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
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
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
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
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
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
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
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.
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
to the good of the King and State who attempt to alter or invade this Fundamental Principle in the administration of the Iustice of this Realm by which the Kings Prerogative has flourished and the just liberties of the people have been secured so many Ages And what answer shall I make to the Princes vehementer admiror videlicet Wherefore are not Juries used in other Countries if they are so good but that of Fortescue the Portescue ca. 29. Learned who best could tell scil That other Countries can scarce produce one Jury so well accomplished with Wealth and Ingeny as one County nay one Hundred can in England But not to dwell in the Porch I will address my self to the Gravity of the Law where you must not so much expect the flash of Rhetorick as the light of Reason No the Law knows best how to express Things not words most regarded in the Law her self in her own terms wherefore all other Sciences must learn with reverence to keep their distance And as the Golden Finch sings be glad to have their Finch c. 3. sparks raked up in her Ashes And since an Issue is previous and the matter of a Tryal I shall first give you the description thereof and then touch upon the several Tryals allowed by the Law for discussion of the truth CAP. II. Of an Issue and the divers sorts of Tryals thereof and when a Tryal shall be by a Jury and when not when by Certificate when by the Spiritual Law when by Battail and when by an Almanack what Issue shall be first tryed per Pais what shall be tryed by the Court and what by Examination of the Attorney Sheriff c. ISsue exitus saith Cook is a single 1. Inst fo 126. Omnia unum aliquem sortiuntur exitum vel per patriam vel per Judices terminandum Finch Epistle certain and material point issuing out of the Allegations and Pleas of the Plaintiff and Defendant consisting regularly upon an Affirmative and Negative to be tryed by Twelve men and it is twofold scil either special as where the special matter is pleaded or general as in Trespass Not guilty In Assise nul tort nul disseisin c. And as an Issue natural cometh of two several persons so an Issue legal issueth out of two several Allegations of adverse parties And to give you likewise his definition of Tryals Note that upon a demurrer to part and Issue to part though it is the best way to give Judgment upon the quaestio juris first yet the Court may try the quaestio facti first at their discretion 1 Inst 72. 125. Lach. 4. Rolls tit Tryals 626. 723. Tryal It is to find out by due examination the truth of the point in Issue or question between the parties whereupon Iudgement may be given And as the question between the parties is twofold so is the Tryal thereof For either it is quaestio Juris and that shall be tryed by the Judges either upon a demurrer Special Verdict or Exception For Cuilibet in sua arte perito est credendum quod quisque noverit in hoc se exerceat Or it is quaestio facti And the tryal of the fact is in divers sorts First chiefly and most commonly by a Jury of Twelve men of which kind of tryal my intention is principally to treat in this Book For by Twelve men are matters of Proceedings in Civil Causes fact for the most part tryed with us in England in Causes both Criminal and Civil in Causes Civil after both Parties have said what they can one against another in Pleading if there arise a question about any matter of fact it is referred to Twelve indifferent men to be Impanelled by the Sheriff and as they bring in their Verdict so Iudgment passeth And this the Judge is to declare as the Law is upon the fact found For the Judge saith the Jury finds thus and then the Law is thus and so we judge For the Law arises upon the fact For Criminal Causes the course is this Proceedings in Criminal Causes At the Kings-Bench for Midds and at the great and general Assises and at the general Sessions of the Peace there is one Jury called the Grand-Jury which consists commonly of 24 men substantial men out of every Hundred with in the County returned by the Sheriff and they are to consider of all Bills of Indictment preferred to them which they either approve of by writing Billa Vera or disapprove by writing upon them Ignoramus and those which they approve of are to be tryed by another Jury called the Petit-Jury Or the Grand-Jury may charge any person upon their own Presentment which will be of the force of an Indictment and the party charged may Traverse the offence and bring it to be tryed by a Petit Jury Some lesser matters in these Courts are proceeded upon without a Jury and some things are removed by Certiorari into higher Courts and then must be tryed there and that thing to which there is a Traverse put in must be tryed and ended by a Petit Jury which for the most part in all Civil and Criminal Causes are but Twelve men which ought to be Free-men not Villains or Aliens and lawful men not Outlawed and also men of worth and honesty But because it is necessary to be known that there are many ways allowed by the Common-Law to try matters of fact besides this by Juries I will here repeat some of them And for this first hear the Oracle who tells you that he had read of six 1 Inst fol. 74. kinds of Certificates allowed for Tryals by the Common-Law 1. The doing of service by him that Tryals by Certificate holdeth by Escuage in Scotland was to be tryed by the Kings Marshal of his Army Per son Certificat en escript south son seal que serra mis a les Justices saith Littleton 2. If it be alledged in avoydance of an Outlawry that the Defendant was in prison at Burdeaux in the service of the Mayor of Burdeaux It shall be tryed by the Certificate of the Mayor of Burdeaux Note this was when Burdeaux was partel of the dominions of the King of England Rolls tit Tryal fo 583. 3. For matters within the Realm the Custome of London shall be Certified by the Mayor and Aldermen by the mouth of the Recorder vide apres 17. 4. By the Certificate of the Sheriff upon a Writ to him directed in case of Priviledge if one be a Citizen or Foreigner 5. Tryal of Records by Certificate of the Judges in whose Custody they are by Law All these be in temporall Causes 6. In Causes Ecclesiastical as Loyalty of Marriage general Bastardy Excommengement profession These and the like are regularly to be tryed by the Certificate of the Ordinary vide apres 16. If the Def. claim his priviledge as a Scholar of the Vniversity of Oxon of such a Colledge or Hall This
whether a Statute shewed Statute before be the true Statute or not shall be by the examination of the Mayor and Clerk of the Statutes which took the Statute and not per pais ib. Whether a Statute hath two Seals or not shall be tryed per pais Leon. part 228 229. 27. In Assise the Tenant said that the Escheator Lands were taken into the Kings hands this shall be tryed by the Examination of the Escheator 28. If one in avoidance of an Out ' awry Certificate alledge that he was in Prison at Burdeaux ultra mare in servitio Majoris de Burdeaux this shall be tryed by the Mayor's Certificate and in such like Cases other Tryals shall be by the Certificate of the Marshal of the Messenger Host and by the Captain of Calice and also by Messenger of a thing done beyond Sea Ib. 29. At the Petit Cape the Tenant said Petit Cape that he was imprisoned 3. days before the default and 3. days after this shall be tryed by the Examination of the Attorney Nient Attach per 15. Jours in Assize shall Bayley not be tryed per pais but by examination of the Bayley ib. 30. It seems an Almanack is so infallible Almanack that it hath countervailed the Verdict of a Jury For in Error of a Iudgment given in Lynne the Error assigned was that the Iudgment was given at a Court held there on the 16th day of February 26 Eliz. and that this day was Sunday and it was so found by Examination of the Almanacks of that year upon which it was ruled that this Examination was a sufficient Tryal and that a Tryal per pais was not necessary although it were an Error in Fact and so the Iudgment was reversed Cro. 3. part so 227. 