. LONDON Printed for George Dawes and are to be Sold by Matthew Wotton at the Three Pigeons against the Inner Temple Gate in Fleetstreet 1685. TO THE PRACTICERS OF THE LAW Gentlemen IN the Dedication of Books such persons should be chosen whose Studies or Profession agree with the nature of the Subject To prove conclusions in one science by the Heterogene Principles of another To make a Grammarian Patron to a pecie of the Mathematicks to dedicate a Treatise of Logick to a Master of Musick or a matter of Practice to a man of Speculation would not only be improper but absurd You know that in the whole Practice of the Law there is nothing of greater excellency nor of more frequent use than Tryals by Juries In this our Common-Law and not without just cause values it self beyond the Imperial Laws before the Canon Law or any other Laws in the world And seeing the hopes and life of all the Process the force of the judgement and the truth nay the right of the Parties lie in the Tryal for as one elegantly says Qui non probat at the Tryal dicitur veritate jure carere and indeed the knowledge of all the Law tends to this for without victory at the Tryal to what purpose is the science of the Law The Judge can give no sentence no decision without it and must give judgement for that side the Tryal goes therefore I may well say 't is the chief part of the Practice of the Law And if so to whom should I offer this Treatise but to you the Practicers I need say nothing for small Tracts and Treatises The infinite number of them in the Civil Law there being for every Title a distinct Tract nay the number of them in our Law sufficiently shews their use Ringelbergius in his Book de ratione studii giving directions what books Students ought to carry with them when they change places and travel from one to another tells us That out of the Volums by reason of their bigness not portable he used to tear out several leafs and take them with him in his journeys and so he says he had served the works of Pliny Tully Plato Demosthens c. although he had given great prices for them which justifies the writing of this Treatise the subject matter thereof being of such general use in all Circuits When I read the elaborate books of Farinacius de testibus and the 3 Exquisite and Incomparable Volums of Mascardus de probationibus in the Caesarian and Pontifical Laws which works were so valued and esteemed that they were looked upon as new lights sent from Heaven by the professors of those Laws I could not but see the defect and want of such books in our Law for surely they are as necessary in the one as in the other And although I cannot compare my weak indeavours with those excellent and methodical works theirs being intire this only quasi an Abridgement fitted for use not for show Yet until more learned and judicious Proficients in our Law shall undertake the work I thought fit to produce mine To compare this sort of Tryal by Jury with the Tryals of other Laws and Countries and declare how much and wherein it excels them all after Fortescue de laudibus c. and his learned Commentator would be like the arrogance of Limning after Apelles and requires the room of a Volum rather than an Epistle And considering my own insufficiencies I shall praise it more by saying nothing than all I can for to say less than a thing deserves would be instead of an Encomium a disparagement Therefore I shall content my self only to say that Tryals in other Laws are by Witnesses only privately examined This by Witnesses publickly examin'd and confronted and by Jury also and so consequently the fact is setled with the greater certainty of truth upon which the uprightness of the judgement depends It would be well if there were less corruption in the returning of Juries but I think 't is parallel'd if not exceeded by that of examining Witnesses privately on whose depositions the Tryals in other Laws consist And so that must be no objection against the thing I hope an expedient may be found out to prevent the corruption in returning Juries but I believe it never can in the other To say this Tryal by Jury is too popular in a Monarchy would be a good objection from a French-man but not of any English-man who lives under the best tempered Monarchy and the best sort of Government in the World to which this manner of Tryal is so proper and well accommodated that neither the wisdom of our Ancestors could nor I may say can this present nor after ages invent a better But as the unskilful Painter drew a Curtain before what he could not express with his Pencil so must I vail with silence the excellencies of this Celebrated Tryal which I am not able to delineat Gentlemen To make an Apology for the stile of a Law book especially of an Epitome would be a vain thing Ornari res ipsa negat contenta doceri neither shall I make any Apology for my undertaking this work if 't was better performed yet Momus would be carping and if 't was worse it would be good enough for him who cannot or will not do it better Be it what it will your kind reception will abundantly satisfie Your Servant G. Duncombe THE PREFACE TO THE FIRST EDITION THE Philosopher could not see a man unless he heard 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 Knowledge of the bravest spirits Wherefore Learned Salust from Historiae facil princeps this takes his Exordium Omnes homines qui sese student praestare caeteris animalibus summa ope niti decet ne vitam silentio transeant veluti pecora Those
