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
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
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
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
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
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.
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
the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their Latch 4. pleasure though by the opinion of Dodrige It is the best way to give Iudgment upon the Demurrer first because when the issue comes afterwards to be tryed the Jury may assess Damages damages for the whole A Scire facias was brought on a Recognisance in Chancery the Terre-tenants pleaded several Pleas the Plaintiff demurred to one and took issue on the other the Record was sent into B. R. to try the issue and it was tryed and Verdict pro Plaintiff the demurrer not being argued and it was adjudged per R. B. that Iudgment ought to be given on both by that Court Jeffreyson and Dâ—wson's Case Hill 21 22 Car. 2. B. R. vide for these things 1. Roll. abr 534 535. Roll. rep 287. and in the principal Case 4 Inst 80. was denied to be Law An Immaterial issue joyned which will Immaterial issue not bring the matter in question to be tryed is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader because this is matter of substance for if there were no issue there could be no Verdict and so it is as if nothing had béen done in the cause In an Action against two the one pleads Plea to the Writ in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personal against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth only to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personal Action the discharge of one is the discharge of both As for example if one of the Defendants Release in Trespass pleads a Release to himself which in Law extends to both and the other pleads not guilty which extends but Rolls tit Tryal 628. to himself or if one pleads a Plea which excuseth himself only and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof because the discharge of one is the discharge of both Discharge of one dischargeth both But in a Plea real it is otherwise for every Tenant may lose his part of the Land as if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea Brown and Stamford Iustices consulted with Grammarians in things of Grammar and Hulls a Batchelor of Law Tempore Hen. 6. was called into Court to shew the difference between precise and causative Compulsion Vide Plow 122. 127 128. Pasch 16 Car. 2. B. R. An action of Trover c. was brought de sex Capitalibus fibulatis Anglice 6 laced Coifs after Verdict for the Plaintist it was moved in Arrest of Iudgement that the Latine words were both Adjective and so not certain but it was answered that Capaital is a Substantive and the Nomenclator of Westminster School was produced to warrant it and it was adjudged for the Plaintiff accordingly and the Court allowed that authority before Rider's Dictionary CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs When well awarded c. HAving given you the Epitome of what Tryals are allowed by the Common Law and what shall be tryed per pais and what not we shall now apply our selves more particularly to the Tryal by Juries And because a Venire facias is the foundation and Causa sine qua non of a Jury I mean in Civil Causes for in Criminals as upon Indictments the Justices of Gaol Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriff without any process directed to him yet process may be made against the Jury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Praecipimus tibi Venire facias quod venire facias coram Just ciariis nostris de Banco apud Westm tali die duodecim liberos legales homines de vicinet de C. quoâ—um quilibet habeat quatuor libras terrae tenement vel reddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patriae inter partes praedict de placito c. quia tam idem D. quam praedict F. inter quos inde contentio est posuer se in Jur. illam Et habeas ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch terms them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve free and lawful men of his County to resolve the question of the fact in dispute between the parties upon the issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod inquiratur per paâ—riam by the Plaintiff and issue joyned thereupon the Court awardeth the Venire faciâ—s vid Ideo fiat inde Jurat And if they come not at the day of the Writ returned then shall go forth against them an Habeas Corpora and Distringas to bring them in to try the matter The which two last Writs are usually made with this clause Nisi prius Justiciarii venerint c. and are returnable after the time of the Judges coming their Circuit And first you see it is directed Vicecomiti Sheriff i. e. to one who is Vicecomes 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. 3. scil That it appeareth by the
