Defendant might put himself upon God and the Country as is the â—â—e at this day or else upon God only and then if he was a Fréeman he was to be tryed per ignem that is he was to passe over Noven vomeres ignitos nudis pedibus and if he was not hurt by this then he was to be acquitted otherwise condemned and this was call d Ju icium Dei But if he was a slave then his Tryall was to be per aquam and that divers wayes which all appear in Lambard verbo Ordalium From which kinde of Tryall I presume we still retain this expression of an innocent person That he need not feare fire or water This manner of Tryall was first prohibited by the Cannons then by Parliament The Tryall by Battail Battail is likewise prohibited by the Cannons but not by Parliament as you may read in the ninth Report fo 32. and in the Authorities there cited which I therefore omit to recite here th ugh I have the Books by me and â—o in this whole Treatise where I refer you to a Book I shall not sâ—t down the Authorities cited in that Book which will avoid prolixity 32. When the matter alleadged extendeth to a place at t e Common Law and a place within a franchise Which Tryall shall be first it shall be tryed at the Common Law 1 Inst 125. 33. All matters done out of the Realm of England concerning War Martiall Affairs Combat or Déeds of Arms shall be tryed and termined bâ—fore the Constable and Marshall of England before whom the Tryall is by Witnesses Witnesses or Combat or by Combate and their procéeding is according to the Civil Law and not by the Oath of 12. men 1 Just 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any forraign Country The Wife or Heir of the Deâ—d may have an Appeal before the Constable and Marshall who sentence upon the testimony of Witâ—esses or Combat ib. So if a man be wounded in France and dye thereof in England ib. It is worthy our observation What Issue shall be first tryed to take notice wâ—en there are several Issues which of them shall be first tryed And for this you have already heard that where Issue is joyned for part and a Demurrer for the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their pleasure though by the opinion of Doderidge Latch 4. It is the best way to give Iudgement upon the Demurrer first because when the Issue comes afterwards to be tryed Damages the Iury may assess damages for the whole Plea to the Writ In an Action against two the one pleads in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personall against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth onely to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personall Action the discharge of one is the discharge of both As for example if one of the Defendants in Trespass pleads a Release Release to himself which in Law extends to both and the other pleads not guilty which extends but to himself or if one pleads a Plea which excuseth himself onely and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof Discharge of one dischargeth both because the discharge of one is the discharge of both But in a Plea reall it is otherwise for every Tenant may lose his part of the Land As if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other Issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea ib. CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs Hâ—ving given you the Epitome of what Tryals are allowed by tâ—e Common Law and what shall be tryed per pais and what not we shall now aâ—ply our selves more particularly to the Tryal by Juries And becâ—use a Venire facias is the foundation and Causa sine qua non of a Iury I meane in Civil Causes for in Criminalls as upon Indictments the Justices of Goal Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriffe without any process directed to him yet process may be made against the Iury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Precipimus tibi quod venire facias Venire facias Coram Justiciariis nostris de Banco apud Westm tali die duodecem liberos legales homines de vicenet de C. Quorum quilibet habeat quatuor libras terre tenement velreddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patrie inter partes predict de placito c. quia â—am Idem D. quam predict F. inter quos inde contentio est posuer se in Jur. illam Et habeas Ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch termes them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve frée and lawful men of his County to resolve the question of the fact in dispute betwéen the parties upon the Issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod Inquiratur per patriam by the Plaintiff and Issue joyned thereupon the Court awardeth the Venire facias vid. Ideo fiat inde Jurat Sheriff And first you sée it is directed
by the Mise of the parties by the same Inquest shall damages Damages be taxed for all And in Mich. 39 H. 6. fo 1. In an Action of Trespass against many who pleaded in Barr the Terme before and one of them made default Writ of Inquiry which was Recorded There it is Resolved by all the Court that for saving of a Discontinuance a Writ of Enquiry of Damages shall be awarded but none shall issue out because he shall be contributory to the damages taxed by the Inquest at the Mise of the parties if it be bound for the Plaintiff and if it be found against the Plaintiff then the Writ of Enquiry shall issue forth And the Reason wherefore no Writ shall issue out at first to inquire of damages untill c. is because that if a Writ should issue out and be executed this is nothing but an Inquest of Office and not at the Mise of the parties and yet this Inquiry if it might be allowed ought to serve for all the damages For inquiry of damages shall not be twice and the others which have pleaded to Inquest if the Issue be found against them shall be chargeable to those damages which are found by the Inquest of Office and if they be excessive they shall have no remedy although there be no default in them for they cannot have an Attaint because it is but an Inquest of Office But in trespass against two Damages by the first Inquest who plead not guilty c. severally and severall Venire fac awarded The Inquest which first passes shall assess damages for all and the second Inquest ought not to assess damages at all but that Defendant shall be contributory to the damages assessed by the first Jury notwithstanding he is not party to it yet if these damages be excessive he shall have an Attaint because though he is a stranger to the Issue yet in Law he is privy in Charge And so no damage or mischief can accrue to him in this Case Verdict when to be supplyed by Writ of Inquiry c. Now let us sée when something is lest out of the Verdict which the Jury ought to have inquired of whether it may be supplyed by matter expost facto and how And for this know that if damages be left out of a Verdict this omission cannot be supplyed by Writ of Inquiry of damages for this would prevent the Defendant of his Remedy by Attaint which would be very mischievous for then such omission might be on purpose to deprive the Plaintiff of his Attaint li. 10. 119. And the Rule is that when the Court ex officio ought to inquire of any thing upon which no Attaint lies There the omission of this may be supplyed by a Writ of Inquiry of damages as in a Quare impedit if the Jury omit to enquire of these 4. things that is to say de plenitudine ex cujus presentatione si tempus semestre transierit and the value of the Church per annum there the Plaintiff may have a Writ to inquire of these points Dyer 241. 260. because of these no Attaint lies as it is holden in 11 H. 4. 80. because that as to these the Inquest is but of Office But in all cases where any â—oint is omitted whereof an Attaint lyeth there this shall not be supplyed by Writ of Inquiâ—y upon which no Attaint lyeth And tâ—erefore in Deâ—inuâ— if the Jury finde Damages and Cost and no value as they ought this shall not be supplyed by Writ of Inquiry of damages for the Reason aforesaid Ib. Et sic in similibus But how then What Verdict set aside because the damages not well assessed shall the Plaintiff loose the benefit of his Verdict because tâ—e Jury assessed no damages or did insufficiently assess them Cerres in such Cases where damages onely are to be recovered he must loose the whole benefit of his Verdict but where any thing else is to be recovered besides damages as in Debt Ejectment c. he may release his Damages and have Iudgement upon his Verdict as to the rest And so where damages are to be recovered if part of them are assessed insufficiently and part well he may have Iudgement for those damages well assessed And oftentimes the iâ—sufficiency of the Declaration shall set aside the Verdict Verdict set aside in part as if an Action upon the Case be brought upon two promises and one of them be insufficiently laid and the Verdict give intire Damages this is naught for the whole But if the Damages had béen severally assessed upon the severall premises then the Verdict as to the promise well laid should have stood In the 11th Report fo 56. Marsh brought a Writ of Annuity against Bentham and the parties discended to issue which was tryed for the Plaintiff and the Arrerages found c. But the Iurors did not assess any damages or Cost which Verdict was insufficient and could not be supplyed by Writ of Inquiry of damages wherefore the Plaintiff released his damages and costs Release of damages where none were assessed and upon this had Iudgement upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict sed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Dyer 22 Eliz. 369. 370. Release of dâ—mages where they were not well assessed In a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lay not for the Heir yet the Plaintiff released his damages and had Iudgement for the Land And Note that insufficient assesment of damages and no assessing is all one Damages and Costs The Iury ought to assess no more damages pro injuria illata then the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and generall signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna intoto se attingunt cum c. More damages than the Plaintiff declares for But if the Iury do assess more damages than the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgement for the residue as in the 1â—th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryall of the Iury assessed damages occasione transgressionis predict ad 49 l. and for costs of suit 20 s. upon which Verdict the Plaintiff at the day in Bank remitted 9 l. parcel of the said 49 l. assessed for damages and prayed Iudgement for 4â— l. to which damage he had counted with increase of Costs of suit Damages remitted and had 9 l. de Incremento added by the Court which in all amounted to â—0 l. and had his Iudgement acâ—ordingly upon which a Writ