to the good of the King and State who attempt to alter or invade this Fundamental Principle in the administration of the Iustice of this Realm by which the Kings Prerogative has flourished and the just liberties of the people have been secured so many Ages And what answer shall I make to the Princes vehementer admiror videlicet Wherefore are not Juries used in other Countries if they are so good but that of Fortescue the Portescue ca. 29. Learned who best could tell scil That other Countries can scarce produce one Jury so well accomplished with Wealth and Ingeny as one County nay one Hundred can in England But not to dwell in the Porch I will address my self to the Gravity of the Law where you must not so much expect the flash of Rhetorick as the light of Reason No the Law knows best how to express Things not words most regarded in the Law her self in her own terms wherefore all other Sciences must learn with reverence to keep their distance And as the Golden Finch sings be glad to have their Finch c. 3. sparks raked up in her Ashes And since an Issue is previous and the matter of a Tryal I shall first give you the description thereof and then touch upon the several Tryals allowed by the Law for discussion of the truth CAP. II. Of an Issue and the divers sorts of Tryals thereof and when a Tryal shall be by a Jury and when not when by Certificate when by the Spiritual Law when by Battail and when by an Almanack what Issue shall be first tryed per Pais what shall be tryed by the Court and what by Examination of the Attorney Sheriff c. ISsue exitus saith Cook is a single 1. Inst fo 126. Omnia unum aliquem sortiuntur exitum vel per patriam vel per Judices terminandum Finch Epistle certain and material point issuing out of the Allegations and Pleas of the Plaintiff and Defendant consisting regularly upon an Affirmative and Negative to be tryed by Twelve men and it is twofold scil either special as where the special matter is pleaded or general as in Trespass Not guilty In Assise nul tort nul disseisin c. And as an Issue natural cometh of two several persons so an Issue legal issueth out of two several Allegations of adverse parties And to give you likewise his definition of Tryals Note that upon a demurrer to part and Issue to part though it is the best way to give Judgment upon the quaestio juris first yet the Court may try the quaestio facti first at their discretion 1 Inst 72. 125. Lach. 4. Rolls tit Tryals 626. 723. Tryal It is to find out by due examination the truth of the point in Issue or question between the parties whereupon Iudgement may be given And as the question between the parties is twofold so is the Tryal thereof For either it is quaestio Juris and that shall be tryed by the Judges either upon a demurrer Special Verdict or Exception For Cuilibet in sua arte perito est credendum quod quisque noverit in hoc se exerceat Or it is quaestio facti And the tryal of the fact is in divers sorts First chiefly and most commonly by a Jury of Twelve men of which kind of tryal my intention is principally to treat in this Book For by Twelve men are matters of Proceedings in Civil Causes fact for the most part tryed with us in England in Causes both Criminal and Civil in Causes Civil after both Parties have said what they can one against another in Pleading if there arise a question about any matter of fact it is referred to Twelve indifferent men to be Impanelled by the Sheriff and as they bring in their Verdict so Iudgment passeth And this the Judge is to declare as the Law is upon the fact found For the Judge saith the Jury finds thus and then the Law is thus and so we judge For the Law arises upon the fact For Criminal Causes the course is this Proceedings in Criminal Causes At the Kings-Bench for Midds and at the great and general Assises and at the general Sessions of the Peace there is one Jury called the Grand-Jury which consists commonly of 24 men substantial men out of every Hundred with in the County returned by the Sheriff and they are to consider of all Bills of Indictment preferred to them which they either approve of by writing Billa Vera or disapprove by writing upon them Ignoramus and those which they approve of are to be tryed by another Jury called the Petit-Jury Or the Grand-Jury may charge any person upon their own Presentment which will be of the force of an Indictment and the party charged may Traverse the offence and bring it to be tryed by a Petit Jury Some lesser matters in these Courts are proceeded upon without a Jury and some things are removed by Certiorari into higher Courts and then must be tryed there and that thing to which there is a Traverse put in must be tryed and ended by a Petit Jury which for the most part in all Civil and Criminal Causes are but Twelve men which ought to be Free-men not Villains or Aliens and lawful men not Outlawed and also men of worth and honesty But because it is necessary to be known that there are many ways allowed by the common-Common-Law to try matters of fact besides this by Juries I will here repeat some of them And for this first hear the Oracle who tells you that he had read of six 1 Inst fol. 74. kinds of Certificates allowed for Tryals by the Common-Law 1. The doing of service by him that Tryals by Certificate holdeth by Escuage in Scotland was to be tryed by the Kings Marshal of his Army Per son Certificat en escript south son seal que serra mis a les Justices saith Littleton 2. If it be alledged in avoydance of an Outlawry that the Defendant was in prison at Burdeaux in the service of the Mayor of Burdeaux It shall be tryed by the Certificate of the Mayor of Burdeaux Note this was when Burdeaux was partel of the dominions of the King of England Rolls tit Tryal fo 583. 3. For matters within the Realm the Custome of London shall be Certified by the Mayor and Aldermen by the mouth of the Recorder vide apres 17. 4. By the Certificate of the Sheriff upon a Writ to him directed in case of Priviledge if one be a Citizen or Foreigner 5. Tryal of Records by Certificate of the Judges in whose Custody they are by Law All these be in temporall Causes 6. In Causes Ecclesiastical as Loyalty of Marriage general Bastardy Excommengement profession These and the like are regularly to be tryed by the Certificate of the Ordinary vide apres 16. If the Def. claim his priviledge as a Scholar of the Vniversity of Oxon of such a Colledge or Hall This
