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
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
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
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
shall not be tryed by Certificat but per pais Rolls tit Tryal 583. Concerning Certificates of Spiritual persons vide Rolls ibidem 591 592. 7. A Record shall be tryed by the Record it Records self and not per pais But matter of fact concerning a Record is tryable by a Jury as whether a plaint c. was levied according to the Custom non prosecutus est ullum breve is tryable by the Country Mixt with fact Hob. 244. Hutt 20. So if a Statute hath two Seals or but one 1 Leon. 229. 2 Cro. 375. 1 Inst 125. b. so in a per quae servitia if the Tenant say he held not of the Conusor Jour del note levie shall be tryed per pais In Escape upon a Cepi returned ne unques in son gard shall be tryed per Record but upon Rolls tit Tryal 574. a Capias not returned the prisal shall be tryed per pais So shall an action brought by Covin for the Covin is not of Record In a scire facias per Roy to have execution of a Iudgment in a Quare impedit if the Def. say that after the Recovery the King presented issint Judgement execute and the issue be whether the King presented per cause del Judgement or of an avoydance after the death of J. S. who was presented by a stranger after the avoidance upon which the King had Iudgment This shall be tryed per pais And Why there needs no visne where Letters Patents were made otherwise in pleading Deeds 4 Rep. 71. for this Reason in pleading of Letters Patents the place need not be alledged where the Letters Patents were made because the Dâ—fendant cannot plead nul tiel Record but must plead non concessit and then the Jury shall come from the place where the Lands lie Vide li. 6. fo 15. 1 Inst 117. 260. Plo. Com 231. But upon a Non est factum pleaded to a Deed there must be a place alledged where the Deed was made because though the Deed as to the matter of Law be tryable by the Court yet the sealing and delivery thereof Deeâ— and other matter of fact must be tryed by the Jury so that in this case of a Deed there is a Tryal per Pais and by the Court. 1 Inst fol. 35. vide apres 18. The issue upon an Indictment or acquittal What issues shall be tryed per Record upon this shall be tryed by the Record So shall the allowance of a Protection in Bank The imprisonment upon the execution and not for other cause in escape The justification of an imprisonment because he is a Iustice of Peace A Statute-Merchant Count or not Count Baron of the Parliament or Vicount or not Whether a place be within the Ligeance of the King of England or in Scotland A Fine sur release Rendring his body in discharge of his Baile shall be tryed by the Record Rolls tit Tryal 574. But in escape against the Mayor of Astaple What per Pais for suffering J. S. in execution upon a Statute Staple to go at large if the Defendant say he was not in Prison upon the execution but upon a Plaint there this shall be tryed per pais and not per Record because 't would be unreasonable that the Defendant should certifie a Record where he himself was concerned ibid. The time of inrolliing Letters Patents shall be tryed per pais Co. Lib. 4. 71. 9 H. 7. 2. Disseisin of an Office in any Court or Office Raseing a Record rasing a Record in any Court by the Filizers and Attorneys of the Court. 8. A Peer of the Realm i. e. a Lord of Peers the Parliament shall upon an Indictment of Treason or Felony misprision of Treason and misprision of Felony be tryed by his Peers without Oath 1 H. 4. 2. But in an Appeal at the Suit of the Party he shall be tryed per probos legales homines Juratores 10 E. 4. 6. c. because that is not the Kings Suit but the Parties Vide li. 9. 31. Le case del Abbot de Strata Mercella And in a Praemunire his Tryal shall be per pais 12 Bep 93. Lamb. Inâ—t 520. 3. Inst 30. Bolstr 1. part 198. Dutchesses Countesses or Baronesses although married shall be tryed as Peers of the Realm are but so shall not Bishops and Abbots Stam. 153. 20 H. 6. 9. 2. Inst 48 49 50. 156. b. 294. 9. The Customs and usages of every Court shall be tryed by the Judges of the Customs of Courts c. tryed by the Judges same Court if they are pleaded in the same Court ib. and many other things are tryed by the Judges as the reasonableness of a fine of an offender or upon surrender of a Copy-hold Estate and so it is of Customes services and also of the time that a Tenant at will shall have to carry away his Goods And these Cases come under the Rule which makes matter of Law to be tryed by the Judges Vide 1 Inst fol. 56. And in some Cases matter of fact shall be tryed by the Judges as if the Plaintiff appear by Attorney in Court and then the Defendant pleads that the Plaintiff is dead If one appears and saith that he is the Plaintiff whether he is or not shall be tryed by Inspection the Judges li. 9. 30. So the non-age of an Infant generally by inspection of the Court But in many Cases Infancy shall be tryed per Pais as if an Infant appear by Attorney v. Bulst 1 part 131. Rolls tit Tryals 573. in Error this shall be tryed per Pais li. 9. 31. and so it is in an Aetate probanda Maihim in an Appeal of Maihim the Maihim Court may adjudge this upon the view at the prayer of the Defendant and this Tryal is peremptory to the Parties by a Jury of Chirurgeons Vide Rolls tit Tryal 578. Maihim may be tryed again by the Court by inspection for increase of Damages but then these things are to be considered First it must be a Maihim and not a bare wounding Secondly The Maihim must be ascertained in the declaration so as that it Maihim may appear that the Maihim inspected and the Maihim in the declaration be all one as was resolved Mich. 21 Car. 2. B. R. in the Case of Badwel and Burford the principal Case of which was that the Defendant whip'd the Plaintiffs Horse which made him throw her and another Horse trod on her and maim'd her hand and adjudged no increase of Damages in that Case being a Consequential and not a direct Maihim Nonage in a Writ of Error to reverse a Inspection Iudgement or a fine of the Tenant by resceit of one vouched come deins age issint praie le paroll à demurrer Nonage sur aid praier in Appeal Audita querela to avoid a Statute Accompt and in all actions where 't is prayed that the paroll demurroit Nonage shall be tryed per
