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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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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 pla●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
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