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 Iudgment But if the Venire be awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose Venire facias to the Sheriff after one awarded to the Coroners 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 er else to Essiors sic e converso In Error of a Iudgment in Chester the parties being at Issue Venire facias to the Coroners after one to the Sheriff a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vice comes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cousinage betwixt him and the Sheriff which was awarded accordingly and at the day of Tryall the Defendant made default and thereupon Iudgment 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 materiall Cro. 1 part ult pub 853. But the Defendant might have demurred to this Prayer No Venire facias to the Coroners after one to the Sheriff For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the array nor have a Venirâ— afterwards to the Coroners becausâ— the Sheriff is his Cozen or foâ— any other principall Challenge whereof he might by common intendment have Conusance when hâ— so prayed the Venire facias for upon shewing this Cause at first hâ— might have prayed Process to the Coroners But for a principall Challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Shâ—riff c. he may afterwards challenge the array when thâ—y 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 the Coroners If the Defendant dâ—nies the Plaintiffs suggestion he shall have no b nefit of it by Challenge because he is of kindred to the Sheriff if the Defendant will not confess this but denyes 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. Mistryall without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff without such consent of parties This is an insufficient Tryall not remedied by any Statute except it be upon an insufficient suggestion and then the Stat. of 21 Jac. 13. helps it Vpon suggestion that the Plaintiff and the Sheriff Venire facias to some of the Coroners and one of the Coroners are of kindred to the Plaintiff or Defendant or upon any other suggestion which contains a Principall Challenge the Venire facias may be directed to the other Coroners Dier 367. Error of a Iudgment in Northhampton because in Northampton the Court being held before the Maior and two Bayliffs Bayliffs the Venire facias upon the Issue was awarded to the two Bayliffs to return a Jury before the Maior and Bayliffs Secundum Consuetudinem which being returned and Iudgment given the Error assigned was because the Bayliffs being Iudges of the Court could not also be Officers to whom Process should be directed there being no Custome that can maintain any to be both Officer and Iudge But all the Court absente Hide conceived it might be good by Custome And that it is not any Error for the Iudges be not the Bayliffs onely but the Maior and Bayliffs and it is a common course in many of the Antient Corporations where the Bayliffs are Judges Judge and Officer to return Writs or the Maior and they be Judges yet in respect of executing Process they be the Officers also And one may be Iudge and Officer diveâ—sis respectibus as in Redisseisin the Sheriff is Judge and Officer Whereupon Iudgment was affirmed Cro. 1 part 138. In Trespass and Assault laid in the Court Venire facias to the Garden of the Palace of Westminster to be at the Palace of Westm It was adjudged that the Venire facias shall issue al Garden del Palice and not to the Sheriff of Middlesex Bro. tit Ven. fac 31. CAP. VI. What faults in the Venire facias shall vitiate the Tryall what not when a Venire facias de novo shall be awarded when severall Ven. fac When the Venire facias shall be betwixt the party and a stranger to the Issue Who may have a Venire facias by Proviso and when Veâ—ire facias why the Writ so called VVE have now shewed you to what Officer the Venire facias shall be directed The next step in the Writ is Precipimus tibi quod Venire facias Which words Venire facias are the most effectuall words in the Writ and therefore they give the denomination to the whole Writ And here opportunity is offered us to speak something of a Venire facias in generall I am not ignorant how our Books swarm with Cases which arise from the defects in this Process and how that Verdicts have béen set aside Iudgments stayed and reversed for want of sufficient Returns misawarding disagréement with the Rolls discontinuance and many other faults in this Writ But the Statutes of Ieofailes especially the Statute 21 Jacob. cap. 13. have pardoned as I may so say these enormities As Statute of Jeof iles 21 Jac. 13. the awarding this Writ hab Corpora or distringas to a wrong Officer upon any insufficient suggestion or by reason the Visne is in some part misawarded or sued out of more places or of fewer places than it ought to be so as some place be right named The misnaming of any of the Jury either in Sur-name or addition of any of the said Writs or in any Return thereupon so that upon examination it be proved to be the same man
that was meant to be returned or if no Return be upon any of the said Writs so as a Pannel of the names of the Jurors be returned or annexed to the said Writ or if the Sheriff or Officers name having the Return thereof is not set to the Return of any such Writ so as upon Examination it be proved that the said Writ was returned by the Sheriff or Under-Sheriff or such other Officer In all these Cases the Iudgment shall not be stayed nor reversed for these defects But this Act doth not extend to any Writ Declaration or Suit of Appeal of Felony or Murther nor to any Indictment or Presentment of Felony or Murther or Treason nor to any Process upon any of them nor to any Writ Bill Action Popular Actions c. or Information upon any popular or penall Statute Wherefore since Informations and popular Actions are grown so frequent the Attorneys c. herein had best beware of these Jeofailes By this Statute many defects are remedied which were not by the Statutes of 32 H. 8. Cap. 30. and 18 Eliz. Cap. 14. yet all are not for this Act onely helps the mis-naming of a Juror in Sur-name or addition Christian name mistaken in the Venire facias incurable and saith nothing of his Christian name wherefore I conceive the Law in Codwells Case in the fifth Report remains as it was then which is that if a Juror be mis-named in his Christian name on the Venire though he be named right in the Distringas and Postea yet this is ill and not amendable and with this agrées Goddards Case Cro. 2. part 458. And since the Court Cro. 1 part fo 203. doubted thereof Christian name right in the Venire facias and wrong in the Distringas I may well put the Question if a Juror be right named upon the Venire and mis-named in his Christian Name in the Distringas c. whether this is amendable or not without dispute it is not by the Statute 21 Jacob for that onely helps the Sur-name But with Reverence to the Courts doubt I conceive clearly it is hâ—lpen by the Statutes of 32 H. 8. and 18 Eliz. as a discontinuance of Process and I may with the more confidence believe it because in Codwells Case aforesaid where in the Pannell of the Venire a Juror was named Palus Cheale and in the Distringas c. he was right named Paulus Cheale and so because he was mis-named in his Christian Name in the Venire Iudgment was arrested But it is there adjudged that if he had béen well named on the Venire and mis-named upon the Distringas or Postea then upon Examination it should be amended But the Countess of Rutlands Case lib. 5. 42. is expresse in the point and so is Cro. 3. part 860. And it is to be known that in most Cases where the Venire facias Hab Corpora or Distringas be defective they are to be amended but if the Malady be so fatall in the Venire that it causes a Mistriall as in the mistake of a Jurors Christian Name or where a Juror not returned is sworn c. then the Verdict is to be set aside and a Venire facias de novo Venire facias de novo to be awarded and so was it to be upon those mistakes now amendable by the Statutes before the making thereof And where a Jury giveth a Verdict which is accepted and recorded by the Court One Jury shall not try a cause twice be the Verdict perfect or imperfect the Jurors are discharged and shall never try the same Issue again upon a new Nisi prius But if the Verdict be so imperfect that Iudgment cannot be given upon it then the Court shall award a Venire facias de novo to try the Issue by other Jurors li. 8. 65. Bulstr 2 part 32. In Yelvertons Reports fo 64. Album breve the County left out in a Veniâ—e facias the Case is That a Venire facias was made Vice-Comiti leaving out Salop for which there was a blanck leâ—t in the Writ But re vera it was returned by the Sheriff of Salop. In Arrest of Iudgment it was alleadged that the Venire facias was vitious for this cause But Gawdy said it should be amended And by Fenner and Williams It is as no Writ because it is not directed to any Officer And then it is ayded by the Stat. of Jeofailes For it might rather be called a blanck then a Writ because it was directed to no Officer Severall Venire facias In Cases where there are severall Defendants who plead several Pleas the Plaintiff may chuse either to have one Venire facias for all or severall 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 joint Venire facias you cannot have severall 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. li. 8. 66. li. 11. 5. 6. Stamf. 155. bro. tit Venire facias 2. 35. But now it is the usuall course to have but one Venire facias One Venire facias in severall Issues upon severall Issues though against severall Defendants Cro. 3. part 866. hob 36. 64. And so usuall that the Court declared Cro. 2. part 550. That there never shall be severall Venire facias to try severall Issues in one County For what néed the Plaintiff trouble himself and the Country with severall when one Iury will serve his turn Et frustra fit per plura quod fieri potest per pauciora But other wise if it be in two Counties Cro. 3. part 866. After Issue joyned by two Defendants if one of them die Venire facias between the Plaintiff and 2. Defendants where one is dead and then a Venire facias is awarded betwixt the Plaintiff 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 néeds be no surmise in Iudiciall Writs No surmise in Judicial Writs of death in one of the parties that one of the Defendants is dead It is time enough to shew it to the Court at the day in banck 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. Venire facias dated before the Action brought If the Venire facias beares date before the
Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court cannot refuse a Special Verdict The Court cannot refuse it if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned A special Verd ct may be found upon any Issue as upon an eisque hoc c. whether the Iury could finde a Special Verdict upon a special point in Issue or no as they might upon the generall Issue But this question hath béen fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Verdict and finde the matter at large en chescun issue en le monde so that the matteâ— found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions reall personall and mixt and upon all Issues joyned generall or speciall the Iury might finde the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not onely in Cases betwéen party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmitive of the Common Law And as this special Verdict is the safest for the Iury A Free-hold upon Condition without Deed may be sound by Verdict though it cannot be pleaded 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366. 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concernes a Fréehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12. men taken at large in an Assize of Novel disseisin or in any other Action where the Iustice will take the Verdict of 12. Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for terme of life without Déed upon Condition to tender to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessée is seised as of Fréehold and after the Rent is behinde by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Disseisin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for terme of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behinde at any such Feast at which it ought to be paid then it should be lawfull for the Lessor to enter c. By force of which Lease the Plaintiff was seized in his Demesne as of Frée-hold and that afterwards the Rent was behinde at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgement that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same mannor it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue Also in such case Generall Verdict where the Enquest may give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise finde Estoppel Estoppels which cannot be pleaded as in the 2d Report fol. 4. it well appeares where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Déed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23 Eliz. and found the Tenor of the Déed in haec verba Noverint univeâ—si c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Déed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Déed And the Reason of the Iudgement was That although the Obligée in pleading cannot alledge the delivery before the date Note that a Deed may be pleaded to be delivered after the date but not before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. â— as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Déed yet the Jurors who are sworn ad veritatem dicend shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admâ—â—teth the Wast c.
