have the better and more certain knowledge of the fact And if the fact be alledged in quadam platea vocat Kingstreet in parochia sanctae Margaretae in Com. Midd. In this Case the Visne cannot come out of Platea Parish because it is neither Town Parish Hamlet nor place out of the Neighbour-hood whereof a Jury may come by Law but in this Case it shall not come out of Westminst but out of the Parish of St. Margaret because that is the most certain But therein also it is to be noted that if it had béen alledged in Kingstreet in the Parish of St. Margaret in the County of Middlesex then should it have came out of Kingstreet for then should Kingstreet have béen estéemed in Law a Town For whensoever a place is alledged generally in pleading without some addition to declare the contrary as in this Case it is it shall be taken for a Town Town And albeit parochia Parochia generally alledgeâ— is a place incertain and and may as we sée by experieâ—ce include divers Towns yet if a matter be alledged in parochia it shall be intended in Law that it containeth no more Towns than one unless the party do shew the contrary More 55â— But when a Parish is alledged within a City there without question the Visne shall come out of the Parish for that is more certain than the City If a Trespass be alledged in D. and nul tiel ville is pleaded the Jury shall come de Corpore Comitatus De Corpora Comitatus But if it be alledged in S. D. and nul tiel ville de D. is pleaded The Jury shall come out de vicineto de S. For that is the more certain so if a matter be alledgd within a Mannor Manner the Jury shall come de vicineto Manerii But if the Mannor be alledged within a Town it shall come out of the Town because that is most certain for the Mannor may extend into divers Towns And all these points were resolved by all the Judges of England upon Conference betwéen them in the Case of John Arundell Esq indicted for the death of William Parker De Corpore Com. Where there may be a speciall Visne the Tryal shall never be de Corpore Comitatus Leon. 1 part 109. In a reall Action where the Demandant demands Land in one County Heir tryed where the Land lies where not as Heir to his Father and alledges his Birth in another County if it be denyed that he is Heir it shall not be tryed where the Birth is alledged but where the Land lyeth For there the Law presumes it shall be best known who is Heir But if the Defendant make himself Heir to a Woman for that is the surer and more certain side and the Mother is certain when perhaps the Father is incertain and therefore there it shall be tryed where the Birth is alledged Cro. 3. part 818. Cro. 2. part 303. because they have more certain Conusance then where the Land lyeth And so it is where Bastardy Bastardy is alledged the Tryal shall be in like Case Mutatis Mutandis If the man plead the Kings Letters Patents Non concessit where the Land lies and the other party plead non concessit it shall not be tryed where the Letters bear date for they cannot be denyed but where the Land lyeth Every Tryal must come out of the Neighbour-hood of a Castle Mannor Town or Hamlet Visne or place known out of a Castle Mannor Town or Hamlet as some Forrests and the like as before Every Plea concerning the person Plaintiff Where the Writ is brought at Common-Law c. shall be tryed where the Writ is brought When the matter alledged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common-Law Matters done beyond Sea may be tryed in England and therefore a Bond made beyond Sea Matters done beyond Sea how tryable in England may be alleadged to be made in any place in England if it beat date in no place But if there be a place as at Burdeaux in France then it shall be alleadged to be made in quodam loco vocat Burdeaux in France in Islington in the County of Middlesex and from thence shall come the Jury 1 Inst 261. Lach 4. and 5. So if the Tenant plead that the Demandant is an Alien Alien born under the Obedience of the French King and out of the Legiance of the King of England the Demandant may reply that he was born at such a place in England within the Kings Legiance and hereupon a Jury of 12. men shall be charged and if they have sufficient Evidence that he was born in France or in any other place out of the Realm then shall they finde that he was born out of the Kings Allegiance And if they have sufficient Evidence that he was born in England or Ireland or Jernsey or Jersey or elsewhere within the Kings Obedience they shall finde that he was born within the Kings Legiance And this hath ever béen the pleading and manner of Tryal in that Case So of other things done beyond Sea Things done beyond Sea the adverse party may alledge them to be done at such a place in England from whence the Iury shall come and in a Speciall Verdict Lib. 7.26 they may finde the things done beyond Sea Ib. lib. 7.26 So when part of the act is done in England and part out of the Realm Part without the Realm and part within that part that is to be performed out of the Realm if Issue be taken thereupon shall be tryed here by 12. men and they shall come out of the place where the Writ or Action is brought Ib. lib. 6.48 Error Full age tryed where the Land lies for that Iudgment was given by default against the Defendant being an Infant Issue was taken that he was of full age And Godfrey moved whether the Tryal should be in Norfolk where the Land was or in Middlesex where the Action was brought And the Court held that it should be tryed in the County where the Land lay and Tanfield said It was so adjudged in the Kings Bench betwéen Throgmotton and Burfind Cro. 3. part 818. If the Venue arise in two Counties the Iury upon 2. Venire facias shall come from both This is called a Joynder of Counties Finch 410. 6. out of one County and 6. from the other Cro 3. part 646. but by consent of parties entred upon Record it may be by 5. out of one and 7. from the other Jury out of two Counties as appears Cro. 3. part 471. where in Replevin the Defendant avows for damage fesant The Plaintiff by his Replication claims common by prescription in loco quo c. being Broadway in the County of Worcester appurtenant to his Mannor of D. in the County of Gloucester and Issue
subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed But it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgment But if the Venire be awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose Venire facias to the Sheriff after one awarded to the Coroners upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time er else to Essiors sic e converso In Error of a Iudgment in Chester the parties being at Issue Venire facias to the Coroners after one to the Sheriff a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vice comes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cousinage betwixt him and the Sheriff which was awarded accordingly and at the day of Tryall the Defendant made default and thereupon Iudgment Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not materiall Cro. 1 part ult pub 853. But the Defendant might have demurred to this Prayer No Venire facias to the Coroners after one to the Sheriff For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the array nor have a Venirâ— afterwards to the Coroners becausâ— the Sheriff is his Cozen or foâ— any other principall Challenge whereof he might by common intendment have Conusance when hâ— so prayed the Venire facias for upon shewing this Cause at first hâ— might have prayed Process to the Coroners But for a principall Challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Shâ—riff c. he may afterwards challenge the array when thâ—y appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to the Coroners If the Defendant dâ—nies the Plaintiffs suggestion he shall have no b nefit of it by Challenge because he is of kindred to the Sheriff if the Defendant will not confess this but denyes it this shall be entred and the Defendant shall not challenge the Array for this Cause afterwards br tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryall without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff without such consent of parties This is an insufficient Tryall not remedied by any Statute except it be upon an insufficient suggestion and then the Stat. of 21 Jac. 13. helps it Vpon suggestion that the Plaintiff and the Sheriff Venire facias to some of the Coroners and one of the Coroners are of kindred to the Plaintiff or Defendant or upon any other suggestion which contains a Principall Challenge the Venire facias may be directed to the other Coroners Dier 367. Error of a Iudgment in Northhampton because in Northampton the Court being held before the Maior and two Bayliffs Bayliffs the Venire facias upon the Issue was awarded to the two Bayliffs to return a Jury before the Maior and Bayliffs Secundum Consuetudinem which being returned and Iudgment given the Error assigned was because the Bayliffs being Iudges of the Court could not also be Officers to whom Process should be directed there being no Custome that can maintain any to be both Officer and Iudge But all the Court absente Hide conceived it might be good by Custome And that it is not any Error for the Iudges be not the Bayliffs onely but the Maior and Bayliffs and it is a common course in many of the Antient Corporations where the Bayliffs are Judges Judge and Officer to return Writs or the Maior and they be Judges yet in respect of executing Process they be the Officers also And one may be Iudge and Officer diveâ—sis respectibus as in Redisseisin the Sheriff is Judge and Officer Whereupon Iudgment was affirmed Cro. 1 part 138. In Trespass and Assault laid in the Court Venire facias to the Garden of the Palace of Westminster to be at the Palace of Westm It was adjudged that the Venire facias shall issue al Garden del Palice and not to the Sheriff of Middlesex Bro. tit Ven. fac 31. CAP. VI. What faults in the Venire facias shall vitiate the Tryall what not when a Venire facias de novo shall be awarded when severall Ven. fac When the Venire facias shall be betwixt the party and a stranger to the Issue Who may have a Venire facias by Proviso and when Veâ—ire facias why the Writ so called VVE have now shewed you to what Officer the Venire facias shall be directed The next step in the Writ is Precipimus tibi quod Venire facias Which words Venire facias are the most effectuall words in the Writ and therefore they give the denomination to the whole Writ And here opportunity is offered us to speak something of a Venire facias in generall I am not ignorant how our Books swarm with Cases which arise from the defects in this Process and how that Verdicts have béen set aside Iudgments stayed and reversed for want of sufficient Returns misawarding disagréement with the Rolls discontinuance and many other faults in this Writ But the Statutes of Ieofailes especially the Statute 21 Jacob. cap. 13. have pardoned as I may so say these enormities As Statute of Jeof iles 21 Jac. 13. the awarding this Writ hab Corpora or distringas to a wrong Officer upon any insufficient suggestion or by reason the Visne is in some part misawarded or sued out of more places or of fewer places than it ought to be so as some place be right named The misnaming of any of the Jury either in Sur-name or addition of any of the said Writs or in any Return thereupon so that upon examination it be proved to be the same man