1 Leon. 242. the same Case and there it was said it was twice so ruled before 31. In ancient times there was a tryal in Criminal Causes called Ordalium for Orde al. upon Not Guilty pleaded the Defendant might put himself upon God and the Country as is the use at this day or else upon God only and then if he was a Fréeman he was to be tryed per ignem that is he was to pass over Novem vemeres ignitos nudis pedibus and if he was not hurt by this then he was to be acquitted otherwise condemned and this was called Judicium Dei But if he was a slave then his tryal was to be per aquam and that divers ways which all appear in Lambard verbo Ordalium From which kind of tryal I presume we still retain this expression of an innocent person That he need not fear fire or water this manner of tryal was first prohibited by the Canons then by Parliament The tryal by Battel is likewise prohibited by Battel the Canons but not by Parliament as you may read in the ninth Report fo 32. and in the authorities there cited which I therefore omit to recite here though I have the Books by me and so in this whole Treatise where I refer you to a Book I shall not set down the authorities cited in that Book which will avoid prolixity 32. When the matter alledged extendeth Which Tryal shall be first to a place at the Common Law and a place within a Franchise it shall be tryed at the Common Law 1 Inst 125. 4. Inst 221. In what Cases a Tryal in one issue shall Tryal in one issue binds in another bind the same party in another issue upon the same matter In Debt against two per several Precipes if one plead a release and they are at issue upon the Deed and the other plead the same issue if it be found the Deed of the Plaintiff in the former issue this shall bind him in the second issue 12 H. 4. 8. In trespass if the Defendant Plead villenage in the Plaintiff if this be found against the Defendant this shall bind him in the same issue in another action in the same Court betwixt the same parties 44. Ass 5. If a man be found guilty of a Conspiracy upon an Indictment at the Kings suit this shall not bind in a Writ of conspiracy at the suit of the Party but he may plead not guilty 27. Ass 13. If a man upon an Indictment of extortion confess it and put himself in the Kings grace and makes fine c. this shall bind him and he shall not plead not guilty to the suit of the party for a confession is stronger than a Verdict 27. Ass 57. per Sharde vide Rolls tit Tryal 625. He which is not party to the issue nor In what Cases tryal against one shall be against others can have attaint or challenge the Inquest shall not be bound by the Tryal 11. H. 4. 30. And therefore in Trespass against two and one pleads a Release and the other justifies as his Servant If the issue be found against the Master it shall not conclude the Servant 11 H. 4. 30. Rolls ib. 625. One shall not be compelled to try a traverse At what time the Tryal shall be the same Sessions he makes it for a man shall have time to make his defence and is not supposed to be ready to answer sudden objections and for this reason many Iudgments upon Indictments have been reversed Iustices of Oyer and Terminer nor Iustices of Peace cannot inquire and determine the same day But Iustices of Gaol Delivery and Iustices in Eyre may Justices of Peace cannot proceed to the delivery of a person indicted of Felony before them the same day he is arraigned 22 E. 4. Coron 44. Declared by all the Iustices of England to be observed as a Law In an Indictment in B. R. or in the same County and removed thither the Defendant may be arraigned and tryed the same day For the Kings Bench is a Court of Eyre for all Offences in that County Otherwise of an Indictment removed out of another County Vide Rolls tit Tryal 626. many Cases de ceo 33. All matters done out of the Realm of Marshal Affairs England concerning War Combate or Deeds of Arms shall be tryed and termined before the Constable and Marshall of England before whom the Tryal is by Witnesses or Witnesses or Combate by Combat and their proceeding is according to the Civil Law and not by the Oath of Twelve men 1 Inst 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any Foreign Country the Wife or Heir of the Dead may have an Appeal before the Constable and Marshall who sentence upon the testimony of Witnesses or Combat ib. So if a man be wounded in France and dye thereof in England ib. 4. Inst 140. It is worthy our observation to take What Issue shall be first tryed notice when there are several issues which of them shall be first tryed And for this you have already heard that where issue is joyned for part and a Demurrer for
in the Court. And their names The names of the Jurors must be returned into the Court before any Tryal and why must be returned upon a Pannel annexed to the Venire facias so that either party may have a Copy of the Iury that he may know whom to challenge And the Iury not coming upon the Venire facias make a feigned default which warrants the Distringas c. unless they appear at the day of the Nisi prius So that by what hath been said you It is in the Courts discretion whether to grant a Nisi prius or not may perceive to what purpose the Sheriff is commanded to cause the 12. men to come to Westminster though the Tryal be in the Country And that ad faciend quandam Juratam because it is in the discretion of the Court whether to grant a Writ of Nisi prius or to have a Tryal at the Bar. And for this the Duke of Exeter being Plaintiff in Trespass a Nisi prius was prayed for the Duke and it was denyed for that the Duke was of great power in that County And if the Tryal should be had in the Country inconvenience might thereupon follow as you may read 2 Inst 424. and 4. Inst 161. Nay in some Cases as if the Cause require long examination c. it is not in When the Court cannot grant a Nisi prius the power of the Court to grant a Nisi prius if the King please For in such Cases as it appears by the Writ in the Register 186. the King by his Writ may restrain and command the Justices that they shall not award any Writ of Nisi prius and if they have that they supersede it F. N. B. 240. 241 No Nisi prius shall be granted where the King is party without especial Warrant from the King or the Attorney Where the King is concerned Generals consent Stamf. 156. F. N. B. 241. 4 Inst 161. In a praecipe quod reddat if the Tenant after aid of the King pleads to the Inquest the Plaintiff shall not have a Nisi prius because the Tenant hath aid of the King and so the King is in a manner Party 25 E. 3. 39. Neither is a Nisi prius to be granted if any of the parties may have prejudice by it If the Iustices de Nisi prius die before Certification of Verdicts the day in Bank yet the Record shall be received from the Clerk of Assise without a Certiorari or other form of entry but the antient form Also in that Case a Certiorari may be directed to the Executors or Administrators of the Iustices to certifie the Record D. 4 5 Mar. 163. 55. Rolls tit Tryal 629. They have no power to increase Damages What things the Justices of Nisi prius may do nor to allow or disallow protections nor to allow a Plea of Excommengement in the Plaintiff But they may record the protection and the default and this shall be allowed or disallowed in B. They may demand the Iurors upon a Jurors sur paine fine Pein they may amerce Iurors and punish a Trespass done in their presence which is in despite of the King and for this make Process and may fine Offenders In Ejectment the Defendant may plead at the Assises that the Plaintiff hath entred into parcel of the Land mentioned in the Declaration puis le darrein continuance and the Plea puis darrein continuance Iustices of Nisi prius may accept this Plea But it is in their Election for if they perceive the Plea is dilatory they may refuse it for it is in their discretion Sir Hugh Browns Case in Scaccario Mich. 8 Jac. Rolls tit Tryal 630. If 11 Iurors be sworn and the 12th The power of the Judge upon disagreement or other matter is challenged and the Iurors cannot agree in the challenge for 10 affirm the challenge and the other denies it although the party which did not take the challenge will not agree that the Eleven sworn shall Challenge have another to them in the lieu of him that is challenged yet the Court may do this If a challenge be taken to the Array before any Iuror is sworn and Triors be chosen who cannot agree yet they shall not be commanded in Custody because they never were sworn upon the principal But the Court may discharge them and chuse others If there be three Triors who will not agree the Court cannot take the Verdict Jurors discharge of two and command the other to prison The same Law in case of a Verdict upon an issue Where 14 Iurors are impannelled for the King the Judge cannot discharge any of them after they are sworn if not that they will not agree with