of Error was brought and the Iudgeâ—ent affirmed For as in reall actioâ—s the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the case of Costs he shall recover for the expences depenâ—ing the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past Damages in reall and personall actions and not to expences of suit For in personall actions he counts to damages because he shall recover damages onely for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in reall actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages and costs intirely together Damages and Costs intirely assessed without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs then the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover onely so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 1â— H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20. marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22. marks and the Verdict was held to be good for 20. marks and void for the residue because it doth not appear how much was intended for damages and how much for costs so that there may be more damages then the Plaintiff declared for or lesse and so the Court knowes not 〈◊〉 to increase the cost whereâ—â—e he shall have Iudgement but â—20 marks by reason of the inâ—â—â—tainty Where a special Verdict is not â—â—tred according to the Notes Verdict amended by the notes the â—â—cord may be amended and made â—grée with the notes at any time â—â—ugh it be 3 or 4 c. Termes afâ—â—r it is entred lib. 4. 52. lib. 8. 162. â—â—o 1 part 145. If the matter Form Hob. 54. and substance of â—â—e Issue be found it is sufficient â—â—r precise forms are not required â—â—y Law in special Verdicts which â—â—e the finding of Lay-men as in Pleadings which are made by men â—urned in the Law and therefore â—tendment in many cases shall â—â—lp a special Verdict as much as 〈◊〉 Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury finde generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they finde that he was made Deputy by Déed because it doth tantamount lib. 9.51 And in the 5th Report Goodales Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. III conclusion In all Cases where the Iury finde the matter committed to their charge at large and over more conclude against Law the Verdict is good More 105. 269. and the conclusion ill li. 4. 42. and the Iudges of the Law will give Iudgement upon the speciall matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Where the Dâ—claration in Trespas is Cum aliquibus averiis As generall as the Narr of a number uncertain and the Verdict is as generall as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione â—irme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per non ina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton that this Verdict was imperfect in all Quoad Residuum incertain For when the Iury finde that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they finde quoad residuum the special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2. part 113. Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10. acres and Quoad Residuum Quod Residâ—um not guilty and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances Circumstances upon an Evidence given to incite them to finde fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury maâ— finde Circumstances and presumâ—tions upon which the Court ought to judge As to finde that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that the Husband assented to the devise at first More 192. Where a Verdict is certainly â—iven at the Tryall Postea amended how and uncertainly returned by the Clerk of the Asâ—izes c. The Postea may be amended upon the Iudges certifyâ—ng the truth how the Verdict was given Cro. 1. part 338. In many Cases a Verdict may â—ake an ill Plea or Issue good Ill Plea made good by Verdict As 〈◊〉 an action for words Thou wast â—erjured and hast much to answer for 〈◊〉 before God Exception after Verdict for the Plaintiff in arrest â—f Iudgement For that it is not â—nd in the Declaration that he â—pake the words in auditu compluriâ—orum or of any one according to â—he usuall form sed non allocatur for â—â—ing found by the Verdict that he â—pake them it is not materiall alâ—hough he doth not say in auditu â—urimorum whereupon it was adâ—udged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place â—f payment was alledged yet the â—ayment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the
battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in trespass de clauso fracto of the Barons Baron Feme which ought not to be But for the Battery of the feme they may joyn whereto all the Court agreed But it was moved that in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespas by Baron and Feme for the battery of both The Defendant pleaded Not guilty and found guilty and damages assessed for the Battery of the Baron by its self and for the Battery of the Feme by its self and Iudgment was given for the damages for the battery of the feme the Writ abated for the residue And of that opinion was Lea Chief Justice Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife Rochel and his Wife against Steel brought an action of trespass and assault in the Exchequer Hill 16. 59. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but â—â—und nothing concerning the Husband Wherefore Iudgment was stayd but the Barons held that if the Iury had found the Defendants not guilty as to the Husband then the Verdict had helped the Declaration and the Plaintiff should have had Iudgment for the damages for the battery of the Wife Of what a Verdict may be The Iury may finde any thing that may be given in Evidence to them as Records either Patent Statute or Iudgment Things done in another County Plo. Com. 411. or Country for which sée Evidence before Hob. 227. And of these things they ought to have Conusance they are to have Conusance also of all Incidents Incidents and dependants thereupon for an Incident is a thing necessarily depending upon another Co. Littleton 227. b. The Verdict may be against the Letter of the Issue so the substance is found If the matter and substance of the Issue be found it is sufficient though it be against the Letter of the Issue As in the first Institutes fo 114. b. A modus decimandi was alledged by prescription time out of minde for Tythes of Lambs And thereupon Issue ioyned And the Iury found that before twenty years then last past there was such a prescription Prescription and that for these twenty years he had payd Tythe Lamb in specie And it was objected first that the Issue was found against the Plaintiff for that the prescription was generall for all the time of the prescription and 20. years fail thereof 2. That the party by payment of Tythes in specie had waved the prescription or custome But it was adjudged for the Plaintiff for albeit the modus decimandi had not béen payd by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assise of Darrein Presentment if the Plaintiff alledge the avoydance of the Church by privation Avoydance and the Jury finde the voydance by death the Plaintiff shall have judgement for the manner of voydance is not the title of the Plaintiff but the voydance is the matter 1 Instit 282. If a Gardein of an Hospitall bring an Assise against the Ordinary Deprivation he pleadeth that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron the Ordinary shall have judgement for the deprivation is the substance of the matter Ib. The Lessée Covenants with the Lessor not to cut down any Trées c. and binds himself in a Bond of 40. pounds for the performance of Covenants The Lessée cut down 10. Breach of 20. Trees cut down for 10. Trées the Lessor bringeth an action of debt upon the Bond and assigneth a breach that the Lessée cut down 20. Trées whereupon Issue is joyned and the Jury finde that the Lessée cut down ten Judgment shall be given for the Plaintiff for sufficient matter of the Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminall Causes For if A. be appealed or indicted of Murder viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo forma Indictment of Murder and Verdict findes Manslaughter yet the Jury may finde the Defendant guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and malice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma Modo forma are not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not finde the precise Issue As if a man bring a Writ of Entry in casu proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the alienation made in Fée and the Tenant saith that he did not alien in Manner as the Demandant hath declared Alienation and upon this they are at Issue and it is found by Verdict that the Tenant aliened in tail or for terme of another mans life The Demandant shall recover yet the alienation was not in manner as the Demandant hath declared Littleton Sect. 483. Also if there be Lord Tenant the Tenant hold of the Lord by fealty onely the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespas against his Lord Trespass by the Tenant against the Lord. for his Cattel so taken and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behinde he came to distrain c. And demand Iudgement of the Writ brought against him Quare vi armis c. And the other saith that he doth not hold of him in manner as he supposed and upon this they are at Issue And it is found by Verdict that he holdeth of him by fealty onely in this case the Writ shall abate and yet he â—oth not hold of him in manner as the Lord hath said For the matter of the Issue is whether the Tenant holdeth of him or no for if he holdeth of him although that the Lord distrain the Tenant for other services which he ought not to have yet such
