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
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
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
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.
Ordinance of ancient Kings before the Conquest That the Earls of the Counties had the Custody or Guard of the Counties And when the Earls left their Custody or Guards then was the Custody of Counties committed to Viscounts who therefore are called Vicecomites What great Repose and Trust both the What trust in the Sheriff King and Laws put in this great Officer the Oracle tells you 1 Inst 168. that he is Sheriff that is praefectus Comitatus Governour of the County For the words of his Patent be Commisimus vobis Custodiam Comitatus nostri de c. And he hath a threefold Custody triplicem Custodiam viz. first Vitae Justitiae for no Suit begins and no Process is served but by the Sheriff And he is to return indifferent Juries for the tryal of mens Lives Liberties Lands Goods c. Secondly Vitae Legis he is after long Suits and chargeable to make Execution which is the life and soul of the Law Thirdly Vitae Reipublicae he is Principalis Conservator pacis within the County which is the life of the Common-wealth for Vita Reipublicae Pax. Yet notwithstanding the height and To whom the Venire facias ought to be directed Latitude of this great Officers power and trust the Law adjudges him in many cases not capable to do so much as return a Jury For if he be of kindred by nature or of affinity by Marriage to any of the parties or that I may say all in a little if he be not as indifferent almost in all respects as he is whom the Law allows to be a Juror he ought not to meddle with the retorning of the Jury But the Venire facias shall be directed to the Coroners or to some of them Coroners if the residue are not indifferent who in that case are hac vice Vicecom And if the Coroners are not indifferent then the Venire shall be directed Ad 2 Electores that Fortescue cap. 2. 5. is to two whom the Court shall chuse and deem fit to retorn the Jury And to the retorn of these Elisors or Esliors ab Eligendo Esliors no Challenge will be admitted Bro. tit Venire facias 14. as to the Array but to the Challenge Sheriff of London Polles 1 Inst 158. If one of the Sheriffs of London be a party then the Venire may be directed to the other Sheriff if the Vnder-Sheriff be a party yet the Venire may be directed to the Sheriff with this Proviso Quod Sub-Vic tuus in nullo se intromittat cum executione istius brevis 18 E. 4. 3. Iudicial Writs say Cook and Sanders Suggestion Plo. 74. may be directed to the Coroners As the Venire facias where the parties Of whom are at issue there upon the surmise of the Plaintiff that the Sheriff is his Cousin and upon prayer that the Venire Coroners be directed to the Coroners for avoydance of his own delay that might happen So in Ejectment against four upon Affinity of the Sheriff to one of the Defendants Rolls tit Tryal 668. Examination by the challenge of the Array The Defendant shall be examined whether it be true or not and if he confess it then the Venire shall be awarded to the Coroners for then it appears to the Court by the Defendants confession that the Sheriff is not indifferent But if the Defendant denies it then the process shall be awarded to the Sheriff because the Sheriffs Authority and profit shall not be taken away without cause apparent to the Court But if the Defendants will alledge Not of the Defendants Suggestion any such matter and pray a Venire facias to the Coroners there the Plaintiff shall not be examined neither shall such allegations be allowed because delays are The Defendant may not have a Venire facias to the Coroners for the Defendants advantage and the Defendant may Challenge the Iury for this cause and so is at no prejudice And see in term Hil. 3 H. 7. fo 5. placit ult In a quare Impedit where the Defendant shewed how the Sheriff was Cousin to the Plaintiff and prayed a Writ to the Coroners but it was denyed him upon the same Reason Fitz. tit suggestion placit 8. Br. Challenge 153. In the Lord Brook's Case Trin. 1657. B. R. In Ejectment the Court was moved that Lord Brooks might be made Ejector which was granted then the Court was informed that the Lessor of the Plaintiff was High Sheriff of the County and that the Coroner was Vnder-Sheriff and it was prayed that Elizors might return the Jury but the Court would not grant it at the prayer of the Defendant though the Plaintiff offered to agree to it it being in a Tryal by Nisi prius but had it been in a Tryal at Bar they would have granted it But the regular course is for the Plaintiff to pray it or else the Defendant may challenge the Array at the Assises for it 's a principal challenge that the Lessor of the Plaintiff is High Sheriff or of kindred to the Sheriff for which see Hutt 25. More 470. Rolls rep 328. And it was so adjudged Trin. 15 Car. 2. B. R. Duncomb and Ingleby that it is a principal challenge In Ejectment the Plaintiff suggested For what causes Process shall be directed to be Coroners that he and one of the Coroners were all of the Liberty del Countee Wigorn ' and prayed a Venire facias to the other Coroner although this is no principal challenge and the Defendant might have opposed the prayer yet because he confessed it the Award was well to the Coroner So if the cause be that one of the Coroners be retained of Counsel with the Plaintiff If the suggestion do not comprehend a principal challenge but only of favour this is not sufficient to award process to the Coroners but if it be a principal challenge as affinity c. if the Defendant confess it the award shall be to the Coroners if he will not confess it then to the Sheriff and in such case the Defendant shall never challenge the Array for that cause so if the Plaintiff pray process to the Coroners for favour in the Sheriff if the Defendant say that this is not favourable he shall never challenge for favour unless de puisne temps If the Array be quashed because made by the Sheriffs Minister who was aiding and of Councel with one of the parties yet the Writ shall not be directed to the Coroners but to the Sheriff commanding him to make the Pannel by another Officer As Ita quod the Sheriff ne se intromittat c. If the Tales be quashed for affinity in the Sheriff but not the principal Pannel because 't was made before the affinity yet all shall be awarded to the Coroners Scil. the Distringas of the principal Pannel and that they return a new Tales for there shall be but one Officer if the Array be quashed because made
