Distress of either party this is a principal Challenge But if either party be within the distress of the Juror this no principal Challenge but to the favour If a Witnes Witness named in the Déed be returned of the Jury it is a good cause of Challenge of him So it is if one within age of one and twenty be returned Infant it is a good cause of Challenge Challenges arising from the Jurors own Act. Vpon his own Act as if the Juror hath given a Verdict before for the same cause albeit it be reversed by Writ of Error or if after Verdict Iudgment were arrested So if he hath given a former Verdict upon the same Title or matter though betwéen other persons But it is to be observed that I may speak once for all that in this or other like Cases Former Verdict he that taketh the Challenge must shew the Record if he will have it take place as a principal Challenge otherwise he must conclude to the favour unless it be a Record of the same Court and then he must shew the day and terme So likewise one may be challenged Indictment that he was Inditor of the Plaintiff or Defendant either of Treason Felony Misprision Trespass or the like in the same cause If the Juror be Godfather Godfather to the Child of the Plaintiff or Defendant or e converso this is allowed to be a good Challenge in our Books If a Juror hath béen an Arbitrator Arbitrators chosen by the Plaintiff or Defendant in the same cause and have béen informed of or treated of the matter this is a principal Challenge Otherwise if he were never informed nor treated thereof and otherwise if he were indifferently chosen by either of the parties though he treated thereof But a Commissioner chosen by one of the parties for examination of Witnesses in the same cause is no principal cause of challenge Commissioner for he is made by the King under the great Seal and not by the party as the Arbitrator is but he may upon cause be challenged for favour If he be of counsel Counsel Servant or of Robes or Fée or of either party it is a principal Challenge If any after he be returned Eat or drink at the parties charge do eat and drink at the charge of either party it is a principal cause of Challenge otherwise it is of a Trior after he be sworn Action brought either by the Juror against either of the parti s Actions of malice or by either of the parties against him which may imply malice or displeasure are causes of principal Challenge unless they be brought by Covyn either before or after the return for if Covyn be found then it is no cause of Challenge other Actions which do not imply malice or displeasure are but to the favour as an Action of debt c. More 3. Parson and Parishes In a cause where the Parson of a Parish is party and the right of the Church cometh in debate a Parishioner is a principal Challenge Otherwise it is in debt or any other Actâ—on where the right of the Church cometh not in question If eitâ—er party labour the Juror and give him any thing to give his Verdict To labour the Jury tâ—is is a principal Challenge But if either party labour the Juror to appear and to do his Conscience this is no Challenge at all but lawful for him to do it That the Juror is a Fellow-Servant Fellow Servant with either party is no principall Challenge but to the favour Neither of the parties can take that Challenge to the Polls To the Polls which he might have had to the Array Note if the Defendant may have a principal cause of Challenge to the Array if the Sheriff return the Jury Venire facias to the Corâ—ners the Plâ—intiff in that case may for his own expedition alledge the same and pray Process to the Coroners which he cannot have unless the Defendant will confess it but if the Defendant will not confess it then the Plaintiff shall have a Venire facias to the Sheriff and the Defendant shall never take any Challenge for that cause and so in like cases But on the part of the Defendant any such matter shall not be alledged and Process prayed to the Coroners because he may challenge the Jury for that cause and can be at no prejudice Challenge concluding to the favour Challenges to the favour when either party cannot take any principal Challenge but sheweth causes of favour which must be left to the conscience and discretion of the Triors upon hearing their evidence to finde him favourable or not favourable But yet some of them come néerer to a principal Challenge then other As if the Juror be of kindred or under the distress of him in the reversion or remainder or in whose right the Avowrie or Iustification is made or the like These be in principall Challenges because he in Reversion remainder or in whose right the Avowry or Iustification is is not party to the Record otherwise it is if they were made parties by aid Râ—script or Voucher and yet the cause of favour is apparent so it is of all principal causes if they were party to the Record Now the causes of favour are infinite and thereof somewhat may be gathered of that which hath béen said Favour and the rest I purposely leave the Reader to the reading of our Books concerning that matter For all which the rule of Law is that he must stand indifferent as he stands â—â—sworn The Subject may challenge the Polles where the King King is party And if a man be out-lawed of Treason or Felony at the Suit of the King and the party for avoyding thereof alledgeth imprisonment or the like â—t the time of the Outlawry though the Issue be ioyned upon a collateral point yet shall the party have such Challenges as if he had béen arraigned upon the crime it self for this by a meane concerneth his life also Propter delictum As if the Juror be attainted or convicted of Treason or Felony Challenges propter delictun or for any offence to life or member or in attaint for a false Verdict or for perjury as a Witness or in a conspiracy at the Suit of the King or in any Suit either for the King or for any subject be adjudged to the Pillory Tumbrel or the like or to be branded or to be stigmatique or to hâ—ve any other corporal punishment whereby he becommeth infamous Infamous for it is a maxime in Law Repellitur a sacramento infamis these and the like are principal causes of challenge So it is if a man be outlawed Outlawed in trespass debt or any other action for he is Exlex and therefore is not legalis homo And old Books have said that if he be excommunicated he could not be of a Iury. Sée