and the Judges of the Kings Bench in an Appeal of Felony It séems they seldom or never killed one another in this tryal of Battel for their Weapons were but Batoons and he that was vanquished was presently upon Proclamation made to acknowledge his fault in the Audience of the people or else to cry Cravent in the name of Recreantise c. and upon this Iudgement was to be given and after this the Recreant should amittere liberam legem that is should become infamous c. 2 Institutes 247. Finch 421. lib. 9. 31. Mirror of Justice 161 162 c. 1 Inst 294. Glanvil saith the tryal by Grand Assise Grand Assise came by the Clemency of the Prince Est autem saith he Magna Assiza Regale quoddam beneficium Clementia Principis de consilio Procerum populis indultum For the Tryal of Treason Murther and Felony as well upon Appeals as upon Indictments see Stamford's Pleas of the Crown By Glanvil cap. 1. lib. 14. it appeareth the tryal of these Crimes by the old Law was this If there were no direct proof nor accuser or if there was any accuser or direct proof yet if the party denyed the same then the tryal was by Wager of Battel if the party accused was not 60 years old and of sound Limbs but if he was older or not sound then he Per judicium Dei was to be tryed per judicium Dei namely per calidum ferrum vel aquam that is if he was a Freeholder he was to run bare foot and bare legg'd over a row of hot Iron Barrs and if he passed three times without stop or fall he was acquitted And if he was a meaner person called Rusticus he was to run through vessels filled with scalding water 20. In a Writ of Disceit upon a Recovery Recovery by default Summoners pernors veiors by default the Tryal shall be if the Iudgment was given upon the Petit Cape by the Summoners if upon the Grand Cape by the Summoners pernors or veiors and not per pais So if a Recovery by default in a real Action be pleaded to which the other saith Nient comprise this shall Nient Comprise not be tryed per pais but by the Summoners and Veiors lib. 9. 32. En Assise if the issue be whether the Land was extended in an Elegit c. This shall be tryed by the extendors joyned with the Assise 31. Ass 6. vide Rolls tit Tryal 581 582. Of Tryals per L'escheator per Examination vide ib. In an Appeal if the Exigent be awarded Escheator Sheriff and the party pray a Writ to inquire of the goods and Chattles and to seise them this may be awarded to the Escheator or Sheriff at the Election of the Court. 41. Ass 13. vide hic cap. 24 27. 21. In debt upon a simple Contract Detinue Wager of Law c. The tryal may be by Wager of Law or per pais at the Defendants Election But when the Defendant wageth his Law he ought to bring with him Eleven of his Neighbours who will avow upon their Oath that in their Consciences he saith true so as he himself must be sworn de fidelitate and the Eleven de credulitate Ib. Finch 423. and 1 Inst 295. you may read excellent Learning concerning this Tryal 22. If Profession be denyed it shall be Profession tryed by the Court Christian But if the time of the Profession be in issue this shall be tryed by the Country lib. 4. 71. So though an Inrollment or other matter of Inrollment Record cannot be tryed per pais yet the time when the Inrollment was made may be tryed per pais So whether the party Appearance appeared in such a Court or on such a day c. shall be tryed per pais Cro. 3. part 13. So whether one was Sheriff Sheriff Admission c. Plenarty such a day or not Cro. 1. part 421. Admission Institution Plenarty and Ability of the Parson shall be tryed by the Bishop But Induction shall be tryed by the Country and so shall Avoydance by resignation Dyer 229. Moor 61. And voyd or not voyd shall be tryed per pais 1 Inst 344. And Plenarty if the Clerk be dead Mirror of Justice 324. li. 6. 49. The cause of refusal of a Clerk by the Bishop shall by tryed by the Metropolitanâ— if the Clerk be living but per pais if he be dead l. 5. 58. Ability shall be tryed by the Ordinary if Per spiritual Law Vide hic cap. 16. the Clerk be alive but if dead then per pais Institution resignation full or not full Professâ—on unless alledged in a Stranger Prior removeable at will or perpetual general Bastardy the Right of Espousals Divorce c. shall be tryed by the Bishops but in many cases these matters being mixed with other circumstances shall be tryed per pais As if the Church be void by Resignation Per pais For although Institution resignation c. are Spiritual yet avoidance induction c. are notorious to the Country or void or not void Induction Institution and Induction together because the Common Law shall be preferred Prior or not Prior. Bastardy alledged in a stranger to the Writ or in one dead or Abatement of the Writ Whether a feme be a feme covert in possession c. in trespass by Baron and feme Nient Son feme shall be tryed per pais And see in Rolls tit Tryal 584. c. Many cases where Bastardy Marriage c. shall be tryed per ley spiritual or per pais The time c. of Consecration of a Bishop and of other spiritual matters shall be tryed per pais By what spiritual person the tryal shall be and for what cause vide ib. 23. An Ideot found so from his Nativity Ideoty by Office may come in person in the Chancery before the Chancellor and pray that before him and such Iustices or Sages of the Law which he shall call to him who are called the Council of the King he may be examined whether he be an Ideot or no or by his friends he may sue a Writ out of Chancery retornable there to bring him into the Chancery Ibidem Coram nobis concilio nostro examinand lib. 9. 31. 24. If it be in question whether the Sheriff Sheriff made such a retorn or not It shall be tryed by the Sheriff If whether the Undersheriff made such a Retorn or not it shall be tryed by the Undersheriff If Retorn the question be whether such a one be Sheriff or not he is made by Letters Patents of Record and therefore it shall be tryed by the Record ib. Cro. 1. part 421. 25. If an Approver say that he Commenced Dures his Appeal before the Coroner per dures this shall be tryed by the Record of the Coroner and if it be found that he did it without dures he shall be hanged ib. Corone br 75. 26. The Tryal