their Companions If the Iury say upon demand of the Amencement Court that they are agreed and afterwards when they are opposed they say the contrary in any matter they may be amerced for this Rolls tit Tryal 675. And now since the Nisi prius for so it is Nisi prius why so called called because the word prius is before venerint in the Distringas c. which was not so in the Venire facias upon the Statute of W. 2. cap. 30. before rehearsed must not be in the Venire facias because the names of the Iurors are to be returned to the Court before the granting of the Nisi prius therefore the Nisi prius is now in No Nisi prius before the Venire facias is returned the Hab. Corp. and Distringas And if the Sheriff return not a Pannel of the Iurors upon the Venire facias there shall be no Nisi prius upon the Tales until a Pannel be returned 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales A Tales is a supply of such men as were The Tales at Common Law impannelled upon the Return of the Venire facias grantable when enough of the principal Pannel to make a Jury do not appear or if a full Jury do appear yet if so many are challenged that the residue will not make a Jury then a Tales may be granted And this at Common Law was by Writs of Decem tales Octo tales c. out of the Kings Courts one of them after another as there was néed untill there was a full Jury But now by the Statutes of 35 H. 8. 6. 4 5. P. M. 7. 5 Eliz. 25. and 14 Eliz. 9. The Iustices of Assise and Nisi prius Tales by Statute at the Request of Plaintiff or Demandant Defendant or Tenant or of the prosecutor tam quam if two more or but one of the principal Pannel appear at the day of Nisi prius may presently cause a supply to be made of so many men as are wanting of them that are there present standing about the Court and hereupon the very Act is called a Tales de circumstantibus Note the difference between Tales
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
to wit the number two things are to be observed 1. That in all Cases the Tales ought to be under the number of the principal in the Venire facias unless in Appeals as in Attaint under 24. and in other Actions where the Venire facias is of 12. under 12. And the reason wherefore more than the number may be granted in Appeals of the Plaintiffs part is because the Defendant may challenge peremptorily and if default be in the Plaintiff then the Defendant may pray a Tales and the Reason is in favorem vitae and that he may expedite and free himself from vexation and the question of his life for fear that his Witnesses should die 2. That the number ought always to be certain as 10. 8. 6. or 4. c. But now by the Statute of 35 H. 8. a Tales de circumstantibus may be granted as well of an uncertain as a certain number and that by force of these words in the Stat. 35 H. 8. So many c. as shall make up a full Jury As to the third to wit the Order It is to be known that always in every new Tales the number shall be diminished as if the first be 10. the second shall be 8. and so always less But if the Tales awarded be quashed by Challenge you may have another of the same number As to the fourth to wit the manner of Tryal that is commonly by them with others but by them only when after the granting the Tales the principal Pannel is quashed then the Tryal shall be only by the Tales or if the Tales do not amount to a full Inquest another Tales to supply the former may be granted As to the fifth to wit the Quality of the Therefore if the Venire facias be not de medietat linguae the Tales cannot 3 E. 4. 12. Tales they ought to be of the same Quality as the Quales are and therefore if the first be per medietatem linguae of English and Aliens so ought the Tales to be so if the Principal be out of a Franchise so if the Venire facias be directed to the Coroners so ought the Tales and all things which are required by the Law in the Quales are required in the Tales As you may read in the aforesaid Statutes vide Stamf. Plees del Corone fol. 155. Where a Juror is withdrawn when the Plaintiff intends to bring the Cause to Tryal again he may have a Distringas c. with a Decem Tales By the Statute of 23 H. 8. cap. 3. If there be not enough sufficient Freeholders as are required in an Attaint in the County where Attaint such Attaint is taken a Tales may be awarded into the Shire next adjoyning If the Transcript of the Record of the Nisi prius be mistaken and not warranted by the Rolls for which cause the Plaintiff becomes Non-suit he may have a Distringas Nisi prius amendable de novo upon motion to the Court and the Postea shall not be recorded Cro. 1. part 204. Palmers Reports 378. For there is but a Transcript of the Record sent to the Justices of Nisi prius First they were Justices of Nisi prius and Justices of Assise Justices of Assise and therefore they retain that name still though Assises are very rarely brought For this common Action of Ejectment hath Ejected most real Actions and so the Assise is almost out of use CAP. VI. Of the number of the Jurors and why the Sheriff returns 24. though the Venire facias mentions but 12. If he returns more or less no Error and of the number 12. And when the Tryal shall be per primer Jurors And of Inquests of Office and when to remain pro defectu Juratorum NOw for the Quales and these you see for number must be 12. by the Common Law D. and St. fol. 14. for quality liberos legales homines And first of their number 12. And this number is no less esteemed of by our Law than by Holy Writ Of the number 12. If the 12 Apostles on their 12 Thrones must try us in our eternal State good Reason hath the Law to appoint the number of 12. to try our temporal The Tribes of Israel were 12. the Patriarchs were 12. and Solomons Josh 4. Genes 49. Officers were 12. 1 Kings 4. 7. vide Sir Hen. Spelman verb. Jurata Therefore not only matters of fact were tryed by 12. but of ancient time 12. Judges were to try matters in Law in the Exchequer Plow Com. in prooemio 12 Judges Chamber and there were 12. Counsellors of State for matters of State And he that wageth his Law must have 11. others with him which think he says true And the Law is so precise in this number Less than 12 in Inquests of Office of 12. that if the Tryal be by more or less it is a Mis-tryal But in Inquests of Office as a Writ of Wast there less than Finch 400. 484. 12. may serve F. N. B. 107. c. and in Writs to inquire of Damages the just number of 12. is not requisite for they may be over or under And so it was resolved Trin. 1651. B. R. Abbot vers Holt that the Sheriff ought in Writs of Inquiry to summon 12. by their names yet Inquest of Office Vide hic cap. 13. Damages assessed by a less number is sufficient and in the Writ to the Sheriff quod ipse inquirat per Sacramentum pro borum hominum omitting duodecem it s good and usual And in a Writ of Inquiry of Waste by 13. it was holden Good 1. Cro. 414. In Dower if the Tenant come at the Grand Cape and say he was always ready to render Dower and issue is taken upon this although seisin of the Land be presently awarded yet no Inquest of Office but the Jury upon the Tryal of the issue shall assess Damages 22 E. 3. 15. In what cases there shall be an Inquest of Office and in what not see Rolls tit Tryal 595. And although there can be no Verdict Why the Sheriff returns 24. but by 12. yet by ancient course and usage which as my Lord Cook tells you makes the Law in this Case 1 Inst 155. the Sheriff is to return 24. And this is for expedition of Iustice for if 12. should only be returned no man should have a full Jury appear or sworn in respect of Challenges without a Tales which should be a great delay of Tryals And for this cause at Common Law 't was Error if the Sheriff returned less than 24. But now it is remedied by the Satute of 18 Eliz. as a mis-return see Cro. 1 part 223. li. 5. 36 If the Sheriff return less than 24 it is no Error 37. By which Books it appears that if the Sheriff return but 23. c. it shall not vitiate the Verdict of 12. No though a full Jury do not appear so that the Tryal is by ten of
