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
if it be alledged in a Ward in the City of Bristol c. the Venue shall be of the Ward not de Civitate A Venire facias was awarded from T. Ward and not de vicinet de T. and for this cause resolved to be ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the issue be Si rex concessit per literas De vicinet left out ill patentes The Tryal shall be as hath been said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed Where the Land lies it shall be tryed by the Record and therefore the issue being upon non concessit the issue is not upon the Patent but where the issue is upon non concessit or non dimisit of a thing which passeth by Deed the Tryal shall be where the Grant or Demise is alledged But of a Feoffment or Lease for life pleaded the issue being non Feoffavit or non dimisit Livery ought to be made and therefore the Tryal shall be where the Land lies Cro. 2. part 376. 3. part 259. Where the offence is laid in the Count Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is to be in one County and the Iustification in another County and the Plaintiff replies de injuria sua propria c. The Visne shall be where the Iustification is alledged As one Example for all to illustrate In an Action upon the Case for words supposed to be spoken at Bridg-North in the County of Salop the Defendant pleads that he spake them as a Witness upon his Oath upon an issue tryed at Chard in the County of Somerset The Plaintiff replies de son tort demesne c And thereupon it was tryed by a Venire facias of Bridg-North And Error thereof assigned because it ought to have been by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryal and not aided by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. Replevin taking 2 Horses at such a place in Denford in Com. Northampton the Defendant makes Conâ—sans as Bayliff to the Lord Mountague of his Mannor of S. which Mannor is holden of the Honour of Gloucester and that the place in which c. is within the said Honour and alledges a Custome within the said Honour on which Custome the parties were at issue and the Venire facias was from Denford the place of taking which was moved after Verdict for that the Venue was not so large as the issue which was the Honour and of this opinion was the whole Court of C. B. Pasch 13 Car. 2. Hull vers Bâ—nning But the great question was whence the Venue should arise in this Case and per Bridgman Ch. Just and Just Hide in no Case can a Venue arise from an Honour and Ch. Just said he had caused the Prothonotaries to search for Precedents and they Honours could not find that ever a Venue did arise from an Honour which is but a bundle of services and an incorporeal thing from which no Venue can come and yet an Honour may have demesns as the Honours of Grafton and Hampton have but Gloucester not Ch. Just and Just Hide seemed that the Venue should be de Corpore Comitat. Hob. 266. 249. But when the Court was after moved for their opinion they bad them take a Venire facias at their peril and would give no opinion An action of Debt was brought on a Bond to perform Covenants in an Indenture wherely the Defendant had granted to the Plaintiff a walk called shrob-walk in the Forest of in Com Northampton and Covenanted for peaceable in joyment c. and he was ousted per Earl of Northampton who had right on which Right issue was joyned and the Venire facias was from Shrob-walk Per Cur. It 's not good for it appears by the Record that Shrob-walk is not a Vill but if the Obligation had been laid to be made at Shrob-walk the Venue should arise from thence as a Vill. Inter. Stirt Bales Pasch 19 Car. 2. B. R. The Venue shall follow and be according Out of what County to the issue As for words in Warwick-shire Thou art a Vide â—ic ante postea Thief and stolest my Iron The Defendant justifies says the Plaintiff stole the Iron in Leicester-shire and brought it into Warwick-shire and therefore he spake the words in Warwick-shire If the Plaintiff replies de injuria sua propria absque tali causa the Jury shall come from Leicestershire to which the absque tali causa refers for the words are acknowledged See Rolls tit Tryal 598. 623. When part of the matter to be inquired of is in one County or place and part in another the Tryal shall be there where the best Conusans of the matter may be As in an action upon the Case the Plaintiff declares that the Defendant took the From the place best known Horse of A. at S. and sold him at D. to the Plaintiff as his proper Horse and afterwards A. retook the Horse If the Defendant plead that the property was in him at the sale upon which issue is ioyned The Venue shall be de S. where the taking is supposed for there the property may be best known which is only in question 42. Ass 8. see several cases in Rolls ib. 603. under this head If the issue be whether L. did ride from London to York and from York to London Where the Counties cannot joyn 5 times in six days this may be tryed by London only Although part of the matter to be inquired of was done in each County In an action of Battery in London if the Defendant justifies in defence of his possesâ—on in D. in Essex and the Plaintiff says de son tort demesn sâ—ns tiel cause this ought to be tryed by both Counties if they might joyn because he may be found guilty at another day and therefore because they may not joyn this may be tryed in Essex Of Assises in confinio Com. See 1 Inst 154. In case for words in one County if the Defendant justifie in another County and the Plaintiff reply de son tort demesn c. although the Counties ought to joyn if they could and the Iustification is principally put in issue yet the Tryal may be in either County at the Election of the Plaintiff In Ejectment in London upon a Lease Rolls tit Tryal 620. made there of Land in Mid. if the Defendant plead not guilty this may be tryed in London because the Counties cannot joyn although London cannot joyn with another County 49 E. 3. 20. the Jury ought to enquire of the Ejectment in Mid. and judgement affirmed in a Writ of Error See Rolls tit Tryal 602. Two Counties may
sic e converso and so although the son be dead for the spiritual affinity remains and so is Curat of the Juror That the Juror hath married the Sister of the party That the Daughter of the Vncle of the Juror hath married the Vncle of the party Cousin to the Wife of the party These are good challenges although the Wife c. is dead if her issue be alive otherwise if she be dead without issue for then the cause of the favour is determined But 't is no challenge to say the Juror is Brother to one who married the Sister of the party nor that the Son of the party married the Sister of the Juror because these are not parties to the action In Attaint 't is a good challenge to the Juror that he hath married the Sister of the Wife of one of the petit Jury for the Alliance If a Juror declare the right of one party Principal for favour or give his Verdict before hand or take money this is a principal challenge But if he promise a party this is not a principal challenge but for favour If the Action depending betwixt the party Principal for malice and Juror be such as implyeth malice this is a good challenge but not if it imply no malice That the party hath an Appeal depending against the Juror or the Juror against him or Action of Battery That they are in debate and wrangling c. are good challenges Not actions of Debt or Trespass Quare clausum fregit c. Nor that the brother c. of the party hath actions against the Juror That the Juror was born out of the Kings Peremptory Ligeance for although he came into England an Infant and is sworn to the King yet he continues an Alien and that he is Alien outlawed for then he is not legalis homo are good challenges If the Juror says that he will pass for one For favour party because he knows the verity of the matter this is no challenge But if he says 't is for favour 't is a good challenge if the Tryors find he spoke for favour and not for truth In an actioon betwixt the King and a party King the Subject cannot take any challenge for favour as in an Indictment of Barretry c. the Defendant cannot challenge a Juror for favour to the King If the Record be in the same Court it How Challenges shall be taken of a Record need not be shewn but if it be in another Court it ought to be shewed or else 't is no principal challenge After the Array is affirmed there shall At what time they may be taken not be such challenge to a Juror which would have been a sufficient challenge to the Array As 't is not a good challenge that the Juror was impannelled at the denomination of a party for this had been a good challenge to the Array If a man challenge a Juror for non-sufficiency of Freehold and this is adjudged against him yet he may challenge for favour And this shall be tryed 10 H. 6. 18. If the Jury upon finding of the principal do not tax the Damages for which a Venire facias issues to the same Jurors to tax the damages the parties cannot take any challenge for a cause before the first Tryal But for a cause arising after they may And so against les primer Jurors The King cannot challenge a Iuror after King he is sworn unless it be for a Cause arising after he is sworn If the Defendant challenge the array In what cases he which challenges ought to shew the cause presently which is found against him or he release the challenge and the array is affirmed and afterwards he challenge a Iuror he ought to shew the cause presently But if there be two Defendants and one challenge the array and afterwards both challenge a Iuror the other shall not shew cause presently If any of the Iurors be sworn and there be not sufficient for which a Tales is granted and at the return one of the primer Iurors is challenged the cause ought to be shewed presently he being sworn before In an action between the King and a King common person as in an Indictment of Barretry presentment of nusance c. the Defendant if he challenges any Iuror must shew the cause presently But in an Inquest betwixt the King and a stranger the stranger need not shew the cause presently For in this case the King is as a common person of the Realm Cause ought to be shewed before the Tales be perused If both Parties challenge although for several causes as if one be for favour and Treat the other peremptory yet the Iuror shall be drawn without shewing cause It may be in an Inquest before the Sheriff In what Inquest a Challenge may be to enquire of waste both to the Array and Polls But not in an Inquest of Office as in a writ of inquiry of damages In a writ of Right a challenge may be to the Polls del 4 Chivalers return Not of Cosinage to the witnesses coming to try the deed in an Assise If one party challenge the Array which Tryal and Tryors of Challenges is affirmed and afterwards challenge a Iuror he ought to shew cause presently and this shall be tryed presently but otherwise of the other who did not take the Challenge to the Array The challenge of him who first challenged shall be first tryed Although the first be for favour and that of the others be riens deins H. If the Venue be of two Counties and both Pannels challenged the Esliors shall be one of one pannel and the other of the other If the array be challenged the Court to try the array may chuse two Tryors according to their discretion 20 Ass 15. 19 H. 6. 9. If an action be depending between the Juror What challenge they may try and one of the parties and for this he is challenged and the other says that this is brought by Covin the Tryors may try this for although the action is of record yet the Covin is not The Juror may be examined upon a voier Evidence dire to any challenge that is not to his dishonour but the Tryors are not bound by his Oath The tryors after they are sworn may go at large by assent of the parties until another day In trespass against two who plead to In what cases a challenge or affirmance by one shall serve for others issue and a Venire facias is returned although one accept the Array yet the other may challenge it and if it be found the Array shall be quashed against all So in an Appeal against Principal and Accessory for one shall not disinherit the other But in an Appeal by two if the Defendant challenge a Juror and one of the Plaintiffs agree to this the other shall not be received to say that this is by Covin but the