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
Defendant unless when he is actor as well as the Plaintiff or unless there be a default and Leches in the Plaintiff therefore there can be no Tryal by Proviso against the King unless with the Attorney General 's consent because no default or Laches can be imputed to the King But an avowant in Replevin may have a Venire facias with a Proviso immediately Proof presently after issue joyned after issue joyned because he is Actor and in nature of the Plaintiff If the Plaintiff in Detinue and the Garnishee be at issue and the Plaintiff prays a Nisi prius and this is granted Garnished yet the Garnishee at the same time may have a Nisi prius with Proviso because he is Plaintiff also 19. li. 6. 46. Rolls tit Tryal 629. If the Plaintiff deliver the Writ to the Sheriff tarde so late that he cannot serve Tarde it the Defendant shall have a Writ with a Proviso But at the same time the Plaintff may have another Writ and the Sheriff may return which of them he pleases at his Election 8 H. 6. 6. The Proviso ought to be quando duo brevia sunt in eodem gradu qualitate If the default be in Plaintiff after issue in the prosecuting of the Venire facias then the Defendant may have a Venire facias with Proviso but not a Hab. Corpus with a Proviso until the Plaintiff have made a default in the same Writ for he ought only to have the same Process with a Proviso in which there was a default of the Plaintiff first and therefore although the Defendant had a Venire facias with a Proviso upon a default of the Plaintiff yet he cannot have a Nisi prius by Proviso without another default of the Plaintiff If the Defendant had a Hab. Corpus by Proviso and the Jury remain for want of Hundredors yet he cannot have a Distringas Jur. with a 10. Tales cum Proviso until a default of this request of a Tales is in the Plaintiff D. 15 El. 318. 10. But note the Nota in Stamford's Pleas How the Plaintiff may stop the Defendants Proviso del Coron fol. 155. 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 proceed in his Process in praying a Tales upon the Defendants Process as it appears T. 15 H. 7. fol. 9. And the Defendant shall never be received to pursue this Process with a Proviso so long as the Plaintiff pursues or is ready to pursue as appears Mich. 14 H. 7. fol. 7. And seeing the Tales men offer themselves Tales men to us we will tell them upon what accompt they 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 Tryal be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs Of Justices of Nisi prius Of the Tales at Common Law and by Statute When the Transcript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is Non-suited he may have a Distringas de novo BUt 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 comâ—anded to cause the Iury to come to Westâ—â—â—ister 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. men were to be summoned upon the Writ of Venire fac Why the Venire facias is to have the Jury appear at Westminster to come to Westminster was that contained in the Writ videl Ad faciend quandam Juratam for then was the Tryal intended to be there if a full Iury appeared if not then a Hab. Corpora with a Tales sometimes Hab. Corp. annexed to it the form whereof you may see in the Register and if they did not appear at the Return in the Hab. Corpora then went out the Distringas This Distringas I speak of the Common Pleas But the course of the Kings Bench and Exchâ—quer is after the Venire fac to have a Distringas leaving out the Hab. Corpora Tryals then were all at the Bar. I speak not of Assises But now because Jurors did not use to appear upon the Venire facias it being without penalty Tryals at the Bar are appointed upon the Hab. Corpora and Distringas because the Iury will Tryals at Bar. 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 penal Law committed above 30. miles from Westminster Where a Jury is not compellable to appear at Westminster except the Attorney General can shew reasonable cause for a Tryal at Bar. Thus it was at Common Law before the giving of the Writ of Nisi prius when all Iurors together with the parties came up 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 was first Nisi prius when first given and wherefore given and that in the Venire facias as we may see in the form of the Writ there mentioned scil Prâ—cipimus tibi quod venire facias coram Justiciariis nostris apud Stamfords Pleas of the Crown 156. Westmon in octabus Sancti Michaelis nisi talis talis tali die loco ad partes illas venerint 12. c. By which Writ it appears that the Venire facias was not returnable till after the day of the Nisi prius But the mischief thereof was so great partly Nisi prius in the Venire facias 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 Inquest but Assises and deliverances of Gaols 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 pass in the Inquests be returned
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
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
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