was mis-named in his Christian Name in the Venire Iudgement was arrested But it is there adjudged that if he had been well named upon the Venire and misnamed on the Distringas or Postea then upon Examination it should be amended But the Countess of Rutlands Case lib. 5. 42. is express in the point and so is Cro. 3. part 860. Rolls 196. Teppet in the Venire and Tipper in the Distring Amended And so if the mistake be in the Pannel Jurata the Sheriff may come in Court and amend it And so if Samuel be in the Venire and Distringas and Daniel in the Nomina Juratorum upon examination this may be amended And so if the name be right in the Ven. and mistaken in the Christian name in the Distringas or Postea it is amendable Rolls 197. And so if he be De A in the Venire and Distringas and De B. in the Nomina Juratorum this is amendable And it is to be known that in most Cases where the Venire facias Hab. Corpora or Distringas be defective they are to be amended but if the Malady be so fatal in the Venire that it causes a mis-tryal as in the mistake of a Jurors Christian Name or where a Juror not returned is sworn c. then the Verdict Venire facias de novo is to be set aside and a Venire facias de novo to be awarded and so was it to be upon those mistakes now amendable by the Statutes before the making thereof And where a Jury giveth a Verdict which is accepted One Jury shall not try a cause twice and recorded by the Court be the Verdict perfect or imperfect the Jurors are discharged and shall never try the same issue again upon a new Nisi prius But if the Verdict be so imperfect that Iudgement cannot be given upon it then the Court shall award a Venire facias de novo to try the issue by other Jurors li. 8. 65. Bulstr 2 part 32. If upon an issue all the matter be not Venire facias de novo fully inquired a Venire facias de novo shall issue 18 E. 3. 50. In an Audita Querela if the parties go to issue upon payment according to the defeasans of the Statute and this is found for the plaintiff but the Jury do not assess Damages the Court shall award a Venire facias de novo to assess damages 22 E. 3. 5. vide hic cap. 6. and Rolls tit Tryal 593. 595. If the Record of the Nisi prius be unum modum tritici for modium and the Plaintiff is Nonsuit at the Aâ—â—â—se for this mistake if the Record in Court be right scil Modium this Nonsuit shall not be Recorded but a Venire facias de novo shall be awarded So for any other mistake as if the Record in Court be Grays-Inn Lane c. and the Nisi prius which is but a transcript be Graves-Inn Lane c. For this is a nonsuit upon another Record than what is in Court In Battery against Three who plead Three several Pleas and upon the Writ of Nisi prius two issues are found for the Plaintiff and Damages assessed but nothing is found for the third issue this is a mis-trial and a Venire facias de novo shall issue In Detinue if the Jury find Damages Detinue and Costs but no value as they ought this shall not be supplied by a Writ of Inquiry of Damages but a Venire facias de novo shall be granted And so of other defects in finding the full issue In a Quare impedit if the issue be found Quare impedit for the Plaintiff but by negligence the Jury do not inquire of the four points scil de plenitudine ex cujus prâ—sentatione si tempus semestre transierit and the value of the Church per annum This shall be supplied by a Writ of Inquiry without any Venire facias de novo because the Court ex officio ought to have charged the Jury with the four points of Inquiry and if the Jury had found them no Attaint lay for as to this they were but as an Inquest of Office In a Writ of Annuity if the issue Annuity be found for the Plaintiff but the Jury do not assess Damages or Costs this shall not be supplied by a Writ of Inquiry but a Venire facias de novo shall be granted In Ejectment against Baron and Feme and Ejectment the Jury find the Wife not guilty and find a special Verdict as to the Husband which special verdict is afterwards adjudged insufficient by the Court a Venire facias de novo shall be granted for both as well the Wife as the Husband and the Wife may be found guilty because the Record and issue is intire and the Verdict is insufficient and void in tout So if there be several issues and the Imperfect Verdict Jury find some well and directly and in others special Verdicts which are imperfect a Venire facias de novo shall be granted for all and the Jury may find contrary to their first finding In trespass of Assault and Battery and taking away of grain and the Defendant as to the Batery justifies in defence of his grain upon which the Plaintiff demurs and as to the grain he pleads not guilty which is found for the Plaintiff and the Jury do not tax Damages for the Battery depending in demurrer as they ought in this case if the demurrer be afterwards adjudged for the Plaintiff yet the Damages for this cannot be afterwards supplied and taxed by a Writ of Inquiry of Damages but a Venire facias de novo shall issue to Tryal because all is comprised in one Original Vide apres cap. 13. and devant cap. 2. Who shall grant it In a Scire facias upon a Recognisance in Chancery if the Parties be at issue upon which the Record is commanded into B. R. and there it appears that the Venire facias is not well awarded the Venire facias de novo shall be awarded in the Kings Bench and not in the Chancery Roll. â—it Tryal 723. In Yelvertons Reports fo 64. the Case Album breve the County left out in a Venire facias is That a Venire facias was made Vicecomiti leaving out Salop for which there was a blank left in the Writ But re vera it was returned by the Sheriff of Salop. In Arrest of Iudgement it was alledged that the Venire facias was Vicious for this cause But Gawdy said it should be amended and by Fenner and Williams It is as no Writ because it is not directed to any Officer And then it is aided by the Statute of Jeofailes For it might rather be called a blank than a Writ because it was directed to no Officer If there be no return of the Sheriff indorsed upon the Venire facias it was held not amendable 35 Eliz. lib. 5. 4 Otherwise of the Distringas
