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 Treat doth signifie as taken out or withdrawn Treat what and is applied to a Juror that is withdrawn by consent or removed and discharged by challenge A Juror sick was withdrawn and another sworn Palmers Reports 411.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
joyn although they be not nearest nay though 20 Counties be between them Finch French 59. 1 Inst 154. But if it be of a Lease at Ickford of Land in Bury in Suff. the Venue must be of Bury not of Ickford ib. 619 If the issue be taken upon the name or Where the Writ is brought condition of the person this shall be tryed in the County where the Writ is brought 21 E. 4. 8. for this may be well known there Rolls ib. 615. Where the issue is to be tryed upon a point which shall be tryed by two Counties and one cannot joyn with the other this shall be tryed where the Writ is brought 21 E. 4. 8. but for this see before where the Counties cannot joyn In Debt in London against I. S. of D. in Where in other County than where the writ is brought Essex if the Defendant saith that he was at S. in Essex at the time of purchasing the Writ and not at D. this shall be tryed in Essex and not where the Writ is brought for none can know where he dwelt so well as the County of Essex 12 H. 6. 5. Vide many cases in Rolls ib. 605. c. about this matter In an Action of the Case against a Sheriff upon an escape in London and the Arrest laid Where the escape was and not where the Arrest was to be in Southampton adjudged that the Visne shall be where the escape was because that is the ground of the Action and not where the Arrest was Cro. 3. part 271. In Debt upon an Obligation payment was pleaded apud domum mansionalem Rectoriae de Much-Hadam and the Venire facias was de vicineto de Much-Hadham where it ought to have been de vicinet Rectoriae de Much-Hadam but it was adjudged good because Much-hadam is here intended a Vill. ib. 804. So you see that where a thing is alledged to be done at the Capital House * Rectoriae of D. there the Venire shall be of D. For that is intended to be all one with the Vill. Castle But where it is at the Castle of Hertford c. there the Venire facias shall not be de Rolls tit Tryal 621. vicineto de Hertford but de Castro de Hertford for Castrum Hertford is intended a distinct place by it self and so of all Castles Cro. 2. part 239. More 862. A Venire facias may be awarded of a Castle Rolls 618. Where the issue is not parcel of the Mannor Mannor of D. or the Custom of a Mannor is in question the Venire ought to be of the Mannor Hob. 284. Cro. 2. part 327. If the Mannor be laid to be in a Vill the Venire facias Rolls tit Tryal 621. may be of the Mannor in the Vill as de vicineto maneâ—ii de Stansted-Hall in Windham Cro. 2. part 405. More 851. Arundels Case li. 6. 14. The Venue cannot be of a scite of a Mannor Rolls tit Tryal 618. In the Common Bench in Trespass for taking away a Bag of Pepper the Defendant justified as Servant of the Mayor and Commonalty of London for Wharfage due to them by the Custome of London which the Plaintiff refused to pay The Plaintiff replyed that the Custome did not extend to him London because he was a Free-man of the City and ought not to pay Wharfage to which the Defendant re-joyned that the Custom extended to him as well as to strangers upon which issue was joyned Resolved 1. That the issue should be tryed Reâ—order per Pais not by the mouth of the Recorder because he certifies nothing but what the Mayor and Aldermen direct who are concerned in the cause 2. That the Venire facias should not be awarded to the Sheriffs of London nor Middlesex because the Tryals there are by Free-men But it shall be to the County Where the Tryal shall be by the County next adjoyning next adjoyning viz. to the Sheriff of Surry So where any City is concerned the Venire facias shall not be directed to the Officers of the City but to the County next adjoyning Hob. 85. Stiles 137. More 871. vide hic cap. 2. If the issue concern the Mayor and Commonalty of a Town the Array shall be made all of Foreigners 31. Assise 19. vide Rolls tit Tryal 597. So if the issue concern the Mayor and Commonalty c. although they are not parties yet the Venire facias shall be directed to the Sheriff of the next County 15 E. 4. 18. Where a man lends a Horse to another Where a man lends his horse in one place and he is spoiled in another Visne where he is spoiled to till his Land and the Horse dies with excessive Labour the Visne shall be from the place where the excessive labour was and not where the delivery was More 887. vide Hob. 188. Rolls tit Tryal 615. pasch 22 Car. 2. B. R. Horsley versus Potter An action of the case was brought for misusing an Horse in Itinere the Contract was laid at Swafham in Norf. and the riding to Peterborough in Northampton-shire where the Horse died it was tryed in Norf. and the Court seemed that it ought to have been tryed in Northampton-shire where the damage was done and not where the contract was made but it was aided by the Stat. of Jeofailes 17 Car. 2. cap. 17. after Verdict