and if they are laid out of the proper County dayly practice tells us the Court may alter the venue upon Affidavit of the true place of the fact All Criminal matters are to be tryed Criminal matters where the offence is committed If the Venue arise in two Counties This is called a Joynder of Counties Finch 410. Jury out of two Counties the Jury upon 2. Venire facias shall come from both 6 out of one County and 6. from the other Cro. 3. part 646. but by consent of parties entred upon Record it may be by 5. out of one and 7. from the other as appears Cro. 3. part 471. where in Replevin the Defendant avows for Damage But out of more than two Counties it cannot be made fesant The Plaintiff by his Replication claims common by Prescription in loco quo c. being Broadway in the County of Worcester appurtenant to his Mannor of D. in the County of Gloucester and issue thereupon and 2 Venire facias awarded to the Sheriffs of the several Counties and now 7. of the County of Worcester appeared and 5. of Gloucester And although there ought to have been 6. sworn of each County to try that issue as appears 49 Ed. 3. 1. 31 H. 8. 46. yet by the assent of parties those 12 who appeared by advice of all the Justices were sworn and tryed the issue And it was commanded that this Assent should be entred upon Record for otherwise it would be a strange Precedent In an Assise of Common in Confinio Comitatus and the issue be whether he had Common by prescription in Land in one County appendant to a Mannor in another County this shall be tryed by both Counties The same Law is in Trespass brought in one County which cannot be in confinio upon such an issue the Tryal shall be per ambideux Counties 49 E. 3. 20. See Rolls tit Tryal 599. c. many cases where the Jury shall come from two Counties In an Action upon the Statute of Marlebridge for taking a distress in one County and chasing in another County upon not guilty the Tryal shall be only by the County where the chasing is for this is all the cause of the action 4 H. 6. 4. In Escape upon an Arrest in one County Escape and an Escape in another County upon not guilty this shall be tryed where the Escape is laid for the action is upon the Escape Rolls ib. 602. In an Action of Trover apud Paxton in Covenant in P. to sell at R. tryed at P. Com. Hunt the Defendant pleads a Bargain and Sale apud Royston in Com. Hertford in the Market there whereby he after converted them apud P. in Com. Hunt The Plaintiff saith that he was possessed of those Goods apud P. in Com. Hunt and that J. S. there stole them from him and by Covenant betwixt him and the Defendant at P. in Com. H. he sold them to the Defendant as he hath pleaded The issue was upon the Sale made by Covenant c. And it was tryed in the County of Hunt and found for the Plainâ—ff And it was moved to be a mis-tryal for it ought to have been by a Jury of the County of Hertford or at leastwise by a Jury of both Counties But it was adjudged to be well tryed because the Sale is confessed and the Issue is upon the Covenant alledged in Hertford Cro. 3. part 511. In Debt upon a Bond in London the Usurous Contract in another County Defendant pleaded an Vsurious Contract in the County of Warwick the Plaintiff replyed that the Bond was made upon good consideration Absque hoc that it was made for such Vsurious Contract the Tryal shall be in the County of Warwick for the Bond is confessed and the usury in Warwick is only in question so if the issue A Dures shall be tryed there not where the Action is brought be whether the Deed were made by Dures the Tryal shall be where the Dures and not where the Deed is supposed to be made Cro. 3. part 195. Where issue is taken upon a surrender Surender it shall be tryed where it was alledged to be done and not where the Mannor is of which the Copy-hold is holden ib. fo 260. Br. tit Visne 114. In an Assumpsit laid at London in Warda Ward or Hundred no good Visne de Cheape the Venire was De parochia de Arcubus in Warda de Cheape whereas no Parish was mentioned before in the Count adjudged that the Venire was ill laid in the Count for a Venire facias may be of a Town Parish Mannor or other place known but not of a Hundred or Ward ib. and so it is adjudged ib. Cro. 1 part 165. for the Ward in a City is but as the Hundred in a County The Parish in London is in lieu of a Vill and the Ward of a Hundred Roll. tit Tryal 620 621 622. vide hic apres Where the Visne is laid to be at a City City in an Action brought in a superior Court or within the City though it be both a City and County the Venire facias may be de vicinet Civitatis Lach. 258. Though it hath been held not good but that the Venire facias must be de Civitate leaving out Vicinet as you may read in Stamf. 155. But now the Case in Cro. 2. part 308. and Bulstr 1 part Rolls 622. 623. 129. say that all Venire facias's are awarded de vicinet Civitatis which is intended as well de Civitate it self as de vicinet infra Jurisdictionem So in all inferior Courts Stiles 2. March 125. of the City And so it is de vicinet Civitatis or de vicinet or de Civitate Coventry Eborum Norwich Sarum Bristow Exon and all other Cities which are Counties in themselves In all places besides London no London mention is made of the Parish or Ward Jb. 493. But in London the Parish and Ward is mentioned And therefore it was adjudged Cro. 2. part 150. That it was not good to alledge any thing done in London generally But it must be in what Parish from which a Venire may be But where a thing is laid in a City in alta Warda there and the Venire facias is from the City only it is well because City it shall be intended there be no more Wards in the same City Cro. 3. part 282. In an action against the Hundred upon the Hundred Statute of Winton c. upon the Roll the Venire facias is awarded of Bradley quod est proximum Hundredum and the Venire facias is generally of Bradley This is well because by the Roll it appears that Bradley and the Hundred were all one Roll. tit Tryal 598. If a thing be laid done apud Bristol viz. in Wardae Sanctae Mariae in Warda de Ratliff and the Venire facias is de Warda de Ratliff this is not good ib. 619. But
and payments were in another County The Tryal shall be where the Land and payments are 44 E. 3. 42. In Debt upon a Lease in one County and the payment of the Rent upon the Lease limited there also but the Land was in another County and the payment upon the Land this shall be tryed where the Land and payment was for he was bound to pay this there upon the distress ib. But the Tryal should have been where the Writ was brought if the payment had not been alledged to be where the Land was ib. If Debt be brought for Rent upon a Lease Where the Land and Writ c. for years and the Action is brought where the Land is but the Deed of the Lease bears Date in another County the Tryal shall be where the Land and Writ is brought 45 E. 3. 8. The issue being whether the Lessor had a conditional estate or not so a lawful eviction If the issue be in an Assise whether the Where the Land lies and where not Tenant be the eldest Son of J. S. and his birth is alledged in another County yet this shall be tryed where the Land is 46. Ass 5. If an infant bring an Assise and a release of his Ancestor is pleaded against him dated in another County this must be tryed where the Release is dated and not by the Assise although the Plaintiff be an Infant and the circumstances are to be inquired 21 E. 3. 20. See Rolls ib. 611. In case if the Plaintiff declare upon a trust Where from two places in one County and where not Vide hic cap. 10. at D. and of a wrong at S. upon not guilty if it appear the trust is not material the Venue shall only come from S. and not from both places one not being material In case for stopping a way from such a place to such a place and that the obstruction was at D. upon not guilty the Venue shall not come from D. only for all the way is put in issue In Trespass in one Vill and a release pleaded dated in another Vill within the same County upon non est factum this shall be tryed per ambideux Rolls ib. 624. vide hic ante See Rolls ib. 615. many cases about this Where the Venue cannot be from a Vill De Corpore Com. Hamlet or lieu conus there it may be de Corpore Comitatus for if it might not be so the cause could not be tryed A lieu conus is a Castle Mannor or other notorious place well known and generally taken notice of by those who dwell about it and not a Close or Pasture of ground or such like place of no repute A Custom of a County is to be tryed de Corpore Comitatus for the Custom runs thorough the whole County Where the Parish is named by way of Parish denotation or explanation of the place where the Fact is alledged to be done as at the Parish Church of Hauk Huckâ—nol there the Venire facias shall be of the Town not of the Parish Bulstr 1 part 60 61. If the Fact be alledged in Kingstreet in Town the Parish of St. Margarets in Com. Mid. You have already heard that the Visne shall be from Kingstreet because it is intended to be a Town but where it is alledged to be done at Grays-Inn-Hall or Lincolns-Inn-Hall c. in Holborn the Visne shall be from Holborn which is the Town for as Yelverton said it was never heard of any Inns of Court Venire facias to be had of any of the Inns of Court Bulstr 2. part 120. especially of the Not from house or hall Hall because it cannot be of a House much less of a Hall In Ejectment upon a Demise made at Denham of Lands in parochia de Denham praedict The Visne may be of Denham or of the Parish of Denham because Denham and Parochia de Denham prâ—dict are all one by intendment of Law Bulstr 2. part 209. More 709. Hob. 6. But when it appears by the Record or is intended that the Parish Parish is more spacious than the Town as the case in More 837. where in Ejectment the Lease was alledged to be made at Bredon of Tythes in W. and W. Hamlets within the Parish of Bredon there the Venire facias must not be of Bredon but of the Parish because it appears that the Parish extends further than the Town Hob. 326. Where an Action of Debt for Rent is For Rent where the Land lies and when not brought upon the privity of the Contract by the Lessor as against the Lessee or his Executors for Arrearages due in the life-time of the Testator the Visne may be laid in any place but where the Action is brought upon the privity in Estate as against the Assignee of the Lessee or his Executors for Rent due after the Testators death the Visne must be where the Lands lie Lach. misprinted 197. 