abate Littleton Sect. 485. Also in a Writ of Trespass for Battery The Verdict may find the Defendant guilty of the Trespass at another day or place or for Goods carried away if the Defendant plead not guilty in manner as the Plaintiff suppose and it is found that the Defendant is guilty in another Town or at another day then the Plaintiff suppose yet he shall recover So the Iury may find the Conspiracy at Conspiracy another day for the day is but form In Battery if the Defendant justifie at Battery another day with a Traverse Devant apres he may be found guilty at another day If the Defendant by this Plea agrée with Son assault Demesn the Plaintiff in the day year and place and the Plaintiff reply De son tort demesn sans ties cause and the Defendant prove an Assault by the Plaintiff the Plaintiff shall not give in Evidence a Battery at another day Rolls tit Tryal 687. Vide devant cap. 11. And so in many other cases these words scil in manner as the Demandant or the Plaintiff hath supposed do not make any matter of substance of the Issue Littleton Sect 485. And 't is a Rule That where the Issue taken Modo forma when words of form goeth to the point of the Writ or Action there Modo forma are but words of form as in the cases aforesaid But when a Collateral point in pleading When of substance must be found by the Verdict is traversed as if a Feoffment be alledged by two and this is traversed Modo forma And it is found the Feoffment of one there Modo forma is material So if a Feoffment So in non assumpsit modo forma upon an Indebitatus assumpsit there modo forma were not material Secus when the Action is upon a Collateral promise be pleaded by Deed and it is traversed Absque hoc quod feoffavit Modo forma upon this Collateral issue Modo forma are so essential as the Jury cannot find a Feoffment without Déed Co. Littleton 282. But here is a diversity to be observed That albeit the Issue be upon a Collateral point yet if by the finding of part of the Issue it shall appear to the Court that no such Action lyeth for the Plaintiff no more than if the whole had béen found there Modo forma Trespass Quare vi armis lies not against the Lord for distraining his Tenant without cause are but words of form as in the aforesaid case of the Lord and Tenant it plainly appears for it was all one whether the Tenant held by fealty only or by fealty and Rent because if either was true the Tenant could have no Trespas Quare vi armis against the Lord in that case by the Statute of Marlbridge cap. 3. Vide hic Devant After the Verdict recorded the Jury cannot Jury cannot Vary from their Verdict when it is recorded not vary from it but before it is recorded they may vary from the first offer of their Verdict And that Verdict which is recorded shall stand 1 Inst 227. Plo. Com. 212. There is also a Verdict given in open Court and a privy Verdict given out of Court before any of the Iudges of the Court Open Verdict and privy Verdict so called because it ought to be kept secret and privy from each of the parties before it be affirmed in Court Because the Jury may vary from their The Jury may vary from a private Verdict private Verdict as if that find for the Plaintiff the open Verdict may be for the Defendant and this shall stand and the private Verdict shall not be deemed a Verdict for the Jury are charged openly in Court and in Court their Verdict ought to be received and this which they pronounce openly in Court shall be adjudged their Verdict And although it is usual to take the Verdict secretly when the Jurors are agreed yet this is not of necessity of Law but of courtesie of Law for the ease of the Jurors and in this case their saying shall not be their Verdict till it is openly pronounced in the Court for when they come in the Court the Plaintiff shall be demanded and then may be non-suited But when they give their Verdict secretly the Plaintiff is not demandable nor can be then non-suited but he may be non-suited when the Verdict of right ought to be rendred Ergo the force is in the giving of the Verdict in the Court and not elsewhere And also in the Court it self if they pronounce Bro. tit Verdict 12. their Verdict they may change it if they be mistaken or it be not full in Law or for some other reasonable cause immediately perceived Therefore if they may vary and contradict their first Verdict given in open Court A fortiori upon better advisement they may do so when their first Verdâ—ct was given out of Court and they not discharged for they be in the Custody of the Baily till they be discharged in Court Plo. Com. 211. More 33. The Jury having once given their Verdict Jury shall give but one Verdict in the same cause although it be imperfect shall never be sworn again upon the same Issue unless it be in case of Assise when the party is to recover by view of the Jurors But there must be a Venire facias de novo Cro. 2. part 210. If a Verdict be good in part and naught Verdict good in part in another part it shall stand in part and a new Inquest shall be for the rest Bro. tit Verdict 89. For the Juries direction in their Verdict What permitted in Pleading for the Juries direction in their Verdict greater liberty is permitted in pleading a matter doubtful in Law for a Traverse for this Reason may be omitted As in debt against an Executor It is a good plea to say Administration was committed to him and therefore he should be named Administrator and not Executor without traversing that he is not Executor for the lay-people know no difference betwéen one administrating as Executor and one administrating as Administrator 9 E. 4. 33. For this Reason likewise the special matter may be pleaded together with the general Issue c. As that the Obligation put in suit was sealed by him and delivered to A. to kéep till certain Indentures were made A Special non est factum betwéen the Plaintiff and him before which Indentures made the Plaintiff took the Obligation out of the possession of A. so is not his Déed This is good and yet by this general conclusion the matter precedent shall not be waved for it were perillous to put the special matter in the mouth of Lay-people 9 H. 6. 38. Damages * Where the Issue upon a collateral Matter is tryed in a foreign County Hundred c. where the Principal and Accessary shall be tryed In Trespass
but by one of the Coroners or for affinity in one c. Yet the Process shall still go to the Coroners Ita quod the Coroner se non intromittat If Default be in the Sheriff and To whom Process shall be directed for default in the Sheriff and Coroners Coroners the Court may choose two Esliors and if the parties can say nothing against them they shall make the Pannel But the Distringas shall not be directed to Esliers for the Court cannot make Officers to distreyn the Kings Liege people but the King may 8 H. 6. 12. dubitatur Process may be directed to the Justices of Assise by assent of parties not without When a Pannel is made by the Esliors they shall afterwards serve all Process that comes upon this as the Sheriff should 15 E. 4. 24. 18 E. 4. 3 8. Rolls tit Tryal 670. For it may be the Sheriff will distreyn only those who are his friends and be partial When the Process is once awarded Venire facias once directed to the Coroners shall not be to the Sheriff afterwards to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. Bro. tit Venire facias 17. So the Entry is Ita quod Vicecomes se non intromittat 18 E. 4. 3. 8 H. 6. 12. And therefore where the Sheriff ought Sheriff shall not return the Tales where he cannot the Venire facias not to retorn the Venire he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner and afterwards a Tales was awarded and it was retorned by the Sheriff and it was tryed and a Verdict given and Iudgement And for this cause held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 3. par 574. Bro. tit Octo. Tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and Where the Coroner returns the Venire facias he ought to return the Tales after Verdict it was moved in Arrest of Iudgement that the Tales de Circumstantibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgement For it is a mis-tryal not aided by any of the Statutes for process being once awarded to the Coroners the Sheriff afterwards is not the Officer to return the Jury no more than any other man And process ought always to be returned by him who is an Officer by Law to return it otherwise it is meerly void But afterwards upon view of the Record it appeared that the Tales was returned by the Coroners and their names annexed thereto wherefore it was without further question But the Court said if their names had not been annexed No name to the Return to the Tales yet it had been well enough for they be annexed to the first Pannel And it shall be intended that the right Officer return'd it and the usual course is That to such Tales there is not any officers name subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed but it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgement But if the Venire be awarded to the Coroners Venire facias to the Sheriff after one awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time or else to Esliors sice converso In Error of a Iudgement in Chester Venire facias to the Coroners after one to the Sheriff the parties being at issue a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vicecomes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cozenage betwixt him and the Sheriff which was awarded accordingly and at the day of tryal the Defendant made default and there upon Iudgement Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not material Cro. 3. part 853. But the Defendant might have demurred No Venire facias to the Coroners after one to the Sheriff to this prayer For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the Array nor have a Venire afterwards to the Coroners because the Sheriff is his Cousin or for any other principal challenge whereof he might by common intendment have Conusance when he so prayed the Venire facias for upon shewing this Cause at first he might have prayed Process to the Coroners but for a principal challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Sheriff c. he may afterwards challenge the Array when they appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to If the Defendant denies the Planitiffs suggestion he shall have no benefit of it by Challenge the Coroner because he is of kindred to the Sheriff if the Defendant will not confess this but denies it this shall be entred and the Defendant shall not challenge the Array for this cause afterwards Br. tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryal without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff
in the Court. And their names The names of the Jurors must be returned into the Court before any Tryal and why must be returned upon a Pannel annexed to the Venire facias so that either party may have a Copy of the Iury that he may know whom to challenge And the Iury not coming upon the Venire facias make a feigned default which warrants the Distringas c. unless they appear at the day of the Nisi prius So that by what hath been said you It is in the Courts discretion whether to grant a Nisi prius or not may perceive to what purpose the Sheriff is commanded to cause the 12. men to come to Westminster though the Tryal be in the Country And that ad faciend quandam Juratam because it is in the discretion of the Court whether to grant a Writ of Nisi prius or to have a Tryal at the Bar. And for this the Duke of Exeter being Plaintiff in Trespass a Nisi prius was prayed for the Duke and it was denyed for that the Duke was of great power in that County And if the Tryal should be had in the Country inconvenience might thereupon follow as you may read 2 Inst 424. and 4. Inst 161. Nay in some Cases as if the Cause require long examination c. it is not in When the Court cannot grant a Nisi prius the power of the Court to grant a Nisi prius if the King please For in such Cases as it appears by the Writ in the Register 186. the King by his Writ may restrain and command the Justices that they shall not award any Writ of Nisi prius and if they have that they supersede it F. N. B. 240. 241 No Nisi prius shall be granted where the King is party without especial Warrant from the King or the Attorney Where the King is concerned Generals consent Stamf. 156. F. N. B. 241. 4 Inst 161. In a praecipe quod reddat if the Tenant after aid of the King pleads to the Inquest the Plaintiff shall not have a Nisi prius because the Tenant hath aid of the King and so the King is in a manner Party 25 E. 3. 39. Neither is a Nisi prius to be granted if any of the parties may have prejudice by it If the Iustices de Nisi prius die before Certification of Verdicts the day in Bank yet the Record shall be received from the Clerk of Assise without a Certiorari or other form of entry but the antient form Also in that Case a Certiorari may be directed to the Executors or Administrators of the Iustices to certifie the Record D. 4 5 Mar. 163. 