and because it was delivered on his part for whom the Verdict passed without the Courts assent yet one Book scil Cro. last part 411. tells us Iudgement was afterwards given for the Plaintiff sée Mores Reports 452. The Books differ Consider the Reasons in the former cases for Cro. makes Clinch give his opinion for the Verdict But More brings him on the other side which I conceive is truest and for my part I know no reason why foisting of Evidence to the Iury out of Court should have any favour at all Hill 40 Eliz. Rot. 847. In arrest of Iudgment after Verdict Escrowle from one who was no party it was alledged that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Eviâ—ence at the Tryall and adjudgeâ— no cause to arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. In a Writ of Error the first Error assigneâ— was that Termino Trin. twelve Iurors and no more did appear Jury adjourned This ex assensu partium was adjourned untill Crastino Animar on which day two others came in and were sworn being of the first Pannel The Court all clear of opinion that this is no error this being good enough they being all to be called again Leon. 3. part 38. If a Iuror depart Juror depart after he is sworn he shall be fined and imprisoned and by assent of parties another Iuror may be sworn Bro. Jurors 46. lib. 5. 40. If a man be non-suited after the Jury is ready to give their Verdict the Court may cause the Amercement of the Plaintiff to be presently offered by the Iurors li. 8. 39. CAP. XV. What punishment the Law hath provided for Jurors offending as taking reward to give their Verdict Of Embracâ—ors Dâ—cies tantum Attaint several fines on Jurors What Issues they forfeit and of Judgement for striking a Juror in Westminster YOu have already heard how the Court may fine the Iurors for their misdemeanors in giving up their Verdict I will procéed in shewing what punishments they are lyable unto if they neglect their duty and doubtless no men have more néed of knowing what penalties the Law inflicts on their offences then common Iurors who too often being preingaged with favour to the Plaintiff or malice against the Detendant Et sic e converso or with common Interest as they call it where Tythes or Commons are in question will neither hearken to their Evidence nor â—â—rection of the Iudge But subvert the whole drift of the Common Law which will have them of the Neighbour-hood where the fact was committed to the end that they knowing most of the fact may consequently give the best Verdict yet contrarywise Iurors which live nearest do now a dayes most commonly so fetter themselves with favour or animosities to the parties that those which live furtheâ— off as Iuries from other Counties for the most part gide the cleanest Verdicts And how should the Iudges remedy this mischief but by severely punishing those Iuries which offend the Law in this will be their Guide for without doubt excepting life and member tâ—e Law hath provided more severe punishments against Iuries then against any other offendor whatsoever as well knowing that corruptio optimi est pessima And common Iurors generally have nothing to do with this verse Oderunt peccare boni virtutis amore Therefore 't is fit they should be concerned in the next Oderunt peccare mali formidine poenae wherefore the description of what this poena is shall be the conclusion of this Treatise If any Iuror take a reward to give his Verdict The penalty of Jurors taking rewards and be thereof attainted at the suit of other than the party and maketh fine he which sueth shall have half the fine and if any of the parties to the Plea bring his Action against such Juror he shall recover his damages And the Juror so attainted shall have imprisonment for one year which imprisonment shall not be pardoned for any fine this is by the Statute of 34 E. 3. cap. 8. 5 E. 3. ca. 10. It is accorded Shall not serve of any other Inquest That if any Juror in Assises Juries or Enquests take of the one party or of the other and be thereof duly attainted That hereafter he shall not be put in any Assises Iuries or Enquests and nevertheless he shall be commanded to prison Imprisoned and ransomed that is fined and further ransomed at the Kings will And the Iustices before whom such Assises Iuries and Enquests shall passe shall have power to enquire and determine according to this Statute A man would think that these Statutes should have frighted any Iuror from taking Rewards to give his Verdict But Quid non mortalia pectora cogis Auri sacra fames So sacred is this love of money that Conscience her self must vail to it and not stand in competition with such allurements wherefore the Law did redouble its force nay more produced a Decies tantum scil That a Iuror taking reward to give his Verdict shall pay ten times so much as he hath taken which forfeiture my thinks should make even those who love money best refuse to take mony upon such an account because it is like a Canker in their Estates depriving them in the end of ten times more then it brought for which hear the Statute 38 E. 3. cap. 12. Deâ—ies tantum Item As to the Article of Iurors in the 24th year it is assented and joyned to the same that if any Iurors in Assises sworn and other Enquests to be taken betwéen the King and party or party and party do any thing take by them or other of the party Plaintiff or Defendant to give their Verdict and thereof be attainted by process contained in the same Article be it at the suit of the party that will sue for himself or for the King Embraceor or any other person every of the said Iurors shall pay ten times as much as he hath taken And he that will sue shall have the one half and the King the other half And that all Embraceors that bring or procure such Enquests in the Country to take gain or profit shall be punished in the same manner and form as the Iurors And if the Iuror or Embraceor so attainted have not whereof to make grée in the manner aforesaid he shall have the imprisonment of one year And the intent of the King of Great men and of the Commons is That no Iustice or other Minister shall enquire of office upon any of the points of this Article but onely at the Suit of the party or of other as afore is said Vpon which Statute there is a Writ called a Decies tantum and who will may bring it for it is a popular Action and lies as you sée where any of the Iurors after he is sworn taketh of one party or of the
other or of both and then he is called an Ambidexter Ambidexter any reward to give his Verdict c. And it may be brought against all the Iurors and Embraceors So F. N. Br. saith But for my part I think he is mistaken for the Statute mentioneth nothing of his taking money and in my opinion the case of 37 H. 6. 13. is full against hiâ— although they take severall sums of money and although the Jury give no Verdict or a true Verdict But it doth not lie against an Embraceor if he taketh no money and imbraces or taketh money and doth not embrace Sée Bro. Tit. Decies tantum 13. and F.N. Br. 171. An Imbraceor Imbraceor is he that procures the Jurors in the Country to take gain or profit or comes to the Barr with the party and speaks in the matter or stands there to survey the Jury c. or to â—ut them in fear or solicits them to find on the one side or other and this Fellow cloaks his Embracery under pretence of labouring the Jurors to appear and to do their Conscience And thus the â—tturneys in the Country often take upon them to do Attorneys ill practice and many times put in a word or two for their Clyents which practice deserves the most severe punishment next to their getting the Sheriff to return such and such in the Jury which they having béen Vnder-Sheriffs themselves and so agrée with one another are most expert at But Counsellors Counsellors at Law may plead for their money at the Barr But they must not labour the Jury privately and if they take money for tâ—is they are Imbraceors F. N. 6. 171. So much doth the Law hate Fined for taking money after their Verdict that Jurors should privately take money for their Verdict That certain Jurors were fined for taking money after their Verdict though there was no preingagement for it 39 Assise p. 19. A Juror was challenged and six other Iurors were â—â—orn to try the Challenge who found him indifferent Jury fined for departing when he was challenged and thereupon the Iury was demanded but did not appear for which default he was fined the value of his Lands for a year and the other Iurors inquired of the value c. although the other party then would have challenged him when he was demanded so that he might have béen treit But the Court would not admit this because then the King would have lost his Fine 36 H. 6. 27. Juror adjourned upon pain If a Iuror appear and is adjoyned upon pain and makes default in this Case because he shall be fined to the value of his Land per annum this shall be inquired by his Companions of the Iury because the Court knowes not the value of his Land li. 8. 41. A Verdict was taken from the Fore-man of the Jury Fined for giving a Verdiâ—â— before they were agreed to which one of them did not assent and damages assessed to 20 s. in trespass and assault and afterwards every one of the 11. were fined for giving their Verdict before they were all agréed 40 Assise 10. Where a Iury are to be fined a Fine joyntly imposed on them The Fine must not be joynt is not legall but they must be severally fined because the offence of one is not the offence of another Et nemo debet puniri pro alieni delicto For then it might be said Rutilius fecit Aeimilius plectitur lib. 11. 42. A man stroke a Juror at Westm sitting in the Court who passed against him Punishment for striking a Juror and he was thereof indicted and arraigned at the Kings Suit and attainted his judgment was that he should go to the Tower and stay there in prison all dayes of his life and that his right hand should be cut off and his Lands seized into the Kings hands 41 Assise p. 25. and now our Juror sées what punishment it is to strike him in the face of the Court. Let him hold his hands from others least the same Iudgment light on him By the Statute of 27 Eliz. cap. 6. It is Enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius 10 s. shall be returned in Issues upon every person impannelled and upon the second Writ 20 s. and upon the 3 d Iâ—â—â— 30 s. And upon every Writ that shall be further awarded to try any Issue to double the Issues last afore specified untill a full Jury be sworn Not summoned But if the Under Sheriff c. return a Juror summoned who in truth was not legally summoned therefore doth not appear and so looseth Issues the Vnder-Sheriff shall pay him double the value of the Issues lost Sée the Statutes of 35 H. 8. 