262. 271. v. li. 3. 24. And so it was adj in case of Hall and Arnold Mich. 1656. B. R. and it was further adj there the Case being of a Lease made at London of Lands in Monmouthshire rendring Rent payable at the Old Exchange for which action is brought by the Heir If there had been no place of payment the Heir must have brought his Action where the Lands lie but the place of payment being in another County he has his Election as on a Lease for years of Lands in two Counties Walkers Case in Debt upon a Lease of Debt for rent of Land in another County Land in another County Nihil debet shall be tryed where the action is brought Br. tit Visne 119. Vide pag. 93. In Replevin brought by Strede against Hartly for taking a Distress at Baildon the Defendant made Conusance as Bayliff because that locus in quo c. was holden of W. H. as of his Mannor of Baildon and upon issue hors de son fee the Venire facias was de vicineto de Baildon and upon motion that the Venire facias ought to have been as well from the Mannor as the Town The Court adjudged it to be well enough for that the Court shall not intend Mannor the Mannor was larger than the Town because it doth not appear so to be though possibly it might as like the Case of Town and Parish Hob. 305. 326. If the Sheriff return that there are no Visne next adjoyning in what Cases Freeholders of that Visne or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where Cinque Ports the men are priviledged from serving on Juries out of that place as the Isle of Ely c. the Plaintiff may pray a Venire facias of the Visne next adjoyning and if the Visne be in Wales ou briefe le Roy ne Court the Venire Wales facias shall be directed to the Sheriff of the next
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
Peer of the Realm or Lord of Parliament Where there must be a Knight returned of the Jury be demandant or Plaintiff Tenant or Defendant there must a Knight be returned of his Iury be he Lord Spiritual or Temporal or else the array may be quashed but if he be returned although he appear not yet the Iury may be taken of the residue And if others be joyned with the Lord of Parliament yet if there be no Knight returned the array shall be quashed against all So in an attaint there ought to be a Knight returned to the Iury. If two Peers sue as Gentlemen and admit themselves so in pleading 't is no challenge to say no Knight is returned for the Sheriff is in no fault And when the King is party as in traverse Where the King is party of an Office he that traverseth may challenge the array as hereafter in this Section shall appear and so it is in case of life And likewise the King may challenge the array and this shall be tryed by Tryors according to the usual course The array challenged on both sides shall be quashed And if two estrangers make a Pannel and not in favourable manner for the one party or the other and the Sheriff returns the same the array was challenged for this cause and adjudged good If the Bayliff of a Liberty return any out of his Franchise the array shall be quashed as an array returned by one that hath no Franchise shall be quashed Challenge to the array for favour He Challenge to the favour that taketh this must shew in certain the name of him that made it and in whose time and all in certainty This kind of Challenge being no principal challenge must be left to the discretion and conscience of the Triors as if the Plaintiff or Defendant be Tenant to the Sheriff this is no principal Challenge for the Lord is in no danger of his Tenant but è converso it is a principal Challenge but in the other he may challenge for favour and leave it to tryal So affinity between the Son of the Sheriff and the Daughter of the party or è converso or the like is no principal challenge but to the favour but if the Sheriff marry the Daughter of either party or è converso this as hath been said is a principal Challenge or the like But where For the King the King is party one shall not challenge the array for favour c. because in respect of his allegiance he ought to favour the King more But if the Sheriff be a Vadelect of the Crown or other menial servant of the King there the challenge is good and likewise the King may challenge the array for favour Note upon that which hath been said it appeareth that the challenge to the array To the Array is in respect of the cause of unindifferency or default of the Sheriff or other Officer that made the Return and not in respect of the persons returned where there is no unindifference or default in the Sheriff c. for if the challenge to the Array be found against the party that takes it yet he shall have his particular challenge to the Polls In some Cases a Challenge may be had to the Polls and in some Cases not at all To the Polls Challenge to the Polls is a challenge to the particular persons and these be of four kinds that is to say Peremptory Principal which induce favour and for default of Hundredors Peremptory this is so called because he Peremptory Challenge may challenge peremptorily upon his own dislike without shewing of any cause and this only is in case of Treason or Felony in favorem vitae and by the common Law the prisoner upon an Indictment or Appeal might challenge thirty five which was under the number of three Iuries but now the Statute of 22 H. 8. the number is reduced to 20. in petite Treason Murder and Felony and in Case of high Treason and Misprision of high Treason it was taken away by the Stat. of 33 H. 8. but now by the Stat. of 1 2 Phil. Mary the Common Law is revived for any Treason the prisoner shall have his challenge to the number of 35. and so it hath been resolved by the Iustices upon conference between them in the case of Sir Walter Raleigh and George Brooks But all this is to be understood when any subject that is not a Peer of the Realm is arraigned for Treason or Felony But if he be a Lord of Parliament and a Peer of the Realm and is to be tryed by his Peers he shall not challenge any of his No Challenge of Peers Peers at all for they are not sworn as other Iurors be but find the party guilty or not guilty upon their Faith or Allegiance to the King and they are Iudges of the fact and every of them doth separately give his judgment beginning at the lowest But a Subject under the degree of Nobility may in case of Treason or Felony challenge for just cause as many as he can as shall be said hereafter In an appeal of death against divers they plead not guilty and one joynt Venire facias is awarded if one challenge peremptorily he shall be drawn against all Otherwise it is of several Venire fac Note that at the common Law before the Stat. of 33 E. 1. the King might have challenged peremptorily without shewing The Kings Challenge restrained cause but only that they were not good for the King and without being limited to any number but this was mischievous to the subject tending to infinite delays and danger And therefore it is Enacted Quod de câ—tero licet pro Domino Rege dicatur quod juratores c. non sunt boni pro Rege non propter hoc remaneant inquisitiones c. sed assignent certam causam calumniâ— suae c. whereby the King is now restrained Principal so called because if it be Principal Challenge the Polls found true it standeth sufficient of it self without leaving any thing to the Conscience or discretion of the Triors Of a principal cause of challenge to the Array we have said somewhat already now it followeth with like brevity to speak of principal Challenges to the Polls that is severally to the persons returned A principal Challenge is nothing else but such matter which proves evident favour or enmity in the Iuror and therefore it belongeth to the Iustices to draw the Iuror and not to leave the decision to Tryors 21 E. 4. 11. Principal Challenges to the Poll may be To the Polls reduced to four heads First Propter honoris respectum for respect of Honour Secondly Propter Defectum for want or default Thirdly Propter Affectum for affection or partiality Fourthly Propter Delictum for Crime or Delict First Propter Honoris respectum As any Principal Challenges to the Polls Peer of the Realm or
