Distress of either party this is a principal Challenge But if either party be within the distress of the Juror this no principal Challenge but to the favour If a Witnes Witness named in the Déed be returned of the Jury it is a good cause of Challenge of him So it is if one within age of one and twenty be returned Infant it is a good cause of Challenge Challenges arising from the Jurors own Act. Vpon his own Act as if the Juror hath given a Verdict before for the same cause albeit it be reversed by Writ of Error or if after Verdict Iudgment were arrested So if he hath given a former Verdict upon the same Title or matter though betwéen other persons But it is to be observed that I may speak once for all that in this or other like Cases Former Verdict he that taketh the Challenge must shew the Record if he will have it take place as a principal Challenge otherwise he must conclude to the favour unless it be a Record of the same Court and then he must shew the day and terme So likewise one may be challenged Indictment that he was Inditor of the Plaintiff or Defendant either of Treason Felony Misprision Trespass or the like in the same cause If the Juror be Godfather Godfather to the Child of the Plaintiff or Defendant or e converso this is allowed to be a good Challenge in our Books If a Juror hath béen an Arbitrator Arbitrators chosen by the Plaintiff or Defendant in the same cause and have béen informed of or treated of the matter this is a principal Challenge Otherwise if he were never informed nor treated thereof and otherwise if he were indifferently chosen by either of the parties though he treated thereof But a Commissioner chosen by one of the parties for examination of Witnesses in the same cause is no principal cause of challenge Commissioner for he is made by the King under the great Seal and not by the party as the Arbitrator is but he may upon cause be challenged for favour If he be of counsel Counsel Servant or of Robes or Fée or of either party it is a principal Challenge If any after he be returned Eat or drink at the parties charge do eat and drink at the charge of either party it is a principal cause of Challenge otherwise it is of a Trior after he be sworn Action brought either by the Juror against either of the parti s Actions of malice or by either of the parties against him which may imply malice or displeasure are causes of principal Challenge unless they be brought by Covyn either before or after the return for if Covyn be found then it is no cause of Challenge other Actions which do not imply malice or displeasure are but to the favour as an Action of debt c. More 3. Parson and Parishes In a cause where the Parson of a Parish is party and the right of the Church cometh in debate a Parishioner is a principal Challenge Otherwise it is in debt or any other Actâ—on where the right of the Church cometh not in question If eitâ—er party labour the Juror and give him any thing to give his Verdict To labour the Jury tâ—is is a principal Challenge But if either party labour the Juror to appear and to do his Conscience this is no Challenge at all but lawful for him to do it That the Juror is a Fellow-Servant Fellow Servant with either party is no principall Challenge but to the favour Neither of the parties can take that Challenge to the Polls To the Polls which he might have had to the Array Note if the Defendant may have a principal cause of Challenge to the Array if the Sheriff return the Jury Venire facias to the Corâ—ners the Plâ—intiff in that case may for his own expedition alledge the same and pray Process to the Coroners which he cannot have unless the Defendant will confess it but if the Defendant will not confess it then the Plaintiff shall have a Venire facias to the Sheriff and the Defendant shall never take any Challenge for that cause and so in like cases But on the part of the Defendant any such matter shall not be alledged and Process prayed to the Coroners because he may challenge the Jury for that cause and can be at no prejudice Challenge concluding to the favour Challenges to the favour when either party cannot take any principal Challenge but sheweth causes of favour which must be left to the conscience and discretion of the Triors upon hearing their evidence to finde him favourable or not favourable But yet some of them come néerer to a principal Challenge then other As if the Juror be of kindred or under the distress of him in the reversion or remainder or in whose right the Avowrie or Iustification is made or the like These be in principall Challenges because he in Reversion remainder or in whose right the Avowry or Iustification is is not party to the Record otherwise it is if they were made parties by aid Râ—script or Voucher and yet the cause of favour is apparent so it is of all principal causes if they were party to the Record Now the causes of favour are infinite and thereof somewhat may be gathered of that which hath béen said Favour and the rest I purposely leave the Reader to the reading of our Books concerning that matter For all which the rule of Law is that he must stand indifferent as he stands â—â—sworn The Subject may challenge the Polles where the King King is party And if a man be out-lawed of Treason or Felony at the Suit of the King and the party for avoyding thereof alledgeth imprisonment or the like â—t the time of the Outlawry though the Issue be ioyned upon a collateral point yet shall the party have such Challenges as if he had béen arraigned upon the crime it self for this by a meane concerneth his life also Propter delictum As if the Juror be attainted or convicted of Treason or Felony Challenges propter delictun or for any offence to life or member or in attaint for a false Verdict or for perjury as a Witness or in a conspiracy at the Suit of the King or in any Suit either for the King or for any subject be adjudged to the Pillory Tumbrel or the like or to be branded or to be stigmatique or to hâ—ve any other corporal punishment whereby he becommeth infamous Infamous for it is a maxime in Law Repellitur a sacramento infamis these and the like are principal causes of challenge So it is if a man be outlawed Outlawed in trespass debt or any other action for he is Exlex and therefore is not legalis homo And old Books have said that if he be excommunicated he could not be of a Iury. Sée