Visne Visne next adjoyning in what Cases or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where the men are priviledged from serving on Juries out of that place as the Isle of Ely c. the Plaintiff may pray a Venire facias of the Visne next adjoyning and if the Visne be in Wales Wales ou bâ—iefe le Royne Court the Venire facias shall be directed to the Sheriff of the next English County to cause the Jury to come De propinquiori Visne of his County to the Visne in Wales adjoyning Fitz. Abridg. tit Visne 8. Jurisdict 24. If the Visne is in some part misawarded Visne misawarded in part or sued out of more places or fewer places than it ought to be so as some place be right named this is ayded by the Statute of Jeofailes which hath ended the differences in many Cases reported in our Books concerning this point wherefore I purposely omit them Error Infamy where the Land lies for that the Iuâ—gment was given by default against the Defendant being an Infant upon Issue that he was of full age adjudged that the Tryal should be in Norfolk where the Land was and not in Middlesex where the Action was brought Cro. 3. part 818. If the Visne cometh from a wrong place May be out of a wrong place by Consent yet if it be per assensum partium and so entred of Record it shall stand for Omnis Consensus tollit errorem 1 Inst 125. CAP. IX Challenges YOu have already séen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges And fâ—r this I shall present you with my Lord Cooks Collection 1 Inst 156. The rather because he hath taken more pains in the gathering and methodizing this Learning then any other one point whatsoever And I know no Reason wherefore I may not as well use his method for the perfection of this Treatise as he hath used other mens method and matter especially Perkins whom he seldom cites for the perfection of hiâ— Iudgment hath the preheminence of Invention and the Law hates nothing more then Innovation wherefore I shall follow his method in the description of a Challenge omitting the Book Cases and Authorities cited by him Challenge Challenge is a word common as well to the English as to the French and sometimes signifieth to claim and the Latine word is vendicate sometime in respect of revenge to challenge into the field and then it is called in Latine vindicare or provocare Sometime in respect of partiality or insufficiency to challenge in Court persons returned on a Jury And séeing there is no proper Latin word to signifie this particular kind of Challenge they have framed a word anciently written Chalumniare and Columpniare and Calumpniare and now written Calumniare and hath no affinity with the verbe Calumnior or Calumnia which is derived of that for that is of a quite other sense signifying a false accuser and in that sense Bracton useth Calumniator Calumniator to be a false accuser but it is derived of the old word Caloir or Chaloir which in one signification is to care for or foresée And for that to challenge Jurors is the mean to care for or foresée that an indifferent tryal be had it is called Calumniare to challenge that is to except against them that are returned to be Jurors and this is his proper signification But sometimes a Sommons Sommonitio is said to be Calumniata and a Count to be challenged but this is improperly And forasmuch as mens lives Fames Lands and Goods are to be tryed by Jurors it is most necessary that they be Omni exceptione majo es and therefore I will handle this matter the more largely Challenge is twofold A Challenge to Jurors is twofold either to the Array or to the Polls to the array of the principall Pannell To the Array and to the array of the Tales And herein you shall understand that the Jurors names are ranked in the Pannel one under another which order or ranking the Jury is called the Array and the Verbe to array the Jury and so we say in common spéech Battail array Array for the order of the battail And this array we call Arraiamentum and to make the array Arrairare derived of the French word Arroier so as to challenge the array of the Pannel is at once to challenge or except against all the persons so arrayed or impannelled in respect of the partiality or default of the Sheriff Coroner or other Officer that made the Return And it is to be known Principall Challenges that there is a principal cause of challenge to the Array and a challenge to the favour principall in respect of partiality as first if the Sheriff or other Officers be of kindred or affinity to the Plaintiff or Defendant if the affinity continue Secondly If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole array shall be quashed So it is if the Sheriff return any one that he be more favourable to the one than to the other all the array shall be quashed Thirdly if the Plaintiff or Defendant have an Action of Battery against the Sheriff or the Sheriff against either party this is a good cause of challenge So if the Plaintiff or Defendant have an action of debt against the Sheriff but otherwise it is if the Sheriff have an action of debt against either party or if the Sheriff have parcel of the Land depending upon the same Title or if the Sheriff or his Bayliff which returned the Jury be under the distress of either party or if the Sheriff or his Bayliff be either of Counsel Atturney Officer in fée or of Robes or servant of either party Gossip or Arbitrator in the same matter and treated thereof And where a subject may challenge the array for unindifferency there the King being a party may also challenge for the fame cause as for Kindred or that he hath part of the Land or the like and where the array shall be challenged against the King you shall read in our Books By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a Péer of the Realm Where there must be a Knight returned of the Jury or Lord of Parliament be demandant or Plaintiff Tenant or Defendant there must a Knight be returned of his Iury be he Lord Spiritual or Temporal or else the array may be quashed but if he be returned although he appear not yet the Iury may be taken
