but by one of the Coroners or for affinity in one c. Yet the Process shall still go to the Coroners Ita quod the Coroner se non intromittat If Default be in the Sheriff and To whom Process shall be directed for default in the Sheriff and Coroners Coroners the Court may choose two Esliors and if the parties can say nothing against them they shall make the Pannel But the Distringas shall not be directed to Esliers for the Court cannot make Officers to distreyn the Kings Liege people but the King may 8 H. 6. 12. dubitatur Process may be directed to the Justices of Assise by assent of parties not without When a Pannel is made by the Esliors they shall afterwards serve all Process that comes upon this as the Sheriff should 15 E. 4. 24. 18 E. 4. 3 8. Rolls tit Tryal 670. For it may be the Sheriff will distreyn only those who are his friends and be partial When the Process is once awarded Venire facias once directed to the Coroners shall not be to the Sheriff afterwards to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. Bro. tit Venire facias 17. So the Entry is Ita quod Vicecomes se non intromittat 18 E. 4. 3. 8 H. 6. 12. And therefore where the Sheriff ought Sheriff shall not return the Tales where he cannot the Venire facias not to retorn the Venire he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner and afterwards a Tales was awarded and it was retorned by the Sheriff and it was tryed and a Verdict given and Iudgement And for this cause held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 3. par 574. Bro. tit Octo. Tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and Where the Coroner returns the Venire facias he ought to return the Tales after Verdict it was moved in Arrest of Iudgement that the Tales de Circumstantibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgement For it is a mis-tryal not aided by any of the Statutes for process being once awarded to the Coroners the Sheriff afterwards is not the Officer to return the Jury no more than any other man And process ought always to be returned by him who is an Officer by Law to return it otherwise it is meerly void But afterwards upon view of the Record it appeared that the Tales was returned by the Coroners and their names annexed thereto wherefore it was without further question But the Court said if their names had not been annexed No name to the Return to the Tales yet it had been well enough for they be annexed to the first Pannel And it shall be intended that the right Officer return'd it and the usual course is That to such Tales there is not any officers name subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed but it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgement But if the Venire be awarded to the Coroners Venire facias to the Sheriff after one awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time or else to Esliors sice converso In Error of a Iudgement in Chester Venire facias to the Coroners after one to the Sheriff the parties being at issue a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vicecomes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cozenage betwixt him and the Sheriff which was awarded accordingly and at the day of tryal the Defendant made default and there upon Iudgement Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not material Cro. 3. part 853. But the Defendant might have demurred No Venire facias to the Coroners after one to the Sheriff to this prayer For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the Array nor have a Venire afterwards to the Coroners because the Sheriff is his Cousin or for any other principal challenge whereof he might by common intendment have Conusance when he so prayed the Venire facias for upon shewing this Cause at first he might have prayed Process to the Coroners but for a principal challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Sheriff c. he may afterwards challenge the Array when they appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to If the Defendant denies the Planitiffs suggestion he shall have no benefit of it by Challenge the Coroner because he is of kindred to the Sheriff if the Defendant will not confess this but denies it this shall be entred and the Defendant shall not challenge the Array for this cause afterwards Br. tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryal without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff
the Plaintiff was seized in his Demesn as of Fréehold and that afterwards the Rent was behind 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 Iudgment 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 manner 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 But in Assise of Rent it cannot be found to be upon Condition unless they also find the Deed of the Condition So of a Confirmation in Fee to Lessée for years Per Hale Ch. Just Guild-hall Hill 1671. A Special Verdict may be found as to Damagâ—s in an Action of the Case as the Case was there viz. Pro Quer ' and if so c. then such Damages if so c. then Damages such and he said he had known it so done in Debt and the Damages three ways Also in such case where the Enquest may General Verdict 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 find Estoppel Estoppels which cannot be pleaded as in the 2 d Report fol. 4. it well appears 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 Deed 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 Noveriat universi 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 Deed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Deed And the Reason of the Iudgment was That although the Obligèe in Note that a Deed may be plâ—aded to be delivered after the dare but nor before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. pleading cannot alledge the delivery before the date 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 Deed yet the Jurors who are sworn ad veritatem dicâ—nd 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 be As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admitteth the Wast c. 9 H. 6. 66. and the Jury cannot find no Wast for that would be against the Record Estoppel within the same Record in which the Issue is joyned upon which the Jurors give their Verdict there they cannot find 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 and the Jurors are not to be charged with any such thing but only with things in which the parties vary Ib. li. 5. 30. So Estoppels which bind the Interest of the Land as the taking of a Lease of a mans own Laâ—d by Déed indented and the like Cro. 1. part 110. Lib. 4. 53. being specially found by the Iury the Court ought to judge according to the special matter for albeit Estoppels regularly must be pleaded and relyed upon by apt conclusion and the Iury is sworn ad veritatem dicend yet when they find veritatem facti they persue well their Oath and the Court ought to adjudge according to Law So may the Iury find a Warranty being given in Evidence though it be not pleaded because it bindeth the right unless it be in a Writ of Right Warranty not pleaded when the Mise is joyned upon the méer right 1 Inst 227. Verdicts ought to be such that the Court Uncertain Verdicts may go clearly to Indgment thereon and therefore Verdicts finding matter incertainly or ambiguously are insufficient and void and no Iudgment shall be given thereupon As if an Executor plead Plene Administravit and Issue is joyned thereon and the Jury find that the Defendant hath Goods within his hands to be administred but find 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 the The Office of the Jury verity of the fact and leave the Iudgment of the Law to the Court. And therefore upon an Indictment of Murder quod felonice per cussit c. If the Iury find per cussit tantum yet the Verdict is good for the Iudges of the Court are to resolve upon â—he 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 find the Felon guilty of the murther contained in the Indictment A Verdict that finds part of the Issue and Verdict finding part of the Issue finding nothing for the rest is insufficient for the whole because they have not tryed the whole Issue wherewith they are charged As if an Information of intrusion be brought More 406. against one for intruding into a Messuage and 100 Acres of Land upon the general Issue the Iury find against the Defendant for the Land but say nothing for the House this
Castle but that there was a Goal this was for the Plaintiff because Goal is the Substance If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt assigned by the Plaintiff and the Iury find an Accompt before R. only the Issue is found for the Defendant for the Accompt is the effect of the Issue Vide Rolls tit Trial. 707. c. If 11 agrée and the 12th will not the Verdict of the 11 cannot be taken but the Court Jury agree may carry the Iurors with them in Carts until they are agréed 41 Ass 11. A privy Verdict may be altered in open Verdict altered Court In an Extendi fac upon a Statute if the Iury deliver their Verdict in Writing they may afterwards make it more formal but they cannot alter it in substance for it is a compleat Verdict by the delivery So of Presentments c. A Fine pleaded in Barr and that after Fine and Non-claim the death of A. scil 1 August 3. Car. B. Father of the Plaintiff was alive in plena vita remansit infra hoc Regnum infra quatuor Maria c. apud W. in Com. D. and no Entry or Claim within five years after and the Plaintiff replies and takes Issue què Modo forma il non fuit remansit infra hoc Regnum Angliae modo forma c. And the Iury find quod non fuit remansit infra hoc Regnum Angliae 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a Month and refer to the Court Au fuit remansit infra hoc Regnum modo forma c. This Issue is found for the Defendant for the matter and substance of the Plea is whether he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff and modo forma shall not make the day material Roll. tit Trial. 713. Iudgment upon a Demurrer and a Writ Judgment Arrest at what time of Inquiry executed at the return the party may shew any thing in Arrest of Iudgment for Iudgment is not compleat until the last Iudgment The first is but an Award A man may plead any thing in Arrest of Iudgment after a Verdict which will make Error if the Iudgment be given In Debt upon a simple Contract against an Executor if he will not plead in Abatement but other Matter which is found against him he shall not afterwards alledge that he is not chargeable in Arrest of Iudgment So in Debt against Executors upon Arrearages of Accompt where they are not chargeable That which appears ill upon the same Record What may be alledged but not a maâ—â—er of Fact which doth not appear upon the Record because the parties cannot by the Issue As that a Iuror was challenged and yet served on the Tales for this cannot appear without alledging matter of Fact Nor that the Defendants Attorney had no Warrant But if there be any irregular or foul practice this may be offered to set aside a Iudgment If any thing be omitted in the Declaration Variance between the Verdict and the Declaration or if more be put into the Declaration than is found by the Iury if it make a material Variance betwixt the Nar. and the Verdict the Action shall abate These following are adjudged material Variances If the Declaration be for these words Thou procuredst eight or Ten of thy Neighbours Words to Perjure themselves and the Iury find that he said Thou hast caused eight or 10 c. for he might be a remote Cause scilicet causa sine qua non without Procurement Nar. He is a Bankrupt Verdict He will be a Bankrupt within two days Nar. He is a Thief Ver. He stole a Horse Nar. Thou art a Murderer Ver. He is c. Nar. I know him to be a Thief Ver. I think him to be a Thief So it is a material Variance if a special Promise be laid to be upon Request and the Verdict find it without Request So if the Promise Declaration be upon a Lease made by two or by Baron and feme and the Iury find that one of them had nothing in the Land or that the Baron only made the Lease or that the two were Tenants in Common and so several Leases otherwise if they were Coparteners So in Case that the Testator was indebted to the Plaintiff in 55 l. and the Defendant being Administrator in consideratione c. Promise to pay this upon non Assumpsit if the Verdict find the Promise to be to pay 30 l. part of the 55 l. So in Ejectment If the Nar. be of a Lease Eje ment of thrée Acres a Lease of a Moiety will not maintain the Nar. So in Wast for Cutting Trees and the Wast Verdict find that he eradicated the Trées but did not cut them A Prescription in modo decimandi That Prescription every one who hath seven Lambs or under seven shall pay to the person ob for every Lamb and the Iury find that and further That if he had more than seven Lambs he should pay a Lamb and that the Parson should pay the Parishioner ob This is not the same Prescription but makes a Variance But if there be a Variance between the Variance Verdict and the Nar. either by way of Surplus or Defect but if this matter of Variance be not material in the extenuation of the Action or Damages the Action shall lye notwithstanding the Variance These ensuing are adjudged not to be material Nar. Strong Thief Verdict Thief Nar. I say c. Ver. I affirm or I doubt not Nar. The Plaintiff will do such a thing Ver. I think in my Conscience he will c. Nar. Of a Lease by a Parson for five years if he tam diu should be Parson tam diu viveret And the Verdict find the Lease to be for five years if he tam diu viveret without the words and should continue Parson for the Law implyeth That if he be deprived or resign that the Lease Determines Nar. He is a Murderer Ver. He was a Murderer for when he says He is a Murderer 't is not intended that he did the Act in presenti but before So in Trespasses or Actions upon Torts and wrongs which are several If the Verdict find part 't is no material Variance and the Plaintiff in these Cases shall have Iudgment Roll. tit Tryal 720. A Jury of Middlesâ—x was demanded in Enquest by default the Common-Pleas the first day of the Term and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the
Embraceors F. N. 6. Br. 171. So much doth the Law hate that Jurors Fined for taking Money after their Verdict should privately take Money for their Verdict That certain Jurors were fined for taking Money after their Verdict though there was no prâ—ingagement for it 39 Assise p. 19. The practice is otherwise at this day if it were not the Middlesex Iuries would not so Court the Bayliffs to return them especially to Tryals at Barr where 5 l. a man is frequent Gratuity sometimes more If a full Iury appear and some are challenged Issues off so that the Iury remains for default of Iurors the Defaulters shall loose their Issues 4 H. 6. 7. otherwise if a Iury be sworn and one is withdrawn by consent But if there be a joynder of Counties and a Iury of one County appear and not of the other The Defaulters of that County from which enough came shall not loose their Issues because the Inquest doth not remain for their default but for the default of them of the other County 48 Ass 5. Mes quaere If the Iurors at the return of Scire fac Amercement make default yet they shall not be amerced because the parties may be claimed at the first day but at the return of the Habeas Corpora they shall 10 E. 4. 19. 1 E. 3. 12. If any of the Iurors appear the Court Demand sur peine may charge them to inquire if any of the other Iurors were within the Town after the return and if they find they were they shall be demanded upon a Pein and if they come not they shall be amerced Rolls tit Trial. 632. A Juror was challenged and six other Jurors were sworn to try the Challenge who found him indifferent and thereupon the Juror fined for departing when he was challenged Jury was demanded but did not appear for which default he was fined the value of his Lands for a year and the other Jurors 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. If a Juror appear and is adjourned upon Juror adjourned upon pain 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 Jury because the Court knows not the value of his Land li. 8. 41. A Verdict was taken from the Fore-man Fined for giving a Verdict before they were agreed of the Jury 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 agreed 40 Assise 10. Where a Iury are to be fined a Fine The fine must not be joynt jointly imposed on them is not legal 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 Aemilius plectitur lib. 11. 42. A man stroke a Juror at Westm sitting Punishment for striking a Juror in the Court who passed against him 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 days of his life and that his right hand should be cuâ— off and his Lands seised into the Kings haâ—ds 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 third 30 s. Issues And upon every Writ that shall be further awarded to try any Issue to double the Issues last afore specified until a full Jury be sworn And these Issues being returned upon a Not summoned Tenement in Fée simple in tail or for life of another or himself or in the right of his Wife the Land he then hath will be chargeable for it and any mans Cattel upon this Land may be distrained for it But if the Under Sheriff c. return a Juror summoned who in truth was not legally summoned and 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 civil Causes it is without example and surely if the Jurors did bear it in their minds their Verdicts would be always grounded upon their Evidence and not upon their own Interests or any partiality to either of the parties Wherefore if the Jurors give a false Verdict which is perjury of the highest degrée upon an Issue joyned betwéen the parties in any Court of Record and Iudgment thereupon The party grieved may bring his Writ of Attaint in the Kings-Bench or Attaint Common-Pleas upon which 24 of the best men in the County are to be the Jurors 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 Iuâ—y find it a false Verdict then followeth â—â—is terrible and heavy Iudgment at Common Law upon the Petite Iury. 1. That they shall loose liberam legem for Judgment in Attaint ever that is they shall be so infamous as they shall never be received to be a Witness or of any Jury 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 rooted up 7. That their Meadow-grounds shall be ploughed up 8. That their Bodies shall be cast into the Goal and the party shall 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