So you sée that where a thing is alledged to be done at the Capitall House * Rectoriae of D. there the Venire shall be of D. For that is intended to be all one with the Vill. but where it is at the Castle of Hartford c. Castell There the Venire facias shall not be de vicineto de Hartford but de Castro de Hartford for Castrum Hartford is intended a distinct place by it self and so of all Castles Cro. 2. part 239. More 862. 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 may be of the Mannor in the Vill. as de vicineto manerii de Stansted Hall in Windham Cro. 2. part 405. More 851. Arundels Case li. 6. 14. In the Common Bench in Trespas for taking away a Bag of Pepper the Defendant justified as Servant of the Maior and Commonalty of London for Wharfage due to them by the Custom of London which the Plaintiff refused to pay The Plaintiff replyed that the Custom did not extend to him London because he was a Frée-man of the City and ought not to pay Wharfage to which the Defendant re-ioyned that the Custom extended to him as well as to strangers upon which Issue was joyned Resolved 1. That the Issue should be tryed per Pais not by the mouth of the Recorder Recorder because he certifies nothing but what the Maior 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 Fréemen Where the tryal shall be by the County next adjoyning But it shall be to the County 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. Where a Man lends a Horse to another to till his Land Where a man lends his horse in one place and he is spoiled in another Visne where he is spoiled 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. Promise in one place and breach in another Visne guided by the Issue Where a promise is laid in oâ—â— place and the breach in another t 〈◊〉 Visne must be according to the evâ—â— of the Issue whether it be takeâ— upon the promise or breach Bâ—â— if no place be alledged for thâ— breach Issue be taken upon it tâ—â— Visne must be from the place of the promise which shall be intendeâ— right where the contrary appeares not sée Godbolt 274. Easter 39 Eliz. In the Kings Bench Trespass Assault and Battery 〈◊〉 Wilts continuing the Assault iâ— Middlesex and adjudged that the Jurors shall come out of both Counties More 538. Misnomer The name of a Mannor or Land or other locall thing shall be tryed where it lies because it is locall but the name or aâ—dition of a person shall be tryed where the Action is brought because this is transitory Bro. ut 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 had good Power and Authority to demise Where the Land lies The Indenâ—â—re was alledged to be made at London and the Venire facias was awarded to the Sheriff of Oxon and this being assigned for Error Iudgment was affirmed and this adjudged to be good More 710. because the Rectory was in Com. Oxon. Vide pag. 45. Where the Parish Parish is named by way of denotation or explanation of the place where the Fact is alledged to be done as at the Parish-Church of Hauk-hucknol there the Venire facias shall be of the Town not of the Parish Bulstr 1 part 60. 61. If the Fact be alledged in King-street Town in the Parish of St. Margarâ—â— in Com. Mid. You have already heard that the Visne shall be from Kingstreet because it is intended to be a Town but where it is alledged to be done at the Grays-Inn Hall or Lincolns-Inn-Hall c. Holborn the Visne shall be froâ— Holborn which is the Town iâ— as Yelverton said Inns of Court it was never heaâ—â— of any Venire facias to be had of 〈◊〉 of the Inns of Court Bulstr 2. pâ—â— 120. Not from house or hall especially of the Hall becaâ—â—â— it cannot be of a House much leâ—â— of a Hall In Ejectment upon a Demisâ—â— made at Denham of Lands in parâ—chia de Denham predîct The Visne may be of Denham or of the Pariâ—â— of Denham because Denham Parochia de Denham predict are all 〈◊〉 by intendment of Law Bulstr 2. part 209. More 709. Hob. 6. Bâ—â— when it appears by the Record oâ— is intended that the Parish Parish is moâ—â— spacious than the Town as the Case in More 837. where in Ejectment the Lease was alledged to be made at Bredon of Tythes in W. and W. Hamlets within the Parish of Bredon there the Venire facias unâ—â— not be of Bredon but of the Parish because it appeares that the Parish extends further than the Town Hob. 326. Where an Action of Debt for Rent For Rent where the Land lies and when not is brought upon the privity of the Contract by the Lessor as against the Lessee or his Executors for Arrearages due in the life-time of the Testator the Visne may be laid in any place but where the Action is brought upon the privity in Estate as against the Assignee of the Lessee or his Executors for Rent due after the Testators death the Visne must be where the Lands lie Lach misprinted 197. li. 3. 24. Walkers Case Debt for rent of Land in another County in Debt upon a Lease of Land in another County Nihil debet shall be tryed where the Action is brought Br. tit Visne 119. Vide pag. 93. In Replevin brought by Strede against Hartly for taking a Distress at Baildon the Defendant made Conusance as Bayliff because that Iocus in quo c. was holden of W. H. as of his Mannor of Baildon and upon Issue hors de son fee the Venire facias was de vicineto de Baildon and upon motion that the Venire facias ought to have béen as well from the Mannor as the Town The Court adjudged it to be well enough for that the Court shall not intend the Mannor Mannor was larger than the Town because it doth not appear so to be though possibly it might as like the Case of Town and Parish Hob. 305. 326. If the Sheriff return that there are no Fréeholders of that
Visne Visne next adjoyning in what Cases or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where the men are priviledged from serving on Juries out of that place as the Isle of Ely c. the Plaintiff may pray a Venire facias of the Visne next adjoyning and if the Visne be in Wales Wales ou bâ—iefe le Royne Court the Venire facias shall be directed to the Sheriff of the next English County to cause the Jury to come De propinquiori Visne of his County to the Visne in Wales adjoyning Fitz. Abridg. tit Visne 8. Jurisdict 24. If the Visne is in some part misawarded Visne misawarded in part or sued out of more places or fewer places than it ought to be so as some place be right named this is ayded by the Statute of Jeofailes which hath ended the differences in many Cases reported in our Books concerning this point wherefore I purposely omit them Error Infamy where the Land lies for that the Iuâ—gment was given by default against the Defendant being an Infant upon Issue that he was of full age adjudged that the Tryal should be in Norfolk where the Land was and not in Middlesex where the Action was brought Cro. 3. part 818. If the Visne cometh from a wrong place May be out of a wrong place by Consent yet if it be per assensum partium and so entred of Record it shall stand for Omnis Consensus tollit errorem 1 Inst 125. CAP. IX Challenges YOu have already séen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges And fâ—r this I shall present you with my Lord Cooks Collection 1 Inst 156. The rather because he hath taken more pains in the gathering and methodizing this Learning then any other one point whatsoever And I know no Reason wherefore I may not as well use his method for the perfection of this Treatise as he hath used other mens method and matter especially Perkins whom he seldom cites for the perfection of hiâ— Iudgment hath the preheminence of Invention and the Law hates nothing more then Innovation wherefore I shall follow his method in the description of a Challenge omitting the Book Cases and Authorities cited by him Challenge Challenge is a word common as well to the English as to the French and sometimes signifieth to claim and the Latine word is vendicate sometime in respect of revenge to challenge into the field and then it is called in Latine vindicare or provocare Sometime in respect of partiality or insufficiency to challenge in Court persons returned on a Jury And séeing there is no proper Latin word to signifie this particular kind of Challenge they have framed a word anciently written Chalumniare and Columpniare and Calumpniare and now written Calumniare and hath no affinity with the verbe Calumnior or Calumnia which is derived of that for that is of a quite other sense signifying a false accuser and in that sense Bracton useth Calumniator Calumniator to be a false accuser but it is derived of the old word Caloir or Chaloir which in one signification is to care for or foresée And for that to challenge Jurors is the mean to care for or foresée that an indifferent tryal be had it is called Calumniare to challenge that is to except against them that are returned to be Jurors and this is his proper signification But sometimes a Sommons Sommonitio is said to be Calumniata and a Count to be challenged but this is improperly And forasmuch as mens lives Fames Lands and Goods are to be tryed by Jurors it is most necessary that they be Omni exceptione majo es and therefore I will handle this matter the more largely Challenge is twofold A Challenge to Jurors is twofold either to the Array or to the Polls to the array of the principall Pannell To the Array and to the array of the Tales And herein you shall understand that the Jurors names are ranked in the Pannel one under another which order or ranking the Jury is called the Array and the Verbe to array the Jury and so we say in common spéech Battail array Array for the order of the battail And this array we call Arraiamentum and to make the array Arrairare derived of the French word Arroier so as to challenge the array of the Pannel is at once to challenge or except against all the persons so arrayed or impannelled in respect of the partiality or default of the Sheriff Coroner or other Officer that made the Return And it is to be known Principall Challenges that there is a principal cause of challenge to the Array and a challenge to the favour principall in respect of partiality as first if the Sheriff or other Officers be of kindred or affinity to the Plaintiff or Defendant if the affinity continue Secondly If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole array shall be quashed So it is if the Sheriff return any one that he be more favourable to the one than to the other all the array shall be quashed Thirdly if the Plaintiff or Defendant have an Action of Battery against the Sheriff or the Sheriff against either party this is a good cause of challenge So if the Plaintiff or Defendant have an action of debt against the Sheriff but otherwise it is if the Sheriff have an action of debt against either party or if the Sheriff have parcel of the Land depending upon the same Title or if the Sheriff or his Bayliff which returned the Jury be under the distress of either party or if the Sheriff or his Bayliff be either of Counsel Atturney Officer in fée or of Robes or servant of either party Gossip or Arbitrator in the same matter and treated thereof And where a subject may challenge the array for unindifferency there the King being a party may also challenge for the fame cause as for Kindred or that he hath part of the Land or the like and where the array shall be challenged against the King you shall read in our Books By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a Péer of the Realm Where there must be a Knight returned of the Jury or Lord of Parliament be demandant or Plaintiff Tenant or Defendant there must a Knight be returned of his Iury be he Lord Spiritual or Temporal or else the array may be quashed but if he be returned although he appear not yet the Iury may be taken