6. and the 2 E. 6. 32. And note the Law hath béen so careful to punish all offenders who would endeavour to byass and corrupt the Iury and to punish the Juries themselves if they receive money to give their Verdict or any otherwise pre-ingage themselves to any of the parties All which is to the end that a true and honest Verdict may be given What punishment shall that Jury have which gives a false Verdict Such a punishment that as I said before in civill Causes it is without example and surely if the Iurors did bear it in their minds their Verdicts would be alwayes grounded upon their Evidence and not upon their own Interests or any partiality to either of the parties Wherefore if the Iurors give a false Verdict which is perjury of the highest degrée upon an Issue joyned betwéen the parties in any Court of Record and judgement thereupon The party grieved may bring his Writ of Attaint Attaint in the Kings-Bench or Common-Pleas upon which 24. of the best men in the County are to betâ—e Iurors who are to hear the same Evidence which was given to the Petite Iury and as much as can be brought in affirmance of the Verdict but no other against it And if these 24. who are called the Grand Iury finde it a false Verdict then followeth this terrible and heavy judgement at Common Law upon the Petite Iury. Judgement in Attaint 1. That they shall loose liberam legem for ever that is they shall be so infamous as they shall never be received to be a Witness or of any Iury. 2. That they shall forfeit all their Goods and Chattels 3. That their Lands and Tenements shall be taken into the Kings hands 4. That their Wives and Children shall be thrown out of doors 5. That their Houses shall be rased and thrown down 6. That their Trées shall be â—â—ted up 7. That their Meadow-grounds â—hall be plowed up 8. That their bodies shall be â—ast into the Goal and the party â—hall be restored to all that he lost by reason of the unjust Verdict So odious is perjury in this Case in the eye of the Common-Law And the severity of this punishment is to this end Ut poena ad paucos metus ad omnes perveniat for there is Misericordia puniens and there is Crudelitas parcens And séeing all Tryals of reall personal and mixt actions depend upon the Oath of 12. men prudent Antiquity inflicted this severe punishment upon them if they were attainted of perjury 1 Inst 294. But now by the Stat. of 23 H. 8. cap. 3. The severity of this punishment is moderated if the Writ of Attaint be grounded upon that Statute But the party grieved may 〈◊〉 his Election either bring his Wiâ— of Attaint at the Common-Law 〈◊〉 upon that Statute Wherefoâ— let the Iuror expect the greatest puâ—ishment when he offends 3 Inst 16 222. And so I conclude with the wordâ— of Fortescue Quis tunc etsi immâ— mor salutis animae suae fuerit non foâ— midine tantae poenae verecundiâ— tantae infamiae veritatem non dicere sic Juratus Who then though he regard not his Souls health yet for fear of so great punishment and for shame of so great infamy would not upon his Oath declare the truth FINIS
Vice Comiti i. e. to one who is Vice Comitis and hath the Regiment of the County instead of the Earl of that County to whom once it did belong As we are taught in the Mirror Chap. 1. Sect. â— Scil. That it appeareth by the Ordinance of ancient Kings before the Conquest That the Earls of the Counties had the Custody or Guard of the Counties and when the Earls left their Custody or Guards then was the Custody of Counties committed to Viscounts who therefore are called Vice Comites What great Repose and Trust both the King and Laws put in this great Officer The Oracle tells you What Trust in the Sheriff 1 Inst 168. That he is Shireve that is pâ—aefectus Comitatus Governour of the County For the words of his Patent be Commissimus vobis Custodiam Comitatus nostride c. And he hath a thréefold Custody triplicem Custodiam viz. first Vitae Justiciae for no Suit begins and no Proces is served but by the Sheriff And he is to return indifferent Juries for the tryall of mens lives Liberties Lands Goods c. Secondly Vitae Legis he is after long Suits and chargeable to make Execution which is the life and soul of the Law Thirdly Vitae Reipublicae he is Principalis Conservator pacis within the County which is the life of the Common-wealth for Vita Reipublicae Pax. To whom the Venire facias ought to be directed Yet notwithstanding the heighth and Latitude of this great Officers power and trust The Law adjudges him in many Cases not capable to do so much as return a Jury For if he be of kindred by nature or of affinity by Marriage to any of the parties or that I may say all in a little if he be not as indifferent almost in all respects he is whom the Law allows to be a Juror he ought not to meddle with the retorning of the Jury But the Venire facias shall be directed to the Coroners Coroners or to some of them if the residue are not indifferent who in that Case are vice Vice Com. And if the Coroners are not indifferent Forrescue cap. 2. 5. then the Venire shall be directed Ad 2 Electores that is to two whom the Court shall chuse and déeme fit to retorn the Jury And to the retorn of these Elisors or Esliors Esliors ab Eligendo no Challenge Challenge will be admitted Bro. tit Venire facias 14. as to the Array But to the Polles 1 Inst 158. If one of the Sheriffs of London Sheriff of London be a party then the Venire may be directed to the other Sheriff If the Vnder Sheriff be a party yet the Venire may be directed to the Sheriff with this Proviso Quod sub Vic. tuus in in nullo se intromittat cum executione istius brevis 18 E. 4. 3. Iudicial Writs say Cook and Sanders Plo. 74. may be directed to the Coroners As the Venire facias where the parties are at Issue there upon the surmise of the Plaintiff that the Sheriff is his Cozen and upon prayer that the Venire be directed to the Coroners Coroners for avoydance of his own delay that might happen by the Challenge of the Array The Defendant shall be examined whether it be true or not and if he confess it then the Venire shall be awarded to the Coroners for then it appeares to the Court by the Defendants confession that the Sheriff is not indifferent Examination But if the Defendant denies it then the process shall be awarded to the Sheriff because the Sheriff's Authority and profit shall not be taken away without cause apparant to the Court But if the Defendants will alledge any such matter and pray a Venire facias to the Coroners there the Plaintiff shall not be examined neither shall such allegations be allowed because delayes are for the Defendants advantage The Defendant may not have a Venire facias to the Coroners and the Defendant may challenge the Iury for this cause and so is at no prejudice And sée in term H. 3. H. 7. fo 5. placit ult In a quare Impedit where the Defendant shewed how the Sheriff was Cozen to the Plaintiff and prayed a Writ to the Coroners but it was denyed him upon the same Reason Fitz. tit suggestion placit 8. br Challenge 153. Venire facias once directed to the Coroners shall not be to the Sheriff afterwards When the Process is once awarded to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. bro. tit Venire facias 17. So the Entry is Ita quod Vice comes se non intromittat 18 E. 4. 3. And therefore where the Sheriff ought not to retorn the Venire Sheriff shall not return the Tales where he cannot the Venire faciar he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner And afterwards a Tales was awarded and it was returned by the Sheriff and it was tryed and a Verdict given and Iudgment And for this câ—use held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 1 part ult pub 574. bro. tit octo tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After Issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and after Verdiâ— Where the Coroner returns the Vâ—nire facias he ought to return the Tales it was moved in Arrest of Iudgement that the Tales de Circumstâ—ntibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgment For it is a mis-ryall not aided by any of the Statutes for process being once awarde to the Coroners the Sheriff afterwards is not the Officer to return the Iury no more than any other man And process ought alwayes to be returneâ— by him who is an Officer by Law to return it otherwise it is méerly void But afterwards upon view of the Record it apâ—eared that the Tales was returned by the Coroners No name to the Return and their names annexed thereto wherefore it was without further question But the Court said if their names had not béen annexed to the Tales yet it had béen well enough for they be annexed to the first Pannel And it shall be intended that the right Officer returned it and the usuall course is That to such Tales there is not any Officers names
