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A38736 Tryals per pais, or, The law concerning juries by nisi-prius &c. by G.D. of the Inner Temple, Esquire. G. D. 1685 (1685) Wing E3413A; ESTC R36204 212,735 464

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if that be Album breve and no return if the Venire facias be Right Rolls tit 204. In Cases where there are several Defendants who plead several Pleas the Plaintiff Several Venire facias may chuse either to have one Venire facias for all or several for every one of the Defendants But if you will be ruled by Stamford the surest way is to have a Venire facias against every one and then one cannot have benefit of the others Challenge neither shall the death of one abate the Venire facias against the other This he speaks of in Appeals But if the Court once award a joynt Venire facias you cannot have several Venires afterwards though there be nothing done upon the first except it be upon matter de puisne Temps as the death of one of the Defendants c. lib. 8. 66. lib. 11. 5 6. Stamf. 155. Bro. tit Venire facias 2. 35. But now it is the usual course to have but one Venire facias upon several issues though against several Defendants Cro. 3. One Venire facias in several issues Vide Rolls tit Trial 596. 620. 667. Hob. 88. 51. part 866. Hob. 36. 64. And so usual that the Court declared Cro. 2. part 550. That there never shall be several Venire facias to try several Issues in one County For what need the Plaintiff trouble himself and the Country with several when one Iury will serve his turn Et frustra fit per plura quod fieri potest per pauciora But otherwise if it be in two Counties Cro. 3. part 866. After issue joyned by two Defendants Venire facias between the Plaintiff and 2 Defendants where one is dead if one of them die and then a Venire facias is awarded betwixt the Plaintff and both the Defendants and so in the Hab. Corpora and Distringas yet this shall not Vitiate the Venire facias c. to make Error because though one of the Defendants be dead yet the other being alive it is sufficient And there needs be no surmise in Iudicial Writs that one of the Defendants No surmise in Judicial Writs of death in one of the parties is dead It is time enough to shew it to the Court at the day in bank Cro. 1 part 4. 26. But if there be two Defendants and the Venire facias be but against one of them 't is Error 7 H. 4. 13. and Bro. tit Ven. fac 11. Cro. 1. part 426. If the Venire facias bears date before Venire facias dated before the Action brought the Action brought or varies from the Roll yet it is aided by the Statutes of Jeofailes Cro. 1. part 38. 90 91. 203 204. Miscontinuance or discontinuance or Jeofailes misconveying of Process is aided by 32 H. 8. 30. The want of any Writ Original or Jud●cial defaults in their form and insufficient Returns thereupon are aided by 18. Eliz. 14. Cro. 3. part 259. But you must have a care the Venire facias be not faulty in any other matters of Substance for if the parties names be mistaken or the issue Parties names mistaken in a Venire facias as if the issue be ne unques Execuor and the Venire facias be in placito debiti c. this is a Mistrial Cro. 2. part 528. So it is if the Venire facias be in placito transgressioni● Mis-tryal where the Action is in placito transgressionis ejectionis firmae This misawarding of Process is not aided by any of the Statutes and better it were that there had been no Ven●re facias at all in No Venire facias holpen such a Case for then the Statutes would have holpen it Cro. 3. part 622. If a Venire facias be directed to the Coroners Return of Process all the Coroners ought to joyn in the return they being Ministers not Judges and so both of the Sheriffs of London ought to joyn or else the Return is not good Hob. 97. Note the Principal Statutes of Jeofailes are 8 H. 6. cap. 12. and cap. 15. 32 H. 8. cap. 30. 18 Eliz. cap. 14. 21 Jac. cap. 13. and 16 and 17 Car. 2. 8. Intituled an Act to prevent Arrests of Judgements and superseding Executions And the three first of these Statutes do not extend to Appeals nor to Pleas of the Crown or to any proceedings upon them for these are excepted nor to the amendment of any Exigent to make any one Outlawed As you may see at large lib. 8. 162. Blackamors Case And the four last of the said Statutes do neither extend to them nor to Actions or informations upon Penal Laws Only in the last of them viz. 16 17 Car. 2. there is a limitation in the negation of the Extent scil Other than concerning Customs Subsidies of Tonnage and Poundage to which it doth extend If the Venire facias be directed Vicecomiti London Salutem c. praecipimus tibi and not vobis after Verdict this is Amendable 39 Eliz. B. R. Adjudge Rolls 200. And so it is if after habeas ibi hoc breve Nomina Juratorum be left out ib. and 204. But if the date of the Teste be after the return this was held not amendable 32 33 Eliz. B. R. ib. sed vide hic ante But if the Award of the Ven. fac upon the Roll be right and the Writ wrong it may be amended by the Roll as the Misprision of the Clerk ib. 201. If the words quorum quilibet habeat be left out or duodecim or qui nulla affinitate attingunt or Vicecomiti be left out these are amendable as mistakes of the Clerk Rolls 204 205. In some Cases a Venire facias shall be Venire facias between a party and a stranger awarded to make an Enquest betwixt a stranger to the Writ and issue and the party I will instance but in one and that is upon the Statute of Westm 2. cap. 6. If a Tenant being impleaded vouch to warranty and the Vouchee denieth the Deed or other cause of the Warranty c. That the Demandant may not hereby be delayed he may sue out a Venire facias to try the issue between the Tenant and Vouchée Inquests in Pleas of Land shall be as Inquest at whose request well taken at the request of the Tenant as of the Demandant 2 Edw. 3. cap. 16. If the Plaintiff or Demandant desisteth in prosecuting his Action and bringeth it Venire facias by Proviso not to Tryal then the Defendant or Tenant may sue forth a Venire facias with a Proviso which is to no other end but that the Sheriff should summon but one Iury if the Plaintiff also should have brought him another Writ to the same purpose And although as my Lord Dyer saith fol. 215. the granting of this Venire facias c. with a Proviso depends much upon the discretion of the Court yet for the greater part it is not grantable for the