or interessed in the Action This Custome shall be tryed by a Jury and not by the Certificate of the Maior and Aldermen by the Recorder Hob. 85. Day and Savadges Case Devant 3. Stiles 137. Moor 871. vide apres tit Visne 18. Matter of Record mixt with matter of Fact A matter of Record bring mixt with a matter of fact shall be tryed per Pais and not by the Record Hob. 244. Peter and Staffords Case Devant 7. 19. In Writs of Right Tryalls by Battail and Appeals that touch life Tryall may be by Battail or by Jury at the Dâ—fendants choice The Battaile in a Writ of Right must be by Champions who must be Fréemen But in an Appeal it must be in proper person The Champions in a Writ of Right are not bound to fight longer than untill the Starrs appear and if the Champion of the Tenant can defend himself untill then the Tenant shall prevail The Iudges of the Court of Common Pleas are Iudges of the Battel in a Writ of Right and the Iudges of the Kings Bench in an Appeal of Felony It séems they seldom or never killed one another in this tryall of Battel for their Weapons were but Batoones and he that was vanquished was presently upon Proclamation made to acknowledge his fault in the Audience of the People or else to cry Cravent in the name of Recreantise c. and upon this Iudgment was to be given and after this the Recreant should amittere liberam legem that is should become infamous c. 2 Institutes 247. Finch 421. lib. 9. 31. Mirror of Justice 161. 162 c. 1 Inst 294. 20. In a Writ of Disceit Recovery by default upon a Recovery by default The Tryall shall be If the Iudgement was given upon the Petit Cape by the Summoners If upon the Grand Cape by the Summoners per nors or velors and not per Pais So if a Recovery by default in a reall Action be pleaded to which the other saith Nient Comprise Nient Comprise this shall not be tryed per Pais but by the Summoners and Veiers lib. 9. 32. 21. Wager of Law In debt upon a simple Contract Detinue c. The Tryal may be by Wager of Law or per Pais at the Defendants Election But when the Defendant wageth his Law he ought to bring with him eleven of his Neighbors who will avow upon their Oath that in their Consciences he saith true so as he himself must be sworn de fidelitate and the eleven de Credulitate Ib. Finch 423. and 1 Inst 295. you may read excellent Learning concerning this Tryall 22. If Profession Profession be denyed it shall be tryed by the Court Christian But if the time of the Profession be in Issue this shall be tryed by the Country lib. 4. 71. So though an Inrollment Inrollment or other matter of Record cannot be tryed per Pais yet the time when the Inrollment was made may be tryed per Pais Appearance So whether the party appeared in such a Court Sheriffe or on such a day c. shall be tryed per Pais Cro. 3. part 131. So whether one was Sheriff such a day or not Cro. 1. part 421. Admission Admission c. Institution Plenarty and Ability of the Parson shall be tryed by the Bishop But Induction shall be tryed by the Country Plenarty and so shall Avoydance by resignation Dyer 229. Moor 61. and voyd or not voyd shall be tryed per Pais 1 Inst 344. And Plenarty if the Clerk be dead Mirror of Justice 324. li. 6. 49. The Cause of refusal of a Clerk by the Bishop Lib. 6. 49. shall be tryed by the Metropolitane if the Clerk be living but per Pais if he be dead l. 5. 58. Ideocy 23. An Ideot found so from his Nativity by Office may come in person in the Chancery before the Chancellor and pray that before him and such Iustices or Sages of the Law which he shall call to him who are called the Councel of the King he may be examined whether he be an Ideot or no or by his friends he may sue a Writ out of Chancery retornable there to bring him into the Chancery Ibidem Coram nobis concilio nostro examinand lib. 9. 31. 24. If it be in question whâ—ther the Sheriff made such a retorn or not Sheriffe It shall be tryed by the Sheriff if whether the Undersheriff made such a Retorn or not it shall be tryed by the Undersheriff If the question be whether such a one be Sheriff or not It shall be tryed by the Examination of the Sheriff yet he is made by Letters Patents of Record and therefore it may be â—ryed by the Record ib. Cro. 2. part 421. 25. If an Approver say Durer that he Commenced his Appeal before the Coroner per dures this shall be tryed by the Record of the Coroner and if it be found that he did it without dures he shall be hanged ib. Corone br 75. 26. The Tryall whether a Statute Statute shewed before be the true Statute or not shall be by the Examination of the Maior and Clerk of the Statutes which took the Statute and not per Pais ib. whether a Statute hath two Seals or not shall be tryed per pais Leon. 1 part 228 229. 27. In Assise the Tenant said that the Lands were taken into the Kings hands this shall be tryed by the Examination of the Escheator Escheator Certificate 28. If one in avoydance of an Outlawry alledge that he was in Prison at Burdeaux ultra mare in servitio Majoris de Burdeux this shall be tryed by the Maior's Certificate and in such like Cases other Tryals shall be by the Certificate of the Marshall of the Host and by the Captain of Calice and also by Messenger Messenger of a thing done beyond Sea Ib. 29. At the Petit Cape Petit Cape the Tenant said that he was imprisoned 3. dayes before the default and 3. days after this shall be tryed by the Examination of the Attorney Nient Attach per. 15. jours in Assize shall not be tryed per pais but by examination of the Bayley Bayley Ib. 30. It séems an Almanack Almanack is so infallible that it hath countervailed the Verdict of a Jury For in Error of a Iudgment given in Lynne The Error assigned was that the Iudgement was given at a Court held there on the 16th day of February 26 Eliz. and that this day was Sunday and it was so found by Examination of the Almanacks of that year upon which it was ruled that this Examination was a sufficient Tryall and that a Tryall per pais was not necessary although it were an Error in Fact and so the Iudgment was reversed Cro. 1 part last pub fo 227. 31. Ordeale In ancient times there was a Tryall in Cryminall Causes called Ordalium for upon Not guilty pleaded the
Defendant might put himself upon God and the Country as is the â—â—e at this day or else upon God only and then if he was a Fréeman he was to be tryed per ignem that is he was to passe over Noven vomeres ignitos nudis pedibus and if he was not hurt by this then he was to be acquitted otherwise condemned and this was call d Ju icium Dei But if he was a slave then his Tryall was to be per aquam and that divers wayes which all appear in Lambard verbo Ordalium From which kinde of Tryall I presume we still retain this expression of an innocent person That he need not feare fire or water This manner of Tryall was first prohibited by the Cannons then by Parliament The Tryall by Battail Battail is likewise prohibited by the Cannons but not by Parliament as you may read in the ninth Report fo 32. and in the Authorities there cited which I therefore omit to recite here th ugh I have the Books by me and â—o in this whole Treatise where I refer you to a Book I shall not sâ—t down the Authorities cited in that Book which will avoid prolixity 32. When the matter alleadged extendeth to a place at t e Common Law and a place within a franchise Which Tryall shall be first it shall be tryed at the Common Law 1 Inst 125. 33. All matters done out of the Realm of England concerning War Martiall Affairs Combat or Déeds of Arms shall be tryed and termined bâ—fore the Constable and Marshall of England before whom the Tryall is by Witnesses Witnesses or Combat or by Combate and their procéeding is according to the Civil Law and not by the Oath of 12. men 1 Just 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any forraign Country The Wife or Heir of the Deâ—d may have an Appeal before the Constable and Marshall who sentence upon the testimony of Witâ—esses or Combat ib. So if a man be wounded in France and dye thereof in England ib. It is worthy our observation What Issue shall be first tryed to take notice wâ—en there are several Issues which of them shall be first tryed And for this you have already heard that where Issue is joyned for part and a Demurrer for the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their pleasure though by the opinion of Doderidge Latch 4. It is the best way to give Iudgement upon the Demurrer first because when the Issue comes afterwards to be tryed Damages the Iury may assess damages for the whole Plea to the Writ In an Action against two the one pleads in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personall against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth onely to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personall Action the discharge of one is the discharge of both As for example if one of the Defendants in Trespass pleads a Release Release to himself which in Law extends to both and the other pleads not guilty which extends but to himself or if one pleads a Plea which excuseth himself onely and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof Discharge of one dischargeth both because the discharge of one is the discharge of both But in a Plea reall it is otherwise for every Tenant may lose his part of the Land As if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other Issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea ib. CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs Hâ—ving given you the Epitome of what Tryals are allowed by tâ—e Common Law and what shall be tryed per pais and what not we shall now aâ—ply our selves more particularly to the Tryal by Juries And becâ—use a Venire facias is the foundation and Causa sine qua non of a Iury I meane in Civil Causes for in Criminalls as upon Indictments the Justices of Goal Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriffe without any process directed to him yet process may be made against the Iury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Precipimus tibi quod venire facias Venire facias Coram Justiciariis nostris de Banco apud Westm tali die duodecem liberos legales homines de vicenet de C. Quorum quilibet habeat quatuor libras terre tenement velreddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patrie inter partes predict de placito c. quia â—am Idem D. quam predict F. inter quos inde contentio est posuer se in Jur. illam Et habeas Ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch termes them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve frée and lawful men of his County to resolve the question of the fact in dispute betwéen the parties upon the Issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod Inquiratur per patriam by the Plaintiff and Issue joyned thereupon the Court awardeth the Venire facias vid. Ideo fiat inde Jurat Sheriff And first you sée it is directed