55. Rolls tit Tryal 629. They have no power to increase Damages What things the Justices of Nisi prius may do nor to allow or disallow protections nor to allow a Plea of Excommengement in the Plaintiff But they may record the protection and the default and this shall be allowed or disallowed in B. They may demand the Iurors upon a Jurors sur paine fine Pein they may amerce Iurors and punish a Trespass done in their presence which is in despite of the King and for this make Process and may fine Offenders In Ejectment the Defendant may plead at the Assises that the Plaintiff hath entred into parcel of the Land mentioned in the Declaration puis le darrein continuance and the Plea puis darrein continuance Iustices of Nisi prius may accept this Plea But it is in their Election for if they perceive the Plea is dilatory they may refuse it for it is in their discretion Sir Hugh Browns Case in Scaccario Mich. 8 Jac. Rolls tit Tryal 630. If 11 Iurors be sworn and the 12th The power of the Judge upon disagreement or other matter is challenged and the Iurors cannot agree in the challenge for 10 affirm the challenge and the other denies it although the party which did not take the challenge will not agree that the Eleven sworn shall Challenge have another to them in the lieu of him that is challenged yet the Court may do this If a challenge be taken to the Array before any Iuror is sworn and Triors be chosen who cannot agree yet they shall not be commanded in Custody because they never were sworn upon the principal But the Court may discharge them and chuse others If there be three Triors who will not agree the Court cannot take the Verdict Jurors discharge of two and command the other to prison The same Law in case of a Verdict upon an issue Where 14 Iurors are impannelled for the King the Judge cannot discharge any of them after they are sworn if not that they will not agree with their Companions If the Iury say upon demand of the Amencement Court that they are agreed and afterwards when they are opposed they say the contrary in any matter they may be amerced for this Rolls tit Tryal 675. And now since the Nisi prius for so it is Nisi prius why so called called because the word prius is before venerint in the Distringas c. which was not so in the Venire facias upon the Statute of W. 2. cap. 30. before rehearsed must not be in the Venire facias because the names of the Iurors are to be returned to the Court before the granting of the Nisi prius therefore the Nisi prius is now in No Nisi prius before the Venire facias is returned the Hab. Corp. and Distringas And if the Sheriff return not a Pannel of the Iurors upon the Venire facias there shall be no Nisi prius upon the Tales until a Pannel be returned 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales A Tales is a supply of such men as were The Tales at Common Law impannelled upon the Return of the Venire facias grantable when enough of the principal Pannel to make a Jury do not appear or if a full Jury do appear yet if so many are challenged that the residue will not make a Jury then a Tales may be granted And this at Common Law was by Writs of Decem tales Octo tales c. out of the Kings Courts one of them after another as there was néed untill there was a full Jury But now by the Statutes of 35 H. 8. 6. 4 5. P. M. 7. 5 Eliz. 25. and 14 Eliz. 9. The Iustices of Assise and Nisi prius Tales by Statute at the Request of Plaintiff or Demandant Defendant or Tenant or of the prosecutor tam quam if two more or but one of the principal Pannel appear at the day of Nisi prius may presently cause a supply to be made of so many men as are wanting of them that are there present standing about the Court and hereupon the very Act is called a Tales de circumstantibus Note the difference between Tales
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
and if they are laid out of the proper County dayly practice tells us the Court may alter the venue upon Affidavit of the true place of the fact All Criminal matters are to be tryed Criminal matters where the offence is committed If the Venue arise in two Counties This is called a Joynder of Counties Finch 410. Jury out of two Counties the Jury upon 2. Venire facias shall come from both 6 out of one County and 6. from the other Cro. 3. part 646. but by consent of parties entred upon Record it may be by 5. out of one and 7. from the other as appears Cro. 3. part 471. where in Replevin the Defendant avows for Damage But out of more than two Counties it cannot be made fesant The Plaintiff by his Replication claims common by Prescription in loco quo c. being Broadway in the County of Worcester appurtenant to his Mannor of D. in the County of Gloucester and issue thereupon and 2 Venire facias awarded to the Sheriffs of the several Counties and now 7. of the County of Worcester appeared and 5. of Gloucester And although there ought to have been 6. sworn of each County to try that issue as appears 49 Ed. 3. 1. 31 H. 8. 46. yet by the assent of parties those 12 who appeared by advice of all the Justices were sworn and tryed the issue And it was commanded that this Assent should be entred upon Record for otherwise it would be a strange Precedent In an Assise of Common in Confinio Comitatus and the issue be whether he had Common by prescription in Land in one County appendant to a Mannor in another County this shall be tryed by both Counties The same Law is in Trespass brought in one County which cannot be in confinio upon such an issue the Tryal shall be per ambideux Counties 49 E. 3. 20. See Rolls tit Tryal 599. c. many cases where the Jury shall come from two Counties In an Action upon the Statute of Marlebridge for taking a distress in one County and chasing in another County upon not guilty the Tryal shall be only by the County where the chasing is for this is all the cause of the action 4 H. 6. 4. In Escape upon an Arrest in one County Escape and an Escape in another County upon not guilty this shall be tryed where the Escape is laid for the action is upon the Escape Rolls ib. 602. In an Action of Trover apud Paxton in Covenant in P. to sell at R. tryed at P. Com. Hunt the Defendant pleads a Bargain and Sale apud Royston in Com. Hertford in the Market there whereby he after converted them apud P. in Com. Hunt The Plaintiff saith that he was possessed of those Goods apud P. in Com. Hunt and that J. S. there stole them from him and by Covenant betwixt him and the Defendant at P. in Com. H. he sold them to the Defendant as he hath pleaded The issue was upon the Sale made by Covenant c. And it was tryed in the County of Hunt and found for the Plainâ—ff And it was moved to be a mis-tryal for it ought to have been by a Jury of the County of Hertford or at leastwise by a Jury of both Counties But it was adjudged to be well tryed because the Sale is confessed and the Issue is upon the Covenant alledged in Hertford Cro. 3. part 511. In Debt upon a Bond in London the Usurous Contract in another County Defendant pleaded an Vsurious Contract in the County of Warwick the Plaintiff replyed that the Bond was made upon good consideration Absque hoc that it was made for such Vsurious Contract the Tryal shall be in the County of Warwick for the Bond is confessed and the usury in Warwick is only in question so if the issue A Dures shall be tryed there not where the Action is brought be whether the Deed were made by Dures the Tryal shall be where the Dures and not where the Deed is supposed to be made Cro. 3. part 195. Where issue is taken upon a surrender Surender it shall be tryed where it was alledged to be done and not where the Mannor is of which the Copy-hold is holden ib. fo 260. Br. tit Visne 114. In an Assumpsit laid at London in Warda Ward or Hundred no good Visne de Cheape the Venire was De parochia de Arcubus in Warda de Cheape whereas no Parish was mentioned before in the Count adjudged that the Venire was ill laid in the Count for a Venire facias may be of a Town Parish Mannor or other place known but not of a Hundred or Ward ib. and so it is adjudged ib. Cro. 1 part 165. for the Ward in a City is but as the Hundred in a County The Parish in London is in lieu of a Vill and the Ward of a Hundred Roll. tit Tryal 620 621 622. vide hic apres Where the Visne is laid to be at a City City in an Action brought in a superior Court or within the City though it be both a City and County the Venire facias may be de vicinet Civitatis Lach. 258. Though it hath been held not good but that the Venire facias must be de Civitate leaving out Vicinet as you may read in Stamf. 155. But now the Case in Cro. 2. part 308. and Bulstr 1 part Rolls 622. 623. 129. say that all Venire facias's are awarded de vicinet Civitatis which is intended as well de Civitate it self as de vicinet infra Jurisdictionem So in all inferior Courts Stiles 2. March 125. of the City And so it is de vicinet Civitatis or de vicinet or de Civitate Coventry Eborum Norwich Sarum Bristow Exon and all other Cities which are Counties in themselves In all places besides London no London mention is made of the Parish or Ward Jb. 493. But in London the Parish and Ward is mentioned And therefore it was adjudged Cro. 2. part 150. That it was not good to alledge any thing done in London generally But it must be in what Parish from which a Venire may be But where a thing is laid in a City in alta Warda there and the Venire facias is from the City only it is well because City it shall be intended there be no more Wards in the same City Cro. 3. part 282. In an action against the Hundred upon the Hundred Statute of Winton c. upon the Roll the Venire facias is awarded of Bradley quod est proximum Hundredum and the Venire facias is generally of Bradley This is well because by the Roll it appears that Bradley and the Hundred were all one Roll. tit Tryal 598. If a thing be laid done apud Bristol viz. in Wardae Sanctae Mariae in Warda de Ratliff and the Venire facias is de Warda de Ratliff this is not good ib. 619. But
English County to cause the Jury to come de propinquiori Visne of his County to the Visne in Wales adjoyning For the Court shall not be ousted of the Plea Fitz. Abridg. tit Visne 8. Jurisdict 24. In an action against a Hundred the Venire facias may come from the next Hundred generally In Trespass if the Defendant plead not guilty to part and to the residue a Plea which causes the Tryal of that to be by a Jury de Prochein Hundred The Venire shall be awarded al Prochein Hundred for both issues because there ought not to be two Venire facias in one action vide Rolls tit Tryal 596. In an Appeal of murder committed in the Cinque Ports although the King be concerned yet because this is betwixt common persons the Venire facias to the next adjoyning Vill. ibidem If the issue be joyned of a matter in Ireland Ireland this shall be tryed by a Jury of the next County in England ib. If the issue be to be tryed by the Venue of Prochein Hundred a Mannor and the Plaintiff suggests that he is Lord of the Hundred in which the Mannor is and that all within the Hundred are within his Distress if the Defendant acknowledge this the Venue shall not be de Corpore Comitatus but of the next Hundred for if it should be de Corpore Comitatus this should be tryed by the Tenants of the Mannor Rolls ib. 667. If the Visne is in some part mis-awarded or Visne mis-awarded in part sued out of more places or fewer than it ought to be so as some place be right named this is aided by the Stat. of Jeofailes which hath ended the differences in many cases reported in our Books concerning this point wherefore I purposely omit them Error for that the Iudgment was given Infamy where the Land lies 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. Holmes vers Sanders Hill 22 23 Car. B. R. Error to reverse a Iudgement given in the Kings Bench in Ireland in Debt for Rent brought by the Assignes of a reversion the Plaintiff declared of a Lease of Land in such a Parish in the Suburbs of Dublin on nil debet pleaded the Venire facias was from the said Parish in Civitate Dublin and Iudgement there per Plaintiff it was assign'd for Error because the Land lies in the Suburbs of the City and the Venire facias was from a Parish in the City Per Cur. It is all one for the Suburbs are always within the Franchise of the City as Fleetstreet is within the Suburbs of London but the Strand not though so reputed Note It was adjudged Error in an Inferior Court that the Venire facias was awarded secundum consuetudinem Curiae which ought to be per Curiam Reader vers More Mich. 1650. B. R. CAP. IX Challenges YOu have already seen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges Challenge is a word common as well to the English as to the French and sometimes Challenge signifieth to claim and the Latine word is vendicare 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 seeing there is no proper Latine 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 verb Calomnior 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 to Calumnâ—ator be a false accuser but is derived of the old word Caloir or Chaloir which in one signification is to care for or foresee And for that to challenge Jurors is the mean to care for or foresee 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 Summons 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 majores and therefore I will handle this matter the more largely A Challenge to Jurors is twofold either Challenge is twofold to the Array or to the Polls to the Array of the principal Pannel and to the Array of the Tales And herein you shall To the Array 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 Verb to Array the Jury and so we say in common speech Battail Array for the order of the Battail Array And this Array we call Arraiamentum and to make the Array Arraiare 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 that there is a principal Principal Challenges cause of challenge to the Array a challenge to the favour principal 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 Attorney Officer in fee or of Robes or servant of either party Gossip or Arbitrator in the same
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