good witness in his own action against the Hundred for he is not bound nay is to be blamed to tell any one what charge he carries with him and if he should not testifie the Law would be often fruitless for want of Evidence or else more Robberies committed by the parties discovering his money In the Case of Brereton and Tatam Mich. 1656. B. R. Glyn. Ch. Just Cited the Lord Chandoi's Case in this Court where one Gates an Executor was produced to prove the Will as a witness to which he as Counsel excepted because of his Executorship It was answered that he had fully administred He replied the Assets might afterward come to his hand but the â—ourt resolved that it would not be presumed to barr his Testimony which was allowed in the principal Case being in â—jâ—ctment It 's no good exception to a Witness that he hath common per cause of Vicinage in the Lands in question because it s but an excuse of Trespass and no interest Clapham's case Mich. 1657. B. R. The same of common of Shacke If Obliâ—ee devises the debt to the Obligor and 〈◊〉 Executors deliver up the Bond in satâ—â—â—â—action of the Legacy which is cancell'd and after the validity of the Will is questioned viz. whether the Testator was compos c. the Obligor is a good witness for the will because by the cancelling of the Bond his debt was discharged But Contr. in case of a Mortgage for though the deed be cancelled if it be no good will he must pay the mony Goodman vers Turbervill Mich. 1657. B. R. An Action was brought by the Corporation of the Weavers of Norwich for a penalty against a Weaver for workign in his Trade in Harvest time contrary to an Ordinance by them made And Atkins Just allowed one of the Corporation to be a witness though one moiety of the penalty was due to the Corporation Lent Assise 1657. In a Tryal at Bar where an Estate for Life is limited to I. S. remainder to the poor of the Parish of Greenwich by Will the Inhabitants of Greenwich were allowed to be witnesses to prove the Will Townsend and Roane Mich. 1658. B. R. An Action of Debt was brought Summer Ass Suff. 1669. by the Town of Ipswich for 50 â— a Fine set on one chosen Common Council Man called their prime Constable for refusing to renounce the Covenant c. And the Town-Clerk though a Freeman was allowed a witness to prove Election Refusal c. and the Fine set which is for necessity for that none other are or ought to be present at those Acts. Rainsford Just Per Hale Ch. Just Norf. Summer Ass 1668. A Freeman of Lynn is not an allowable witness to prove the custom of Foreign bought and Foreign sold in that Town Harwich vers Twels As to Witnesses priviledges One was sub-poena'd ad testificandum and prayed a priviledge from being arrested which was granted and per Cur. it will supersede an Arrest on mean process but not upon an Execution yet the Sheriff in that Case may be committed for his Contempt Hen. Nevil's case Mich. 15 Car. 2. B. R. Detaining of Witnesses Sir Jo. Jackson was Convict on an Information for preventing of Evidence to be given on an Indictment of Perjury against Fenwick and Holt who had been witneâ—â—es for Sir J. J. he arrested some witnesseâ— and gave mony to others and so they wâ—re acquitted He was fined 1000 Marks 1 â—â—â—ths imprisonment behaviour for 12 months Hill 1663. B. R. Proofs to determine matter of Fact and Prooâ—s to be offered to a Judge and Jury are of two sorts First Living as by Witnesses and to a Jury one witness is sufficient And Dead as matters of Record as Letters Patents Fines Recoveries Inrollments c. Writings sealed and delivered as Feoffments Leases Releases c. And without Seal as Court-Rolls Accounts c. And if the Case be between the King and a Prisoner he is first to say what he can himself and then all that can say any thing against him are to be heard upon Oath and then others may be heard for him but not upon Oath And according to this Evidence on both sides or without any Evidence at all the Jury are to give their Verdict according to their knowledge and Oaths Such persons as are infamous as are persons attainted of Felony or of a false Verdict or of a Conspiracy or of Perjury or of Forgery upon the Statute of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. and such as have had Iudgment to lose their Ears or stand on the Pillory or Tumbrel or have been stigmatized or branded and Infidels Men not of sound memory or not of discretion or such as are interested in the cause or have benefit are not competent witnesses Co. 1. Inst 6. but we see Jews are daily admitted witnesses An account given to and allowed by the Plenâ— Administravit Ordinary is not good Evidence nor a Pedigree by a Herald of Arms to prove an Pedigree Heir but it must be proved by Deeds Records or Witnesses If the issue be a Recognizance or not a Recognisance Recognizance with a defeasance is good Evidence Plo. 14. So of an Agreement Agreement a special Agreement will prove it Plo. 8. A Licence to alien Land or a pardon for alienation of Land was held by a common Tenure in Caâ—ite presumption to be a good proof that the Land was held in capite A thing which is concluded in the Ecclesiastical Ecclesiastical proceedings Court which doth concern Lands is not to be given in Evidence for the Courts of Common Law are not to be guided by their proceedings Ancient Deeds may be given in Evidence Ancient Deeds although the execution of them cannot be proved He that takes out a Copy of part of a Record Copy of a Record must at least take out so much as concerns the matter in question or else the Court will not permit it to be read If one produce â— Lease made upon an Outlawry Outlawry in Evidence to a Jury to prove a Title he must also produce the Outlawry it self To prove a Feoffment a Deed of Feoffment Feoffment is shewed but no Livery is indorsed if possession has gone with the Deed it is good Evidence Rolls Reports 1. part 132. Vpon Not Guilty to an Information upon Proviso a penal Law a Proviso to excuse him may be given in Evidence Jones Reports 320. If a man prescribe in a non decimando Non decimando generally he cannot give a Bull in Evidence Palmers Reports 38. A Deed with the Seals torn off was admitted Deed. to declare uses Palmers Reports 403 405. Records prove themselves and cannot be Records proved by Witnesses but Copies of them must and are good Evidence and so may any thing done in the County-Court Court-Baron or Hundred-Court c. be proved by Witnesses A
morning in open Court they may either affirm or alter their privy Verdict Where there can be no privy Verdict and that which is given in Court shall stand But in Criminal cases of life or member the Jury can give no privy Verdict but they must give it openly in Court Neither can a Jury sworn and charged in Where the Jury cannot be discharged before Verdict The King cannot be nonsuit case of life or member be discharged by the Court or any other but they ought to give a Verdâ—ct And the King cannot be non-suit for he is in Iudgment of Law ever present in Court but a common person may be nonsuit And in Civil Actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. But this is against Common practice and I have known that after a Iury of Life and Death have been sworn and charg'd with Prisoners Arraigned the Iudge having béen credibly Informed That it was a Iury pack'd to favour some Prisoner has discharged that Iury and made the Sheriff return another presently In Hillary Term Sexto H. 8. Rotulo 358. It was alledged in Arrest of the Verdict at the Nisi prius that the Jurors had eat and drunk And upon Examination it was found that they had first agreed and that returning to give their Verdict they saw Rede Chief Iustice in the way going to sée a fray and they followed him Et in veniendo viderunt cyplum inde biberunt And for this every one of them was fined 40 d. And the Plaintiff had Iudgment upon the Jurors fined Verdict Dyer 37. And Dyer 218. At the Nisi prius the Jury after their charge given returned and said That they were all agréed except one who had eat a Pear and drunk a draught