that Statute being then in force Where a promise is laid in one place and Promise in one place and breach in another Visne guided by the issue the breach in another the Visne must be according to the event of the issue whether it be taken upon the promise or breach But if no place be alledged for the breach and issue be taken upon it the Visne must be from the place of the promise which shall be intended right where the contrary appears not see Godbolt 274. Easter 39 Eliz. In the Kings Bench Trespass Assault and Battery en Wilts continuing the Assault in Middlesex and adjudged that the Jurors shall come out of both Counties More 538. The name of a Mannor or Land or Misnomer other local thing shall be tryed where it lies because it is local but the name or addition of a person shall be tryed where the Action is brought because this is transitory Bro. tit Visne 7. lib. 6. 65. In Covenant upon an Indenture of Demise of the Rectory of Stoken Church in the County of Oxford That the Defendant Where the Land lies had good Power and Authority to demise The Indenture was alledged to be made at London and the Venire facias was awarded to the Sheriff of Oxon and this being assigned for Error Iudgement was affirmed and this adjudged to be good More 710. because the Rectory was in Com. Oxon. vide pag. 45. In Debt upon an Obligation in one Where the Land lies and not where the Writ c. County to perform Covenants in a Lease and the Land
ancient Who are to be exempted from Juries Demesne Ministers of the Forest out of the Forest Coroners Infants under the age of 14. years Officers of the Sheriff sick decrepit men and such as are exempted by the Kings Charter yet in a Grand Assise preambulation Attaint and in some other special Cases such men as are not exempted by reason of their Dignity shall be forced to serve notwitstanding their exemption in other Cases Sée Daltons Office of Sheriffs fol. 121. 52 H. 3. cap. 14. 2 Inst 127. 130. 378. 447. and 561. Counsellors Attorneys Clerks and other Ministers of the King Courts are not to serve on Juries But I find one Jury made of Attorneys of the Common Bench and Exchequer in a Case brought upon a Bill in the Exchequer by Sir Thomas Seton Iustice against Luce C. for calling A Jury of Attorneys of him Traytor in the presence of the Treasurer and Barons of the Exchequer And this Jury of Attorneys gave the Justice one hundred marks Damages 30 Assise 19. The Court frequently order a Jury of Merchants to try Merchants Affairs If the Charter of exemption be that he In what cases they shall be discharged by Charter shall not be put in Juratis Assisis seu recognitionibus aliquibus yet this shall not excuse in a Writ of Right upon Tryal of the Grand Assise for he comes not in in this Case by such Process as in other Cases but is chosen by the Oath of the 4 Chivaliers and now he is in a manner Iudge in this Case 39 E. 3. 15. Neither shall it exempt him in an Attaint nor in a Grand Inquest to inquire of Felonies c. because the Charter hath not this Clause Licet tangat nos haeredes nostros 42. Ass 5. At the Nisi prius the Bayliffs of a Vill. A◠what time and how the Charter shall he allowed may shew a Charter that to try contracts ◠within the Vill. the Inquest shall be all of Denizens without Foreigners and this shall be allowed and the Foreigners shall be ousted 29. Assise 15. So may the Burgesses who are put upon a Jury out of the Borough if they have such a Charter 30. Assise 1. If a man be Impannelled of an Inquest Allowed without Writ and shew such Charter of exemption of the same King in whose time he shews it this ought to be allowed without Writ 39 E. 3. 15. Rolls ib. 633. 4. De vicinet de C. It is not sufficient that they dwell in the County but they are to be of the Neighbourhood Nay le plus procheins Visne to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ib. as I shall shew hereafter 5. Quorum quilibet habeat quatuor libras Sufficiency of Jurors terrae tenement vel reddit per annum ad minus This is their sufficiency where the debt or Damages or both together 1 Inst 272. amount to 40 Marks or above The sufficiency of Jurors in other Cases of lesser moment is still left to the discretion of the Iustices Fortescue cap. 25. who experience tells us never require Jurors under 4 li. per annum according to the Statute of 27 Eliz. cap. 6. before which men of 40. s. per annum served But neither this nor the Stat. of 35 H. 8. extend to Juries in Cities Towns Corporate or other priviledged places or in the 12. Shires of Wales so that there they shall be returned as before they lawfully might have been for the Jurors sufficency in Attaints see the Statutes 15 H. 6. 5. 18 H. 6. 2. and 13 H. 8. 3. As to the Statute 35 H. 8. 