Lord of Parliament as a Baron Viscount Earl Marquess and Duke for these in respect of Honour and Nobility are not to be sworn on Juries and if neither party will challenge him he Propter honoris respectum may challenge himself for by Magna Charta it is provided Quod nec super eum ibimus nec super cum mittemus nisi per legale judicium parium suorum aut per legem terrae Now A Peer may challenge himself the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realm The Peers Peers and Commons of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses And in Iudgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tryed for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tryed per Pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a Tryal either at the Kings Suit or between party and party a Peer of the Realm shall not be impannelled in any Case Secondly Propter Defectum Challenge Propter defectum 1. Patriae as Aliens born 2. Libertatis as Villains or Bondmen and so a Champion must be a Freeman 3. Annui sensus i. e. liberi tenementi First what yearly Freehold a Iuror ought to have that passeth upon Tryal of the life See before cap. 7. Quorum quilibet habeat 4. l. c. of a man or in a Plea real or in a Plea personal where the Debt or damage in the Declaration amounteth to 40. Marks Vide Littleton Sect. 464. Secondly this Free-hold must be in his own right in Fee-simple Fee-tail for term of his own life or for another mans life although it be upon condition or in the right of his Wife out of antient Demesne for Freehold within ancient Demesn will not serve but if the debt or Damage amounteth not to 40. Marks any Freehold sufficeth Thirdly he must have Freehold in that County where the cause of the action ariseth and though be hath in another it sufficeth not Fourthly if after his return he selleth away his Land or if Cesty que vie or his Wife dyeth or an entry be made for the condition broken so as his Freehold be determined he may be challenged for sufficiency of Freehold It seems before the Statute 2 H. 5. free-hold of any value was sufficient for there Freehold of 5. s. was sufficient 3. H. 4. 4. by that Statute in all Pleas real and personal where the Debt or damage or both together amount to 40 marks the Juror must have 40. s. Freehold In an Attaint they must be able to expend 20. l. per annum In an accompt upon the Receipt of 100. s. if he count to his damage 200. s. if the Juror hath but 20. s. or under 40. s. 't is sufficient because he shall not recover damages and so this is not within the Statuts 10 H. 6. 18. for the sufficiency of Jurors See Rolls tit Tryal 648. A man seised of the Mannor of Dale enfeoffs a stranger upon condition to pay yearly to J. S. and his Heirs 40. s. Rent J. S. dies seised of this Rent and then his Heir takes it Yet the Heir hath not sufficient Freehold Land to the value of 40. s. is given to Husband and Wife and the Heirs of their two bodies begotten who have issue a son the Husband gives the Land by fine to an estranger and his Heirs and dies the Wife enters and dies seised the son hath not sufficient Freehold to be a Juror A man seised of Land to the value of 40. s. within the County of Mid. and of Land to the value of 12. within the County of Sussex and grants a Rent-charge of 40. s. issuing out of all the said Land to a stranger in fee the Grantee hath sufficient Freehold to be a Juror in both Counties See many speculative cases upon this subject in Williams his Reading upon the Statute 35 H. 8. cap. 6. 4. Hundredorum First by the common Challenges propter defectum hundrrdorum Law in a Plea real mixt and personal there ought to be four of the Hundred where the cause of action ariseth returned for their better notice of the cause for Vicini vicinorum facta praesumuntur scire And now since Littleton wrote in a Plea personal if two Hundredors appear it sufficeth and in an Attaint although the Jury is double yet the Hundredors are not double Secondly If he hath either Freehold in the Hundred though it be to the value but of half an Acre or if he dwell there though he hath no Freehold in it it sufficeth Thirdly if the cause of the action riseth in Hundredors divers Hundreds yet the number shall suffice as if it had come out of one and not several Hundredors out of each Hundred Fourthly if there be divers Hundreds within one Leet or Rape if he hath any Freehold or dwell in any of those Hundreds though not in the proper hundred it sufficeth Fifthly if the Jury come de Corpore Comitatus or de proximo Hundredo where the one party is Lord of the No Hundredors Hundred or the like there need no Hundredors be returned at all Sixthly if a Hundredor after he be returned sell away his Land within that Hundred yet shall he not be challenged for the Hundred for that his notice remains otherwise as hath been said for his insufficiency of Freehold for his fear to offend and to have Lands wasted c. which is one of the Reasons of Law is taken away Seventhly he that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Eighthly his Challenge for the Hundred is not simpliciter but secundum quid for though it be found that he hath nothing in the Hundred yet shall not he be drawn butremain praeter H. that is besides for the Hundred and albeit he dwelleth or have Land in the Hundred yet must he have sufficient Freehold Note This challenge for want of Hundredors must be given in writing presently and the other party is to demurr thereto if opposed If a challenge be that there is not any Hundredor returned it may be averred to the Court that there is not any sufficient within the Hundred which is not within the Fee of the Plaintiff although this be not returned by the Sheriff and this be found true by Tryors the Array shall be affirmed 45. Ass 1. If the King be made party by aid prayer and sufficient Hundredors do not appear nor are returned yet the Pannel shall not be quashed but a Tales of Hundredors shall be returned But
challenges as if he had been arraigned upon the crime it self for this by a mean concerneth his life also Propter delictum As if the Juror be attainted Challenges propter delictum or convicted of Treason or Felony 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 stigmatised or to have any other corporal punishment whereby he becometh infamous for it is a maxime in Law Repellitur à sacramento infamis Infamous 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 Jury A Bastard may be of a Jury yet may be Bastard challenged if he be of Kindred Jenk Cent. 1. Cap. 90. Sée the Statutes of W. 2. and Artic. supra chartas what persons the Sheriff ought to return on Juries And see F. N. B. breve Who ought to be on Juries de non ponendis in Assisis juratis and the Register in the same Writ And see there what remedy the party hath that is returned against Law It is necessary to be known the time when the challenge is to be taken First At what time Challenges must be taken he that hath divers challenges must take them all at once and the Law so requireth indifferent Tryals and divers challenges are not accounted double Secondly if one be challenged by one party if after he be tried indifferent it is time enough for the other party to challenge him Thirdly after challenge to the Array and Tryal duly returned if the same party take a challenge to the Polls he must shew cause presently Fourthly so if a Juror be formerly sworn if he be challenged he must shew cause presently and that cause must rise since he was sworn Fifthly when the King is party or in an appeal of Felony the Defendant that challengeth for cause must shew his cause presently Sixthly If a man in case of Treason or Felony challenge for cause and he be tryed indifferent yet he may challenge him peremptorily Seventhly a challenge for the Hundred must be taken before so many be sworn as will Hundredors serve for Hundredors or else he loseth the advantage thereof In a Writ of Right the grand Jury must Writ of Righ◠be challenged before the four Knights before they be returned in Court for after they be returned in Court there cannot any challenge be taken unto them Nota. The Array of the Tales shall not The Array of the Tales be challenged by any one party until the Array of the principal be tryed but if the Plaintiff challenge the Array of the principal the Defendant may challenge the array of the Tales After one hath taken chalenge to the Poll he cannot challenge the array Now it is to be seen how challenge to the array of the principal Pannel or of the Tales or of the Polls shall be tryed and who shall be Tryors of the same and to whom Process shall be awarded If the Plaintiff alledge a cause of challenge against the Sheriff the Process shall be directed to the Coroners if any cause against any of the Coroners Process shall be awarded Coroners to the rest if against all of them then the Court shall appoint certain Elisors or Esliors so named ab eligendo because they Elisors are named by the Court against whose return no challenge shall be taken to the array because they were appointed by the Court but he may have his challenge to the Polls Note if Process be once awarded for the partiality of the Sheriff though there be a new Sheriff yet Process shall never be awarded to him for the entry is Ita quod Vicecomes se non intromittat But otherwise it is for that he was Tenant to either party or the like If the array be challenged in Court it Array shall be tryed by two of them that be impannelled to be appointed by the Court for the tryors in that case shall not exceed Two Tryors the number of two unless it be by consent But when the Court names two for some special cause alledged by either party the Court may name others if the array be quashed then Process shall be awarded ut supra If there be a demurr to a challenge the Iudge before whom the cause is to be Demurr to a Challenge how determinable tryed may determine it or adjourn it to be heard another time Stiles 464. Vide Bulstr 1. part 114. If a Pannel upon a Venire facias be returned Array of the Principal and Tales and a Tales and the array of the principal is challenged the Tryors which try and quash the array shall not try the array of the Tales for now it is as if there had been no appearance of the principal Pannel but if the tryors affirm the array of the principal then they shall try the array of the Tales If the Plaintiff challenge the array of the principal the Defendant the array of the Tales there the one of the principal the other of the Tales shall try both arrays For other matter concerning the Tales see in Cooks Reports matters worthy of observation When any challenge is made to the Polls two Tryors shall be appointed by the Court and if they try one indifferent Two Tryors and he be sworn then he and the two Tryors shall try another and if another be tryed indifferent and he be sworn then the two Tryors cease and the two that be sworn on the Jury shall try the rest If any of the Jury after some of them be sworn be challenged those that are sworn are to say whether he that is challenged be indifferent Tryals of challenges or not But if the first or second man be challenged then the Court doth use to appoint some of them who it pleaseth that shall be afterwards sworn to try the indifferency of the person challenged 1. All challenges must be taken before Rules concerning Challenges the Jurors are sworn 2. If one challenge a Juror and it be found against the challenger he may not challenge the Juror for a second cause 3. If one challenge the array and it be found against him he may not afterward challenge any of the Polls without shewing cause presently and this shall be tryed presently 4. No challenge shall be admitted against the Tryors appointed by the Court. If the Plaintiff challenge ten and the Defendant one and the twelfth is sworn because Tryal of Challenges one cannot try alone there shall be added to him
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
good witness in his own action against the Hundred for he is not bound nay is to be blamed to tell any one what charge he carries with him and if he should not testifie the Law would be often fruitless for want of Evidence or else more Robberies committed by the parties discovering his money In the Case of Brereton and Tatam Mich. 1656. B. R. Glyn. Ch. Just Cited the Lord Chandoi's Case in this Court where one Gates an Executor was produced to prove the Will as a witness to which he as Counsel excepted because of his Executorship It was answered that he had fully administred He replied the Assets might afterward come to his hand but the â—ourt resolved that it would not be presumed to barr his Testimony which was allowed in the principal Case being in â—jâ—ctment It 's no good exception to a Witness that he hath common per cause of Vicinage in the Lands in question because it s but an excuse of Trespass and no interest Clapham's case Mich. 1657. B. R. The same of common of Shacke If Obliâ—ee devises the debt to the Obligor and 〈◊〉 Executors deliver up the Bond in satâ—â—â—â—action of the Legacy which is cancell'd and after the validity of the Will is questioned viz. whether the Testator was compos c. the Obligor is a good witness for the will because by the cancelling of the Bond his debt was discharged But Contr. in case of a Mortgage for though the deed be cancelled if it be no good will he must pay the mony Goodman vers Turbervill Mich. 1657. B. R. An Action was brought by the Corporation of the Weavers of Norwich for a penalty against a Weaver for workign in his Trade in Harvest time contrary to an Ordinance by them made And Atkins Just allowed one of the Corporation to be a witness though one moiety of the penalty was due to the Corporation Lent Assise 1657. In a Tryal at Bar where an Estate for Life is limited to I. S. remainder to the poor of the Parish of Greenwich by Will the Inhabitants of Greenwich were allowed to be witnesses to prove the Will Townsend and Roane Mich. 1658. B. R. An Action of Debt was brought Summer Ass Suff. 1669. by the Town of Ipswich for 50 â— a Fine set on one chosen Common Council Man called their prime Constable for refusing to renounce the Covenant c. And the Town-Clerk though a Freeman was allowed a witness to prove Election Refusal c. and the Fine set which is for necessity for that none other are or ought to be present