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. And when the King is party Where the King is party as in travers 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 usuall 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 favour Challenge to the array for favour He that taketh this must shew in certain the name of him that made it and in whose time and all in certainty This kinde 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 principall 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 tryall So affinity betwéen the Sonne 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 e converso this as hath béen said is a principall Challenge For the King or the like But where the King is party one shall not challenge the array for favour c. because in respect of his allegeance he ought to favour the King more But if the Sheriff be a Vadelect of the Crown or other meniall servant of the King there the challenge is good and likewise the King may challenge the array for favour Note upon that which hath béen said it appeareth To me Array that the challenge to the array is in respect of the cause of unindâ—fferency 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 Principall which indure favour and for default of Hundredors Peremptory this is so called because he may challenge peremptorily upon his own dislike Peremptory Challenge without showing of any cause and this only is in case of Treason or Felony in farem vitae and by the common â—aw the prisoner upon an Endictâ—nt or Appeal might challenge â—hirty five which was under the â—â—her of the thrée Iuries but now the Statute of 22 H. 8. the number 〈◊〉 reduced to 20. in petite Treason â—urder and Felony and in Case of â—â—gh 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 béen resolved by the Iustices upon conference betwéen them in the Case of Sir Walter Releigh and George Brooks But all this is to be understood when any subject that is not a Péer of the Realm is arraigned for Treason or Felony But if he be a Lord of Parliament and a Péer of the Realm and is to be tryed by his Péers No Challenge of Peers he shall not challenge any of his Péers at all for they are not sworn as other Iurors be but find the party guilty or not guilty upoâ— their Faith or Allegeance to thâ— King and they are Iudges of thâ— fact and every of them doth separately give his Iudgment beginning at the lowest But a subject under the degrée 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 ioynt 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 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 delayes and danger And therefore it is Enacted Quod de caetero licet pro Domino Rege dicatur quod juâ—ores c. non sunt boni pro Reâ—â— non propter hoc remaneant inâ—â—sitiones c. sed assâ—gnent certam â—â—sam calumniae suae c. whereby 〈◊〉 King is now restrained Principal so called Principall Challenge to the Polls because if it is found true it standeth sufficient 〈◊〉 it self without leaving any thing 〈◊〉 the Conscience or discretion of the Triors Of a principal cause of challenge to the Array we have hiâ— somewhat already now it followeth with like brevity to speak of principal Challenges to the Polls that is severally to the persons returned Principal Challenges to the Poll may be reduced to four heads To the Polls 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 Péer of the Realm Principall Chall nges to the Polls or Loâ—â— of Parliament as a Baron Viscount Earl Marquess and Duke for these in respect of Honour and Nobility are not to be sworn 〈◊〉 Juries and if neither party will challenge him Propter honoris respectum he may challenge himself for by Magna Charta it is provided Quod nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum aut per legem terrae A Peer may challenge himself Now the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realm Peers and Commons The Péers of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses
Vice Comiti i. e. to one who is Vice Comitis and hath the Regiment of the County instead of the Earl of that County to whom once it did belong As we are taught in the Mirror Chap. 1. Sect. â— Scil. That it appeareth by the Ordinance of ancient Kings before the Conquest That the Earls of the Counties had the Custody or Guard of the Counties and when the Earls left their Custody or Guards then was the Custody of Counties committed to Viscounts who therefore are called Vice Comites What great Repose and Trust both the King and Laws put in this great Officer The Oracle tells you What Trust in the Sheriff 1 Inst 168. That he is Shireve that is pâ—aefectus Comitatus Governour of the County For the words of his Patent be Commissimus vobis Custodiam Comitatus nostride c. And he hath a thréefold Custody triplicem Custodiam viz. first Vitae Justiciae for no Suit begins and no Proces is served but by the Sheriff And he is to return indifferent Juries for the tryall of mens lives Liberties Lands Goods c. Secondly Vitae Legis he is after long Suits and chargeable to make Execution which is the life and soul of the Law Thirdly Vitae Reipublicae he is Principalis Conservator pacis within the County which is the life of the Common-wealth for Vita Reipublicae Pax. To whom the Venire facias ought to be directed Yet notwithstanding the heighth and Latitude of this great Officers power and trust The Law adjudges him in many Cases not capable to do so much as return a Jury For if he be of kindred by nature or of affinity by Marriage to any of the parties or that I may say all in a little if he be not as indifferent almost in all respects he is whom the Law allows to be a Juror he ought not to meddle with the retorning of the Jury But the Venire facias shall be directed to the Coroners Coroners or to some of them if the residue are not indifferent who in that Case are vice Vice Com. And if the Coroners are not indifferent Forrescue cap. 2. 5. then the Venire shall be directed Ad 2 Electores that is to two whom the Court shall chuse and déeme fit to retorn the Jury And to the retorn of these Elisors or Esliors Esliors ab Eligendo no Challenge Challenge will be admitted Bro. tit Venire facias 14. as to the Array But to the Polles 1 Inst 158. If one of the Sheriffs of London Sheriff of London be a party then the Venire may be directed to the other Sheriff If the Vnder Sheriff be a party yet the Venire may be directed to the Sheriff with this Proviso Quod sub Vic. tuus in in nullo se intromittat cum executione istius brevis 18 E. 4. 