of Ale Jurors at the Nisi prius fined in bank for eating Pears and drinking Ale for which he would not agrée And at the Request of the Plaintiff the Iury was sent back again and found the Issue for the Plaintiff And the matter aforesaid being examined by the Oath of the Iurors Seperatim and the Bayliff who kept them and found true the offender was committed and afterwards found Surety for his Fine Si c. And Fitzherbert the then Iustice of Assise gave him day in banco c. at which day a Fine of 20 s. was there assessed Et quoad Ball Curia avisare vult In Trespass by Mounson against West the Iury was charged and Evidence given and Iurors being retired into a House for to Fined for having Figgs and Pippins about them consider of their Evidence they remained there a long time without concluding any thing and the Officers of the Court who attended them seeing their delay searched the Iurors if they had any thing about them to eat upon which search it was found that some of them had Figgs and others Pippins for which the next day the matter was moved to the Court and the Iurors were examined upon Oath And two of them did confess that they had eaten Figgs before they had agréed of their Verdict and three other of them confessed that they had Pippins but did not eat of them and that they did it without the knowledge or will of any of the parties And afterwards the Court set a sine of 5 l. upon each of them which had eaten and upon the others which had not eaten 40 s. But upon great advice and consideration had and conference with the rest of the Iudges the Verdict was held to be good Notwithstanding the said misdemeanor Leon. 1. part 133. And sée the Book of Entries 251. The Fined for eating Raisins and Dates Iurors after they went from the Barr ad seipsos of their Verdict to advise Comederunt quasdam species scil Raisins Dates c. at their own Costs as well before as after they were agreed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King In Ejectione firme it was found for the Finable for having sweet-meats c. about them though they do not eat them See Plo. Com. 519. One fined and imprisoned for having Sugar-Candy and Liquorish about him Defendant three of the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff until they were searched and the Sweet-meats found and then did agree with the other nine and gave Verdict for the Defendant It was the Opinion of the Iustices That whether they eat or not they were finable for having of the Sweet-meaâ—s with them for that is a very great misdemeanor Godbold 353. 40 Assise Placito 11. The Iustices said Jurors carted That if the Iurors will not agrée in their Verdict the Iustices may carry them in a Cart along with them till they are agréed The Iury were gone from the Barr to confer of their Verdict and one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gon from the Barr spoils the Verdict was called by the Iurors and he recited again his Evidence to them and after they gave their Verdict for the Defendant And complaint being made to the Iudge of the Assises of this misâ—emeanor he examined the Enquest who confessed all the matter and that the Evidence was the same in effect that was given before Et non alia nec diversa And this matter being returned by the Postea the Opinion of the Court was That the Verdict was not good and a Venire facias de novo was awarded Cro. last part 189. Trin. 1653. between Wells and Tayler Copies of a Bill Answer and Depositions were proved but not all read and delivered to the Iury who carried them with them from the Barr in a bundle which they layd by them and did not look on yet their Verdict at the Barr was set aside for this Cause and the Court would not regard their saying that they did not read them for they might say that to save themselves it being a fault to take any thing without the Courts knowledge If one of the parties say to the Iury after they are gone from the Barr You are weak If a party speak to them men it is as clear of my side as the Nose in a man's face This is new Evidence for his affirmation may much perswade the Iury and therefore shall quash the Verdict So if any thing be read to them which they ought not to have with theâ— as a book of Depositions some whereof were read in Evidence Pratt's Case 21 Jac. The Plaintiff delivered an Escrowle to a Escrowle delivered to a Juror before he was sworn Vitiates the Verdict Iuror impanelled before he was sworn who afterwards being sworn and gone with the Iury from the Barr to consider of the Verdict shewed the same Escrowle to his Companions who found for the Plaintiff The Minister who kept the Enquest
informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgment was stayed for after the Iury are sworn they ought not to sée nor carry with them any other Evidence but what was delivered to them by the Court Afterwards the Plaintiff said That the Escrowle proved the same Evidence which was given to them at Barr by him wherefore it was not so bad as if it had béen new Evidence not given before Sed non allocatur 11 H. 4. 17. Pasche 38 Eliz. Inter Vicary Farthing Church-Book delivered to the Jury act of Court at the Nisi prius The Issue was about Non-age and two Church-Books were given in Evidence one whereof was delivered to the Iury in Court by the assent of parties and afterwards the other was delivered to the Iury out of the Court by the Solicitor of the Plaintiff without the assent of the Court and a Verdict for the Plaintiff and this was indorsed on the Postea The Question was whether this should make the Verdict void or no for the Iustices differed in opinion Popham and Gawdy that it should not Fenner and Clench that it should the Negative Iustices gave these Reasons That the Book was delivered in Evidence in the Court and so the other party might answer to it and that the Court had informed the Iury of the validity thereof how far they were to believe iâ— with many other Reasons But the Affirmative was urged because there might be some matter in this Book to induce them otherwise than was intended before and because it was delivered on his part for whom the Verdict passed without the Courts assent yet one Book scil Cro. last part 411. tells us Iudgment was afterwards given for the Plaintiff sée More 's Reports 452. The Books differ for Cro. makes Clinch give Consider the Reasons in the former cases his opinion for the Verdict But More brings him on the other side which I conceive is truest and for my part I know no reason why foisting of Evidence to the Iury without the Court should have any favour at all In the Case of Taylor and Webb Trin. 1653 B. R. Twisden moved to set aside a Verdict given at Barr because that after Evidence when the Writings were delivered to the Iury some Writings which were not sealed and therefore ought â—ot to be delivered to the Iury were delivered by a stranger to the Iury. Hales Counsel of the other side produces an Affidavit of the Foreman 's of the Iury that they made no use of them in giving their Verdict and that most of those Writings were read in Court in Evidence upon the Tryal and Hales said That if this should avoid the Verdict then that would be in the power of any Stranger unknown and against the mind of the parties to avoid any Verdict Roll. Ch Iust The Affidavit of the Iury ought not to be allowed to make good their own Verdict for now they are as it were parties and have offended and shall not be allowed by their own Oath to take off their offence and it is the Duty of the Iury to look what Writings they receive before they go from the Barr and if any such Paper be wrap'd up among other Papers delivered to them by the Court so soon as they have discovered it they should call in the Tip-staff who keeps them and deliver it to him and to testifie they made no use of it and he said it would be dangerous to give the least way to the delivering of any Writings to a Iury. And at another day Roll cited 11 H. 4. 