Defendant unless when he is actor as well as the Plaintiff or unless there be a default and Leches in the Plaintiff therefore there can be no Tryal by Proviso against the King unless with the Attorney General 's consent because no default or Laches can be imputed to the King But an avowant in Replevin may have a Venire facias with a Proviso immediately Proof presently after issue joyned after issue joyned because he is Actor and in nature of the Plaintiff If the Plaintiff in Detinue and the Garnishee be at issue and the Plaintiff prays a Nisi prius and this is granted Garnished yet the Garnishee at the same time may have a Nisi prius with Proviso because he is Plaintiff also 19. li. 6. 46. Rolls tit Tryal 629. If the Plaintiff deliver the Writ to the Sheriff tarde so late that he cannot serve Tarde it the Defendant shall have a Writ with a Proviso But at the same time the Plaintff may have another Writ and the Sheriff may return which of them he pleases at his Election 8 H. 6. 6. The Proviso ought to be quando duo brevia sunt in eodem gradu qualitate If the default be in Plaintiff after issue in the prosecuting of the Venire facias then the Defendant may have a Venire facias with Proviso but not a Hab. Corpus with a Proviso until the Plaintiff have made a default in the same Writ for he ought only to have the same Process with a Proviso in which there was a default of the Plaintiff first and therefore although the Defendant had a Venire facias with a Proviso upon a default of the Plaintiff yet he cannot have a Nisi prius by Proviso without another default of the Plaintiff If the Defendant had a Hab. Corpus by Proviso and the Jury remain for want of Hundredors yet he cannot have a Distringas Jur. with a 10. Tales cum Proviso until a default of this request of a Tales is in the Plaintiff D. 15 El. 318. 10. But note the Nota in Stamford's Pleas How the Plaintiff may stop the Defendants Proviso del Coron fol. 155. That if by negligence of the Plaintiff the Defendant sues a Venire facias with a Proviso yet the Plaintiff may at his pleasure stay the Defendant that he shall not proceed in his Process in praying a Tales upon the Defendants Process as it appears T. 15 H. 7. fol. 9. And the Defendant shall never be received to pursue this Process with a Proviso so long as the Plaintiff pursues or is ready to pursue as appears Mich. 14 H. 7. fol. 7. And seeing the Tales men offer themselves Tales men to us we will tell them upon what accompt they come before they thrust themselves into the Inquest commonly for the love of eight pence but it may be to do some of their Neighbours a shrewd turn CAP. V. Why the Venire facias runs to have the Jury appear at Westminster though the Tryal be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs Of Justices of Nisi prius Of the Tales at Common Law and by Statute When the Transcript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is Non-suited he may have a Distringas de novo BUt to observe the Method of the Writ the next words are Coram Justiciariis nostris de Banco apud Westminst tali die And here first of all you may ask me to what purpose the Sheriff is comâ—anded to cause the Iury to come to Westâ—â—â—ister when they are to try the Cause in the Country and in truth are not to come to Westminster I must confess the resolution of this question is not unnecessary wherefore we must know that Originally before the Writ of Nisi prius was given the purpose for which the 12. men were to be summoned upon the Writ of Venire fac Why the Venire facias is to have the Jury appear at Westminster to come to Westminster was that contained in the Writ videl Ad faciend quandam Juratam for then was the Tryal intended to be there if a full Iury appeared if not then a Hab. Corpora with a Tales sometimes Hab. Corp. annexed to it the form whereof you may see in the Register and if they did not appear at the Return in the Hab. Corpora then went out the Distringas This Distringas I speak of the Common Pleas But the course of the Kings Bench and Exchâ—quer is after the Venire fac to have a Distringas leaving out the Hab. Corpora Tryals then were all at the Bar. I speak not of Assises But now because Jurors did not use to appear upon the Venire facias it being without penalty Tryals at the Bar are appointed upon the Hab. Corpora and Distringas because the Iury will Tryals at Bar. more certainly appear at the day in the Distringas through fear of forfeiting issues which the Sheriff returns on the Distringas not on the Venire facias By the Statute of 18 Eliz. cap. 5. no Iury shall be compelled to appear at Westminster for the Tryal of an offence upon any penal Law committed above 30. miles from Westminster Where a Jury is not compellable to appear at Westminster except the Attorney General can shew reasonable cause for a Tryal at Bar. Thus it was at Common Law before the giving of the Writ of Nisi prius when all Iurors together with the parties came up to the Kings higher Courts of Iustice Where the Cause depended which when Suits multiplyed was to the intolerable burthen of the Country 27 E. 1. cap. 4. Wherefore by the Statute of Westminst 2 cap. 30. A Writ of Nisi prius was first Nisi prius when first given and wherefore given and that in the Venire facias as we may see in the form of the Writ there mentioned scil Prâ—cipimus tibi quod venire facias coram Justiciariis nostris apud Stamfords Pleas of the Crown 156. Westmon in octabus Sancti Michaelis nisi talis talis tali die loco ad partes illas venerint 12. c. By which Writ it appears that the Venire facias was not returnable till after the day of the Nisi prius But the mischief thereof was so great partly Nisi prius in the Venire facias in respect that the parties not knowing the Iurors names could not tell how to make their Challenges and so were surprized and partly in respect of the Iury who were greatly delayed by the Essoyns of the parties that by the Statute of 42 E. 3. cap. 11. It is Ordained that no Inquest but Assises and deliverances of Gaols be taken by Writ of Nisi prius nor in other manner at the Suit of the great or small before that the names of all them that shall pass in the Inquests be returned
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