assisas in ComÌ„ N. Capiend assignÌ„ ê‘ formam statuti c. venÌ„tam infra nominatÌ„ J. A. quaÌ„ infra scriptÌ„ H. C. ê‘ atturnatÌ„ suos infra ContentÌ„ IurÌ„ Iure unde infra fit mentio ExactÌ„ similitÌ„ venerÌ„ Qui ad veritatem de infra ContentÌ„ dicend electi triati Iurati fuerÌ„ Super quo pÌ„d H. ê‘ quendam J. B. de Consilio ipsius H. C. manutentione exitus interius IunetÌ„ Coram pÌ„fatÌ„ IustÌ„ IurÌ„ pÌ„d in Evidentijs oftend dicÌ„ quod c. Here recite the Evidence truely unde petitÌ„ IudiciuÌ„ qd IurÌ„ pÌ„d veredictÌ„ suum de suê‘ infra ContentÌ„ pro ipso H. reddant c. Et pd J. A. ê‘ quendaÌ„ C. J. de Consilio suo Demurrer dicÌ„ qd materia ê‘d ê‘ pÌ„fatÌ„ H. C. IurÌ„ pred suê‘ius in Evidentiis ostentÌ„ minus in lege existic ad pro band exitum interius IunctÌ„ pro parte ejusdem H. quodque ipse ad materiam illam in forma pÌ„d in EvidentÌ„ ostentÌ„ necesse necesse non habet nec ê‘ legem terrÌ„ tenetÌ„ respondere hoc paratus est verificare unde pro defectu sufficientÌ„ materÌ„ IurÌ„ pÌ„d in hac parte ostens Idem I. petitÌ„ IudicÌ„ quod IurÌ„ de VeridictÌ„ suo suê‘ Exit pÌ„d reddend exoneretur debitum suum infra specÌ„ una cum dampnÌ„ suis occasione de tentÌ„ debiti illius sibi addiundi cari c. Et pÌ„d H. C. Ex quo ipse sufficÌ„ materÌ„ in Joynde lege ad manutenen exitÌ„ infra ContentÌ„ pro parte ipsius H. IurÌ„ pred suê‘ius in EvidentÌ„ ostens qd ipse ê‘atÌ„ est verificare quaÌ„ quidem materiaÌ„ pÌ„d J. non dedicit nec ad eam aliqualiter respond sed verificationem illam admittere omnino recusat petÌ„ IudicÌ„ qd pred J. ab actione sua pred versus Eum habend precludatur ac qd IurÌ„ pred de VeredictÌ„ suo suê‘ exitÌ„ pred reddend onerentur c. A Precedent of a Demurrer upon the Evidence And now at this day the said Plaintiff and Defendant by their Attornies did appear and the Iury likewise did appear and were sworn c. upon which Sir T. W. Serjeant at Law of Councel with the Plaintiff gave in Evidence so and so and repeat it truely and did require the Iurors to find for the Plaintiff upon which J. C. of Councel with the Defendant saith That the Evidence and Allegations aforesaid alledged were not sufficient in Law to maintain the Issue joyned for the Plaintiff to which the Defendant néedeth not nor by the Laws of the Land is not holden to give any Answer wherefore for default of sufficient Evidence in this behalf the Defendant demands Iudgment that the Iurors aforesaid of giving their Verdict be discharged c. and that the Plaintiff be barr'd from having a Verdict c. Then the Plaintiff joyns and says That he hath given sufficient matter in Evidence to which the Defendant hath given no Answer c. and demands Iudgment and that the Iury be discharged and that the Defendant be Convicted then the Iury may give Damages if Iudgment shall happen to be for the Plaintiff c. A Bill of Exception Memorand That the First day of August Ebor. sc An. 1650. before T. P. and W. Iustices of our said Lord the King for taking of Assizes in the said County assigned in a Plea of Trespass and Ejectment which J. S. in the Court of our said Lord the King before himself by Bill doth Prosecute against E. B. supposing by the said Bill that the aforesaid T. B. c. and recite the substance of the Declaration or what it is c. and the Issue and then what the Evidence to prove the Defendant guilty was c. which here was a Surrender of a Copyhold out of Court c. and that he desired the Iury aforesaid to give their Verdict for the said T. B. of and upon the Premisses and that he likewise desired the Iudges aforesaid that they would inform the Iury aforesaid that the Surrender aforesaid out of Court made was good and effectual in Law and the aforesaid Iustices the aforesaid Surrender of the Land aforesaid with the Appurtenances made out of Court of the Mannour aforesaid in form aforesaid did affirm to the said Iurors was not good in Law by which the said Thomas for that the aforesaid matter to the said Iurors in Evidence shewed doth not appear c. did request of the said Iustices according to the form of the Statute in such case provided this present Bill which doth contain in it the matter aforesaid above by him to the Iurors aforesaid shewed by which the said Clayton's Reports Iustices at the request of the said Thomas this Bill have sealed at D. aforesaid 1. Westm 2. 31. 13 E. 1. When the Iustices will not allow a Bill of Exception upon Prayer if the Party impleaded tender the same unto them in Writing and requires their Seals thereunto they or one of them shall do it 2. If the Exception sealed be not put into the Roll upon Complaint thereof to the King the Iustice shall be sent for and if he cannot deny the Seal the Court shall procéed to Iudgment according to the Exception This Bill of Exception is given by the Statute Westm 2. cap. 31. before which Statute a man might have had a Writ of Error for Error in Law either in redditione Judicii in redditione Executionis or in Processu c. which Error in Law must be apparent in the Record or for Error in sait by alledging matter out of the Record as the death of either party c. before Iudgment But the mischief was if either party did offer any exception praying the Iustices to allow it and the Iustices over-ruling it so as it was never entred of Record this the party could not assign for Error because it neither appeared within the Record nor was any Error in fait but in Law and so the party grieved was without remedy until this Statute was made This Act extendeth to all Courts to all Actions and to both parties and to those who come in their places as to the vouchee c. who comes in loco tenentis It extendeth not only to all Pleas Dilatory and Peremptory c. to Prayers to be received Oier of any Record or Déed and the like but also â—o all Challenges of Iurors and any material Evidence given to any Iury which by the Court is Over-ruled 2 Inst fo 427. All the Iustices ought to Seal the Bill of Exceptions yet if one doth it it is sufficient if all refuse it is a contempt in them all And the party grieved may have a Writ grounded upon this Statute commanding them to put their Seals Juxta formam Statuti hoc sub periculo quod incumbit nullatenus omittatis The party must pray the Iustices to put their Seals but if they deny it they may be
commanded and may do it after Iudgment If the party grieved be dead his Heirs or Executors c. according to the Case may have a Writ of Error upon this Bill of Exceptions And no diminution can be alledged for the parties are confined to the matter in the Bill If the Iustice dye before he acknowledgeth his Seal according to the Act a Scire sac shall go to his Executor or Administrator for the Death of the Iudge is the act of God which shall not prejudice the party As in the case of a Certificate of the Marshal of the King's Host that the person outlawed was in the King's Service beyond Sea in a Writ of Error a Scire fac shall go to the Marshals Executor or Administrator upon shewing the Certificate If the Iudge denyeth his Seal the party may prove it by Witnesses ib. Error of a Iudgment at the Grand Sessions in the County of Pembrok in an Assise of darrein Presentment by Henry Cort against the Bishop of St. Davids Dorothy Owen al. for the Church of Stackpoole The fourth Error assigned was because the Issue being whether H. Cort did last present one R. D. the last Incumbent who was instituted and inducted upon his Presentation The Plaintiff offered in Evidence Letters of Institution which appeared to be and so mentions that they were sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there And those Letters were made out of the Diocess And the Defendant had demurred thereupon That those Letters were insufficient and the Demurrer was denyed which Jones said was an Error because they ought to have permitted the Demurrer and should have adjudged upon it But it was held that the not admitting of the Demurrer ought not co be assigned for Error for when upon the Evidence the matter was over-ruled by the Iustices of Assize That was a proper cause of a Bill of Exceptions and the remedy which the Statute appoints in that Case And for the matter of the Letters of Institution sealed with another Seal and made out of the Dioâ—ess it was held they were good enough for the Seal is not material it being an Act made of the Institution the writing and sealing is but a testimonial thereof which may be under any Seal or in any place But of that point they would advise Croke 1. part 340. Note This Bill is to prevent the precipitancy of the Judges and ought to be allowed in all Courts and in all places of Pleadings and may be put in at any time before the Jury have given their Verdict But this Bill is rarely used there being impar congressus betwixt the Judge and the Councel and the Prudence of the Judges induce them to find special Verdicts in Cases of doubt and difficulty A Release Pleaded at the Assises after Issue joyned Et pred Def. in propria persona sua ven dic quod pred Justic Dom. Regis hic ad caption Jur. ss pred inter ipsum Def. prefat Quer. procedere non debent quia dic ' quod post xii diem F. ult preterit de quo die Jurat pred inter partes pred continuat fuit ante hunc diem scilt diem de Assise scilt primo die M. Anno c. apud c. pred Quer. per nomen c. remisit relaxavit c. Et hoc c. unde pet quod Justic pred ad captionem Jur. pred ulterius procedere nolunt The Death of one of the Defendants Pleaded after the last Continuance Et pred Def. per A. B. Attorn suum ven pred T. non ven super hoc pred Def. dic quod post ult concinuationem placiti pred scilt post xv Pasche ult preterit de quo die loquela pred ult continuat fuit hic usq ad hunc diem scilt in Cro. sce Trin. tunc prox ' sequen ' ante eundem diem scilt decimo die Maii ult preterit pred T. apud A. pred obiit Et pet quod null process ' nec aliquid aliud in placito pred ulterius versus prefat T. fiat Et quia pred J. K. hoc non dedic Ideo null process nec aliquiâ— aliud in placito pred versus prefat T. fiat c. A Baron Challenges the Pannel because no Knight was retorned of the same Et sup hoc idem T. calumpniat arraiament panelli pred quia dic quod ipse est tempore arraiament panelli ilâ—ius fuit Baro hujus Regni Angliae locum vocem habens in quol Parliamento hujus Reg. Quodque in eodem panâ—llo nullus Miles nominat retorn existit Et hoo paratus est verificare unde petit Judicium quod panellum illud cassetur c. Evidence and demurrer upon Evidence Middleton against Baker Cro. Eliz. 42. fol. 751. In Eject It was held by all the Court upon evidence to a Jury That if the Plaintiff give in evidence any matter in writing or Record or a sentence in the Spiritual Court as it was in this case and the Defendant offers to demurr thereupon the Plaintiff ought to joyn in the demurrer or wave the Evidence because the Desendant shall not be compelled to put matter of difficulty to lay Gens and because there cannot be any variance of a matter in writing But if either party offer to demurr upon any evidence given by Witness the other unless he pleaseth shall not be compelled to joyn because the Credit of the testimony is to be examined by a Jury and the Evidence is incertain and may be enforced more or less But both parties may agree to joyn in demurrer upon such evidence And in the Queens Case The other party may not demurr upon evidence shewn in Writing or Record for the Queen unless the Queens Councel will thereto assent But the Court in such case shall charge the Jury to find the matter specially as appears 34 H. 8. Dyer 53. But this is by Prerogative vide lib. 4. 104. the same case and 1. Inst 72. where my Lord Cook says If the Plaintiff in evidence shew any matter of Record or Deeds or Writings or any sentence in the Ecclesiastical Court or other matter of evidence by Testimony of Witnesses or otherwise whereupon doubt in Law ariseth and the Defendant offer to Demurr in Law thereupon the Plantiff cannot refuse to joyn in demurrer no more than in a Demurrer upon a Count Replication c. and so è converso may the Plaintiff Demurr in Law upon the evidence of the Defendant but the Kings Councel shall not be enforced to joyn in Demurrer but in that Case the Court may direct the Jury to find the special matter So that the several sorts of evidence make no difference as to the joyning in Demurrer 1. part Leon. 206. Darrose against Newbott Cro. 4. Car. fol. 143. In Error of a Judgment in Bridgewater The Error assigned was for
to the good of the King and State who attempt to alter or invade this Fundamental Principle in the administration of the Iustice of this Realm by which the Kings Prerogative has flourished and the just liberties of the people have been secured so many Ages And what answer shall I make to the Princes vehementer admiror videlicet Wherefore are not Juries used in other Countries if they are so good but that of Fortescue the Portescue ca. 29. Learned who best could tell scil That other Countries can scarce produce one Jury so well accomplished with Wealth and Ingeny as one County nay one Hundred can in England But not to dwell in the Porch I will address my self to the Gravity of the Law where you must not so much expect the flash of Rhetorick as the light of Reason No the Law knows best how to express Things not words most regarded in the Law her self in her own terms wherefore all other Sciences must learn with reverence to keep their distance And as the Golden Finch sings be glad to have their Finch c. 3. sparks raked up in her Ashes And since an Issue is previous and the matter of a Tryal I shall first give you the description thereof and then touch upon the several Tryals allowed by the Law for discussion of the truth CAP. II. Of an Issue and the divers sorts of Tryals thereof and when a Tryal shall be by a Jury and when not when by Certificate when by the Spiritual Law when by Battail and when by an Almanack what Issue shall be first tryed per Pais what shall be tryed by the Court and what by Examination of the Attorney Sheriff c. ISsue exitus saith Cook is a single 1. Inst fo 126. Omnia unum aliquem sortiuntur exitum vel per patriam vel per Judices terminandum Finch Epistle certain and material point issuing out of the Allegations and Pleas of the Plaintiff and Defendant consisting regularly upon an Affirmative and Negative to be tryed by Twelve men and it is twofold scil either special as where the special matter is pleaded or general as in Trespass Not guilty In Assise nul tort nul disseisin c. And as an Issue natural cometh of two several persons so an Issue legal issueth out of two several Allegations of adverse parties And to give you likewise his definition of Tryals Note that upon a demurrer to part and Issue to part though it is the best way to give Judgment upon the quaestio juris first yet the Court may try the quaestio facti first at their discretion 1 Inst 72. 125. Lach. 4. Rolls tit Tryals 626. 723. Tryal It is to find out by due examination the truth of the point in Issue or question between the parties whereupon Iudgement may be given And as the question between the parties is twofold so is the Tryal thereof For either it is quaestio Juris and that shall be tryed by the Judges either upon a demurrer Special Verdict or Exception For Cuilibet in sua arte perito est credendum quod quisque noverit in hoc se exerceat Or it is quaestio facti And the tryal of the fact is in divers sorts First chiefly and most commonly by a Jury of Twelve men of which kind of tryal my intention is principally to treat in this Book For by Twelve men are matters of Proceedings in Civil Causes fact for the most part tryed with us in England in Causes both Criminal and Civil in Causes Civil after both Parties have said what they can one against another in Pleading if there arise a question about any matter of fact it is referred to Twelve indifferent men to be Impanelled by the Sheriff and as they bring in their Verdict so Iudgment passeth And this the Judge is to declare as the Law is upon the fact found For the Judge saith the Jury finds thus and then the Law is thus and so we judge For the Law arises upon the fact For Criminal Causes the course is this Proceedings in Criminal Causes At the Kings-Bench for Midds and at the great and general Assises and at the general Sessions of the Peace there is one Jury called the Grand-Jury which consists commonly of 24 men substantial men out of every Hundred with in the County returned by the Sheriff and they are to consider of all Bills of Indictment preferred to them which they either approve of by writing Billa Vera or disapprove by writing upon them Ignoramus and those which they approve of are to be tryed by another Jury called the Petit-Jury Or the Grand-Jury may charge any person upon their own Presentment which will be of the force of an Indictment and the party charged may Traverse the offence and bring it to be tryed by a Petit Jury Some lesser matters in these Courts are proceeded upon without a Jury and some things are removed by Certiorari into higher Courts and then must be tryed there and that thing to which there is a Traverse put in must be tryed and ended by a Petit Jury which for the most part in all Civil and Criminal Causes are but Twelve men which ought to be Free-men not Villains or Aliens and lawful men not Outlawed and also men of worth and honesty But because it is necessary to be known that there are many ways allowed by the Common-Law to try matters of fact besides this by Juries I will here repeat some of them And for this first hear the Oracle who tells you that he had read of six 1 Inst fol. 74. kinds of Certificates allowed for Tryals by the Common-Law 1. The doing of service by him that Tryals by Certificate holdeth by Escuage in Scotland was to be tryed by the Kings Marshal of his Army Per son Certificat en escript south son seal que serra mis a les Justices saith Littleton 2. If it be alledged in avoydance of an Outlawry that the Defendant was in prison at Burdeaux in the service of the Mayor of Burdeaux It shall be tryed by the Certificate of the Mayor of Burdeaux Note this was when Burdeaux was partel of the dominions of the King of England Rolls tit Tryal fo 583. 3. For matters within the Realm the Custome of London shall be Certified by the Mayor and Aldermen by the mouth of the Recorder vide apres 17. 4. By the Certificate of the Sheriff upon a Writ to him directed in case of Priviledge if one be a Citizen or Foreigner 5. Tryal of Records by Certificate of the Judges in whose Custody they are by Law All these be in temporall Causes 6. In Causes Ecclesiastical as Loyalty of Marriage general Bastardy Excommengement profession These and the like are regularly to be tryed by the Certificate of the Ordinary vide apres 16. If the Def. claim his priviledge as a Scholar of the Vniversity of Oxon of such a Colledge or Hall This