Vice Comiti i. e. to one who is Vice Comitis and hath the Regiment of the County instead of the Earl of that County to whom once it did belong As we are taught in the Mirror Chap. 1. Sect. â— Scil. That it appeareth by the 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 Vice Comites What great Repose and Trust both the King and Laws put in this great Officer The Oracle tells you What Trust in the Sheriff 1 Inst 168. That he is Shireve that is pâ—aefectus Comitatus Governour of the County For the words of his Patent be Commissimus vobis Custodiam Comitatus nostride c. And he hath a thréefold Custody triplicem Custodiam viz. first Vitae Justiciae for no Suit begins and no Proces is served but by the Sheriff And he is to return indifferent Juries for the tryall 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. To whom the Venire facias ought to be directed Yet notwithstanding the heighth and 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 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 Coroners or to some of them if the residue are not indifferent who in that Case are vice Vice Com. And if the Coroners are not indifferent Forrescue cap. 2. 5. then the Venire shall be directed Ad 2 Electores that is to two whom the Court shall chuse and déeme fit to retorn the Jury And to the retorn of these Elisors or Esliors Esliors ab Eligendo no Challenge Challenge will be admitted Bro. tit Venire facias 14. as to the Array But to the Polles 1 Inst 158. If one of the Sheriffs of London Sheriff 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 in nullo se intromittat cum executione istius brevis 18 E. 4. 3. Iudicial Writs say Cook and Sanders Plo. 74. may be directed to the Coroners As the Venire facias where the parties are at Issue there upon the surmise of the Plaintiff that the Sheriff is his Cozen and upon prayer that the Venire be directed to the Coroners Coroners for avoydance of his own delay that might happen 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 appeares to the Court by the Defendants confession that the Sheriff is not indifferent Examination But if the Defendant denies it then the process shall be awarded to the Sheriff because the Sheriff's Authority and profit shall not be taken away without cause apparant to the Court But if the Defendants will alledge 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 delayes are for the Defendants advantage The Defendant may not have a Venire facias to the Coroners and the Defendant may challenge the Iury for this cause and so is at no prejudice And sée in term H. 3. H. 7. fo 5. placit ult In a quare Impedit where the Defendant shewed how the Sheriff was Cozen 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. Venire facias once directed to the Coroners shall not be to the Sheriff afterwards When the Process is once awarded to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. bro. tit Venire facias 17. So the Entry is Ita quod Vice comes se non intromittat 18 E. 4. 3. And therefore where the Sheriff ought not to retorn the Venire Sheriff shall not return the Tales where he cannot the Venire faciar he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner And afterwards a Tales was awarded and it was returned by the Sheriff and it was tryed and a Verdict given and Iudgment And for this câ—use held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 1 part ult pub 574. bro. tit octo tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After Issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and after Verdiâ— Where the Coroner returns the Vâ—nire facias he ought to return the Tales it was moved in Arrest of Iudgement that the Tales de Circumstâ—ntibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgment For it is a mis-ryall not aided by any of the Statutes for process being once awarde to the Coroners the Sheriff afterwards is not the Officer to return the Iury no more than any other man And process ought alwayes to be returneâ— by him who is an Officer by Law to return it otherwise it is méerly void But afterwards upon view of the Record it apâ—eared that the Tales was returned by the Coroners No name to the Return and their names annexed thereto wherefore it was without further question But the Court said if their names had not béen annexed to the Tales yet it had béen well enough for they be annexed to the first Pannel And it shall be intended that the right Officer returned it and the usuall course is That to such Tales there is not any Officers names