but by one of the Coroners or for affinity in one c. Yet the Process shall still go to the Coroners Ita quod the Coroner se non intromittat If Default be in the Sheriff and To whom Process shall be directed for default in the Sheriff and Coroners Coroners the Court may choose two Esliors and if the parties can say nothing against them they shall make the Pannel But the Distringas shall not be directed to Esliers for the Court cannot make Officers to distreyn the Kings Liege people but the King may 8 H. 6. 12. dubitatur Process may be directed to the Justices of Assise by assent of parties not without When a Pannel is made by the Esliors they shall afterwards serve all Process that comes upon this as the Sheriff should 15 E. 4. 24. 18 E. 4. 3 8. Rolls tit Tryal 670. For it may be the Sheriff will distreyn only those who are his friends and be partial When the Process is once awarded Venire facias once directed to the Coroners shall not be to the Sheriff afterwards to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. Bro. tit Venire facias 17. So the Entry is Ita quod Vicecomes se non intromittat 18 E. 4. 3. 8 H. 6. 12. And therefore where the Sheriff ought Sheriff shall not return the Tales where he cannot the Venire facias not to retorn the Venire he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner and afterwards a Tales was awarded and it was retorned by the Sheriff and it was tryed and a Verdict given and Iudgement And for this cause held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 3. par 574. Bro. tit Octo. Tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and Where the Coroner returns the Venire facias he ought to return the Tales after Verdict it was moved in Arrest of Iudgement that the Tales de Circumstantibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgement For it is a mis-tryal not aided by any of the Statutes for process being once awarded to the Coroners the Sheriff afterwards is not the Officer to return the Jury no more than any other man And process ought always to be returned by him who is an Officer by Law to return it otherwise it is meerly void But afterwards upon view of the Record it appeared that the Tales was returned by the Coroners and their names annexed thereto wherefore it was without further question But the Court said if their names had not been annexed No name to the Return to the Tales yet it had been well enough for they be annexed to the first Pannel And it shall be intended that the right Officer return'd it and the usual course is That to such Tales there is not any officers name subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed but it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgement But if the Venire be awarded to the Coroners Venire facias to the Sheriff after one awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time or else to Esliors sice converso In Error of a Iudgement in Chester Venire facias to the Coroners after one to the Sheriff the parties being at issue a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vicecomes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cozenage betwixt him and the Sheriff which was awarded accordingly and at the day of tryal the Defendant made default and there upon Iudgement Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not material Cro. 3. part 853. But the Defendant might have demurred No Venire facias to the Coroners after one to the Sheriff to this prayer For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the Array nor have a Venire afterwards to the Coroners because the Sheriff is his Cousin or for any other principal challenge whereof he might by common intendment have Conusance when he so prayed the Venire facias for upon shewing this Cause at first he might have prayed Process to the Coroners but for a principal challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Sheriff c. he may afterwards challenge the Array when they appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to If the Defendant denies the Planitiffs suggestion he shall have no benefit of it by Challenge the Coroner because he is of kindred to the Sheriff if the Defendant will not confess this but denies it this shall be entred and the Defendant shall not challenge the Array for this cause afterwards Br. tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryal without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff
at Common Law and Tales by the Statute the first called only Tales the second Tales de circumstanubus the last of which can't be granted at a Tryal at Bar which is a Tryal at Common Law for there it must be only Tales by Writ annexed to the Venire facias But Tales de circumstan tibus is given by Statute to Tryals by Assise and Nisi prius per Stat. 35 H. 8. 6. Yet such a Tales to an indictment in Wales was out of that Statute and helped by 4 5 Ph. Mar. 7. If the Issue be to be tryed per two Counties and one full Inquest appear of one Tales in what Cases it shall be granted County but the Inquest remain for default of Jurors of the other County A Tales shall be awarded to the County where the de fault is not to the other If a Juror die after he is Impannelled a Tales shall issue not a Venire facias Vpon a Pluries Distringas three only appear What persons may have a Tales the Plaintiff prays another Distringas without praying a Tales yet if the Defendant pray a Tales the Court ought to grant it D. 20 El. 359. 2. A Tales shall be granted in an Attaint if In what Cases all the Grand Jury make default It cannot be granted at the day of the At what time return of the Venire facias If the Venire facias be good and the Hab. Corpus ill if the Pannel be affirmed yet the Tales is void for in effect there is only a Venire facias returned and then no Tales If the Defendant hath a Hab. Corpus Tales with a Proviso with a Proviso yet the Tales ought not to be granted with a Proviso at the Defendants request before a default in the request of a Tales in the Plaintiff At Common Law before the Statute by Custom of a Court a Tales de circumstantibus might be granted for this is a good Custom Dubitatur Rolls tit Tryal 672. If great persons are concerned and by Tales denyed their labouring the Jury doth not appear and Tales men are prepared for their turn and there is a great tumult de circumstantibus The Justices of their discretion may deny a Tales and adjourn in Bank notwithstanding the Statute The principal Pannel must stand or else there can be no Tales If the Bayliff of the Franchise answer that there be not sufficient of his Bayliwick the Justices may award a Tales de circumstantibus to be returned by the Sheriff If the Tenant for life pray in aid of the King who hath the reversion the Justices cannot grant a Tales de circumstantibus because the King is concerned If two Coroners or Esliers return the Pannel one of them cannot return the Tales c. If the Defendant sue the Writ of Nisi prius by Proviso yet the Plaintiff may have a â—ales c. The Sheriff may return 24. 40. or any number upon the Tales de circumstantibus And it may be prayed by Attorney although Attorney the Statute doth not mention an Attorney as well as in proper person The Vouchee in a praecipe quod reddat may pray a Tales though he be neither Plaintiff nor demandant in the first action If there be three Plaintiffs in Replevin c. and one of them makes default at the Nisi prius the other two cannot pray a Tales otherwise of two Coparceners Mayor and Commonalty in their proper persons cannot pray a Tales A Bishop or Abbot may Two Plaintiffs in Trespass and at the Nisi prius the Defendant shews a Record to the Court by which it appears that one of the Plaintiffs was Outlawed after the last continuance the other cannot pray a Tales The Sheriffs upon the Tales de circumstantibus may Impannel a Priest or Deacon if he hath sufficient freehold of Lay Fee but not an Infant nor one of the age of 80 years He may Impannel Coroners Capital What persons of the Tales Ministers of any Corporation Foresters men blind mute if they have their understanding but not Deaf men Excommunicated persons but not Outlawed or attaint not Aliens nor Clerks attainted nor persons attainted of false Verdicts The Coroners may put the Sheriff on the Tales It seems by the Statute none of the Challenge parties can challenge the Array of the Tales but only to the Poll. After a challenge to the Poll tryed there shall be no other challenge to the same Poll for any cause or matter that is at the same time In an action of Trespass for taking away the Plaintiffs money one of the Tales was challenged because he was a common Fosterer of Thieves and dwelt in a suspicious place and of ill fame and held a good challenge For Challenges see the Tit. Challenge at large What issues shall be tryed by Tales de circumstantibus see Williams his reading hic cap. 7. But â— since none can come after the Reporter observe with me his Nota Lecteur in his 10th Report 104. That at Common Law in the granting of a Tales five things are to be considered 1. The time of the granting c. thereof 2. The number of the Tales 3. The order of them 4. The manner of Tryal that is where by them with others and where by them only 5. The quality of them is to be considered As to the first 4 things are likewise to be considered 1. That the time of granting them is upon default of so many of the principal Pannel that there cannot be a full Inquest 2. That at the time of granting them the principal Array stand for Tales are words similitudinary and have reference to the assemblance which then ought to be in esse and therefore if the Array be quashed or all the Polls challenged and treited no Tales shall be awarded for then there are not Quales but in such a Case a new Venire facias shall be awarded But if at the time of granting the Tales the principal Pannel stand