Defendant unless when he is actor as well as the Plaintiff or unless there be a default and Leches in the Plaintiff therefore there can be no Tryal by Proviso against the King unless with the Attorney General 's consent because no default or Laches can be imputed to the King But an avowant in Replevin may have a Venire facias with a Proviso immediately Proof presently after issue joyned after issue joyned because he is Actor and in nature of the Plaintiff If the Plaintiff in Detinue and the Garnishee be at issue and the Plaintiff prays a Nisi prius and this is granted Garnished yet the Garnishee at the same time may have a Nisi prius with Proviso because he is Plaintiff also 19. li. 6. 46. Rolls tit Tryal 629. If the Plaintiff deliver the Writ to the Sheriff tarde so late that he cannot serve Tarde it the Defendant shall have a Writ with a Proviso But at the same time the Plaintff may have another Writ and the Sheriff may return which of them he pleases at his Election 8 H. 6. 6. The Proviso ought to be quando duo brevia sunt in eodem gradu qualitate If the default be in Plaintiff after issue in the prosecuting of the Venire facias then the Defendant may have a Venire facias with Proviso but not a Hab. Corpus with a Proviso until the Plaintiff have made a default in the same Writ for he ought only to have the same Process with a Proviso in which there was a default of the Plaintiff first and therefore although the Defendant had a Venire facias with a Proviso upon a default of the Plaintiff yet he cannot have a Nisi prius by Proviso without another default of the Plaintiff If the Defendant had a Hab. Corpus by Proviso and the Jury remain for want of Hundredors yet he cannot have a Distringas Jur. with a 10. Tales cum Proviso until a default of this request of a Tales is in the Plaintiff D. 15 El. 318. 10. But note the Nota in Stamford's Pleas How the Plaintiff may stop the Defendants Proviso del Coron fol. 155. That if by negligence of the Plaintiff the Defendant sues a Venire facias with a Proviso yet the Plaintiff may at his pleasure stay the Defendant that he shall not proceed in his Process in praying a Tales upon the Defendants Process as it appears T. 15 H. 7. fol. 9. And the Defendant shall never be received to pursue this Process with a Proviso so long as the Plaintiff pursues or is ready to pursue as appears Mich. 14 H. 7. fol. 7. And seeing the Tales men offer themselves Tales men to us we will tell them upon what accompt they come before they thrust themselves into the Inquest commonly for the love of eight pence but it may be to do some of their Neighbours a shrewd turn CAP. V. Why the Venire facias runs to have the Jury appear at Westminster though the Tryal be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs Of Justices of Nisi prius Of the Tales at Common Law and by Statute When the Transcript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is Non-suited he may have a Distringas de novo BUt to observe the Method of the Writ the next words are Coram Justiciariis nostris de Banco apud Westminst tali die And here first of all you may ask me to what purpose the Sheriff is comâ—anded to cause the Iury to come to Westâ—â—â—ister when they are to try the Cause in the Country and in truth are not to come to Westminster I must confess the resolution of this question is not unnecessary wherefore we must know that Originally before the Writ of Nisi prius was given the purpose for which the 12. men were to be summoned upon the Writ of Venire fac Why the Venire facias is to have the Jury appear at Westminster to come to Westminster was that contained in the Writ videl Ad faciend quandam Juratam for then was the Tryal intended to be there if a full Iury appeared if not then a Hab. Corpora with a Tales sometimes Hab. Corp. annexed to it the form whereof you may see in the Register and if they did not appear at the Return in the Hab. Corpora then went out the Distringas This Distringas I speak of the Common Pleas But the course of the Kings Bench and Exchâ—quer is after the Venire fac to have a Distringas leaving out the Hab. Corpora Tryals then were all at the Bar. I speak not of Assises But now because Jurors did not use to appear upon the Venire facias it being without penalty Tryals at the Bar are appointed upon the Hab. Corpora and Distringas because the Iury will Tryals at Bar. more certainly appear at the day in the Distringas through fear of forfeiting issues which the Sheriff returns on the Distringas not on the Venire facias By the Statute of 18 Eliz. cap. 5. no Iury shall be compelled to appear at Westminster for the Tryal of an offence upon any penal Law committed above 30. miles from Westminster Where a Jury is not compellable to appear at Westminster except the Attorney General can shew reasonable cause for a Tryal at Bar. Thus it was at Common Law before the giving of the Writ of Nisi prius when all Iurors together with the parties came up to the Kings higher Courts of Iustice Where the Cause depended which when Suits multiplyed was to the intolerable burthen of the Country 27 E. 1. cap. 4. Wherefore by the Statute of Westminst 2 cap. 30. A Writ of Nisi prius was first Nisi prius when first given and wherefore given and that in the Venire facias as we may see in the form of the Writ there mentioned scil Prâ—cipimus tibi quod venire facias coram Justiciariis nostris apud Stamfords Pleas of the Crown 156. Westmon in octabus Sancti Michaelis nisi talis talis tali die loco ad partes illas venerint 12. c. By which Writ it appears that the Venire facias was not returnable till after the day of the Nisi prius But the mischief thereof was so great partly Nisi prius in the Venire facias in respect that the parties not knowing the Iurors names could not tell how to make their Challenges and so were surprized and partly in respect of the Iury who were greatly delayed by the Essoyns of the parties that by the Statute of 42 E. 3. cap. 11. It is Ordained that no Inquest but Assises and deliverances of Gaols be taken by Writ of Nisi prius nor in other manner at the Suit of the great or small before that the names of all them that shall pass in the Inquests be returned
