the Plaintiff was seized in his Demesn as of Fréehold and that afterwards the Rent was behind at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgment that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same manner it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue But in Assise of Rent it cannot be found to be upon Condition unless they also find the Deed of the Condition So of a Confirmation in Fee to Lessée for years Per Hale Ch. Just Guild-hall Hill 1671. A Special Verdict may be found as to Damagâ—s in an Action of the Case as the Case was there viz. Pro Quer ' and if so c. then such Damages if so c. then Damages such and he said he had known it so done in Debt and the Damages three ways Also in such case where the Enquest may General Verdict give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise find Estoppel Estoppels which cannot be pleaded as in the 2 d Report fol. 4. it well appears where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Deed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23. Eliz. and found the Tenor of the Déed in haec verba Noveriat universi c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Deed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Deed And the Reason of the Iudgment was That although the Obligèe in Note that a Deed may be plâ—aded to be delivered after the dare but nor before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. pleading cannot alledge the delivery before the date as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Deed yet the Jurors who are sworn ad veritatem dicâ—nd shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance be As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admitteth the Wast c. 9 H. 6. 66. and the Jury cannot find no Wast for that would be against the Record Estoppel within the same Record in which the Issue is joyned upon which the Jurors give their Verdict there they cannot find any thing against this which the parties have affirmed and admitted of Record although it be not true For the Court may give Iudgement upon a thing confessed by the parties and the Jurors are not to be charged with any such thing but only with things in which the parties vary Ib. li. 5. 30. So Estoppels which bind the Interest of the Land as the taking of a Lease of a mans own Laâ—d by Déed indented and the like Cro. 1. part 110. Lib. 4. 53. being specially found by the Iury the Court ought to judge according to the special matter for albeit Estoppels regularly must be pleaded and relyed upon by apt conclusion and the Iury is sworn ad veritatem dicend yet when they find veritatem facti they persue well their Oath and the Court ought to adjudge according to Law So may the Iury find a Warranty being given in Evidence though it be not pleaded because it bindeth the right unless it be in a Writ of Right Warranty not pleaded when the Mise is joyned upon the méer right 1 Inst 227. Verdicts ought to be such that the Court Uncertain Verdicts may go clearly to Indgment thereon and therefore Verdicts finding matter incertainly or ambiguously are insufficient and void and no Iudgment shall be given thereupon As if an Executor plead Plene Administravit and Issue is joyned thereon and the Jury find that the Defendant hath Goods within his hands to be administred but find not to what value this is an uncertainty and therefore an insufficient Verdict li. 9. 74. 1 Inst 227. It is the Office of the Jurors to shew the The Office of the Jury verity of the fact and leave the Iudgment of the Law to the Court. And therefore upon an Indictment of Murder quod felonice per cussit c. If the Iury find per cussit tantum yet the Verdict is good for the Iudges of the Court are to resolve upon â—he special matter whether it was felonice and so Murder or not li. 9. 69. And if the Court adjudge it Murder then the Jurors in the conclusion of their Verdict find the Felon guilty of the murther contained in the Indictment A Verdict that finds part of the Issue and Verdict finding part of the Issue finding nothing for the rest is insufficient for the whole because they have not tryed the whole Issue wherewith they are charged As if an Information of intrusion be brought More 406. against one for intruding into a Messuage and 100 Acres of Land upon the general Issue the Iury find against the Defendant for the Land but say nothing for the House this
is insufficient for the whole But if the Iury give a Verdict of the whole Finding more than the Issue Issue and of more c. That which is more is Surplusage and shall not stay Iudgment for Utile per inutile non vitiatur Leon. 1 part 66. Gro. 1 part 130. But necessary incidents required by Law the Iury may find Yet in many Cases nay almost in all Where the Verdict ought to be of more than is in the Issue the Iury ought to find more than is put in Issue otherwise their Verdict is not good and therefore they are to assess Damages and Cost because it is parcel of their Charge as a Consequent upon the Issue though tâ— be not part of the Issue in terminis li. 10. 119. An Action of the Case on Deceit was brought for that he sold unto the Plaintiff two Oxen and warranted them to be sound on not Guilty the Iury found him Guilty as to one and not Guilty to the other and good for that the Action was founded not on the Contract but the Deceit 3 Cro. 884. Gravenor and Mete In Debt the Plaintiff declares that he had Iudgment against Baron and Feme for a Debt of the Wives dum sola c. that they were in Execution and suffered to Escape the Iury found the Husband only in Execution and Escaped and Iudgment for the Plaintiff Roberts versus Herbert Hill 12. Car. 2. C. B. So in Trespass against two one comes Damages by the first Inquest and pleads Not guilty and is found guilty In this case the first Inquest shall assess damages for the whole Trespass by both Defendants and afterwards the other comes and pleads Not guilty and is found guilty The finding of Damages by the first Inquest to which he was not party shall bind him and therefore if the Damages are outragious and excessive the Defendant Attaint in the last Enquest shall have an Attaint li. 10. 119. So in Trespass Quare clausum fregit if Issue be joyned upon a Feoffment and the Jury give outragious Damages An Attaint lies for the inquiry of Damages is consequent and dependant upon the Issue and parcel of their charge Ibidem In the 11th Report fo 5. It was resolved Damages by the first Inquest That in Trespass against two where one comes and appears c. against whom the Plaintiff declares with a simul Cum c. who pleads and is found guilty and Damages assessed by the Enquest and afterwards the other comes and pleads and is found guilty The Defendant which pleaded last shall be charged with the Damages taxed by the first Inquest for the Trespass which the Plaintiff had made joynt by his Writ and Count and done at one time cannot be severed by the Jurors if they find the Trespass to be done by all at one and the same time as the Plaintiff declared So in the Trespass against divers Defendants Several Damages Vide Devant ca. 4. if they plead not guilty or several Pleas and the Jury find for the Plaintiff in all the Jurors cannot assess several Damages against the Defendants because all is but one Trespass and made joynt by the Plaintiff by his Writ and Count. And although that one of them was more malicious and de facto did more and greater wrong than the others yet all came to do an unlawful act and were of one party so that the act of one is the act of all of the same party being present But in Trespass against two if the Jurors find one guilty at one time and the other at another time there several Damages may be taxed But if the Plaintiff bring an Action of Trespass against two and declare upon a several Trespass his Action shall abate And this is the diversity betwéen the fâ—nding of the Jury and the confession of the party And in Trespass where the Defendants plead several Pleas all tryable by one Jury and they find generally for the Plaintiff the Jurors cannot sever the Damages if they do their Verdict is vicious But in Trespass against two where one Judgment de melioribus dampnis appears and pleads not guilty to a Declaration against him with a simul Cum c. and afterwards the other appears and pleads not guilty to a Declaration against him also with a simul Cum c. Whereupon two Venire fac issue out and one Issue tryed after the other and several Damages assessed in judgment of the Law the several Juries give one Verdict all at one time and the Plaintiff hath his Election to have judgment de melioribus dampnis by any of the Inquests And this shall bind all but fiat nisi una Executio It is a Maxim That in every case where Damages an Inquest is taken by the Mise of the parties by the same Inquest shall 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 Term before and one of them made default which was Recorded Writ of Inquiry 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 found 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 until 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 who plead Damages by the first Inquest not guilty c. severally and several 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 Now let us sèe when something is left Verdict when to be supplied by Writ of Inquiry c. out of the Verdict which the Jury ought to have inquired of whether
it may be supplied by matter ex post facto and how And for this know that if damages be left out of a Vide hic cap. 6. Verdict this omission cannot be supplied by Writ of Inquiry of damages for this would prevent the Defendant of his Remedy by Attaint which would be very mischievous for then such omission might be on purpose to deprive the Plaintiff of his Attaint li. 10. 119. And the Rule is That when the Court ex officio ought to inquire of any thing upon which no Attaint lies There the omission of this may be supplyed by â— Writ of Inquiry of damages as in a Quar impedit if the Jury omit to enquire of these 4 things that is to say de plenitudine ex cujus presentatione si tempus semestre transierit and the value of the Church per annum there the Plaintiff may have a Writ to inquire of these points Dyer 241. 260. because of these no Attaint lies as it is holden in 11 H. 4. 80. because that as to these the Inquest is but of Office But in all cases where any point is omitted whereof on Attaint lyeth there this shall not be supplyed by Writ of Inquiry upon which no Attaint lyeth And therefore in Detinue if the Jury find Damages and Cost and no value as they ought this shall not be supplyed by Writ of Inquiry of damages for the Reason aforesaid Ib. Et sic in similibus But how then What shall the Plaintiff Verdict set aside because the damages not well assessed loose the benefit of his Verdict because the Jury assessed no damages or did insufficiently assess them Certes in such Cases where damages only are to be recovered he must loose the whole benefit of his Verdict but where any thing else is to be recovered besides damages as in Debt Ejectment c. he may release his damages and have Iudgment Release Damages upon his Verdict as to the rest And so where damages are to be recovered if part of them are assessed insufficiently and part well he may have Iudgment for those damages well assessed And oftentimes the insufficiencâ— Verdict set aside in part of the Declaration shall set aside the Verdict as if an Action upon the Case be brought upon two promises and one of For insufficiency in the Declaration them be insufficiently laid and the Verdict give intire damages this is naught for the whole But if the Damages had been severally assessed upon the several promises then the Verdict as to the promise well laid should have stood In the 11th Report fo 56. Marsh brought a Writ of Annuity against Bentham and the parties discended to issue which was tryed for the Plaintiff and the Arrerages found c. But the Iurors did not assess any damages or Cost which Verdict was insufficient and could not be supplyed by Writ of Inquiry of damages wherefore Release of damages where none were assessed the Plaintiff released his damages and costs and upon this had Iudgment upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict fed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Detinue of Charters or non detinet Verdict for the Plaintiff and Damages but the Iury did not find the value of the Déeds and a Writ of Inquiry was awarded to that purpose and returned and ruled good and by Twisden Just Debt against Executor who pleads plenè c. and it 's fouâ—d against him and the Iury give no damages that can't be aided by Writ of Inquiry Burton versus Robinson Pasch 17 Car. 2. B. R. In Dyer 22 Eliz. 369. 370. In a Wri Release of damages where they were not well assessed of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lay not for the Heir yet the Plaintiff released his damages and had Iudgment for the Land And Note that insufficient assessment of damages and no assessing is all one The Iury ought to assess no more damages Damages and Costs pro injdria illata than the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and general signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna in toto se attingunt cum c. But if the Iury do assess more damages More damages than the Plaintiff declares for then the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgment for the residue as in the 10th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryal the Iury assessed damages occasione transgressionis prâ—dict ad 49 l. and for costs of Suit 20 s. upon which Verdict the Plaintiff at the day in Bank remitted 9 l. parcel of the said 49 l. assessed for damages and prayed Iudgement for 40 l. Damages remitted to which damage he had counted with increase of costs of suit and had 9 l. de Incremento added by the Court which in all amounted to 50 l. and had his Iudgment accordingly upon which a Writ of Error was brought and the Iudgment affirmed For as in real Actions the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the ease of Costs he shall recover for the expences depending the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past and not to expences of Suit For in personal Actions he counts Damages in real and personal Actions to damages because he shall recover damages only for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in real Actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages Damages and Costs intirely assessed and costs intirely together without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs than the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover only so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 13 H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20 marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22 marks and the Verdict was held to be good for 20 marks and void for the residue because it doth not appear how much