and afterwards is quashed as aforesaid yet the Tales shall stand For it sufficeth if there were Quales at the time of granting the Tales 3. It is to be observed that he which is meerly Defendant cannot pray a Tales till the Plaintiff hath made default 4. In some Cases a Tales shall be granted after a full Jury appear and is sworn as if a Jury be charged and afterwards before a Verdict given in Court one of them die a Tales shall be awarded and no new Venire facias and so if any of the Jurors Impannelled die before they appear and this appears by the Sheriffs return the Pannel shall not abate but if there be need a Tales shall be awarded And the time for Challenge and Tryal of the Tales is after the principal Pannel be tryed and if the principal Pannel be affirmed the same Tryors shall try the Tales But if it be quashed then the two Tryers of the Principal shall not try the Tales As to the second
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
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 same 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 In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter whose Interest was concerned and prayed the Venire facias to Elisors and had it being confessed by the Defendant and the Court took it a principal challenge v. Hut 24. More 470. Roll. rep 328. Duncomb and Ingleby Trin. 15 Car. 2. B. R. A prayer to Elisors in Tryals at Bar may be at the suit of the Defendant or Plaintiff but in Nisi prius at the prayer of the Plaintiff only and per Cur. it is a principal challenge that the Plaintiffs Lessor is Sheriff or kindred and if the Plaintiff doth not pray c. the Defendant may challenge the Array at the Assises Lord Brookes Case Trin. 1657. B. R. 'T is a good challenge to the Array that the Array is made and returned by 2 Coroners only when there are four in the County and that the Writ is returned by one of the Sheriffs of London only So if a Bayliff return them that are out of his Franchise or if an Array be to be of persons out of a Franchise Guildable and the Bayliff return them for the Sheriff ought to make it and that some of the Pannel were returned by the Bayliff of a Franchise where the whole Pannel is returned as Array by the Sheriff this is a good challenge to the Array for otherwise the parties would lose their challenge to the Array made by the Bayliff Rolls tit Tryal 636. If the Defendant sue the Writ of Hab. By what person Corpus by Proviso at the return the Plaintiff may challenge the Array for Kindred between the Defendant and the Sheriff D. 15 El. 319. 13. D. 15 El. 319. The Array was quashed although the Sheriff was the Naufe in What Consangunity is sufficient descent and the Tenant in the 7. descent from the Ancestor of whom both descended Cousin to the parties Wife although herself no party So if the Wife be dead if issue be alive These are good challenges to the Array Alliance to one party is a good challenge For affinity If the Sheriff be allied at the making At what time of the Pannel and be dead at the challenge yet this is a good challenge 'T is no challenge that the Sheriff became of kin after making the Pannel 'T is no challenge to the Array if all the Jurors be of affinity It may be after a Tales prayed for no challenge can be until the Jury is full If the suggestion of Cousinage to have the Venire facias to the Coroners be denyed and the Venire facias is awarded to the Sheriff the same challenge shall not be allowed to the Array but any other cause may be alledged than what was before denyed Favourably made by the Sheriff or his For favour Bayliff or the Bayliff of a Franchise is a good challenge That the Sheriff is within the Distress of a party or servant to the Plaintiff Of the Robes of the Plaintiff was Arbitrator for a party is procurator and maintainer of a party That the Sheriff purchased part of the Land in question That the Pannel was made by the Bayliff of the Franchise of the other party These are good challenges to the Array 'T is no principal challenge that one party is Tenant or servant to the Sheriff but it is a good challenge for favour It is a good challenge to the Array That Denomination the Sheriff made the Array or put a Juror into the Pannel at the denomination of any of the parties in favour to them or of their servants or of one interessed or of a maintainer or of the Counsel or of a procurator Not if strangers by the Sheriffs leave make the Pannel or it be made at the request of both parties 'T is a good challenge to the Array that For malice one of the parties has brought an action of Debt against the Officer that returns the Pannel or that there is a difference betwixt the Officer and the party that the Officer killed his servant But not that the Officer has Debt against the party for he may demand his Debt without malice The Challenge ought to be quod tempore How and in what manner the Challenge is to be made Pannelli praedict Arraiati the Sheriff