3. Iudicial Writs say Cook and Sanders Plo. 74. may be directed to the Coroners As the Venire facias where the parties are at Issue there upon the surmise of the Plaintiff that the Sheriff is his Cozen and upon prayer that the Venire be directed to the Coroners Coroners for avoydance of his own delay that might happen by the Challenge of the Array The Defendant shall be examined whether it be true or not and if he confess it then the Venire shall be awarded to the Coroners for then it appeares to the Court by the Defendants confession that the Sheriff is not indifferent Examination But if the Defendant denies it then the process shall be awarded to the Sheriff because the Sheriff's Authority and profit shall not be taken away without cause apparant to the Court But if the Defendants will alledge any such matter and pray a Venire facias to the Coroners there the Plaintiff shall not be examined neither shall such allegations be allowed because delayes are for the Defendants advantage The Defendant may not have a Venire facias to the Coroners and the Defendant may challenge the Iury for this cause and so is at no prejudice And sée in term H. 3. H. 7. fo 5. placit ult In a quare Impedit where the Defendant shewed how the Sheriff was Cozen to the Plaintiff and prayed a Writ to the Coroners but it was denyed him upon the same Reason Fitz. tit suggestion placit 8. br Challenge 153. Venire facias once directed to the Coroners shall not be to the Sheriff afterwards When the Process is once awarded to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. bro. tit Venire facias 17. So the Entry is Ita quod Vice comes se non intromittat 18 E. 4. 3. And therefore where the Sheriff ought not to retorn the Venire Sheriff shall not return the Tales where he cannot the Venire faciar he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner And afterwards a Tales was awarded and it was returned by the Sheriff and it was tryed and a Verdict given and Iudgment And for this câ—use held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 1 part ult pub 574. bro. tit octo tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After Issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and after Verdiâ— Where the Coroner returns the Vâ—nire facias he ought to return the Tales it was moved in Arrest of Iudgement that the Tales de Circumstâ—ntibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgment For it is a mis-ryall not aided by any of the Statutes for process being once awarde to the Coroners the Sheriff afterwards is not the Officer to return the Iury no more than any other man And process ought alwayes to be returneâ— by him who is an Officer by Law to return it otherwise it is méerly void But afterwards upon view of the Record it apâ—eared that the Tales was returned by the Coroners No name to the Return and their names annexed thereto wherefore it was without further question But the Court said if their names had not béen annexed to the Tales yet it had béen well enough for they be annexed to the first Pannel And it shall be intended that the right Officer returned it and the usuall course is That to such Tales there is not any Officers names
Action brought or varies from the Roll yet it is aided by the Statutes of Jeofailes Cro. 1. part 38. 90 91. 203 204. Miscontinuance or discontinuance or misconveying of Process is ayded by 32 H. 8. 30. The want of any Writ Originall or Judiciall Jeofailes defaults in their form and insufficient Returns thereupon are ayded by 18 Eliz. 14. Cro. 3. part 259. But you must have a care the Venire facias be not faulty in any other matters of Substance for if the parties names be mistaken Parties names mistaken in a Venire facias or the Issue as if the Issue be ne unques Executor and the Venire facias be in placito debiti c. this is a Mistryall Mistryall Cro. 2. part 528. So it is if the Venire facias be in placito transgressionis where the Action is in placito transgressionis ejectionis firme This in sawarding of Process is not ayded by any of the Statutes and better it was that there had béen no Venire facias at all in such a Case No Venire facias holpen for then the Statutes would have holpen it Cro. 3. part 622. In some Cases a Venire facias shall be awarded to make an Enquest betwixt a stranger to the Writ and Issue and the party Venire facias between a party and a stranger I will instance but in one and that is upon the Statute of Westm 2. cap. 6. If a Tenant being impleaded vouch to warranty and the Vouchée denieth the Déed or other cause of the Warranty c. That the Demandant may not hereby be delayed he may sue out a Venire facias to try the Issue betwéen the Tenant and Vouchée Inquest at whose request Inquests in Pleas of Land shall be as well taken at the Request of the Tenant as of the Demandant 2 E. 3. cap. 16. If the Plaintiff or Demandant defisteth in prosecuting his Action Venire facias by Proviso and bringeth it not to Tryall then the Defendant or Tenant may sue forth a Veni facias with a Proviso which is to no other end but that the Sheriff should summon but one Iury if the Plaintiff also should have brought him another Writ to the same purpose And although as my Lord Dyer saith fol. 215. the granting of this Venire facias c. with a Proviso depends much upon the discretion of the Court yet for the greater part it is not grantable for the Defendant unless when he is actor as well as the Plaintiff or unless there be a default and Laches in the Plaintiff therefore there can be no Tryall by Proviso against the King unless with the Attorney Generall 's consent because no dedefault or Laches can be imputed to the King But an avowant in Replevin Proof presently after Issue joyned may have a Venire facias with a Proviso immediately after Issue joyned because he is actor and in nature of the Plaintiff But note the Nota in Stamford's Pleas del Coron fol. 155. How the Plaintiff may stop the Defendants Proviso That if by negligence of the Plaintiff the Defendant sues a Venire Facias with a Proviso yet the Plaintiff may at his pleasure stay the Defendant that he shall not procéed in his Process in praying a Tales upon the Defendants Proces as it appeares T. 15 H. 7. fol. 9. And the Defendant shall nevet be received to persue this Process with a Proviso so long as the Plaintiff persues or is ready to persue as appears Mich. 14 H. 7. fol. 7. And séeing the Tales men Tales men offer themselves to us we will tell them upon what accompt t ey come before they thrust themselves into the Inquest commonly for the love of eight pence but it may be to do some of their Neighbours a shrewd turn CAP. V. Why the Venire facias runs to have the Jury appear at Westminster though the Tryall be in the Country Of the Writ of Nisi prius when first given when granâ—able when not and in what Writs Of the Tales at Common Law and by Statute When the Transscript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is non-suited he may have a Distringas de novo BVt to observe the Method of the Writ the next words are Coram Justiciariis nostris de Banco apud Westminst tali die And here first of all you may ask me to what purpose the