that was meant to be returned or if no Return be upon any of the said Writs so as a Pannel of the names of the Jurors be returned or annexed to the said Writ or if the Sheriff or Officers name having the Return thereof is not set to the Return of any such Writ so as upon Examination it be proved that the said Writ was returned by the Sheriff or Under-Sheriff or such other Officer In all these Cases the Iudgment shall not be stayed nor reversed for these defects But this Act doth not extend to any Writ Declaration or Suit of Appeal of Felony or Murther nor to any Indictment or Presentment of Felony or Murther or Treason nor to any Process upon any of them nor to any Writ Bill Action Popular Actions c. or Information upon any popular or penall Statute Wherefore since Informations and popular Actions are grown so frequent the Attorneys c. herein had best beware of these Jeofailes By this Statute many defects are remedied which were not by the Statutes of 32 H. 8. Cap. 30. and 18 Eliz. Cap. 14. yet all are not for this Act onely helps the mis-naming of a Juror in Sur-name or addition Christian name mistaken in the Venire facias incurable and saith nothing of his Christian name wherefore I conceive the Law in Codwells Case in the fifth Report remains as it was then which is that if a Juror be mis-named in his Christian name on the Venire though he be named right in the Distringas and Postea yet this is ill and not amendable and with this agrées Goddards Case Cro. 2. part 458. And since the Court Cro. 1 part fo 203. doubted thereof Christian name right in the Venire facias and wrong in the Distringas I may well put the Question if a Juror be right named upon the Venire and mis-named in his Christian Name in the Distringas c. whether this is amendable or not without dispute it is not by the Statute 21 Jacob for that onely helps the Sur-name But with Reverence to the Courts doubt I conceive clearly it is hâ—lpen by the Statutes of 32 H. 8. and 18 Eliz. as a discontinuance of Process and I may with the more confidence believe it because in Codwells Case aforesaid where in the Pannell of the Venire a Juror was named Palus Cheale and in the Distringas c. he was right named Paulus Cheale and so because he was mis-named in his Christian Name in the Venire Iudgment was arrested But it is there adjudged that if he had béen well named on the Venire and mis-named upon the Distringas or Postea then upon Examination it should be amended But the Countess of Rutlands Case lib. 5. 42. is expresse in the point and so is Cro. 3. part 860. 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 fatall in the Venire that it causes a Mistriall as in the mistake of a Jurors Christian Name or where a Juror not returned is sworn c. then the Verdict is to be set aside and a Venire facias de novo 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 and recorded by the Court One Jury shall not try a cause twice 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 Iudgment 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. In Yelvertons Reports fo 64. Album breve the County left out in a Veniâ—e facias the Case is That a Venire facias was made Vice-Comiti leaving out Salop for which there was a blanck leâ—t in the Writ But re vera it was returned by the Sheriff of Salop. In Arrest of Iudgment it was alleadged that the Venire facias was vitious 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 ayded by the Stat. of Jeofailes For it might rather be called a blanck then a Writ because it was directed to no Officer Severall Venire facias In Cases where there are severall Defendants who plead several Pleas the Plaintiff may chuse either to have one Venire facias for all or severall for every one of the Defendants But if you will be ruled by Stamford the surest way is to have a Venire facias against every one and then one cannot have benefit of the others Challenge neither shall the death of one abate the Venire facias against the other This he speaks of in Appeals but if the Court once award a joint Venire facias you cannot have severall Venires afterwards though there be nothing done upon the first except it be upon matter de puisne Temps as the death of one of the Defendants c. li. 8. 66. li. 11. 5. 6. Stamf. 155. bro. tit Venire facias 2. 35. But now it is the usuall course to have but one Venire facias One Venire facias in severall Issues upon severall Issues though against severall Defendants Cro. 3. part 866. hob 36. 64. And so usuall that the Court declared Cro. 2. part 550. That there never shall be severall Venire facias to try severall Issues in one County For what néed the Plaintiff trouble himself and the Country with severall when one Iury will serve his turn Et frustra fit per plura quod fieri potest per pauciora But other wise if it be in two Counties Cro. 3. part 866. After Issue joyned by two Defendants if one of them die Venire facias between the Plaintiff and 2. Defendants where one is dead and then a Venire facias is awarded betwixt the Plaintiff and both the Defendants and so in the Hab Corpora and Distringas yet this shall not vitiate the Venire facias c. to make Error because though one of the Defendants be dead yet the other being alive it is sufficient And there néeds be no surmise in Iudiciall Writs No surmise in Judicial Writs of death in one of the parties that one of the Defendants is dead It is time enough to shew it to the Court at the day in banck Cro. 1 part 4. 26. But if there be two Defendants and the Venire facias be but against one of them 't is Error 7 H. 4. 13. and bro. tit ven fac 11. Cro. 1. part 426. Venire facias dated before the Action brought If the Venire facias beares date before the