was intended for damages and how much for costs so that there may be more damages than the Plaintiff declared for or less and so the Court knows not how to increase the cost wherefore he shall have Iudgment but for 20 marks by reason of the incertainty Where a special Verdict is not entred according Verdict amended by the Notes to the Notes the Record may be amended and made agrée with the Notes at any time though it be 3 or 4 c. Terms after it is entred lib. 4. 52. lib. 8. 162. Cro. 1 part 145. In the Case of Turnor and Thalgate Mich. 1658. B. R. It was said per Cur ' That special Verdicts may be amended by the Notes but the Notes cannot be amended or inlarged by any Averment or Affidavit for that were to fâ—â—d a Verdict by the Court. Yet in that Case where the Notes were that the Iudgment c. was vacated pro ut per Rule the Verdict was amended vacated per Cur ' pro ut per Rule for so is implied in the Notes See a Verdict amended by the Notes after Iudgment and Error brought Rolls 1 part Reports 82. If the matter and substance of the Issue Form Hob. 54. be found it is sufficient for precise forms are not required by Law in special Verdicts which are the finding of Lay-men as in Pleadings which are made by men learned in the Law and therefore intendment in many Cases shall help a special Verdict as much as a Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury find generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they find that he was made Deputy by Déed because it doth tantamount lib. 9. 51. And in the 5th Report Goodale's Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. In all Cases where the Iury find the matter Ill conclusion committed to their charge at large and over more conclude against Law the Verdict is good and the conclusion ill li. 4 42. and More 105. 269. the Iudges of the Law will give â—udgment upon the special matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Vide Devant Where the Declaration in Trespass is As general as the Narr Cum aliquibus averiis of a number uncertain and the Verdict is as general as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione firme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per nomina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton That this Verdict was imperfect in all For when the Quoad Residuum incertain Iury find that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 Acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they find quoad residuum tne special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that Opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2 part 1â—3 Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10 Acres and Quoad Residuum not guilty Quoad Resisiduum and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten Acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances upon Circumstances an Evidence given to incite them to find fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury may find Circumstances and presumptions upon which the Court ought to judge As to find that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that More 192. the Husband assented to the devise at first Where a Verdict is certainly given at the Postea amended how Tryal and uncertainly returned by the Clerk of the Assizes c. The Postea may be amended upon the Iudges certifying the truth how the Verdict was given Cro. 1. pâ—rt 338. In many Cases a Verdict may make an ill Ill Plea made good by Verdict Plea or Issue good As in an Action for words Thou wast perjured and hast much to answer for it before God Exception after Verdict for the Plaintiff in arrest of Iudgment For that it is not laid in the Declaration that he spake the words in auditu complurimorum or of any one according to the usual form sed non allocatur for being found by the Verdict that he spake them it is not material although he doth not say in auditu plurimorum whereupon it was adjudged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place of payment was alledged yet the payment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in Trespass Baron Feme de clauso fracto of the Barons which ought not to be But for the Battery of the feme they may joyn whereto all the Court agréed But it was moved That in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespass by Baron and Feme for the Battery of both The Defendant pleaded Not guilty and found guilty and damages assessed
for the Battery of the Baron by its self and for the Battery of the Feme by its self and Iudgment was given for the damages for the batâ—ery of the feme and the Writ abated for the residue And of that Opinion was Lea Chief Justice and Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Palmer's Reports 338. Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife brought an Action of Trespass and Assault in the Exchequer Rochel and his Wife against Steel Hill 1659. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but found nothing concerning the Husband Wherefore Iudgment was stayd but the Barons held That if the Iury had found the Defendants not guilty as to the Husband then the Verdict had helped the Declaration and the Plaintiff should have had Iudgment for the Damages for the Battery of the Wife The Iury may find any thing that may be Of what a Verdict may be given in Evidence to them as Records either Patent Statute or Iudgment Things Plo. Com 411. done in another County or Country for which sée Evidence before Hob. 227. And of those things they ought to have Conusance they are to have Conusance also of all Incidents and dependants thereupon for an Incident is a thing necessarily depending Incidents upon another Co. Littleton 227. b. If the Verdict may by any ways be construed How construed good a construction to destroy it ought not to be made If one of the Iury be Outlawed when the Verdict is found the Verdict is not good but Outlaw may be reversed by Error In a special Verdict the case in Fact must be found clear to a Common intent without Equivocation Vaughan's Reports 78. If the Iury collect the Contents of a Contents of a Deed. Deed and also find the Déed in haec verba the Court is not to Iudge upon their Collection but upon the Déed it self The Iury may find the Contents of a Déed or Will proved by Witnesses Ibidem Trespass for disturbing him of his Common Common belonging to 100 Acres and the Iury find Common for 50. this is for the Plaintiff otherwise upon an Avoury or Quod permittat which are founded upon the right but the Trespass is for Damages Palmer's Rep. 289. If the matter and substance of the Issue The Verdict may be against the Letters of the Issue so the substance is found be found it is sufficient though it be against the Letter of the Issue As in the first Institutes fo 114. b. A Modus decimandi was alledged by prescription time out of mind for Tythes of Lambs And thereupon Issue joyned And the Iury found that before twenty years then last past there was such a prescription and that for these twenty Prescription years he had payd Tythe Lamb in specie And it was objected first That the Issue was found against the Plaintiff for that the prescription was general for all the time of the prescription and 20 years fail thereof 2. That the party by payment of Tythes in specie had waved the prescription or custom But it was adjudged for the Plaintiff for albeit the modus decimandi had not been paid by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assiise of Darrein Presentment if the Avoydance Plaintiff alledge the avoydance of the Church by privation and the Jury find the voydance by death the Plaintiff shall have Iudgment for the manner of voydance is not the title of the Plaintiff but the voydance is the matter 1 Instit 282. If a Gardein of an Hospital bring an Assise against the Ordinary he pleadeth that Deprivation in his Visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron the Ordinary shall have judgment for the deprivation is the substance of the matter Ib. The Lessee Covenants with the Lessor not to cut down any Trées c. and binds himself in a Bond of 40 pounds for the performance of Covenants The Lessee cut down 10 Trees the Lessor bringeth an Action Breach of 20 Trees cut down for 10. of Debt upon the Bond and assigneth a breach that the Lessée cut down 20 Trées whereupon Issue is joyned and the Jury find that the Lessée cut down ten Iudgment shall be given for the Plaintiff for sufficient matter of Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminal Causes For if A. be appealed or indicted of Murder viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo forma yet the Jury may find the Defendant Indictment of Murder and Verdict finds Manslaughter guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and mâ—lice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma are Modo forma not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not find the precise Issue As if a man bring a Writ of Entry in câ—su proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the Alienation made in Fee and the Tenant saith that he did not Alien in Manner as the Demandant hath declared Alienation and upon this they are at Issue and it is found by Verdict that the Tenant aliened in tail or for term of another mans life The Demandant shall recover yet the Alienation was not in manner as the Demandant hath declared Littleton Sect. 483. Also if there be Lord and Tenant and the Tenant hold of the Lord by fealty only and the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespass against his Lord for his Cattel so taken Trespass by the Tenant against the Lord. and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behind he came to distrain c. And demand Iudgment of the Writ brought against him Quare vi armis c. And the other saith That he doth not hold of him in manner as he supposed and upon this they are at Issue And it is found by Vâ—rdict that he holdeth of him by fealty only in this case the Writ shall abate and yet he doth not hold of him in manner as the Lord hath said For the matter of the Issue is Whether the Tenant holdeth of him or no for if he holdeth of him although that the Lord distrain the Tenant for other services which he ought not to have yet such Writ of Trespass Quare vi armis c. doth not lye against the Lord but shall