Sheriff is commanded to cause the Iury to come to Westminster when they are to try the Cause in the Country and in truth are not to come to Westminster I must confess the resolution of this question is not unnecessary wherefore we must know that originally before the Writ of Nisi prius was given the purpose for which the 12. Why the Venire facias is to have the Jury appear at Westminster men were to be summoned upon the Writ of Venire facias to come to Westminster was that contained in the Writ videl Ad faciend quandam Juratam for then was the Tryall â—ntended to be there if a full Iury appeared if not then a Hab. Corpora with a Tales sometimes annexed to it the form whereof you may sée in the Register and if they did not appear at the Return in the Hab. Corpora then went out the Distringas Hab. Corpus This I speak of the Common Pleas Distringas But the course of the Kings Bench and Exchequer is after the Venire facias to have a Distringas leaving out the Hab. Corpora Tryals then were all at the Barr. I speak not of Assizes But now because Iurors did not use to appear upon the Venire facias it being without penalty Tryals at the Barr Tryals at Bar. are appointed upon the Hab. Corpora and Distringas because the Iury will more certainly appear at the day in the Distringas through fear of forfeiting Issues which the Sheriff returns on the Distringas not on the Venire facias By the Statute of 18 Eliz. cap. 5. No Iury shall be compelled to appear at Westminster for the Tryal of an offence upon any penall Law committed above 30. Where a Jury is noâ— compellable to appear at Westminster miles from Westminster except the Attorny Generall can shew reasonable cause for a Tryal at Barr. Thus it was at Common Law before the giving of the Writ of Nisi prius when all Iurors together with the parties came uâ— to the Kings higher Courts of Iustice where the Cause depended which when Suits multiplyed was to the intolerable burthen of the Country 27 E. 1. cap. 4. wherefore by the Statute of Westminst 2 cap. 30. A Writ of Nisi prius Nisi prius when first given and wherefore wâ—s first given And that in the Venire facias as we may sée in the form of the Writ there mentioned Scil. Praecipimus tibi quod Venire facias coram Justiciariis nostris apud Westmon in octabis Sancti
Michaelis nisi talis talis tali die loco ad partes illas veneâ—int 12. c. By which Writ it appears that the Venire facias was not returnable till after the day of the Nisi prius Nâ—si prius in the Venire facias But the mischief thereof was so great partly in respect that the parties not knowing the Iurors names could not tell how to make their Challenges and so were surprized and partly in respect of the Iury who were greatly delayed by the Essoyns of the parties that by the Statute of 42 E. 3. cap. 11. It is Ordained That no Enquest but Assizes and deliverances of Goals be taken by Writ of Nisi prius nor in other manner at the Suit of the great or small before that the names of all them that shall passe in the Inquests be reâ—uâ—ned in the Court. The names of the Juroâ—s must be returned into the Court before any Tryall and why And their names 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 Nisiprius So that by what hath béen said you may perceive to what purpose It is in the Courts discretion whether to grant a Nisi prius or not 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 Tryall at the Barr And for tâ—is 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 Tryall 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 When the Court cannot grant a Nisi prius c. it is not in 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 Iustices 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 Where the Kâ—ng is concerned without especiall Warrant from the King or the Attorney Generalls consent Stamf. 156. F.N.B. 241. 4 Inst 161. And now since the Nisi prius for so it is called Nisi prtus why so 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 Couet before the granting of the Nisi prius therefore the Nisi prius is now in the Hab. Cor. and Distringas And if the Sheriff return not a Pannel of the Iurors No Nisi prius before the Venire facias is returned upon the venire facias there shall be no Nisi prius upon the Tales untill a Pannel be returned 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales The Tales at Common Law A Tales is a supply of such men as were impanalled upon the Return of the venire facias grantable when enough of the principall Pannell to make a Jury do not appear or if a full Iury do appear yet if so many are challenged that the residue will not make a Iury 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 Iury. 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 Assize Tales by Statute and Nisi prius at the Request of Plaintiff or Demandant Defendant or Tenant or of the prosecutor tam quam if two more or but one of the principall 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 hereuâ—â—n the very act is called a Tales de circumstantibus But 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 Tryall 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 principall Array stand for Tales are words similitudinary and have refeâ—ence 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 fâ—cias shall bâ— awarded But if at the time of granting the Tales the principall Pannel stand and afterwards is quashed as aforesaid yet the Tales shâ—ll 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 méerly Defendant cannot pray a Tales till the Plaintiff hath made default 4. In some Cases a Tales shall be granted after a full Juâ—y appear 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 Iurors impannelled die before they appear and this appears by the Sheriffs retorn the Pannell shall not abate but if there be néed a Tales shall be awarded And the time for Challenge and tryall of the Tales is after the principall Pannel be tryed and if the principall Pannel be affirmed the same tryors shall try the Tales But if it be quashed then the two tryers of the principall shall not try the Tales As to thâ— 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 priâ—â—ipall in