betwixt Common persons in such cases the Pannel shall be quashed and this shall not be only a challenge to the heads 25 E. 3. 43. If the Sheriff return quod non sunt plures del Hundred he shall take of the Hundred adjoyning which shall be sufficient 19 H. 6. 48. If the Juror hath sufficient Land within the Hundred although he doth not dwell within the Hundred yet he is a sufficient Hundredor 9 H. 6. 66. nay though he dwell in another County If he be not Hundredor at the return of the Venire but be at the return of the Distringas yet this doth not take away the challenge After four are sworn or after a challenge At what time the Challenge must be to the Polls there can be no challenge for the Hundred Rolls tit Tryal 636. Who shall be a sufficient Hundredor See Williams his reading aforesaid If he dwell or have Assets within the Leet Rape Franchise or Vill where the Venue is he is a sufficient Hundredor If he hath Assets in Rent Common of any sort Market Fair Piscary Toll passage Leet Office of Bayliwick c. he is a sufficient Hundredor otherwise of an advowson c. 3. Propter affectum this is of two sorts either working a principal challenge or to Challenges propteraffectum the favour And again a principal challenge is of two sorts either by Iudgement of Law without any Act of his or by Iudgment of Law upon his own Act. And it is said that a principal challenge is when there is express favour or express Principal Challenge malice First without any Act of his as if the Juror be of blood or kindred to either party Consanguineus which is compounded ex Con sanguine quasi eodem sanguine natus as it were issued from the same blood and this is a principal challenge for that the Law presumeth that one Kinsman Kindred doth favour another before a stranger and how far remote soever he is of kindred yet the challenge is good And if the Plaintiff challenge a Juror for kindred to the Defendant it is no Counterplea to say that he is of kindred also to the Plaintiff though he be in a nearer degree For the words of the Venire facias forbid the Juror to be of kindred to either party If a body politick or incorporate sole or Bodies Politick aggregate of many bring any action that concerns their body politick or incorporate if the Juror be of kindred to any that is of that body although the body politick or incorporate can have no kindred yet for that those bodies consist of natural persons it is a principal challenge A Bastard cannot be of kindred to any and therefore it can be no principal challenge And here it is to be known that Affinitas Affinity Affinity hath in Law two senses In its proper sense it is taken for that nearness that is gotten by marriage Cum duae cognationes inter se divisae per nuptias copulantur altera ad alterius fines accedit inde dicitur Affinis In a larger sense Affinitas is taken also for Consanguinity and kindred as in the Writ of Venire facias and other-where Affinity or Alliance by Marriage is a principal challenge and equivalent for Consanguinity when it is between either of the parties as if the Palintiff or Defendant marry the Daughter or Cousin of the Juror or the Juror marry the Daughter or Cousin of the Plaintiff or Defendant and the same continues or issue be had But if the Son of the Juror hath married the Daughter of the Plaintiff this is no principal challenge but to the favour because it is not between the parties Much more may be said hereof sed summa sequor fastigia rerum As if he hath formerly tryed the cause although Peremptory Challenge upon Record reversed by Error or upon the same title if the Record be not shewed this challenge is not peremptory For he that grounds a challenge upon a Record c. ought to have the Record ready 33 H. 6. 55. The Record ought to be exemplified 21 E. 4. 74. 'T is a good challenge to say the Juror was attainted in an Attaint or Writ of Conspiracy but attainder in a Writ of Forgery of false Deeds upon the Statute 1 H. 5. 3. but 't is upon 5 Eliz. 14. is not because this Attainder is given of late time by the Statute 33 H. 6. 55. In a Writ of Conspiracy 't is a principal challenge that the Juror was one of the Indictors and although the Tryal is now of the Conspiracy and not upon the first point viz. the Felony In Trespass if one justifie as Master and the other as Servant 't is not a principal challenge to say the Juror passed in the first issue for the Master but he ought to conclude issint favourable 18 E. 4. 12. If two plead not guilty and first one issue is tryed and then the other is tryed 't is no challenge to say the Juror tryed the other issue and gave Damages of which Damages he shall be charged if he be attainted in an Attaint for perhaps the Defendant will be found not guilty That the Juror is within the distress of any Deins distress of the parties is a good cause of challenge And so it is if he be within the distress of any person concerned although no party to the action As within the distress of A. the Master of the Defendant who justifies as servant to A. by reason of his Freehold and the issue is sur le franktenemenâ— So for him in reversion received within the distress of the Tenant for life And so in an Action by the Tenant for life within the distress of him in reversion these are good challenges So in an Action by Dean and Chapter within the distress of the Chapter or one of the Chapter are good challenges Consanguinity of the half blood is a principal Principal for Consanguinity challenge If the Juror be at the ninth degree if it can be shewed it is good In an Action by the Dean and Chapter or Major and Commonalty Brother to one of the Comonalty or to one of the Commons is a good challenge So to any person concerned in interest although no party to the action As Cousin to the Patron of the Parson c. so in Attaint to one of the petit Jury But in an Ejectment and Not Guilty pleaded 't is no challenge to the Array that the Sheriff is Cousin to the Lessor of the Plaintiff For it doth not appear that the Title of him in Reversion shall be in question and he in Reversion is no party to the action See it so adjudged upon Demurrer Rolls tit Tryal 653. But now in our feigned Ejectments it is otherwise because the Title of the Lessor is only in question 'T is a good challenge that the Juror Princâ—pal for Affinity is Gossâ—p to the Plaintiff
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
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
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.