at those Acts. Rainsford Just Per Hale Ch. Just Norf. Summer Ass 1668. A Freeman of Lynn is not an allowable witness to prove the custom of Foreign bought and Foreign sold in that Town Harwich vers Twels As to Witnesses priviledges One was sub-poena'd ad testificandum and prayed a priviledge from being arrested which was granted and per Cur. it will supersede an Arrest on mean process but not upon an Execution yet the Sheriff in that Case may be committed for his Contempt Hen. Nevil's case Mich. 15 Car. 2. B. R. Detaining of Witnesses Sir Jo. Jackson was Convict on an Information for preventing of Evidence to be given on an Indictment of Perjury against Fenwick and Holt who had been witneâ—â—es for Sir J. J. he arrested some witnesseâ— and gave mony to others and so they wâ—re acquitted He was fined 1000 Marks 1 â—â—â—ths imprisonment behaviour for 12 months Hill 1663. B. R. Proofs to determine matter of Fact and Prooâ—s to be offered to a Judge and Jury are of two sorts First Living as by Witnesses and to a Jury one witness is sufficient And Dead as matters of Record as Letters Patents Fines Recoveries Inrollments c. Writings sealed and delivered as Feoffments Leases Releases c. And without Seal as Court-Rolls Accounts c. And if the Case be between the King and a Prisoner he is first to say what he can himself and then all that can say any thing against him are to be heard upon Oath and then others may be heard for him but not upon Oath And according to this Evidence on both sides or without any Evidence at all the Jury are to give their Verdict according to their knowledge and Oaths Such persons as are infamous as are persons attainted of Felony or of a false Verdict or of a Conspiracy or of Perjury or of Forgery upon the Statute of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. and such as have had Iudgment to lose their Ears or stand on the Pillory or Tumbrel or have been stigmatized or branded and Infidels Men not of sound memory or not of discretion or such as are interested in the cause or have benefit are not competent witnesses Co. 1. Inst 6. but we see Jews are daily admitted witnesses An account given to and allowed by the Plenâ— Administravit Ordinary is not good Evidence nor a Pedigree by a Herald of Arms to prove an Pedigree Heir but it must be proved by Deeds Records or Witnesses If the issue be a Recognizance or not a Recognisance Recognizance with a defeasance is good Evidence Plo. 14. So of an Agreement Agreement a special Agreement will prove it Plo. 8. A Licence to alien Land or a pardon for alienation of Land was held by a common Tenure in Caâ—ite presumption to be a good proof that the Land was held in capite A thing which is concluded in the Ecclesiastical Ecclesiastical proceedings Court which doth concern Lands is not to be given in Evidence for the Courts of Common Law are not to be guided by their proceedings Ancient Deeds may be given in Evidence Ancient Deeds although the execution of them cannot be proved He that takes out a Copy of part of a Record Copy of a Record must at least take out so much as concerns the matter in question or else the Court will not permit it to be read If one produce â— Lease made upon an Outlawry Outlawry in Evidence to a Jury to prove a Title he must also produce the Outlawry it self To prove a Feoffment a Deed of Feoffment Feoffment is shewed but no Livery is indorsed if possession has gone with the Deed it is good Evidence Rolls Reports 1. part 132. Vpon Not Guilty to an Information upon Proviso a penal Law a Proviso to excuse him may be given in Evidence Jones Reports 320. If a man prescribe in a non decimando Non decimando generally he cannot give a Bull in Evidence Palmers Reports 38. A Deed with the Seals torn off was admitted Deed. to declare uses Palmers Reports 403 405. Records prove themselves and cannot be Records proved by Witnesses but Copies of them must and are good Evidence and so may any thing done in the County-Court Court-Baron or Hundred-Court c. be proved by Witnesses A
Fine or common Recovery may be Fine given in Evidence though it be not under the great Seal or Seal of the Court and without vouching the Roll of the Recovery and the part indented is the usual Evidence that there is such a Fine though they which saw the Fine are also good Evidence Plow 410. Stiles 22. Depositions in the Ecclesiastical Court Depositions cannot be given in Evidence though parties be dead March 120. A Defendants answer in an English Court is good Evidence against him but not against others Godbolt 326. Where the evidence proves the effect and substance of the issue it is good By order of Court the Depositions taken of a Sick Witness may be given in evidence As upon plene administravit if it be proved Assets that the Executor hath goods of the Testators in his hands he may give in Evidence that he hath paid of his own money for the Testator to the value of those goods Co. Lit. 283. Dyer 2. So if a Lease be pleaded a Lease upon Lease Condition is good Evidence 1 H. 8. 20. because the Genus comprehends the Species So of a Feoffment pleaded a Feoffment upon Condition or a Fine which is a Feoffment of Record is good Evidence 44 E. 3. 39. A special agreement is evidence for an agreement Plo. 8. But if a Feoffment be pleaded in Fee Feoffment upon issue non feoffavit modo forma a Feoffment upon Condition is no Evidence because it doth not answer the issue and wheresoever Evidence is contrary to the issue and doth not maintain it the Evidence is not good 11 H. 4. 3. Feoffments 41. agreement in reversion is no evidence but a Lease and Release is 20 H. 7. 5. If the Indorsment be of a Livery by Attorney the Letter of Attorney must be shewed Vpon an Assumpsit to the Husband an Assumpsit Assumpsit to the Wife and his agreement is good evidence 27 H. 8. 29. upon non assumpsit to a special promise payment is no evidence per 3 Iudges In challenge to the array because made Challenge at the denomination of the Sheriffs Clerk evidence at his Bayliffs denomination is good because favourably made is the substance 38 H. 6. 9. If the issue be in a Suit against an Executor Assets Administrator or Heir Assets in London to prove Assets in another place is sufficient Li. 6. 47. Dyer 271. Accompt pleaded before two Accompt Accompt before one is good Evidence Hob. 55. because the accompt is the substance Vpon the general issue the Defendant may give any thing in Evidence which proves the Plaintiff hath no cause of action What Evidence upon the general issues or which doth intitle the Dâ—fendant to the thing in question But if he hath cause of justification or excuse it must be pleaded wherefore upon non detinet in detinue the Defendant may give in Evidence a gift from the Plaintiff for that proveth that he doth not detain the Plaintiffs goods but he cannot give in Evidence that the goods were pawned to Deâ—inue him for money and that it is not paid but he must plead it 1 Inst 283. For the property is in the pledger Vpon Not guilty in Battery Son assault In Battery demesne is no Evidence for thereby the Battery is confessed Ib. neither is Not Guilty good Evidence upon Son assault demesne Vpon Not Guilty in Trespass Insufficiency Trespass of the Plaintiffs mounds or to justifie for a Rent-Charge Common Licence Son assault demesne or the like is no good Evidence Ib. but to prove a Trespass before or after the day laid in the Declaration is good 1 Inst 283. So upon the Plea Nul Wast fait in an Wast Action of Wast he may give in Evidence any thing that proveth it no Wast as by Tempest by Lightning by Enemies c. But he cannot give in Evidence any justifiable Wast as to repair the House or the like nor a reparation of the Wast before the action brought Ib. Vpon non est factum 'T is no Evidence to Non est factum shew the Bond that was made upon an usurious Contract or that the Sheriffs name is mistaken c. in a Bail-Bond or that the Bond is joynt or several or delivered at another place or that it is void by Statute But it must be pleaded in abatement Ib. Hob. 72. But to prove that the Seal was broken off and put on again or to prove a Rasure of the Deed delivered as an Escrow c. this is good Evidence Li. 5. 119. 11. 27. If 't were done before the action brought but if the Seal was broke off c. by chance after issue joyned the Jury may find it specially To prove the Sealing and delivery of a Deed and not know the party that did it is not good evidence but if he knows the party upon sight of him it is good enough Kelw. 59. Vpon Not Guilty in Trover and Conversion Trover a Demand and denyal of the Goods is good Evidence Plo. 14. li. 10. 57. Cro. 1 part ult pub 495. Hob. 187. Vpon plenè Administravit the Executor Plenè Administravit cannot give a Iudgement in Evidence Kelw. 59. nor payment of Debts by Contract in Debt brought upon an Obligation A Cup pawned and redeemed with the Executors own money is good Evidence but a recovery ought to be pleaded upon nil debet in Debt for Rent That the Lessor entred into part of the Land is no good Evidence Golds 81. But non demisit iâ— 9 H. 7. 3. Vpon Not guilty in an Action upon the Parco fracto Statute de parco fracto That the Plaintiff hath no Park is good Evidence 19 H 8. 9. So upon Not Guilty in Trespass in the Warren Plaintiffs Warren Evidence that he hath no Warren is good 10 H. 6. 17. Kitchin 119. A Shop-book no evidence after a year Shop-books 7 Jac. cap. 12. In Debt for Arrerages of an accompt upon Accompt Nil debet modo forma No accompt is good Evidence 2 H. 6. 26. Vpon Not guilty in Trespass a Lease for years 12 H. 8. 2. or that locus in quo c. is the Freehold Trespass of another 4 E. 3. 45. is good Evidence but upon this he cannot justifie his entry upon the place by a strangers Licence or Command Br. general issue 81. because this is a justification by way of excuse Neither is a Lease at Will good Evidence in this case So upon Not guilty in Trespass for Not guilty in Trespass goods 't is good evidence that the goods were a strangers 9 H. 6. 11. But that they were a strangers and that he as Servant to the stranger or by his commandment took them from the Plaintiff is not good Br. general issue 81. because the Trespass is confessed But that the stranger gave them to the Defendant is good 9 H. 6.
11. In Trespass the Buttals must be proved as they are laid If the Defendant plead payment to a Bond Payment by presumption or Bill and it appears the Debt is very old and it hath not been demanded nor any use paid for it many years common presumption is good evidence that the money is paid and the Juries use to find for the Defendants in such cases If the Trespass were in truth done the 4th Trespass another day of May and the Plaintiff alledgeth the same to be done the 5th of May or the first of May when no Trespass was done yet if upon evidence it falleth out that the Trespass was done before the Action brought it sufficeth 1 Inst 283. 'T is dangerous to permit evidence to a Deed. Jury by Witnesses that there was such a Deed which they have seen or read or prove the Deed by a Copy because the Deed may be upon Condition Limitation or power of Revocation and if this should be permitted the whole Reason of the Common Law in shewing Deeds to the Court would be subverted for the Deed might be imperfect and void which the Witnesses could not perceive yet in cases of extremity as where the Deed was burned or lost by some other notorious accident the Judges may at their discretion allow them to be proved by Witnesses li. 10. 92. and so of a Record In Case against an Executor whereas Executor the Testator was indebted to the Plaintiff thâ— Executor promised to pay the debt in consideration the Plaintiff would forbear to sue him the Executor may give in evidence upon Non assumpsit that there was no Debt or that he had no Assets tempore promissionis for then there would be no Consideration li. 9. 94. William Banes Case upon the issue neunques Executor to prove an Administration granted to him is good evidence Dyer 305. Evidence shall never be pleaded but the Evidence matter of fact shall be pleaded and if it be denied the evidence shall be given to the Jury not to the Court lib. 9. 9. Evidence that the Wife of every Copy-holder shall have the Land durante viduitate will not maintain the issue that the Custom of a Mannor is that she shall have the Land during her life after Estate for life her Husbands death because though durante viduitate imports an Estate for life yet an Estate durante vita is more large and beneficial li. 4. 30. Things done before the memory of man What may be given in Evidence in another County or in another Kingdom may be given in Evidence to a Jury as Assets in another County c. More 47. See li. 4. 22. 9. 27. 28. 34. li. 6. 46 47. Vpon issue payment at the day payment Payment before or after the day is no Evidence More 47. but upon Nil debet it is good Evidence because it proves the issue Vpon issue Assets or no Assets or seised or not seised if one give a Feoffment c. in Evidence Covin may be given in Evidence Covin by the other but not if the issue be infeoffed or not infeoffed for it is a Feoffment tiel quel though made by Covin li. 5. 