the Statutes of W. 2. and Artic. supra cartas what persons the Sheriff ought to return on Iuries Who ought to be on Juries And sée F.N.B. breve de non ponendis in Assesis juratis and the Register in the same Writ And sée 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 At what time Challenges must be taken First he that hath divers challenges must take tâ—em all at once and the Law so requireth indifferent trials 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 chalâ—â—nge to the Array and tryal duly returned if the same party take a challenge to the Polls he must â—â—w cause presently Fourthly so if a Iuror be formerly sworn if he be challenged he must shew cause presently and that cause must rise â—â—â—ce 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 serve for Hundredors Hundredors or else he lâ—seth the advantage thereof In a Writ of Right Writ of Right the grand Iury must 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 be challenged by any one party The Array of the Tales until the Array of the principall be tryed but if the Plaintiff challenge the Array of the principall the Defendant may challenge the Array of the Tales After one hath taken a challenge to the Poll he cannot challenge the Array Now it is to be séen how challenge to the Array of the principall 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 Coroners if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors Elisors or Esliors so named ab eligendo because they are named by tâ—e 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 intromittar But otherwise it is for that he was Tenant to either party or the like If the Array Array be challenged in Court it shall be tryed by two of them that be impannelled to be appointed by the Court for the tryors in that case shall not excéed the number of two Two Tryors 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 demur to a challenge Demur to a Challenge how determinable the Iudge before whom the cause is to be tryed may determine it or adjourn it to be heard another time Stiles 464. Vide Bulstr 1. part 114. Array of the Principall and Tales If a Pannel upon a Venire facias be returned and a Tales and the Array of the principall 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 béen no appearance of the principall 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 principall and the Defendant the Array of the Tales there the one of the principall and the other of the Tales shall try both Arrayes For other matter concerning the Tales sée in Cokes 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 be and the two tryors shall try another anâ— if another be tryed inâ—iffâ—â—ent and â—e be sworn tâ—en the two tryors cease and the two that be sworn on the Iury shall try the rest If the Plaintiff challenge ten Tryall of Challenges and the Defendant one and the twelfth is sworn because one cannot try alone there shall be added to him one câ—allenged by the Plaintiff and the other by the Defendant When the tryall is â—o be had by two Counties the manner of the tryall 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 Assize and try the challenges of the parties If the cause of challenges touch the dishonor or discredit of the Iuror Juror examined he shall not be examined upon his Oath but in other cases he 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 per visum juratorum View there ought to be sir of the Jury tâ—aâ— have had the view or known the Land in question so as he be able to put the Plaintiff in possession if he recover Challenges In Proprietate probanda and a Writ to inquire for waste the parties have béen 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 CAP. X. Of what things a Jury may inquire when of espirituall when of things done in another County or in another Kingdom when of Estoppels and when not when of a mans intent THe next words in the Writ which have not yet béen taken notice of are these perquos rei veritas melius sciri poterit And this is the chief end of their méeting together Ex facta jaâ— oritur No Court can give a right Iudgment unless the truth of the fact be certainly known and to finde out this truth no way is like to this of Iuries fâ—r they do not onely
charges or lesse if he accept it do not appear to give his testimony he forfeits 10 l. to the party dampnified and must recompence his dammages 5 Eliz. 9. If a Witness commit wilful perjury he looseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz. 9. Records Records prove themselves and cannot be proved by Witnesses but Copies of them must and are good Evidence and so may any thing done in the County-Court Court-Baron or Hundred-Court c. be proved by Witnesses A Fine Fine or common Recovery may be given in Evidence though it be not under the great Seal or Seal of the Court and without vouching the Roll of the Recovery and the part indented is the usuall Evidence that there is such a Fine though they which saw the Fine are also good Evidence Plow 410. Stiles 22. Depositions Depositions in the Ecclesiastical Court cannot be given in Evidence though parties be dead March 120. A Defendants answer in an English Court is good Evidence against him but not against others Godbolt 326. Where the Evidence proves the effect and substance of the Issue it is good As upon plene administravit if it be proved that the Execution hath goods of the Testators in his hands Assets he may give in Evidence that he hath paid of his own money for the Testator to the value of those goods Co. Lit. 283. So if a Lease Lease be pleaded a Lease upon Condition is good Evidence H. 8. 20. because the Genus comâ—rehends the Species So of a Feoffment pleaded a Feoffment upon Condition or a Fine which is Feoffment of Record is good Eâ—â—dence 44 E. 3. 39. A speciall Agréement is evidence for an agréement Plo. 8. But if a Feoffment Feoffment be pleaded in Fée upon Issue non feoffavit modo forma a Feoffment upon Condition is no Evidence because it â—oth not answer the Issue and â—heresoever Evidence is contrary to the Issue and doth not maintain it the Evidence is not good 11 H. 4 3. Feoffments 41. Vpon an Assumpsit to the Husband an Assumpsit Assumpsit to the Wife and his agreement is good Evidence 27 H. 8. 29. In Challenge Challenge to the Array because made at the denomination of the Sheriffs Clerk Evidence at his Bayliffs denomination is good because favourably made is the substance 38 H. 6. 9. If the Issue be a Suit against an Executor Administrator â—r Heir Assets Assets in London to prove Assets in any other place is sufficient li. 6. 