the Lands were parcel of the possessions of the Priory of Christs Church in Canterbury and the said Prior and his Predecessors had held it discharged of Tythes tempore dissolutionis and pleaded the Statute of 31 H. 8. The Defendant pleads that the Prior and A non decimando his Predecessors did not hold them discharged and upon issue joyned thereon the evidence was that the Prior or his Predecessors time out of mind c never paid Tythes but no cause was shewn either by unity of possession real composition or other cause to shew it discharged In nil debet upon the Statute for tythes 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 Cook said it was no evidence for it is a prescription in non decimando Curia contra For a spiritual man may prescribe in non decimando and by the Statute of 31 H. 8. he shall hold it discharged as the Prior held it and if he held it discharged non refeit by what means for it shall be intended by lawful means and the Jury afterwards found for the Plaintiff Cro. 3. part 2. 6. Vpon non assumpsit in a general Indebitatus Indebitatus assumsit assumpsit the Defendant may give in evidence payment at any time before the Action brought but upon a special promise to pay money 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 A Church-Book is no evidence Brownlow 1. part 207. Postea 26. Assise pl. 4. in evidence which ought not to be allowed the Court above cannot quash the Verdict except it be certified and returned with the Postea Brownlow 1 part 207. But the Court may order a new Tryal upon cause shewed as for excessive damages c. The Court will not permit the Jury to carry any Writings out with them but what are proved and under Seal But here I recollect my self and consider that this Chapter is of greatest use to our Circuit practiser and therefore I shall go no further in scatter'd instances but digest my further Collections into a method more beneficial which may be improved by any Practiser as other matter shall occur Quare defendens Crimen feloniae ei imposuit Action of tâ—e Câ—sâ— c. the Plaintiff cannot give in evidence words only but Acts as arresting charging or conventing him before Justice of Peace for felony Sanders vers Edwards Mich. 14 Car. 2. B. R. If any action arises on request as in Trover or special promise the Statute of limitation goes only to the request Juy's case Mich. 1652. C. B. v. 1 Cro. 139. Declaration for words spoken in the presence of A. B. and others in evidence it sufficeth that they were spoken in the presence of others only Wingfield and Coote Lent Assises Norf. 1662. per Hale Ch. Baron In Indebitatus for carrying of Herrings the evidence was he was a Porter at Yarmouth and when Herring-Ships came home he went of his own head and carried up to the Defendants house with other Porters so many Herrings and Good by Twisden Judge of Assise Norf. Summer 1662. Jermin vers Lucas In action for hindring to sit in a Pew claimed by prescription repaired c. ought to be given in evidence and one may prescribe to sit in the uppermost seat in a Pew Buckston and Bateman Mich. 14 Car. 2. B. R. In action for executing an illegal Warrant c. It 's good evidence to prove the Just of Peace acted as such without shewing his Commissâ—on so on the Statute of Hue and Cry Constables case Norf. Lent Assises per Hale Chief Baron Action for stopping up lights c. One had a piece of Ground and builds an house on part and Leases it then he sells the other part of the Ground to one who builds on it and stops up the lights of the first house the Lessee has a good action But if two owe two pieces of Ground and one builds the other may also build and stop up his lights Palmer vers Flesher Mich. 15 Car. 2. B. R. If a Master always gives his servant money to buy his Markets with it is good evidence to discharge the Master in an action brought against him for goods taken up on Trust by that servant Per Glyn Ch. Just Mich. 1658. at Guild-Hall Sr. Tho. Rouses case A water course runs through my Ground to the Grounds of J. S. where is a pit that time out of mind used to be filled with that water I may stop the water in my Ground and use it as I will so I do not turn the course another way but when I have done with it let it fall into its own course Per St. John Ch. Just C. B. Suff. Summer Assises 1657. Smart and Tystead Action for words You forswore your self in your answer in Chancery Defendant justifies Plaintiff replies de Injurià suà propriâ absque tali causa per Hale Summer Assise Suff. It 's a good replication and a small mistake in an answer shall not convict of perjury for the Councel may mistake or his Clerk Action for not scouring a Ditch by which the water overflowed his Land c. and declare quod quidam Rivus run there c. Vpon evidence it appeared only a Land-floud and good by name of Rivus though it be dry great part of the year and it was held the best pleading of the course of this River to put a place from whence it comes so to the Plaintiffs Land without mentioning mean places by which it passes which may be many and must be proved if laid per Whitfield 1641. York Clayton 96. Souldiers lying in an Inn 14 days are guests within the Custom of England Harlands Case per Whitfield 1647. The Plaintiff in action of the case intitles himself by prescription to a Fold course for Sheep upon all the Lands in such a Field on Mich. day and so to Lady day the Lands being unsown and for that the Defendant put on Sheep c. before Mich. day and after and thereby fed the grounds c. the Plantiff could not take so good feed actio inde 1. The owner may put on Sheep and feed his own grounds before Mich. unless a Custom be to the contrary which ought to be laid in the declaration Contrà of a stranger 2. It appearing that part of the Lands c. had been the Lands of the Plaintiff who was Lord of the Mannor and prescribed as such and there being no exception of those Lands in the prescription the Plaintiff was nonsuit for as to those Lands the prescription was gone by unity of possession Per Hale Ch. Baron Norf. Summer Assises 1668. Branthwait vers Hunt Assumpsit In Indebitatus covenant to pay is no evidence 2 Cro. 505. nor money due for rent by