to wit the number two things are to be observed 1. That in all Cases the Tales ought to be under the number of the principal in the Venire facias unless in Appeals as in Attaint under 24. and in other Actions where the Venire facias is of 12. under 12. And the reason wherefore more than the number may be granted in Appeals of the Plaintiffs part is because the Defendant may challenge peremptorily and if default be in the Plaintiff then the Defendant may pray a Tales and the Reason is in favorem vitae and that he may expedite and free himself from vexation and the question of his life for fear that his Witnesses should die 2. That the number ought always to be certain as 10. 8. 6. or 4. c. But now by the Statute of 35 H. 8. a Tales de circumstantibus may be granted as well of an uncertain as a certain number and that by force of these words in the Stat. 35 H. 8. So many c. as shall make up a full Jury As to the third to wit the Order It is to be known that always in every new Tales the number shall be diminished as if the first be 10. the second shall be 8. and so always less But if the Tales awarded be quashed by Challenge you may have another of the same number As to the fourth to wit the manner of Tryal that is commonly by them with others but by them only when after the granting the Tales the principal Pannel is quashed then the Tryal shall be only by the Tales or if the Tales do not amount to a full Inquest another Tales to supply the former may be granted As to the fifth to wit the Quality of the Therefore if the Venire facias be not de medietat linguae the Tales cannot 3 E. 4. 12. Tales they ought to be of the same Quality as the Quales are and therefore if the first be per medietatem linguae of English and Aliens so ought the Tales to be so if the Principal be out of a Franchise so if the Venire facias be directed to the Coroners so ought the Tales and all things which are required by the Law in the Quales are required in the Tales As you may read in the aforesaid Statutes vide Stamf. Plees del Corone fol. 155. Where a Juror is withdrawn when the Plaintiff intends to bring the Cause to Tryal again he may have a Distringas c. with a Decem Tales By the Statute of 23 H. 8. cap. 3. If there be not enough sufficient Freeholders as are required in an Attaint in the County where Attaint such Attaint is taken a Tales may be awarded into the Shire next adjoyning If the Transcript of the Record of the Nisi prius be mistaken and not warranted by the Rolls for which cause the Plaintiff becomes Non-suit he may have a Distringas Nisi prius amendable de novo upon motion to the Court and the Postea shall not be recorded Cro. 1. part 204. Palmers Reports 378. For there is but a Transcript of the Record sent to the Justices of Nisi prius First they were Justices of Nisi prius and Justices of Assise Justices of Assise and therefore they retain that name still though Assises are very rarely brought For this common Action of Ejectment hath Ejected most real Actions and so the Assise is almost out of use CAP. VI. Of the number of the Jurors and why the Sheriff returns 24. though the Venire facias mentions but 12. If he returns more or less no Error and of the number 12. And when the Tryal shall be per primer Jurors And of Inquests of Office and when to remain pro defectu Juratorum NOw for the Quales and these you see for number must be 12. by the Common Law D. and St. fol. 14. for quality liberos legales homines And first of their number 12. And this number is no less esteemed of by our Law than by Holy Writ Of the number 12. If the 12 Apostles on their 12 Thrones must try us in our eternal State good Reason hath the Law to appoint the number of 12. to try our temporal The Tribes of Israel were 12. the Patriarchs were 12. and Solomons Josh 4. Genes 49. Officers were 12. 1 Kings 4. 7. vide Sir Hen. Spelman verb. Jurata Therefore not only matters of fact were tryed by 12. but of ancient time 12. Judges were to try matters in Law in the Exchequer Plow Com. in prooemio 12 Judges Chamber and there were 12. Counsellors of State for matters of State And he that wageth his Law must have 11. others with him which think he says true And the Law is so precise in this number Less than 12 in Inquests of Office of 12. that if the Tryal be by more or less it is a Mis-tryal But in Inquests of Office as a Writ of Wast there less than Finch 400. 484. 12. may serve F. N. B. 107. c. and in Writs to inquire of Damages the just number of 12. is not requisite for they may be over or under And so it was resolved Trin. 1651. B. R. Abbot vers Holt that the Sheriff ought in Writs of Inquiry to summon 12. by their names yet Inquest of Office Vide hic cap. 13. Damages assessed by a less number is sufficient and in the Writ to the Sheriff quod ipse inquirat per Sacramentum pro borum hominum omitting duodecem it s good and usual And in a Writ of Inquiry of Waste by 13. it was holden Good 1. Cro. 414. In Dower if the Tenant come at the Grand Cape and say he was always ready to render Dower and issue is taken upon this although seisin of the Land be presently awarded yet no Inquest of Office but the Jury upon the Tryal of the issue shall assess Damages 22 E. 3. 15. In what cases there shall be an Inquest of Office and in what not see Rolls tit Tryal 595. And although there can be no Verdict Why the Sheriff returns 24. but by 12. yet by ancient course and usage which as my Lord Cook tells you makes the Law in this Case 1 Inst 155. the Sheriff is to return 24. And this is for expedition of Iustice for if 12. should only be returned no man should have a full Jury appear or sworn in respect of Challenges without a Tales which should be a great delay of Tryals And for this cause at Common Law 't was Error if the Sheriff returned less than 24. But now it is remedied by the Satute of 18 Eliz. as a mis-return see Cro. 1 part 223. li. 5. 36 If the Sheriff return less than 24 it is no Error 37. By which Books it appears that if the Sheriff return but 23. c. it shall not vitiate the Verdict of 12. No though a full Jury do not appear so that the Tryal is by ten of
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
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
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
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
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
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
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.