to wit the number two things are to be observed 1. That in all Cases the Tales ought to be under the number of the principal in the Venire facias unless in Appeals as in Attaint under 24. and in other Actions where the Venire facias is of 12. under 12. And the reason wherefore more than the number may be granted in Appeals of the Plaintiffs part is because the Defendant may challenge peremptorily and if default be in the Plaintiff then the Defendant may pray a Tales and the Reason is in favorem vitae and that he may expedite and free himself from vexation and the question of his life for fear that his Witnesses should die 2. That the number ought always to be certain as 10. 8. 6. or 4. c. But now by the Statute of 35 H. 8. a Tales de circumstantibus may be granted as well of an uncertain as a certain number and that by force of these words in the Stat. 35 H. 8. So many c. as shall make up a full Jury As to the third to wit the Order It is to be known that always in every new Tales the number shall be diminished as if the first be 10. the second shall be 8. and so always less But if the Tales awarded be quashed by Challenge you may have another of the same number As to the fourth to wit the manner of Tryal that is commonly by them with others but by them only when after the granting the Tales the principal Pannel is quashed then the Tryal shall be only by the Tales or if the Tales do not amount to a full Inquest another Tales to supply the former may be granted As to the fifth to wit the Quality of the Therefore if the Venire facias be not de medietat linguae the Tales cannot 3 E. 4. 12. Tales they ought to be of the same Quality as the Quales are and therefore if the first be per medietatem linguae of English and Aliens so ought the Tales to be so if the Principal be out of a Franchise so if the Venire facias be directed to the Coroners so ought the Tales and all things which are required by the Law in the Quales are required in the Tales As you may read in the aforesaid Statutes vide Stamf. Plees del Corone fol. 155. Where a Juror is withdrawn when the Plaintiff intends to bring the Cause to Tryal again he may have a Distringas c. with a Decem Tales By the Statute of 23 H. 8. cap. 3. If there be not enough sufficient Freeholders as are required in an Attaint in the County where Attaint such Attaint is taken a Tales may be awarded into the Shire next adjoyning If the Transcript of the Record of the Nisi prius be mistaken and not warranted by the Rolls for which cause the Plaintiff becomes Non-suit he may have a Distringas Nisi prius amendable de novo upon motion to the Court and the Postea shall not be recorded Cro. 1. part 204. Palmers Reports 378. For there is but a Transcript of the Record sent to the Justices of Nisi prius First they were Justices of Nisi prius and Justices of Assise Justices of Assise and therefore they retain that name still though Assises are very rarely brought For this common Action of Ejectment hath Ejected most real Actions and so the Assise is almost out of use CAP. VI. 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 of the number 12. And when the Tryal shall be per primer Jurors And of Inquests of Office and when to remain pro defectu Juratorum NOw for the Quales and these you see for number must be 12. by the Common Law D. and St. fol. 14. for quality liberos legales homines And first of their number 12. And this number is no less esteemed of by our Law than by Holy Writ Of the number 12. If the 12 Apostles on their 12 Thrones must try us in our eternal State good Reason hath the Law to appoint the number of 12. to try our temporal The Tribes of Israel were 12. the Patriarchs were 12. and Solomons Josh 4. Genes 49. Officers were 12. 1 Kings 4. 7. vide Sir Hen. Spelman verb. Jurata Therefore not only matters of fact were tryed by 12. but of ancient time 12. Judges were to try matters in Law in the Exchequer Plow Com. in prooemio 12 Judges Chamber and there were 12. Counsellors of State for matters of State And he that wageth his Law must have 11. others with him which think he says true And the Law is so precise in this number Less than 12 in Inquests of Office of 12. that if the Tryal be by more or less it is a Mis-tryal But in Inquests of Office as a Writ of Wast there less than Finch 400. 484. 12. may serve F. N. B. 107. c. and in Writs to inquire of Damages the just number of 12. is not requisite for they may be over or under And so it was resolved Trin. 1651. B. R. Abbot vers Holt that the Sheriff ought in Writs of Inquiry to summon 12. by their names yet Inquest of Office Vide hic cap. 13. Damages assessed by a less number is sufficient and in the Writ to the Sheriff quod ipse inquirat per Sacramentum pro borum hominum omitting duodecem it s good and usual And in a Writ of Inquiry of Waste by 13. it was holden Good 1. Cro. 414. In Dower if the Tenant come at the Grand Cape and say he was always ready to render Dower and issue is taken upon this although seisin of the Land be presently awarded yet no Inquest of Office but the Jury upon the Tryal of the issue shall assess Damages 22 E. 3. 15. In what cases there shall be an Inquest of Office and in what not see Rolls tit Tryal 595. And although there can be no Verdict Why the Sheriff returns 24. but by 12. yet by ancient course and usage which as my Lord Cook tells you makes the Law in this Case 1 Inst 155. the Sheriff is to return 24. And this is for expedition of Iustice for if 12. should only be returned no man should have a full Jury appear or sworn in respect of Challenges without a Tales which should be a great delay of Tryals And for this cause at Common Law 't was Error if the Sheriff returned less than 24. But now it is remedied by the Satute of 18 Eliz. as a mis-return see Cro. 1 part 223. li. 5. 36 If the Sheriff return less than 24 it is no Error 37. By which Books it appears that if the Sheriff return but 23. c. it shall not vitiate the Verdict of 12. No though a full Jury do not appear so that the Tryal is by ten of