a Witness to prove the delivery of the money to the Servant before the Robbery Rolls tit Tryal 686. A thing which is concluded in the Ecclesiastical Proceedings in Ecclesiastical Courts Court concerning Lands is not to be given in evidence to Juries for the Courts of Common Law are not to be guided by their proceedings Mich. 22 Car. B. R. Matter in Law is not to be given in Matter in Law evidence for the Jury are only to try matters of fact An ancient writing that is proved to Ancient Writings have been found amongst Deeds and evidences of Land may be given in evidence although the executing of it cannot be proved for 't is hard to prove ancient things and finding them in such a place by presumption they were honestly and fairly obtained and preserved for use and are free from suspicion of dishonesty 24 Car. B. R. A writing or answer permitted to be read Totum pars in part may be read in toto A Copy of part of a Record cannot be Copy of Records given in evidence unless 't is proved that the part shewed in evidence is all concerning the matter in question A transcript of a Record or Enrollment Transcript Enrollment of a Deed may be given in evidence for they are things to be credited being made by Officers of trust The Council of that party who doth begin Council to maintain the issue whether of Plaintiff or Defendant ought to conclude A Juror who is a Witness must be Juror also sworn in open Court to give evidence if he be called for a Witness for the Court and Council are to hear the evidence as well as the Jury The Jury may carry from the Bar an Exemplification exemplification under the Great Seal of Depositions in Chancery but if they are not exemplified the Jury can only look upon them at the Bar but not have them with them out of Court If one produce a Lease made upon an Lease upon an Outlawry Outlawry to prove a title he must also produce the Outlawry it self but if it be to prove other matter he needs not shew the Outlawry And so it is of an Extent without shewing the Statute or Iudgement on which the Extent is grounded By Rolls an Office found after the Office death of a Tenant in Capite of Lands in another County may be given in evidence to try the title of those Lands if there was a special Livery granted unto the Heir If a Witness be Bayl upon motion the Court will give leave to alter the Bayl. Bail Stiles 385. Debt for 10 l. against a Witness upon the Statute 5 Eliz. doth not lie unless Charges the Witness hath his charges and he is not bound to come without his Charges first paid but if he accepts of 12 d. and a promise for the rest at the tryal he is bound and an action lieth against him if he doth not come Cro. 1 part 522. 540. Goodwin against West A Counsellor may be examined as a Counsellor Witness against his Client so far as it is of his own knowledge not what his Client reveals to him and he knows only by his Clients information In Criminal causes against the King Criminal causes Witnesses may be sworn unless the Crime be Capital Tenant at Will of part of the Lands Tenant at Will was admitted to prove Livery of seisin and the execution of a Feoffment under which he held Bulst 1 part 202. If one be attainted of Felony and pardoned Attainted of Felony he shall not afterwards be sworn of a Jury for Poena mori potest culpa perennis erit and therefore is not fit to serve on the Inquest nor yet to be an indifferent Witness and two such persons proving a suggestion were rejected and the prohibition disallowed Brown against Crasham Bulst 2 part 154. In Trespass with a simul cum if nothing Simul cum be proved against them in the simul cum they may be examined as Witnesses Stiles Reports 401. 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 THe Iury having heard their Evidence Assise Enquest and Proof are taken for the word Jury Vide 28 E. 3. 13. let them now consider of their Verdict But first they must remember their Oath which in effect is To find according to their Evidence and therefore they should have had it before the Evidence but that the form and order of the Venire facias which I have tyed my self to follow leads me to it after their Evidence in these words Ad faciend quandam Juratam I have already shewed the derivation of this word Jurata See Chap. 1. and what is the legal acceptation of it only observe with our great Master Littleton That the word Assize is sometimes taken 1 Inst 154. for a Jury so as the Learned Commentator doth well paraphrase That the word Assise is Nomen Aequivocum Aequivocans because Assiza for Jurata sometime it signifieth a Jury sometime the Writ of Assise and sometime an Ordinance or Statute But Jurata is Nomen Aequivocum Aequivocatum because we always understand that woâ—d according to the aforesaid definition to be a Iury of twelve men so called by reason of the Oath they take The Juries Oath Truly to try the Suit of Nifi prius between party and party according to their Evâ—dence And as in an Assise the Jurors are called Why called Recognitors in an Assise and Jurors in a Jury Recognitors from these words in the Writ of Assise sacere 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 12 Knights Pleas as in Pleas of the Crown were 12 Knights as appears by Glanvâ—l lib. 2. cap. 14. and Bracton fol. 116. The next words of the Venire facias are Inter partes prâ—dictas 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 Jury per medietatem linguae bâ—linguis or per medietatem linguae And this Tryal 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 Lumbards or Almaignes or to any other Company that when any of them was impleaded the moyety of the Inquest should be of their own tongue