without such consent of parties This is an insufficient Tryal not remedied by any Statute except it be upon an insuffâ—ient suggestion and then the Statute of 21 Jac. 13. helps it Vpon suggestion that the Plaintiff and Venire facias to some of the Coroners the Sheriff and one of the Coroners are of kindred to the Plaintiff or Defendant or upon any other suggestion which contains a Principal challenge the Venire facias may be directed to the other Coroners Dier 367. Error of a Iudgement in Northampton Bayliffs because in Northampton the Court being held before the Mayor and two Bayliffs the Venire facias upon the Issue was awarded to the two Bayliffs to return a Jury before the Mayor and Bayliffs secundum Consuetudinem which being returned and Iudgement 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 only but the Mayor and Bayliffs and it is a common course in many of the Antient Corporations where the Bayliffs are Judge and Officer to return Writs Judges or the Mayor and they be Judges yet in respect of executing Process they be the Officers also And one may be Iudge and Officer diversis respectibus as in Redisseisin the Sheriff is Judge and Officer Whereupon Iudgement was affirmed Cro. 1 part 138. In Trespass and Assault laid in the Venire facias to the Garden of the Palace of Westminster Rolls tit Tryal 667. Court to be at the Palace of Westminster It was adjudged that the Venire facias shall issue al Garden del Palace and not to the Sheriff of Middlesex Bro. tit Ven. fac 31. In Trespass against two if one plead Award of Venire facias and two issues are joyned upon his Plea and two other issues are also joyned and the Court award a Venire ad triandum extitum illum quam praedictum alium exitum inter the Plaintiff and the other Defendant c. This is a good award although there be several issues betwixt the Plaintiff and both Defendants because that this word Exitus may be for all reddendo singula singulis Hob. 91. If an Inquest remain for default of Rapers and a Decem Tales is awarded and the Defendant saith for his deliverance that he is Lord of the Rape where c. and that all there are within his distress and prays a Writ to the next Hundred The Court may try this by Prochein Hundred Tryors presently without a return of the Sheriff and if it be true may award to the next Hundred otherwise if it be false 3 H. 6. 39. CAP. IV. What faults in the Venire facias shall vitiate the Tryal what not When a Venire facias de novo shall be awarded when several Venire facias's 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 WE have now shewed you to what Officer the Venire facias shall be directed The next step in the Writ is Praecipimus tibi quod Venire facias Which words Venire facias are Venire facias why the Writ so called the most effectual 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 general I am not ignorant how our Books swarm with Cases which arise from the defects in this Process and how that Verdicts have been set aside Iudgements stayed and reversed for want of sufficicient Returns misawarding disagreement with the Rolls discontinuance and many other faults in this Writ But the Statutes of Jeofailes especially the Statute 21 Jacob. cap. 13. have pardoned as I Statute of Jeofailes 21 Jac. 13. may so say these enormities As 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 ouhgt to be so as some place be right named The misnaming of any of the Jury either in Sir-name or addition in 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 Undersheriff 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 or Information upon any popular or penal Statute Wherefore since Informations and popular Actions are grown so frequent Popular Action c. 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 only helps the mis-naming of a Juror in Sir-name or addition and saith nothing of his Christian name wherefore I conceive the Law in Christian name mistaken in the Venire facias incurable Codwels 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 so 203. doubted thereof I may well put the Christian name right in the Venine facias wrong in the Distringas 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 of 21 Jacob. for that only helps the Sir-name But with Reverence to the Courts doubt I conceive clearly it is holpen 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 Codwels Case aforesaid where in the Pannel 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 Iudgement was arrested But it is there adjudged that if he had been well named upon the Venire and misnamed on the Distringas or Postea then upon Examination it should be amended But the Countess of Rutlands Case lib. 5. 42. is express in the point and so is Cro. 3. part 860. Rolls 196. Teppet in the Venire and Tipper in the Distring Amended And so if the mistake be in the Pannel Jurata the Sheriff may come in Court and amend it And so if Samuel be in the Venire and Distringas and Daniel in the Nomina Juratorum upon examination this may be amended And so if the name be right in the Ven. and mistaken in the Christian name in the Distringas or Postea it is amendable Rolls 197. And so if he be De A in the Venire and Distringas and De B. in the Nomina Juratorum this is amendable 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 fatal in the Venire that it causes a mis-tryal as in the mistake of a Jurors Christian Name or where a Juror not returned is sworn c. then the Verdict Venire facias de novo is to be set aside and a 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 One Jury shall not try a cause twice and recorded by the Court 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 Iudgement 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. If upon an issue all the matter be not Venire facias de novo fully inquired a Venire facias de novo shall issue 18 E. 3. 50. In an Audita Querela if the parties go to issue upon payment according to the defeasans of the Statute and this is found for the plaintiff but the Jury do not assess Damages the Court shall award a Venire facias de novo to assess damages 22 E. 3. 5. vide hic cap. 6. and Rolls tit Tryal 593. 595. If the Record of the Nisi prius be unum modum tritici for modium and the Plaintiff is Nonsuit at the Aâ—â—â—se for this mistake if the Record in Court be right scil Modium this Nonsuit shall not be Recorded but a Venire facias de novo shall be awarded So for any other mistake as if the Record in Court be Grays-Inn Lane c. and the Nisi prius which is but a transcript be Graves-Inn Lane c. For this is a nonsuit upon another Record than what is in Court In Battery against Three who plead Three several Pleas and upon the Writ of Nisi prius two issues are found for the Plaintiff and Damages assessed but nothing is found for the third issue this is a mis-trial and a Venire facias de novo shall issue In Detinue if the Jury find Damages Detinue and Costs but no value as they ought this shall not be supplied by a Writ of Inquiry of Damages but a Venire facias de novo shall be granted And so of other defects in finding the full issue In a Quare impedit if the issue be found Quare impedit for the Plaintiff but by negligence the Jury do not inquire of the four points scil de plenitudine ex cujus prâ—sentatione si tempus semestre transierit and the value of the Church per annum This shall be supplied by a Writ of Inquiry without any Venire facias de novo because the Court ex officio ought to have charged the Jury with the four points of Inquiry and if the Jury had found them no Attaint lay for as to this they were but as an Inquest of Office In a Writ of Annuity if the issue Annuity be found for the Plaintiff but the Jury do not assess Damages or Costs this shall not be supplied by a Writ of Inquiry but a Venire facias de novo shall be granted In Ejectment against Baron and Feme and Ejectment the Jury find the Wife not guilty and find a special Verdict as to the Husband which special verdict is afterwards adjudged insufficient by the Court a Venire facias de novo shall be granted for both as well the Wife as the Husband and the Wife may be found guilty because the Record and issue is intire and the Verdict is insufficient and void in tout So if there be several issues and the Imperfect Verdict Jury find some well and directly and in others special Verdicts which are imperfect a Venire facias de novo shall be granted for all and the Jury may find contrary to their first finding In trespass of Assault and Battery and taking away of grain and the Defendant as to the Batery justifies in defence of his grain upon which the Plaintiff demurs and as to the grain he pleads not guilty which is found for the Plaintiff and the Jury do not tax Damages for the Battery depending in demurrer as they ought in this case if the demurrer be afterwards adjudged for the Plaintiff yet the Damages for this cannot be afterwards supplied and taxed by a Writ of Inquiry of Damages but a Venire facias de novo shall issue to Tryal because all is comprised in one Original Vide apres cap. 13. and devant cap. 2. Who shall grant it In a Scire facias upon a Recognisance in Chancery if the Parties be at issue upon which the Record is commanded into B. R. and there it appears that the Venire facias is not well awarded the Venire facias de novo shall be awarded in the Kings Bench and not in the Chancery Roll. â—it Tryal 723. In Yelvertons Reports fo 64. the Case Album breve the County left out in a Venire facias is That a Venire facias was made Vicecomiti leaving out Salop for which there was a blank left in the Writ But re vera it was returned by the Sheriff of Salop. In Arrest of Iudgement it was alledged that the Venire facias was Vicious 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 aided by the Statute of Jeofailes For it might rather be called a blank than a Writ because it was directed to no Officer If there be no return of the Sheriff indorsed upon the Venire facias it was held not amendable 35 Eliz. lib. 5. 4 Otherwise of the Distringas
good for that it is a debt every where and not like a debt that ariseth by matter collateral But Twisden â—ust doubted Whitehead vers Browne Pasch 15 Car. 2. B. R. The Jury may find Estoppels as the taking Estoppels When the Estoppel is found the â—ourt may judge according to the eâ—pecial matter of a Lease of a man 's own Land by Deed indented or the delivery of a Deed before the date as in Debt by an Administrator upon a Bond 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 find that the Bond was delivered the 3d of April because they are sworn ad veritatem dicenâ—um though the parties are estopped to plead a Deed was delivered before the date but they may plead a delivery after the date because it shall never be intended that a Deed was delivered before the date but after it may But if the Estoppel or admittance be Estoppels within the same Record in which Issue is joyned then the Jurors cannot find â—ny thing contrary to this which the parties have affirmed and admitted of Record though it be not true For the Court may give judgment upon matters confessed by the parties and the Jurors are not to be charged with any such thing but only with such in which the parties vary li. 2. 4. li. 4. 53. Co. Lit. 227. A Decree in Chancery shall be tryed by a Decree Jury and not by it self for it is not a Record but a Decree Recorded The Chancery as it is a Court of Equity is not a Court of Record But touching things agitated in the Petty Bag Office it is a Court of Record The Jury may find Deeds or matter of Records not shewed Record if they will though not shewed in Evidence Finch 400. They may inquire of things done before the memory of man lib. 9. 34. Null tiel Record is not to be tryed by a Jury but upon the general issue c. they may find a Record The Jury may find a Warranty being Warranty given in Evidence though it be not pleaded Nay the â—ury may find that which cannot be pleaded as in Trespass upon not guilty The Jury may find that the Defendant leased Lands for life upon Condition Condition and entred for the Condition broken Tho. this cannot be pleaded without Deed yet the Jury may find it Lit. Sect. 366. Where a Collateral Warranty binds this may well be given in Evidence For although it doth not give a right yet in Law this shall bar and bind a Right Lib. 10. 97. But this matter comes more properly under the Title Evidence wherefore we will proceed to that See also in Chap. 13. CAP. XI Evidence and Witnesses EVidence Evidentia This word in legal Evidence understanding saith Coke 1. Inst 283. doth not only contain matters of Record as Letters Patents Fines Recoveries Inrollments and the like and writings under Seal as Charters and Deeds 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 between the parties And it is called Evidence because thereby the point in Issue is to be made evident to the Jury Probationes debent esse evidentes id est perspicuè facile intelligitur And this Evidence with Bracton we may term probatio duplex viz. viva as Witnesses vivâ voce and Mortua as by Deeds Writings and Instruments and violenta praesumptio in many cases is plenâ— probatio and therefore if all the Witnesses to a Deed be dead then the Deed shall receive Credit per collationem sigillorum scripturae Presumption c. but especially if there hath been a continual and quiet possession which is a violent presumption 1 Inst 6. for no man can keep his Witnesses alive If a thing be generally referred to proof Proof this shall be intended proof by Jury but if other manner of proof be agreed upon that shall take away the proof which the Law generally intends by Jury Hob. 127. As if I promise to pay what mony you prove B. borrowed this may be proved in the same action brought upon the promise Vide Rolls tit tryal 594 595. Men that are so branded with Infamy Witnesses that they cannot be Jurors for which see before who may be Jurors cannot be Witnesses yet per Glyn Ch. Just and Newdigate Just Mich. 1657. B. R. Conviction of common Barretry hinders not from being a witness but Maynard Sergeant held strongly against it At Lent Assises Suff. 1657. St. John Ch. Just C. B. would not allow one who had been whipped for petty Larceny to be a Witness but Earl Sergeant said they ought to be stigmatici that are disabled from being Witnesses Yet per Roll. Ch. Just one burned in the hand for Felony may be a Witness for he is in capacity to purchase Lands and his fault is purged by his punishment Stiles 388. The Wife cannot be a Witness for or Who may be Witnesses against her Husband 1 Inst 6. that is in case of a common person between party and party but between the King and the party on an Indictment she may although it concerns the Feme her self as in the Lord Audley's Case Hutt 116. So she may have the Peace against her Husband And so it was resolved in John Browne's Case Trin. 25 Car. 2. B. R. on the Stat. of 3 H. 7. cap. 2. vid. 1 Cro. 492. The King cannot be a witness by his Letters under his Signet manual One attained of Piracy cannot be a witness to prove another guilty If he accused another before he was attainted and afterwards confesses he wronged him this confession shall be rejected because he is attainted A woman cannot be a witness to prove a man to be a Villain Co. Lit. 6. 8. Neither can the party to the usurious Contract be a Witness against the Vsurer in an Information upon the Statute of Vsury But Kinsmen never so near Tenants Servants Masters Counsellors and Attorneys c. may be Witnesses A Counsellor may be a Witness to the Agreement 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 charges or less if he accept it do not appear to give his testimony he forfeits 10 l. to the party damnified and must recompence his damages 5 Eliz. 9. If a Witness commit wilful perjury he loseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz 9. A party robbed is allowed a
Trover lies for damages for the Horse in which the Jury shall prove the 3 l. given was only for the conversion not the value of the Horse and by him Trover lies for goods in the Plaintiffs possession to recover damages for the conversion only Tyndal vers Jolliffe Norf. Lent Assises 1660. In Trover by Administrator where the conversion was in the time of the Intestate the Plaintiff must shew the Letters of Administration Contr. where the conversion was after his death Per Hale Norf. Sum. Ass 1660. If an Estray be claimed within the year and the day c. and the Lord refuses to deliver it Trover lies though the keeping is not paid for and the Lord sayes he detains for the same and the Lord can't detain for the meat c. but must bring his action Per Moreton Just Lent Norf. 1667. Bond vers Paston Quaere vide Dent tit Trespass per Wyndham Contr. and I think is Law At the same Assises Daniel vers Berney by Moreton Just Proclamation may be made of an Estray by any person and it is not necessary that it should be made by the Bell-man or any other Officer Vide Co. Entries 170. Barber vers Fawcet In Trover issue was joyned on tender of amends for keeping c. and Verdict pro Plaintiff and judgement Note I find precedents that in Trover the matter of an Estray may be pleaded specially or given in evidence on Not guilty Oats were taken from the owner and carried to a Miller to make into Oat-meal and before it was done the owner prohibits the Miller c. and demanded the Oats who notwithstanding made them into Oate-meal Per Barkely it 's a conversion in the Miller 1630. Clayton 57. Hollworth's case On non Cul. The Defendant gave in evidence a seisure for goods Foreign bought and Foreign sold Per Custom of Lynn Norf. good per Hale Norf. Sum. Ass 1668. Harwich vers Twells A man lends his Horse to a special purpose the Bailee abuses the Horse and over works him then the lender takes the Horse again Per Hugh Wyndham Just Lent Assises Bucks Trover lies not Constables case Dower In Dower the issue was ne unque seisie que Dower and for the Plaintiff a Feoffment in Fee was given in evidence to the Husband the Defendant would have given in evidence a seisin in tayle with a discontinuance and then the Feoffment c. and so a remitter but it ought to be pleaded per Cur. Dyer 41. If an Heir Mortgage for years and then assigne Dower legally i. e. a 3. part of the whole the assignment shall bind the Mortgagee Cont. if the assignment be illegal as of one whole Mannor when there were three Mannors that being not as the Law would have done it And if a disseisor assigne a legal Dower it 's good But if the Heir Mortgage in Fee and then assigne c. legally c. that is not good because the whole Freehold was out of him at the time of assignment Per Hugh Wyndham Just Bucks Lent Ass 1668. Account Against S. as receiver of two 30 ls and as Bayliff for receiving his Rents for several years not saying any certain sum of Rents Per Earl Sergeant the proper way is to find quod Computet as to what is certain in the declaration and so proved as the money was but not to the Rents and so he said was the opinion of Hale But per Moreton Just the Verdict shall be general and it may be both ways Saye's case Norf. Lent Assises 1667. Thus far I have made an Essay of a method to be further built upon by our Practiser and have given some cases not in Print and it may be useful I shall add some other cases not so proper for heads except that of Evidence with which I shall conclude this Chapter Evidence Inspection of a Deed Inrolled may be given in evidence Contr. of a bare Deed not Inrolled or of a Deed that needs no Inrollment Pasch 1655. B. R. Goodson's case A Deed to Lead the uses of a fine was Inrolled on the acknowledgement of but one of the parties to it was allowed by Glyn Ch. Just in evidence as Roll Ch. Just had done before him though no binding evidence Turber vers Maddison Pasch 1655. B. R. An office found at a death c. may be given in evidence A Verdict against one under whom either Plaintiff or Defendant claims may be given in evidence against the party so claiming cont If neither claim under it Duke and Ventres Mich. 1656. B. R. If an Action be brought on a Statute which has several provisoes in it the Defendant may plead not guilty and aid himself by any of the provisoes in evidence But if provisoes be made to that Statute of which the Defendant may take advantage he ought to plead it and not give it in evidence per Roll. Ch. Just Mich. 1650. B. R. Jones 320. accord Iointenancy in trespass cannot be given in evidence but must be pleaded in Abatement Jones versus Randal Hill 1652. C. B. Arrest and Imprisonment to prove a Bankrupt must be proved by Record Newby vers Bathurst Pasch 1659. B. R. In a Tryal at Barr. The custome of New-England to marry by the Magistrate in the presence of a Minister was allowed good by Hale Ch. Just B. R. Trin. 1663. at Guild-Hall in t Hall Hall The Certificate of the King under his sign Manual was allowed in Chancery for proof without exception Hob. 213. Records as Patents Statutes Judgments may be given in Evidence Hob. 227. contr to Dyer 129. When Records are pleaded they must be Sub pede Sigilli Contr. if given in Evidence Stiles 22. Whites case An answer in Chancery is Evidence against the Defendant himself but the Bill must he proved Godb. 326. Vpon a traverse of a Lease parol for years viz. Absque hoc quod A. demisit c. Nihil habuit in tenementis may be given in Evidence Dyer 122. Shewing a Grant to digg Turfs is no Evidence against a Prescription for the same but the Grant being the same with the Prescription shall be taken as a confirmation Crew Vernon Moore 819. Quaere tamen v. Moore 830. Where a Court of Pipowder is claimed by Prescription and Grant and good 2 Cro. 313. Acc. In Trespass for taking Goods after Iudgment per confession non sum informatus or nil dicit Property need not be proved to a Writ of inquiry for it would oppose the first Iudgment Quod quaerens recuperet and the Iudges might have Assessed damages if they would Yelv. 151. Yet quaere if the Defendant may not disprove property in mitigation of Damages for the Iury may find no Damages A Copy of a Deed is good Evidence where the Defendant has the deed and will not produce it Per Vernon just Clayton 15. A deed of Feoffment without Livery may be given in Evidence as a Release Per Berkly 11 Car. Clayton 32. If a