60. Hob. 72. The Book of Doomesday brought in Doomesday-book Court is good Evidence to prove the Land to be ancient Demesne Hob. 188. In Attaint the Plaintiff shall not Attaint give more evidence nor examine more Witnesses than was before but the Defendant may Dyer 212. Copies of the Court-Rolls are the only Court-Rolls for Copy-holders evidence for Copy-holders for as Littleton Sect. 75. tells you they are called Tenants by Copy of Court-Roll because they have no other Evidence concerning their Tenements but only the Copies of Court-Rolls But Cook explains the Text and says This is to be understood of Evidences of Alienation for a Release of a Right by Deed. A Copy-holder that cometh in by way of admittance may have and that is sufficient to extingish the Right of the Copy-holder which he that maketh the Release had In Actions upon the Case Trespass Battery or false imprisonment against any Iustice of Peace Mayor or Bayliff of City or Town Corporate Headborough Portreve Special Evidence upon the general issue by whom Constable Tythingman Collector of Subsidy or Fifteen in any of his Majesties Courts at Westminst or elsewhere concerning any thing done by any of them by reason of any of their Offices aforesaid and all other in their ayd or assistance or by their Commandment c. They may plead the general issue and give the special matter of their excuse or Iustification in Evidence 7 Jac. cap. 5. General acts of Parliament may be given Statutes in Evidence and need not be pleaded and so may general Pardons given by Parliament if they be without Exceptions But commonly advantage of the Act is given by the Act it self to the offnder without pleading it as by the late most truly Pardons so called general act of Indempnity every person thereby pardoned may plead the general issue and give the act in evidence for his discharge which are general and which particular Statutes see lib. 4. 76. Vpon not guilty in Trover the Defendant Trover may give in Evidence that the goods were pawned to him for 10 l. That he distrained them for Rent or damage feasant That as Sheriff he levied them upon Execution or that he took them as Tythes severed Cro. 1. part 157. 3 part 435. Hob. 187. A demand and denial of the goods is evidence of a conversion If there be two Batteries between Plaintiff and Defendant at divers times the If there be two Trespasses and the Defendant peads a Justification if the Plaintiff replies de injuria sua propria c. he cannot give in Evidence a Trespass at another time But he should have replyed that at another time in the same day of his Count the Defendant did the other Trespass c. to which the Defendant may plead another Justification but the Plaintiff cannot then plead a Trespass at another time but must conclude Sans tiel cause c. vide Apres Plaintiff is bound to prove the Battery made the same day in the Declaration and shall not be admitted to give another day in evidence as the case may be As in Battery the Defendant pleaded Son assault Demesne and the Plaintiff replyed de injuria sua propria absque tali sua and in evidence the Defendant maintained that the Plaintiff beat him the day mentioned in the Declaration and in the same place which the Plaintiff perceiving he gave in evidence that the battery was made another day and place to which the Defendant demurred upon the difference aforesaid Brownlow 1 part 233. 19 H. 6. 47. But upon not guilty it is otherwise though there be never so many Batteries between the parties Littleton Sect. 485. Prohibition for suing for Tythes in Booking Park in Essex and surmised that
the Lands were parcel of the possessions of the Priory of Christs Church in Canterbury and the said Prior and his Predecessors had held it discharged of Tythes tempore dissolutionis and pleaded the Statute of 31 H. 8. The Defendant pleads that the Prior and A non decimando his Predecessors did not hold them discharged and upon issue joyned thereon the evidence was that the Prior or his Predecessors time out of mind c never paid Tythes but no cause was shewn either by unity of possession real composition or other cause to shew it discharged In nil debet upon the Statute for tythes a Lay person cannot give a Non decimando in evidence so may the King and any other spiritual persons li. 2 B. of Winchesters Case Cook said it was no evidence for it is a prescription in non decimando Curia contra For a spiritual man may prescribe in non decimando and by the Statute of 31 H. 8. he shall hold it discharged as the Prior held it and if he held it discharged non refeit by what means for it shall be intended by lawful means and the Jury afterwards found for the Plaintiff Cro. 3. part 2. 6. Vpon non assumpsit in a general Indebitatus Indebitatus assumsit assumpsit the Defendant may give in evidence payment at any time before the Action brought but upon a special promise to pay money 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-book or any thing else is given A Church-Book is no evidence Brownlow 1. part 207. Postea 26. Assise pl. 4. in evidence which ought not to be allowed the Court above cannot quash the Verdict except it be certified and returned with the Postea Brownlow 1 part 207. But the Court may order a new Tryal upon cause shewed as for excessive damages c. The Court will not permit the Jury to carry any Writings out with them but what are proved and under Seal But here I recollect my self and consider that this Chapter is of greatest use to our Circuit practiser and therefore I shall go no further in scatter'd instances but digest my further Collections into a method more beneficial which may be improved by any Practiser as other matter shall occur Quare defendens Crimen feloniae ei imposuit Action of tâ—e Câ—sâ— c. the Plaintiff cannot give in evidence words only but Acts as arresting charging or conventing him before Justice of Peace for felony Sanders vers Edwards Mich. 14 Car. 2. B. R. If any action arises on request as in Trover or special promise the Statute of limitation goes only to the request Juy's case Mich. 1652. C. B. v. 1 Cro. 139. Declaration for words spoken in the presence of A. B. and others in evidence it sufficeth that they were spoken in the presence of others only Wingfield and Coote Lent Assises Norf. 1662. per Hale Ch. Baron In Indebitatus for carrying of Herrings the evidence was he was a Porter at Yarmouth and when Herring-Ships came home he went of his own head and carried up to the Defendants house with other Porters so many Herrings and Good by Twisden Judge of Assise Norf. Summer 1662. Jermin vers Lucas In action for hindring to sit in a Pew claimed by prescription repaired c. ought to be given in evidence and one may prescribe to sit in the uppermost seat in a Pew Buckston and Bateman Mich. 14 Car. 2. B. R. In action for executing an illegal Warrant c. It 's good evidence to prove the Just of Peace acted as such without shewing his Commissâ—on so on the Statute of Hue and Cry Constables case Norf. Lent Assises per Hale Chief Baron Action for stopping up lights c. One had a piece of Ground and builds an house on part and Leases it then he sells the other part of the Ground to one who builds on it and stops up the lights of the first house the Lessee has a good action But if two owe two pieces of Ground and one builds the other may also build and stop up his lights Palmer vers Flesher Mich. 15 Car. 2. B. R. If a Master always gives his servant money to buy his Markets with it is good evidence to discharge the Master in an action brought against him for goods taken up on Trust by that servant Per Glyn Ch. Just Mich. 1658. at Guild-Hall Sr. Tho. Rouses case A water course runs through my Ground to the Grounds of J. S. where is a pit that time out of mind used to be filled with that water I may stop the water in my Ground and use it as I will so I do not turn the course another way but when I have done with it let it fall into its own course Per St. John Ch. Just C. B. Suff. Summer Assises 1657. Smart and Tystead Action for words You forswore your self in your answer in Chancery Defendant justifies Plaintiff replies de Injurià suà propriâ absque tali causa per Hale Summer Assise Suff. It 's a good replication and a small mistake in an answer shall not convict of perjury for the Councel may mistake or his Clerk Action for not scouring a Ditch by which the water overflowed his Land c. and declare quod quidam Rivus run there c. Vpon evidence it appeared only a Land-floud and good by name of Rivus though it be dry great part of the year and it was held the best pleading of the course of this River to put a place from whence it comes so to the Plaintiffs Land without mentioning mean places by which it passes which may be many and must be proved if laid per Whitfield 1641. York Clayton 96. Souldiers lying in an Inn 14 days are guests within the Custom of England Harlands Case per Whitfield 1647. The Plaintiff in action of the case intitles himself by prescription to a Fold course for Sheep upon all the Lands in such a Field on Mich. day and so to Lady day the Lands being unsown and for that the Defendant put on Sheep c. before Mich. day and after and thereby fed the grounds c. the Plantiff could not take so good feed actio inde 1. The owner may put on Sheep and feed his own grounds before Mich. unless a Custom be to the contrary which ought to be laid in the declaration Contrà of a stranger 2. It appearing that part of the Lands c. had been the Lands of the Plaintiff who was Lord of the Mannor and prescribed as such and there being no exception of those Lands in the prescription the Plaintiff was nonsuit for as to those Lands the prescription was gone by unity of possession Per Hale Ch. Baron Norf. Summer Assises 1668. Branthwait vers Hunt Assumpsit In Indebitatus covenant to pay is no evidence 2 Cro. 505. nor money due for rent by
Castle but that there was a Goal this was for the Plaintiff because Goal is the Substance If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt assigned by the Plaintiff and the Iury find an Accompt before R. only the Issue is found for the Defendant for the Accompt is the effect of the Issue Vide Rolls tit Trial. 707. c. If 11 agrée and the 12th will not the Verdict of the 11 cannot be taken but the Court Jury agree may carry the Iurors with them in Carts until they are agréed 41 Ass 11. A privy Verdict may be altered in open Verdict altered Court In an Extendi fac upon a Statute if the Iury deliver their Verdict in Writing they may afterwards make it more formal but they cannot alter it in substance for it is a compleat Verdict by the delivery So of Presentments c. A Fine pleaded in Barr and that after Fine and Non-claim the death of A. scil 1 August 3. Car. B. Father of the Plaintiff was alive in plena vita remansit infra hoc Regnum infra quatuor Maria c. apud W. in Com. D. and no Entry or Claim within five years after and the Plaintiff replies and takes Issue què Modo forma il non fuit remansit infra hoc Regnum Angliae modo forma c. And the Iury find quod non fuit remansit infra hoc Regnum Angliae 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a Month and refer to the Court Au fuit remansit infra hoc Regnum modo forma c. This Issue is found for the Defendant for the matter and substance of the Plea is whether he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff and modo forma shall not make the day material Roll. tit Trial. 713. Iudgment upon a Demurrer and a Writ Judgment Arrest at what time of Inquiry executed at the return the party may shew any thing in Arrest of Iudgment for Iudgment is not compleat until the last Iudgment The first is but an Award A man may plead any thing in Arrest of Iudgment after a Verdict which will make Error if the Iudgment be given In Debt upon a simple Contract against an Executor if he will not plead in Abatement but other Matter which is found against him he shall not afterwards alledge that he is not chargeable in Arrest of Iudgment So in Debt against Executors upon Arrearages of Accompt where they are not chargeable That which appears ill upon the same Record What may be alledged but not a maâ—â—er of Fact which doth not appear upon the Record because the parties cannot by the Issue As that a Iuror was challenged and yet served on the Tales for this cannot appear without alledging matter of Fact Nor that the Defendants Attorney had no Warrant But if there be any irregular or foul practice this may be offered to set aside a Iudgment If any thing be omitted in the Declaration Variance between the Verdict and the Declaration or if more be put into the Declaration than is found by the Iury if it make a material Variance betwixt the Nar. and the Verdict the Action shall abate These following are adjudged material Variances If the Declaration be for these words Thou procuredst eight or Ten of thy Neighbours Words to Perjure themselves and the Iury find that he said Thou hast caused eight or 10 c. for he might be a remote Cause scilicet causa sine qua non without Procurement Nar. He is a Bankrupt Verdict He will be a Bankrupt within two days Nar. He is a Thief Ver. He stole a Horse Nar. Thou art a Murderer Ver. He is c. Nar. I know him to be a Thief Ver. I think him to be a Thief So it is a material Variance if a special Promise be laid to be upon Request and the Verdict find it without Request So if the Promise Declaration be upon a Lease made by two or by Baron and feme and the Iury find that one of them had nothing in the Land or that the Baron only made the Lease or that the two were Tenants in Common and so several Leases otherwise if they were Coparteners So in Case that the Testator was indebted to the Plaintiff in 55 l. and the Defendant being Administrator in consideratione c. Promise to pay this upon non Assumpsit if the Verdict find the Promise to be to pay 30 l. part of the 55 l. So in Ejectment If the Nar. be of a Lease Eje ment of thrée Acres a Lease of a Moiety will not maintain the Nar. So in Wast for Cutting Trees and the Wast Verdict find that he eradicated the Trées but did not cut them A Prescription in modo decimandi That Prescription every one who hath seven Lambs or under seven shall pay to the person ob for every Lamb and the Iury find that and further That if he had more than seven Lambs he should pay a Lamb and that the Parson should pay the Parishioner ob This is not the same Prescription but makes a Variance But if there be a Variance between the Variance Verdict and the Nar. either by way of Surplus or Defect but if this matter of Variance be not material in the extenuation of the Action or Damages the Action shall lye notwithstanding the Variance These ensuing are adjudged not to be material Nar. Strong Thief Verdict Thief Nar. I say c. Ver. I affirm or I doubt not Nar. The Plaintiff will do such a thing Ver. I think in my Conscience he will c. Nar. Of a Lease by a Parson for five years if he tam diu should be Parson tam diu viveret And the Verdict find the Lease to be for five years if he tam diu viveret without the words and should continue Parson for the Law implyeth That if he be deprived or resign that the Lease Determines Nar. He is a Murderer Ver. He was a Murderer for when he says He is a Murderer 't is not intended that he did the Act in presenti but before So in Trespasses or Actions upon Torts and wrongs which are several If the Verdict find part 't is no material Variance and the Plaintiff in these Cases shall have Iudgment Roll. tit Tryal 720. A Jury of Middlesâ—x was demanded in Enquest by default the Common-Pleas the first day of the Term and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the