sufficien in lege existunt tam ad manutenend proband exit pred pro parte dicti A. F. superius ad patriam junct quam ad excludend Domin Regem de aliqua forisfactura bonor pred habend Ad quas pred Attorn Domini Regis pro ipso Domino Rege minus sufficienter respondit nec aliquod pro ipso Rege allegavit unde idem A. pet judicium ac quod pred bona in dicta informatione spec ei reliberentur quodque ipse quoad premissa ab hac Curia dimittatur Ideo ad judicium Note In this Case the agreement according to the Statute was put in Issue generally and yet the special agreement maintained the Issue And wheresoever the Evidence doâ—h not warrant prove Regula and maintain the vâ—ny same thing that is in Issue that Evidence is defective and may be Demurred upon Upon non est factum to a Bond dated at York It Non â—st factum was said in this case that to prove the Bond made in another place doth not prove the Bond nor Warrant the Issue because the delivery is intended to be where the Dare is but the Witnesses prove the contrary and so the Issue is not proved But surely if this be found the Plaintiff shall have Judgment as well as upon a Bond delivered before the date 31 H. 6. Plo. 7. Rolls 677. But infancy or made by Dures cannot be given in evidence upon non est factum lib. 5. Whelpdales Case 119. because thereby the Bond is not void but only voidable Otherwise of the Bond of a Feme Covert or Monk for there the Bond is void and so non est factum and so of a Bond made to a Feme Covert and the Husband disagree to it or by Husband and Feme Non est factum of the Wife In an Assise if the Tenant plead Nul tort nul disseisin he cannot give in evidence a release after the disseisin but a release before the Disseisin he may for Release then there is no Disseisin upon the matter In a Writ of Right if the Tenant joyn the Mise Warranty upon the meer Right he cannot give in evidence a Collateral Warranty for he hath not any right by it and therefore it ought to have been pleaded 1. Inst 283. Regularly whatsoever is done by force of a Warrant or Authority ought to be pleaded Regula But Note in all Cases where one cannot have advantage of the special matter by way of Plea there he may have advantage of it in evidence as for example The rule of Law is That one cannot justifie the Death or Killing of a man and therefore if one kill another in his own defence he cannot plead this specially but he may give it in evidence and so in defence of his House against Thieves and Robbers c. By the Statute 23 H. 8. cap. 5. any thing done by Sewers the authority of the Commission of Sewers may be given in evidence upon the general Issue After taking the General Issue the Defendant cannot give in evidence any thing that goes in discharge Regula of the Action as in Debt upon nil Debet he cannot give in evidence a Release nor a grant to cut Trees Release to repair upon nul wast fait nor making of a Ditch to amend the Meadow but that he only lopped the Wast Trees he may if wast be Assigned in succidendo Arbores c. Neither if a Statute was made that all Statute Tenants for life should be dispunishable of wast could he give in evidence this Statute 28 H. 8. Dyer 28. for the discharge ought to be pleaded because it admits a Cause of Action without it In Debt against Executors and Assets inter marus Assets in Issue 'T is good evidence that they sold Land by the Will of the Testator c. and that they had the money And so that they recovered Damages in Trespass for goods taken in the life of the Testator c. 3 H. 6. 3. In an Issue upon Villenage regardant to a Mannor Villenage a Villain in gross is no evidence Dyer 48. In wast by the Grantee of a Reversion by Montague Attornment and Fitz. The Lessee may plead that he in reversion ne grant a pas per le fait and give in evidence that he never attorned or he may Traverse the Attornment at his election Dyer 31. In Trespass Quare clausum fregit the Defendant Trespass says that locus in quo c. is 6 Acres in D. which is his Freehold the Plaintiff replies that it is his Freehold and not the Defendants The Defendant cannot give in evidence other 6. Acres in D. which are his Freehold because the plea shall be intended to refer to the 6 Acres of the Plaintiffs Dyer 23. In Rescous by the Lord upon not guilty the Rescous Defendant shall not give in evidence that he doth not hold by Vavasour and Bryan and so if he said nothing is behind in avowry he shall not give in evidence that he doth not hold of him T. 9 H. 7. 3. Avowry In Assise Feoffment pleaded the Plaintiff said he Feoffment did not enfeoff modo forma upon the Deed and Letter of Attorney to Infeoff upon condition found if the Attorny made it without condition this well proves the Issue for the Plaintiff 13 E. 4. 4. If one plead a Feoffment of a Jointment to his Companion or of a Feme Covert the other may say ne enfeoffa pas and give the matter in evidence and the Court shall instruct the Jury of the Law 18 E. 4. 29. Upon the general Issue any thing may be given in evidence Regula which proves the Plaintiff had no cause of Action Trespass by the Warden of the Fleet upon not Trespass Guilty you may give in evidence that he is not Warden 4 E. 4. 7. So in Trespass of a House that he had no house there or the Freehold of another and not of the Plaintiff is good evidence upon not Guilty but in Trespass of Goods 't is no good Plea to say the property was in another although it is in a Replevin and therefore it seems to be no good evidence in Trespass because possession maintains the Action against all but the owner but that the property was in a stranger and he gave them to the Defendant is good See before cap. Evidence 27 H. 8. 25. But in Trover Trover that they were not the Goods of the Plaintiff is good evidence 5 H. 7. 3. Cessavit 〈◊〉 Count that of diverse Lands held by Cessavit entire service upon non tenuit modo forma held by several services is good evidence for he had no such cause of Action 10 H. 7. 24. Upon the general Issue for the Defendant by evidence to Regula convey to himself the same Interest and Title â— good evidence As in Trespass of Goshauks Not Guilty