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
Stan. Plea Cor. lib. 3. cap. 7. And this Tryal in some Cases per medietatem It s Antiquity linguae was before the Conquest as appears by Lamb. fol. 91 3. Viri duodeni Jure consulti Angliae sex Walliae totidem Anglis Wallis Jus dicanto And of ancient time it was called Duâ—decim virale Judicium 1 Inst 155. But afterwards this Law became universal first by the Statute of 27 Ed. 3. cap. 8. It was Enacted that in Pleas before the Maior of the Staple if both parties were strangers the Tryal should be by strangers But if one party was a stranger and the other a Denizen then the Tryal should be per medietatem linguae But this Statute extended but to a narrow Compass to wit only where both parties were Merchants or Ministers of the Staple and in Pleas before the Maior of the Staple But afterwards in 28th Year of the same Kings Reign cap. 13. It was Enacted That in all manner of Enquests and Proofs which be to be taken or made amongst Aliens and Denizens be they Merchants or other as well before the Maior of the Staple as before any other Justices or Ministers although the King be party The one half of the Enquest or Proof shall be Denizens and the other half Aliens if so many Aliens and Foreigners be in the Town or place where such Enquest or Proof is to be taken that be not parties nor with the parties in Contracts Pleas or other Quarrels whereof such Enquest or Proof ought to be taken And if there be not so many Aliens then shall there be put in such Enquests or Proofs as many Aliens as shall be found in the same Towns or places which be not thereto parties nor with the parties as aforesaid is said and the Remnant of Denizens which be good men and not suspitious to the one party nor to the other So that this is the Statute which makes King the Law universal concerning the medietatem linguae for though the King be party yet the Alien may have this Tryal And it matters not whether the Moyety of Aliens be of the same Country as the Alien party to the Action is for he may be a Portugal and they Spaniards c. because the Stat. speaks generally of Aliens See Dyer 144. And the form of the Venire facias in this Venire facias per medietatem linguae Case is De vicenet c. Quorum una medietas sit de Indigenis altera medietas sit de alienigenis natis c. And the Sheriff ought to return 12 Aliens and 12 Denizens one by the other with addition which of them are Aliens and so they are to be sworn But if this Order be not observed it is holpen as a mis-return by the Statutes of 18 Eliz. Cro. 3. part 818. 841. So that Brooks says it is not proper to call it a Tryal per medietatem lâ—nguae because any Aliens of any tongue may serve But under his favour I think it proper enough For people are distinguished by their Language and Medietas Linguae is as much as to say half English and half of another tongue or Country whatsoever Though it be not material of what sufficiency the Jurors are yet the form of the Venire facias shall not be altered but the Clause of Quorum quilibet habeat 4 l. c. shall be in Cro. 3. part 481. But suppose that both parties be Aliens of whom shall the Inquest be then It is resolved that the Inquest shall be all English for though the English may be supposed to favour themselves more than strangers yet when both parties are Aliens it will be presumed they favour both alike and so indifferent 21 H. 6. 4. but if the Plea be before the Maior of the Staple and both parties Alien Merchants of the Staple it shall be tryed by all Aliâ—ns Stamford's Pleas del Corone 159. A Scotchman is a Subject and shall not have this Tryal Egyptians are also excluded when tryed for Felony made by the Statute against them 1 Phil. Mar. cap. 4. 5 Eliz. cap. 20. Where an Alien is party yet if the All English Tryal be by all English it is not erroneous because it is at his peril if he will slip his time and not make use of the advantage which the Law giveth him when he should Dyer 28. The Alien ought to pray a Venire facâ—as When the Alien should pray a Venire facias per medietatem per medietatem linguae at the time of the awarding the Venire facias But if he doth it at any time before a general Venire facias be returned and filed the Court may grant him a Venire facias de novo Dyer 144. 21 H. 7. 32. though it hath been questioned But if he hath a general Venire facias he Tales cannot pray a Decem tales c. per medietatem linguae upon this because the Tales ought to persue the Venire facias 3 E. 4. 11 12. And so if the Venire facias be per medietatem linguae the Tales ought to be per medietatem Tales linguae as if 6 Denizens and 5 Aliens appear of the principal Iury the Plaintiff may have a Tales per medietatem linguae li. 10. 104. But if in this case the Tales be general de circumstantibus it hath béen held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded Cro. 3. part 818. 841. If the Ylaintiff or Defendant be Executor or Administrator c. though he be an Alien yet the Tryal shall be by English because he sueth in aut droit but if it be averred Where the Tryal of an Aliens cause shall be by English that the Testator or intestate was an Alien then it shall be per medietat linguae Cro. 3. part 275. Mich. 40. 41 Eliz. The Quéens Attorney Part English and part Aliens exhibited an Information against Barre and divers other Merchants some whereof were English and some Aliens After Issue the Aliens prayed a Tryal per mâ—dietat linguae But all the Iustices of England resolved that the Tryal should be by all English and likened it to the case of priviledge where one of the Defendants demands priviledge and the Court as to his Companion cannot hold Plea there he shall be ousted of his priviledge sic hic More 557. By the Statute of 8 H. 6. cap. 29. 29. Challenge Insufficiency or want of Fréehold is no cause of Challenge to Aliens who are impannelled with the English notwithstanding Stamford's Opinion Pl. Coron 160 for this Statute saith that the Stat. 2 H. 5. 3. shall extend only to Enquests betwixt Denizen and Denizen If the Defendant do not inform the Court When the Alien should pray a Venire facias per medietatem that he is an Alien upon awarding of the Venire facias and so yray a Venire facias