Visne Visne next adjoyning in what Cases or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where the men are priviledged from serving on Juries out of that place as the Isle of Ely c. the Plaintiff may pray a Venire facias of the Visne next adjoyning and if the Visne be in Wales Wales ou bâ—iefe le Royne Court the Venire facias shall be directed to the Sheriff of the next English County to cause the Jury to come De propinquiori Visne of his County to the Visne in Wales adjoyning Fitz. Abridg. tit Visne 8. Jurisdict 24. If the Visne is in some part misawarded Visne misawarded in part or sued out of more places or fewer places than it ought to be so as some place be right named this is ayded by the Statute of Jeofailes which hath ended the differences in many Cases reported in our Books concerning this point wherefore I purposely omit them Error Infamy where the Land lies for that the Iuâ—gment was given by default against the Defendant being an Infant upon Issue that he was of full age adjudged that the Tryal should be in Norfolk where the Land was and not in Middlesex where the Action was brought Cro. 3. part 818. If the Visne cometh from a wrong place May be out of a wrong place by Consent yet if it be per assensum partium and so entred of Record it shall stand for Omnis Consensus tollit errorem 1 Inst 125. CAP. IX Challenges YOu have already séen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges And fâ—r this I shall present you with my Lord Cooks Collection 1 Inst 156. The rather because he hath taken more pains in the gathering and methodizing this Learning then any other one point whatsoever And I know no Reason wherefore I may not as well use his method for the perfection of this Treatise as he hath used other mens method and matter especially Perkins whom he seldom cites for the perfection of hiâ— Iudgment hath the preheminence of Invention and the Law hates nothing more then Innovation wherefore I shall follow his method in the description of a Challenge omitting the Book Cases and Authorities cited by him Challenge Challenge is a word common as well to the English as to the French and sometimes signifieth to claim and the Latine word is vendicate sometime in respect of revenge to challenge into the field and then it is called in Latine vindicare or provocare Sometime in respect of partiality or insufficiency to challenge in Court persons returned on a Jury And séeing there is no proper Latin word to signifie this particular kind of Challenge they have framed a word anciently written Chalumniare and Columpniare and Calumpniare and now written Calumniare and hath no affinity with the verbe Calumnior or Calumnia which is derived of that for that is of a quite other sense signifying a false accuser and in that sense Bracton useth Calumniator Calumniator to be a false accuser but it is derived of the old word Caloir or Chaloir which in one signification is to care for or foresée And for that to challenge Jurors is the mean to care for or foresée that an indifferent tryal be had it is called Calumniare to challenge that is to except against them that are returned to be Jurors and this is his proper signification But sometimes a Sommons Sommonitio is said to be Calumniata and a Count to be challenged but this is improperly And forasmuch as mens lives Fames Lands and Goods are to be tryed by Jurors it is most necessary that they be Omni exceptione majo es and therefore I will handle this matter the more largely Challenge is twofold A Challenge to Jurors is twofold either to the Array or to the Polls to the array of the principall Pannell To the Array and to the array of the Tales And herein you shall understand that the Jurors names are ranked in the Pannel one under another which order or ranking the Jury is called the Array and the Verbe to array the Jury and so we say in common spéech Battail array Array for the order of the battail And this array we call Arraiamentum and to make the array Arrairare derived of the French word Arroier so as to challenge the array of the Pannel is at once to challenge or except against all the persons so arrayed or impannelled in respect of the partiality or default of the Sheriff Coroner or other Officer that made the Return And it is to be known Principall Challenges that there is a principal cause of challenge to the Array and a challenge to the favour principall in respect of partiality as first if the Sheriff or other Officers be of kindred or affinity to the Plaintiff or Defendant if the affinity continue Secondly If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole array shall be quashed So it is if the Sheriff return any one that he be more favourable to the one than to the other all the array shall be quashed Thirdly if the Plaintiff or Defendant have an Action of Battery against the Sheriff or the Sheriff against either party this is a good cause of challenge So if the Plaintiff or Defendant have an action of debt against the Sheriff but otherwise it is if the Sheriff have an action of debt against either party or if the Sheriff have parcel of the Land depending upon the same Title or if the Sheriff or his Bayliff which returned the Jury be under the distress of either party or if the Sheriff or his Bayliff be either of Counsel Atturney Officer in fée or of Robes or servant of either party Gossip or Arbitrator in the same matter and treated thereof And where a subject may challenge the array for unindifferency there the King being a party may also challenge for the fame cause as for Kindred or that he hath part of the Land or the like and where the array shall be challenged against the King you shall read in our Books By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a Péer of the Realm Where there must be a Knight returned of the Jury or Lord of Parliament be demandant or Plaintiff Tenant or Defendant there must a Knight be returned of his Iury be he Lord Spiritual or Temporal or else the array may be quashed but if he be returned although he appear not yet the Iury may be taken