Elegit and of Hab. Corp. from a Mayor c. But if the retorn is not definitive as upon a Rescous c. an averment doth ly and upon this it may go to Tryal So if it be a return to indanger a mans Life or his Inheritance an averment may be had against it Dyer 348. 177. So it lyeth against the returns of Bayliffs of Franchises so that the Lords be not prejudiced in their Franchises thereby Goldsb 139. 129. pl. 23. An action for a false return an averment doth ly against the Sheriff return Winch 100. and so it doth Upon or against a Will or Administration it lyeth although they be under Seal of the Court. in any other action than in that the retorn was in Any averment may be upon a Will or any part of it that may help to expound it and of such a thing that may stand with the Will and may be collected out of the words As which Son he meant c. lib. 8. 31. 41. But no averment against or besides that which is expressed in the Will or which cannot be gathered to be the mind from the words nor of any thing that doth not cohere with the Will especially if it be about Lands As in the Lord Cheyneys Case lib. 5. 68. A devise to A. and the Heirs of his body the remainder to B. and the Heirs Males of his Body on condition that he or they or any of them shall not align c. no averment shall be taken to prove by Witnesses or other evidence that the Devisor intended to include A. within this condition by the words â—e or they for the construction of Wills ought to be collected out of the words of the Will in wriing and not by any averment or proof out of it It lyes against the Rolls or Records of County Against Court Rolls or upon them Courts Hundred Courts Courts Baron As that there is no such Record or it is not as it is certified 34 H. 6. 42. 9 E. 4. 4. No Averment or proof is to be admitted against Against common presumption or reason common presumption as that there was more Rent behind when the acquittance of the last Rent was made 1. Inst 373. Nor against common reason as that Land doth belong to Land or to a messuage Plo. 170. lib. 437. If the matter contained in an award and the matter Upon an award in the submission do not agree it will hardly be supplied by an averment Dyer 242. 52. If the Defeasance of a Recognisance be dated before Date the Recognisance it may be averred to be delivered at or before the time of the Recog entred into Perkins Case 147. Things apparent or necessarily intendable by Law need not be averred manifesta non probatione indigent Quod constat clare non debet verificari lib. 11. 25. Plo. 8. Chief Justice Anderson held Godbolt 131. that if Devise one devise Lands to the Heirs of J. S. and the Clerk writes it to J. S. and his Heir that the same may be holpen by averment because the intent of the Devisor is written and more and it shall be naught for that which was against his Will and good for the residue But if a Devise be to J. S. and his Heirs and it is written but to the Heirs of J. S. there an averment shall not make it good to J. S. because it is not in writing which the Law requires And so an averment to take away any surplusage is good but not to increase that which is defective in the Will of the Testator But with submission if the Law should admit of such averments it would be as mischievous one way as the other and no man could know by the words of the Will what construction to make nor what advice to give but this shall be controlled by collateral averments out of the Will and instead of proving the Testators Will it would be the destroying of it If the partition be by Writ although it be unequal Partition yet it shall not be avoided by averment but shall bind the Feme Coverts And such averment against the retorn of the Sheriff shall not be good 1. Inst 171. A valuable consideration in a Bargain and Sale Consideration not expressed may be averred 2. Inst 672. A consideration which consists with the Deed and not repugnant may be averred as in a Bargain and Sale if a particular consideration be expressed and the general clause of other good causes and considerations or without that general clause yet other considerations may be shewed so if the particular consideration be love and affection yet payment of money may be shewed so a precedent intent of uses and Uses to levy a fine may be shewed to guide the use of the fine Rolls tit uses 790. As if I covenant by Deed to purchase Land and then to levy a fine or make a Feoffment thereof to the use of another and afterwards purchase and levy a fine or make a Feoffment this use shall rise For the Deed is an evidence of the precedent intent and the uses of a fine or Feoffment may be directed by the precedent intent and yet such intent is countermandable But a covenant to purchase and stand seised of Lands to uses shall not raise the use after the purchase because the use is to rise by the Deed and at the time when the Deed was made there was no Estate in the Land ibidem So if one joyntenant covenant to stand seised of his Companions part if he survive yet no use shall rise if he did survive because at the time of the Covenant he could not grant nor charge the Land ibid. 'T is true that a fine sur grant and render unless it Fine sur grant and render use be in special cases cannot be averred by parol to be to any other use or intent than what is expressed in the fine Feoffment or other conveyance But there is a diversity betwixt a use and consideration for when a fine Feoffment or other conveyance import an express consideration a man may aver by word another consideration which may stand with the consideration expressed but the parties cannot by parol aver any other use than is contained in the same coveyance Also no averment shall be against the consideration expressed But yet in some cases a fine Sur grant and render may be ruled and directed in part by averment per parol and this is when the original Bargain and Contract betwixt the parties is by Indenture or other Deed As where it is agreed by Indenture that a Fine shall be levyed of certain Lands by the name of a certain number of Acres to divers persons and that they shall grant and render the Land again in fee simple which shall be to certain uses the Fine is levyed of the Land but there is some variance betwixt the number of Acres comprised in the Fine or the Fine is levyed