that the Land was held in Socage yet this is good for this shall be intended this being a Collateral thing and this being the most common Tenure If they find that he was seised and made his Will in haec verba c. although they Will. do not find that he Devised the Land as in the former yet this is good by intendment But if a thing is left out and cannot be intended the Verdict is not good If the Issue be whether the Sheriff took J. S. and kept him in Prison in Execution for certain Debt and Damages by force of a Cap. ad Sa. and the Iury find that he took him by force of an alias Cap. ad Sa c. although they do not find that he kept him in Execution for the Debt and Damages aforesaid according to the Issue yet this is a good Special Verdict for it shall be intended for the Consequence is necessary from this which is found for he could not take him but that he must be in Execution Vide several instances of this Roll. tit Tryal 697 c. If the Iury find that J. S. was seised in Fée and made his Will in haec verba and that he afterwards died although they do not find that he died seised yet it shall be Will. intended that he died seised and so good If they find that A. did Bargain and Bargain and Sale Sell c. although they do not find any consideration yet this shall be intended So if they find that such persons Authorizati Letters Patents virtute literarum patentium dominae Elizabethae c. and do not find that the Letters Patents were under the Great Seal yet this shall be intended Verdicts of Lay-men shall be taken according to their intent and néed not so precise a form as in Pleadings lib. 4. 65. Hob. 76. Therefore if the Iury find a Recognizance in nature of a Statute Staple in this manner That the Conusor came before R. O. Recorder of London and T. O. Maior of the Staple Et recognovit se debere to B. 200 l. and do not say Secundum formam statuti c. nor Prescriptum Obligatorium c. although the Statute of 23 H. 8. provide That it shall be by Bill Obligatory sealed with three seals and here it doth not appear that there was any Bond or Seal nor that it was according to the Statute yet these things shall be intended they having found a Recognizance before the Maior and Recorder A Special Verdict may be amended by Notes the Notes If the Iury find a Special Verdict and Where a special Conclusion of a special Verdict shall aid the Imperfections of it refer the Law upon that special Matter to the Court although they do not find any title for the Defendant which is a Collateral thing to the point which they refer to the Court yet the Verdict is good enough for all other things shall be intended except this which is referred to the Court lib. 5. 97. In Ejectment If the Plaintiff declare upon a Lease made by A. and the Iury find a Special Verdict and Matter in Law upon a power of Revocation of Vses by an Indenture and limitation of new Vses and then a Lease for years made to the Plaintiff by the Lessor in the Declaration and another in which there is an apparent Variance but they conclude the Verdict and refer to the Court whether the grant of a new Estate found in the Verdict be a revocation of the first Indenture or not The special Conclusion shall aid the Verdict so that the Court cannot take notice of the variance betwéen the Lease in the Declaration and Verdict because the doubt touching the Revocation is only referred to the Court. And although they refer to the Court whether this be a Revocation of the first Indenture and not of the former Vses and limitation of new Vses as it ought to be yet in a Verdict this is good for their intention appears So Note a difference between a special Conclusion and Reference to the Court and a general Conclusion and Reference to the Court Vide hic apres In Debt for 40 s. for a Horse sold and For whom the Verdict shall be said to be found the Iury find 40 s. Debt for two Horses sold this is found against the Plaintiff for this is not the same Contract So in Debt for 20 l. if the Iury find 40 l. Debt this is against the Plaintiff In Debt for 20 l. for Wood sold and the Iury find the Bargain was for 20 Marks the Plaintiff shall not have Iudgment for this Variance So in Debt for Rent upon a Demise of two Acres and the Iury find it upon the Demise of one Acre the Plaintiff shall not have Iudgment But in Debt for 24 l. 8 s. received for the Plaintiffs use if the Iury fiâ—â— the Defendant owes 24 l. but not the 8 s. the Plaintiff shall have Iudgment for perhaps he had paid the 8 s. In an Action upon the Case against A. if the Plaintiff declares That by Custom c. amongst Merchants c. If two are found in Arrearages upon Accompt and they assume to pay this at certain Days that any one of them may be charged for the whole by himself and then shews the Accompt of A. and B. who were found in Arrear in so much c. and promised to pay this at certain days but paid it not and now he brings his Action against A. although upon non Assumpsit pleaded it be found that the days of payment are mistaken yet the days being past the Action lyes because the Law makes the Duty upon the Accompt for which after the days an Action lyes Where all is to be given in Damages Damages the Iury are Chancellors and may give so much as the Case requires in Equity In Detinue of a Bond of 100 l. if the Detinue Iury find that he received a Bond of a greater or less Sum the Verdict is for the Defendant So in a promise to do two things if the Promise Iury find but one of them 't is for the Defendant Otherwise in Ejectment upon a Demise Ejectment of 10 Acres if the Iury find a Demise of less the Plaintiff shall have Iudgment If the Issue be upon a Prescription for Prescription Common belonging to a Messuage and 200 Acres of Land 50 of Meadow and 50 of Pastuâ—e if the Iury find Common belonging to the House 20 Acres of Meadow and 20 of Pasture in two of the Vills and not in the rest the Prescription is not found If part of the Trespass or wrong be found Trespass Case 't is sufficient in Trespass or an Action of the Case upon a Tort as by a Commoner for putting and depasturing Cattel in the Common If the Issue be whether all the Lands in Audita Quaerela Execution were the Estate of the Father in Tail or in
Fee and part is found in Tail and part in Fée Iudgment shall be given for the Defendant who pleaded the Seisin in Fée If the Plaintiff declares upon a Demise Ejectment made the first of May to Commence at Michaelmas next if the Iury find a Lease made at any other day before the Feast 't is found for the Plaintiff for the day of making is not material Otherwise of a Lease for years â—n Possession As of a Lease made the 5th of May Habend for thrée years from Lady-day before and the Iury find a Lease made the 15th day of May for three years from the same Lady-day for this is a Lease in Possession In false Imprisonment in Middlesex and Imprisonment the Defendant justifie in London to which the Plaintiff saith the Defendant took him in Middlesex de son Tort demesn and Issue upon this and the Iury find the Defendant took him in Middlesâ—x lawfully upon a Writ yet this is for the Plaintiff for the Issue is upon the place and not upon the Tort for that is confessed by the Pleading if the taking was in Middlesex In Debt for 20 l. and the Iury find 40 l. the Debt Plaintiff shall not have Iudgment the reason séems to be because it cannot be the same Debt which is intire but upon another Contract which is mislaid If the Issue be Payment afâ—er Execution Audita Quaerela and the Iury find payment before yet the Issue is proved for payment before is payment after In Debt upon a Bond bearing date the 25 Obligation of June upon Non est factum if the Iury find it his Déed but that it was delivered 8 days after the â—ate this is found for the Plaintiff If the Issue be that two made the Feoffment Joynt and several or two were Churchwardens c. and the Iury find but one c. the Issue is not found If the breach of Covenant or Wast be Obligation Covenant Wast assigned in cutting 20 Trees and the Iury find but 10 yet the Plaintiff shall have Iudgment If in Replevin c. the Iury find that Totum Pars. part of the Cattel were Levant and Couchâ—nt and part not and the Issue is upon all the Issue is not found In Ejectment for him who pleaded all Ejectment Void in part of 14 Acres and the Iury find guilty of 20 the Plaintiff shall have Iudgment for the 14 and the Verdict is void for the residue In an Information upon an usurious Contract Information Usury by two 't is not sufficient to find a Contract by one Otherwise where the Tort and offence is several as against two upon the Statute 4 E. 6. Pâ—o emptione butiri and selling it by Retail c. and so in an Action upon the Case in Nature of Conspiracy and for words laid twice in one Declaration This will put in Issue the manner as well Modo forma as the matter where the manner is material as the time of the Fact and other Circumstances The Plaintiff replies That W. made a Replevin Lease Lease to him 30 Martii Habend from Lady-day last and Issue Modo foâ—ma and the Iury find a Lease made the 25 Marâ—ii Habâ—ndum Exâ—unc for a year this is good although the time of making and Commencement of the Lease are mistaken inasmuch as Extunc includes the Feast Yet because a sufficient Title and Lease is found for the Plaintiff to put in his Cattel this is sufficient this being the substance and the Modo forma shall not put the Circumstances in Issue So in Trespass if the Defendant justifie the putting in his Cattel for Common which he Claims from Pentecost to a certain time every year which is traversed Modo forma and the Iury find that he had Common in Vigilia Pentecostis in festo and the day next to this to the time this is found for the Defendant But otherwise in these Cases id an Assise of Common because there he ought to recover his Title In Debt for Rent if the Defendant plead an Entry by the Plaintiff before the Rent was due scilicet such a day which was after and Issue upon the Entry Modo forma and the Iury find for the Defendant he shall have Iudgment for the scilicet is void and the Modo forma go to the matter Sée after In Debt upon a Bond and the Defendant Non est factum plead Non est factum and the Iury find the Bond made joyntly by another with the Defendant the Plaintiff shall have Iudgment for the Defendant should have pleaded this If a Devise be pleaded Absolute if the Devise Iury find a Devise upon a Condition Precedent 't is not good In Debt against A. as Daughter and Riens per Discent Heir to B. and the Defendant plead Riens per discent of B. and the Iury find that B. was seised in Fée and dyed having Issue the Defendant his Daughter and his Wife with Child of a Boy who was afterwards born alive and dyed one hour after this Issue is found against the Plaintiff because the Defendant had the Land as Heir to her Brother who was last seised and not to the Father and so the Defendant had not the Land by Discent from the Father but from the Brother and yet this is Asseâ—s in her hands if it had béen specially pleaded In a Writ of Error brought by him in remainder Error in Tail to reverse a Fine if the Defendant plead in Barr of the Writ of Error a Common recovery by the Tenant in Tail to which the Plaintiff replies That at the time of the Recovery suffered he himself was Tenant to the Praecipe and so the Recovery void Vpon which Issue is joyned Part. and the Iury find that he was Tenant of part but not of other part This Issue is partly found for the Plaintiff and partly for the Defendant so the Court shall procéed to the Examination of the Error for that whereof he was found no Tenant but 't is a good bar of the Writ of Error for that whereof he is found Tenant to the Praecipe In Assumpsit to pay Money upon request Promise and issue upon this if the Iury find the Plaintiff promised to pay the Money but do not say upon request nor Modo forma 't is not found for the Plaintiff In Ejectment of a Manner if the Iury If the Substance of the Issue be found 't is sufficient Manner find that there were no Fréeholders and so 't is no Manner in Law yet being a Manner by Reputation and so the Tenements pass by the Lease Therefore this Verdict is found for him who pleads the Lease of the Manner for the substance is whether any thing was demised or not In an Information of Extortion against Goal the Gaoler of the Goal a Prison of the Castle of Maidston the Iury found there was no
that in an Action upon the Case far Asumpset the parties being at issue a demurrer was joyned upon the evidence and thereupon the Jury discharged and afterwards judgment was given for the Plaintiff and a Writ of Inquiry of damages awarded and damages found and Judgment thereupon where the Jurors which came to find the Issue although by the Demurrer they were discharged of the Issue yet ought to have assessed damages conditionally if judgment should be given for the Plaintiff And in proof thereof was cited Newis and Scholastica's Case in Plo. Com. fol. 408. and the old Books of Entries c. And it was said by the Court If these Precedents be good Law thâ—â— it may be inquired of by the same Jury conditionalâ—y But it may be as well inquired of by a Writ of Inquiry of damages when the Demurrer is determined And the most usual course is when there is a demurrer upon evidence to discharge the Jury without more inquiry But as My Lord Chief Baron Montague held at the Assises in Cambridgeshire 1682. it may be one way or other In the Assise by R. Newis and Scholastica his Wife against Lark and Hunt which was taken by default The Precedent in Plowd Com. as to this matter runs thus Recogn ' Assisae pred exacti venerunt qui ad veritatem de premissisdicend electi triati 8 â—â—rati fuerunt sup quo Willielmus Bendlows Serviens ad legem de consilio predictorum R. Scholasticae in manutentione Assisae pred coram Justic Dominae Reginae de Banco hic in evident Recognit Assisae pred dixit quod diu ante diem impetration is Assisae pred quidam H. Clark fuit seisitus â—c Et condidit testamentum ultimam voluntatem sua in scriptis inter alia unde pars inde in hiis Anglicis verbis sequitur videl Also this is the last Will and Testament of me the said Henry Clark for and concerning c. Et ulterius idem Serviens ad legem ex parte pred R. S. dedit in evident eisd Recognit quod c. Quorum pretextu idem jam Serviens ad legem exigit quod iidem Recogn Assisae pred Assisam pred de tenementis pred cum pertin ' in visu c. pro parte ipsorum R. S. triari comparere debeant c. Et veredictum suum dare debent quod pred W. Lark J. Hunt dictos R. S. de tenementis pred cum pertin ' in visu c. disseisiverant c. Et pred W. Lark J. H in propriis personis suis dic quod evidentiae allegationeâ— pred ex parte pred R. S. superius allegat minus sufficien in lege existunt ad manutenend Assisam pred ad quos ipsi necesse non habent nec per leg terrae tenentur respondere unde pro defectu sufficien evident in hac parte pet judicium quod juratores pred de veredicto suo in premissis dicend exonerentur c. Et quod pred R. N. S. ab Assisa sua pred habend precludantur