Castle but that there was a Goal this was for the Plaintiff because Goal is the Substance If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt assigned by the Plaintiff and the Iury find an Accompt before R. only the Issue is found for the Defendant for the Accompt is the effect of the Issue Vide Rolls tit Trial. 707. c. If 11 agrée and the 12th will not the Verdict of the 11 cannot be taken but the Court Jury agree may carry the Iurors with them in Carts until they are agréed 41 Ass 11. A privy Verdict may be altered in open Verdict altered Court In an Extendi fac upon a Statute if the Iury deliver their Verdict in Writing they may afterwards make it more formal but they cannot alter it in substance for it is a compleat Verdict by the delivery So of Presentments c. A Fine pleaded in Barr and that after Fine and Non-claim the death of A. scil 1 August 3. Car. B. Father of the Plaintiff was alive in plena vita remansit infra hoc Regnum infra quatuor Maria c. apud W. in Com. D. and no Entry or Claim within five years after and the Plaintiff replies and takes Issue què Modo forma il non fuit remansit infra hoc Regnum Angliae modo forma c. And the Iury find quod non fuit remansit infra hoc Regnum Angliae 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a Month and refer to the Court Au fuit remansit infra hoc Regnum modo forma c. This Issue is found for the Defendant for the matter and substance of the Plea is whether he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff and modo forma shall not make the day material Roll. tit Trial. 713. Iudgment upon a Demurrer and a Writ Judgment Arrest at what time of Inquiry executed at the return the party may shew any thing in Arrest of Iudgment for Iudgment is not compleat until the last Iudgment The first is but an Award A man may plead any thing in Arrest of Iudgment after a Verdict which will make Error if the Iudgment be given In Debt upon a simple Contract against an Executor if he will not plead in Abatement but other Matter which is found against him he shall not afterwards alledge that he is not chargeable in Arrest of Iudgment So in Debt against Executors upon Arrearages of Accompt where they are not chargeable That which appears ill upon the same Record What may be alledged but not a ma●●er of Fact which doth not appear upon the Record because the parties cannot by the Issue As that a Iuror was challenged and yet served on the Tales for this cannot appear without alledging matter of Fact Nor that the Defendants Attorney had no Warrant But if there be any irregular or foul practice this may be offered to set aside a Iudgment If any thing be omitted in the Declaration Variance between the Verdict and the Declaration or if more be put into the Declaration than is found by the Iury if it make a material Variance betwixt the Nar. and the Verdict the Action shall abate These following are adjudged material Variances If the Declaration be for these words Thou procuredst eight or Ten of thy Neighbours Words to Perjure themselves and the Iury find that he said Thou hast caused eight or 10 c. for he might be a remote Cause scilicet causa sine qua non without Procurement Nar. He is a Bankrupt Verdict He will be a Bankrupt within two days Nar. He is a Thief Ver. He stole a Horse Nar. Thou art a Murderer Ver. He is c. Nar. I know him to be a Thief Ver. I think him to be a Thief So it is a material Variance if a special Promise be laid to be upon Request and the Verdict find it without Request So if the Promise Declaration be upon a Lease made by two or by Baron and feme and the Iury find that one of them had nothing in the Land or that the Baron only made the Lease or that the two were Tenants in Common and so several Leases otherwise if they were Coparteners So in Case that the Testator was indebted to the Plaintiff in 55 l. and the Defendant being Administrator in consideratione c. Promise to pay this upon non Assumpsit if the Verdict find the Promise to be to pay 30 l. part of the 55 l. So in Ejectment If the Nar. be of a Lease Eje ment of thrée Acres a Lease of a Moiety will not maintain the Nar. So in Wast for Cutting Trees and the Wast Verdict find that he eradicated the Trées but did not cut them A Prescription in modo decimandi That Prescription every one who hath seven Lambs or under seven shall pay to the person ob for every Lamb and the Iury find that and further That if he had more than seven Lambs he should pay a Lamb and that the Parson should pay the Parishioner ob This is not the same Prescription but makes a Variance But if there be a Variance between the Variance Verdict and the Nar. either by way of Surplus or Defect but if this matter of Variance be not material in the extenuation of the Action or Damages the Action shall lye notwithstanding the Variance These ensuing are adjudged not to be material Nar. Strong Thief Verdict Thief Nar. I say c. Ver. I affirm or I doubt not Nar. The Plaintiff will do such a thing Ver. I think in my Conscience he will c. Nar. Of a Lease by a Parson for five years if he tam diu should be Parson tam diu viveret And the Verdict find the Lease to be for five years if he tam diu viveret without the words and should continue Parson for the Law implyeth That if he be deprived or resign that the Lease Determines Nar. He is a Murderer Ver. He was a Murderer for when he says He is a Murderer 't is not intended that he did the Act in presenti but before So in Trespasses or Actions upon Torts and wrongs which are several If the Verdict find part 't is no material Variance and the Plaintiff in these Cases shall have Iudgment Roll. tit Tryal 720. A Jury of Middles●x was demanded in Enquest by default the Common-Pleas the first day of the Term and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the