What evidence the Jury may carry with them 427. 479 Debt 194. 483 492 497 Payment 404. 498 Plene administravit 483. 491 What upon the general issue 483. 484 485 486 508 509 Evidence contrary to the issue 487 Which proves the substance good 487 489 495 Not against what is admitted on Record 492 Hors de son fee. 492 Entry 511 Estray 510. 512. Extinguishment 497 Embâ—ements 489 Executor 491. de son tort ibid. Estoppel 494 F. Â Fine 479. 501 503 c. 506 507. Feoffment 484 Felony 510 False Imprisonment 511 G. Â Grant 501 H. Â Hostler 498 I. Â Jury what they may find and upon what evidence 480 General Issue 483. 485 c. 490 Juâ—â—ifications in Trespass 486. 508 Forwords 490 Imprisonment 488. 511 Indictments 489 Impropriation 492 Juror a Witness 495 Infancy 497 Issue imperfect 498 L. Â Lunacy 508. 512 M. Â Maintenance 487 Master and Servant 488 Murther 490 O. Â Outlawry 510 P. Â Pleading 479. 483 Justifications 486. 490 Payment 404. 232 494 498 499 Proviso in Statutes 229 Prescription 488 Plea puis darrein Continuance 499 Presumption 505 Partioin 505 Park 511 R. Â Recovery Record Rolâ—s 480. 496 504 Release 483 Rescous 484 Replevin 485 Rent Reparations 492. 497 498 Robbery 495 Retorn of Writs 504 Relation 511 S. Â Slander 490 Surplusage 494 Servants wages 497 Seisure and condemnation 498 T. Â Trespass 193. 195 196 484 485 487 488 489 499 508 509 510 Trover 200. 194 485 498 499 Tenancy at sufferance at Will 485 Totum pars 490 Tenant in Common 509. 510 Trespass with a continuando 510 Ab initio 511. 512 Tender of amends 512 V. Â View 171 Villain 484 Viccaridge 492 Vse 500. 506 W. Â Witnesses 87. 495 Warranty 483. 495 501 Wast 483 Will. 494. 504. Warrant 511 ERRATA IN the Preface Pag. 1. l. 9. r. piece p. 3. l. 14. r. Joachimus Fortius Ringelbergius l. 20. r. leaves p. 4. l. 1. Demosthenes p. 191. l. 20. for Agreement r. a Grant p. 193. l. 12. r. Inst 282. to maintain the action p. 72. r. Amercement p. 491. in the Margin r. for to give evidence to have evidence THE TABLE A. APpeal 17. Account 227. Ancient Demesne 18. Administrations 18. where in Trover the Administration must be shewn and where not 225. Admission 24 25. Ability 25. Attorny 27 76 434. Letter of Attorny 214 213. Almanack 27. Assisa 352. Appearance 24. Amercements 436. Ambidexter 434. Attaint 439 442. Action of the Case for words 203 205. 501 503. Quare defendens crimen feloniae ei imposuit 202. for stopping up Lights 204. for stopping a Water-course 204 205. for feeding on his Fold-course 206. for not restoring a Horse hired 207. Indebitatus Assumpsit 206 207 200 209. Award 211. B. BAstardy 19 25 104. Battail 21 28 22. Baron Feme 25 382 211. 213. Bishop 25. Bayley 27. 47. 208. Bill of Exception to Evidence 470. Bankrupt 229. Bail 246. C. CRiminal Causes 9 19 22. 107. 247 Civil Causes 8. Certificate 10 11. 27. 89. Customs 14. 20. of Courts 14. 18. of London 20. Courts 18. Inferior Courts 111. 177. Coverture 25. Confession 30. Coroners 38 c. Challenges 46. 71. 77. Cap. 9. per tot To the Array to the Poll 131. 140. Principal and to the favour 132. 139. how and when to be made 136. 167. 166. 149. 156. 157. 160. 163. 171. where the King is Party 137 139. 140. 142. 157. 165. 3 4 Peremptory Challenge 141. 151. 155. 4 No Challenge of Peers 142. 144. Principal Challenge to the Poll 142 143. 152. Propter honoris respectum 143. Propter defectum 144. 3 Propter defectum Hundredorum 147. 1 for want of Freehold 144. 172. Propter affectum 150. 154 155. 164. Deins distress 153. 160. Principal for Consanguinity 153. In what Inquest a Challenge may be 158. Tryal and Triors of Challenges 258 159. 169 170. 2 where for one shall serve for others c. 159 160. 168. Witness Infant Godfather 161. Challenges arising from the Jurors own act 161 162. Propter delictum 165. Demurrer to a Challenge 168. 1 Arbitrator Comissioner Counsel Eat and Drink Actions of Malice 162. Parson Parish Fellow Servant 163. Rules concerning Challenges 170. 1 3 4 A wrong Name 172. Challenge lost 171. Precedents and forms of Challenges 449 c. 476. The King must shew the cause of Challenge 2 The King or Party may release their Challenge 3 How proved 4 Circumstances 381. Condition 179. Counsellors 435. 245. 247. Copyholder 198. 215 216. Corporation 223. 1 4 Constable 224. D. DIvorce 25. Dowres 26. 110. 239. Demurrer 32. Distringas 37. Detinue 55. Disceit Writ of Disceit 23. Deed Pleaded to be delivered after the date not before 366. Of a Deed 194. 176. 221. 240 234. 230. Damages by the first Inquest 369. 370. 372. veral Damages 370. Se 371. Writ of Inquiry 372 373. 375. 230. Damages released 375 374. 376. Damages and Costs 376 377. 402. Damages in real and personal Actions 377. 230. Decree 179. Default Inquest by Default 505. 415. 217. Demurrer to Evidence 469. 467. Day of Nisi prius and day in Bank all one to some purposes 466. Debt 210 211 212 213. Demand 210. Deprivation disables to make a Lease 217. Date 218. Dower 226 227. E. ENtry 214. 221. Escheator 23. 27. Elifors 38 c. 168. 3 Error by death of one Defendant 59. what 501. 3 Extortion 233. Exemption from serving on Juries 91. Escape 239. Estoppel 365 366. 178. Estray 218 219. 225. Evidence Quid 181 cap. 11. pro tot What is good Evidence in many particular Cases see there 188 189. 197. 211. 233 234 235. usque 248. What is Evidence upon the general Issue 192 193 194 195. 198 199 200. 238 240. Upon a special Issue 236 c. What Evidence the Jury may carry with them 423. 202. 242. What Misdemeanour in taking Evidence spoils their Verdict 423 424 425 426 427 428 418. Juror gives Evidence in open Court 428 245. Shop Book 195. Presumption 196. 182. In Trespess 195 196. 200. 193. 218. usque 224. 234. 242. 237. Church Book 202. In Trover 200. 194. 224. Deed lost 196. 189 190. 216. 228. 230 231 232. 234. 239. 244. Evidence cannot be pleaded 197. Covin 198. 211 212. 241. Acâ—ompt 195 192. Action upon the Case 202. usque 206. Doomesday book 198. Attaint 198. Debt 210 211 212. 213. 234. 236. Riens per Discent 211. 241. Ne unques Executor 211 112. 197. Ejectment 213. usque 218. 220. Evidence after default in Ejectment 217. Will 215 216. 235. Payment 198. 221. 231. Recital Acquittance 231. 235. Will 216. 215. 240. Court Rolls and Copyholders 198. 215. Statutes Pardons 199. 229. Plene administravit 194. 188. 190. 192. 211. 212. 235. 242. Wast 193. 240. Non est factum 193. Proofs 187. 182. Pedegree 188. 242. Agreement 180. 191. Recognisance 188. Tenure in Capite 188. Ecclesiastical Proceedings 189 190. 236. 244. Copy of Records 189 190. 229. 230.