per medietatem linguae he cannot challenge the Array for this cause at the Tryal if the Iury be all Denizens notwithstanding Stamford's Opinion to the contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. Vide Rolls tit Trial. 643. If the Plaintiff be an Alien he must suggest it before the awarding of the Venire facias but if the Defendant be an Alien the Plaintiff is allowed to surmise that before or after the Venire facias because the Defendants quality may not be known to him before 27 H. 7. 32. CHAP. XIII The Learning of General Verdicts Special Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default Inquests of Office c. Arrest of Judgment Variance betwixt the Nar. and the Verdict c. VErdit or Verdict In Latine Vere dictum Verdict quasi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12 men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgment of the Court is built for â—x facto jus oritur the Law ariseth from â—he fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as â—ot to believe the matter of fact until it is sworn by 12 sufficient men of the Neighbourhood where the fact was done whom the Law supposeth to have most cognisance of the truth or falsehood thereof which being sworn for the words are Juratores predict The Credit of Verdicts dicunt super sacruÌ„m suum c. is the Verdict whereof we now treat And such credit doth the Law give to Verdicts that no proof will be admitted to impeach the verity thereof so long as the Verdict stands not reversed by Attaint And therefore upon an Attaint no Supersedeas is grantable by Law Plo. Com. 496. And it is worth our observation that the Law seems to take more care of the fact than of her self for the Major part of the Iudges give the Iudgement of the Law though the other Iudges dissent But every one of the 12 Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assise pl. 27. And this Verdict is of two kinds viz. one General or special general and the other special or at large The general Verdict is positively either General Verdict in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury find Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do find Quod predict B. in juste sinâ— judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a general Verdict 1 Inst 228. A Special Verdict or Verdict at large is Special Verdict so called because it findeth the special matter at large and leaveth the Iudgment of the Law thereupon to the Court of which 1 Instit 226. kind of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court The Court cannot refuse it cannot refuse a Special Verdict if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned whether the Iury A special Verdict may be found upon any Issue as upon an absque hoc c. could find a Special Verdict upon a special point in Issue or no as they might upon the general Issue But this question hath been fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Vardict and find the matter at large en chescâ—n issue en le monde so that the matter found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions real personal and mixt and upon all Issues joyned general or special the Iury might find the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not only in Cases between party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmative of the Common Law And as this spetial Verdict is the safest for A Free-hold upon Condition without Deed may be found by Verdict though it cannot be pleaded the Iury 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concerns a Freehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12 men taken at large in an Assize of Novel dissâ—isin or in any other Action where the Iustices will take the Verdict of 12 Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for term of life without Deed upon Condition to render to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessee is seised as of Fréehold and after the Rent is behind by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Dissesin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for term of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behind at any such Feast at which it ought to be paid then it should be lawful for the Lessor to enter c. By force of which Lease
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
course was so for the parties are demandable before the Jury and if the Plaintiff make default he shall be non-suited and if the Defendant make default the Jury shall be awarded by default whether they appear or not Dyer 265. Where an Inquest is taken by default What the Defendant looses by his default the Defendant shall loose his Challenges and by 28 Ass p. 42. tit Enquest in Fitz. he shall loose his Evidences also Bro. Enquest 10. quod non est lex Det. The Defendant pleaded a Release and the Plaintiff replyed non est factum and at the day of the Venire facias the Defendant made default and the Inquest was taken upon his default and found for the Defendant for which the Plaintiff took nothing by his When the Defendant may be condemned by default and when an Enquest must be taken upon the default Bill And yet if the Plaintiff had prayed it he might have had the Defendant condemned by his default before the taking of the Verdict Et sic â—ide folly in le Plaintiff Bro. Ib. 5. But upon such Release and default in Trespass the Enquest shall be taken by default and the Defendant shall not be condemned by default though the Plaintiff pray it and the reason is because the debt is certain and the damages are incertain