morning in open Court they may either affirm or alter their privy Verdict Where there can be no privy Verdict and that which is given in Court shall stand But in Criminal cases of life or member the Jury can give no privy Verdict but they must give it openly in Court Neither can a Jury sworn and charged in Where the Jury cannot be discharged before Verdict The King cannot be nonsuit case of life or member be discharged by the Court or any other but they ought to give a Verdâ—ct And the King cannot be non-suit for he is in Iudgment of Law ever present in Court but a common person may be nonsuit And in Civil Actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. But this is against Common practice and I have known that after a Iury of Life and Death have been sworn and charg'd with Prisoners Arraigned the Iudge having béen credibly Informed That it was a Iury pack'd to favour some Prisoner has discharged that Iury and made the Sheriff return another presently In Hillary Term Sexto H. 8. Rotulo 358. It was alledged in Arrest of the Verdict at the Nisi prius that the Jurors had eat and drunk And upon Examination it was found that they had first agreed and that returning to give their Verdict they saw Rede Chief Iustice in the way going to sée a fray and they followed him Et in veniendo viderunt cyplum inde biberunt And for this every one of them was fined 40 d. And the Plaintiff had Iudgment upon the Jurors fined Verdict Dyer 37. And Dyer 218. At the Nisi prius the Jury after their charge given returned and said That they were all agréed except one who had eat a Pear and drunk a draught of Ale Jurors at the Nisi prius fined in bank for eating Pears and drinking Ale for which he would not agrée And at the Request of the Plaintiff the Iury was sent back again and found the Issue for the Plaintiff And the matter aforesaid being examined by the Oath of the Iurors Seperatim and the Bayliff who kept them and found true the offender was committed and afterwards found Surety for his Fine Si c. And Fitzherbert the then Iustice of Assise gave him day in banco c. at which day a Fine of 20 s. was there assessed Et quoad Ball Curia avisare vult In Trespass by Mounson against West the Iury was charged and Evidence given and Iurors being retired into a House for to Fined for having Figgs and Pippins about them consider of their Evidence they remained there a long time without concluding any thing and the Officers of the Court who attended them seeing their delay searched the Iurors if they had any thing about them to eat upon which search it was found that some of them had Figgs and others Pippins for which the next day the matter was moved to the Court and the Iurors were examined upon Oath And two of them did confess that they had eaten Figgs before they had agréed of their Verdict and three other of them confessed that they had Pippins but did not eat of them and that they did it without the knowledge or will of any of the parties And afterwards the Court set a sine of 5 l. upon each of them which had eaten and upon the others which had not eaten 40 s. But upon great advice and consideration had and conference with the rest of the Iudges the Verdict was held to be good Notwithstanding the said misdemeanor Leon. 1. part 133. And sée the Book of Entries 251. The Fined for eating Raisins and Dates Iurors after they went from the Barr ad seipsos of their Verdict to advise Comederunt quasdam species scil Raisins Dates c. at their own Costs as well before as after they were agreed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King In Ejectione firme it was found for the Finable for having sweet-meats c. about them though they do not eat them See Plo. Com. 519. One fined and imprisoned for having Sugar-Candy and Liquorish about him Defendant three of the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff until they were searched and the Sweet-meats found and then did agree with the other nine and gave Verdict for the Defendant It was the Opinion of the Iustices That whether they eat or not they were finable for having of the Sweet-meaâ—s with them for that is a very great misdemeanor Godbold 353. 40 Assise Placito 11. The Iustices said Jurors carted That if the Iurors will not agrée in their Verdict the Iustices may carry them in a Cart along with them till they are agréed The Iury were gone from the Barr to confer of their Verdict and one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gon from the Barr spoils the Verdict was called by the Iurors and he recited again his Evidence to them and after they gave their Verdict for the Defendant And complaint being made to the Iudge of the Assises of this misâ—emeanor he examined the Enquest who confessed all the matter and that the Evidence was the same in effect that was given before Et non alia nec diversa And this matter being returned by the Postea the Opinion of the Court was That the Verdict was not good and a Venire facias de novo was awarded Cro. last part 189. Trin. 1653. between Wells and Tayler Copies of a Bill Answer and Depositions were proved but not all read and delivered to the Iury who carried them with them from the Barr in a bundle which they layd by them and did not look on yet their Verdict at the Barr was set aside for this Cause and the Court would not regard their saying that they did not read them for they might say that to save themselves it being a fault to take any thing without the Courts knowledge If one of the parties say to the Iury after they are gone from the Barr You are weak If a party speak to them men it is as clear of my side as the Nose in a man's face This is new Evidence for his affirmation may much perswade the Iury and therefore shall quash the Verdict So if any thing be read to them which they ought not to have with theâ— as a book of Depositions some whereof were read in Evidence Pratt's Case 21 Jac. The Plaintiff delivered an Escrowle to a Escrowle delivered to a Juror before he was sworn Vitiates the Verdict Iuror impanelled before he was sworn who afterwards being sworn and gone with the Iury from the Barr to consider of the Verdict shewed the same Escrowle to his Companions who found for the Plaintiff The Minister who kept the Enquest
informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgment was stayed for after the Iury are sworn they ought not to sée nor carry with them any other Evidence but what was delivered to them by the Court Afterwards the Plaintiff said That the Escrowle proved the same Evidence which was given to them at Barr by him wherefore it was not so bad as if it had béen new Evidence not given before Sed non allocatur 11 H. 4. 17. Pasche 38 Eliz. Inter Vicary Farthing Church-Book delivered to the Jury act of Court at the Nisi prius The Issue was about Non-age and two Church-Books were given in Evidence one whereof was delivered to the Iury in Court by the assent of parties and afterwards the other was delivered to the Iury out of the Court by the Solicitor of the Plaintiff without the assent of the Court and a Verdict for the Plaintiff and this was indorsed on the Postea The Question was whether this should make the Verdict void or no for the Iustices differed in opinion Popham and Gawdy that it should not Fenner and Clench that it should the Negative Iustices gave these Reasons That the Book was delivered in Evidence in the Court and so the other party might answer to it and that the Court had informed the Iury of the validity thereof how far they were to believe iâ— with many other Reasons But the Affirmative was urged because there might be some matter in this Book to induce them otherwise than was intended before and because it was delivered on his part for whom the Verdict passed without the Courts assent yet one Book scil Cro. last part 411. tells us Iudgment was afterwards given for the Plaintiff sée More 's Reports 452. The Books differ for Cro. makes Clinch give Consider the Reasons in the former cases his opinion for the Verdict But More brings him on the other side which I conceive is truest and for my part I know no reason why foisting of Evidence to the Iury without the Court should have any favour at all In the Case of Taylor and Webb Trin. 1653 B. R. Twisden moved to set aside a Verdict given at Barr because that after Evidence when the Writings were delivered to the Iury some Writings which were not sealed and therefore ought â—ot to be delivered to the Iury were delivered by a stranger to the Iury. Hales Counsel of the other side produces an Affidavit of the Foreman 's of the Iury that they made no use of them in giving their Verdict and that most of those Writings were read in Court in Evidence upon the Tryal and Hales said That if this should avoid the Verdict then that would be in the power of any Stranger unknown and against the mind of the parties to avoid any Verdict Roll. Ch Iust The Affidavit of the Iury ought not to be allowed to make good their own Verdict for now they are as it were parties and have offended and shall not be allowed by their own Oath to take off their offence and it is the Duty of the Iury to look what Writings they receive before they go from the Barr and if any such Paper be wrap'd up among other Papers delivered to them by the Court so soon as they have discovered it they should call in the Tip-staff who keeps them and deliver it to him and to testifie they made no use of it and he said it would be dangerous to give the least way to the delivering of any Writings to a Iury. And at another day Roll cited 11 H. 4. 18. the Plaintiff before the Tryal delivered a a breviaâ—e of his Evidence to the Iury which contained no more than was proved in Court yet by this the Verdict was avoided So Mich. 31 Eliz. C. B. Metcalfe and Dean After the Iury were gone from the Barr they sent for one of the Witnesses and re-examined him who gave the very same Evidence that he had before given in Court yet the Verdict was avoided and the reason of both is a fear and jealousie that other matters might be given c. 37 Eliz. Farthing's Case a Paper not under Seal which was given in Evidence was delivered to the Iury this did not avoid the Verdict because here can be no such fear and per Roll If any Writing though not given in Evidence be delivered to the Iury by the Court it shall not avoid the Verdict And in the principal Case the Verdict was avoided Hill 40 Eliz. Rot. 847. In Arrest of Iudgment after Verdict it was alledged Escrowle from one who was no party that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Evidence at the Tryal and adjudged no cause to Arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. but otherwise if it had béen given by a party and the Iury had found for him In the Case of Duke and Veâ—tres Mich. 1656. B. R. tryed at Barr one Mr. Beverly of Suff. a Barrister was returned of the Iury who having béen at a Tryal of the same Cause above 20 years before in the Cheq and heard there great Evidence to make a Deed fraudulent which was now the Contest demanded of the Court whether he ought to inform the rest of the Iury privately of this or conceal it or declare it in open Court The Court ordered him to come into Court and deliver all his knowledge which he heard then proved which Evidence was not now given because the parties were dead and so he did being not sworn again but only upon the Oath taken as a Iuryman And certainly It is of dangerous Consequence to receive a Verdict against Evidence given on supposal that some of the Iury knew otherwise or on private Information given by one Iuryman to the rest where he can't be Cross-Examin'd and let such Iurors beware of Attaint but the best way is as before in open Court In a Writ of Error the first Error assigned was that Termino Trin. twelve Iurors and no more did appear This ex assensu partium was adjourned until Jury adjourned Crastino Animar on which day two others came in and were sworn being of the first Pannel The Court all clear of Opinion that this is no Error this being good enough they being all to be called again Leon. 3. part 38. If a Iuror depart after he is sworn Juror depart he shall be sined and imprisoned and by assent of parties another Iuror may be sworn Bro. Jurors 46 lib. 5. 40. If a man be non-suited after the Jury is ready to give their Verdict the Court may cause the Amercement of the Plaintiff to be presently affered by the Iurors li. 8. 39. 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
