Stan. Plea Cor. lib. 3. cap. 7. And this Tryal in some Cases per medietatem It s Antiquity linguae was before the Conquest as appears by Lamb. fol. 91 3. Viri duodeni Jure consulti Angliae sex Walliae totidem Anglis Wallis Jus dicanto And of ancient time it was called Duâ—decim virale Judicium 1 Inst 155. But afterwards this Law became universal first by the Statute of 27 Ed. 3. cap. 8. It was Enacted that in Pleas before the Maior of the Staple if both parties were strangers the Tryal should be by strangers But if one party was a stranger and the other a Denizen then the Tryal should be per medietatem linguae But this Statute extended but to a narrow Compass to wit only where both parties were Merchants or Ministers of the Staple and in Pleas before the Maior of the Staple But afterwards in 28th Year of the same Kings Reign cap. 13. It was Enacted That in all manner of Enquests and Proofs which be to be taken or made amongst Aliens and Denizens be they Merchants or other as well before the Maior of the Staple as before any other Justices or Ministers although the King be party The one half of the Enquest or Proof shall be Denizens and the other half Aliens if so many Aliens and Foreigners be in the Town or place where such Enquest or Proof is to be taken that be not parties nor with the parties in Contracts Pleas or other Quarrels whereof such Enquest or Proof ought to be taken And if there be not so many Aliens then shall there be put in such Enquests or Proofs as many Aliens as shall be found in the same Towns or places which be not thereto parties nor with the parties as aforesaid is said and the Remnant of Denizens which be good men and not suspitious to the one party nor to the other So that this is the Statute which makes King the Law universal concerning the medietatem linguae for though the King be party yet the Alien may have this Tryal And it matters not whether the Moyety of Aliens be of the same Country as the Alien party to the Action is for he may be a Portugal and they Spaniards c. because the Stat. speaks generally of Aliens See Dyer 144. And the form of the Venire facias in this Venire facias per medietatem linguae Case is De vicenet c. Quorum una medietas sit de Indigenis altera medietas sit de alienigenis natis c. And the Sheriff ought to return 12 Aliens and 12 Denizens one by the other with addition which of them are Aliens and so they are to be sworn But if this Order be not observed it is holpen as a mis-return by the Statutes of 18 Eliz. Cro. 3. part 818. 841. So that Brooks says it is not proper to call it a Tryal per medietatem lâ—nguae because any Aliens of any tongue may serve But under his favour I think it proper enough For people are distinguished by their Language and Medietas Linguae is as much as to say half English and half of another tongue or Country whatsoever Though it be not material of what sufficiency the Jurors are yet the form of the Venire facias shall not be altered but the Clause of Quorum quilibet habeat 4 l. c. shall be in Cro. 3. part 481. But suppose that both parties be Aliens of whom shall the Inquest be then It is resolved that the Inquest shall be all English for though the English may be supposed to favour themselves more than strangers yet when both parties are Aliens it will be presumed they favour both alike and so indifferent 21 H. 6. 4. but if the Plea be before the Maior of the Staple and both parties Alien Merchants of the Staple it shall be tryed by all Aliâ—ns Stamford's Pleas del Corone 159. A Scotchman is a Subject and shall not have this Tryal Egyptians are also excluded when tryed for Felony made by the Statute against them 1 Phil. Mar. cap. 4. 5 Eliz. cap. 20. Where an Alien is party yet if the All English Tryal be by all English it is not erroneous because it is at his peril if he will slip his time and not make use of the advantage which the Law giveth him when he should Dyer 28. The Alien ought to pray a Venire facâ—as When the Alien should pray a Venire facias per medietatem per medietatem linguae at the time of the awarding the Venire facias But if he doth it at any time before a general Venire facias be returned and filed the Court may grant him a Venire facias de novo Dyer 144. 21 H. 7. 32. though it hath been questioned But if he hath a general Venire facias he Tales cannot pray a Decem tales c. per medietatem linguae upon this because the Tales ought to persue the Venire facias 3 E. 4. 11 12. And so if the Venire facias be per medietatem linguae the Tales ought to be per medietatem Tales linguae as if 6 Denizens and 5 Aliens appear of the principal Iury the Plaintiff may have a Tales per medietatem linguae li. 10. 104. But if in this case the Tales be general de circumstantibus it hath béen held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded Cro. 3. part 818. 841. If the Ylaintiff or Defendant be Executor or Administrator c. though he be an Alien yet the Tryal shall be by English because he sueth in aut droit but if it be averred Where the Tryal of an Aliens cause shall be by English that the Testator or intestate was an Alien then it shall be per medietat linguae Cro. 3. part 275. Mich. 40. 41 Eliz. The Quéens Attorney Part English and part Aliens exhibited an Information against Barre and divers other Merchants some whereof were English and some Aliens After Issue the Aliens prayed a Tryal per mâ—dietat linguae But all the Iustices of England resolved that the Tryal should be by all English and likened it to the case of priviledge where one of the Defendants demands priviledge and the Court as to his Companion cannot hold Plea there he shall be ousted of his priviledge sic hic More 557. By the Statute of 8 H. 6. cap. 29. 29. Challenge Insufficiency or want of Fréehold is no cause of Challenge to Aliens who are impannelled with the English notwithstanding Stamford's Opinion Pl. Coron 160 for this Statute saith that the Stat. 2 H. 5. 3. shall extend only to Enquests betwixt Denizen and Denizen If the Defendant do not inform the Court When the Alien should pray a Venire facias per medietatem that he is an Alien upon awarding of the Venire facias and so yray a Venire facias
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