in Trespass Bro. Ib. 3. And Finch fo 409. hath well collected out of Brook That always in an Action of Trespass whatsoever the Issue be Release Iustification c. and also in Debt Detinue Accompt and the rest which are for things in certainty if the Issue be taken upon a matter in fait only as payment or that an Acquittance pleaded in Barr by the Defendant was made by Dures c. The Inquest shall be taken by default if the Defendant makes default But in the last recited Actions of Debt c. If the Issue be upon the Acquittance it self Release or other matter in writing the Plaintiff may pray Iudgment upon the Defendants default if he will but if he do not pray it the Jury shall be taken by default as in an Action of Trespass The Jury may give a Verdict without testimony Verdict without or against testimony or against testimony when they themselves have Conuzans of the Fact Plo. Com. 86. CAP. XIV How the Jury ought to demean themselves whil'st they consider of their Verdict when they may eat and drink when not What Misdemeanor of theirs will make the Verdict voyd Evidence given them when they are gone from the Barr spoils their Verdict For what the Court may fine them and where the Justices may carry them in Carts till they agree of their Verdict An Amercement Assered by the Jury THere is a Maxime and an old Custom Jurors ought not to eat or drink in the Law that the Jury shall not eat nor drink after they be sworn till they have given their Verdict without the Assent and Licence of the Justices and that is ordained by the Law for eschewing of divers inconveniencies that might follow thereupon and that especially if they should eat or drink at the Costs of the parties and therefore if they do so it may be laid in Arrest of Indgment But with the assent of the Iustices they may both eat and drink as if any of the Jurors fall sick before they be agréed of their Verdict so soon that he may not commune of the Verdict then by the assent of the Iustices he may have meat or drink and also such other things as be necessary for him and his fellows also at their own costs or at For by assent of the parties they may eat and drink Br. Jurors the indifferent costs of the parties if they so agrée or by the assent of the Justices may both eat or drink and if the Case so happen that the Jury can in no wise agrée in their Verdict as if one of the Jurors knoweth in his own Conscience the thing to be false which the other Jurors affirm to be true and so he will not agrée with them in giving a false Verdict and this appeareth to the Iustices by Examination the Iustices may in such case suffer the Iury to have both meat and drink for a time to sée whether they will agrèe And if they will in no wise agrée the Iustices may take such order in the matter as shall séem to them by their discretion to stand with reason and conscience by awarding of a â—ew Inquest and by setting fine New Inquest when the Jury cannot agree upon them that they shall find in default or otherwise as they shall think beâ—â— by their discretion like as they may do if one of the Iury die before the Verdict c. D. aâ—â— Student 158. If the Iury after their Evidence given unto them at the Barr do at their own Charges eat or drink either before or after they Where if the Jury eat or drink it shall avoid the Verdict and where only fineable be agreed on their Verdict it is finable but it shall not avoid the Verdict But if before they be agréed on their Verdict they eat or drink at the charge of the Plaintiff if the Verdict be given for him it shall avoid the Verdict But if it be given for the Defendant it shall not avoid it Et sic è converso But if after they be agréed on cheir Verdict they eat or drink at the charge of him for whom they do pass it shall not avoid the Verdict 1 Inst 228. To give the Iury money makes their Verdict void by two Iustices Leon. 1 part 18. If the Plaintiff after Evidence given and What delivered to the Jury after Evidence shall avoid their Verdict the Jury departed from the Barr or any for him do deliver any Letter from the Plaintiff to any of the Jury concerning the matter in Issue or any Evidence or any escrowle touching the matter in Issue which was not given in Evidence it shall avoid the Verdict if it be found for the Plaintiff but not if it be found for the Defendant Et sic è converso But if the Jury carry away any Writing unsealed which was given in Evidence in open Court this shall not avoid their Verdict albeit they should not have carried it with them Ib. By the Law of England a Jury after How the Jury ought to be kept by the Bayliff their Evidence given upon the Issue ought to be kept together in some convenient place without meat or drink Fire or Candle which some Books call an Imprisonment and without spéech with any unless When they may eat and drink See Smith's Common-wealth 74. it be the Bayliff and with him only if they be agréed After they be agréed they may in causes betwéen party and party give a Verdict and if the Court be risen give a privy Verdict before any of the Judges of the Court and then they may eat and drink and the next
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