ancient Who are to be exempted from Juries Demesne Ministers of the Forest out of the Forest Coroners Infants under the age of 14. years Officers of the Sheriff sick decrepit men and such as are exempted by the Kings Charter yet in a Grand Assise preambulation Attaint and in some other special Cases such men as are not exempted by reason of their Dignity shall be forced to serve notwitstanding their exemption in other Cases Sée Daltons Office of Sheriffs fol. 121. 52 H. 3. cap. 14. 2 Inst 127. 130. 378. 447. and 561. Counsellors Attorneys Clerks and other Ministers of the King Courts are not to serve on Juries But I find one Jury made of Attorneys of the Common Bench and Exchequer in a Case brought upon a Bill in the Exchequer by Sir Thomas Seton Iustice against Luce C. for calling A Jury of Attorneys of him Traytor in the presence of the Treasurer and Barons of the Exchequer And this Jury of Attorneys gave the Justice one hundred marks Damages 30 Assise 19. The Court frequently order a Jury of Merchants to try Merchants Affairs If the Charter of exemption be that he In what cases they shall be discharged by Charter shall not be put in Juratis Assisis seu recognitionibus aliquibus yet this shall not excuse in a Writ of Right upon Tryal of the Grand Assise for he comes not in in this Case by such Process as in other Cases but is chosen by the Oath of the 4 Chivaliers and now he is in a manner Iudge in this Case 39 E. 3. 15. Neither shall it exempt him in an Attaint nor in a Grand Inquest to inquire of Felonies c. because the Charter hath not this Clause Licet tangat nos haeredes nostros 42. Ass 5. At the Nisi prius the Bayliffs of a Vill. A◠what time and how the Charter shall he allowed may shew a Charter that to try contracts ◠within the Vill. the Inquest shall be all of Denizens without Foreigners and this shall be allowed and the Foreigners shall be ousted 29. Assise 15. So may the Burgesses who are put upon a Jury out of the Borough if they have such a Charter 30. Assise 1. If a man be Impannelled of an Inquest Allowed without Writ and shew such Charter of exemption of the same King in whose time he shews it this ought to be allowed without Writ 39 E. 3. 15. Rolls ib. 633. 4. De vicinet de C. It is not sufficient that they dwell in the County but they are to be of the Neighbourhood Nay le plus procheins Visne to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ib. as I shall shew hereafter 5. Quorum quilibet habeat quatuor libras Sufficiency of Jurors terrae tenement vel reddit per annum ad minus This is their sufficiency where the debt or Damages or both together 1 Inst 272. amount to 40 Marks or above The sufficiency of Jurors in other Cases of lesser moment is still left to the discretion of the Iustices Fortescue cap. 25. who experience tells us never require Jurors under 4 li. per annum according to the Statute of 27 Eliz. cap. 6. before which men of 40. s. per annum served But neither this nor the Stat. of 35 H. 8. extend to Juries in Cities Towns Corporate or other priviledged places or in the 12. Shires of Wales so that there they shall be returned as before they lawfully might have been for the Jurors sufficency in Attaints see the Statutes 15 H. 6. 5. 18 H. 6. 2. and 13 H. 8. 3. As to the Statute 35 H. 8. 6. The tryal ordained by that Statute lyes only in such actions which have their ordinary tryal by 12. men and not more and by Writ of Nisi prius and this only in those actions in which the Process of Venire facias Habeas Corpora and Distringas lyes against the Jurors and in no other actions And although the Statute only mention the Tryal of issues joyned in the Kings Courts commonly holden at Westminst and if the action be commenced in any other Court yet if the Issue be joyned in any of the Courts at Westminster it shall be tryed according to the said Statute and so if those Courts are removed from Westminster the issues joyned in them shall be tryed as the said Statute directs And the words betwixt party and party shall only be intended of Common persons and not betwixt the King and any other person nor when the King joyns with any other person in any action which by his release or pardon may be discharged before the action brought Which is necessary to be known in respect of Tales de circumstantibus c. See Williams his reading upon this Statute lately come out in print In which are many ingenious speculations but because they do not come often in practice and the project of this Treatise is only to contain matters useful for practicers that the Book may not swell too big I omitt them referring you to the reading it self See afterwards in the Chapter of Challenges It is the General course of the World to estéem men according to their Estate For Quantum quisque sua nummorum servat in arca Tantum habet fidei And sure I am the makers of this Law had cause enough to do so in this Case for if men of less Estates should serve in Juries such Fellows would only be shifted into Inquests as had more need to be relieved by the 8 d. than discretion to fift out the truth of the fact 'T is hard to get an unbyassed Jury now But surely less rewards would sooner bribe and byass meaner men than these Therefore lest poverty or necessity should tempt Every Juror must have 4 li. per annum as aforesaid of Free-hold out of Ancient Demesne And the Court may Jurors of above 4. l. per annum in matters of great consequence direct a Venire facias for a Jury of above 4 l. per annum a piece but not under Cro. 2. part 672. But in such Cases every one knows the Court most Commonly orders the Protonotary to chuse 48. out of the Sheriffs Book of Free-holders of the most substantial men in the County and the parties strike out 12 a piece then the Sheriff returns the rest Note in former times when Estates of inheritance were in few mens hands such Jurors of 20. per annum as had 40. s. per annum were found sufficient men to serve on Juries After Estates of inheritance coming in greater measure to the Vulgar it was by the said Statute 27 Eliz. cap. 6. made 4. l. per annum and the same reason improving in late times it was thought consisting with the wisdom of a Parliament to raise it to 20. l. per annum to the end mens Estates might be trusted in the