c. Et pred R. S. dicunt quod ex quo ipsi sufficien materiam in manutentione Assisae pred in evident recognit pred ostend quam quidem materiam pred W. Lark J. Hunt non dedicunt nec ad eam aliqualit respond petunt judicium Et quod iidem Jurator inde exonerentur quod pred W. J. de Assisa illa convincantur c. Sup. quo dict est Recogn pred quod inquir quae dampna pred R. S. sustinuertam occasione disseisinae pred quam pro misis custagiis suis per ipsos circa sectam suam in hac parte apposit si conting judicium pro eisdem R. S. in placito pred sup evidentias pred reddi Qui quidem Recogn dicunt sup sacram suum quod si conting judicium in placito pred pro pred R. S. sup evidentias pred reddi iidem R. S. sustinuer dampna occasione disseisinae pred ad 13 s. 4 d. pro misis custagiis suis ad 20 s. Et quia Justitiarii hic se advisare volunt de sup premissis priuâ—quam judicium inde reddant dies datus est partibus predict c. Note several Exceptions were taken to the manner of giving the Evidence First for that the intire Will was not shewed but part and that this being the foundation of the Evidence the whole Will ought to have been shewed for there might be some oâ—her matter of substance as a Condition Limitation c. in the parts not shewed But all the Justices disallowed this Exception and said the party in any Title or Bar needs shew no more than what makes for him As in an Act of Parliament in which are divers branches 't is sufficient to shew that branch which serves ones purpose and not like the Case of a Fine or Recovery of 20 acres where I must shew the whole Record although I am concerned but in one acre because the Originial is intire and so is the Record grounded upon it See also Fulmerâ—ton and Stewards Case Plo. Com. 102. Another Exception was That the fine was not shewed under the Seal of the Court or the Great Seal but one part indented of the Chirograph was only shewn which the Jurors were not bound to believe because it wanted a Seal But all the Justices were against this and said the Jury might find the Fine of their own knowledge without the shewing of the parties or they might find it upon the Credit of any Witness that had seen it and the shewing the part indented is the usual evidence of a Fine Note a Fine indented and not exemplified under Seal c. shall not be delivered to the Jury 34 H. 6. 25. And they said because it is only the Inducement of the verity to the Jurors the party could not Demurr upon this for the effect of the matter is that therâ— is such a Fine which is amongst the Records And this is the substance of the matter and the part of the Chirograph is nothing but the Image of the verity and therefore suum coram Baronibus hic prestitum in premissis dicit quod c. here recite the Evidence Et pred Attorn Domini Regis pro eod Domino Rege dic quod evidentiae pred superius dat minus sufficien in lege existunt ad manutenend seu proband exit pred pro parte ipsius A. F. superius ad patriam junct unde ob insufficient earundem evident ac ex quo per evidentias illas non dedicitur forisfactura bonorum pred in informatione pred spec i em Attorn Domini Regis pro ipso Domino Rege petit judicium ac quod eadem bona remaneant Domino Regi forisfacta juxta formam statuti pred Et pred A. F. dic quod evidenciae pred superius ex parte ipsius A. F. dat
sufficien in lege existunt tam ad manutenend proband exit pred pro parte dicti A. F. superius ad patriam junct quam ad excludend Domin Regem de aliqua forisfactura bonor pred habend Ad quas pred Attorn Domini Regis pro ipso Domino Rege minus sufficienter respondit nec aliquod pro ipso Rege allegavit unde idem A. pet judicium ac quod pred bona in dicta informatione spec ei reliberentur quodque ipse quoad premissa ab hac Curia dimittatur Ideo ad judicium Note In this Case the agreement according to the Statute was put in Issue generally and yet the special agreement maintained the Issue And wheresoever the Evidence doâ—h not warrant prove Regula and maintain the vâ—ny same thing that is in Issue that Evidence is defective and may be Demurred upon Upon non est factum to a Bond dated at York It Non â—st factum was said in this case that to prove the Bond made in another place doth not prove the Bond nor Warrant the Issue because the delivery is intended to be where the Dare is but the Witnesses prove the contrary and so the Issue is not proved But surely if this be found the Plaintiff shall have Judgment as well as upon a Bond delivered before the date 31 H. 6. Plo. 7. Rolls 677. But infancy or made by Dures cannot be given in evidence upon non est factum lib. 5. Whelpdales Case 119. because thereby the Bond is not void but only voidable Otherwise of the Bond of a Feme Covert or Monk for there the Bond is void and so non est factum and so of a Bond made to a Feme Covert and the Husband disagree to it or by Husband and Feme Non est factum of the Wife In an Assise if the Tenant plead Nul tort nul disseisin he cannot give in evidence a release after the disseisin but a release before the Disseisin he may for Release then there is no Disseisin upon the matter In a Writ of Right if the Tenant joyn the Mise Warranty upon the meer Right he cannot give in evidence a Collateral Warranty for he hath not any right by it and therefore it ought to have been pleaded 1. Inst 283. Regularly whatsoever is done by force of a Warrant or Authority ought to be pleaded Regula But Note in all Cases where one cannot have advantage of the special matter by way of Plea there he may have advantage of it in evidence as for example The rule of Law is That one cannot justifie the Death or Killing of a man and therefore if one kill another in his own defence he cannot plead this specially but he may give it in evidence and so in defence of his House against Thieves and Robbers c. By the Statute 23 H. 8. cap. 5. any thing done by Sewers the authority of the Commission of Sewers may be given in evidence upon the general Issue After taking the General Issue the Defendant cannot give in evidence any thing that goes in discharge Regula of the Action as in Debt upon nil Debet he cannot give in evidence a Release nor a grant to cut Trees Release to repair upon nul wast fait nor making of a Ditch to amend the Meadow but that he only lopped the Wast Trees he may if wast be Assigned in succidendo Arbores c. Neither if a Statute was made that all Statute Tenants for life should be dispunishable of wast could he give in evidence this Statute 28 H. 8. Dyer 28. for the discharge ought to be pleaded because it admits a Cause of Action without it In Debt against Executors and Assets inter marus Assets in Issue 'T is good evidence that they sold Land by the Will of the Testator c. and that they had the money And so that they recovered Damages in Trespass for goods taken in the life of the Testator c. 3 H. 6. 3. In an Issue upon Villenage regardant to a Mannor Villenage a Villain in gross is no evidence Dyer 48. In wast by the Grantee of a Reversion by Montague Attornment and Fitz. The Lessee may plead that he in reversion ne grant a pas per le fait and give in evidence that he never attorned or he may Traverse the Attornment at his election Dyer 31. In Trespass Quare clausum fregit the Defendant Trespass says that locus in quo c. is 6 Acres in D. which is his Freehold the Plaintiff replies that it is his Freehold and not the Defendants The Defendant cannot give in evidence other 6. Acres in D. which are his Freehold because the plea shall be intended to refer to the 6 Acres of the Plaintiffs Dyer 23. In Rescous by the Lord upon not guilty the Rescous Defendant shall not give in evidence that he doth not hold by Vavasour and Bryan and so if he said nothing is behind in avowry he shall not give in evidence that he doth not hold of him T. 9 H. 7. 3. Avowry In Assise Feoffment pleaded the Plaintiff said he Feoffment did not enfeoff modo forma upon the Deed and Letter of Attorney to Infeoff upon condition found if the Attorny made it without condition this well proves the Issue for the Plaintiff 13 E. 4. 4. If one plead a Feoffment of a Jointment to his Companion or of a Feme Covert the other may say ne enfeoffa pas and give the matter in evidence and the Court shall instruct the Jury of the Law 18 E. 4. 29. Upon the general Issue any thing may be given in evidence Regula which proves the Plaintiff had no cause of Action Trespass by the Warden of the Fleet upon not Trespass Guilty you may give in evidence that he is not Warden 4 E. 4. 7. So in Trespass of a House that he had no house there or the Freehold of another and not of the Plaintiff is good evidence upon not Guilty but in Trespass of Goods 't is no good Plea to say the property was in another although it is in a Replevin and therefore it seems to be no good evidence in Trespass because possession maintains the Action against all but the owner but that the property was in a stranger and he gave them to the Defendant is good See before cap. Evidence 27 H. 8. 25. But in Trover Trover that they were not the Goods of the Plaintiff is good evidence 5 H. 7. 3. Cessavit 〈◊〉 Count that of diverse Lands held by Cessavit entire service upon non tenuit modo forma held by several services is good evidence for he had no such cause of Action 10 H. 7. 24. Upon the general Issue for the Defendant by evidence to Regula convey to himself the same Interest and Title â— good evidence As in Trespass of Goshauks Not Guilty
to the good of the King and State who attempt to alter or invade this Fundamental Principle in the administration of the Iustice of this Realm by which the Kings Prerogative has flourished and the just liberties of the people have been secured so many Ages And what answer shall I make to the Princes vehementer admiror videlicet Wherefore are not Juries used in other Countries if they are so good but that of Fortescue the Portescue ca. 29. Learned who best could tell scil That other Countries can scarce produce one Jury so well accomplished with Wealth and Ingeny as one County nay one Hundred can in England But not to dwell in the Porch I will address my self to the Gravity of the Law where you must not so much expect the flash of Rhetorick as the light of Reason No the Law knows best how to express Things not words most regarded in the Law her self in her own terms wherefore all other Sciences must learn with reverence to keep their distance And as the Golden Finch sings be glad to have their Finch c. 3. sparks raked up in her Ashes And since an Issue is previous and the matter of a Tryal I shall first give you the description thereof and then touch upon the several Tryals allowed by the Law for discussion of the truth CAP. II. Of an Issue and the divers sorts of Tryals thereof and when a Tryal shall be by a Jury and when not when by Certificate when by the Spiritual Law when by Battail and when by an Almanack what Issue shall be first tryed per Pais what shall be tryed by the Court and what by Examination of the Attorney Sheriff c. ISsue exitus saith Cook is a single 1. Inst fo 126. Omnia unum aliquem sortiuntur exitum vel per patriam vel per Judices terminandum Finch Epistle certain and material point issuing out of the Allegations and Pleas of the Plaintiff and Defendant consisting regularly upon an Affirmative and Negative to be tryed by Twelve men and it is twofold scil either special as where the special matter is pleaded or general as in Trespass Not guilty In Assise nul tort nul disseisin c. And as an Issue natural cometh of two several persons so an Issue legal issueth out of two several Allegations of adverse parties And to give you likewise his definition of Tryals Note that upon a demurrer to part and Issue to part though it is the best way to give Judgment upon the quaestio juris first yet the Court may try the quaestio facti first at their discretion 1 Inst 72. 125. Lach. 4. Rolls tit Tryals 626. 