Vice Comiti i. e. to one who is Vice Comitis and hath the Regiment of the County instead of the Earl of that County to whom once it did belong As we are taught in the Mirror Chap. 1. Sect. â— Scil. That it appeareth by the Ordinance of ancient Kings before the Conquest That the Earls of the Counties had the Custody or Guard of the Counties and when the Earls left their Custody or Guards then was the Custody of Counties committed to Viscounts who therefore are called Vice Comites What great Repose and Trust both the King and Laws put in this great Officer The Oracle tells you What Trust in the Sheriff 1 Inst 168. That he is Shireve that is pâ—aefectus Comitatus Governour of the County For the words of his Patent be Commissimus vobis Custodiam Comitatus nostride c. And he hath a thréefold Custody triplicem Custodiam viz. first Vitae Justiciae for no Suit begins and no Proces is served but by the Sheriff And he is to return indifferent Juries for the tryall of mens lives Liberties Lands Goods c. Secondly Vitae Legis he is after long Suits and chargeable to make Execution which is the life and soul of the Law Thirdly Vitae Reipublicae he is Principalis Conservator pacis within the County which is the life of the Common-wealth for Vita Reipublicae Pax. To whom the Venire facias ought to be directed Yet notwithstanding the heighth and Latitude of this great Officers power and trust The Law adjudges him in many Cases not capable to do so much as return a Jury For if he be of kindred by nature or of affinity by Marriage to any of the parties or that I may say all in a little if he be not as indifferent almost in all respects he is whom the Law allows to be a Juror he ought not to meddle with the retorning of the Jury But the Venire facias shall be directed to the Coroners Coroners or to some of them if the residue are not indifferent who in that Case are vice Vice Com. And if the Coroners are not indifferent Forrescue cap. 2. 5. then the Venire shall be directed Ad 2 Electores that is to two whom the Court shall chuse and déeme fit to retorn the Jury And to the retorn of these Elisors or Esliors Esliors ab Eligendo no Challenge Challenge will be admitted Bro. tit Venire facias 14. as to the Array But to the Polles 1 Inst 158. If one of the Sheriffs of London Sheriff of London be a party then the Venire may be directed to the other Sheriff If the Vnder Sheriff be a party yet the Venire may be directed to the Sheriff with this Proviso Quod sub Vic. tuus in in nullo se intromittat cum executione istius brevis 18 E. 4. 3. Iudicial Writs say Cook and Sanders Plo. 74. may be directed to the Coroners As the Venire facias where the parties are at Issue there upon the surmise of the Plaintiff that the Sheriff is his Cozen and upon prayer that the Venire be directed to the Coroners Coroners for avoydance of his own delay that might happen by the Challenge of the Array The Defendant shall be examined whether it be true or not and if he confess it then the Venire shall be awarded to the Coroners for then it appeares to the Court by the Defendants confession that the Sheriff is not indifferent Examination But if the Defendant denies it then the process shall be awarded to the Sheriff because the Sheriff's Authority and profit shall not be taken away without cause apparant to the Court But if the Defendants will alledge any such matter and pray a Venire facias to the Coroners there the Plaintiff shall not be examined neither shall such allegations be allowed because delayes are for the Defendants advantage The Defendant may not have a Venire facias to the Coroners and the Defendant may challenge the Iury for this cause and so is at no prejudice And sée in term H. 3. H. 7. fo 5. placit ult In a quare Impedit where the Defendant shewed how the Sheriff was Cozen to the Plaintiff and prayed a Writ to the Coroners but it was denyed him upon the same Reason Fitz. tit suggestion placit 8. br Challenge 153. Venire facias once directed to the Coroners shall not be to the Sheriff afterwards When the Process is once awarded to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. bro. tit Venire facias 17. So the Entry is Ita quod Vice comes se non intromittat 18 E. 4. 3. And therefore where the Sheriff ought not to retorn the Venire Sheriff shall not return the Tales where he cannot the Venire faciar he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner And afterwards a Tales was awarded and it was returned by the Sheriff and it was tryed and a Verdict given and Iudgment And for this câ—use held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 1 part ult pub 574. bro. tit octo tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After Issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and after Verdiâ— Where the Coroner returns the Vâ—nire facias he ought to return the Tales it was moved in Arrest of Iudgement that the Tales de Circumstâ—ntibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgment For it is a mis-ryall not aided by any of the Statutes for process being once awarde to the Coroners the Sheriff afterwards is not the Officer to return the Iury no more than any other man And process ought alwayes to be returneâ— by him who is an Officer by Law to return it otherwise it is méerly void But afterwards upon view of the Record it apâ—eared that the Tales was returned by the Coroners No name to the Return and their names annexed thereto wherefore it was without further question But the Court said if their names had not béen annexed to the Tales yet it had béen well enough for they be annexed to the first Pannel And it shall be intended that the right Officer returned it and the usuall course is That to such Tales there is not any Officers names
that was meant to be returned or if no Return be upon any of the said Writs so as a Pannel of the names of the Jurors be returned or annexed to the said Writ or if the Sheriff or Officers name having the Return thereof is not set to the Return of any such Writ so as upon Examination it be proved that the said Writ was returned by the Sheriff or Under-Sheriff or such other Officer In all these Cases the Iudgment shall not be stayed nor reversed for these defects But this Act doth not extend to any Writ Declaration or Suit of Appeal of Felony or Murther nor to any Indictment or Presentment of Felony or Murther or Treason nor to any Process upon any of them nor to any Writ Bill Action Popular Actions c. or Information upon any popular or penall Statute Wherefore since Informations and popular Actions are grown so frequent the Attorneys c. herein had best beware of these Jeofailes By this Statute many defects are remedied which were not by the Statutes of 32 H. 8. Cap. 30. and 18 Eliz. Cap. 14. yet all are not for this Act onely helps the mis-naming of a Juror in Sur-name or addition Christian name mistaken in the Venire facias incurable and saith nothing of his Christian name wherefore I conceive the Law in Codwells Case in the fifth Report remains as it was then which is that if a Juror be mis-named in his Christian name on the Venire though he be named right in the Distringas and Postea yet this is ill and not amendable and with this agrées Goddards Case Cro. 2. part 458. And since the Court Cro. 1 part fo 203. doubted thereof Christian name right in the Venire facias and wrong in the Distringas I may well put the Question if a Juror be right named upon the Venire and mis-named in his Christian Name in the Distringas c. whether this is amendable or not without dispute it is not by the Statute 21 Jacob for that onely helps the Sur-name But with Reverence to the Courts doubt I conceive clearly it is hâ—lpen by the Statutes of 32 H. 8. and 18 Eliz. as a discontinuance of Process and I may with the more confidence believe it because in Codwells Case aforesaid where in the Pannell of the Venire a Juror was named Palus Cheale and in the Distringas c. he was right named Paulus Cheale and so because he was mis-named in his Christian Name in the Venire Iudgment was arrested But it is there adjudged that if he had béen well named on the Venire and mis-named upon the Distringas or Postea then upon Examination it should be amended But the Countess of Rutlands Case lib. 5. 42. is expresse in the point and so is Cro. 3. part 860. And it is to be known that in most Cases where the Venire facias Hab Corpora or Distringas be defective they are to be amended but if the Malady be so fatall in the Venire that it causes a Mistriall as in the mistake of a Jurors Christian Name or where a Juror not returned is sworn c. then the Verdict is to be set aside and a Venire facias de novo Venire facias de novo to be awarded and so was it to be upon those mistakes now amendable by the Statutes before the making thereof And where a Jury giveth a Verdict which is accepted and recorded by the Court One Jury shall not try a cause twice be the Verdict perfect or imperfect the Jurors are discharged and shall never try the same Issue again upon a new Nisi prius But if the Verdict be so imperfect that Iudgment cannot be given upon it then the Court shall award a Venire facias de novo to try the Issue by other Jurors li. 8. 65. Bulstr 2 part 32. In Yelvertons Reports fo 64. Album breve the County left out in a Veniâ—e facias the Case is That a Venire facias was made Vice-Comiti leaving out Salop for which there was a blanck leâ—t in the Writ But re vera it was returned by the Sheriff of Salop. In Arrest of Iudgment it was alleadged that the Venire facias was vitious for this cause But Gawdy said it should be amended And by Fenner and Williams It is as no Writ because it is not directed to any Officer And then it is ayded by the Stat. of Jeofailes For it might rather be called a blanck then a Writ because it was directed to no Officer Severall Venire facias In Cases where there are severall Defendants who plead several Pleas the Plaintiff may chuse either to have one Venire facias for all or severall for every one of the Defendants But if you will be ruled by Stamford the surest way is to have a Venire facias against every one and then one cannot have benefit of the others Challenge neither shall the death of one abate the Venire facias against the other This he speaks of in Appeals but if the Court once award a joint Venire facias you cannot have severall Venires afterwards though there be nothing done upon the first except it be upon matter de puisne Temps as the death of one of the Defendants c. li. 8. 66. li. 11. 5. 6. Stamf. 155. bro. tit Venire facias 2. 35. But now it is the usuall course to have but one Venire facias One Venire facias in severall Issues upon severall Issues though against severall Defendants Cro. 3. part 866. hob 36. 64. And so usuall that the Court declared Cro. 2. part 550. That there never shall be severall Venire facias to try severall Issues in one County For what néed the Plaintiff trouble himself and the Country with severall when one Iury will serve his turn Et frustra fit per plura quod fieri potest per pauciora But other wise if it be in two Counties Cro. 3. part 866. After Issue joyned by two Defendants if one of them die Venire facias between the Plaintiff and 2. Defendants where one is dead and then a Venire facias is awarded betwixt the Plaintiff and both the Defendants and so in the Hab Corpora and Distringas yet this shall not vitiate the Venire facias c. to make Error because though one of the Defendants be dead yet the other being alive it is sufficient And there néeds be no surmise in Iudiciall Writs No surmise in Judicial Writs of death in one of the parties that one of the Defendants is dead It is time enough to shew it to the Court at the day in banck Cro. 1 part 4. 26. But if there be two Defendants and the Venire facias be but against one of them 't is Error 7 H. 4. 13. and bro. tit ven fac 11. Cro. 1. part 426. Venire facias dated before the Action brought If the Venire facias beares date before the