per medietatem linguae he cannot challenge the Array for this cause at the Tryal if the Iury be all Denizens notwithstanding Stamford's Opinion to the 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. Vide Rolls tit Trial. 643. If the Plaintiff be an Alien he must suggest it before the awarding of the Venire facias but if the Defendant be an Alien the Plaintiff is allowed to surmise that before or after the Venire facias because the Defendants quality may not be known to him before 27 H. 7. 32. CHAP. XIII The Learning of General Verdicts Special Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default Inquests of Office c. Arrest of Judgment Variance betwixt the Nar. and the Verdict c. VErdit or Verdict In Latine Vere dictum Verdict quasi 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 Iudgment of the Court is built for â—x facto jus oritur the Law ariseth from â—he fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as â—ot to believe the matter of fact until it is sworn by 12 sufficient men of the Neighbourhood where the fact was done whom the Law supposeth to have most cognisance of the truth or falsehood thereof which being sworn for the words are Juratores predict The Credit of Verdicts dicunt super sacruÌ„m suum c. is the Verdict whereof we now treat And such credit doth the Law give to Verdicts that no proof will be admitted to impeach the verity thereof so long as the Verdict stands not reversed by Attaint And therefore upon an Attaint no Supersedeas is grantable by Law Plo. Com. 496. And it is worth our observation that the Law seems to take more care of the fact than of her self for the Major part of the Iudges give the Iudgement of the Law though the other Iudges dissent But every 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 Assise pl. 27. And this Verdict is of two kinds viz. one General or special general and the other special or at large The general Verdict is positively either General Verdict in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury find 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 find Quod predict B. in juste sinâ— judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a general Verdict 1 Inst 228. A Special Verdict or Verdict at large is Special Verdict so called because it findeth the special matter at large and leaveth the Iudgment of the Law thereupon to the Court of which 1 Instit 226. kind of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special 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 The Court cannot refuse it cannot refuse a Special Verdict if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned whether the Iury A special Verdict may be found upon any Issue as upon an absque hoc c. could find a Special Verdict upon a special point in Issue or no as they might upon the general Issue But this question hath been fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Vardict and find the matter at large en chescâ—n issue en le monde so that the matter 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 real personal and mixt and upon all Issues joyned general or special the Iury might find 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 only in Cases between 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 affirmative of the Common Law And as this spetial Verdict is the safest for A Free-hold upon Condition without Deed may be found by Verdict though it cannot be pleaded the Iury 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 concerns a Freehold 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 dissâ—isin or in any other Action where the Iustices 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 term of life without Deed upon Condition to render to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessee is seised as of Fréehold and after the Rent is behind 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 Dissesin 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 term 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 behind at any such Feast at which it ought to be paid then it should be lawful for the Lessor to enter c. By force of which Lease
it may be supplied by matter ex post facto and how And for this know that if damages be left out of a Vide hic cap. 6. Verdict this omission cannot be supplied 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 â— Writ of Inquiry of damages as in a Quar 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 point is omitted whereof on Attaint lyeth there this shall not be supplyed by Writ of Inquiry upon which no Attaint lyeth And therefore in Detinue if the Jury find 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 shall the Plaintiff Verdict set aside because the damages not well assessed loose the benefit of his Verdict because the Jury assessed no damages or did insufficiently assess them Certes in such Cases where damages only 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 Iudgment Release Damages 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 Iudgment for those damages well assessed And oftentimes the insufficiencâ— Verdict set aside in part of the Declaration shall set aside the Verdict as if an Action upon the Case be brought upon two promises and one of For insufficiency in the Declaration them be insufficiently laid and the Verdict give intire damages this is naught for the whole But if the Damages had been severally assessed upon the several promises 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 Release of damages where none were assessed the Plaintiff released his damages and costs and upon this had Iudgment upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict fed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Detinue of Charters or non detinet Verdict for the Plaintiff and Damages but the Iury did not find the value of the Déeds and a Writ of Inquiry was awarded to that purpose and returned and ruled good and by Twisden Just Debt against Executor who pleads plenè c. and it 's fouâ—d against him and the Iury give no damages that can't be aided by Writ of Inquiry Burton versus Robinson Pasch 17 Car. 2. B. R. In Dyer 22 Eliz. 369. 370. In a Wri Release of damages where they were not well assessed 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 Iudgment for the Land And Note that insufficient assessment of damages and no assessing is all one The Iury ought to assess no more damages Damages and Costs pro injdria illata than the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and general signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna in toto se attingunt cum c. But if the Iury do assess more damages More damages than the Plaintiff declares for then the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgment for the residue as in the 10th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryal the Iury assessed damages occasione transgressionis prâ—dict 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 40 l. Damages remitted to which damage he had counted with increase of costs of suit and had 9 l. de Incremento added by the Court which in all amounted to 50 l. and had his Iudgment accordingly upon which a Writ of Error was brought and the Iudgment affirmed For as in real Actions 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 ease of Costs he shall recover for the expences depending the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past and not to expences of Suit For in personal Actions he counts Damages in real and personal Actions to damages because he shall recover damages only for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in real 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 Damages and Costs intirely assessed and costs intirely together without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs than the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover only 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 13 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
informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgment 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 Escrowle 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. Pasche 38 Eliz. Inter Vicary Farthing Church-Book delivered to the Jury act of Court 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 void or no for the Iustices differed in opinion Popham and Gawdy that it should not Fenner and Clench that it should the Negative Iustices gave these Reasons That the Book was delivered in Evidence in the Court and so the other party might answer to it and that the Court had informed the Iury of the validity thereof how far they were to believe iâ— 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 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 Iudgment was afterwards given for the Plaintiff sée More 's Reports 452. The Books differ for Cro. makes Clinch give Consider the Reasons in the former cases 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 without the Court should have any favour at all In the Case of Taylor and Webb Trin. 1653 B. R. Twisden moved to set aside a Verdict given at Barr because that after Evidence when the Writings were delivered to the Iury some Writings which were not sealed and therefore ought â—ot to be delivered to the Iury were delivered by a stranger to the Iury. Hales Counsel of the other side produces an Affidavit of the Foreman 's of the Iury that they made no use of them in giving their Verdict and that most of those Writings were read in Court in Evidence upon the Tryal and Hales said That if this should avoid the Verdict then that would be in the power of any Stranger unknown and against the mind of the parties to avoid any Verdict Roll. Ch Iust The Affidavit of the Iury ought not to be allowed to make good their own Verdict for now they are as it were parties and have offended and shall not be allowed by their own Oath to take off their offence and it is the Duty of the Iury to look what Writings they receive before they go from the Barr and if any such Paper be wrap'd up among other Papers delivered to them by the Court so soon as they have discovered it they should call in the Tip-staff who keeps them and deliver it to him and to testifie they made no use of it and he said it would be dangerous to give the least way to the delivering of any Writings to a Iury. And at another day Roll cited 11 H. 4. 18. the Plaintiff before the Tryal delivered a a breviaâ—e of his Evidence to the Iury which contained no more than was proved in Court yet by this the Verdict was avoided So Mich. 31 Eliz. C. B. Metcalfe and Dean After the Iury were gone from the Barr they sent for one of the Witnesses and re-examined him who gave the very same Evidence that he had before given in Court yet the Verdict was avoided and the reason of both is a fear and jealousie that other matters might be given c. 37 Eliz. Farthing's Case a Paper not under Seal which was given in Evidence was delivered to the Iury this did not avoid the Verdict because here can be no such fear and per Roll If any Writing though not given in Evidence be delivered to the Iury by the Court it shall not avoid the Verdict And in the principal Case the Verdict was avoided Hill 40 Eliz. Rot. 847. In Arrest of Iudgment after Verdict it was alledged Escrowle from one who was no party that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Evidence at the Tryal and adjudged no cause to Arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. but otherwise if it had béen given by a party and the Iury had found for him In the Case of Duke and Veâ—tres Mich. 1656. B. R. tryed at Barr one Mr. Beverly of Suff. a Barrister was returned of the Iury who having béen at a Tryal of the same Cause above 20 years before in the Cheq and heard there great Evidence to make a Deed fraudulent which was now the Contest demanded of the Court whether he ought to inform the rest of the Iury privately of this or conceal it or declare it in open Court The Court ordered him to come into Court and deliver all his knowledge which he heard then proved which Evidence was not now given because the parties were dead and so he did being not sworn again but only upon the Oath taken as a Iuryman And certainly It is of dangerous Consequence to receive a Verdict against Evidence given on supposal that some of the Iury knew otherwise or on private Information given by one Iuryman to the rest where he can't be Cross-Examin'd and let such Iurors beware of Attaint but the best way is as before in open Court In a Writ of Error the first Error assigned was that Termino Trin. twelve Iurors and no more did appear This ex assensu partium was adjourned until Jury adjourned 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 after he is sworn Juror depart he shall be sined 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 affered 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 Embraceors Decies tantum Attaint several Fines on Jurors
that in an Action upon the Case far Asumpset the parties being at issue a demurrer was joyned upon the evidence and thereupon the Jury discharged and afterwards judgment was given for the Plaintiff and a Writ of Inquiry of damages awarded and damages found and Judgment thereupon where the Jurors which came to find the Issue although by the Demurrer they were discharged of the Issue yet ought to have assessed damages conditionally if judgment should be given for the Plaintiff And in proof thereof was cited Newis and Scholastica's Case in Plo. Com. fol. 408. and the old Books of Entries c. And it was said by the Court If these Precedents be good Law thâ—â— it may be inquired of by the same Jury conditionalâ—y But it may be as well inquired of by a Writ of Inquiry of damages when the Demurrer is determined And the most usual course is when there is a demurrer upon evidence to discharge the Jury without more inquiry But as My Lord Chief Baron Montague held at the Assises in Cambridgeshire 1682. it may be one way or other In the Assise by R. Newis and Scholastica his Wife against Lark and Hunt which was taken by default The Precedent in Plowd Com. as to this matter runs thus Recogn ' Assisae pred exacti venerunt qui ad veritatem de premissisdicend electi triati 8 â—â—rati fuerunt sup quo Willielmus Bendlows Serviens ad legem de consilio predictorum R. Scholasticae in manutentione Assisae pred coram Justic Dominae Reginae de Banco hic in evident Recognit Assisae pred dixit quod diu ante diem impetration is Assisae pred quidam H. Clark fuit seisitus â—c Et condidit testamentum ultimam voluntatem sua in scriptis inter alia unde pars inde in hiis Anglicis verbis sequitur videl Also this is the last Will and Testament of me the said Henry Clark for and concerning c. Et ulterius idem Serviens ad legem ex parte pred R. S. dedit in evident eisd Recognit quod c. Quorum pretextu idem jam Serviens ad legem exigit quod iidem Recogn Assisae pred Assisam pred de tenementis pred cum pertin ' in visu c. pro parte ipsorum R. S. triari comparere debeant c. Et veredictum suum dare debent quod pred W. Lark J. Hunt dictos R. S. de tenementis pred cum pertin ' in visu c. disseisiverant c. Et pred W. Lark J. H in propriis personis suis dic quod evidentiae allegationeâ— pred ex parte pred R. S. superius allegat minus sufficien in lege existunt ad manutenend Assisam pred ad quos ipsi necesse non habent nec per leg terrae tenentur respondere unde pro defectu sufficien evident in hac parte pet judicium quod juratores pred de veredicto suo in premissis dicend exonerentur c. Et quod pred R. N. S. ab Assisa sua pred habend precludantur c. Et pred R. S. dicunt quod ex quo ipsi sufficien materiam in manutentione Assisae pred in evident recognit pred ostend quam quidem materiam pred W. Lark J. Hunt non dedicunt nec ad eam aliqualit respond petunt judicium Et quod iidem Jurator inde exonerentur quod pred W. J. de Assisa illa convincantur c. Sup. quo dict est Recogn pred quod inquir quae dampna pred R. S. sustinuertam occasione disseisinae pred quam pro misis custagiis suis per ipsos circa sectam suam in hac parte apposit si conting judicium pro eisdem R. S. in placito pred sup evidentias pred reddi Qui quidem Recogn dicunt sup sacram suum quod si conting judicium in placito pred pro pred R. S. sup evidentias pred reddi iidem R. S. sustinuer dampna occasione disseisinae pred ad 13 s. 4 d. pro misis custagiis suis ad 20 s. Et quia Justitiarii hic se advisare volunt de sup premissis priuâ—quam judicium inde reddant dies datus est partibus predict c. Note several Exceptions were taken to the manner of giving the Evidence First for that the intire Will was not shewed but part and that this being the foundation of the Evidence the whole Will ought to have been shewed for there might be some oâ—her matter of substance as a Condition Limitation c. in the parts not shewed But all the Justices disallowed this Exception and said the party in any Title or Bar needs shew no more than what makes for him As in an Act of Parliament in which are divers branches 't is sufficient to shew that branch which serves ones purpose and not like the Case of a Fine or Recovery of 20 acres where I must shew the whole Record although I am concerned but in one acre because the Originial is intire and so is the Record grounded upon it See also Fulmerâ—ton and Stewards Case Plo. Com. 102. Another Exception was That the fine was not shewed under the Seal of the Court or the Great Seal but one part indented of the Chirograph was only shewn which the Jurors were not bound to believe because it wanted a Seal But all the Justices were against this and said the Jury might find the Fine of their own knowledge without the shewing of the parties or they might find it upon the Credit of any Witness that had seen it and the shewing the part indented is the usual evidence of a Fine Note a Fine indented and not exemplified under Seal c. shall not be delivered to the Jury 34 H. 6. 25. And they said because it is only the Inducement of the verity to the Jurors the party could not Demurr upon this for the effect of the matter is that therâ— is such a Fine which is amongst the Records And this is the substance of the matter and the part of the Chirograph is nothing but the Image of the verity and therefore suum coram Baronibus hic prestitum in premissis dicit quod c. here recite the Evidence Et pred Attorn Domini Regis pro eod Domino Rege dic quod evidentiae pred superius dat minus sufficien in lege existunt ad manutenend seu proband exit pred pro parte ipsius A. F. superius ad patriam junct unde ob insufficient earundem evident ac ex quo per evidentias illas non dedicitur forisfactura bonorum pred in informatione pred spec i em Attorn Domini Regis pro ipso Domino Rege petit judicium ac quod eadem bona remaneant Domino Regi forisfacta juxta formam statuti pred Et pred A. F. dic quod evidenciae pred superius ex parte ipsius A. F. dat