6. The tryal ordained by that Statute lyes only in such actions which have their ordinary tryal by 12. men and not more and by Writ of Nisi prius and this only in those actions in which the Process of Venire facias Habeas Corpora and Distringas lyes against the Jurors and in no other actions And although the Statute only mention the Tryal of issues joyned in the Kings Courts commonly holden at Westminst and if the action be commenced in any other Court yet if the Issue be joyned in any of the Courts at Westminster it shall be tryed according to the said Statute and so if those Courts are removed from Westminster the issues joyned in them shall be tryed as the said Statute directs And the words betwixt party and party shall only be intended of Common persons and not betwixt the King and any other person nor when the King joyns with any other person in any action which by his release or pardon may be discharged before the action brought Which is necessary to be known in respect of Tales de circumstantibus c. See Williams his reading upon this Statute lately come out in print In which are many ingenious speculations but because they do not come often in practice and the project of this Treatise is only to contain matters useful for practicers that the Book may not swell too big I omitt them referring you to the reading it self See afterwards in the Chapter of Challenges It is the General course of the World to estéem men according to their Estate For Quantum quisque sua nummorum servat in arca Tantum habet fidei And sure I am the makers of this Law had cause enough to do so in this Case for if men of less Estates should serve in Juries such Fellows would only be shifted into Inquests as had more need to be relieved by the 8 d. than discretion to fift out the truth of the fact 'T is hard to get an unbyassed Jury now But surely less rewards would sooner bribe and byass meaner men than these Therefore lest poverty or necessity should tempt Every Juror must have 4 li. per annum as aforesaid of Free-hold out of Ancient Demesne And the Court may Jurors of above 4. l. per annum in matters of great consequence direct a Venire facias for a Jury of above 4 l. per annum a piece but not under Cro. 2. part 672. But in such Cases every one knows the Court most Commonly orders the Protonotary to chuse 48. out of the Sheriffs Book of Free-holders of the most substantial men in the County and the parties strike out 12 a piece then the Sheriff returns the rest Note in former times when Estates of inheritance were in few mens hands such Jurors of 20. per annum as had 40. s. per annum were found sufficient men to serve on Juries After Estates of inheritance coming in greater measure to the Vulgar it was by the said Statute 27 Eliz. cap. 6. made 4. l. per annum and the same reason improving in late times it was thought consisting with the wisdom of a Parliament to raise it to 20. l. per annum to the end mens Estates might be trusted in the
judgement of more knowing Judges of fact when they become litigious and this was by an Act of 16 17 Car. 2. cap. 3. which being but a probationer and to continue but for 3 years and from thence to the end of the next Session of Parliament it is expired but for that it may be revived as I humbly judge it expedient I have thought fit to hint thus much concerning it Such a man who hath Land Rent Office or other profit Apprendre out of ancient Demesn to the clear yearly value of 4. li. of which he may have an Assise he hath sufficient Freehold to be a Juror Vide the said reading Where you may know what Estate is sufficient to make a man a Juror See hic in the Chapter of Challenges Et qui nec D. E. nec F. G. aliqua affinitate Jurors mus not be of affinity to the parties attingunt the Law is very cautelous in not leading men into temptation Therefore lest kindred and Affinity should wrong the Conscience to help a freind our Jurors must not be related to any of the parties And for this Reason likewise the Statutes provide that no man of Law shall ride Judge of Assise or Gaol-delivery in his own Country 8 R. 2. 2. 33 H. 8. cap. 24. yet the contrary hereof is often done by a non obstante but how consistent with integrity or prudence they know best who procure it to be done But because most things concerning the Quality and sufficiency of Jurors will come more properly under the Title Challenge I will refer you thither And first observe more particularly De quo vicinet the Jury ought to come CAP. VIII Concerning the Visne from what place the Jury shall come c. VIcinetum is derived of this word Vicinus Visne and signifieth Neighbour-hood or a place near at hand or a Neighbour place where the question about the fact is moved And the most general Rule saith Coke 1 Inst 125. is That every Tryal shall be out of that Town Parish or Hamblet or place known out of the Town c. within the Record within which the matter of fact issuable is alledged which is most certain and nearest thereunto the Inhabitants whereof may have the better and more certain knowledge of the fact And if a thing be alledged in D. the Venue must not be of D. but de vicineto de D. for otherwise the Neighbourhood would be excluded Roll. tit Tryal 622. And if the fact be alledged in quadam plaâ—ea vocat Kingstreet in parochia sanctae Margaretae in Civitate Westm in Com. Midd. In this Case the Visne cannot come out Parish of Platea because it is neither Town Parish Hamlet nor place out of the Neighbour-hood whereof a Jury