sworn by consent and joyn with the other 11. in the Verdict 11 H. 6. 13. In Error upon a Iudgment in Cornwall A Jury of 6. because the Tryal was but by 6. adjudged that it was erroneous though it was returned secundum consuetudinem ibidem ante c. for such Customs are against Law unless in Wales which are permitted by Act of Parliament Cro. 1. part 259. CAP. VII Who may be Jurors who not who exempted and of their Quality and Sufficiency Jurors must be Liber SO much for their number next their Quality is to be considered And for this the Writ informs you who they ought to be 1. Liberos that is Fréemen not Villains or Aliens and that not only Fréemen and not bond but also those as have such fréedom of minde that they stand indifferent without any Obligation of Affinity Interest or any other Relation whatsoever to either party sometimes the word Probos Fortescue cap. 25. instead of Liberos is attributed to them they are both good Epethites for a Juror but I estéem the first most significant 2. They ought to be Legales Legales not outlawed not such as have lost Liberam legem or become infamous as Recreants persons attainted of Felony false Verdict Conspiracy Perjury Premunire or Forgery upon the Stat. of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. Not such as have had Iudgment to lose their Ears stand on the Pillory or Tumbrel or have béen stigmatized or branded nor Infidels neither can any such be Witnesses 1 Inst 6. 3. Homines A Jury of Women they ought to be men yet there shall be a Iury of Women to try if a Woman be Enseint upon the Writ de venire inspiciendo But what kinde of men these ought to be is worthy to be known And for this some men are exempted from serving in Iuries in respect of their Dignity as Barons and all above them in degrée Exemption of Juries Many are exempted by the Writ de non ponendis in Assisis F. N. B. 166. as aged persons 70. years old and many others are exempted as Clerks Who are to be exempted from Juries Tenants in ancient Demesne Ministers of the Forrest out of the Forrest Coroners Enfants under the age of 14. years Officers of the Sheriff sick deÌ„crepioÌ„ men and such as are exempted by the Kings Charter yet in a Grand Assize preambulation Attaint and in some other special Cases such men as are not exempted by reason of their Dignity shall be forced to serve notwithstanding their exemption in other Cases Sée Daltons Office of Sheriffs fo 121. 52 H. 3. cap. 14. 2 Inst 127. 130. 378. 447. and 561. Counsellors Attorneys Clerks and other Ministers of the Kings Courts are not to serve on Iuries But I finde one Iury made of Attorneys of the Common Bench and Exchequer In a Case brought upon a Bill in the Exchequer by Sir Thomas Seton Iustice against Luce C. for calling of him Traytor in the presence of the Treasurer and Barons of the Exchequer A Jury of Attorneys And this Iury of Attorneys gave the Justice one hundred marks damages 30 Assize 19. 4. De vicenet de C. It is not sufficient that they dwell in the County but they are to be of the Neighbourhood Nay le plus prochenies Visne to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ib. as I shall shew hereafter 5. Sufficiency of Jurors Quorum quilibet habeat quatuor libras terre tenement vel reddit per annum ad minus This is their sufficiency where the debt or damages or both together 1 Inst 272. amount to 40 Marks or above The sufficiency of Jurors in other Cases of lesser moment is still left to the discretion of the Iustices Fortescue cap. 25. who experience tells us never require Jurors under 4 li. per annum according to the Statute of 27 Eliz. cap. 6. before which men of 40 s. per annum served But neither this nor the Stat. of 35 H. 8. extend to Juries in Cities Towns Corporate or other priviledged places or in the 12. Shires of Wales so that there they shall be returned as before they lawfully might have béen for the Jurors sufficiency in Attaints sée the Statutes 15 H. 6. 5. 18 H. 6. 2. and 13 H. 8. 3. It is the general course of the World to estéem men according to their Estate For Quantum quisque sua nummorum servat in arca Tantum habet et fidei And sure I am the makers of this Law had cause enough to do so in this Case for if men of less Estates should serve in Juries such Fellows would only be shifted into Enquests as had more néed to be relieved by the 8 d. then discretion to sift out the truth of the fact 'T is hard to act an unbyassed Iury now But surely less rewards would sooner bribe and byass meaner men than these Therefore least poverty or necâ—ssity should tempt Every Juror must have 4 li. per annum as aforesaid of Frée-hold out of Ancient Demesne And the Court may in matters of great consequence Jurors of above 4 l. per annum direct a Venire facias for a Jury of above 4 l. per annum a piece but not under Cro. 2. part 672. But in such Cases every one knowes the Court most commonly orders the Prothonotary to chuse 48. out of the Sheriffs Book of Freeholders of the most substantial men in the County and the parties strike out 12. a piece then the Sheriff returns the rest Et qui nec D.E. nec F.G. aliqua affinitate attingunt the Law is very cautelous Jurors must not be of affinity to the parties in not leading men into temptation Therefore least kindred and Affinity should wrong the Conscience to help a friend our Juâ—ors must not be related to any of the parties And for this Reason likewise the Statutes provide that no man of Law shall ride Iudge of Assize or Goal-delivery in his own Country 8 R. 2. 2. 33 H. 8. cap. 24. But because most things concerning the Quality and Sufficiency of Jurors will come more properly under the Title Challenge I will refer you thither And first observe more particularly De quo vicinet the Jury ought to come CAP. VIII Concerning the Visne from what place the Jury shall come c. VIcinetum is derived of this word Vicinus Visne and signifieth Neighbour-hood or a place near at hand or a Neighbour place where the question about the fact is moved And the most generall Rule saith Coke 1 Inst 125. is That every Tryal shall be out of that Town Parish or Hamlet or place known out of the Town c. within the Record within which the matter of fact issuable is alledged which is most certain and nearest thereunto the Inhabitants whereof may
thereupon and 2. Venire facias awarded to the Sheriffs of the several Counties and now 7. of the County of Worcester appeared and 5. of Gloucester And although there ought to have béen 6. sworn of each County to try that Issue as appears 49 Ed. 3. 1. 31 H. 8. 46. yet by the assent of the parties those 12. who appeared by advice of all the Iustices were sworn and tryed the Issue And it was commanded that this Assent should be entred upon Record for otherwise it would be a strange President In an Action of Trover apud Paxton in Com. Hunt the Defendant pleads a Bargain and Sale apud Royston in Com. Hertford Covenant in P. to sell at â— tryed at P. in the Market there whereby he after converted them apud P. in Com. Hunt The Plaintiff saith that he was possessed of those Goods apud P. in Com. Hunt and that J. S. there stole them from him and by Covenant betwixt him and the Defendant at P. in Com. H. he sold them to the Defendant as he hath pleaded The Issue was upon the sale made by Covenant c. And it was tryed in the County of Hunt and found for the Plaintiff And it was moved to be a mis-tryal for it ought to have béen by a Iury of the County of Hâ—rtford or at leastwise by a Iury of both Counties But it was adjudged to be well tryed because the sale is confessed and the Issue is upon the Covenant alledged in Hertford Cro. 3. part 511. Usurous Contract in another County In Debt upon a Bond in London the Defendant pleaded an usurious Contract in the County of Warwick the Plaintiff replyed that the Bond was made upon good consideration Absque hoc that it was made for such usurious Contract the Tryal shall be in the County of Warwick A Dures shall be tryed there not where the Action is brought for the Bond is confessed and the usury in Warwick is only in question so if the Issue be whether the Déed were made by Dures the Tryal shall be where the Dures and not where the Déed is supposed to be made Cro. 3. part 195. Where Issue is taken upon a surrender Surrender it shall be tryed where it was alleadged to be done and not where the Mannor is of which the Copy-hold is holden Ib. fo 260. Br. tit Visne 114. In an Assumpsit laid at London in Warda de Cheape Ward or Hundred no good Visue the Venire was De parochia de Arcubus in Warda de Cheape whereas no Parish was mentioned before in the Count and adjudgad that the Venire was ill laid in the Count for a Venire facias may be of a Town Parish Mannor or other place known but not of a Hundred or Ward ib. and so it is adjudged ib. Cro. 1. part 165. for the Ward in a City is but as the Hundred in a County Where the Visne is laid to be at a City City in an Action brought in a superior Court or within the City though it be both a City and County the Venire facias may be de vicinet Civitatis Lach. 258. Though it hath béen held not good but that the Venire facias must be de Civitate leaving out Vicinet as you may read in Stamf. 155. But now the Case in Cro. 2. part 308. and Bulstr 1. part 129. say that all Venire fac are awarded de vicinet Civitatis which is intended as well de Civitate it self as de vicinet infra Jurisdictionem of the City And so it is Stiles 2. March 125. de vicinet Civitatis or de vicinet or de Civitate Coventry Eborum Norwich Sarum Bristow Exon and all other Cities which are Counties in themselves In all places besides London London no mention is made of the Parish or Ward Ib. 493. But in London the Parish and Ward is mentioned And therefore it was adjudged Cro. 2. part 150. That it was not good to alleadge any thing done in London generally But it must be in what Parish from which a Venire may be But where a thing is laid in a City in alta Warda there and the Venire facias is from the City City only it is well because it shall be intended there be no more Wards in the same City Cro. 3. part 282. A Venire facias was awarded from T. and not de vicinet de T. and for this cause resolved to be ill De vicinet out ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the Issue be Si rex Concessit per literas patentes Where the Land lies The Tryall shall be as hath béen said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed 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 alleadged But of a Feoffment or Lease for life pleaded the Issue being non Feoffavit or non diâ—isit 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 to be in one County and the Iustification in another County and the Plaintiff replies Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is de injuriâ— 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 thâ— Defenâ—ant pleads that he spake them as a Witness upon his Oath upon an Issue tryed at Chard in the County of Somerset The Plâ—intiff 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 béen by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryall and not ayded by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. In an Action of the Case against a Sheriff upon an escape in London and the Arrest laid to be in South-hampton adjudged Where the escape was and not where the Arrest was 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 béen de vicinet Rectoriae de Much-Hadam but it was adjudged good because Much-Hadam is here intended a Vill. Ib. 804.