was Cousin to the Wife of the Defendant c. not afterwards nor before unless you aver that she was alive or had issue at the making the Pannel If the Challenge be taken for Cousinage it ought to be shewn coment Cousin but in such a challenge to be a Juror 't is not necessary to shew coment Cousin What Counterplea of a Challenge is good and how to be pleaded The mannor and conveiance of the Cousinage alledged in a challenge is not traversable You may traverse the Cousinage prout without modo forma If the Challenge be that the Sheriff was Cousin to the Plaintiff or within his distress 't is no Counterplea to say he is likewise of kin to the Defendant or within his distress also Where the King is party to the issue no Where the King is party challenge shall be to the array for favour 38 Ass 19. Otherwise if the Sheriff be Vadelect of the Kings Crown or such menial servant If it be presented that I. S. hath made a nusance to London and le gents 't is no challenge to the array to say the Sheriff of Middlesex is deputed and removable by the Commonalty of London because this is the suit of the King The King may make his challenge that the Sheriff is within the parties distress although every subject owes greater favour and obedienue to the King by reason of his Allegiance than to any Lord by reason of Tenure In a writ of Right or any other writ a What persons may be impannelled Baron of the Realm may excuse himself In a writ of Right the Inquest ought to be all Knights A Banneret may be impannelled in this writ so may a Serjeant if there be not Chivalers covenable In an attaint upon a recovery by false verdict in an Assise some Knights ought to be returned and if there be not any in the Hundred where the Land lies they shall be returned out of the County 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
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
11. In Trespass the Buttals must be proved as they are laid If the Defendant plead payment to a Bond Payment by presumption or Bill and it appears the Debt is very old and it hath not been demanded nor any use paid for it many years common presumption is good evidence that the money is paid and the Juries use to find for the Defendants in such cases If the Trespass were in truth done the 4th Trespass another day of May and the Plaintiff alledgeth the same to be done the 5th of May or the first of May when no Trespass was done yet if upon evidence it falleth out that the Trespass was done before the Action brought it sufficeth 1 Inst 283. 'T is dangerous to permit evidence to a Deed. Jury by Witnesses that there was such a Deed which they have seen or read or prove the Deed by a Copy because the Deed may be upon Condition Limitation or power of Revocation and if this should be permitted the whole Reason of the Common Law in shewing Deeds to the Court would be subverted for the Deed might be imperfect and void which the Witnesses could not perceive yet in cases of extremity as where the Deed was burned or lost by some other notorious accident the Judges may at their discretion allow them to be proved by Witnesses li. 10. 92. and so of a Record In Case against an Executor whereas Executor the Testator was indebted to the Plaintiff thâ— Executor promised to pay the debt in consideration the Plaintiff would forbear to sue him the Executor may give in evidence upon Non assumpsit that there was no Debt or that he had no Assets tempore promissionis for then there would be no Consideration li. 9. 94. William Banes Case upon the issue neunques Executor to prove an Administration granted to him is good evidence Dyer 305. Evidence shall never be pleaded but the Evidence matter of fact shall be pleaded and if it be denied the evidence shall be given to the Jury not to the Court lib. 9. 9. Evidence that the Wife of every Copy-holder shall have the Land durante viduitate will not maintain the issue that the Custom of a Mannor is that she shall have the Land during her life after Estate for life her Husbands death because though durante viduitate imports an Estate for life yet an Estate durante vita is more large and beneficial li. 4. 30. Things done before the memory of man What may be given in Evidence in another County or in another Kingdom may be given in Evidence to a Jury as Assets in another County c. More 47. See li. 4. 22. 9. 27. 28. 34. li. 6. 46 47. Vpon issue payment at the day payment Payment before or after the day is no Evidence More 47. but upon Nil debet it is good Evidence because it proves the issue Vpon issue Assets or no Assets or seised or not seised if one give a Feoffment c. in Evidence Covin may be given in Evidence Covin by the other but not if the issue be infeoffed or not infeoffed for it is a Feoffment tiel quel though made by Covin li. 5. 