18. the Plaintiff before the Tryal delivered a a breviaâ—e of his Evidence to the Iury which contained no more than was proved in Court yet by this the Verdict was avoided So Mich. 31 Eliz. C. B. Metcalfe and Dean After the Iury were gone from the Barr they sent for one of the Witnesses and re-examined him who gave the very same Evidence that he had before given in Court yet the Verdict was avoided and the reason of both is a fear and jealousie that other matters might be given c. 37 Eliz. Farthing's Case a Paper not under Seal which was given in Evidence was delivered to the Iury this did not avoid the Verdict because here can be no such fear and per Roll If any Writing though not given in Evidence be delivered to the Iury by the Court it shall not avoid the Verdict And in the principal Case the Verdict was avoided Hill 40 Eliz. Rot. 847. In Arrest of Iudgment after Verdict it was alledged Escrowle from one who was no party that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Evidence at the Tryal and adjudged no cause to Arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. but otherwise if it had béen given by a party and the Iury had found for him In the Case of Duke and Veâ—tres Mich. 1656. B. R. tryed at Barr one Mr. Beverly of Suff. a Barrister was returned of the Iury who having béen at a Tryal of the same Cause above 20 years before in the Cheq and heard there great Evidence to make a Deed fraudulent which was now the Contest demanded of the Court whether he ought to inform the rest of the Iury privately of this or conceal it or declare it in open Court The Court ordered him to come into Court and deliver all his knowledge which he heard then proved which Evidence was not now given because the parties were dead and so he did being not sworn again but only upon the Oath taken as a Iuryman And certainly It is of dangerous Consequence to receive a Verdict against Evidence given on supposal that some of the Iury knew otherwise or on private Information given by one Iuryman to the rest where he can't be Cross-Examin'd and let such Iurors beware of Attaint but the best way is as before in open Court In a Writ of Error the first Error assigned was that Termino Trin. twelve Iurors and no more did appear This ex assensu partium was adjourned until Jury adjourned Crastino Animar on which day two others came in and were sworn being of the first Pannel The Court all clear of Opinion that this is no Error this being good enough they being all to be called again Leon. 3. part 38. If a Iuror depart after he is sworn Juror depart he shall be sined and imprisoned and by assent of parties another Iuror may be sworn Bro. Jurors 46 lib. 5. 40. If a man be non-suited after the Jury is ready to give their Verdict the Court may cause the Amercement of the Plaintiff to be presently affered by the Iurors li. 8. 39. CAP. XV. What Punishment the Law hath provided for Jurors offending as taking Reward to give their Verdict Of Embraceors Decies tantum Attaint several Fines on Jurors
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
may be averred Or what or who was meant where there are two of a name c. lib. 8. 155. The Heir in tail cannot aver against a fine levied by his Ancestors That partes finis nihil habuerint lib. 3. 84 85. Leon 75 76. c. But when Tenant in tayl accepts of a fine and grants and renders the Land by the same fine which is Executory there if no execution be sued in the life of Tenant in tayl his Issue may aver continuance of possession c. in his Father for this stands with the fine and the acceptance of the fine alters not the Estate If a man and his Wife sell her Land for money and after levy a fine to the Vendee and his Heirs it may be averred it was for money and so carry the use to the Vendee without any declaraâ—ion of use which otherwise would result to the Woman and her Heirs and â—o other uses may be proved than what are in an Indenture of uses subsequent to the conveyance c. lib. 9. 8. 5. 26. Tenant in tail with remainder in tail to A. Reversion in see to himself bargains and sells Land c. and levies a fine to him with Proclamation with general warranty The Conusee infeoffs A. Resolved The Bargainee had an Estate determinable upon the death of the Tenant in Tail and also the reversion in fee which the Bargainor had and his Wife shall be endowed but this determines upon the death of the Tenant in Tail Resolved The fine doth not discontinue the remainder for this doth not pass any Estate but makes this Estate of the Bargainee durable c. so that it shall not determine untill the Tenant in Tail die without Issue aâ—d the conclusion may be confessed and avoided Resolved the Warranty doth not barr the remainder for this was annexed to the fee determinable c. and to the reversion in fee and doth not extend to the remainder for this was not displaced and the Feoffee of the Conusee cannot inlarge c. 'T is a Maxim that a Warranty barrs no Freehold which is in esse possession or remainder c. and not displaced before or at the time of the Warranty although it be devested before the descent Resolved A Warranty cannot inlarge the Estate Resolved the Feoffment of the Conusee was not a discontinuance of the remainder because he was not Tenant in Tail so of the Grantee of totum statum suum c. Resolved A Collateral Warranty may be given in evidence and found by the Jury The Chief Justice held that by the Feoffment of the Conusee the Remainder was not displaced nor put to a right for his Fee simple and his Fee determinate pass and the Feoffment which in it self is not tortious cannot be tortious to another Otherwise it is when Tenant for life or remainder in Tail c. makes a Feoffment for the Feoffment it â—elf is torâ—ious Note there are some titles to which a Warranty doth not extend as in the Case of an Eschange condition upon a Mortgage Mortmain consent to a Ravisher c. for in these Cases no action lies in which Voucher or Rebutter may be neither shall a descent take away Entry in these cases and cannot be displaced out of their Original essence Collateral Warranty shall barr dower and yet an action is given for this But a fine c. and five years barr these titles and dower also if an action be not brought in time Seymour's Case lib. 10. 96. Buckler and Harveys Case lib. 2. 55. Tenant for life leases for 4 years and afterwards grants the Tenements Hab. from P. for life after P. the Lessee attorns then the Grantee enters and leases at will to which Tenant at will the Tenant for life levies a fine Come ceo c. Rem in fee enters Resolved The Grant was void for an Estate of Freehold cannot commence in futuro and the Grant being void at the Commencement the Attornment afterwards cannot make it pass and that the Grantee was a Disseisor but if the Grant had been good at the Commencement and was only to have its perfection by a subsequent act as by livery upon a Charter of Feoffment c. and the Grantee enter before the perfection he is not a Disseisor but a Tenant at will Resolved also If the fine had been levyed to the Disseisor himself Come c c. he which had the right of remainder may enter for the forfeiture for it was agreed that the right of a particular Estate may be forfeited and entry given to him who had but a right As if Lessee for years be ousted or Tenant for life Disseised and the Lessee for years brings an assisse or the Lessee for life a Writ of right c. 'T is a forfeiture Resolved also That the fine being levied to the Tenant at will it is a forfeiture and he which had the right of remainder may enter and the Tenants for life and at will also shall be estopped to say quod partes finis nihil hab c. and of such estoppels which are by matter of Record and trench to the disherison of them in reversion c. they shall take advantage although they are strangers to the Record for they are privies in Estate Resolved also If the Disseisee levy a fine to an estranger the Disseisor shall retain for ever for the Disseisee against his own fine cannot claim the Land and the Conusee cannot enter for the right of the Conusor cannot be transferred to him but by the fine the right is extinct whereof the Disseisor shall have advantage But in Crok 1. part 482. 13 Car. it was moved if the Disseisee not knowing of the Desseism levied a fine to a stranger whether that should barr his right and move to the benefit of the Disseisor according to Bucklers Case and said if admitted would be of very mischievous consequence and by two Judges held that it should not enure to the benefit of the Disseisor but to the use of the Conusor himself for otherwise a Disseisin being secret may be the cause of disherison of any one who intends to levy a fine for his own benefit for assurance of his Lands upon his Wife and Children or otherwise 1. Inst 277. Not against such Certificates as are a definitive Against a Certificate Tryal of the thing certified As the Bishops Certificate of Excommunication Bastardy lawful Marriage c. so Certificates of the Marshal of the Host which is a Tryal but against Certificates only of information it may be As against Certificates upon Commission out of any Court or of the Commissioners that affirm a man a Bankrupt which are not Tryable in a course of Law but informations lib. 7. 14 lib. 8. 121. So of a return if it is a definitive Tryal of the Upon a Return thing returned no averment lyeth against it As the retorn of a Sheriff upon some Writs as a Writ of Partition