the Statutes of W. 2. and Artic. supra cartas what persons the Sheriff ought to return on Iuries Who ought to be on Juries And sée F.N.B. breve de non ponendis in Assesis juratis and the Register in the same Writ And sée there what remedy the party hath that is returned against Law It is necessary to be known the time when the challenge is to be taken At what time Challenges must be taken First he that hath divers challenges must take tâ—em all at once and the Law so requireth indifferent trials and divers challenges are not accounted double Secondly if one be challenged by one party if after he be tried indifferent it is time enough for the other party to challenge him Thirdly after chalâ—â—nge to the Array and tryal duly returned if the same party take a challenge to the Polls he must â—â—w cause presently Fourthly so if a Iuror be formerly sworn if he be challenged he must shew cause presently and that cause must rise â—â—â—ce he was sworn Fifthly when the King is party or in an appeal of Felony the Defendant that challengeth for cause must shew his cause presently Sixthly If a man in case of Treason or Felony challenge for cause and he be tryed indifferent yet he may challenge him peremptorily Seventhly a challenge for the Hundred must be taken before so many be sworn as will serve for Hundredors Hundredors or else he lâ—seth the advantage thereof In a Writ of Right Writ of Right the grand Iury must be challenged before the four Knights before they be returned in Court for after they be returned in Court there cannot any challenge be taken unto them Nota. The Array of the Tales shall not be challenged by any one party The Array of the Tales until the Array of the principall be tryed but if the Plaintiff challenge the Array of the principall the Defendant may challenge the Array of the Tales After one hath taken a challenge to the Poll he cannot challenge the Array Now it is to be séen how challenge to the Array of the principall Pannel or of the Tales or of the Polls shall be tryed and who shall be tryors of the same and to whom process shall be awarded If the Plaintiff alledge a cause of challenge against the Sheriff the process shall be directed to the Coroners Coroners if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors Elisors or Esliors so named ab eligendo because they are named by tâ—e Court against whose return no challenge shall be taken to the Array because they were appointed by the Court but he may have his challenge to the Polls Note if process be once awarded for the partiality of the Sheriff though there be a new Sheriff yet process shall never be awarded to him for the entry is Ita quod vicecomes se non intromittar But otherwise it is for that he was Tenant to either party or the like If the Array Array be challenged in Court it shall be tryed by two of them that be impannelled to be appointed by the Court for the tryors in that case shall not excéed the number of two Two Tryors unless it be by consent But when the Court names two for some special cause alledged by either party the Court may name others if the Array be quashed then process shall be awarded ut supra If there be a demur to a challenge Demur to a Challenge how determinable the Iudge before whom the cause is to be tryed may determine it or adjourn it to be heard another time Stiles 464. Vide Bulstr 1. part 114. Array of the Principall and Tales If a Pannel upon a Venire facias be returned and a Tales and the Array of the principall is challenged the tryors which try and quash the Array shall not try the Array of the Tales for now it is as if there had béen no appearance of the principall Pannel but if the tryors affirm the Array of the principal then they shall try the Array of the Tales If the Plaintiff challenge the Array of the principall and the Defendant the Array of the Tales there the one of the principall and the other of the Tales shall try both Arrayes For other matter concerning the Tales sée in Cokes Reports matters worthy of observation When any challenge is made to the Polls two tryors shall be appointed by the Court and if they try one indifferent Two Tryors and he be sworn then be and the two tryors shall try another anâ— if another be tryed inâ—iffâ—â—ent and â—e be sworn tâ—en the two tryors cease and the two that be sworn on the Iury shall try the rest If the Plaintiff challenge ten Tryall of Challenges and the Defendant one and the twelfth is sworn because one cannot try alone there shall be added to him one câ—allenged by the Plaintiff and the other by the Defendant When the tryall is â—o be had by two Counties the manner of the tryall is worthy of observation and apparent in our Books If the four Knights in the Writ of Right be challenged they shall try themselves and they shall choose the grand Assize and try the challenges of the parties If the cause of challenges touch the dishonor or discredit of the Iuror Juror examined he shall not be examined upon his Oath but in other cases he shall be examined upon his Oath to inform the tryors If an Inquest be awarded by default the Defendant hath lost his challenge but the Plaintiff may challenge for just cause and that shall be examined and tryed Wheresoever the Plaintiff is to recover per visum juratorum View there ought to be sir of the Jury tâ—aâ— have had the view or known the Land in question so as he be able to put the Plaintiff in possession if he recover Challenges In Proprietate probanda and a Writ to inquire for waste the parties have béen received to take their challenges But passing over many things touching this matter I will conclude with the saying of Bracton Plures autem aliae sunt causae recusandi juratores de quibus ad praesens non recolo sed quae jam enumeratae sunt sufficiant exempli causa CAP. X. Of what things a Jury may inquire when of espirituall when of things done in another County or in another Kingdom when of Estoppels and when not when of a mans intent THe next words in the Writ which have not yet béen taken notice of are these perquos rei veritas melius sciri poterit And this is the chief end of their méeting together Ex facta jaâ— oritur No Court can give a right Iudgment unless the truth of the fact be certainly known and to finde out this truth no way is like to this of Iuries fâ—r they do not onely
go upon their own knowledge though they are Neighbours to the place where the question is moved and so are presumed to have a better knowledge of the fact then any others For vicinus facta vicini presumitur scire But least this presumption should fail the Law allowes other Evidence to be given to them by which they may more certainly and confidently give their Verdict of the Issue which is meant by this word Rei And here it will not be amiss to give you a brief description de quibus rebus what the Enquest may inquire of and finde Of the Law Wherefore though it be true that a Iury shall not be charged nor meddle with a matter of Law and if they do and finde it their Verdict as to this shall be void yet daily experience as well as Littleton Sect. 368 tells us that they may take upon them the knowledge of the Law and give a generall Verdict though to finde the speciall matter is the safest way for them because if they mistake the Law they run into the danger of an Attaint In many cases the Jury are to inquire of the knowledge and intent of a man Of a mans intent as where the Nar. is that the Defendant kept a Dog which killed the Plaintiffâ— Shéep Sciens canem suum ad mordendas oves consuetum there though Sciens be not traversable yet the Jury upon Evidence must inquire of it lib. 4. 18. In some Cases Of spiritual things a Jury may try and finde a spiritual thing as a Divorce Matrimony c. and must take notice thereof upon pain of Attaint lib. 4. 29. lib. 9. lib. 7 43. In Trespass Quare Clausum fregit in the County of D. upon not guilty If the Jury finde the Defendant guilty in the County of S. their Verdict is void But if they finde him guilty generally an Attaint lyeth Finch 400. The Jurors of one County may finde any transitory things done in another County Nay sometimes they must finde locall things in another County as if the Heir pleads â—iens per discent and the Plaintiff replies Assets in a Parish and Ward within London the Juâ—y may finde Assets in any County In the same câ—se against an Executor who pleads pleâ—e administravit the Jury may likewise finde Assets in any part of the World Of things done in another County or Country And the Reason is because the place is onely named for necessity of tryall But where the place is part of the Issue it is otherwise And therefore if I promise in one place to do a thing in another and Issue is upon the bâ—each the Jury ought to come from the place of the breach But if I promise in London to do a thing at Budeaux in France and Issue upon the breach yet this shall be tryed in London for necessity because otherwise it would want tryall and the Jury must inquire of the breach at Burdeaux But if I promise in France to do a thing in France so that both Contract and performance is beyond Sea this wants tryall in our Law lib. 6.47 li. 7. 23. 26. 27. The Jury may finde Estoppels Estoppels as the taking of a Lease of a man 's own Land by Déed indented or the deliâ—ery of a Déed before the date as in Debt by an Administrator upon a Land dated 4 Aprilis 24 Eliz. The Defendant pleaded that the Intestate dyed before the date of the Obligation and isint nient son fait upon which they were at Issue and adjudged that the Jury might finde that the Bond was delivered the 3d of April because they are sworn ad veritatem dicendum though the parties are estopped to plead a Déed was delivered before the date but they may plead a delivery after the date because it shall never be intended that a Déed was delivered before the date but after it may But if the Estoppel Estoppels or admittance be within the same Record in which Issue is joyned then the Jurors cannot finde any thing contrary to this which the parties have affirmed and admitted of Record though it be not true For the Court may give Iudgement upon matters confessed by the parties and the Jurors are not to be charged with any such thing but onely with such in which the parties vary li. 2. 4. li. 4. 53. Co. Lit. 227. The Jury may finde Déeds or matter of Record Records not shewed if they will though not shewed in Evidence Finch 400. They may inquire of things done before the memory of man lib. 9. 