60. Hob. 72. The Book of Doomesday brought in Doomesday-book Court is good Evidence to prove the Land to be ancient Demesne Hob. 188. In Attaint the Plaintiff shall not Attaint give more evidence nor examine more Witnesses than was before but the Defendant may Dyer 212. Copies of the Court-Rolls are the only Court-Rolls for Copy-holders evidence for Copy-holders for as Littleton Sect. 75. tells you they are called Tenants by Copy of Court-Roll because they have no other Evidence concerning their Tenements but only the Copies of Court-Rolls But Cook explains the Text and says This is to be understood of Evidences of Alienation for a Release of a Right by Deed. A Copy-holder that cometh in by way of admittance may have and that is sufficient to extingish the Right of the Copy-holder which he that maketh the Release had In Actions upon the Case Trespass Battery or false imprisonment against any Iustice of Peace Mayor or Bayliff of City or Town Corporate Headborough Portreve Special Evidence upon the general issue by whom Constable Tythingman Collector of Subsidy or Fifteen in any of his Majesties Courts at Westminst or elsewhere concerning any thing done by any of them by reason of any of their Offices aforesaid and all other in their ayd or assistance or by their Commandment c. They may plead the general issue and give the special matter of their excuse or Iustification in Evidence 7 Jac. cap. 5. General acts of Parliament may be given Statutes in Evidence and need not be pleaded and so may general Pardons given by Parliament if they be without Exceptions But commonly advantage of the Act is given by the Act it self to the offnder without pleading it as by the late most truly Pardons so called general act of Indempnity every person thereby pardoned may plead the general issue and give the act in evidence for his discharge which are general and which particular Statutes see lib. 4. 76. Vpon not guilty in Trover the Defendant Trover may give in Evidence that the goods were pawned to him for 10 l. That he distrained them for Rent or damage feasant That as Sheriff he levied them upon Execution or that he took them as Tythes severed Cro. 1. part 157. 3 part 435. Hob. 187. A demand and denial of the goods is evidence of a conversion If there be two Batteries between Plaintiff and Defendant at divers times the If there be two Trespasses and the Defendant peads a Justification if the Plaintiff replies de injuria sua propria c. he cannot give in Evidence a Trespass at another time But he should have replyed that at another time in the same day of his Count the Defendant did the other Trespass c. to which the Defendant may plead another Justification but the Plaintiff cannot then plead a Trespass at another time but must conclude Sans tiel cause c. vide Apres Plaintiff is bound to prove the Battery made the same day in the Declaration and shall not be admitted to give another day in evidence as the case may be As in Battery the Defendant pleaded Son assault Demesne and the Plaintiff replyed de injuria sua propria absque tali sua and in evidence the Defendant maintained that the Plaintiff beat him the day mentioned in the Declaration and in the same place which the Plaintiff perceiving he gave in evidence that the battery was made another day and place to which the Defendant demurred upon the difference aforesaid Brownlow 1 part 233. 19 H. 6. 47. But upon not guilty it is otherwise though there be never so many Batteries between the parties Littleton Sect. 485. Prohibition for suing for Tythes in Booking Park in Essex and surmised that
Fine be given in Evidence with five years non clayme c. the fine must be shewed with the Proclamations under Seal and the Chirograph will not serve The confession of a party must be taken whole and not by parts As if to prove a debt it be sworn that the Defendant confessed it but withal he said at the same time That he paid it his confession shall be valid as to the payment as well as that he owed it Per Hale Ch. Just And so is common practice A deed cancelled by practice was allowed to be read in Evidence in action under that Deed the practice being proved Hetly 138. Against a Purchasor bona fide recital in a Deed of money paid is not sufficient nor acquittance for the money unless it be of antient standing and then it shall be presumed The Deed to lead the uses of a Fine sur concessit need not be proved per Testes If a deed of Feoffment be shown but no Livery possession going with the Deed is Evidence to a Jury to find Livery At Guild Hall Trin. 23 Car. 2. Hale Ch. Just cited the Case of Sir Paul Pindar A Levari c. was proved by a recital of it in another Record and Hale and Mainard demurred on the Evidence and adjudged against them for this Cause viz. That it was proved there was such a Record that it was filed that it was taken off the file But by him generally without such proof the evidence is not good because one Record may recite one that never was The Jury are to decide the fact and evidence is not given but to inform them in their consciences of the truth for although no evidence is given of either side yet they may give their verdict of one side or the other 14 H. 7. 