conclusion of a Verdict shall aid the Imperfections of it 400. For whom the Verdict shall be said to be found 401 402 403 404. 407 408. 501. Variance betwixt the Verdict and the Nar. 501 502 503. Verdict by defauit 504. Venire fac of this Cap. 3. per tot and Cap. 4. per tot To whom to be directed 38 c. what faults in it shall vitiat the Tryal 50 60 c. 129. De novo 54 55 56 57. By Proviso 62 63 64. Visne Cap. 8. per tot from what places ibid. The Venue shall follow the Issue 101. 113. 115. 120. 109. 121. De Corpore Com. 101 102. 124. from two Counties 116 117. 107. where the Writ is brought 117. 105. from the next adjoyning County 120. 127 128. where of Matters done beyond Sea 105. where the Land lyes 107. 122. 125 126. 128. from two places in one County 123. out of a wrong place by consent 129. Suburbs of a City 129. View 271. Use 223. Usury 243. W. WItnesses Tryals by them 16. 31. Who may be Witnesses who not 183. 185 186. 188. 243 2424. 247 48. One Witness sufficient 215. 233. Their Priviledges 186. Detained 187. Witnesses joyned with the Jury 233. A Witness is to have his Charges 246. Witnesses against the King 247. Wills 18. 215 216. Wager of Law 23. Wales 127. Warranty 367. 179. Way 219. Warren 220. FINIS Books Printed for and Sold by George Dawes at his Shop over against Lincolns-Inn Gate in Chancery-Lane THE History of the World in Five Books I. Intreating of the Beginning and first Ages of the same from the Creation unto Abraham II. Of the Times from the Birth of Abraham to the Destruction of the Temple of Solomon III. From the Destruction of Jerusalem to the Time of Philip of Macedon IV. From the Reign of Philip of Macedon to the Establishing of that Kingdom in the Race of Antigonus V. From the setled Rule of Alexander's Successors in the East until the Romans prevailing over all made Conquest of Asia and Macedon Written by Sir Walter Raleigh Knight with his Life and Tryal added to it in Folio Brief Animadversions on Amendments of and Additional Explanatory Records to the Fourth Part of the Institutes of the Laws of England concerning the Jurisdiction of Courts By William Pryn Esq in Folio A Book of Judgments in real personal and mixt Actions and upon the Statutes all or most of them upon Writs of Error collected out of the choice Manuscripts of Mr. Brownloe and Mr. Moyle sometimes Protonotaries of the Common Pleas as also of Mr. Smither formerly Secondary of the same Court. Perused transcribed corrected and tabled with Addition of Notes by George Townsend Esq second Protonotary of the Common Pleas Very useful and necessary for all Protonotaries Secondaries Students Clerks of Judgments Attorneys and all Practicers of Laws in Quarto Modus Intrandi Placita Generalia The Entring Clerks Introduction being a Collection of such Precedents of Declarations and other Pleadings which Process as well Mesne as Judicial as are generally used in every days practice with Notes and Observations thereupon Composed for the benefit of the Students of the Common Law of England as also of the Attorneys Entring Clerks and Sollicitors of the Courts of Common-Pleas and King's Bench acquainting them with Rudiments of Clerkship and such general Pleadings and Processes as are used at this day in the Courts of Records at Westminster By William Brown Gent. Author of Formulae bene Placitandi in large Octavo De Jure Maritimo Navali or a Treatise of Affairs and of Commerce in Three Books The Third Edition Corrected and inlarged with many useful Additions through the whole Book by Charles Molly Esq in large Octavo Jus Imaginis apud Anglos Or the Law of England relating to Nobrlity and Gentry faithfully collected and methodically digested for common benefit By John Brydal of Lincolns-Inn Esq in large Octavo Jura Coronae His Majestie 's Royal Rights and Prerogatives asserted against Papal Usurpations and all other Anti-Monarchical Attempts and Practices Collected out of the Body of the Municipal Laws of England in large Octavo Parsons Law or a View of Advowsons wherein is contained the Right of Patrons Ordinaries and Incumbents to Advowsons of Churches Collected by William Hughes of Greys-Inn Esq The third Edition reviewed and much enlarged by the Author in his life-time in large Octavo Mounsieur Scarron's Letters to Persons of greatest Eminency and Quality Rendred English by John Daves of Kidwelly in large Octavo Of the Office of the Clerk of the Market of Weights and Measures and of the Laws of Provision for Man and Beast for Bread Wine Beer Meal c. By William Shepard Esq in Octavo Hughes Quaeries or choice Cases for Moots containing several Points of Law not resolved in the Books being very useful for the Students of the Common Law Collected by William Hughes Esq late of the Honourable Society of Grayes-Inn in Twelves Decus Tutamen Or a Prospect of the Laws of England purposely framed for the Safeguard of the King's Majesty his Sacred Person Crown and Dignity against all traiterous Speeches Designs and Conspiracies To which are added peculiar Notes upon the Judgment in High Treason fit for all His Majestie 's Subjects and Leige-People to be acquainted withal By John Brydal of the Honourable Society of Lincolns-Inn Esq in Twelves There may be had several sorts of Blank Bonds very Vseful and Necessary for Attorneys and all other Persons relating to the Law SIngle Bonds for Payment of Money Double Bonds for Payment of Money Bonds for Performance of Covenants either Single or Double Single or Double Bonds for Arbitration with an Umpire Single or Double Bonds for Arbitration without an Umpire Single or Double Bonds to save Sureties harmless General Releases Letters of Attorney to Receive Money Warrants of Attorney to Confess Judgments Bail Bonds Single Bonds without Conditions Double Bonds without Conditions Sheriffs Warrants upon mean Process for any County or City Blank Warrants for a Justice of Peace Licenses for Ale-house Keepers Indentures Ruled and Text. And the best Ink for Records
that the very reading of the Law will make a man Master of any of those Sciences And since Rhetorick is Ars ornatè dicendi and consisteth of those two parts Elocution and Pronunciation How can we read in our Law-Books those Learned Arguments Elegant Speeches and Judgements pronounced with such Eloquence and Elegance of words and matter and not conclude that Rethorick is the Glory and Grace of a Lawyer Though some not gifted that way would perswade us that the Law hath little relation to it If any man be delighted in History let him read the Books of Law which are nothing else but Annals and Chronicles of things done and acted from year to year in which every Case presents you with a petite History and if variety of matter doth most delight the Reader doubtless the reading of those Cases which differ like mens faces though like the Stars in number is the most pleasant reading in the World I thought to have expatiated my self in this Eulogical Commendation of the Study of the Law But when I consider the Glory of the thing it self I think it but in vain to light the Sun with Candles and as no Arguments will perswade one to love against Nature so he whom the excellency of the Law it self cannot invite to study it will never be forced to it with the fist of Logick or other perswasion Wherefore 't is now time to expose my self to the Censure of the Reader who always judges according to his capacity or affection for which cause if I were to chuse my Reader I could wish with Caius Lucilius Quod ea quae scribo neque ab indoctissimis neque à doctissimis legi quod alteri nihil intelligerent alteri plus fortasse quà m ipse de se That this Treatise might not be read of the most Learned nor of those who are not learned at all because these understand nothing and the others more perhaps than my self However I put this Request to all Bracton l. 1. fol. 1. Vt si quid superfluum vel perperam positum in hoc opere intervenerit illud corrigant emendent vel Conniventibus oculis pertranseant Cum omnia habere in memoria in nullo peccare divinum sit potius quà m humanum That if any thing be superfluous and placed amiss in this Work That they will either correct and amend it or without carping connive at it since to remember to do all things right and nothing amiss is rather the part of a God than Man wherefore let him which never offended cast the first stone A Summary of the Contents of each Chapter in this Book CAP. I. THE Derivation of the word Jury The Definition Antiquity and Excellency of Juries by way of Preface p. 1 CAP. II. Of an Issue and the divers sorts of Tryals thereof and when a Tryal shall be by a Jury and when not when by the Spiritual Law When by Certificate when by Battail when by an Almanack c. What Issue shall be first Tryed per Pais what shall be tryed by the Court and what by examination of the Attorney Sheriff c. p. 7 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 When well awarded c. p. 35 CAP. IV. What faults in the Venire facias shall vitiate the Tryal what not when a Venire facias de novo shall be awarded when several Ven. fac When the Ven. fac shall be betwixt the Party and a stranger to the Issue Who may have a Venire facias by Proviso and when p. 50 CAP. V. Why the Venire facias runs to have the Jury appear at Westm though the Tryal be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs of the Justices of Nisi prius Of the Tales at Common Law and by Stat. when the Transcript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is nonsuited he may have a Distringas de novo p. 66 CAP. VI. Of the number of the Jurors and why the Sheriff returns 24. though the Venire facias mentions but 12. If he returns more or less no Error and of the number 12. And when the Tryal shall be per primer Jurors And of Inquests of Office And when to remain pro defect Jurator p. 83 CAP. VII Who may be Jurors who not who exempted and of their Quality and Sufficiency p. 90 CAP. VIII Concerning the Visne from what place the Jury shall come c. p. 98 CAP. IX Challenges p. 130 CAP. X. Of What things a Jury may inquire when of spiritual when of things done in another County or in another Kingdom when of Estopels and when not when of a mans intent c. p. 173 CAP. XI Evidence and Witnesses p. 181 CAP. XII The Juries Oath Why called Recognitors in an Assise and Jurors in a Jury Of the Tryal per medietatem linguae when to be prayed and when grantable Of a Tryal betwixt two Aliens by all English Of the Ven. fac per medietatem linguae and of Challenges to such Juries p. 351 CAP. XIII The Learning of general Verdicts especial Verdicts privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by Default Inquests of Office c. Arrest of judgement Variance betwixt the Nar and the Verdict c. ◠359 CAP. XIV How the Jury ought to demean themselves whilest they consider of their Verdict when they may eat and drink when not What misdemeanor of theirs will make the Verdict voyd Evidence given them when they are gone from the Barr spoyls their Verdict For what the Court may fine them and where the Justices may carry them in Carts till they agree of their Verdict An amercement affered by the Jury p. 416 CAP. XV. What punishment the Law hath provided for Jurors offending as taking reward to give their Verdict Of Embraceors Decies tantum Attaint Several fines on Jurors What Issues they forfeit and of Judgement for striking a Juror in Westmin c. p. 430 Precedents containing the Forms of Challenges to the Array c. And the Proceedings thereupon Pleas Puis le Darrein Continuance Demurrers upon the Evidence Bills of Exception c. And the Law concerning the same Very Useful for all Lawyers and other Attorneys Practisers especially at the Assizes A Form of Challenge to the Array p. 449 Challenge to the Array because the Sheriff is Cousin c. p. 450 A Challenge because the Sheriff is Tenant c. ibid. A Precedent of a Challenge for default of Hundredors which hath been several times made use of at the Assises p. 451 The form of a Challenge made by the Defendant because the Plaintiff is the Sheriffs Cousin p. 452 A Challenge to the Array because no Knight was returned upon the Jury p. 453 A Challenge against the
Sheriff for returning the Jury at the Instance request and denomination of the Plaintiff p. 454 A Challenge because that the Town is within a Hundred of which the Plaintiff is Lord and prays a Writ to the next Hundred p. 455 Challenge because the Sheriff and two Coroners are Tenants of the Plaintiff and a Venire facias awarded to the rest of the Corroners p. 456 Challenge where after the last Continuance the Cousin of the Plaintiff is made Sheriff after Issue joyned ibid. Challenge because the Sheriff is of Councel with the Plaintiff and hath received Fees and the Defendant doth deny the Challenge therefore the Venire facias awarded to the Sheriff notwithstanding p. 457 Challenge because the Plaintiff is Brother to the Sheriff p. 458 Challenge where the Plaintiff is Sheriff and one of the Coroners is his Tenant ibid. Another Challenge to the same purpose ibid. Challenge because the Wife of the Plaintiff is Kin to the Sheriffs Wife p. 459 Challenge because the Plaintiff is the Sheriffs Servant ibid. Challenge after the Jury Impannelled returned and called because the Prie in aid is Sheriff and of the Council of the Plaintiff and a Distringas Jur. with a decem Tales Coron awarded ibid. Challenge because the Plaintiff is one of the Sheriffs of London and the Venire facias awarded to the other Sheriff p. 460 Challenge to the Deputy Sheriff because he Impannelled and return'd the Jury at the instance and Denomination of the Plaintiff p. 461 Challenge by the Kings Serjeant upon an Indictment of Felony because the Sheriff returned the Jury of Life and Death at the Instance and request and denomination of the Prisoner ibid. Challenge by the Kings Serjeant for the King to some of the Jury for default of Freehold to the vallue of 40 s. per annum p. 462 A Precedent of Challenge to the Array p. 464 A Precedent of a Plea after the last Continuance p. 465 A Precedent of a Demurrer upon the Evidence p. 469 A Bill of Exception p. 470 A Release pleaded at the Assises after Issue joyned p. 475 The Death of one of the Defendants pleaded after the Last Continuance 475 A Baron Challenges the Pannel because no Knight was returned of the same p. ibid. Tryals per pais CAP. I. The Derivation of the Word Jury The Definition Antiquity and Excellency of Juries JUrie Jurata cometh of the French Vid. Cap. 12 Jurie word Jurer i. e. Jurare And signifieth in Law those 12 men who are sworn Judges in matters of fact evidenced by witnesses debated before them I call them Judges because as 't is the property of the Court Jus dicere so t is in the power of the Jury to determine the fact upon an Evidence Pro and Con According to those common Adagies Ad quaestionem Juris respondent Judices Ad quaestionem facti respondent Juratores And as the Judgment of the Court ought to be guided by the Law So Vid. cap. 15. is the Verdict of the Jury by the Evidence They of the Jury are called Juratores Jurors à Jurando as in ancient Laws Sacramentales à Sacramento praestando I need not here divide and shew the differences The Antiquity and excellency of Juries of Juries nor the several sorts they being so well known viz. The Grand Jury or great Inquest and petty Jury or Jury of Life and Death in Criminal causes and in Civil Causes the Assise Jury Inquest of Office By some called Inquest of Jury and Inquest of Office Something concerning each of these will incidently be spoken of in what follows As to the excellency of Juries it appears from their Antiquity Sr. Hen. Spelman verb. Inquestio says Tryal by Juries was used in England Normannis noâ—dâ—m ingressis Leg. Ed. Confess Ca. 38 postea inquisisset Justitia i. e. Justitiarus per Lagamannos i. e. legales homines per meliores homines de Burgo vel de Villa vel de Hundredo ubi mansisset Emptor c. For as to Tryal by 12 men though Mr. Daniel and Poyldor Virgil deny it to be older than the Conquest and the latter says there is no Religion in it but in the number yet he stands fairly Corrected by that Excellent and learned Antiquary Mr. Camden p. 1â—3 who says Whereas Polydor Virgil writeth that William the Conqueror first brought in the Tryal by 12. men there is nothing more untrue For it is most certain and apparent by the Laws of Etheldred that it was in use many years before c. And whereas Lamb. verb. Centuria says In singulis Centuriis Comitia sunto aâ—que liberae Conditionis viri duodeni atate superiores una cum praeposito Sacra tenentes jurento se adeo virum aliquem innocentem haud damnaturos sontemve absoluturos he referrs to the Laws of Etheldred cap. 4. cited by the learned Spelman verb. Jurata And to the same doth my Lord Coke referr Com. super Lit. 155. and Preface to his 3. and 8. Report And as to the Religion in the number of 12. my Lord Coke gives instances ubi suprà and Sir Henry Spelman in verb. Jurata suprà makes addition thereto So that I may truly say Tryals by Juries have been used in this Nation time out of mind and were contemporary and coeval with the first Civil Government thereof and Administration of Iustice for amongst the first Inhabitants the Britains the Free-holders were used in all Tryals And Tryal by Juries was as you see practised by the Saxons continued by the Normans and confirmed by Magna Charta And was ever so esteemed and prised in this Island that no Conquest no change of Government ever prevailed to alter it 'T is true Tryals by Juries before the time of H. 2. were not so frequent be-because Sadae or Purgationes Ordalia Tryals by hot Iron hot Water cold Water Duels and other Superstitious ways were then in use but Tryals by Juries were here in the Saxons time and were found here and not brought in by Williâ—m the Conqueror from Normandy Nay rather setled by Edw. the Confessor in Normandy where he a long time was and taught many Laws as you may see in the book of the Customs of Normandy Glanvil lib. 2. cap. 7. says Ex aequitate autem maxima prodita est legalis ista institâ—tio speaking of these Tryals in opposition to Duels c. Their general use being the only Tryers The use of Juries of Choses in fair almost in all Courts throughout England speaks them a publick good To be tryed by ones Peers is the greatest priviledge a Subject can wish for and so excellent is the constitution of the Government of this Kingdom that no Subâ—ect shall be tryed but by his Peers The Lords by their's The Commons by their s which is the Fortress and Bulwark of their Lives Liberties and Estates and if the good of the Subject be the good of the King as most certainly it is then those are enemies