And in Iudgement of Law any of the said degrées of Nobility are Péers to another As if an Earl Marquess or Duke be to be tryed for Treason or Felony a Baron or any other degrée of Nobility is his Péer In like manner a Knight Esq 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 Commonsis to have a Tryal either at the Kings Suit or betwéen party and party a Péer 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 Fréeman 3. Annui sensus i. liberi tenementi First See before Quorum quilibet habeat 4 l. c. what yearly Fréehold a Inter ought to have that passeth upon Tryal of the life of a man or in a Plea reall or in a Plea personal where the debt or damage in the Declaration amounteth to 40. Marks Vide Littleton Sect. 464. Secondly this Fréehold must be in his own right in Fée-simple Fée tail for terme 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 Fréehold within ancient Demesne will not serve but the debt or damage amounteth not to 40. Marks any Fréehold sufficeth Thirdly he must have Fréehold in that County where the cause of the Action ariseth and though he 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 Fréehold be determined he may be challenged for insufficiency of Fréehold 4. Hundredorum First by the common Law in a Plea reall mixt and personal Challenges propter defectum hundredocum 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 Iury is double yet the Hundredors are not double Secondly If he hath either Fréehold in the Hundred though it be to the value but of half an Acre or if he dwell there though he hath no Fréehold in it it sufficeth Thirdly if the cause of the Action riseth in divers Hundreds yet the number shall suffice as if it had come out of one and not severall Hundredors Hundredors out of each Hundred Fourthly if there be divers hundreds within one Léet or Rape if he hath any Fréehold 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 No Hundredors whâ—re the one party is Lord of the Hundred or the like there néed be 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 this notice remains otherwise as hath béeâ— said for his insufficiency of Fréehold 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 Eightly 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 but remain praeter H. that is besides for the Hundred and albeit he dwelleth or have Land in the Hundred yet must he have sufficient Fréehold Challenges propter affectum 3. Propter affectum And this is of two sorts either working a principall Challenge or to the favour And again a principal Challenge is of two sorts either by Iudgement of Law without any Act of his or by Iudgment of Law upon his own Act. And it is said that a principal Challenge Principall Challenge is when there is express favour or express malice First without any Act of his as if the Iuror be of blood or kindred to either party Consanguineus which is compounded ex Con sanguine quasi eodem sanguine natus Kindred as it were issued from the same blood and this is a principal challenge for that the Law presumeth that one Kinsman doth favour another before a stranger and how far remote so ever he is of kindred yet the Challenge is good And if the Plaintiff challenge a Juror for kindred to the Defendant it is no Counterplea to say that he is of kindred also to the Plaintiff though he be in a néerer degrée For the words of the Venire facias forbiddeth the Juror to be of kindred to either party If a body politick or incorporate Bodies Politick sole or aggregate of many bring any Action that concerns their body politick or incorporate if the Juror be of kindred to any that is of that body although the body politick or incorporate can have no kindred yet for that those bodies consist of natural persons it is a principal challenge A Bastard cannot be of kindred to any and therefore it can be no principal challenge And here it is to be known that Affinitas Affinity Affinity hath in Law two senses In his proper sense it is taken for that néerness that is gotten by mariage Cum duae cognationes inter se divisae per nuptias copulantur altera ad alterius fines accedit inde dicitur Affinis In a larger sense Affinitas is taken also for Consanguinity and Kindred as in the Writ of Venire facias and other where Affinity or Alliance by Mariage is a principal Challenge and equiâ—alent for Consanguinity when it is betwéen either of the parties as if the Plaintiff or Defendant marry the Daughter or Cousin of the Juror or the Juror marry the Daughter or Cousin of the Plaintiff or Defendant and the same continues or Issue be had But if the Son of the Juror hath maried the daughter of the Plaintiff this is no principal Challenge but to the favour because it is not betwéen the parties Much more may be said hereof sed summa sequor fastigia rerum If there be a Challenge for Cosinage Cosinage he 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 formall If the Juror have part of the Land that dependeth upon the same Title Depending on the same Title If a Juror be within the Hundred Leet or any way wiâ—hin the Seigniory immediately or mediately or any other distress