723. Tryal It is to find out by due examination the truth of the point in Issue or question between the parties whereupon Iudgement may be given And as the question between the parties is twofold so is the Tryal thereof For either it is quaestio Juris and that shall be tryed by the Judges either upon a demurrer Special Verdict or Exception For Cuilibet in sua arte perito est credendum quod quisque noverit in hoc se exerceat Or it is quaestio facti And the tryal of the fact is in divers sorts First chiefly and most commonly by a Jury of Twelve men of which kind of tryal my intention is principally to treat in this Book For by Twelve men are matters of Proceedings in Civil Causes fact for the most part tryed with us in England in Causes both Criminal and Civil in Causes Civil after both Parties have said what they can one against another in Pleading if there arise a question about any matter of fact it is referred to Twelve indifferent men to be Impanelled by the Sheriff and as they bring in their Verdict so Iudgment passeth And this the Judge is to declare as the Law is upon the fact found For the Judge saith the Jury finds thus and then the Law is thus and so we judge For the Law arises upon the fact For Criminal Causes the course is this Proceedings in Criminal Causes At the Kings-Bench for Midds and at the great and general Assises and at the general Sessions of the Peace there is one Jury called the Grand-Jury which consists commonly of 24 men substantial men out of every Hundred with in the County returned by the Sheriff and they are to consider of all Bills of Indictment preferred to them which they either approve of by writing Billa Vera or disapprove by writing upon them Ignoramus and those which they approve of are to be tryed by another Jury called the Petit-Jury Or the Grand-Jury may charge any person upon their own Presentment which will be of the force of an Indictment and the party charged may Traverse the offence and bring it to be tryed by a Petit Jury Some lesser matters in these Courts are proceeded upon without a Jury and some things are removed by Certiorari into higher Courts and then must be tryed there and that thing to which there is a Traverse put in must be tryed and ended by a Petit Jury which for the most part in all Civil and Criminal Causes are but Twelve men which ought to be Free-men not Villains or Aliens and lawful men not Outlawed and also men of worth and honesty But because it is necessary to be known that there are many ways allowed by the Common-Law to try matters of fact besides this by Juries I will here repeat some of them And for this first hear the Oracle who tells you that he had read of six 1 Inst fol. 74. kinds of Certificates allowed for Tryals by the Common-Law 1. The doing of service by him that Tryals by Certificate holdeth by Escuage in Scotland was to be tryed by the Kings Marshal of his Army Per son Certificat en escript south son seal que serra mis a les Justices saith Littleton 2. If it be alledged in avoydance of an Outlawry that the Defendant was in prison at Burdeaux in the service of the Mayor of Burdeaux It shall be tryed by the Certificate of the Mayor of Burdeaux Note this was when Burdeaux was partel of the dominions of the King of England Rolls tit Tryal fo 583. 3. For matters within the Realm the Custome of London shall be Certified by the Mayor and Aldermen by the mouth of the Recorder vide apres 17. 4. By the Certificate of the Sheriff upon a Writ to him directed in case of Priviledge if one be a Citizen or Foreigner 5. Tryal of Records by Certificate of the Judges in whose Custody they are by Law All these be in temporall Causes 6. In Causes Ecclesiastical as Loyalty of Marriage general Bastardy Excommengement profession These and the like are regularly to be tryed by the Certificate of the Ordinary vide apres 16. If the Def. claim his priviledge as a Scholar of the Vniversity of Oxon of such a Colledge or Hall This
the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their Latch 4. pleasure though by the opinion of Dodrige It is the best way to give Iudgment upon the Demurrer first because when the issue comes afterwards to be tryed the Jury may assess Damages damages for the whole A Scire facias was brought on a Recognisance in Chancery the Terre-tenants pleaded several Pleas the Plaintiff demurred to one and took issue on the other the Record was sent into B. R. to try the issue and it was tryed and Verdict pro Plaintiff the demurrer not being argued and it was adjudged per R. B. that Iudgment ought to be given on both by that Court Jeffreyson and Dâ—wson's Case Hill 21 22 Car. 2. B. R. vide for these things 1. Roll. abr 534 535. Roll. rep 287. and in the principal Case 4 Inst 80. was denied to be Law An Immaterial issue joyned which will Immaterial issue not bring the matter in question to be tryed is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader because this is matter of substance for if there were no issue there could be no Verdict and so it is as if nothing had béen done in the cause In an Action against two the one pleads Plea to the Writ in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personal against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth only to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personal Action the discharge of one is the discharge of both As for example if one of the Defendants Release in Trespass pleads a Release to himself which in Law extends to both and the other pleads not guilty which extends but Rolls tit Tryal 628. to himself or if one pleads a Plea which excuseth himself only and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof because the discharge of one is the discharge of both Discharge of one dischargeth both But in a Plea real it is otherwise for every Tenant may lose his part of the Land as if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea Brown and Stamford Iustices consulted with Grammarians in things of Grammar and Hulls a Batchelor of Law Tempore Hen. 6. was called into Court to shew the difference between precise and causative Compulsion Vide Plow 122. 127 128. Pasch 16 Car. 2. B. R. An action of Trover c. was brought de sex Capitalibus fibulatis Anglice 6 laced Coifs after Verdict for the Plaintist it was moved in Arrest of Iudgement that the Latine words were both Adjective and so not certain but it was answered that Capaital is a Substantive and the Nomenclator of Westminster School was produced to warrant it and it was adjudged for the Plaintiff accordingly and the Court allowed that authority before Rider's Dictionary CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs When well awarded c. HAving given you the Epitome of what Tryals are allowed by the Common Law and what shall be tryed per pais and what not we shall now apply our selves more particularly to the Tryal by Juries And because a Venire facias is the foundation and Causa sine qua non of a Jury I mean in Civil Causes for in Criminals as upon Indictments the Justices of Gaol Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriff without any process directed to him yet process may be made against the Jury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Praecipimus tibi Venire facias quod venire facias coram Just ciariis nostris de Banco apud Westm tali die duodecim liberos legales homines de vicinet de C. quoâ—um quilibet habeat quatuor libras terrae tenement vel reddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patriae inter partes praedict de placito c. quia tam idem D. quam praedict F. inter quos inde contentio est posuer se in Jur. illam Et habeas ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch terms them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve free and lawful men of his County to resolve the question of the fact in dispute between the parties upon the issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod inquiratur per paâ—riam by the Plaintiff and issue joyned thereupon the Court awardeth the Venire faciâ—s vid Ideo fiat inde Jurat And if they come not at the day of the Writ returned then shall go forth against them an Habeas Corpora and Distringas to bring them in to try the matter The which two last Writs are usually made with this clause Nisi prius Justiciarii venerint c. and are returnable after the time of the Judges coming their Circuit And first you see it is directed Vicecomiti Sheriff i. e. to one who is Vicecomes and hath the Regiment of the County instead of the Earl of that County to whom once it did belong as we are taught in the Mirror Chap. 1. Sect. 3. scil That it appeareth by the
but by one of the Coroners or for affinity in one c. Yet the Process shall still go to the Coroners Ita quod the Coroner se non intromittat If Default be in the Sheriff and To whom Process shall be directed for default in the Sheriff and Coroners Coroners the Court may choose two Esliors and if the parties can say nothing against them they shall make the Pannel But the Distringas shall not be directed to Esliers for the Court cannot make Officers to distreyn the Kings Liege people but the King may 8 H. 6. 12. dubitatur Process may be directed to the Justices of Assise by assent of parties not without When a Pannel is made by the Esliors they shall afterwards serve all Process that comes upon this as the Sheriff should 15 E. 4. 24. 18 E. 4. 3 8. Rolls tit Tryal 670. For it may be the Sheriff will distreyn only those who are his friends and be partial When the Process is once awarded Venire facias once directed to the Coroners shall not be to the Sheriff afterwards to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. Bro. tit Venire facias 17. So the Entry is Ita quod Vicecomes se non intromittat 18 E. 4. 3. 8 H. 6. 12. And therefore where the Sheriff ought Sheriff shall not return the Tales where he cannot the Venire facias not to retorn the Venire he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner and afterwards a Tales was awarded and it was retorned by the Sheriff and it was tryed and a Verdict given and Iudgement And for this cause held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 3. par 574. Bro. tit Octo. Tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and Where the Coroner returns the Venire facias he ought to return the Tales after Verdict it was moved in Arrest of Iudgement that the Tales de Circumstantibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgement For it is a mis-tryal not aided by any of the Statutes for process being once awarded to the Coroners the Sheriff afterwards is not the Officer to return the Jury no more than any other man And process ought always to be returned by him who is an Officer by Law to return it otherwise it is meerly void But afterwards upon view of the Record it appeared that the Tales was returned by the Coroners and their names annexed thereto wherefore it was without further question But the Court said if their names had not been annexed No name to the Return to the Tales yet it had been well enough for they be annexed to the first Pannel And it shall be intended that the right Officer return'd it and the usual course is That to such Tales there is not any officers name subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed but it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgement But if the Venire be awarded to the Coroners Venire facias to the Sheriff after one awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time or else to Esliors sice converso In Error of a Iudgement in Chester Venire facias to the Coroners after one to the Sheriff the parties being at issue a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vicecomes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cozenage betwixt him and the Sheriff which was awarded accordingly and at the day of tryal the Defendant made default and there upon Iudgement Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not material Cro. 3. part 853. But the Defendant might have demurred No Venire facias to the Coroners after one to the Sheriff to this prayer For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the Array nor have a Venire afterwards to the Coroners because the Sheriff is his Cousin or for any other principal challenge whereof he might by common intendment have Conusance when he so prayed the Venire facias for upon shewing this Cause at first he might have prayed Process to the Coroners but for a principal challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Sheriff c. he may afterwards challenge the Array when they appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to If the Defendant denies the Planitiffs suggestion he shall have no benefit of it by Challenge the Coroner because he is of kindred to the Sheriff if the Defendant will not confess this but denies it this shall be entred and the Defendant shall not challenge the Array for this cause afterwards Br. tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryal without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff
good for that it is a debt every where and not like a debt that ariseth by matter collateral But Twisden â—ust doubted Whitehead vers Browne Pasch 15 Car. 2. B. R. The Jury may find Estoppels as the taking Estoppels When the Estoppel is found the â—ourt may judge according to the eâ—pecial matter of a Lease of a man 's own Land by Deed indented or the delivery of a Deed before the date as in Debt by an Administrator upon a Bond dated 4 Aprilis 24 Eliz The Defendant pleaded that the Intestate dyed before the date of the Obligation and isint nient son fait upon which they were at Issue and adjudged that the Jury might find that the Bond was delivered the 3d of April because they are sworn ad veritatem dicenâ—um though the parties are estopped to plead a Deed was delivered before the date but they may plead a delivery after the date because it shall never be intended that a Deed was delivered before the date but after it may But if the Estoppel or admittance be Estoppels within the same Record in which Issue is joyned then the Jurors cannot find â—ny thing contrary to this which the parties have affirmed and admitted of Record though it be not true For the Court may give judgment upon matters confessed by the parties and the Jurors are not to be charged with any such thing but only with such in which the parties vary li. 2. 4. li. 4. 53. Co. Lit. 227. A Decree in Chancery shall be tryed by a Decree Jury and not by it self for it is not a Record but a Decree Recorded The Chancery as it is a Court of Equity is not a Court of Record But touching things agitated in the Petty Bag Office it is a Court of Record The Jury may find Deeds or matter of Records not shewed Record if they will though not shewed in Evidence Finch 400. They may inquire of things done before the memory of man lib. 9. 34. Null tiel Record is not to be tryed by a Jury but upon the general issue c. they may find a Record The Jury may find a Warranty being Warranty given in Evidence though it be not pleaded Nay the â—ury may find that which cannot be pleaded as in Trespass upon not guilty The Jury may find that the Defendant leased Lands for life upon Condition Condition and entred for the Condition broken Tho. this cannot be pleaded without Deed yet the Jury may find it Lit. Sect. 366. Where a Collateral Warranty binds this may well be given in Evidence For although it doth not give a right yet in Law this shall bar and bind a Right Lib. 10. 97. But this matter comes more properly under the Title Evidence wherefore we will proceed to that See also in Chap. 13. CAP. XI Evidence and Witnesses EVidence Evidentia This word in legal Evidence understanding saith Coke 1. Inst 283. doth not only contain matters of Record as Letters Patents Fines Recoveries Inrollments and the like and writings under Seal as Charters and Deeds and other Writings without Seal as Court-Rolls Accounts and the like which are called Evidences Instrumenta But in a larger sense it containeth also Testimonia the Testimony of Witnesses and other proofs to be produced and given to a Jury for the finding of any Issue joyned between the parties And it is called Evidence because thereby the point in Issue is to be made evident to the Jury Probationes debent esse evidentes id est perspicuè facile intelligitur And this Evidence with Bracton we may term probatio duplex viz. viva as Witnesses vivâ voce and Mortua as by Deeds Writings and Instruments and violenta praesumptio in many cases is plenâ— probatio and therefore if all the Witnesses to a Deed be dead then the Deed shall receive Credit per collationem sigillorum scripturae Presumption c. but especially if there hath been a continual and quiet possession which is a violent presumption 1 Inst 6. for no man can keep his Witnesses alive If a thing be generally referred to proof Proof this shall be intended proof by Jury but if other manner of proof be agreed upon that shall take away the proof which the Law generally intends by Jury Hob. 127. As if I promise to pay what mony you prove B. borrowed this may be proved in the same action brought upon the promise Vide Rolls tit tryal 594 595. Men that are so branded with Infamy Witnesses that they cannot be Jurors for which see before who may be Jurors cannot be Witnesses yet per Glyn Ch. Just and Newdigate Just Mich. 1657. B. R. Conviction of common Barretry hinders not from being a witness but Maynard Sergeant held strongly against it At Lent Assises Suff. 1657. St. John Ch. Just C. B. would not allow one who had been whipped for petty Larceny to be a Witness but Earl Sergeant said they ought to be stigmatici that are disabled from being Witnesses Yet per Roll. Ch. Just one burned in the hand for Felony may be a Witness for he is in capacity to purchase Lands and his fault is purged by his punishment Stiles 388. The Wife cannot be a Witness for or Who may be Witnesses against her Husband 1 Inst 6. that is in case of a common person between party and party but between the King and the party on an Indictment she may although it concerns the Feme her self as in the Lord Audley's Case Hutt 116. So she may have the Peace against her Husband And so it was resolved in John Browne's Case Trin. 25 Car. 2. B. R. on the Stat. of 3 H. 7. cap. 2. vid. 1 Cro. 492. The King cannot be a witness by his Letters under his Signet manual One attained of Piracy cannot be a witness to prove another guilty If he accused another before he was attainted and afterwards confesses he wronged him this confession shall be rejected because he is attainted A woman cannot be a witness to prove a man to be a Villain Co. Lit. 6. 8. Neither can the party to the usurious Contract be a Witness against the Vsurer in an Information upon the Statute of Vsury But Kinsmen never so near Tenants Servants Masters Counsellors and Attorneys c. may be Witnesses A Counsellor may be a Witness to the Agreement c. but not to validity of an assurance nor to the Counsel he gave March Rep. 43. If a Witness being served with Process and having money sufficient to bear his charges or less if he accept it do not appear to give his testimony he forfeits 10 l. to the party damnified and must recompence his damages 5 Eliz. 9. If a Witness commit wilful perjury he loseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz 9. A party robbed is allowed a
Inspection But in accompt against one of full age if he plead Nonage when he was Bayly this cannot be tryed by inspection Rolls tit Tryal 572. how this Tryal by inspection shall be vide Rolls ibid. at large In all Cases where the matter may be tryed by inspection examination or discretion of the Justices if they doubt the matter they may refuse to try this and compel the Parties to a Tryal per pais or other proofs 21 H. 7. 40. per touts Justices 10. There are many Tryals allowed by Tryals by Witnesses and proofs the Common Law by Witnesses only without a Jury as of the life and death of the Husband in Dower so the proof of a Summons or the Challenge of a Juror must be tryed by Witnesses and regularly the proof ought to be by two or three Witnesses 1 Inst 6. and divers other things v. 4. Inst 278. must be tryed by examination of the parties and Witnesses as the Tryal by Wager of Law c. Finch 423. Nonage was anciently tryed by the Verdict Glanvil lib. 13. cap. 18. of Eight men but now by inspection and Fullage by Twelve men In an Appeal by a Feme of the death of Appeal her Husband if the Defendant say that the Baron is alive in another County or generally that he is alive this shall be tryed per proofs 41 Assise 5. Vide Rolls tit Tryal 577. what shall be tryed by proofs in an Assise and what not In a Writ of Annuity if the Defendant Annity say the Party is dead in Britain this shall be tryed per proofs 26 E. 3. 70. 11. Duke or no Duke Earl or no Dukes c. Earl Baron or no Baron shall be tryed by the Kings Writ lib. 5. 35. lib. 6. 53. But Dutchess or no Dutchess c. by marriage shall be tryed per pais because the marriage is matter of fact 12. In a Plea del alien nee the League League between the King and the Soveraign of the Alien shall be tryed by the Record of the Chancery for every League is of Record lib. 9. 32. 13. If a Mannor be ancient demesn or Mannor not it shall be tryed by the Book of Doomesday which is in the Exchequer But whether certain Acres be parcel of such a Mannor or no it shall be tryed by the Country ib. 14. The proceedings of a Court which Courts not of Record is not of Record as the County Court the Hundred Court the Court Baron c. shall be tryed by the Country and not by the Rolls of the Court because they are no Record ib. Co. Lit. 117. b. The Priviledges and Liberties of Courts By Charters and Records of Record Cities and Boroughs must be tryed by their Charters and Records 15. Whether the Ordinary committed Wills and Administration Administration to the Plaintiff or whether the Testament was proved before the Ordinary or whether such a Will be the Will of the Party or whether he dyed intestate or not In all these Cases the Tryal shall be per pais because probate of Wills and constituting Administrators did not belong to Ecclesiastical Judges originally but were given to them of late But the tryal thereof is left to the Common Law and was not given to them lib. 9. 32. 40. An Executor brings an Action of Debt the Defendant pleads that the Testator never made him Executor if the Plaintiff gives in evidence the Probate of the Will the Defendant shall only give evidence in Dis-affirmance of the Plaintiffs Probate which is matter of Fact but as to matter of Law the Court gives credit thereto as where another Will was made for there the parties might have appealed but if the Seal be Counterfeit or the Probate forged its Tryable per Jury Adj. Pasch 20. Car. 2. B. R. Noell and Wells v. Wentworth's Executor 69. The Tryal of all Criminal matters is Criminal matters by the Country and the party accused cannot be denyed it unless it be his own fault as where he is mute and will not put himself upon his Country in due time for then without further tryal Iudgment de pain foit dure is passed by the Judges upon him Stamf. Pl. Coron 150. 16. In an action upon the Case for calling Plo. Com. 267. Special Bastardy one Bastard the Defendant justified that the Plaintiff was a Bastard And it was awarded that this should be tryed per pais and not by the Ordinary Hob. 179. Devant 6. And so a Plea that the Plaintiff was born at such a place before marriage this is special Bastardy and shall be tryed per pais Plo. 14. Dyer 89. vide hic cap. 22. 17. When an issue is taken whether a Customs of London Custome or no Custome in London If the Mayor Commonalty and Citizens be parties or interessed in the Action This Custome shall be tryed by a Jury and not by the Certificate of the Mayor and Aldermen by the Recorder Hob. 85. Day and Savadges Case Devant 3. Stiles 137. Moor 871. vide apres tit Visne Rolls tit Tryal 579 580. The Custome of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder Co. Lit. 74. In an information upon the Statute 5 Eliz. for using a Trade to which the Defendant was not bound Apprentice If the Defendant plead a Custom of the City that he who is free of one Trade may use any other This shall be tryed by the mouth of the Recorder Note this difference He that is free of one Manual Trade cannot use another Manuel Trade but it is otherwise of those Trades which are not Manual In such one that is free of one may use another by the Custome Liberties claimed by Custome in London the Custome of making Indentures of Apprenticeship void if not Inrolled within year The Custome to devise Lands Foreign Attachment c. shall he tryed by the mouth of the Recorder But the Issue whether there be a Market every day of the week in London shall be tryed per pais because the issue is not upon the Custome Rolles tit Tryals 580. vide hic cap. 8. 18. A matter of Record being mixt with Matter of Record mixt with matter of Fact 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 and Appeals Tryals by Battel that touch life Tryal may be by Battel or by Jury at the Defendants choice The Battel in a Writ of Right must be by Writ of Right Champions who must be Freemen But in an Appeal it must be in proper person The Champions in a Writ of Right are not bound to fight longer than until the Stars appear and if the Champion of the Tenant can defend himself until then the Tenant shall prevail The Judges of the Court of Common Pleas are Judges of the Battel in a Writ of Right
whether a Statute shewed Statute before be the true Statute or not shall be by the examination of the Mayor 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. part 228 229. 27. In Assise the Tenant said that the Escheator Lands were taken into the Kings hands this shall be tryed by the Examination of the Escheator 28. If one in avoidance of an Out ' awry Certificate alledge that he was in Prison at Burdeaux ultra mare in servitio Majoris de Burdeaux this shall be tryed by the Mayor's Certificate and in such like Cases other Tryals shall be by the Certificate of the Marshal of the Messenger Host and by the Captain of Calice and also by Messenger of a thing done beyond Sea Ib. 29. At the Petit Cape the Tenant said Petit Cape that he was imprisoned 3. days 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 Bayley not be tryed per pais but by examination of the Bayley ib. 30. It seems an Almanack is so infallible Almanack that it hath countervailed the Verdict of a Jury For in Error of a Iudgment given in Lynne the Error assigned was that the Iudgment 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 Tryal and that a Tryal per pais was not necessary although it were an Error in Fact and so the Iudgment was reversed Cro. 3. part so 227. 1 Leon. 242. the same Case and there it was said it was twice so ruled before 31. In ancient times there was a tryal in Criminal Causes called Ordalium for Orde al. upon Not Guilty pleaded the Defendant might put himself upon God and the Country as is the use 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 pass over Novem vemeres ignitos nudis pedibus and if he was not hurt by this then he was to be acquitted otherwise condemned and this was called Judicium Dei But if he was a slave then his tryal was to be per aquam and that divers ways which all appear in Lambard verbo Ordalium From which kind of tryal I presume we still retain this expression of an innocent person That he need not fear fire or water this manner of tryal was first prohibited by the Canons then by Parliament The tryal by Battel is likewise prohibited by Battel the Canons 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 though I have the Books by me and so in this whole Treatise where I refer you to a Book I shall not set down the authorities cited in that Book which will avoid prolixity 32. When the matter alledged extendeth Which Tryal shall be first to a place at the Common Law and a place within a Franchise it shall be tryed at the Common Law 1 Inst 125. 4. Inst 221. In what Cases a Tryal in one issue shall Tryal in one issue binds in another bind the same party in another issue upon the same matter In Debt against two per several Precipes if one plead a release and they are at issue upon the Deed and the other plead the same issue if it be found the Deed of the Plaintiff in the former issue this shall bind him in the second issue 12 H. 4. 8. In trespass if the Defendant Plead villenage in the Plaintiff if this be found against the Defendant this shall bind him in the same issue in another action in the same Court betwixt the same parties 44. Ass 5. If a man be found guilty of a Conspiracy upon an Indictment at the Kings suit this shall not bind in a Writ of conspiracy at the suit of the Party but he may plead not guilty 27. Ass 13. If a man upon an Indictment of extortion confess it and put himself in the Kings grace and makes fine c. this shall bind him and he shall not plead not guilty to the suit of the party for a confession is stronger than a Verdict 27. Ass 57. per Sharde vide Rolls tit Tryal 625. He which is not party to the issue nor In what Cases tryal against one shall be against others can have attaint or challenge the Inquest shall not be bound by the Tryal 11. H. 4. 30. And therefore in Trespass against two and one pleads a Release and the other justifies as his Servant If the issue be found against the Master it shall not conclude the Servant 11 H. 4. 30. Rolls ib. 625. One shall not be compelled to try a traverse At what time the Tryal shall be the same Sessions he makes it for a man shall have time to make his defence and is not supposed to be ready to answer sudden objections and for this reason many Iudgments upon Indictments have been reversed Iustices of Oyer and Terminer nor Iustices of Peace cannot inquire and determine the same day But Iustices of Gaol Delivery and Iustices in Eyre may Justices of Peace cannot proceed to the delivery of a person indicted of Felony before them the same day he is arraigned 22 E. 4. Coron 44. Declared by all the Iustices of England to be observed as a Law In an Indictment in B. R. or in the same County and removed thither the Defendant may be arraigned and tryed the same day For the Kings Bench is a Court of Eyre for all Offences in that County Otherwise of an Indictment removed out of another County Vide Rolls tit Tryal 626. many Cases de ceo 33. All matters done out of the Realm of Marshal Affairs England concerning War Combate or Deeds of Arms shall be tryed and termined before the Constable and Marshall of England before whom the Tryal is by Witnesses or Witnesses or Combate by Combat and their proceeding is according to the Civil Law and not by the Oath of Twelve men 1 Inst 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any Foreign Country the Wife or Heir of the Dead may have an Appeal before the Constable and Marshall who sentence upon the testimony of Witnesses or Combat ib. So if a man be wounded in France and dye thereof in England ib. 4. Inst 140. It is worthy our observation to take What Issue shall be first tryed notice when 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
English County to cause the Jury to come de propinquiori Visne of his County to the Visne in Wales adjoyning For the Court shall not be ousted of the Plea Fitz. Abridg. tit Visne 8. Jurisdict 24. In an action against a Hundred the Venire facias may come from the next Hundred generally In Trespass if the Defendant plead not guilty to part and to the residue a Plea which causes the Tryal of that to be by a Jury de Prochein Hundred The Venire shall be awarded al Prochein Hundred for both issues because there ought not to be two Venire facias in one action vide Rolls tit Tryal 596. In an Appeal of murder committed in the Cinque Ports although the King be concerned yet because this is betwixt common persons the Venire facias to the next adjoyning Vill. ibidem If the issue be joyned of a matter in Ireland Ireland this shall be tryed by a Jury of the next County in England ib. If the issue be to be tryed by the Venue of Prochein Hundred a Mannor and the Plaintiff suggests that he is Lord of the Hundred in which the Mannor is and that all within the Hundred are within his Distress if the Defendant acknowledge this the Venue shall not be de Corpore Comitatus but of the next Hundred for if it should be de Corpore Comitatus this should be tryed by the Tenants of the Mannor Rolls ib. 667. If the Visne is in some part mis-awarded or Visne mis-awarded in part sued out of more places or fewer than it ought to be so as some place be right named this is aided by the Stat. of Jeofailes which hath ended the differences in many cases reported in our Books concerning this point wherefore I purposely omit them Error for that the Iudgment was given Infamy where the Land lies 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. Holmes vers Sanders Hill 22 23 Car. B. R. Error to reverse a Iudgement given in the Kings Bench in Ireland in Debt for Rent brought by the Assignes of a reversion the Plaintiff declared of a Lease of Land in such a Parish in the Suburbs of Dublin on nil debet pleaded the Venire facias was from the said Parish in Civitate Dublin and Iudgement there per Plaintiff it was assign'd for Error because the Land lies in the Suburbs of the City and the Venire facias was from a Parish in the City Per Cur. It is all one for the Suburbs are always within the Franchise of the City as Fleetstreet is within the Suburbs of London but the Strand not though so reputed Note It was adjudged Error in an Inferior Court that the Venire facias was awarded secundum consuetudinem Curiae which ought to be per Curiam Reader vers More Mich. 1650. B. R. CAP. IX Challenges YOu have already seen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges Challenge is a word common as well to the English as to the French and sometimes Challenge signifieth to claim and the Latine word is vendicare 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 seeing there is no proper Latine 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 verb Calomnior 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 to Calumnâ—ator be a false accuser but is derived of the old word Caloir or Chaloir which in one signification is to care for or foresee And for that to challenge Jurors is the mean to care for or foresee 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 Summons 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 majores and therefore I will handle this matter the more largely A Challenge to Jurors is twofold either Challenge is twofold to the Array or to the Polls to the Array of the principal Pannel and to the Array of the Tales And herein you shall To the Array 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 Verb to Array the Jury and so we say in common speech Battail Array for the order of the Battail Array And this Array we call Arraiamentum and to make the Array Arraiare 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 that there is a principal Principal Challenges cause of challenge to the Array a challenge to the favour principal 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 Attorney Officer in fee or of Robes or servant of either party Gossip or Arbitrator in the same
Peer of the Realm or Lord of Parliament Where there must be a Knight returned of the Jury 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 of the residue And if others be joyned with the Lord of Parliament yet if there be no Knight returned the array shall be quashed against all So in an attaint there ought to be a Knight returned to the Iury. If two Peers sue as Gentlemen and admit themselves so in pleading 't is no challenge to say no Knight is returned for the Sheriff is in no fault And when the King is party as in traverse Where the King is party of an Office he that traverseth may challenge the array as hereafter in this Section shall appear and so it is in case of life And likewise the King may challenge the array and this shall be tryed by Tryors according to the usual course The array challenged on both sides shall be quashed And if two estrangers make a Pannel and not in favourable manner for the one party or the other and the Sheriff returns the same the array was challenged for this cause and adjudged good If the Bayliff of a Liberty return any out of his Franchise the array shall be quashed as an array returned by one that hath no Franchise shall be quashed Challenge to the array for favour He Challenge to the favour that taketh this must shew in certain the name of him that made it and in whose time and all in certainty This kind of Challenge being no principal challenge must be left to the discretion and conscience of the Triors as if the Plaintiff or Defendant be Tenant to the Sheriff this is no principal Challenge for the Lord is in no danger of his Tenant but è converso it is a principal Challenge but in the other he may challenge for favour and leave it to tryal So affinity between the Son of the Sheriff and the Daughter of the party or è converso or the like is no principal challenge but to the favour but if the Sheriff marry the Daughter of either party or è converso this as hath been said is a principal Challenge or the like But where For the King the King is party one shall not challenge the array for favour c. because in respect of his allegiance he ought to favour the King more But if the Sheriff be a Vadelect of the Crown or other menial servant of the King there the challenge is good and likewise the King may challenge the array for favour Note upon that which hath been said it appeareth that the challenge to the array To the Array is in respect of the cause of unindifferency or default of the Sheriff or other Officer that made the Return and not in respect of the persons returned where there is no unindifference or default in the Sheriff c. for if the challenge to the Array be found against the party that takes it yet he shall have his particular challenge to the Polls In some Cases a Challenge may be had to the Polls and in some Cases not at all To the Polls Challenge to the Polls is a challenge to the particular persons and these be of four kinds that is to say Peremptory Principal which induce favour and for default of Hundredors Peremptory this is so called because he Peremptory Challenge may challenge peremptorily upon his own dislike without shewing of any cause and this only is in case of Treason or Felony in favorem vitae and by the common Law the prisoner upon an Indictment or Appeal might challenge thirty five which was under the number of three Iuries but now the Statute of 22 H. 8. the number is reduced to 20. in petite Treason Murder and Felony and in Case of high Treason and Misprision of high Treason it was taken away by the Stat. of 33 H. 8. but now by the Stat. of 1 2 Phil. Mary the Common Law is revived for any Treason the prisoner shall have his challenge to the number of 35. and so it hath been resolved by the Iustices upon conference between them in the case of Sir Walter Raleigh and George Brooks But all this is to be understood when any subject that is not a Peer of the Realm is arraigned for Treason or Felony But if he be a Lord of Parliament and a Peer of the Realm and is to be tryed by his Peers he shall not challenge any of his No Challenge of Peers Peers at all for they are not sworn as other Iurors be but find the party guilty or not guilty upon their Faith or Allegiance to the King and they are Iudges of the fact and every of them doth separately give his judgment beginning at the lowest But a Subject under the degree of Nobility may in case of Treason or Felony challenge for just cause as many as he can as shall be said hereafter In an appeal of death against divers they plead not guilty and one joynt Venire facias is awarded if one challenge peremptorily he shall be drawn against all Otherwise it is of several Venire fac Note that at the common Law before the Stat. of 33 E. 1. the King might have challenged peremptorily without shewing The Kings Challenge restrained cause but only that they were not good for the King and without being limited to any number but this was mischievous to the subject tending to infinite delays and danger And therefore it is Enacted Quod de câ—tero licet pro Domino Rege dicatur quod juratores c. non sunt boni pro Rege non propter hoc remaneant inquisitiones c. sed assignent certam causam calumniâ— suae c. whereby the King is now restrained Principal so called because if it be Principal Challenge the Polls found true it standeth sufficient of it self without leaving any thing to the Conscience or discretion of the Triors Of a principal cause of challenge to the Array we have said somewhat already now it followeth with like brevity to speak of principal Challenges to the Polls that is severally to the persons returned A principal Challenge is nothing else but such matter which proves evident favour or enmity in the Iuror and therefore it belongeth to the Iustices to draw the Iuror and not to leave the decision to Tryors 21 E. 4. 11. Principal Challenges to the Poll may be To the Polls reduced to four heads First Propter honoris respectum for respect of Honour Secondly Propter Defectum for want or default Thirdly Propter Affectum for affection or partiality Fourthly Propter Delictum for Crime or Delict First Propter Honoris respectum As any Principal Challenges to the Polls Peer of the Realm or