may come by Law but in this Case it shall not come out of Westminst but out of the Parish of St. Margaret because that is the most certain But therein also it is to be noted that if it had been alledged in Kingstreet in the Parish of St. Margaret in the County of Middlesex then should it have come out of Kingstreet for then should Kingstreet have been esteemed in Law a Town For whensoever a place is alledged generally in pleading without some addition to declare the contrary as in this Case it is it shall be Town taken for a Town And albeit parochia generally alledged is a Parochia place incertain and may as we see by experience include divers Towns yet if a matter be alledged in parochia it shall be intended in Law that it containeth no more Towns than one unless the party do shew the contrary But when a Parish is alledged within a More 559. City there without question the Visne shall come out of the Parish for that is more certain than the City If a matter be pleaded done apud Bradford in Forfeild in parochia de Belbroughton the Venue shall be of Belbroughton and not of Bradford for Belbroughton shall be intended to be a Town and one Town shall not be intended to be in another Town and therefore Bradford shall not be intended to be a Town Rolls tit Tryal 619. The Venue shall ever be of the most certain place In a Quo warranto for using a Warren in D. if the Defendant say the Ville D. is parcel of the Manner of S. and prescribes to have a Warren within the said Mannor and Demesnes thereof the Venire facias shall be of the Mannor for the Mannor by intendment is more large than the Vill. If the Visne be de D. and S. and the Venire facias be de D. S. and V. this is not good because it is too large If apud Burgum de Plimouth the Venue may be de Plimouth generally If apud Villam de Cambridge in Warda Fori and the Venire facias is de Villa Warda praedict this is helpt by the Statute of Jeofailes If the place be out of a Town the Venue shall not be of the next Town but from the place it self but the Sheriff ought to return the Jury de pluis prochein vill In Ejectment of Land in Foresta de Kevennon in Com. the Venue may be de vicineto Forestae for this is a place known and by intendment because the Defendant hath not pleaded in abatement This is out of any Parish or Vill. In inferior Courts within Boroughs the Venire facias is Quod Venire facias 12. liberos Burgenses Burgi parochiae de B. although there may be 12 Burgesses which are not inhabitants Rolls tit Tryal 622. c. The Venue shall follow the issue vide hic postea In Trespass and Battery in London if the Defendant justifie in Mid. by Process out of the Marshalls Court that he arrested him and because the Plaintiff would not go with him he beat him c. Absque hoc that he is guilty in London vel alibi out of the Iurisdiction of the Court. To which the Plaintiff replies and acknowledges the arrest but says that he beat him at London de injuria sua propria absque tali causa and issue upon this This shall be tryed in London and the words absque tali causa are void the issue being joyned upon a place certain scil London affirmed in a Writ of Error Rolls ib. 624. But the Court said that he might have Demurred upon this Plea If a Trespass be alledged in D. and nul De Corpore Comitatus tiel ville is pleaded the Jury shall come de Corpore Comitatus But if it be alledged in S. D. and nul tiel ville de D. is pleaded The Jury shall come out de vicineto de S. For that is the more certain So if a matter be alledged within a Mannor the Mannor Jury shall come de vicineto Manerii But if the Mannor be alledged within a Town it shall come out of the Town because that is most certain for the Mannor may extend into divers Towns
11. In Trespass the Buttals must be proved as they are laid If the Defendant plead payment to a Bond Payment by presumption or Bill and it appears the Debt is very old and it hath not been demanded nor any use paid for it many years common presumption is good evidence that the money is paid and the Juries use to find for the Defendants in such cases If the Trespass were in truth done the 4th Trespass another day of May and the Plaintiff alledgeth the same to be done the 5th of May or the first of May when no Trespass was done yet if upon evidence it falleth out that the Trespass was done before the Action brought it sufficeth 1 Inst 283. 'T is dangerous to permit evidence to a Deed. Jury by Witnesses that there was such a Deed which they have seen or read or prove the Deed by a Copy because the Deed may be upon Condition Limitation or power of Revocation and if this should be permitted the whole Reason of the Common Law in shewing Deeds to the Court would be subverted for the Deed might be imperfect and void which the Witnesses could not perceive yet in cases of extremity as where the Deed was burned or lost by some other notorious accident the Judges may at their discretion allow them to be proved by Witnesses li. 10. 