charges or lesse if he accept it do not appear to give his testimony he forfeits 10 l. to the party dampnified and must recompence his dammages 5 Eliz. 9. If a Witness commit wilful perjury he looseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz. 9. Records Records prove themselves and cannot be proved by Witnesses but Copies of them must and are good Evidence and so may any thing done in the County-Court Court-Baron or Hundred-Court c. be proved by Witnesses A Fine Fine or common Recovery may be 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 usuall Evidence that there is such a Fine though they which saw the Fine are also good Evidence Plow 410. Stiles 22. Depositions Depositions in the Ecclesiastical Court 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 As upon plene administravit if it be proved that the Execution hath goods of the Testators in his hands Assets 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. So if a Lease Lease be pleaded a Lease upon Condition is good Evidence H. 8. 20. because the Genus comâ—rehends the Species So of a Feoffment pleaded a Feoffment upon Condition or a Fine which is Feoffment of Record is good Eâ—â—dence 44 E. 3. 39. A speciall Agréement is evidence for an agréement Plo. 8. But if a Feoffment Feoffment be pleaded in Fée upon Issue non feoffavit modo forma a Feoffment upon Condition is no Evidence because it â—oth not answer the Issue and â—heresoever Evidence is contrary to the Issue and doth not maintain it the Evidence is not good 11 H. 4 3. Feoffments 41. Vpon an Assumpsit to the Husband an Assumpsit Assumpsit to the Wife and his agreement is good Evidence 27 H. 8. 29. In Challenge Challenge to the Array because made 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 a Suit against an Executor Administrator â—r Heir Assets Assets in London to prove Assets in any other place is sufficient li. 6. 47. Dyer 271. Accompt Accompt pleaded before two 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 What Evidence upon the generall Issue which proves the Plaintiff hath no cause of Action or which doth intitle the Defendant 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 Detinue but he cannot give in Evidence that the Goods were vawned to him for money and that it is not paid but he must plead it 1 Inst 283. Vpon Not guilty in Battery In Battery Son assault demesne is no Evidence for thereby the Battery is confessed Ib. neither is Not guilty good Evidence â—pon Son assault demesne Vpon Not guilty in Trespass Trespass Insufficiency of the Plaintiffs mounds or to justifie for a Rent-Charge Common or the like is no good Evidence Ib. So upon the Plea Nul wast fait in 〈◊〉 Action of Wast Wast he may give in evidence any thing that proveth it 〈◊〉 Wast as by Tempest by Lightâ—ing 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 Non est factum 'T is no Evidence to shew that the Bond 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 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 Déed 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 Iury may finde it specially Vpon Not guilty in Trover Trover and Conversion a Demand and denyall of the Goods is good Evidence Plo. 14. li. 10. 57. Cro. 1 part ult pub 495. Hob. 187. Vpon plene administravit Plene Administravit the Executor cannot give a Iudgement in Evidence Kelw. 59. nor payment of Debts by Contract in debt brought upon an Obligation upon nil debet in Debt for Rent That the Lessor entred into part of the Land is no good Evidence Goldf 81. But non demisit is 9 H. 7. 3. Vpon Not guilty in an Action upon the Statute de parco fracto Parco fracto That the Plaintiff hath no Park is good Evidence 19 H. 8. 9. So upon Not guilty in Trespas in the Plaintiffs Warren Warren Evidence that he hath no Warren is good 10 H. 6. 17. Kitchin 119. A Shop-book Shop-books no evidence after a year 7 Jac. cap. 12. In debt for Arrerages of an accompt Accompt upon Nil debot modo forâ—â— No accompt is good Evidence 1 H. 6. 26. Vpon Not guilty in trespas a Loase for years 12 H. 8. 2. or that locus in quo Trespass c. is the Freehold of another 4 E. 4. 5. is good evidence but upon this he cannot â—â—â—tifie his entry upon the place by a strangers Licence or Command be generall Issue 81. because this is a Iustification by way of excuse â—either is a Lease at Will good evidence in this case So upon not guilty in trespass Not guilty in Trespass for 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 generall Issue 81. because the trespass is confessed But that the stranger gave them to the Defendant is good 9 H. 6. 11. If the Defendant plead payment to a Bond or Bill Payment by presumption and it appeares the debt is very old and it hath not â—éen demanded nor any use paid for it many years common presumption is good evidence that the money is paid and the Juries use to finde for the Defendants in
Writ of Trespass Quare vi armis c. doth not lye against the Lord but shall abate Littleton Sect. 485. Also in a Writ of Trespass for Battery or for Goods carried away The Verdi nay finde the Defendant guilty of the Trespass at another day or place 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 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 Modo forma when words of soâ—â—â— that where the Issue taken 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 is traversed When of substance must be found by the Verdict as if a Feofment be alledged by two and this is traversed Modo forma So in non assumpsit modo forma upon an Indebitatus assumpsit there modo forma were not materiall Secus when the action is upon a collaterall promise And it is found the Feoffment of one there Modo forma is materiall So if a Feoffment be pleaded by Déed and it is traversed Absque hoc quod feoffâ—vit Modo forma upon this Collateral issue Modo forma are so essentiall as the Jury cannot finde a Feoffment without Déed Co. Littleton 282. But here is a diversity to be observed That albeit the Issue be upon a Collaterall 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 are but words of form as in the aforesaid case