punishment is to this end Ut poena ad paucos metus ad omnes perveniat for there is Misericordia puniens and there is Crudelitaâ—parcens And séeing all Tryals of real personal and mixt actions depend upon the Oath of 12 men prudent Antiquity inflicted this severe punishment upon them if they were attainted of Perjury 1 Inst 294. But now by the Stat. of 23 H. 8. cap. 3. The severity of this punishment is moderated if the Writ of Attaint be grounded upon that Statute But the party grieved may at his Election either bring his Writ of Attaint at the Common-Law or upon that Statute Wherefore let the Juror expect the greatest punishment when he offends 3 Inst 163. 222. And so I conclude as to the Iuror only with the words of Fortescue Quis tunc etsi immemor salutis animae suae fuerit non formidine tantae poenae verecundia tantae infamiae veritatem non diceret sic Juratus Who then though he regard not his Souls health yet for fear of so great punishment and for shame of so great infamy would not upon his Oath declare the truth But as to our Practicer I would give this one further Advertisement which relates also to Iurors When a Verdict has been given by a former Iury in the same Cause and on the same Evidence it is allowed to give the former Verdict in Evidence and I have known this Introduced by the Counsel as obliging to the latter Iury to find accordingly intimating that otherwise they do in effect perjure the former 12 men which may amuse render minds and draw them from the strict Inquiry into the Merits of the Cause in favour of their Predecessors which is a palpable mistake and misinformation for these Reasons 1. The same Evidence in the former Cause and Tryal perhaps was not so perspicuously delivered as in this 2. This latter Iury may be of more sagacicus and Comprehensive Iudgment than the former 3. The Directions of the Court which the Iury most héed may be more clearly delivered to this Iury. 4. The Matter in Contest perhaps was not in the former Tryal so clearly manag'd by the Counsel being not so well instructed as afterwards 5. And laâ—â—ly supposing the Evidence equally deliuered by the Witnesses apprehended by the Iury directed by the Court manag'd by the Counsel yet it 's no perjury or fault to differ in Iudgment for if 24 Iurymen were to try a Matter of Fact and 12 were of one Opinion and 12 of another who is in fault while they Iudge according to the best of their Knowledge and Skill to which only they are sworn And it 's a reasonable kindness to Iury-men to make good Construction of differing Iudgments among them while we sée how oft Iudges themselves differ in their Opinions on a matter stated equally to them all and that not only as to matter of Law but as to matter of Fact as attending Practicers may observe in Tryals at Earr in the several Iudges several Directions And this I thought good to advertise for that I have known Verdicts gained on this unwarrantable Suggestion against clear and express Evidence and could instance some Cases Sed verbum sat c. As to the difference betwixt the Judge and the Jury and that Question which has made such a noise viz. Whether a Jury is fineable for going against their Evidence in Court or the Direction of the Judge I look upon that Question as dead and buried since Bushel's Case in my Lord Vaughan's Reports yet some of the Ashes thereof I may sprinkle here without offence It doth appear there to have béen resolveâ— by all the Iudges upon a full Conference at Serjeants-Inn That a Jury is not fineable for going against their Evidence where an Attaint lyes And that it is Evident by several Resolutions of all the Iudges That where an Attaint lyes the Iudge cannot fine the Iury for going against their Evidence or Direction of the Court without other Misdemeanour And where an Attaint doth not lye as in Criminal Causes upon Indictments c. My Lord Vaughan says these words That the Court could not Fine a Jury at the Common Law where Attaint did not lye I think to be the clearest Position that ever I considered either for Authority or Reason of Law And one reason for this which can never be answered is The Iudge cannot fully know upon what Evidence the Iury give their Verdict for they may have other Evidence than what is shew'd in Court They are of the Vicinage the Judge is a Stranger they may have Evidence from their own personal knowledge that the Witnesses speak false which the Iudge knows not of they may know the Witnesses to be stigmatised and infamous which may be unknown to the Parties or Court And if the Iury knew no more than what they heard in Court and so the Iudge knew so much as they yet they might make different Conclusions as oftentimes two Iudges do and therefore as it would be a strange and absurd thing to punish one Iudge for differing with another in Opinion or Iudgment so it would be worse for the Iury who are Judges of the Fact to be punished for finding against the Direction of him who is not Iudge of the Fact But he that would be better satisfyed in this point may read that Case and the Authorities and Reasons given by my Lord Vaughan whom I must honour as a man of great reason It is shewed in that Case That muth of the Office of Jurors in order to their Verdict is Ministerial as not withdrawing from their fellows after they are sworn not receiving from either side Evidence after their Oath not given in Court not eating and drinking before their Verdict refusing to give a Verdict and the like wherein if they transgress they are Fineable But the Verdict it self when given is not an act Ministerial but Judicial and according to the best of their judgment for which they are not fineable nor to be punisht but by Attaint Nor can any man shew That a Jury was ever punisht upon an Information either in Law or in the Star-Chamber where the Charge was only for finding against their Evidence or giving an untrâ—e Verdict unless Imbracery Subornation â—r the like were joyned But the Fining and Imprisoning of Jurors for giving their Verdicts hath several times béen declared in Parliament an Illegal and Arbitrary Innovation and of dangerous Consequence to the Government the Lives and Liberties of the People This celebrated tryal by Iuries having béen confirmed by many Parliaments Littleton Sect. 368. tells us That as the Iury may find the matter at large that is a Special Verdict which the Court cannot refuse if it be pertinent to the matter put in Issue and leave the Law to the Court so if the Iury will they may take upon them the knowledge of the Law upon the matter and may give their Verdict generally as is put in their Charge As