47. Dyer 271. Accompt Accompt pleaded before two Accompt before one is good Evidence Hob. 55. because the Accompt is the substance Vpon the general Issue the Defendant may give any thing in Evidence What Evidence upon the generall Issue which proves the Plaintiff hath no cause of Action or which doth intitle the Defendant to the thing in question But if he hath cause of justification or excuse it must be pleaded wherefore upon non detinet in detinue the Defendant may give in Evidence a gift from the Plaintiff for that proveth that he doth not detain the Plaintiffs goods Detinue but he cannot give in Evidence that the Goods were vawned to him for money and that it is not paid but he must plead it 1 Inst 283. Vpon Not guilty in Battery In Battery Son assault demesne is no Evidence for thereby the Battery is confessed Ib. neither is Not guilty good Evidence â—pon Son assault demesne Vpon Not guilty in Trespass Trespass Insufficiency of the Plaintiffs mounds or to justifie for a Rent-Charge Common or the like is no good Evidence Ib. So upon the Plea Nul wast fait in 〈◊〉 Action of Wast Wast he may give in evidence any thing that proveth it 〈◊〉 Wast as by Tempest by Lightâ—ing by Enemies c. But he cannot give in Evidence any justifiable Wast as to repair the House or the like nor a reparation of the Wast before the Action brought Ib. Vpon non est factum Non est factum 'T is no Evidence to shew that the Bond was made upon an usurious Contract or that the Sheriffs name is mistaken c. in a Bail-Bond or that the Bond is joynt or that it is void by Statute But it must be pleaded in abatement Ib. Hob. 72. But to prove that the Seal was broken off and put on again or to prove a Rasure of the Déed this is good Evidence li. 5. 119. 11. 27. If 't were done before the Action brought but if the Seal was broke off c. by chance after Issue joyned the Iury may finde it specially Vpon Not guilty in Trover Trover and Conversion a Demand and denyall of the Goods is good Evidence Plo. 14. li. 10. 57. Cro. 1 part ult pub 495. Hob. 187. Vpon plene administravit Plene Administravit the Executor cannot give a Iudgement in Evidence Kelw. 59. nor payment of Debts by Contract in debt brought upon an Obligation upon nil debet in Debt for Rent That the Lessor entred into part of the Land is no good Evidence Goldf 81. But non demisit is 9 H. 7. 3. Vpon Not guilty in an Action upon the Statute de parco fracto Parco fracto That the Plaintiff hath no Park is good Evidence 19 H. 8. 9. So upon Not guilty in Trespas in the Plaintiffs Warren Warren Evidence that he hath no Warren is good 10 H. 6. 17. Kitchin 119. A Shop-book Shop-books no evidence after a year 7 Jac. cap. 12. In debt for Arrerages of an accompt Accompt upon Nil debot modo forâ—â— No accompt is good Evidence 1 H. 6. 26. Vpon Not guilty in trespas a Loase for years 12 H. 8. 2. or that locus in quo Trespass c. is the Freehold of another 4 E. 4. 5. is good evidence but upon this he cannot â—â—â—tifie his entry upon the place by a strangers Licence or Command be generall Issue 81. because this is a Iustification by way of excuse â—either is a Lease at Will good evidence in this case So upon not guilty in trespass Not guilty in Trespass for goods 't is good evidence that the goods were a strangers 9 H. 6. 11. But that they were a strangers and that he as Servant to the stranger or by his commandment took them from the Plaintiff is not good br generall Issue 81. because the trespass is confessed But that the stranger gave them to the Defendant is good 9 H. 6. 11. If the Defendant plead payment to a Bond or Bill Payment by presumption and it appeares the debt is very old and it hath not â—éen demanded nor any use paid for it many years common presumption is good evidence that the money is paid and the Juries use to finde for the Defendants in
such cases Trespass another day If the trespass were in truth done the 4th of May and the Plaintiff alledgeth the same to be done the â—th of May or the first of May when no trespas 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 Iury by Witnesses that there was such a Déed Deed. which they have séen or read or prove the Déed by a Copy because the Déed may be upon Condition limitation or power of Revocation and if this should be permitted the whole Reason of the Common Law in shewing Déeds to the Court would be subverted for the Déed might be imperfect and void which the Witnesses could not perceive yet in cases of extremity as where the Déed was burned or lost by some other notorious accident the Iudges may at their discretion allow them to be proved by Witnesses li. 10. 92. In Case against an Executor Executor whereas the Testator was indebted to the Plaintiff the 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 Evidence Evidence shall never be pleaded but the matter of fact shall be pleaded and if it be denied the evidence shall be given to the Iury 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 her Husbands death because though durante viduitate imports an Estate for life Estate for life yet an Estate durante vita is more large beneficiall li. 4. 30. What may be given in Evidence Things done before the memory of man in another County or in another Kingdom may be given in Evidence to a Iury as Assets in another County c. More 47. Sée li. 4. 22. 9. 27. 28. 34. li. 6. 46 47. Vpon Issue payment Payment at the day 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 Covin may be given in Evidence by the other but not if the Issue be infeoffed or not infeoffed for it is a Feoffment â—iel quel though made by Covin li. 5. 60. Hob. 72. Doomesdâ—ybook The Book of Doomesday brought in Court is good Evidence to prove the Land to be ancient Demesne Hob. 188. In Attaint Attaint the Plaintiff shall not give more evidence nor examine more Witnesses than was before but the Defendant may Dyer 212. Copies of the Court-Rolls Court-Rolls for Copy-holders are the onely evidence for Copy-holders for as Littleton Sect. 75. tells you They are called Tenants by Copy of Court-Roll because they haue no other Evidence concerning their Tenements but only the Copies of Court-Rolls But Coke explains the Text and sayes This is to be understood of Evidences of Alienation for a Release of a right by Déed A Copy-holder that cometh in by way of admittance may have and that is sufficient to extinguish the right of the Copy-holder which he that maketh the Release had In Actions upon the Case trespass battery or false im risonment against any Iustice of Peace Maior or Bayliff of City or Town Corporate Headborough Portreve Special Evidence upon the generall Issue by whom Constable Tythingman Collector of Subsidy or Fiftéen 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 generall Issue anâ— give the speciall matter of their excuse or justification in Evidence 7 Jac. cap. 5. Generall Acts of Parliament may be given in Evidence Statutes and néed not be pleaded and so may general Pardons given by Parliament if t ey be without Exceptions But commonly advantage of the Act is given by the Act it self to the offender Pardons without pleading it as by the late most truly so called generall act of Indempnity every person thereby pardoned may plâ—ad the generall Issue and give the Act in evidence for his discharge which are generall and which particular Statutes see lib. 4. 