Distress of either party this is a principal Challenge But if either party be within the distress of the Juror this no principal Challenge but to the favour If a Witnes Witness named in the Déed be returned of the Jury it is a good cause of Challenge of him So it is if one within age of one and twenty be returned Infant it is a good cause of Challenge Challenges arising from the Jurors own Act. Vpon his own Act as if the Juror hath given a Verdict before for the same cause albeit it be reversed by Writ of Error or if after Verdict Iudgment were arrested So if he hath given a former Verdict upon the same Title or matter though betwéen other persons But it is to be observed that I may speak once for all that in this or other like Cases Former Verdict he that taketh the Challenge must shew the Record if he will have it take place as a principal Challenge otherwise he must conclude to the favour unless it be a Record of the same Court and then he must shew the day and terme So likewise one may be challenged Indictment that he was Inditor of the Plaintiff or Defendant either of Treason Felony Misprision Trespass or the like in the same cause If the Juror be Godfather Godfather to the Child of the Plaintiff or Defendant or e converso this is allowed to be a good Challenge in our Books If a Juror hath béen an Arbitrator Arbitrators chosen by the Plaintiff or Defendant in the same cause and have béen informed of or treated of the matter this is a principal Challenge Otherwise if he were never informed nor treated thereof and otherwise if he were indifferently chosen by either of the parties though he treated thereof But a Commissioner chosen by one of the parties for examination of Witnesses in the same cause is no principal cause of challenge Commissioner for he is made by the King under the great Seal and not by the party as the Arbitrator is but he may upon cause be challenged for favour If he be of counsel Counsel Servant or of Robes or Fée or of either party it is a principal Challenge If any after he be returned Eat or drink at the parties charge do eat and drink at the charge of either party it is a principal cause of Challenge otherwise it is of a Trior after he be sworn Action brought either by the Juror against either of the parti s Actions of malice or by either of the parties against him which may imply malice or displeasure are causes of principal Challenge unless they be brought by Covyn either before or after the return for if Covyn be found then it is no cause of Challenge other Actions which do not imply malice or displeasure are but to the favour as an Action of debt c. More 3. Parson and Parishes In a cause where the Parson of a Parish is party and the right of the Church cometh in debate a Parishioner is a principal Challenge Otherwise it is in debt or any other Actâ—on where the right of the Church cometh not in question If eitâ—er party labour the Juror and give him any thing to give his Verdict To labour the Jury tâ—is is a principal Challenge But if either party labour the Juror to appear and to do his Conscience this is no Challenge at all but lawful for him to do it That the Juror is a Fellow-Servant Fellow Servant with either party is no principall Challenge but to the favour Neither of the parties can take that Challenge to the Polls To the Polls which he might have had to the Array Note if the Defendant may have a principal cause of Challenge to the Array if the Sheriff return the Jury Venire facias to the Corâ—ners the Plâ—intiff in that case may for his own expedition alledge the same and pray Process to the Coroners which he cannot have unless the Defendant will confess it but if the Defendant will not confess it then the Plaintiff shall have a Venire facias to the Sheriff and the Defendant shall never take any Challenge for that cause and so in like cases But on the part of the Defendant any such matter shall not be alledged and Process prayed to the Coroners because he may challenge the Jury for that cause and can be at no prejudice Challenge concluding to the favour Challenges to the favour when either party cannot take any principal Challenge but sheweth causes of favour which must be left to the conscience and discretion of the Triors upon hearing their evidence to finde him favourable or not favourable But yet some of them come néerer to a principal Challenge then other As if the Juror be of kindred or under the distress of him in the reversion or remainder or in whose right the Avowrie or Iustification is made or the like These be in principall Challenges because he in Reversion remainder or in whose right the Avowry or Iustification is is not party to the Record otherwise it is if they were made parties by aid Râ—script or Voucher and yet the cause of favour is apparent so it is of all principal causes if they were party to the Record Now the causes of favour are infinite and thereof somewhat may be gathered of that which hath béen said Favour and the rest I purposely leave the Reader to the reading of our Books concerning that matter For all which the rule of Law is that he must stand indifferent as he stands â—â—sworn The Subject may challenge the Polles where the King King is party And if a man be out-lawed of Treason or Felony at the Suit of the King and the party for avoyding thereof alledgeth imprisonment or the like â—t the time of the Outlawry though the Issue be ioyned upon a collateral point yet shall the party have such Challenges as if he had béen arraigned upon the crime it self for this by a meane concerneth his life also Propter delictum As if the Juror be attainted or convicted of Treason or Felony Challenges propter delictun or for any offence to life or member or in attaint for a false Verdict or for perjury as a Witness or in a conspiracy at the Suit of the King or in any Suit either for the King or for any subject be adjudged to the Pillory Tumbrel or the like or to be branded or to be stigmatique or to hâ—ve any other corporal punishment whereby he becommeth infamous Infamous for it is a maxime in Law Repellitur a sacramento infamis these and the like are principal causes of challenge So it is if a man be outlawed Outlawed in trespass debt or any other action for he is Exlex and therefore is not legalis homo And old Books have said that if he be excommunicated he could not be of a Iury. Sée
Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court cannot refuse a Special Verdict The Court cannot refuse it if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned A special Verd ct may be found upon any Issue as upon an eisque hoc c. whether the Iury could finde a Special Verdict upon a special point in Issue or no as they might upon the generall Issue But this question hath béen fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Verdict and finde the matter at large en chescun issue en le monde so that the matteâ— found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions reall personall and mixt and upon all Issues joyned generall or speciall the Iury might finde the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not onely in Cases betwéen party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmitive of the Common Law And as this special Verdict is the safest for the Iury A Free-hold upon Condition without Deed may be sound by Verdict though it cannot be pleaded 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366. 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concernes a Fréehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12. men taken at large in an Assize of Novel disseisin or in any other Action where the Iustice will take the Verdict of 12. Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for terme of life without Déed upon Condition to tender to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessée is seised as of Fréehold and after the Rent is behinde by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Disseisin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for terme of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behinde at any such Feast at which it ought to be paid then it should be lawfull for the Lessor to enter c. By force of which Lease the Plaintiff was seized in his Demesne as of Frée-hold and that afterwards the Rent was behinde at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgement that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same mannor it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue Also in such case Generall Verdict where the Enquest may give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise finde Estoppel Estoppels which cannot be pleaded as in the 2d Report fol. 4. it well appeares where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Déed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23 Eliz. and found the Tenor of the Déed in haec verba Noverint univeâ—si c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Déed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Déed And the Reason of the Iudgement was That although the Obligée in pleading cannot alledge the delivery before the date Note that a Deed may be pleaded to be delivered after the date but not before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. â— as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Déed yet the Jurors who are sworn ad veritatem dicend shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admâ—â—teth the Wast c.
by the Mise of the parties by the same Inquest shall damages Damages be taxed for all And in Mich. 39 H. 6. fo 1. In an Action of Trespass against many who pleaded in Barr the Terme before and one of them made default Writ of Inquiry which was Recorded There it is Resolved by all the Court that for saving of a Discontinuance a Writ of Enquiry of Damages shall be awarded but none shall issue out because he shall be contributory to the damages taxed by the Inquest at the Mise of the parties if it be bound for the Plaintiff and if it be found against the Plaintiff then the Writ of Enquiry shall issue forth And the Reason wherefore no Writ shall issue out at first to inquire of damages untill c. is because that if a Writ should issue out and be executed this is nothing but an Inquest of Office and not at the Mise of the parties and yet this Inquiry if it might be allowed ought to serve for all the damages For inquiry of damages shall not be twice and the others which have pleaded to Inquest if the Issue be found against them shall be chargeable to those damages which are found by the Inquest of Office and if they be excessive they shall have no remedy although there be no default in them for they cannot have an Attaint because it is but an Inquest of Office But in trespass against two Damages by the first Inquest who plead not guilty c. severally and severall Venire fac awarded The Inquest which first passes shall assess damages for all and the second Inquest ought not to assess damages at all but that Defendant shall be contributory to the damages assessed by the first Jury notwithstanding he is not party to it yet if these damages be excessive he shall have an Attaint because though he is a stranger to the Issue yet in Law he is privy in Charge And so no damage or mischief can accrue to him in this Case Verdict when to be supplyed by Writ of Inquiry c. Now let us sée when something is lest out of the Verdict which the Jury ought to have inquired of whether it may be supplyed by matter expost facto and how And for this know that if damages be left out of a Verdict this omission cannot be supplyed by Writ of Inquiry of damages for this would prevent the Defendant of his Remedy by Attaint which would be very mischievous for then such omission might be on purpose to deprive the Plaintiff of his Attaint li. 10. 119. And the Rule is that when the Court ex officio ought to inquire of any thing upon which no Attaint lies There the omission of this may be supplyed by a Writ of Inquiry of damages as in a Quare impedit if the Jury omit to enquire of these 4. things that is to say de plenitudine ex cujus presentatione si tempus semestre transierit and the value of the Church per annum there the Plaintiff may have a Writ to inquire of these points Dyer 241. 260. because of these no Attaint lies as it is holden in 11 H. 4. 