92. and so of a Record In Case against an Executor whereas Executor the Testator was indebted to the Plaintiff thâ— Executor promised to pay the debt in consideration the Plaintiff would forbear to sue him the Executor may give in evidence upon Non assumpsit that there was no Debt or that he had no Assets tempore promissionis for then there would be no Consideration li. 9. 94. William Banes Case upon the issue neunques Executor to prove an Administration granted to him is good evidence Dyer 305. Evidence shall never be pleaded but the Evidence matter of fact shall be pleaded and if it be denied the evidence shall be given to the Jury not to the Court lib. 9. 9. Evidence that the Wife of every Copy-holder shall have the Land durante viduitate will not maintain the issue that the Custom of a Mannor is that she shall have the Land during her life after Estate for life her Husbands death because though durante viduitate imports an Estate for life yet an Estate durante vita is more large and beneficial li. 4. 30. Things done before the memory of man What may be given in Evidence in another County or in another Kingdom may be given in Evidence to a Jury as Assets in another County c. More 47. See li. 4. 22. 9. 27. 28. 34. li. 6. 46 47. Vpon issue payment at the day payment Payment before or after the day is no Evidence More 47. but upon Nil debet it is good Evidence because it proves the issue Vpon issue Assets or no Assets or seised or not seised if one give a Feoffment c. in Evidence Covin may be given in Evidence Covin by the other but not if the issue be infeoffed or not infeoffed for it is a Feoffment tiel quel though made by Covin li. 5. 60. Hob. 72. The Book of Doomesday brought in Doomesday-book Court is good Evidence to prove the Land to be ancient Demesne Hob. 188. In Attaint the Plaintiff shall not Attaint give more evidence nor examine more Witnesses than was before but the Defendant may Dyer 212. Copies of the Court-Rolls are the only Court-Rolls for Copy-holders evidence for Copy-holders for as Littleton Sect. 75. tells you they are called Tenants by Copy of Court-Roll because they have no other Evidence concerning their Tenements but only the Copies of Court-Rolls But Cook explains the Text and says This is to be understood of Evidences of Alienation for a Release of a Right by Deed. A Copy-holder that cometh in by way of admittance may have and that is sufficient to extingish the Right of the Copy-holder which he that maketh the Release had In Actions upon the Case Trespass Battery or false imprisonment against any Iustice of Peace Mayor or Bayliff of City or Town Corporate Headborough Portreve Special Evidence upon the general issue by whom Constable Tythingman Collector of Subsidy or Fifteen in any of his Majesties Courts at Westminst or elsewhere concerning any thing done by any of them by reason of any of their Offices aforesaid and all other in their ayd or assistance or by their Commandment c. They may plead the general issue and give the special matter of their excuse or Iustification in Evidence 7 Jac. cap. 5. General acts of Parliament may be given Statutes in Evidence and need not be pleaded and so may general Pardons given by Parliament if they be without Exceptions But commonly advantage of the Act is given by the Act it self to the offnder without pleading it as by the late most truly Pardons so called general act of Indempnity every person thereby pardoned may plead the general issue and give the act in evidence for his discharge which are general and which particular Statutes see lib. 4. 76. Vpon not guilty in Trover the Defendant Trover may give in Evidence that the goods were pawned to him for 10 l. That he distrained them for Rent or damage feasant That as Sheriff he levied them upon Execution or that he took them as Tythes severed Cro. 1. part 157. 3 part 435. Hob. 187. A demand and denial of the goods is evidence of a conversion If there be two Batteries between Plaintiff and Defendant at divers times the If there be two Trespasses and the Defendant peads a Justification if the Plaintiff replies de injuria sua propria c. he cannot give in Evidence a Trespass at another time But he should have replyed that at another time in the same day of his Count the Defendant did the other Trespass c. to which the Defendant may plead another Justification but the Plaintiff cannot then plead a Trespass at another time but must conclude Sans tiel cause c. vide Apres Plaintiff is bound to prove the Battery made the same day in the Declaration and shall not be admitted to give another day in evidence as the case may be As in Battery the Defendant pleaded Son assault Demesne and the Plaintiff replyed de injuria sua propria absque tali sua and in evidence the Defendant maintained that the Plaintiff beat him the day mentioned in the Declaration and in the same place which the Plaintiff perceiving he gave in evidence that the battery was made another day and place to which the Defendant demurred upon the difference aforesaid Brownlow 1 part 233. 19 H. 6. 47. But upon not guilty it is otherwise though there be never so many Batteries between the parties Littleton Sect. 485. Prohibition for suing for Tythes in Booking Park in Essex and surmised that