76. Vpon not guilty in Trover Trover the Defendant 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. If there be two Batteries between Plaintiff and Defendant If there be two Trespasses and the Defendant pleads 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. at divers times the 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 betwéen the parties Littleton Sect. 485. Prohibition for suing for Tythes in Bocking Paâ—k in Essex and furmised that the Lands were parcel of the possessions of the Pryory of Christs Church in Canterbury and that the said Pryor his Predecessors had held it discharged of Tythes tempore dissolutionis and pleaded the Statute of 31 H. 8. A non Decimando The Defendant pleads that the Pryor and his Predecessors did not hold them discharged and upon Issue joyned thereon the Evidence was that the Pryor or his Predecessors time out of minde c. never paid Tythes but no cause was shewn In nil debet upon the Statute for tyâ—hes a Lay person cannot give
a Non decimando in evidence so may the King and any other spiritual persons li. 2. B. of Winchesters Case either by â—nity of possession reall Composition or other cause to shew it discharged Coke said it was no Evidence for it is a prescription in non decimando Curia contra For a spirituall man may prescribe in non decimando and by the Statute of 31 H. 8. he shall hold it discharged as the Pryor held it and if he held it discharged non refert by what means for it shall be intended by lawful means the Iury afterwards found for the Plaintiff Cro. 3. part 206. Vpon non assumpsit in a generall Indebitatus assumpsit Indebitatus assâ—mpsit the Defendant may give in evidence payment at any time before the Action brought but upon a speciall promise to pay mony c. it is otherwise Causa patet for in the first Case if there be no debt the Law will infer no promise If a Church-Book or any thing else is given in evidence which ought not to be allowed the Court above cannot quash the Verdict except it be certified and returned with the Postea Postea 26. Asâ—â—se pl. 4. Brownlow 1 part 207. But the Court may order a new Tryall upon cause shewed as for excessive damages c. CAP. XII The Juries Oath why called Recognitors in an Assise and Jurors in a Jury of the Tryal per medietatem linguae when to be prayed and when grantable Of a tryal betwixt two Aliens by all English Of the Venire facias per medietatem linguae and of Challenges to such Juries Assise Enquest and Proof are taken foâ— the word Jury vide 28 E. 3. 23. THe Iury having heard their Evidence let them now consider of their Verdict But first they must remember their Oath which in effect is to finde according to their Evidence and therefore they â—hould have had it before the Eviâ—ence but that the form and order â—f the Venire facias which I have â—ed my self to follow Leads me 〈◊〉 it after their Evidence in these words Ad faciend quandam Juraam I have alâ—eady shewed the â—â—rivation of this word Jurata See Chap. 1. and what is the legall acceptation of it only observe with our great Master littleton That the word Assize 1 Inst 154. is â—ometimes taken for a Jury so as the Learned Commentator doth well paraphrase That the word Assise Assisa for Jurata is Nomen Aequivocum Aequiâ—ocanâ— because sometime it signifieth a Jury sometime the Writ of Assise and sometime and Ordinance â—r Statuâ—e But Jurata is Nomen â—quivocum Aequivocatum because we alwayes understand that word according to the aforesaiâ— definition to be a Iuâ—y of twelve men The Juriâ— Oath so called by reason of the Oath they take Truly to try the Suit of Nisi prius between party and party according to their Evidence Why called Recognitors in an Assise and Jurors in a Jury And as in an Assise the Jurors are called Recognitors from these words in the Writ of Assise facere Recognitionem so upon a Nisi prius they are called Juratores from these words in the Venire facias Ad faciend quandam Juratam In ancient time the Jury as well in Common Pleas as in Pleas of the Crown were 12. Knights 12 Knights as appeares by Glanvill lib. 2. cap. 14. and Bracton fol. 116. The next words of the Venire facias are Inter partes predictas In the fourth Chapter I have instanced That in some Cases a Iury shall be awarded betwixt the party and a stranger to the Writ and Issue I will now shew what the Iury shall be when one of the parties is an Alien the other a Denizen and when both parties to the Issue are Aliens This Tryal is called in Latine Triatio bilinguis Jury per medietatem linguae or per medietatem linguae And this Tryall by the Common Law was wont to be obtained of the King by his Grant made to any Company of strangers as to the Company of Lumâ—â—rds or Almaignes or to any other Company that when any of them â—as impleaded the moyety of the â—nquest should be of their owâ—â—â—ngue Stan. Plea Cor. lib. 3. cap. 7. And this Tryal in some Cases â—â—s antiquity per medietatem linguae was before the Conquest â—s appeares by Lamb. fol. 91.3 Viri duoâ—oni Jure consulti Anglie sex Walliae totidem Anglis Wallis Jus dicanto And of ancient time it was called Duodecim virale Judicium 1 Inst 155. But afterwards this Law became universall first by the Statute of 27 Ed. 3. cap. 8. It was Enâ—cted 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 onely where both parties were Merchants or Ministers of the Staple and in Pleas before thâ— Maior of the Staple But afterwards in the 28th Year of the samâ— Kings Reign cap. 13. It waâ— 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 forraigners 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 Enquests or proofs 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 the Law universall King concerning the medietatem linguae for though the King be party yet the Aliâ—n may have this Tryall 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 Sée Dyer 144. And the form of the Venire facias Venire facias peâ— medietatem linguae in this 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