c. R. P. Esq late Sheriff of the said County of E. from the same Office of Sheriff of that County was duely amoved and the said King now by his Letters Patents haâ—h Committed unto one T. P. Knight the Custody of the said County of E. by pretence of which said Letters Patents the said J. P. now remaineth Sheriff of that County which said T. P. of A. at A. aforesaid took to his Wife Anne of the Blood of M. now the Wife of him the Plaintiff that is to say the Daughter of R. D. the Son of W. D. Knight Father of Anne Mother of the said M. now Wife of him the Plaintiff which said T. P. Knight and A. had Issue betwéen them A. P. yet alive and in full life remaining at A. aforesaid and this he is ready to prove c. And out of that cause he prayeth a Writ of the Lady the now Queen of Venire fac to try the said Issue in form aforesaid joyned to be directed to the Coroners of the said County and because the said Defendant doth gain-say and doth not grant that to be true therefore notwithstanding the same Challenge a Command Challenge gain-said is to the Sheriff that he make to come Twelve c. of the Visne of B. by whom c. Easter Term 38 H. 8. Rot. 558. And hereupon Challenge to the Array because the Coroners made the Pannel at the Denomination of the Plaintiff the Defendant doth Challenge the Array of the Pannel of the said Iury because he saith That that Pannel was made and arrayed by A. and C. Coroners of the said County at the Denomination and in favour of the Pannel of the said Plaintiff and this he is ready to verifie and requesteth that the same Pannel may be quashed And the said Plaintiff saith That the said Pannel by the said Coroners was well and equally made and not at the denomination nor in favour nor in promotion of the said Plaintiff whereupon the said Iustices by the consent of the said Parties did choose and assign D. and E. two of the said Iury now appearing to try the said Challenge which said Tryors being elected and tryed say upon their Oaths That the said Pannel was well and faithfully made and arrayed by the said Coroners and not at the denomination neither in favour nor in promotion of the said Plaintiff whereupon the Iurors of the said Iury being called tryed and sworn say c. A Precedent of Challenge to the Array May it please you Mr. Baron This Enquest you ought not to take for that Sir John Ramsden Knight Sheriff of the County of York who did retorn the Pannel betwéen the said A. Plaintiff and B. Defendant is Cosin to the Plaintiff c. and shew how of Kinn c. and so where the Challenge is for lack of Hundredors or other principal Challenge put it down c. and this he is ready to averr whereof he prays Iudgment and that the said Pannel be quashed Or thus And now at this day S. c. comes the aforesaid J. S. Plaintiff and J. B. Defendant by their Attorneys and the Iurors also impannelled and demanded did come and thereupon the said J. B. doth Challenge the Array of the Pannel aforesaid because c. This must be put in Writing but under Counsels hand where the Challenge is to the Poles it is in short way by a Verbal Challenge see the learning of this is excellent and copious in our Books A Precedent of a Plea after the last Continuance And now at this day c. comes such a one Defendant by J. C. his Councel and saith This Action the Plaintiff against the Defendant ought not to maintain for that after the Quindene of the Holy Trinity last past from which day until such a day in Michaelmas Term next unless the Iustices of Assizes before come such a day c. the Action aforesaid is continued c. the Plaintiff by his Déed dated c. did Release c. and shew the Matter what it is whether in abatement in Bar dilatory or peremptory as the Case is c. and this he is ready to averr Note Brook in his Abridgment tit Continuance 61. 83. says That after the Inquest is awarded to inquire of Damages The Defendant cannot plead a Plea Puis le darrein Continuance because he hath no day in Court to Plead The day of Nisi prius and day in Bank are all one so that a Release made betwixt these days cannot be pleaded in Bank but it seems that a Release made betwéen the day of the Venire facias retorned and the Writ of Nisi prius awarded and the day of the Nisi prius may be pleaded at the day of the Nisi prius but not after the Verdict 21 H. 6. fo 10. Bro. tit Jour c. 31 tit Continuance 76. 42. 27. 13. A man shall have but one Plea after the last Continuance for the Plaintiff shall not be delayed ad infinitum 16 H. 7. 11. Bro. tit Continuance 59. 41. 45 46. 5. 21. After the Inquest taken by default and before Iudgment the Defendant came and pleaded an Arbitrament made after the last Continuance And by the Opinion of the Court he had no day in Court to plead this Plea and 't was said That he could Plead no Plea in such Case but as Amicus Curiae and of matter apparent he shall be received otherwise he must resort to his Audita Quaerela 21 H. 7. 33. Broke ibid. 38. But if the Iury remain for default of Iurors the Defendant may plead a Release c. at the day in Bank Puis le darrein Continuance although he did not offer it at the Nisi prius otherwise if the Iury had béen taken at the Nisi prius 22 H. 6. 1. Broke ibid. 30. If it be pleaded at the Nisi prius the Court Record the Plea and discharge the Inquest and give day to the parties in Bank Bro. ibid. 34. 8. In Debt after Issue joyned the Defendant at the Nisi prius pleaded Payment of part after the latter Continuance in Abatement And the Iury being discharged and the Plea adjourned in Bank for that no place of Payment was pleaded the Plaintiff had Iudgment to recover his Debt because after Issue joyned no Respondes ouster can be awarded L. 5. E. 4. 139. Aleyn's Reports 66. in the Case of Beaton and Forrest Now although when difficulty arises in the Evidence the matter is most commonly of late found specially and Demurrers on the Evidence are seldom used yet in asmuch as it is sometimes done and that our Practicer may be prepared with an Authentick Precedent for that purpose I shall transcribe one out of Coke's Entries fo 134. viz. Postea die loco Infra ContentÌ„ Coram â—ss Postea Jacobo Dyer Milite Capitali IustitiatÌ„ DomÌ„ Regine de Banco Nicolao Barham uno servientÌ„ dictÌ„ DomÌ„ Regine ad legem IusticÌ„ ipsius DnÌ„e Regine ad