Juror shall be drawn in favour to the life of man And yet in a Prâ—cipe quod reddat by two and the Tenant challenge the Array because the Sheriff is Gossip to one of the Demandants and one Demandant acknowledge the challenge the other may say that this is not so and have it tryed Rolls tit Tryal 662. c. In Gager de ley none shall be challenged Ley gager for favour or insufficiency c. If there be a challenge for Cosinage he Cosinage that taketh the challenge must shew how the Juror is Cousin But yet if the Cosinage that is the effect and substance be found it sufficeth for the Law preferreth that which is material before that which is formal If the Juror have part of the Land that Dependingon the same Title dependeth upon the same Title If a Juror be within the Hundred Leet or any way within the Seigniory immediately or mediately or any other distress of Distress either party this is a principal challenge But if either party be within the distress of the Juror this is no principal challenge but to the favour If a Witness named in the Deed be returned Witness of the Jury it is a good cause of challenge of him So if one within age Infant of one and twenty be returned it is a good cause of challenge Vpon his own Act as if the Juror hath Challenges arising from the Jurors own Act. 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 Former Verdict same Title or matter though between other persons But it is to be observed that I may speak once for all that in this or other like Cases 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 term So likewise one may be challenged that he was Indictor of the Plaintiff or Defendant Indictment either of Treason Felony Misprision Trespass or the like in the same cause If the Juror be Godfather to the Child of God father the Plaintiff or Defendant or è converso this is allowed to be a good challenge in our books If a Juror hath been an Arbitrator chosen Arbitrator by the Plaintiff or Defendant in the same cause and have been 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 Commissioner chosen by one of the parties for examination of Witnesses in the same cause is no principal cause of challenge 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 Arbitrator in another matter is no cause of challenge If he be of counsel Servant or of Robes Counsel or Fee or of either party it is a principal challenge If any after he be returned do eat and Eat or drink at the parties charge drink at the charge of either party it is a principal cause of Challenge otherwise it is of a Tryor after he be sworn Action brought either by the Juror against Actions of malice either of the parties or by either of the parties against him which may imply malice or displeasure are causes of principal challenge unless they be brought by Covin either before or after the return for if Covin 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. In a cause where the Parson of a Parish Parson and Parishes 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 Action where the right of the Church cometh not in question If either party labour the Juror and give To labour the Jury him any thing to give his Verdict this 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 with Fellow Servant either party is no principal challenge but to the favour Neither of the parties can take that challenge to the Polls which he might have had To the Polls to the Array Note if the Defendant may have a principal cause of challenge to the Array if the Sheriff return the Jury the Plaintiff in that Venire facias to the Coroners 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 when Challenges to the favour either party cannot take any principal challenge but sheweth causes of favour which must be left to the conscience and discretion of the Tryors upon hearing their evidence to find him favourable or not favourable But yet some of them come neerer to a principal challenge than other As if the Juror be of kindred or under the distress of him in the reversion or remainder or in whose right the Avowry or Iustification is made or the like These be in principal 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 Receipt 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 Favour are infinite and thereof somewhat may be gathered of that which hath been said and the rest I purposely leave the Reader to the reading of in our books concerning that matter For all which the rule of Law is that he must stand indifferent as he stands unsworn The Subject may challenge the Polls King where the King is party And if a man be out-lawed of Treason or Felony at the Suit of the King and the party for avoiding thereof alledgeth imprisonment or the like at the time of the Outlawry though the issue be joyned upon a collateral point yet shall the party have such