of the Lord and Tenant it plainly appeares for it was all one Trespass Quare vi armis lies not against the Lord for distraining his Tenant without cause whether the Tenant held by fealty onely or by fealty and Rent because if either was true the Tenant could have no Trespass Quare vi armis against the Lord in that use by the Statute of Marlbridge cap. 3. After the Verdict recorded the Jury cannot vary from it Jury cannot vary from their Verdict when it is recorded 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 Oâ—â—â—cict and privy Verdict and a privy Verdict given out of Court before any of the Iudges of the Court 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 private Verdict as if that find for the Plaintiff The Jury may vary from a Private Verdict the open Verdict may be for the Defendant and this shall stand and the private Verdict shall not be déemed 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 usuall 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 Bro. tit Verdict 12. And also in the Court it self if they pronounce 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 fortiore upon better advisement they may do so when their first Verdict 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 although it be imperfect Jury shall give but one Verdict in the same cause 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 Verdict good in part and naught 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 doubtfull 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 speciall matter may be pleaded together with the generall Issue c. As that the Obligation put in suit was sealed by him and delivered to A. to kéep till certain Indentures were made betwéen the Plaintiff and him A Special non est sactum 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 generall conclusion the matter precedent shal not be wayed for it were perillous to put the speciall matter in the mouth of Lay-people 9 H. 6. 38. A Jury of Middlesex was demandeâ— in the Common-Pleas Enquest by default the first day of the Terme 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
openly in Court Ib. Where the Jury cannot be dischaâ—ged befâ—re Verdict Neither can a Jury sworn and charged in case of life or member be discharged by the Court or any other but they ought to give a Verdict And the King cannot be non-suit The King cannot be nonsuit for he is in Iudgment of Law ther present in Court but a common person may be nonsuit And in civill actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. In Hillary Terme 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 agréed 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. Juâ—ors fined And the Plaintiff had Iudgment upon the Verdict Dyer 37. And Dyer 218. At the Nisi prius the Iury after their charge given returned and said that they were all agréed except one who had eâ—t a Pear and drunk a draught of Ale for which he would not agrée Jurors at the Nisi prius fined in bank for eating peares and drinking Ale 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 the Iurors being retired into a House for to consider of their Evidence Fined for having Figgs and Pippins about them they remained there a long time without concluding any thing and the Officers of the Court who attended them séeing 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 thrée 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 fine 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. Fined for eating Raisins and Dates The 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 an well before as after they were agréed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King 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 In Ejectione firme it was found for the Defendant thrée 〈◊〉 the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff untill th y were searched and the Sweet-meats found anâ— then did agrée with the other nine and gave Verdiâ—t for the Defendant It was the Opinion of the Iustices that whether they eat or not they were finable for having of the Sweet-meats with them for that is a very great misdemcanor Godbolt 353. Jurors careed 40 Assise Placito 11. The Iustices said 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 Sarr to confer of their Verdict â—nd one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gone 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 misdemeanor 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. The Plaintiff delivered an escrowl to a Iuror impanelled Escrowle delivered to a Juror before he was sworn Vitiates the Verdict before he was sworn who afterwards being sworn and gone with the Iury from the Barr to consider of the Verdict shewed the same Escrowle to his Companions who found for the Plaintiff The Minister who kept the Enquest informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgement 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 Escrowl 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. Church-Book delivered to the Jury act of Court Pasche 38 Eliz. Inter Vicary at Farthing 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 〈◊〉 or no for the Iustices differed 〈◊〉 opinion Popham and Gawdy that â—t should not Fenner and Cleach â—â—t it should the Negative Iuâ—â—â—â—es gave these Reasons That â—â—e Book was delivered in Evidence in the Court and so the other pâ—rty might answer to it and that the Court had informed the Iury of the validity thereof how farr they were to believe it 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 Iudgement was afterwards given for the Plaintiff sée Mores Reports 452. The Books differ Consider the Reasons in the former cases for Cro. makes Clinch give 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 out of Court should have any favour at all Hill 40 Eliz. Rot. 847. In arrest of Iudgment after Verdict Escrowle from one who was no party it was alledged that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Eviâ—ence at the Tryall and adjudgeâ— no cause to arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. In a Writ of Error the first Error assigneâ— was that Termino Trin. twelve Iurors and no more did appear Jury adjourned This ex assensu partium was adjourned untill 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 Juror depart after he is sworn he shall be fined 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 offered 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 Embracâ—ors Dâ—cies tantum Attaint several fines on Jurors What Issues they forfeit and of Judgement for striking a Juror in Westminster YOu have already heard how the Court may fine the Iurors for their misdemeanors in giving up their Verdict I will procéed in shewing what punishments they are lyable unto if they neglect their duty and doubtless no men have more néed of knowing what penalties the Law inflicts on their offences then common Iurors who too often being preingaged with favour to the Plaintiff or malice against the Detendant Et sic e converso or with common Interest as they call it where Tythes or Commons are in question will neither hearken to their Evidence nor â—â—rection of the Iudge But subvert the whole drift of the Common Law which will have them of the Neighbour-hood where the fact was committed to the end that they knowing most of the fact may consequently give the best Verdict yet contrarywise Iurors which live nearest do now a dayes most commonly so fetter themselves with favour or animosities to the parties that those which live furtheâ— off as Iuries from other Counties for the most part gide the cleanest Verdicts And how should the Iudges remedy this mischief but by severely punishing those Iuries which offend the Law in this will be their Guide for without doubt excepting life and member tâ—e Law hath provided more severe punishments against Iuries then against any other offendor whatsoever as well knowing that corruptio optimi est pessima And common Iurors generally have nothing to do with this verse Oderunt peccare boni virtutis amore Therefore 't is fit they should be concerned in the next Oderunt peccare mali formidine poenae wherefore the description of what this poena is shall be the conclusion of this Treatise If any Iuror take a reward to give his Verdict The penalty of Jurors taking rewards and be thereof attainted at the suit of other than the party and maketh fine he which sueth shall have half the fine and if any of the parties to the Plea bring his Action against such Juror he shall recover his damages And the Juror so attainted shall have imprisonment for one year which imprisonment shall not be pardoned for any fine this is by the Statute of 34 E. 3. cap. 8. 5 E. 3. ca. 10. It is accorded Shall not serve of any other Inquest That if any Juror in Assises Juries or Enquests take of the one party or of the other and be thereof duly attainted That hereafter he shall not be put in any Assises Iuries or Enquests and nevertheless he shall be commanded to prison Imprisoned and ransomed that is fined and further ransomed at the Kings will And the Iustices before whom such Assises Iuries and Enquests shall passe shall have power to enquire and determine according to this Statute A man would think that these Statutes should have frighted any Iuror from taking Rewards to give his Verdict But Quid non mortalia pectora cogis Auri sacra fames So sacred is this love of money that Conscience her self must vail to it and not stand in competition with such allurements wherefore the Law did redouble its force nay more produced a Decies tantum scil That a Iuror taking reward to give his Verdict shall pay ten times so much as he hath taken which forfeiture my thinks should make even those who love money best refuse to take mony upon such an account because it is like a Canker in their Estates depriving them in the end of ten times more then it brought for which hear the Statute 38 E. 3. cap. 12. Deâ—ies tantum Item As to the Article of Iurors in the 24th year it is assented and joyned to the same that if any Iurors in Assises sworn and other Enquests to be taken betwéen the King and party or party and party do any thing take by them or other of the party Plaintiff or Defendant to give their Verdict and thereof be attainted by process contained in the same Article be it at the suit of the party that will sue for himself or for the King Embraceor or any other person every of the said Iurors shall pay ten times as much as he hath taken And he that will sue shall have the one half and the King the other half And that all Embraceors that bring or procure such Enquests in the Country to take gain or profit shall be punished in the same manner and form as the Iurors And if the Iuror or Embraceor so attainted have not whereof to make grée in the manner aforesaid he shall have the imprisonment of one year And the intent of the King of Great men and of the Commons is That no Iustice or other Minister shall enquire of office upon any of the points of this Article but onely at the Suit of the party or of other as afore is said Vpon which Statute there is a Writ called a Decies tantum and who will may bring it for it is a popular Action and lies as you sée where any of the Iurors after he is sworn taketh of one party or of the