commanded and may do it after Iudgment If the party grieved be dead his Heirs or Executors c. according to the Case may have a Writ of Error upon this Bill of Exceptions And no diminution can be alledged for the parties are confined to the matter in the Bill If the Iustice dye before he acknowledgeth his Seal according to the Act a Scire sac shall go to his Executor or Administrator for the Death of the Iudge is the act of God which shall not prejudice the party As in the case of a Certificate of the Marshal of the King's Host that the person outlawed was in the King's Service beyond Sea in a Writ of Error a Scire fac shall go to the Marshals Executor or Administrator upon shewing the Certificate If the Iudge denyeth his Seal the party may prove it by Witnesses ib. Error of a Iudgment at the Grand Sessions in the County of Pembrok in an Assise of darrein Presentment by Henry Cort against the Bishop of St. Davids Dorothy Owen al. for the Church of Stackpoole The fourth Error assigned was because the Issue being whether H. Cort did last present one R. D. the last Incumbent who was instituted and inducted upon his Presentation The Plaintiff offered in Evidence Letters of Institution which appeared to be and so mentions that they were sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there And those Letters were made out of the Diocess And the Defendant had demurred thereupon That those Letters were insufficient and the Demurrer was denyed which Jones said was an Error because they ought to have permitted the Demurrer and should have adjudged upon it But it was held that the not admitting of the Demurrer ought not co be assigned for Error for when upon the Evidence the matter was over-ruled by the Iustices of Assize That was a proper cause of a Bill of Exceptions and the remedy which the Statute appoints in that Case And for the matter of the Letters of Institution sealed with another Seal and made out of the Dioâ—ess it was held they were good enough for the Seal is not material it being an Act made of the Institution the writing and sealing is but a testimonial thereof which may be under any Seal or in any place But of that point they would advise Croke 1. part 340. Note This Bill is to prevent the precipitancy of the Judges and ought to be allowed in all Courts and in all places of Pleadings and may be put in at any time before the Jury have given their Verdict But this Bill is rarely used there being impar congressus betwixt the Judge and the Councel and the Prudence of the Judges induce them to find special Verdicts in Cases of doubt and difficulty A Release Pleaded at the Assises after Issue joyned Et pred Def. in propria persona sua ven dic quod pred Justic Dom. Regis hic ad caption Jur. ss pred inter ipsum Def. prefat Quer. procedere non debent quia dic ' quod post xii diem F. ult preterit de quo die Jurat pred inter partes pred continuat fuit ante hunc diem scilt diem de Assise scilt primo die M. Anno c. apud c. pred Quer. per nomen c. remisit relaxavit c. Et hoc c. unde pet quod Justic pred ad captionem Jur. pred ulterius procedere nolunt The Death of one of the Defendants Pleaded after the last Continuance Et pred Def. per A. B. Attorn suum ven pred T. non ven super hoc pred Def. dic quod post ult concinuationem placiti pred scilt post xv Pasche ult preterit de quo die loquela pred ult continuat fuit hic usq ad hunc diem scilt in Cro. sce Trin. tunc prox ' sequen ' ante eundem diem scilt decimo die Maii ult preterit pred T. apud A. pred obiit Et pet quod null process ' nec aliquid aliud in placito pred ulterius versus prefat T. fiat Et quia pred J. K. hoc non dedic Ideo null process nec aliquiâ— aliud in placito pred versus prefat T. fiat c. A Baron Challenges the Pannel because no Knight was retorned of the same Et sup hoc idem T. calumpniat arraiament panelli pred quia dic quod ipse est tempore arraiament panelli ilâ—ius fuit Baro hujus Regni Angliae locum vocem habens in quol Parliamento hujus Reg. Quodque in eodem panâ—llo nullus Miles nominat retorn existit Et hoo paratus est verificare unde petit Judicium quod panellum illud cassetur c. Evidence and demurrer upon Evidence Middleton against Baker Cro. Eliz. 42. fol. 751. In Eject It was held by all the Court upon evidence to a Jury That if the Plaintiff give in evidence any matter in writing or Record or a sentence in the Spiritual Court as it was in this case and the Defendant offers to demurr thereupon the Plaintiff ought to joyn in the demurrer or wave the Evidence because the Desendant shall not be compelled to put matter of difficulty to lay Gens and because there cannot be any variance of a matter in writing But if either party offer to demurr upon any evidence given by Witness the other unless he pleaseth shall not be compelled to joyn because the Credit of the testimony is to be examined by a Jury and the Evidence is incertain and may be enforced more or less But both parties may agree to joyn in demurrer upon such evidence And in the Queens Case The other party may not demurr upon evidence shewn in Writing or Record for the Queen unless the Queens Councel will thereto assent But the Court in such case shall charge the Jury to find the matter specially as appears 34 H. 8. Dyer 53. But this is by Prerogative vide lib. 4. 104. the same case and 1. Inst 72. where my Lord Cook says If the Plaintiff in evidence shew any matter of Record or Deeds or Writings or any sentence in the Ecclesiastical Court or other matter of evidence by Testimony of Witnesses or otherwise whereupon doubt in Law ariseth and the Defendant offer to Demurr in Law thereupon the Plantiff cannot refuse to joyn in demurrer no more than in a Demurrer upon a Count Replication c. and so è converso may the Plaintiff Demurr in Law upon the evidence of the Defendant but the Kings Councel shall not be enforced to joyn in Demurrer but in that Case the Court may direct the Jury to find the special matter So that the several sorts of evidence make no difference as to the joyning in Demurrer 1. part Leon. 206. Darrose against Newbott Cro. 4. Car. fol. 143. In Error of a Judgment in Bridgewater The Error assigned was for
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
What evidence the Jury may carry with them 427. 479 Debt 194. 483 492 497 Payment 404. 498 Plene administravit 483. 491 What upon the general issue 483. 484 485 486 508 509 Evidence contrary to the issue 487 Which proves the substance good 487 489 495 Not against what is admitted on Record 492 Hors de son fee. 492 Entry 511 Estray 510. 512. Extinguishment 497 Embâ—ements 489 Executor 491. de son tort ibid. Estoppel 494 F. Â Fine 479. 501 503 c. 506 507. Feoffment 484 Felony 510 False Imprisonment 511 G. Â Grant 501 H. Â Hostler 498 I. Â Jury what they may find and upon what evidence 480 General Issue 483. 485 c. 490 Juâ—â—ifications in Trespass 486. 508 Forwords 490 Imprisonment 488. 511 Indictments 489 Impropriation 492 Juror a Witness 495 Infancy 497 Issue imperfect 498 L. Â Lunacy 508. 512 M. Â Maintenance 487 Master and Servant 488 Murther 490 O. Â Outlawry 510 P. Â Pleading 479. 483 Justifications 486. 490 Payment 404. 232 494 498 499 Proviso in Statutes 229 Prescription 488 Plea puis darrein Continuance 499 Presumption 505 Partioin 505 Park 511 R. Â Recovery Record Rolâ—s 480. 496 504 Release 483 Rescous 484 Replevin 485 Rent Reparations 492. 497 498 Robbery 495 Retorn of Writs 504 Relation 511 S. Â Slander 490 Surplusage 494 Servants wages 497 Seisure and condemnation 498 T. Â Trespass 193. 195 196 484 485 487 488 489 499 508 509 510 Trover 200. 194 485 498 499 Tenancy at sufferance at Will 485 Totum pars 490 Tenant in Common 509. 510 Trespass with a continuando 510 Ab initio 511. 512 Tender of amends 512 V. Â View 171 Villain 484 Viccaridge 492 Vse 500. 506 W. Â Witnesses 87. 495 Warranty 483. 495 501 Wast 483 Will. 494. 504. Warrant 511 ERRATA IN the Preface Pag. 1. l. 9. r. piece p. 3. l. 14. r. Joachimus Fortius Ringelbergius l. 20. r. leaves p. 4. l. 1. Demosthenes p. 191. l. 20. for Agreement r. a Grant p. 193. l. 12. r. Inst 282. to maintain the action p. 72. r. Amercement p. 491. in the Margin r. for to give evidence to have evidence THE TABLE A. APpeal 17. Account 227. Ancient Demesne 18. Administrations 18. where in Trover the Administration must be shewn and where not 225. Admission 24 25. Ability 25. Attorny 27 76 434. Letter of Attorny 214 213. Almanack 27. Assisa 352. Appearance 24. Amercements 436. Ambidexter 434. Attaint 439 442. Action of the Case for words 203 205. 501 503. Quare defendens crimen feloniae ei imposuit 202. for stopping up Lights 204. for stopping a Water-course 204 205. for feeding on his Fold-course 206. for not restoring a Horse hired 207. Indebitatus Assumpsit 206 207 200 209. Award 211. B. BAstardy 19 25 104. Battail 21 28 22. Baron Feme 25 382 211. 213. Bishop 25. Bayley 27. 47. 208. Bill of Exception to Evidence 470. Bankrupt 229. Bail 246. C. CRiminal Causes 9 19 22. 107. 247 Civil Causes 8. Certificate 10 11. 27. 89. Customs 14. 20. of Courts 14. 18. of London 20. Courts 18. Inferior Courts 111. 177. Coverture 25. Confession 30. Coroners 38 c. Challenges 46. 71. 77. Cap. 9. per tot To the Array to the Poll 131. 140. Principal and to the favour 132. 139. how and when to be made 136. 167. 166. 149. 156. 157. 160. 163. 171. where the King is Party 137 139. 140. 142. 157. 165. 3 4 Peremptory Challenge 141. 151. 155. 4 No Challenge of Peers 142. 144. Principal Challenge to the Poll 142 143. 152. Propter honoris respectum 143. Propter defectum 144. 3 Propter defectum Hundredorum 147. 1 for want of Freehold 144. 172. Propter affectum 150. 154 155. 164. Deins distress 153. 160. Principal for Consanguinity 153. In what Inquest a Challenge may be 158. Tryal and Triors of Challenges 258 159. 169 170. 2 where for one shall serve for others c. 159 160. 168. Witness Infant Godfather 161. Challenges arising from the Jurors own act 161 162. Propter delictum 165. Demurrer to a Challenge 168. 1 Arbitrator Comissioner Counsel Eat and Drink Actions of Malice 162. Parson Parish Fellow Servant 163. Rules concerning Challenges 170. 1 3 4 A wrong Name 172. Challenge lost 171. Precedents and forms of Challenges 449 c. 476. The King must shew the cause of Challenge 2 The King or Party may release their Challenge 3 How proved 4 Circumstances 381. Condition 179. Counsellors 435. 245. 247. Copyholder 198. 215 216. Corporation 223. 1 4 Constable 224. D. DIvorce 25. Dowres 26. 110. 239. Demurrer 32. Distringas 37. Detinue 55. Disceit Writ of Disceit 23. Deed Pleaded to be delivered after the date not before 366. Of a Deed 194. 176. 221. 240 234. 230. Damages by the first Inquest 369. 370. 372. veral Damages 370. Se 371. Writ of Inquiry 372 373. 375. 230. Damages released 375 374. 376. Damages and Costs 376 377. 402. Damages in real and personal Actions 377. 230. Decree 179. Default Inquest by Default 505. 415. 217. Demurrer to Evidence 469. 467. Day of Nisi prius and day in Bank all one to some purposes 466. Debt 210 211 212 213. Demand 210. Deprivation disables to make a Lease 217. Date 218. Dower 226 227. E. ENtry 214. 221. Escheator 23. 27. Elifors 38 c. 168. 3 Error by death of one Defendant 59. what 501. 3 Extortion 233. Exemption from serving on Juries 91. Escape 239. Estoppel 365 366. 178. Estray 218 219. 225. Evidence Quid 181 cap. 11. pro tot What is good Evidence in many particular Cases see there 188 189. 197. 211. 233 234 235. usque 248. What is Evidence upon the general Issue 192 193 194 195. 198 199 200. 238 240. Upon a special Issue 236 c. What Evidence the Jury may carry with them 423. 202. 242. What Misdemeanour in taking Evidence spoils their Verdict 423 424 425 426 427 428 418. Juror gives Evidence in open Court 428 245. Shop Book 195. Presumption 196. 182. In Trespess 195 196. 200. 193. 218. usque 224. 234. 242. 237. Church Book 202. In Trover 200. 194. 224. Deed lost 196. 189 190. 216. 228. 230 231 232. 234. 239. 244. Evidence cannot be pleaded 197. Covin 198. 211 212. 241. Acâ—ompt 195 192. Action upon the Case 202. usque 206. Doomesday book 198. Attaint 198. Debt 210 211 212. 213. 234. 236. Riens per Discent 211. 241. Ne unques Executor 211 112. 197. Ejectment 213. usque 218. 220. Evidence after default in Ejectment 217. Will 215 216. 235. Payment 198. 221. 231. Recital Acquittance 231. 235. Will 216. 215. 240. Court Rolls and Copyholders 198. 215. Statutes Pardons 199. 229. Plene administravit 194. 188. 190. 192. 211. 212. 235. 242. Wast 193. 240. Non est factum 193. Proofs 187. 182. Pedegree 188. 242. Agreement 180. 191. Recognisance 188. Tenure in Capite 188. Ecclesiastical Proceedings 189 190. 236. 244. Copy of Records 189 190. 229. 230.