80. because that as to these the Inquest is but of Office But in all cases where any â—oint is omitted whereof an Attaint lyeth there this shall not be supplyed by Writ of Inquiâ—y upon which no Attaint lyeth And tâ—erefore in Deâ—inuâ— if the Jury finde Damages and Cost and no value as they ought this shall not be supplyed by Writ of Inquiry of damages for the Reason aforesaid Ib. Et sic in similibus But how then What Verdict set aside because the damages not well assessed shall the Plaintiff loose the benefit of his Verdict because tâ—e Jury assessed no damages or did insufficiently assess them Cerres in such Cases where damages onely are to be recovered he must loose the whole benefit of his Verdict but where any thing else is to be recovered besides damages as in Debt Ejectment c. he may release his Damages and have Iudgement upon his Verdict as to the rest And so where damages are to be recovered if part of them are assessed insufficiently and part well he may have Iudgement for those damages well assessed And oftentimes the iâ—sufficiency of the Declaration shall set aside the Verdict Verdict set aside in part as if an Action upon the Case be brought upon two promises and one of them be insufficiently laid and the Verdict give intire Damages this is naught for the whole But if the Damages had béen severally assessed upon the severall premises then the Verdict as to the promise well laid should have stood In the 11th Report fo 56. Marsh brought a Writ of Annuity against Bentham and the parties discended to issue which was tryed for the Plaintiff and the Arrerages found c. But the Iurors did not assess any damages or Cost which Verdict was insufficient and could not be supplyed by Writ of Inquiry of damages wherefore the Plaintiff released his damages and costs Release of damages where none were assessed and upon this had Iudgement upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict sed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Dyer 22 Eliz. 369. 370. Release of dâ—mages where they were not well assessed In a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lay not for the Heir yet the Plaintiff released his damages and had Iudgement for the Land And Note that insufficient assesment of damages and no assessing is all one Damages and Costs The Iury ought to assess no more damages pro injuria illata then the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and generall signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna intoto se attingunt cum c. More damages than the Plaintiff declares for But if the Iury do assess more damages than the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgement for the residue as in the 1â—th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryall of the Iury assessed damages occasione transgressionis predict ad 49 l. and for costs of suit 20 s. upon which Verdict the Plaintiff at the day in Bank remitted 9 l. parcel of the said 49 l. assessed for damages and prayed Iudgement for 4â— l. to which damage he had counted with increase of Costs of suit Damages remitted and had 9 l. de Incremento added by the Court which in all amounted to â—0 l. and had his Iudgement acâ—ordingly upon which a Writ
of Error was brought and the Iudgeâ—ent affirmed For as in reall actioâ—s the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the case of Costs he shall recover for the expences depenâ—ing the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past Damages in reall and personall actions and not to expences of suit For in personall actions he counts to damages because he shall recover damages onely for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in reall actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages and costs intirely together Damages and Costs intirely assessed without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs then the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover onely so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 1â— H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20. marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22. marks and the Verdict was held to be good for 20. marks and void for the residue because it doth not appear how much was intended for damages and how much for costs so that there may be more damages then the Plaintiff declared for or lesse and so the Court knowes not 〈◊〉 to increase the cost whereâ—â—e he shall have Iudgement but â—20 marks by reason of the inâ—â—â—tainty Where a special Verdict is not â—â—tred according to the Notes Verdict amended by the notes the â—â—cord may be amended and made â—grée with the notes at any time â—â—ugh it be 3 or 4 c. Termes afâ—â—r it is entred lib. 4. 52. lib. 8. 162. â—â—o 1 part 145. If the matter Form Hob. 54. and substance of â—â—e Issue be found it is sufficient â—â—r precise forms are not required â—â—y Law in special Verdicts which â—â—e the finding of Lay-men as in Pleadings which are made by men â—urned in the Law and therefore â—tendment in many cases shall â—â—lp a special Verdict as much as 〈◊〉 Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury finde generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they finde that he was made Deputy by Déed because it doth tantamount lib. 9.51 And in the 5th Report Goodales Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. III conclusion In all Cases where the Iury finde the matter committed to their charge at large and over more conclude against Law the Verdict is good More 105. 269. and the conclusion ill li. 4. 42. and the Iudges of the Law will give Iudgement upon the speciall matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Where the Dâ—claration in Trespas is Cum aliquibus averiis As generall as the Narr of a number uncertain and the Verdict is as generall as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione â—irme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per non ina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton that this Verdict was imperfect in all Quoad Residuum incertain For when the Iury finde that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they finde quoad residuum the special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2. part 113. Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10. acres and Quoad Residuum Quod Residâ—um not guilty and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances Circumstances upon an Evidence given to incite them to finde fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury maâ— finde Circumstances and presumâ—tions upon which the Court ought to judge As to finde that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that the Husband assented to the devise at first More 192. Where a Verdict is certainly â—iven at the Tryall Postea amended how and uncertainly returned by the Clerk of the Asâ—izes c. The Postea may be amended upon the Iudges certifyâ—ng the truth how the Verdict was given Cro. 1. part 338. In many Cases a Verdict may â—ake an ill Plea or Issue good Ill Plea made good by Verdict As 〈◊〉 an action for words Thou wast â—erjured and hast much to answer for 〈◊〉 before God Exception after Verdict for the Plaintiff in arrest â—f Iudgement For that it is not â—nd in the Declaration that he â—pake the words in auditu compluriâ—orum or of any one according to â—he usuall form sed non allocatur for â—â—ing found by the Verdict that he â—pake them it is not materiall alâ—hough he doth not say in auditu â—urimorum whereupon it was adâ—udged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place â—f payment was alledged yet the â—ayment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the
battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in trespass de clauso fracto of the Barons Baron Feme which ought not to be But for the Battery of the feme they may joyn whereto all the Court agreed But it was moved that in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespas by Baron and Feme for the battery of both The Defendant pleaded Not guilty and found guilty and damages assessed for the Battery of the Baron by its self and for the Battery of the Feme by its self and Iudgment was given for the damages for the battery of the feme the Writ abated for the residue And of that opinion was Lea Chief Justice Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife Rochel and his Wife against Steel brought an action of trespass and assault in the Exchequer Hill 16. 59. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but â—â—und nothing concerning the Husband Wherefore Iudgment was stayd but the Barons held that if the Iury had found the Defendants not guilty as to the Husband then the Verdict had helped the Declaration and the Plaintiff should have had Iudgment for the damages for the battery of the Wife Of what a Verdict may be The Iury may finde any thing that may be given in Evidence to them as Records either Patent Statute or Iudgment Things done in another County Plo. Com. 411. or Country for which sée Evidence before Hob. 227. And of these things they ought to have Conusance they are to have Conusance also of all Incidents Incidents and dependants thereupon for an Incident is a thing necessarily depending upon another Co. Littleton 227. b. The Verdict may be against the Letter of the Issue so the substance is found If the matter and substance of the Issue be found it is sufficient though it be against the Letter of the Issue As in the first Institutes fo 114. b. A modus decimandi was alledged by prescription time out of minde for Tythes of Lambs And thereupon Issue ioyned And the Iury found that before twenty years then last past there was such a prescription Prescription and that for these twenty years he had payd Tythe Lamb in specie And it was objected first that the Issue was found against the Plaintiff for that the prescription was generall for all the time of the prescription and 20. years fail thereof 2. That the party by payment of Tythes in specie had waved the prescription or custome But it was adjudged for the Plaintiff for albeit the modus decimandi had not béen payd by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assise of Darrein Presentment if the Plaintiff alledge the avoydance of the Church by privation Avoydance and the Jury finde the voydance by death the Plaintiff shall have judgement for the manner of voydance is not the title of the Plaintiff but the voydance is the matter 1 Instit 282. If a Gardein of an Hospitall bring an Assise against the Ordinary Deprivation he pleadeth that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron the Ordinary shall have judgement for the deprivation is the substance of the matter Ib. The Lessée Covenants with the Lessor not to cut down any Trées c. and binds himself in a Bond of 40. pounds for the performance of Covenants The Lessée cut down 10. Breach of 20. Trees cut down for 10. Trées the Lessor bringeth an action of debt upon the Bond and assigneth a breach that the Lessée cut down 20. Trées whereupon Issue is joyned and the Jury finde that the Lessée cut down ten Judgment shall be given for the Plaintiff for sufficient matter of the Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminall Causes For if A. be appealed or indicted of Murder viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo forma Indictment of Murder and Verdict findes Manslaughter yet the Jury may finde the Defendant guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and malice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma Modo forma are not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not finde the precise Issue As if a man bring a Writ of Entry in casu proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the alienation made in Fée and the Tenant saith that he did not alien in Manner as the Demandant hath declared Alienation and upon this they are at Issue and it is found by Verdict that the Tenant aliened in tail or for terme of another mans life The Demandant shall recover yet the alienation was not in manner as the Demandant hath declared Littleton Sect. 483. Also if there be Lord Tenant the Tenant hold of the Lord by fealty onely the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespas against his Lord Trespass by the Tenant against the Lord. for his Cattel so taken and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behinde he came to distrain c. And demand Iudgement of the Writ brought against him Quare vi armis c. And the other saith that he doth not hold of him in manner as he supposed and upon this they are at Issue And it is found by Verdict that he holdeth of him by fealty onely in this case the Writ shall abate and yet he â—oth not hold of him in manner as the Lord hath said For the matter of the Issue is whether the Tenant holdeth of him or no for if he holdeth of him although that the Lord distrain the Tenant for other services which he ought not to have yet such