34. The Jury may finde a Warranty Warranty being given in Evidence though it be not pleaded Nay the Jury may finde that which cannot be pleaded as in Trespass upon not guilty The Jury may finde that the Defendant leased Lands for life upon Condition and entred for the Condition broken Though this cannot be pleaded without Deed yet the Jury may finde it Lit. Sect. 366. But this matter comes more properly under the title Evidence wherefore we will procéed to that CAP. XI Evidence EVidence Evidence Evidentia This word in legall understanding saith Coke 1. Inst 283. doth not onely contain matters of Record as Letters Patents Fines Recoveries Inrollments and the like and writings under Seal as Charters and Déeds and other Writings without Seal as Court-Rolls Accounts and the like which are called Evidences Instrumenta But in a larger sense it containeth also Testimonia The Testimony of Witnesses and other proofs to be produced and given to a Jury for the finding of any Issue joyned betwéen the parties And it is called Evidence because thereby the point in Issue is to be made evident to the Iury Probationes debent esse evidentes id est perspicuae facile intelligitur And this Evidence with Bracton we may terme probatio duplex viz. viva as Witnesses viva voce and Mortua as by Déeds Writings and Instruments and violenta presumptio in many cases is plena probatio and therefore if all the Witnesses to a Déed be dead then the Déed shall receive Credit Presumption per collationem sigillorum Scripturae c. but especially if there hath béen a continuall and quiet possession which is a violent presumption 1 Inst 6. for no man can kéep his Witnesses alive Men that are so branded with Infamy that they cannot be Jurors for which sée before who may be Jurors cannot be Witnesses The Wife cannot be a Witness for or against her Husband Who may be Witnesses neither can the party to the usurious Contract be a Witness against the Usurer in an Information upon the Statute of Usury But Kinsmen never so near Tenants Servants Masters Counsellors and Atturneys c. â—ay be Witnesses A Counsellor may be a Witness to the Agréement c. but not to validity of an assurance nor to the Counsel he gave March Rep. 43. If a Witness being served with Process and having money sufficient to bear his
mis-return by the Statutes of 18 Eliz. Cro. 3. part 818. 841. So that Brooks sayes it is not proper to call it a Tryall per medietatem linguae because any Aliens of any tongue may serve But under his favour I think it proper enough For people are distinguished by their Language and Medietas Linguae is as much as to say half English and half of another tongue or Country whatsoever though it be not materiall of what sufficiency the Jurors are yet the form of the Venire facias shall not be altered but the Clause of Quoâ—um quilibet habeat 4 l. c. shall be in Cro. 3. part 481. But suppose that both parties be Aliens of whom shall the Inquest be then It is resolved that the Inquest shall he all English for though the English may be supposed to favour themselves more than strangers yet when both parties â—â—e Aliens it will be presumed they favour both alike and so indifferent 21 H. 6. 4. Where an Alien is party All English yet if â—he Tryall be by all Englisâ— it is â—â—terroneous because it is at his â—â—ill if he will slip his time and â—â—t make use of the advantage â—hich the Law giveth him when he â—hould Dyer 28. The Alien ought to pray a Venire â—â—cias per medietatem linguae When that Alien should pray a Venire facias per meditatem at the â—â—me of the awarding the Venire faâ—â—â— But if he doth it at any time â—fore a generall Venire facias be reâ—â—ned and filed the Court may â—â—â—t him a Venire facias de novo Dyer 144. 21 H. 7. 32. though it â—â—th béen questioned But if he hath a generall Venire â—â—as he cannot pray a Decem tales Tales 〈◊〉 per medietatem linguae upon â—â—s because the Tales ought to â—â—rsue the Venire facias 3 E. 4.11 2. And so if the Venire facias be 〈◊〉 medietatem linguae the Tales ought to be per medietatem linguae Tales as if 6. Denizens and 5. Aliens appear of the principal Iury the Plaintiff may have a Tales per medietatem linguae li. 10. 104. But if in this case the Tales be generall de circumstantibus it hath béen held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded Cro. 3. part 818. 841. If the Plaintiff or Defendant be Executor or Administrator c. though he be an Alien yet the Tryal shall be by English because he sueth in aut droit Where the tryall of an Aliens cause shall he by English but if it be averred that the Testator or intestate was an Alien then it shall be per medietat linguae Cro. 3. part 275. Mich. 40. 41 Eliz. The Quéens Attorney exhibited an Information against Barre Part English and part Aliens and divers other Marchants some whereof were English and some Aliens After Issue the Aliens prayed a Tryal per medietat linguae But all the Iustices of England resolved that the Tryall should be by all English and likened it to the case of priviledge where one of the Defendants deâ—ands priviledge and the Court us to his Companion cannot hold Plea there he shall be ousted of his â—riviledge sic hic More 557. By the Statute of 8 H. 6. cap. 29.19 Challenge Insufficiency or want of Fxéeâ—â—ld is no cause of Challenge to Aliens who are impanneled with the Aliens notwithstanding Stamfords Opinion Pl. Coron 160 for this Statute saith that the Stat. 2. H. 5. 3. shall extend onely to Enprests betwixt Denizen and Deâ—izen If the Defendant do not inform the Court that he is an Alien When the Alien should pray a Venire facias per medietatem upon â—â—arding of the Venire facias and â—o pray a Venire facias per medietaâ—â—â— linguae he cannot challenge the Array for this cause at the Tryall â—f the Iury be all Denizens notâ—ithstanding Stamfords Opinion to â—he contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. CAP. XIII The Learning of Generall Verdicts Speciall Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default VErdict Verdict or Verdict In Latine Vere dictum quafi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12. men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgement of the Court is built for ex facto jus oritur the Law ariseth from the fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as not to believe the matter of fact untill it is sworn by 12. sufficient men of the Neighbourhood where the fact was â—â—ne whom the Law supposeth to â—â—ve most cognisance of the truth or falsehood thereof which being sworn for the words are Juratoâ—es predict dicunt super sacrum suum The Credit of Verdicts c. is the Verdict whereof we now â—eat And such credit doth the â—aw give to Verdicts that no proof â—ll be admitted to impeach the veâ—ty thereof so long as the Verdict â—tands not reversed by Attaine and â—herefore upon an Attaint no Superâ—deas is grantable by Law Plo. Com. 496. And it is worth our observation â—â—t the Law séems to take more â—â—â—e of the fact then of her self for the Major part of the Iudges give â—he Iudgement of the Law though â—he other Iudges dissent But â—very one of the 12. Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assize pl. 27. Generall or speciall And this Veâ—dict is of two kinds viz. one generall and the other speciall or at large The generall Verdict Generall Verdict is positively either in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury fined Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do finde Quod predict B. in juste fine judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a generall Verdict 1 Inst 228. A Special Verdict Speciall Verdict or Verdict at large is so called because it findeth the special matter at large and leaveth the Iudgement of the Law thereupon to the Court 1 Instit 226. of which kinde of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special
9. H. 6. 66. and the Jury cannot finde no Wast for that would be against the Record be within the same Record in which the Issue is joyned upon which the Jurors give their Verdict there they cannot finde any thing against this which the parties have affirmed and admitted of Record although it be not true For the Court may give Iudgement upon a thing confessed by the parties aâ—d the Jurors are not to be charged with any such thing but onely with things in which the parties vary Ib. li. 5. 30. So Estoppels Estoppel which binde the Interest of the Land as the taking of a Lease of a mans own Land by Déed intended and the like being specially found by the Iury Cro. 1. paâ—t 110. Lib. 4 53. the Court ought to judge according to the speciall matter for albeit Estoppels regularly must be pleaded and relyed upon by apt conclusion and the Iury is sworn ad veritatem dicend yet when the finde veritatem facti they persue well their Oath and the Court ought to adjuâ—ge according to Law So may the Iury finde a Warranty being given in evidence though it be not pleaded because it bindeth the right Warranty not pleaded unless it be in a Writ of Right when the Mise is joyned upon the méer right 1 Inst 227. Verdicts ought to be such that the Court may go clearly to Iudgment thereon Uncertain Verdicts and therefore Verdicts finding matter incertainly or ambiguously are insufficient and voyd and no Iudgement shall be given thereupon As if an Executor plead Plene Administravit and Issue is joyned thereon and the Jury finde that the Defendant hath Goods within his hands to be administred but finde not to what value this is an uncertainty and therefore an insufficient Verdict li. 9. 74. 1 Inst 227. It is the Office of the Jurors to shew t e verity of the fact The Office of the Jury and leave the Iudgement of the Law to the Court. And therefore upon an Indictment of murder quod felonice per cussit c. If the Iury finde per cussit tantum yet the Verdict is good for the Iudges of the Court are to resolve upon the special matter whether it was felonice and so murder or not li. 9. 