the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their Latch 4. pleasure though by the opinion of Dodrige It is the best way to give Iudgment upon the Demurrer first because when the issue comes afterwards to be tryed the Jury may assess Damages damages for the whole A Scire facias was brought on a Recognisance in Chancery the Terre-tenants pleaded several Pleas the Plaintiff demurred to one and took issue on the other the Record was sent into B. R. to try the issue and it was tryed and Verdict pro Plaintiff the demurrer not being argued and it was adjudged per R. B. that Iudgment ought to be given on both by that Court Jeffreyson and Dâ—wson's Case Hill 21 22 Car. 2. B. R. vide for these things 1. Roll. abr 534 535. Roll. rep 287. and in the principal Case 4 Inst 80. was denied to be Law An Immaterial issue joyned which will Immaterial issue not bring the matter in question to be tryed is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader because this is matter of substance for if there were no issue there could be no Verdict and so it is as if nothing had béen done in the cause In an Action against two the one pleads Plea to the Writ 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 personal against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth only 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 personal Action the discharge of one is the discharge of both As for example if one of the Defendants Release in Trespass pleads a Release to himself which in Law extends to both and the other pleads not guilty which extends but Rolls tit Tryal 628. to himself or if one pleads a Plea which excuseth himself only 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 because the discharge of one is the discharge of both Discharge of one dischargeth both But in a Plea real 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 Brown and Stamford Iustices consulted with Grammarians in things of Grammar and Hulls a Batchelor of Law Tempore Hen. 6. was called into Court to shew the difference between precise and causative Compulsion Vide Plow 122. 127 128. Pasch 16 Car. 2. B. R. An action of Trover c. was brought de sex Capitalibus fibulatis Anglice 6 laced Coifs after Verdict for the Plaintist it was moved in Arrest of Iudgement that the Latine words were both Adjective and so not certain but it was answered that Capaital is a Substantive and the Nomenclator of Westminster School was produced to warrant it and it was adjudged for the Plaintiff accordingly and the Court allowed that authority before Rider's Dictionary 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 When well awarded c. HAving given you the Epitome of what Tryals are allowed by the Common Law and what shall be tryed per pais and what not we shall now apply our selves more particularly to the Tryal by Juries And because a Venire facias is the foundation and Causa sine qua non of a Jury I mean in Civil Causes for in Criminals as upon Indictments the Justices of Gaol Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriff without any process directed to him yet process may be made against the Jury 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 Praecipimus tibi Venire facias quod venire facias coram Just ciariis nostris de Banco apud Westm tali die duodecim liberos legales homines de vicinet de C. quoâ—um quilibet habeat quatuor libras terrae tenement vel reddit 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. patriae inter partes praedict de placito c. quia tam idem D. quam praedict 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 terms them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve free and lawful men of his County to resolve the question of the fact in dispute between 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 paâ—riam by the Plaintiff and issue joyned thereupon the Court awardeth the Venire faciâ—s vid Ideo fiat inde Jurat And if they come not at the day of the Writ returned then shall go forth against them an Habeas Corpora and Distringas to bring them in to try the matter The which two last Writs are usually made with this clause Nisi prius Justiciarii venerint c. and are returnable after the time of the Judges coming their Circuit And first you see it is directed Vicecomiti Sheriff i. e. to one who is Vicecomes 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. 3. scil That it appeareth by the
if it be alledged in a Ward in the City of Bristol c. the Venue shall be of the Ward not de Civitate A Venire facias was awarded from T. Ward and not de vicinet de T. and for this cause resolved to be ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the issue be Si rex concessit per literas De vicinet left out ill patentes The Tryal shall be as hath been said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed Where the Land lies it shall be tryed by the Record and therefore the issue being upon non concessit the issue is not upon the Patent but where the issue is upon non concessit or non dimisit of a thing which passeth by Deed the Tryal shall be where the Grant or Demise is alledged But of a Feoffment or Lease for life pleaded the issue being non Feoffavit or non dimisit Livery ought to be made and therefore the Tryal shall be where the Land lies Cro. 2. part 376. 3. part 259. Where the offence is laid in the Count Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is to be in one County and the Iustification in another County and the Plaintiff replies de injuria sua propria c. The Visne shall be where the Iustification is alledged As one Example for all to illustrate In an Action upon the Case for words supposed to be spoken at Bridg-North in the County of Salop the Defendant pleads that he spake them as a Witness upon his Oath upon an issue tryed at Chard in the County of Somerset The Plaintiff replies de son tort demesne c And thereupon it was tryed by a Venire facias of Bridg-North And Error thereof assigned because it ought to have been by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryal and not aided by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. Replevin taking 2 Horses at such a place in Denford in Com. Northampton the Defendant makes Conâ—sans as Bayliff to the Lord Mountague of his Mannor of S. which Mannor is holden of the Honour of Gloucester and that the place in which c. is within the said Honour and alledges a Custome within the said Honour on which Custome the parties were at issue and the Venire facias was from Denford the place of taking which was moved after Verdict for that the Venue was not so large as the issue which was the Honour and of this opinion was the whole Court of C. B. Pasch 13 Car. 2. Hull vers Bâ—nning But the great question was whence the Venue should arise in this Case and per Bridgman Ch. Just and Just Hide in no Case can a Venue arise from an Honour and Ch. Just said he had caused the Prothonotaries to search for Precedents and they Honours could not find that ever a Venue did arise from an Honour which is but a bundle of services and an incorporeal thing from which no Venue can come and yet an Honour may have demesns as the Honours of Grafton and Hampton have but Gloucester not Ch. Just and Just Hide seemed that the Venue should be de Corpore Comitat. Hob. 266. 249. But when the Court was after moved for their opinion they bad them take a Venire facias at their peril and would give no opinion An action of Debt was brought on a Bond to perform Covenants in an Indenture wherely the Defendant had granted to the Plaintiff a walk called shrob-walk in the Forest of in Com Northampton and Covenanted for peaceable in joyment c. and he was ousted per Earl of Northampton who had right on which Right issue was joyned and the Venire facias was from Shrob-walk Per Cur. It 's not good for it appears by the Record that Shrob-walk is not a Vill but if the Obligation had been laid to be made at Shrob-walk the Venue should arise from thence as a Vill. Inter. Stirt Bales Pasch 19 Car. 2. B. R. The Venue shall follow and be according Out of what County to the issue As for words in Warwick-shire Thou art a Vide â—ic ante postea Thief and stolest my Iron The Defendant justifies says the Plaintiff stole the Iron in Leicester-shire and brought it into Warwick-shire and therefore he spake the words in Warwick-shire If the Plaintiff replies de injuria sua propria absque tali causa the Jury shall come from Leicestershire to which the absque tali causa refers for the words are acknowledged See Rolls tit Tryal 598. 623. When part of the matter to be inquired of is in one County or place and part in another the Tryal shall be there where the best Conusans of the matter may be As in an action upon the Case the Plaintiff declares that the Defendant took the From the place best known Horse of A. at S. and sold him at D. to the Plaintiff as his proper Horse and afterwards A. retook the Horse If the Defendant plead that the property was in him at the sale upon which issue is ioyned The Venue shall be de S. where the taking is supposed for there the property may be best known which is only in question 42. Ass 8. see several cases in Rolls ib. 603. under this head If the issue be whether L. did ride from London to York and from York to London Where the Counties cannot joyn 5 times in six days this may be tryed by London only Although part of the matter to be inquired of was done in each County In an action of Battery in London if the Defendant justifies in defence of his possesâ—on in D. in Essex and the Plaintiff says de son tort demesn sâ—ns tiel cause this ought to be tryed by both Counties if they might joyn because he may be found guilty at another day and therefore because they may not joyn this may be tryed in Essex Of Assises in confinio Com. See 1 Inst 154. In case for words in one County if the Defendant justifie in another County and the Plaintiff reply de son tort demesn c. although the Counties ought to joyn if they could and the Iustification is principally put in issue yet the Tryal may be in either County at the Election of the Plaintiff In Ejectment in London upon a Lease Rolls tit Tryal 620. made there of Land in Mid. if the Defendant plead not guilty this may be tryed in London because the Counties cannot joyn although London cannot joyn with another County 49 E. 3. 20. the Jury ought to enquire of the Ejectment in Mid. and judgement affirmed in a Writ of Error See Rolls tit Tryal 602. Two Counties may
joyn although they be not nearest nay though 20 Counties be between them Finch French 59. 1 Inst 154. But if it be of a Lease at Ickford of Land in Bury in Suff. the Venue must be of Bury not of Ickford ib. 619 If the issue be taken upon the name or Where the Writ is brought condition of the person this shall be tryed in the County where the Writ is brought 21 E. 4. 8. for this may be well known there Rolls ib. 615. Where the issue is to be tryed upon a point which shall be tryed by two Counties and one cannot joyn with the other this shall be tryed where the Writ is brought 21 E. 4. 8. but for this see before where the Counties cannot joyn In Debt in London against I. S. of D. in Where in other County than where the writ is brought Essex if the Defendant saith that he was at S. in Essex at the time of purchasing the Writ and not at D. this shall be tryed in Essex and not where the Writ is brought for none can know where he dwelt so well as the County of Essex 12 H. 6. 5. Vide many cases in Rolls ib. 605. c. about this matter In an Action of the Case against a Sheriff upon an escape in London and the Arrest laid Where the escape was and not where the Arrest was to be in Southampton adjudged that the Visne shall be where the escape was because that is the ground of the Action and not where the Arrest was Cro. 3. part 271. In Debt upon an Obligation payment was pleaded apud domum mansionalem Rectoriae de Much-Hadam and the Venire facias was de vicineto de Much-Hadham where it ought to have been de vicinet Rectoriae de Much-Hadam but it was adjudged good because Much-hadam is here intended a Vill. ib. 804. So you see that where a thing is alledged to be done at the Capital House * Rectoriae of D. there the Venire shall be of D. For that is intended to be all one with the Vill. Castle But where it is at the Castle of Hertford c. there the Venire facias shall not be de Rolls tit Tryal 621. vicineto de Hertford but de Castro de Hertford for Castrum Hertford is intended a distinct place by it self and so of all Castles Cro. 2. part 239. More 862. A Venire facias may be awarded of a Castle Rolls 618. Where the issue is not parcel of the Mannor Mannor of D. or the Custom of a Mannor is in question the Venire ought to be of the Mannor Hob. 284. Cro. 2. part 327. If the Mannor be laid to be in a Vill the Venire facias Rolls tit Tryal 621. may be of the Mannor in the Vill as de vicineto maneâ—ii de Stansted-Hall in Windham Cro. 2. part 405. More 851. Arundels Case li. 6. 14. The Venue cannot be of a scite of a Mannor Rolls tit Tryal 618. In the Common Bench in Trespass for taking away a Bag of Pepper the Defendant justified as Servant of the Mayor and Commonalty of London for Wharfage due to them by the Custome of London which the Plaintiff refused to pay The Plaintiff replyed that the Custome did not extend to him London because he was a Free-man of the City and ought not to pay Wharfage to which the Defendant re-joyned that the Custom extended to him as well as to strangers upon which issue was joyned Resolved 1. That the issue should be tryed Reâ—order per Pais not by the mouth of the Recorder because he certifies nothing but what the Mayor and Aldermen direct who are concerned in the cause 2. That the Venire facias should not be awarded to the Sheriffs of London nor Middlesex because the Tryals there are by Free-men But it shall be to the County Where the Tryal shall be by the County next adjoyning next adjoyning viz. to the Sheriff of Surry So where any City is concerned the Venire facias shall not be directed to the Officers of the City but to the County next adjoyning Hob. 85. Stiles 137. More 871. vide hic cap. 2. If the issue concern the Mayor and Commonalty of a Town the Array shall be made all of Foreigners 31. Assise 19. vide Rolls tit Tryal 597. So if the issue concern the Mayor and Commonalty c. although they are not parties yet the Venire facias shall be directed to the Sheriff of the next County 15 E. 4. 18. Where a man lends a Horse to another Where a man lends his horse in one place and he is spoiled in another Visne where he is spoiled to till his Land and the Horse dies with excessive Labour the Visne shall be from the place where the excessive labour was and not where the delivery was More 887. vide Hob. 188. Rolls tit Tryal 615. pasch 22 Car. 2. B. R. Horsley versus Potter An action of the case was brought for misusing an Horse in Itinere the Contract was laid at Swafham in Norf. and the riding to Peterborough in Northampton-shire where the Horse died it was tryed in Norf. and the Court seemed that it ought to have been tryed in Northampton-shire where the damage was done and not where the contract was made but it was aided by the Stat. of Jeofailes 17 Car. 2. cap. 17. after Verdict that Statute being then in force Where a promise is laid in one place and Promise in one place and breach in another Visne guided by the issue the breach in another the Visne must be according to the event of the issue whether it be taken upon the promise or breach But if no place be alledged for the breach and issue be taken upon it the Visne must be from the place of the promise which shall be intended right where the contrary appears not see Godbolt 274. Easter 39 Eliz. In the Kings Bench Trespass Assault and Battery en Wilts continuing the Assault in Middlesex and adjudged that the Jurors shall come out of both Counties More 538. The name of a Mannor or Land or Misnomer other local thing shall be tryed where it lies because it is local but the name or addition of a person shall be tryed where the Action is brought because this is transitory Bro. tit Visne 7. lib. 6. 65. In Covenant upon an Indenture of Demise of the Rectory of Stoken Church in the County of Oxford That the Defendant Where the Land lies had good Power and Authority to demise The Indenture was alledged to be made at London and the Venire facias was awarded to the Sheriff of Oxon and this being assigned for Error Iudgement was affirmed and this adjudged to be good More 710. because the Rectory was in Com. Oxon. vide pag. 45. In Debt upon an Obligation in one Where the Land lies and not where the Writ c. County to perform Covenants in a Lease and the Land
number of 3 Juries but in Petite Treason murder or Felony the number is reduced to 20. The prisoner may challenge any that are Witnesses against him Where the King is party the Defendant must shew the cause of his challenge instantly After a challenge for cause the prisoner may challenge the same person peremptorily CAP. X. Of what things a Jury may inquire when of spiritual when of things done in another County or in another Kingdom when of Estopples and when not when of a mans intent c. THe next words in the Writ which See more of this matter cap. 13. have not yet been taken notice of are these per quos rei veritas melius sciri poterit and this is the chief end of their meeting together No Court can give a right Iudgement Ex facto Jus oritur unless the truth of the fact be certainly known and to find out this truth no way is like to this of Juries for they do not only 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 than any others For vicinus facta vicini praesumitur scire But lest this presumption should fail the Law allows 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 Inquest may inquire of and find Wherefore though it be true that a Jury shall not be charged nor meddle with Of the Law a matter of Law and if they do and find 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 general Verdict though to find the special matter is the safest way for them because if they mistake the Law they run into the danger of an Attaint In the Case of Manby and Scott adj Trin. 13 Car. 2. B. R. one question was if the Verdict was well found in an action of the case against the Husband for Wares bought by the Wife the Verdict finding that the Wares were necessaries and according to her degree whereas as was objected they ought to have found the degree of the party and the value of the Wares and left it to the Court to judge But it was answered and resolved that the Court i. e. the Judge before whom 't is tryed informs the Jury of the matter of Law and accordingly they find and so it belongs not to this Court Broughton a Reader of the Temple brought a Bill by Quo minus in the Chequer against Prince for maintaining a suit against the Stat. c. Prince pleads that he was admitted in the Inner Temple and student for many years there that he was Consiliarius in Lege eruditus and took his Fee in that cause B. replied de Injuriâ suâ propriâ absque hoc quod in lege eruditus c. hoc petit c. deus defendit similiter It was moved that the Defendant should demurr to the Replication Atkinson excepted to the Traverse and Conclusion for it can't be tryed by a Jury for says he if matter in Law be to be tryed by the Judges à fortiori the learning of the Law ought to be tryed by them Per Manwood Ch. Baron It shall be tryed by the Country 3 Leo. 237. Broughton vers Prince which case is cited 3 Cro. 728. to be otherwise ruled yet it was allowed there a good issue whether a Parson of a Parish could speak Welch Hut 20 21. Whether a plaint was levied according to the Custom was tryed by a Jury who are directed by the Court as to the plaint and whether it were pursuant to the Custom and are to find according to such directions In many cases the Jury are to inquire Of a mans intent of the knowledge and intent of a man as where the Nar. is that the Defendant kept a Dog which killed the Plaintiffs Sheep sâ—iens canem suum ad mordendos oves consuetum though sciens be not traversable yet the Jury upon Evidence must inquire of it lib. 4. 18. In some cases a Jury may try and find a spiritual thing as a Divorce Matrimony Of spiritual things c. and must take notice thereof upon pain of Attaint li. 4. 29. lib. 9. lib. 7. 43. vide hic cap. 2. The Jurors of one County may find any transitory thing done in another County Nay In Trespass Quare Clausum fregit in the County of D. where the Trespass was committed in the County of S. upon Not guilty if the Jury find the Defendant guilty in the County of S. their Verdict is void But if they find him Guilty generally an Attaint lyeth Finch 400. Because this Trespass is local and what is local cannot be inqured of by men of another County for they can have no conusans of it some times they must find local things in another County as if the Heir pleads riens per discent and the Plaintiff replies Assets in a Parish and Ward within London the Jury may find Assets in any County in the same case against an Executor who pleads plene administravit the Jury may likewise find Assets in any part of the world And the Reason is because the place is only named for necessity of tryal But where Of things done in another County or Country Vide cap. 8. 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 breach the Jury ought to come from the place of the breach But if I promise in London to do a thing at Burdeaux in France and issue upon the breach yet this shall be tryed in London for necessity because otherwise it would want tryal 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 Rolls tit Tryal fol. 571. 624. beyond Sea this wants tryal in our Law lib. 6. 47. li. 7. 23 26 27. In the Case of Drake and Beere Trin. 15 Car. 2. B. R. this difference was agreed by the Court viz. That a Jury in an Inferiour Court may inquire of things out of the Iurisdiction if they be but for encrease of Damages as is 1 Cro. 571. Ireland vers Blackwell but if they inquire of any thing issuable out of that Iurisdiction it is nought 1 Cro. 101. 2 Cro. 503. Error was brought to reverse a Iudgement given in the Palace Court in Indebitat for that the Defendant was indebtted to the Plaintiff Infrà Jurisdictionem for Nursing of a Child not saying the Nursing was Infra Jurisdictionem 〈◊〉 Windam Just held it