punishment is to this end Ut poena ad paucos metus ad omnes perveniat for there is Misericordia puniens and there is Crudelitaâ—parcens And séeing all Tryals of real personal and mixt actions depend upon the Oath of 12 men prudent Antiquity inflicted this severe punishment upon them if they were attainted of Perjury 1 Inst 294. But now by the Stat. of 23 H. 8. cap. 3. The severity of this punishment is moderated if the Writ of Attaint be grounded upon that Statute But the party grieved may at his Election either bring his Writ of Attaint at the Common-Law or upon that Statute Wherefore let the Juror expect the greatest punishment when he offends 3 Inst 163. 222. And so I conclude as to the Iuror only with the words of Fortescue Quis tunc etsi immemor salutis animae suae fuerit non formidine tantae poenae verecundia tantae infamiae veritatem non diceret sic Juratus Who then though he regard not his Souls health yet for fear of so great punishment and for shame of so great infamy would not upon his Oath declare the truth But as to our Practicer I would give this one further Advertisement which relates also to Iurors When a Verdict has been given by a former Iury in the same Cause and on the same Evidence it is allowed to give the former Verdict in Evidence and I have known this Introduced by the Counsel as obliging to the latter Iury to find accordingly intimating that otherwise they do in effect perjure the former 12 men which may amuse render minds and draw them from the strict Inquiry into the Merits of the Cause in favour of their Predecessors which is a palpable mistake and misinformation for these Reasons 1. The same Evidence in the former Cause and Tryal perhaps was not so perspicuously delivered as in this 2. This latter Iury may be of more sagacicus and Comprehensive Iudgment than the former 3. The Directions of the Court which the Iury most héed may be more clearly delivered to this Iury. 4. The Matter in Contest perhaps was not in the former Tryal so clearly manag'd by the Counsel being not so well instructed as afterwards 5. And laâ—â—ly supposing the Evidence equally deliuered by the Witnesses apprehended by the Iury directed by the Court manag'd by the Counsel yet it 's no perjury or fault to differ in Iudgment for if 24 Iurymen were to try a Matter of Fact and 12 were of one Opinion and 12 of another who is in fault while they Iudge according to the best of their Knowledge and Skill to which only they are sworn And it 's a reasonable kindness to Iury-men to make good Construction of differing Iudgments among them while we sée how oft Iudges themselves differ in their Opinions on a matter stated equally to them all and that not only as to matter of Law but as to matter of Fact as attending Practicers may observe in Tryals at Earr in the several Iudges several Directions And this I thought good to advertise for that I have known Verdicts gained on this unwarrantable Suggestion against clear and express Evidence and could instance some Cases Sed verbum sat c. As to the difference betwixt the Judge and the Jury and that Question which has made such a noise viz. Whether a Jury is fineable for going against their Evidence in Court or the Direction of the Judge I look upon that Question as dead and buried since Bushel's Case in my Lord Vaughan's Reports yet some of the Ashes thereof I may sprinkle here without offence It doth appear there to have béen resolveâ— by all the Iudges upon a full Conference at Serjeants-Inn That a Jury is not fineable for going against their Evidence where an Attaint lyes And that it is Evident by several Resolutions of all the Iudges That where an Attaint lyes the Iudge cannot fine the Iury for going against their Evidence or Direction of the Court without other Misdemeanour And where an Attaint doth not lye as in Criminal Causes upon Indictments c. My Lord Vaughan says these words That the Court could not Fine a Jury at the Common Law where Attaint did not lye I think to be the clearest Position that ever I considered either for Authority or Reason of Law And one reason for this which can never be answered is The Iudge cannot fully know upon what Evidence the Iury give their Verdict for they may have other Evidence than what is shew'd in Court They are of the Vicinage the Judge is a Stranger they may have Evidence from their own personal knowledge that the Witnesses speak false which the Iudge knows not of they may know the Witnesses to be stigmatised and infamous which may be unknown to the Parties or Court And if the Iury knew no more than what they heard in Court and so the Iudge knew so much as they yet they might make different Conclusions as oftentimes two Iudges do and therefore as it would be a strange and absurd thing to punish one Iudge for differing with another in Opinion or Iudgment so it would be worse for the Iury who are Judges of the Fact to be punished for finding against the Direction of him who is not Iudge of the Fact But he that would be better satisfyed in this point may read that Case and the Authorities and Reasons given by my Lord Vaughan whom I must honour as a man of great reason It is shewed in that Case That muth of the Office of Jurors in order to their Verdict is Ministerial as not withdrawing from their fellows after they are sworn not receiving from either side Evidence after their Oath not given in Court not eating and drinking before their Verdict refusing to give a Verdict and the like wherein if they transgress they are Fineable But the Verdict it self when given is not an act Ministerial but Judicial and according to the best of their judgment for which they are not fineable nor to be punisht but by Attaint Nor can any man shew That a Jury was ever punisht upon an Information either in Law or in the Star-Chamber where the Charge was only for finding against their Evidence or giving an untrâ—e Verdict unless Imbracery Subornation â—r the like were joyned But the Fining and Imprisoning of Jurors for giving their Verdicts hath several times béen declared in Parliament an Illegal and Arbitrary Innovation and of dangerous Consequence to the Government the Lives and Liberties of the People This celebrated tryal by Iuries having béen confirmed by many Parliaments Littleton Sect. 368. tells us That as the Iury may find the matter at large that is a Special Verdict which the Court cannot refuse if it be pertinent to the matter put in Issue and leave the Law to the Court so if the Iury will they may take upon them the knowledge of the Law upon the matter and may give their Verdict generally as is put in their Charge As