and because it was delivered on his part for whom the Verdict passed without the Courts assent yet one Book scil Cro. last part 411. tells us Iudgement was afterwards given for the Plaintiff sée Mores Reports 452. The Books differ Consider the Reasons in the former cases for Cro. makes Clinch give his opinion for the Verdict But More brings him on the other side which I conceive is truest and for my part I know no reason why foisting of Evidence to the Iury out of Court should have any favour at all Hill 40 Eliz. Rot. 847. In arrest of Iudgment after Verdict Escrowle from one who was no party it was alledged that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Eviâ—ence at the Tryall and adjudgeâ— no cause to arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. In a Writ of Error the first Error assigneâ— was that Termino Trin. twelve Iurors and no more did appear Jury adjourned This ex assensu partium was adjourned untill Crastino Animar on which day two others came in and were sworn being of the first Pannel The Court all clear of opinion that this is no error this being good enough they being all to be called again Leon. 3. part 38. If a Iuror depart Juror depart after he is sworn he shall be fined and imprisoned and by assent of parties another Iuror may be sworn Bro. Jurors 46. lib. 5. 40. If a man be non-suited after the Jury is ready to give their Verdict the Court may cause the Amercement of the Plaintiff to be presently offered by the Iurors li. 8. 39. CAP. XV. What punishment the Law hath provided for Jurors offending as taking reward to give their Verdict Of Embracâ—ors Dâ—cies tantum Attaint several fines on Jurors What Issues they forfeit and of Judgement for striking a Juror in Westminster YOu have already heard how the Court may fine the Iurors for their misdemeanors in giving up their Verdict I will procéed in shewing what punishments they are lyable unto if they neglect their duty and doubtless no men have more néed of knowing what penalties the Law inflicts on their offences then common Iurors who too often being preingaged with favour to the Plaintiff or malice against the Detendant Et sic e converso or with common Interest as they call it where Tythes or Commons are in question will neither hearken to their Evidence nor â—â—rection of the Iudge But subvert the whole drift of the Common Law which will have them of the Neighbour-hood where the fact was committed to the end that they knowing most of the fact may consequently give the best Verdict yet contrarywise Iurors which live nearest do now a dayes most commonly so fetter themselves with favour or animosities to the parties that those which live furtheâ— off as Iuries from other Counties for the most part gide the cleanest Verdicts And how should the Iudges remedy this mischief but by severely punishing those Iuries which offend the Law in this will be their Guide for without doubt excepting life and member tâ—e Law hath provided more severe punishments against Iuries then against any other offendor whatsoever as well knowing that corruptio optimi est pessima And common Iurors generally have nothing to do with this verse Oderunt peccare boni virtutis amore Therefore 't is fit they should be concerned in the next Oderunt peccare mali formidine poenae wherefore the description of what this poena is shall be the conclusion of this Treatise If any Iuror take a reward to give his Verdict The penalty of Jurors taking rewards and be thereof attainted at the suit of other than the party and maketh fine he which sueth shall have half the fine and if any of the parties to the Plea bring his Action against such Juror he shall recover his damages And the Juror so attainted shall have imprisonment for one year which imprisonment shall not be pardoned for any fine this is by the Statute of 34 E. 3. cap. 8. 5 E. 3. ca. 10. It is accorded Shall not serve of any other Inquest That if any Juror in Assises Juries or Enquests take of the one party or of the other and be thereof duly attainted That hereafter he shall not be put in any Assises Iuries or Enquests and nevertheless he shall be commanded to prison Imprisoned and ransomed that is fined and further ransomed at the Kings will And the Iustices before whom such Assises Iuries and Enquests shall passe shall have power to enquire and determine according to this Statute A man would think that these Statutes should have frighted any Iuror from taking Rewards to give his Verdict But Quid non mortalia pectora cogis Auri sacra fames So sacred is this love of money that Conscience her self must vail to it and not stand in competition with such allurements wherefore the Law did redouble its force nay more produced a Decies tantum scil That a Iuror taking reward to give his Verdict shall pay ten times so much as he hath taken which forfeiture my thinks should make even those who love money best refuse to take mony upon such an account because it is like a Canker in their Estates depriving them in the end of ten times more then it brought for which hear the Statute 38 E. 3. cap. 12. Deâ—ies tantum Item As to the Article of Iurors in the 24th year it is assented and joyned to the same that if any Iurors in Assises sworn and other Enquests to be taken betwéen the King and party or party and party do any thing take by them or other of the party Plaintiff or Defendant to give their Verdict and thereof be attainted by process contained in the same Article be it at the suit of the party that will sue for himself or for the King Embraceor or any other person every of the said Iurors shall pay ten times as much as he hath taken And he that will sue shall have the one half and the King the other half And that all Embraceors that bring or procure such Enquests in the Country to take gain or profit shall be punished in the same manner and form as the Iurors And if the Iuror or Embraceor so attainted have not whereof to make grée in the manner aforesaid he shall have the imprisonment of one year And the intent of the King of Great men and of the Commons is That no Iustice or other Minister shall enquire of office upon any of the points of this Article but onely at the Suit of the party or of other as afore is said Vpon which Statute there is a Writ called a Decies tantum and who will may bring it for it is a popular Action and lies as you sée where any of the Iurors after he is sworn taketh of one party or of the
other or of both and then he is called an Ambidexter Ambidexter any reward to give his Verdict c. And it may be brought against all the Iurors and Embraceors So F. N. Br. saith But for my part I think he is mistaken for the Statute mentioneth nothing of his taking money and in my opinion the case of 37 H. 6. 13. is full against hiâ— although they take severall sums of money and although the Jury give no Verdict or a true Verdict But it doth not lie against an Embraceor if he taketh no money and imbraces or taketh money and doth not embrace Sée Bro. Tit. Decies tantum 13. and F.N. Br. 171. An Imbraceor Imbraceor is he that procures the Jurors in the Country to take gain or profit or comes to the Barr with the party and speaks in the matter or stands there to survey the Jury c. or to â—ut them in fear or solicits them to find on the one side or other and this Fellow cloaks his Embracery under pretence of labouring the Jurors to appear and to do their Conscience And thus the â—tturneys in the Country often take upon them to do Attorneys ill practice and many times put in a word or two for their Clyents which practice deserves the most severe punishment next to their getting the Sheriff to return such and such in the Jury which they having béen Vnder-Sheriffs themselves and so agrée with one another are most expert at But Counsellors Counsellors at Law may plead for their money at the Barr But they must not labour the Jury privately and if they take money for tâ—is they are Imbraceors F. N. 6. 171. So much doth the Law hate Fined for taking money after their Verdict that Jurors should privately take money for their Verdict That certain Jurors were fined for taking money after their Verdict though there was no preingagement for it 39 Assise p. 19. A Juror was challenged and six other Iurors were â—â—orn to try the Challenge who found him indifferent Jury fined for departing when he was challenged and thereupon the Iury was demanded but did not appear for which default he was fined the value of his Lands for a year and the other Iurors inquired of the value c. although the other party then would have challenged him when he was demanded so that he might have béen treit But the Court would not admit this because then the King would have lost his Fine 36 H. 6. 27. Juror adjourned upon pain If a Iuror appear and is adjoyned upon pain and makes default in this Case because he shall be fined to the value of his Land per annum this shall be inquired by his Companions of the Iury because the Court knowes not the value of his Land li. 8. 41. A Verdict was taken from the Fore-man of the Jury Fined for giving a Verdiâ—â— before they were agreed to which one of them did not assent and damages assessed to 20 s. in trespass and assault and afterwards every one of the 11. were fined for giving their Verdict before they were all agréed 40 Assise 10. Where a Iury are to be fined a Fine joyntly imposed on them The Fine must not be joynt is not legall but they must be severally fined because the offence of one is not the offence of another Et nemo debet puniri pro alieni delicto For then it might be said Rutilius fecit Aeimilius plectitur lib. 11. 42. A man stroke a Juror at Westm sitting in the Court who passed against him Punishment for striking a Juror and he was thereof indicted and arraigned at the Kings Suit and attainted his judgment was that he should go to the Tower and stay there in prison all dayes of his life and that his right hand should be cut off and his Lands seized into the Kings hands 41 Assise p. 25. and now our Juror sées what punishment it is to strike him in the face of the Court. Let him hold his hands from others least the same Iudgment light on him By the Statute of 27 Eliz. cap. 6. It is Enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius 10 s. shall be returned in Issues upon every person impannelled and upon the second Writ 20 s. and upon the 3 d Iâ—â—â— 30 s. And upon every Writ that shall be further awarded to try any Issue to double the Issues last afore specified untill a full Jury be sworn Not summoned But if the Under Sheriff c. return a Juror summoned who in truth was not legally summoned therefore doth not appear and so looseth Issues the Vnder-Sheriff shall pay him double the value of the Issues lost Sée the Statutes of 35 H. 8. 6. and the 2 E. 6. 32. And note the Law hath béen so careful to punish all offenders who would endeavour to byass and corrupt the Iury and to punish the Juries themselves if they receive money to give their Verdict or any otherwise pre-ingage themselves to any of the parties All which is to the end that a true and honest Verdict may be given What punishment shall that Jury have which gives a false Verdict Such a punishment that as I said before in civill Causes it is without example and surely if the Iurors did bear it in their minds their Verdicts would be alwayes grounded upon their Evidence and not upon their own Interests or any partiality to either of the parties Wherefore if the Iurors give a false Verdict which is perjury of the highest degrée upon an Issue joyned betwéen the parties in any Court of Record and judgement thereupon The party grieved may bring his Writ of Attaint Attaint in the Kings-Bench or Common-Pleas upon which 24. of the best men in the County are to betâ—e Iurors who are to hear the same Evidence which was given to the Petite Iury and as much as can be brought in affirmance of the Verdict but no other against it And if these 24. who are called the Grand Iury finde it a false Verdict then followeth this terrible and heavy judgement at Common Law upon the Petite Iury. Judgement in Attaint 1. That they shall loose liberam legem for ever that is they shall be so infamous as they shall never be received to be a Witness or of any Iury. 2. That they shall forfeit all their Goods and Chattels 3. That their Lands and Tenements shall be taken into the Kings hands 4. That their Wives and Children shall be thrown out of doors 5. That their Houses shall be rased and thrown down 6. That their Trées shall be â—â—ted up 7. That their Meadow-grounds â—hall be plowed up 8. That their bodies shall be â—ast into the Goal and the party â—hall be restored to all that he lost by reason of the unjust Verdict So odious is perjury in this Case in the eye of the Common-Law And the severity of this punishment is to this end Ut poena ad paucos metus ad omnes perveniat for there is Misericordia puniens and there is Crudelitas parcens And séeing all Tryals of reall personal and mixt actions depend upon the Oath of 12. men prudent Antiquity inflicted this severe punishment upon them if they were attainted of perjury 1 Inst 294. But now by the Stat. of 23 H. 8. cap. 3. The severity of this punishment is moderated if the Writ of Attaint be grounded upon that Statute But the party grieved may 〈◊〉 his Election either bring his Wiâ— of Attaint at the Common-Law 〈◊〉 upon that Statute Wherefoâ— let the Iuror expect the greatest puâ—ishment when he offends 3 Inst 16 222. And so I conclude with the wordâ— of Fortescue Quis tunc etsi immâ— mor salutis animae suae fuerit non foâ— midine tantae poenae verecundiâ— tantae infamiae veritatem non dicere sic Juratus Who then though he regard not his Souls health yet for fear of so great punishment and for shame of so great infamy would not upon his Oath declare the truth FINIS