eadem c. The Plaintiff replies de injuriâ suâ propriâ c. The evidence was that the Plaintiff as Lady of the Mannor took the Horse as an Estray and it was Cryed and Marked c. that the Defendants refused to pay for the meat and took him away before the year and a day was out 1. Per Wadh. Wyndham Just d'assize A Lord may detain an Estray for meat yet no Trespass lies if the owner takes him but an action of the Case lies for the meat 2. If the action had been brought against the servant only he must justifie c. But being brought against Master and Servant this joynt-justification is good Cambr. Summer Assises 1667. Lady Hatton against Cotes and al. In Trespass the evidence for the Defendant was that the Defendant had a Barn and purschased a way over the Plaintiffs Land to that Barn after the Defendant bought other Lands lying contiguous to that Barn on the one side and to a Haven on the other side and carried Carriages by that way to the Barn and through it over his own new purchased Land to the Haven Per Hale Ch. Baron If I purchase a general way to such a place I may go from thence on my own ground whither I please though I purchase the ground after the way purchased Summer Assises Norf. 1665. Heynsworth vers Bird. Trespass was brought against many by a School-mistress for taking away a child her Scholar with a Scarfe of the Mistresses per Keeling Ch. Just In Trespass for taking things all are principals that are present and consenting Contra in taking persons and this action lies not by the Mistress for the child but for the Scarfe only Lent Norf. Ass 1663. Mary Coopers case Trespass lies for Lessee in Ejectment on a fictitious Lease to recover mean profits during the continuance of that Lease mentioned on Record And the Recovery shall maintain it Otherwise if brought by the Lessor for he is no party to the action Trespass lies not for pulling down a Pew in a Church fastned to a pillar with a Chain Contra had it been fixed by nails driven into the pillar per Glyn Ch. Just Trevors case Trespass quare fregit liberam Warrenam suam and took his Conies In evidence it appeared that the Plaintiff had liberty of chase in the place which though it includes Warren yet a general Trespass lies not but an action of the case E. of Arundels case Pasch 1658. B. R. Per Earl Sergeant if Beasts be impounded and the Key lost the Officer by Replevin may break the pound and deliver the Cattle per Stat. Marlebridge 52 H. 3. 21. Tenants in Common must joyn in Trespass done against them so Avowry Lead and Lamsteads case 7 Car. B. R. cited by Finch in Argument Or Tenant in Common surviving shall have Trespass In Trespass the Defendant sets forth a conditional Feoffment for payment of money at such a day and place and that he paid it accordingly issue joyned on the payment at the day and place evidence of payment before the day is not good Contra had the special matter been pleaded with acceptance More 47. In Trespass with Continuando to recover mean profits an Entry and possession of the Land before the Trespass must be proved and also another Entry after the Trespass In Trespass the Defendant prescribes to dig in the Common for Clay to repair antient houses holden of that Mannor and good Berney vers Stafford Norf. Lent Assises 1667. In Trespass they were at issue on Not Guilty and at the Assises the Defendant left his former plea and pleaded an accord with satisfaction the Iudge would have had it replied to and tryed presently but the Councel refused whereupon the Jury was sworn and the Plaintiff nonsuited Bedford Assises Lent 1667. Green vers Reynolds But this was contrary to the opinion of Sir Orlando Bridgeman at the same Assises and Contr. to 10 H. 7. 21. and 1 Bul. 92. Trespass lies by Recoveror in Erroneous Iudgement for a mean Trespass because the Plaintiff in Writ of Error recovers all mean profits and the Law by fiction of relation will not make a wrong doer dispunishable 13. rep Co. 22. but Contra where Act of Parliament restores c. Trespass for assault and wounding in Suff. the Defendant as to vi armis non Cul. As to the other justification of molliter Manus c. in Norf. and several Tryals Per Hale Ch. Baron Suff. Ass Summer 1668. the vi armis can't be tryed till the other be tryed Contr. If the first issue of non Cul. was as to the wounding and by him evidence of Livery of seisin generally shall be intended for life only The Hogs of B. were put into the yard of A. and broke into the Land of C. and did Trespass action lies against A. though the servant of B. did look to them and serve them by which the owner had the special possession of them So if Agisted Cattle do Trespass the Agistor shall answer Dawtry vers Huggins Clayton 33. per Barkley 11 Car. York A. by Indent of uses raised an Estate to B. in Fee who regrants Turbary to A. by another Deed and after A. levies a fine to confirm the Estate and uses abovesaid declared this doth not touch the Turbary per Vernon 11 Car. York Clayton 42. Any one imployed by an Officer is an Officer within 7 Jac. 5. to plead general issue and give the special matter in evidence Clayton 54. Prescription to tether Equos Boves upon such a balk c. Mares and Cowes good evidence within that prescription Per Barkley Clayton 54. Per Hale A Corporation may bargain and sell though it has been thought an use upon use they being seised to the use of their house But I think it rather a trust than an use If a Just of P. send his Warrant to I. S. who is no Officer to bring one before him if I. S. be no Officer he is not bound to execute it yet if he does execute it it 's good and he may execute it in any part of the County And so a Constable of one Town may execute a Warrant in any other Town in the same County and any such Warrant is as large as the Justices Commission is per Hale Norf. Summer Assises 1668. Wrongries case In Trespass against one for Gleaning on his ground per Hale Norf. Sum. Assises 1668. The Law gives licence to the poor to glean c. by the general Custom of England but the licence must be pleaded specially and can't be given in evidence on non Cul. Trover The Citizens of London gave in evidence their Custom to take Toll Jones 240. In Trover for an Horse proved of 15 l. value the Jury gave but 3 l. damages upon mistake they thinking that the Plaintiff had his Horse again Per Wadh. Wyndham if the Jury had not been gone they should have mended their Verdict but a new action of
a Witness to prove the delivery of the money to the Servant before the Robbery Rolls tit Tryal 686. A thing which is concluded in the Ecclesiastical Proceedings in Ecclesiastical Courts Court concerning Lands is not to be given in evidence to Juries for the Courts of Common Law are not to be guided by their proceedings Mich. 22 Car. B. R. Matter in Law is not to be given in Matter in Law evidence for the Jury are only to try matters of fact An ancient writing that is proved to Ancient Writings have been found amongst Deeds and evidences of Land may be given in evidence although the executing of it cannot be proved for 't is hard to prove ancient things and finding them in such a place by presumption they were honestly and fairly obtained and preserved for use and are free from suspicion of dishonesty 24 Car. B. R. A writing or answer permitted to be read Totum pars in part may be read in toto A Copy of part of a Record cannot be Copy of Records given in evidence unless 't is proved that the part shewed in evidence is all concerning the matter in question A transcript of a Record or Enrollment Transcript Enrollment of a Deed may be given in evidence for they are things to be credited being made by Officers of trust The Council of that party who doth begin Council to maintain the issue whether of Plaintiff or Defendant ought to conclude A Juror who is a Witness must be Juror also sworn in open Court to give evidence if he be called for a Witness for the Court and Council are to hear the evidence as well as the Jury The Jury may carry from the Bar an Exemplification exemplification under the Great Seal of Depositions in Chancery but if they are not exemplified the Jury can only look upon them at the Bar but not have them with them out of Court If one produce a Lease made upon an Lease upon an Outlawry Outlawry to prove a title he must also produce the Outlawry it self but if it be to prove other matter he needs not shew the Outlawry And so it is of an Extent without shewing the Statute or Iudgement on which the Extent is grounded By Rolls an Office found after the Office death of a Tenant in Capite of Lands in another County may be given in evidence to try the title of those Lands if there was a special Livery granted unto the Heir If a Witness be Bayl upon motion the Court will give leave to alter the Bayl. Bail Stiles 385. Debt for 10 l. against a Witness upon the Statute 5 Eliz. doth not lie unless Charges the Witness hath his charges and he is not bound to come without his Charges first paid but if he accepts of 12 d. and a promise for the rest at the tryal he is bound and an action lieth against him if he doth not come Cro. 1 part 522. 540. Goodwin against West A Counsellor may be examined as a Counsellor Witness against his Client so far as it is of his own knowledge not what his Client reveals to him and he knows only by his Clients information In Criminal causes against the King Criminal causes Witnesses may be sworn unless the Crime be Capital Tenant at Will of part of the Lands Tenant at Will was admitted to prove Livery of seisin and the execution of a Feoffment under which he held Bulst 1 part 202. If one be attainted of Felony and pardoned Attainted of Felony he shall not afterwards be sworn of a Jury for Poena mori potest culpa perennis erit and therefore is not fit to serve on the Inquest nor yet to be an indifferent Witness and two such persons proving a suggestion were rejected and the prohibition disallowed Brown against Crasham Bulst 2 part 154. In Trespass with a simul cum if nothing Simul cum be proved against them in the simul cum they may be examined as Witnesses Stiles Reports 401. CAP. XII The Juries Oath why called Recognitors in an Assise and Jurors in a Jury of the Tryal per medietatem linguae when to be prayed and when grantable Of a tryal betwixt two Aliens by all English Of the Venire facias per medietatem linguae and of Challenges to such Juries THe Iury having heard their Evidence Assise Enquest and Proof are taken for the word Jury Vide 28 E. 3. 13. let them now consider of their Verdict But first they must remember their Oath which in effect is To find according to their Evidence and therefore they should have had it before the Evidence but that the form and order of the Venire facias which I have tyed my self to follow leads me to it after their Evidence in these words Ad faciend quandam Juratam I have already shewed the derivation of this word Jurata See Chap. 1. and what is the legal acceptation of it only observe with our great Master Littleton That the word Assize is sometimes taken 1 Inst 154. for a Jury so as the Learned Commentator doth well paraphrase That the word Assise is Nomen Aequivocum Aequivocans because Assiza for Jurata sometime it signifieth a Jury sometime the Writ of Assise and sometime an Ordinance or Statute But Jurata is Nomen Aequivocum Aequivocatum because we always understand that woâ—d according to the aforesaid definition to be a Iury of twelve men so called by reason of the Oath they take The Juries Oath Truly to try the Suit of Nifi prius between party and party according to their Evâ—dence And as in an Assise the Jurors are called Why called Recognitors in an Assise and Jurors in a Jury Recognitors from these words in the Writ of Assise sacere Recognitionem so upon a Nisi prius they are called Juratores from these words in the Venire facias Ad faciend quandam Juratam In ancient time the Jury as well in Common 12 Knights Pleas as in Pleas of the Crown were 12 Knights as appears by Glanvâ—l lib. 2. cap. 14. and Bracton fol. 116. The next words of the Venire facias are Inter partes prâ—dictas In the fourth Chapter I have instanced That in some Cases a Iury shall be awarded betwixt the party and a stranger to the Writ and Issue I will now shew what the Iury shall be when one of the parties is an Alien the other a Denizen and when both parties to the Issue are Aliens This Tryal is called in Latine Triatio Jury per medietatem linguae bâ—linguis or per medietatem linguae And this Tryal by the Common Law was wont to be obtained of the King by his Grant made to any Company of strangers as to the Company of Lumbards or Almaignes or to any other Company that when any of them was impleaded the moyety of the Inquest should be of their own tongue
was intended for damages and how much for costs so that there may be more damages than the Plaintiff declared for or less and so the Court knows not how to increase the cost wherefore he shall have Iudgment but for 20 marks by reason of the incertainty Where a special Verdict is not entred according Verdict amended by the Notes to the Notes the Record may be amended and made agrée with the Notes at any time though it be 3 or 4 c. Terms after it is entred lib. 4. 52. lib. 8. 162. Cro. 1 part 145. In the Case of Turnor and Thalgate Mich. 1658. B. R. It was said per Cur ' That special Verdicts may be amended by the Notes but the Notes cannot be amended or inlarged by any Averment or Affidavit for that were to fâ—â—d a Verdict by the Court. Yet in that Case where the Notes were that the Iudgment c. was vacated pro ut per Rule the Verdict was amended vacated per Cur ' pro ut per Rule for so is implied in the Notes See a Verdict amended by the Notes after Iudgment and Error brought Rolls 1 part Reports 82. If the matter and substance of the Issue Form Hob. 54. be found it is sufficient for precise forms are not required by Law in special Verdicts which are the finding of Lay-men as in Pleadings which are made by men learned in the Law and therefore intendment in many Cases shall help a special Verdict as much as a Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury find generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they find that he was made Deputy by Déed because it doth tantamount lib. 9. 51. And in the 5th Report Goodale's 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. In all Cases where the Iury find the matter Ill conclusion committed to their charge at large and over more conclude against Law the Verdict is good and the conclusion ill li. 4 42. and More 105. 269. the Iudges of the Law will give â—udgment upon the special 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. Vide Devant Where the Declaration in Trespass is As general as the Narr Cum aliquibus averiis of a number uncertain and the Verdict is as general as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione firme 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 nomina 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 For when the Quoad Residuum incertain Iury find 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 find quoad residuum tne 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 1â—3 Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10 Acres and Quoad Residuum not guilty Quoad Resisiduum 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 upon Circumstances an Evidence given to incite them to find 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 may find Circumstances and presumptions upon which the Court ought to judge As to find that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that More 192. the Husband assented to the devise at first Where a Verdict is certainly given at the Postea amended how Tryal and uncertainly returned by the Clerk of the Assizes c. The Postea may be amended upon the Iudges certifying the truth how the Verdict was given Cro. 1. pâ—rt 338. In many Cases a Verdict may make an ill Ill Plea made good by Verdict Plea or Issue good As in an Action for words Thou wast perjured and hast much to answer for it before God Exception after Verdict for the Plaintiff in arrest of Iudgment For that it is not laid in the Declaration that he spake the words in auditu complurimorum or of any one according to the usual form sed non allocatur for being found by the Verdict that he spake them it is not material although he doth not say in auditu plurimorum whereupon it was adjudged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place of payment was alledged yet the payment 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 Baron Feme de clauso fracto of the Barons which ought not to be But for the Battery of the feme they may joyn whereto all the Court agréed 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. Trespass 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 batâ—ery of the feme and the Writ abated for the residue And of that Opinion was Lea Chief Justice and Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Palmer's Reports 338. Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife brought an Action of Trespass and Assault in the Exchequer Rochel and his Wife against Steel Hill 1659. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but found 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 The Iury may find any thing that may be Of what a Verdict may be given in Evidence to them as Records either Patent Statute or Iudgment Things Plo. Com 411. done in another County or Country for which sée Evidence before Hob. 227. And of those things they ought to have Conusance they are to have Conusance also of all Incidents and dependants thereupon for an Incident is a thing necessarily depending Incidents upon another Co. Littleton 227. b. If the Verdict may by any ways be construed How construed good a construction to destroy it ought not to be made If one of the Iury be Outlawed when the Verdict is found the Verdict is not good but Outlaw may be reversed by Error In a special Verdict the case in Fact must be found clear to a Common intent without Equivocation Vaughan's Reports 78. If the Iury collect the Contents of a Contents of a Deed. Deed and also find the Déed in haec verba the Court is not to Iudge upon their Collection but upon the Déed it self The Iury may find the Contents of a Déed or Will proved by Witnesses Ibidem Trespass for disturbing him of his Common Common belonging to 100 Acres and the Iury find Common for 50. this is for the Plaintiff otherwise upon an Avoury or Quod permittat which are founded upon the right but the Trespass is for Damages Palmer's Rep. 289. If the matter and substance of the Issue The Verdict may be against the Letters of the Issue so the substance is found 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 mind for Tythes of Lambs And thereupon Issue joyned And the Iury found that before twenty years then last past there was such a prescription and that for these twenty Prescription 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 general 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 custom But it was adjudged for the Plaintiff for albeit the modus decimandi had not been paid by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assiise of Darrein Presentment if the Avoydance Plaintiff alledge the avoydance of the Church by privation and the Jury find the voydance by death the Plaintiff shall have Iudgment 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 Hospital bring an Assise against the Ordinary he pleadeth that Deprivation 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 judgment for the deprivation is the substance of the matter Ib. The Lessee 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 Lessee cut down 10 Trees the Lessor bringeth an Action Breach of 20 Trees cut down for 10. of Debt upon the Bond and assigneth a breach that the Lessée cut down 20 Trées whereupon Issue is joyned and the Jury find that the Lessée cut down ten Iudgment shall be given for the Plaintiff for sufficient matter of Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminal 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 yet the Jury may find the Defendant Indictment of Murder and Verdict finds Manslaughter guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and mâ—lice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma are Modo forma not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not find the precise Issue As if a man bring a Writ of Entry in câ—su proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the Alienation made in Fee 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 term 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 and Tenant and the Tenant hold of the Lord by fealty only and the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespass against his Lord for his Cattel so taken Trespass by the Tenant against the Lord. and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behind he came to distrain c. And demand Iudgment 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 Vâ—rdict that he holdeth of him by fealty only in this case the Writ shall abate and yet he doth 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 Writ of Trespass Quare vi armis c. doth not lye against the Lord but shall
morning in open Court they may either affirm or alter their privy Verdict Where there can be no privy Verdict and that which is given in Court shall stand But in Criminal cases of life or member the Jury can give no privy Verdict but they must give it openly in Court Neither can a Jury sworn and charged in Where the Jury cannot be discharged before Verdict The King cannot be nonsuit case of life or member be discharged by the Court or any other but they ought to give a Verdâ—ct And the King cannot be non-suit for he is in Iudgment of Law ever present in Court but a common person may be nonsuit And in Civil Actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. But this is against Common practice and I have known that after a Iury of Life and Death have been sworn and charg'd with Prisoners Arraigned the Iudge having béen credibly Informed That it was a Iury pack'd to favour some Prisoner has discharged that Iury and made the Sheriff return another presently In Hillary Term 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 agreed 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. And the Plaintiff had Iudgment upon the Jurors fined Verdict Dyer 37. And Dyer 218. At the Nisi prius the Jury after their charge given returned and said That they were all agréed except one who had eat a Pear and drunk a draught of Ale Jurors at the Nisi prius fined in bank for eating Pears and drinking Ale for which he would not agrée 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 Iurors being retired into a House for to Fined for having Figgs and Pippins about them consider of their Evidence they remained there a long time without concluding any thing and the Officers of the Court who attended them seeing 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 three 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 sine 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. The Fined for eating Raisins and Dates 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 as well before as after they were agreed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King In Ejectione firme it was found for the 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 Defendant three of the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff until they were searched and the Sweet-meats found and then did agree with the other nine and gave Verdict for the Defendant It was the Opinion of the Iustices That whether they eat or not they were finable for having of the Sweet-meaâ—s with them for that is a very great misdemeanor Godbold 353. 40 Assise Placito 11. The Iustices said Jurors carted 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 Barr to confer of their Verdict and one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gon 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 misâ—emeanor 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. Trin. 1653. between Wells and Tayler Copies of a Bill Answer and Depositions were proved but not all read and delivered to the Iury who carried them with them from the Barr in a bundle which they layd by them and did not look on yet their Verdict at the Barr was set aside for this Cause and the Court would not regard their saying that they did not read them for they might say that to save themselves it being a fault to take any thing without the Courts knowledge If one of the parties say to the Iury after they are gone from the Barr You are weak If a party speak to them men it is as clear of my side as the Nose in a man's face This is new Evidence for his affirmation may much perswade the Iury and therefore shall quash the Verdict So if any thing be read to them which they ought not to have with theâ— as a book of Depositions some whereof were read in Evidence Pratt's Case 21 Jac. The Plaintiff delivered an Escrowle to a Escrowle delivered to a Juror before he was sworn Vitiates the Verdict Iuror impanelled 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
punishment is to this end Ut poena ad paucos metus ad omnes perveniat for there is Misericordia puniens and there is Crudelitaâ—parcens And séeing all Tryals of real 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 at his Election either bring his Writ of Attaint at the Common-Law or upon that Statute Wherefore let the Juror expect the greatest punishment when he offends 3 Inst 163. 222. And so I conclude as to the Iuror only with the words of Fortescue Quis tunc etsi immemor salutis animae suae fuerit non formidine tantae poenae verecundia tantae infamiae veritatem non diceret 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 But as to our Practicer I would give this one further Advertisement which relates also to Iurors When a Verdict has been given by a former Iury in the same Cause and on the same Evidence it is allowed to give the former Verdict in Evidence and I have known this Introduced by the Counsel as obliging to the latter Iury to find accordingly intimating that otherwise they do in effect perjure the former 12 men which may amuse render minds and draw them from the strict Inquiry into the Merits of the Cause in favour of their Predecessors which is a palpable mistake and misinformation for these Reasons 1. The same Evidence in the former Cause and Tryal perhaps was not so perspicuously delivered as in this 2. This latter Iury may be of more sagacicus and Comprehensive Iudgment than the former 3. The Directions of the Court which the Iury most héed may be more clearly delivered to this Iury. 4. The Matter in Contest perhaps was not in the former Tryal so clearly manag'd by the Counsel being not so well instructed as afterwards 5. And laâ—â—ly supposing the Evidence equally deliuered by the Witnesses apprehended by the Iury directed by the Court manag'd by the Counsel yet it 's no perjury or fault to differ in Iudgment for if 24 Iurymen were to try a Matter of Fact and 12 were of one Opinion and 12 of another who is in fault while they Iudge according to the best of their Knowledge and Skill to which only they are sworn And it 's a reasonable kindness to Iury-men to make good Construction of differing Iudgments among them while we sée how oft Iudges themselves differ in their Opinions on a matter stated equally to them all and that not only as to matter of Law but as to matter of Fact as attending Practicers may observe in Tryals at Earr in the several Iudges several Directions And this I thought good to advertise for that I have known Verdicts gained on this unwarrantable Suggestion against clear and express Evidence and could instance some Cases Sed verbum sat c. As to the difference betwixt the Judge and the Jury and that Question which has made such a noise viz. Whether a Jury is fineable for going against their Evidence in Court or the Direction of the Judge I look upon that Question as dead and buried since Bushel's Case in my Lord Vaughan's Reports yet some of the Ashes thereof I may sprinkle here without offence It doth appear there to have béen resolveâ— by all the Iudges upon a full Conference at Serjeants-Inn That a Jury is not fineable for going against their Evidence where an Attaint lyes And that it is Evident by several Resolutions of all the Iudges That where an Attaint lyes the Iudge cannot fine the Iury for going against their Evidence or Direction of the Court without other Misdemeanour And where an Attaint doth not lye as in Criminal Causes upon Indictments c. My Lord Vaughan says these words That the Court could not Fine a Jury at the Common Law where Attaint did not lye I think to be the clearest Position that ever I considered either for Authority or Reason of Law And one reason for this which can never be answered is The Iudge cannot fully know upon what Evidence the Iury give their Verdict for they may have other Evidence than what is shew'd in Court They are of the Vicinage the Judge is a Stranger they may have Evidence from their own personal knowledge that the Witnesses speak false which the Iudge knows not of they may know the Witnesses to be stigmatised and infamous which may be unknown to the Parties or Court And if the Iury knew no more than what they heard in Court and so the Iudge knew so much as they yet they might make different Conclusions as oftentimes two Iudges do and therefore as it would be a strange and absurd thing to punish one Iudge for differing with another in Opinion or Iudgment so it would be worse for the Iury who are Judges of the Fact to be punished for finding against the Direction of him who is not Iudge of the Fact But he that would be better satisfyed in this point may read that Case and the Authorities and Reasons given by my Lord Vaughan whom I must honour as a man of great reason It is shewed in that Case That muth of the Office of Jurors in order to their Verdict is Ministerial as not withdrawing from their fellows after they are sworn not receiving from either side Evidence after their Oath not given in Court not eating and drinking before their Verdict refusing to give a Verdict and the like wherein if they transgress they are Fineable But the Verdict it self when given is not an act Ministerial but Judicial and according to the best of their judgment for which they are not fineable nor to be punisht but by Attaint Nor can any man shew That a Jury was ever punisht upon an Information either in Law or in the Star-Chamber where the Charge was only for finding against their Evidence or giving an untrâ—e Verdict unless Imbracery Subornation â—r the like were joyned But the Fining and Imprisoning of Jurors for giving their Verdicts hath several times béen declared in Parliament an Illegal and Arbitrary Innovation and of dangerous Consequence to the Government the Lives and Liberties of the People This celebrated tryal by Iuries having béen confirmed by many Parliaments Littleton Sect. 368. tells us That as the Iury may find the matter at large that is a Special Verdict which the Court cannot refuse if it be pertinent to the matter put in Issue and leave the Law to the Court so if the Iury will they may take upon them the knowledge of the Law upon the matter and may give their Verdict generally as is put in their Charge As
higher nature than the Bond the Rent being real and the other of Record But the Bond extinguishes the contract for the arrears upon an Insimul comput asset c. Acceptance of Rent due the last day and an Acceptance Rent acquittance thereof discharges all the arrerages due before lib. 3. 65. Unity of possession in as high an Estate destroys the prescription c. A seisure and condemnation in the Exchequer of forfeited Trover Trespass Vide Rolls 1. part 1. 2. A custom pleaded in Trover to take Corn to repair a bridge and Cro. Eliz. 433. 262. Promise Imperfect Issue goods may be given in evidence upon Not Guilty in Trover but it must be pleaded in Trespass In Trover of a Horse that he is a Common Hostler and that the Horse was put to him at Livery and dyed is good upon Not Guilty Rolls 1. part 22. Upon Assumpsit the Plaintiff declares upon two considerations and a simple promise If the Jury find but one or a conditional promise this doth not maintain the Issue for the Plaintiff Leon 173. Musted and Hoppers Case Where the Issue is not perfect no evidence can be applied neither can the Justices of Nisi prius proceed to the Tryal of such an Issue As whether the money was paid after the date of the Obligation and the date was left out and did not appear in the Record Brown 2. 47. In Debt upon a Bond conditioned to pay 20 s. at Payment the house of the Defendant the 7. day of May upon payment at the time and place The Jury found the payment before the 7. day and prayed the advice of the Court if this was a payment at the day The Court adjudged that the payment and acceptance before the day was as well as if it had been paid at the day Saviles Reports 96. Bond against Richardson And so saies Cook 1. Institutes 212. The time and place are but circumstances and if the Obligee or Feoffee receive the money at another place or before the day it is sufficient Or a lesser summ before the day But More 47. upon Issue of payment at the day and place and evidence of payment a month before and Demurrer upon the evidence Dyer Brown and Welsh said this evidence doth not maintain the Issue because before the day of payment there is no duty land the day and place are parcel of the Issue and the act on one day is not an act done on another day As if an Executor pleads payment at the day 't is not good evidence to shew that it was paid before the day by the Testator for this doth not prove the Issue and yet there was not any duty remaining at the day and therefore the pleading ought to have been specially according to the truth Vide devant 198. And 't is not like the Case where the circumstances of time and place are puâ— only for necessity of Tryal but in regard that payment is the substance why is it not sufficient to prove as well as to find the effect and substance of the Issue And 't is not the case of collateral conditions where the condition is not to pay money but to do some Collateral thing as to deliver a Horse a Robe or Ring c. or to pay money to a stranger such Collateral conditions are more strictly to be observed vide 1 Inst 212. Note if there be a Demurrer yet there may be a Plea puis darrein continuance plea puis darrein continuance and if the Plaintiff take Issue or demur to this plea yet the Court must also consider of the first Demurrer for if upon that standing confessed by the Demurrer the Plaintiff could not have his action the Court cannot give judgment for him howsoever the latter Issue or Demurrer pass But otherwise if the first had been an Issue for then nothing were confessed to his prejudice and then that had been utterly relinquished by a second Issue or Demurrer Hob. 81. with a Quaere c. When this plea is pleaded the Justices of Nisi prius cannot proceed to take the Inquest neither can the Plaintiff reply there but in Bank Bulst 92. 93. Per Doderige In Trover and conversion of goods Trover if the Defendant derive a title from a stranger this amounts to the general Issue otherwise if from the Plaintiff Latch 186. And baylment of the goods to deliver to another and delivery accordingly amounts to the general Issue and may be given in evidence upon it Bulst 3. part 209. In Trespass against two for entring into the Plaintiffs Trespass Freehold Land if one pleads his Freehold and the other that he entred by the commandment of him that pleads it is his Freehold here is to â—e but one Issue joyned viz. by him that claims the interest for upon that Issue all depends If it be found against him his servant has no colour And in regard what may be averred may be proved and given in evidence 't will not be Averments impertinent to draw a short scheme of Averments with which I will conclude To alter qualifie or abridge the operation of it if there be any apt words in the Deed whereupon Averment had upon or against a Deed. to ground it As a grant to A. the Son of B. and he hath two Sons of that name of the Mannor of S. and he hath two Mannors of that name which Son or Mannor was intended may be averred And so may a consideration of a Deed that is besides but Consideration not that is against the express consideration of the Deed nor can any thing against the words of the Deed either inlarge or restrain it Nor can a Use against or besides the express uses in the Deed but where no use is expressed or incertainly Use expressed it may and also to reconcile a fine and the Indentures to lead the uses of the fine lib. 2. 75. But when a Deed is utterly incertain no averment shall help it As a grant to one of the Sons of J. S To two haeredibus c. An estate to a Woman for her life may be averred to be made for her joynture Dyer 146. lib. 4. 4. Upon or against a Record And that the thing granted to me by a new name is all one thing with that which has another or an old name Dyer 37. 44. A thing that is against or besides a Record or any A fine taken by R. M. Esq and retorned by R. M. Militem upon the Ded. p. the Record not to be averred against in Error Yelverton 33. Cro. 2. part 11. thing that is within it shall not be averred Therefore the date of a Recognisance expressed to be taken at Dale cannot be averred to be taken at Sale But such an averment as may stand with the Record may be admitted As that the fine was before the Inrollment being both in one Term The uses of a fine or common Recovery