69. And if the Court adjudge it Murder then the Jurors in the conclusion of their Verdict finde the Felon guilty of the murther contained in the Indictment A Verdict that findes part of the Issue Verdict finding part of the Issue and finding nothing for the rest is insufficient for the whole because they have not tryed the whole Issue wherewith they are charged More 406. As if an Information of intrusion be brought against one for intruding into a Messuage and 100 Acres of Land upon the generall Issue the Iury finde against the Defendant for the Land but say nothing for the House this is insufficient for the whole Finding more than the Issue But if the Iury give a Verdict of the whole Issue and of more c. That which is more is surphisage and shall not stay Iudgement for Utile per inutile non vitiatur Leon. 1 part 66. Cro. 1 part 130. But necessary incidents required by Law the Iury may finde Where the Verdict ought to be of more than is in the Issue Yet in many Cases nay almost in all the Iury ought to finde more than is put in Issue otherwise their Verdict is not good and therefore they are to assess Damages and Cost because it is parcel of their Charge as a Consequent upon the Issue though it be not part of the Issue in terminis li. 10. 119. So in Trespass against two one â—â—ines and pleads Not guilty Damages by the first Inquest and â—s found guilty In this case the â—rst Inquest shall assess damages â—n the whole Trespass by both Defendants and afterwards the â—ther comes and pleads Not guilty â—d is found guilty The finâ—ing â—f Damages by the first Inquest to which he was not party shall binde â—im and therefore if the Damaâ—es are outragious and excessive â—he Defendant in the last Enquest â—hall have an Attaint Attaint li. 10.119 So in Trespass Quare clausum â—egit if Issue be joyned upon a Feâ—â—ment and the Jury give outragiâ—â—s Damages An Attaint lies for â—e inquiry of Damages is conseâ—eat and dependant upon the Isâ—ae and parcâ—l of their charge ib. In the 11th Report fo 5. It was â—esolved Damages by the first Inquest that in Trespass against â—wo where one comes and appears c. against whom the Plaintiff declares with a simul Cum c. who pleads and is found guilty and Damages assessed by the Enquest and afâ—erwards the other comes and pleads and is found guilty The Defendant which pleaded last shall be charged with the Damages taxed by the first Inquest for the trespass which the Plaintiff had made joynt by his Writ and Count and done at one time cannot be severed by the Jurors if they finde the trespass to be done by all at one and the same time as the Plaintiff declared Severall damages So in Trespass against divers Defendants if they plead not guilty or severall Pleas and the Jury finde for the Plaintiff in all the Jurors cannot assess several Damages against the Defendants because all is but one Trespass and made ioynt by the Plaintiff by his Writ and Count. And although that one of them was more malicious and de facto did more and greater wrong than the others yet all came to do an unlawful act and were of one party so that the act of one is the act of all of the same party being present But in trespass against two if the Jurors finde one guilty at one time and the other at another time there severall Damages may be taxed But if the Plaintiff bring an Action of Trespass against two and declare upon a several Trespas his Action shall abate And this is the diversity betwéen the finding of the Jury and the confession of the party And in trespass where the Defendants plead several Pleas all tryable by one Jury and they finde generally for the Plaintiff the Jurors cannot sever the Damages if they do their Verdict is vicious But in trespass against two Judgment de melioribus dampnis where one appeares and pleads not guilty to a Declaration against him with a simul Cum c. and afterwards the other appears and pleads not guilty to a Declaration against him also with a simul Cum c. Whereupon two Venire fac issue out and one Issue tryed after the other and severall Damages assessed in judgement of the Law the severall Juries give one Verdict all at one time and the Plaintiff hath his Election to have judgment de melioribus dampnis by any of the Inquests And this shall binde all but fiat nisi unica Executio It is a Maxim that in every case where an Inquest is taken
openly in Court Ib. Where the Jury cannot be dischaâ—ged befâ—re Verdict Neither can a Jury sworn and charged in case of life or member be discharged by the Court or any other but they ought to give a Verdict And the King cannot be non-suit The King cannot be nonsuit for he is in Iudgment of Law ther present in Court but a common person may be nonsuit And in civill actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. In Hillary Terme Sexto H. 8. Rotulo 358. It was alledged in arrest of the Verdict at the Nisi prius that the Jurors had eat and drunk And upon Examination it was found that they had first agréed and that returning to give their Verdict they saw Rede Chief Iustice in the way going to sée a fray and they followed him Et in veniendo viderunt cyplum inde biberunt And for this every one of them was fined 40 d. Juâ—ors fined And the Plaintiff had Iudgment upon the Verdict Dyer 37. And Dyer 218. At the Nisi prius the Iury after their charge given returned and said that they were all agréed except one who had eâ—t a Pear and drunk a draught of Ale for which he would not agrée Jurors at the Nisi prius fined in bank for eating peares and drinking Ale And at the Request of the Plaintiff the Iury was sent back again and found the Issue for the Plaintiff And the matter aforesaid being examined by the Oath of the Iurors Seperatim and the Bayliff who kept them and found true the offender was committed and afterwards found Surety for his Fine Si c. And Fitzherbert the then Iustice of Assise gave him day in banco c. at which day a Fine of 20 s. was there assessed Et quoad Ball Curia avisare vult In trespass by Mounson against West the Iury was charged and Evidence given and the Iurors being retired into a House for to consider of their Evidence Fined for having Figgs and Pippins about them they remained there a long time without concluding any thing and the Officers of the Court who attended them séeing their delay searched the Iurors if they had any thing about them to eat upon which search it was found that some of them had Figgs and others Pippins for which the next day the matter was moved to the Court and the Iurors were examined upon Oath And two of them did confess that they had eaten Figgs before they had agréed of their Verdict and thrée other of them confessed that they had Pippins but did not eat of them and that they did it without the knowledge or will of any of the parties And afterwards the Court set a fine of 5 l. upon each of them which had eaten and upon the others which had not eaten 40 s. But upon great advice and consideration had and conference with the rest of the Iudges the Verdict was held to be good Notwithstanding the said misdemeanor Leon. 1. part 133 And sée the Book of Entries 251. Fined for eating Raisins and Dates The Iurors after they went from the Barr ad seipsos of their Verdict to advise Comederunt quasdam species scil Raisins Dates c. at their own Costs an well before as after they were agréed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King Finable for having sweet-meats c. about them though they do not eat them See Plo. Com. 519. One fined and imprisoned for having Sugar-Candy and Liquorish about him In Ejectione firme it was found for the Defendant thrée 〈◊〉 the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff untill th y were searched and the Sweet-meats found anâ— then did agrée with the other nine and gave Verdiâ—t for the Defendant It was the Opinion of the Iustices that whether they eat or not they were finable for having of the Sweet-meats with them for that is a very great misdemcanor Godbolt 353. Jurors careed 40 Assise Placito 11. The Iustices said that if the Iurors will not agrée in their Verdict the Iustices may carry them in a Cart along with them till they are agréed The Iury were gone from the Sarr to confer of their Verdict â—nd one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gone from the Barr spoils the Verdict was called by the Iurors and he recited again his Evidence to them and after they gave their Verdict for the Defendant And complaint being made to the Iudge of the Assises of this misdemeanor he examined the Enquest who confessed all the matter and that the Evidence was the same in effect that was given before Et non alia nec diversa And this matter being returned by the Postea the Opinion of the Court was that the Verdict was not good and a Venire facias de novo was awarded Cro. last part 189. The Plaintiff delivered an escrowl to a Iuror impanelled Escrowle delivered to a Juror before he was sworn Vitiates the Verdict before he was sworn who afterwards being sworn and gone with the Iury from the Barr to consider of the Verdict shewed the same Escrowle to his Companions who found for the Plaintiff The Minister who kept the Enquest informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgement was stayed for after the Iury are sworn they ought not to sée nor carry with them any other Evidence but what was delivered to them by the Court Afterwards the Plaintiff said that the Escrowl proved the same Evidence which was given to them at Barr by him wherefore it was not so bad as if it had béen new Evidence not given before Sed non allocatur 11 H. 4. 17. Church-Book delivered to the Jury act of Court Pasche 38 Eliz. Inter Vicary at Farthing at the Nisi prius The Issue was about Non-age and two Church-Books were given in Evidence one whereof was delivered to the Iury in Court by the assent of parties and afterwards the other was delivered to the Iury out of the Court by the Solicitor of the Plaintiff without the assent of the Court and a Verdict for the Plaintiff and this was indorsed on the Postea The Question was whether this should make the Verdict 〈◊〉 or no for the Iustices differed 〈◊〉 opinion Popham and Gawdy that â—t should not Fenner and Cleach â—â—t it should the Negative Iuâ—â—â—â—es gave these Reasons That â—â—e Book was delivered in Evidence in the Court and so the other pâ—rty might answer to it and that the Court had informed the Iury of the validity thereof how farr they were to believe it with many other Reasons But the Affirmative was urged because there might be some matter in this Book to induce them otherwise than was intended before