29. And therefore although two witnesses are necessary where the tryal is by witnesses as in the Civil Law Yet they are not of necessity where the tryal is by Jury And where witnesses are joyned Office of the Jury with the Jury yet they may be rejected if they will not agree with the twelve and the twelve may give their Verdict The Jury after they are departed from the Barr may return to hear their evidence of any thing they doubt before the Verdict Sur Travers de done in tayle the witnesses Done in Tayle prove That another made the Done this doth not warrant the issue In an action against the Sheriff upon Extortion vers Vic. the Statute of Extortion That he took it for Barretée of one who was acquit is good evidence Possession is an evidence of right and he that hath possession may distrain the Cattle Possession of him that hath no title for the taking is in respect of the possession more than of the title In debt for Rent upon a Lease and nil Debt for Rent debet pleaded ne unques seisie de terre is good evidence otherwise upon the plea of riens arrere or levy per distresse Parson or not Parson in such issue Parson you may give in evidence a resignation although it be in another County and Spiritual In riens passe per le fait Not his Fait deed may be given in evidence In Trespass quare claus fregit with What ought to be proved in evidence abuttals all the abuttals and descriptions must be proved But if the abuttal be laid North c. and it incline North though not directly it is sufficient sic de caeteris Vpon this Issue the account given Plene administravit to the Ordinary shall not be given in evidence nor any respect had to it Will The probat is good for the personal What shall be given in evidence and what is good evidence estate but not to prove a Will in writing of Land by the Statute Recital of other Grants by Letters Patents Recital in Letters Patents in Letters Patents are some evidence but not fit to be allowed without shewing the former Letters Patents or a copy But the Jury may find them Surmise in a Prohibition The proof of this surmise in any Court of Record shall not be given in evidence in another action upon the same custome because the Defendant in the prohibition cannot cross examine Depositions Depositions in the Court Christian in the Court of the Councel of York touching the title of Land of which they have not conusance or in another Suit against him who claimeth not under those parties by the Commissioners upon a Commission of Bankrupt because the party could not cross examine shall not be allowed in evidence But a sentence given in the spiritual Court touching Tithes may be given in Evidence in an Action at Common-Law for this is a judicial act After evidence given and the Jury ready Former Tryal to give their Verdict and then the Atturney General will not proceed but draws a Juror and brings another information none of the former Jurors shall be admitted to give in evidence that the Jury were ready to give their Verdict against the King in the first information for this ought not to be discovered for so no benefit would accrue to the King by his Prerogative to draw a Juror But this may be given in evidence in another What may be given in evidence upon a special Issue action where the King is not concerned In debt for rent upon non demisit that Debt for rent the lessor riens avoit in the land at the time of the demise may be given in evidence Vpon an Issue of Common appendant c. Common common per cause de vicinage cannot be given in evidence If the Defendant plead son assault demesne Son Assaule demesne in Battery in Battery and the Plaintiff reply de injuria sua propria absque tali causa And so issue is joyned if there was a battery at another day than what the Plaintiff and Defendent have assigned upon the Plaintiff and another upon the Defendant by the Plaintiff The Verdict ought to be for the Defendant for if the Defendant prove any assault made upon him by the Plaintiff this ought to be found for him although it was at another day than what he hath alledged for the day is not material But upon such speciall justification the Defendant hath liberty to prove his Plea at any time and the Plaintiff might have made a new assignment at another time for peradventure there might be several trespasses at several times to which the Defendant may have several Pleas and therefore if such manner of pleading should not be allowed and such evidence the Defendant could not tell how to help himself nor could know for what Trespass the action is brought Vide devant hic appres cap. 13. If the Issue be whether the Kings Surrender Tenant by Letters surrendred to the King or not the accepting of new Letters Patents which is a surrender in Law is good
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
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.