number of 3 Juries but in Petite Treason murder or Felony the number is reduced to 20. The prisoner may challenge any that are Witnesses against him Where the King is party the Defendant must shew the cause of his challenge instantly After a challenge for cause the prisoner may challenge the same person peremptorily CAP. X. Of what things a Jury may inquire when of spiritual when of things done in another County or in another Kingdom when of Estopples and when not when of a mans intent c. THe next words in the Writ which See more of this matter cap. 13. have not yet been taken notice of are these per quos rei veritas melius sciri poterit and this is the chief end of their meeting together No Court can give a right Iudgement Ex facto Jus oritur unless the truth of the fact be certainly known and to find out this truth no way is like to this of Juries for they do not only go upon their own knowledge though they are Neighbours to the place where the question is moved and so are presumed to have a better knowledge of the fact than any others For vicinus facta vicini praesumitur scire But lest this presumption should fail the Law allows other Evidence to be given to them by which they may more certainly and confidently give their Verdict of the issue which is meant by this word Rei And here it will not be amiss to give you a brief description de quibus rebus what the Inquest may inquire of and find Wherefore though it be true that a Jury shall not be charged nor meddle with Of the Law a matter of Law and if they do and find it their Verdict as to this shall be void yet daily experience as well as Littleton Sect. 368. tells us that they may take upon them the knowledge of the Law and give a general Verdict though to find the special matter is the safest way for them because if they mistake the Law they run into the danger of an Attaint In the Case of Manby and Scott adj Trin. 13 Car. 2. B. R. one question was if the Verdict was well found in an action of the case against the Husband for Wares bought by the Wife the Verdict finding that the Wares were necessaries and according to her degree whereas as was objected they ought to have found the degree of the party and the value of the Wares and left it to the Court to judge But it was answered and resolved that the Court i. e. the Judge before whom 't is tryed informs the Jury of the matter of Law and accordingly they find and so it belongs not to this Court Broughton a Reader of the Temple brought a Bill by Quo minus in the Chequer against Prince for maintaining a suit against the Stat. c. Prince pleads that he was admitted in the Inner Temple and student for many years there that he was Consiliarius in Lege eruditus and took his Fee in that cause B. replied de Injuriâ suâ propriâ absque hoc quod in lege eruditus c. hoc petit c. deus defendit similiter It was moved that the Defendant should demurr to the Replication Atkinson excepted to the Traverse and Conclusion for it can't be tryed by a Jury for says he if matter in Law be to be tryed by the Judges à fortiori the learning of the Law ought to be tryed by them Per Manwood Ch. Baron It shall be tryed by the Country 3 Leo. 237. Broughton vers Prince which case is cited 3 Cro. 728. to be otherwise ruled yet it was allowed there a good issue whether a Parson of a Parish could speak Welch Hut 20 21. Whether a plaint was levied according to the Custom was tryed by a Jury who are directed by the Court as to the plaint and whether it were pursuant to the Custom and are to find according to such directions In many cases the Jury are to inquire Of a mans intent of the knowledge and intent of a man as where the Nar. is that the Defendant kept a Dog which killed the Plaintiffs Sheep sâ—iens canem suum ad mordendos oves consuetum though sciens be not traversable yet the Jury upon Evidence must inquire of it lib. 4. 18. In some cases a Jury may try and find a spiritual thing as a Divorce Matrimony Of spiritual things c. and must take notice thereof upon pain of Attaint li. 4. 29. lib. 9. lib. 7. 43. vide hic cap. 2. The Jurors of one County may find any transitory thing done in another County Nay In Trespass Quare Clausum fregit in the County of D. where the Trespass was committed in the County of S. upon Not guilty if the Jury find the Defendant guilty in the County of S. their Verdict is void But if they find him Guilty generally an Attaint lyeth Finch 400. Because this Trespass is local and what is local cannot be inqured of by men of another County for they can have no conusans of it some times they must find local things in another County as if the Heir pleads riens per discent and the Plaintiff replies Assets in a Parish and Ward within London the Jury may find Assets in any County in the same case against an Executor who pleads plene administravit the Jury may likewise find Assets in any part of the world And the Reason is because the place is only named for necessity of tryal But where Of things done in another County or Country Vide cap. 8. the place is part of the issue it is otherwise And therefore if I promise in one place to do a thing in another and issue is upon the breach the Jury ought to come from the place of the breach But if I promise in London to do a thing at Burdeaux in France and issue upon the breach yet this shall be tryed in London for necessity because otherwise it would want tryal the Jury must inquire of the breach at Burdeaux But if I promise in France to do a thing in France so that both Contract and performance is Rolls tit Tryal fol. 571. 624. beyond Sea this wants tryal in our Law lib. 6. 47. li. 7. 23 26 27. In the Case of Drake and Beere Trin. 15 Car. 2. B. R. this difference was agreed by the Court viz. That a Jury in an Inferiour Court may inquire of things out of the Iurisdiction if they be but for encrease of Damages as is 1 Cro. 571. Ireland vers Blackwell but if they inquire of any thing issuable out of that Iurisdiction it is nought 1 Cro. 101. 2 Cro. 503. Error was brought to reverse a Iudgement given in the Palace Court in Indebitat for that the Defendant was indebtted to the Plaintiff Infrà Jurisdictionem for Nursing of a Child not saying the Nursing was Infra Jurisdictionem 〈◊〉 Windam Just held it
specialty or on Record Hob. 284. Hutt 35. But an account stated for rent and other things is good Evidence In Indebitat for money c. delivery of Corn or other matter in satisfaction is good evidence Contr. in a special Action of the case on Assumpsit Indebit lies not for money won at Dice Wiche's Case Hill 14 15 Car. 2. B. R. If a promise be made to pay at a day certain and the day is past the Plaintiff may declare to pay on request so if he declare on payment at a day certain give in evidence a promise on request i. e. when it 's created on account which gives the duty for there the time is ex abundanti but where the action is founded on the Contract otherwise for there the evidence must pursue the Contract Hill 1650. B. R. Child's case Promise to restore a Horse hired for a Iourney if the Horse dies in the Iourney without the Riders default his promise binds not Lisle's case cited in Matraver's case Trin. 1651. B. R. One brings an Assumpsit for 20 l. and gives in evidence a promise if two would surrender to pay them 20 l. a piece good Mich. 1655. B. R. Thomas and Gerey Indebit for 50 l. brought by Edgar against Chetham Clerk The evidence was T. was indebted to Edgar in 50 l. Chetham desires Edgar to let him take the 50 l. of T. and he would give Edgar a Bill of Exchange to receive so much at London accordingly T. promises to pay Chetham the money which promise he accepted and gave a Bill of Exchange to Edgar after T. became insolvent then Chetham prohibits the payment of his Bill whereupon this action is brought Per Wadh. Wyndham Just Ass Norf. Summer 1663. the action lies for Chetham having accepted the promise of T. and given a Bill c. is now become a Debtor to Edgar until his Bill be paid though he never receives the money of Thompson In Indebitat It is good evidence against the Father that Physick was delivered to his Daughter at his request Stone-house vers Bodvill Hill 14 Car. 2. B. R. One promises a Bayliff that if he would let one arrested be in his house that night he would deliver him in the morning it 's a good promise and the Bayliff or the Plaintiff may bring the action Benson vers French Pasch 15 Car. 2. B. R. Indebitat The case was the Plaintiff sold 60 Comb of Rye to the Defendant at 14 s. per Comb to be delivered before Mich. the Plaintiff delivered 50 Comb before the time and brought this action for the money for it and good though it was agreed the money to be paid on the delivery of the last Rye per Hale Ch. Baron 1. Though the agreement is intire yet the several deliveries make several contracts 2. Though the payment was to be on the last delivery yet a time being set for delivery it 's intended to be paid when the delivery should have been 3. The time being past it 's now a duty and so Indebitatus lies 4. The Defendant has his remedy for not delivering the residue Baker vers Sutton Lent Assise Norf. 1662. Indebitat lies for a portion after the Ioynture setled so for 1000 l. on promise of so much for every Horse-shoo nail but the Jury may mitigate Damages ib. A promise to marry B. within 3 Months within a Fortnight after they meet and the party promises again to marry her within 3 Weeks this last promise is no discharge of the former being all within the time of 3 Months but had the last promise been to marry her within some other time after the 3 Months it had discharged the former Hite vers Chaplin Pasch 1658. B. R. Indebitatus by one Defendant give evidence that another was partner with the Plaintiff at the delivery of the Wares Plaintiff Nonsuit Franklin vers Walker Norf. Lent Assise 1667. per Moreton Contr. in Trespass for there Ioint-tenancy must be pleaded Indebitatus for 9 l. Defendant pleaded non assumpsit infra sex annos issue inde the Plaintiff proved a Debt of 9 l. due 10 years before and an acknowledgement of the Debt within 6 years and an offer to pay 5 l. for the whole Per Hale The Plaintiff nonsuit for the acknowledgement of the Debt is no more than is done by the Plea but there must be a new promise of the Debt within 6 years to make the action hold and here the promise or offer to pay 5 l. gives no action for the 9. l. Bass vers Smith Suff. Summer Assise 1668. Debt Debt on a Bond to perform Covenants to deliver possession at the Terms end to the Lessor or his Assignes breach was assign'd in not delivery to two purchasors demand being made by both and issue joyn'd thereon in evidence demand by one is good 2 Cro. 475. Debt on Bond to perform an award ita quod the award be delivered to the parties in evidence delivery proved to the Wife is sufficient for the Jury to presume the delivery to the party himself per Hale Norf. Summer Assise 1665. Trice and Prat. At the same Assises per Moreton Just delivery to the parties Son is good evidence Violet and Cook Debt against an Heir c. riens per descent c. a Feoffment given in evidence made before the action that it was fraudulent may be given in evidence though not pleaded 5 rep Co. Goathes case Hob. 72. Debt against Executor who pleaded ne unques c. Plaintiff replied that he Administred as Executor and gave in evidence Administration granted to him by which he Administred Good Dyer 305. In Debt against Executors and plenè Administravit pleaded the Defendant cannot give in evidence a Bond satisfied where the Executor and Testator were obligors per Coventry Lord Keeper 33 Eliz. Perkins vers Perkins In Debt for Tythes Modus to a Vicar is good against the Parson and so is a Modus to a Parish Clerk per Moreton Just Lent Cambr. 1667. Barber vers Cosier In Debt against Executor de son tort who pleads ne unques c. It is sufficient to charge him by proving he hath administred of never so little value Clayton 6. Against Executor de son tort who pleaded fully administred the evidence was the Intestate made a Bill of Sale of his goods to the Defendant who was bound with him in a Bond as surety for his Counter-security but the goods remained in the Intestates possession during his life for some few hours ruled a fraudulent Deed by Barkley Just at York 11 Car. Legard and Linley Clayton 39. quaere Debt against Administrator who pleaded If the Defendant pleads plenè c. pretor judgements c. The Plaintiff must prove Assets above the sum of those Judgements Huntington by Judge Windham 33 Car. 2. plene c. and gave in evidence Iudgements and good without pleading per Henden 1638. York Clayton 65. Quaere for if Iudgements be kept on
foot by fraud and given in evidence how can a Creditor who sues for a just Debt be prepared to detect this fraud And note in Scire facias against an Execuor on Iudgement per Testator the Defendant pleaded fully administred generally and the Plaintiff demurred specially and Sir William Jones Sollictor general moved to amend the Plea and Hale Ch. Just thought he ought to plead specially how fully administred Bradford vers Hutchinson H. 25 26 Car. 2. B. R. Debt for Rent on a Lease the evidence to prove the Lease was that the Plaintiff leased a House to the Defendant at a Rent but no time mention'd and it was agreed at the same time that the Lessee was not to leave it without half a years warning per Hale Norf. Summer Assise 1668. It 's a Lease at will the leaving on half a years warning is but a Collateral agreement and no part of the demise Ejectment The Plaintiff Counts of a joint Lease made by A. and B. in evidence it appeared that A. B. and C. were Ioynt-tenants that C. Leased to B. and that A. and D. Leased to the Plaintiff by 3. Just against two it 's good 2 Cro. Jurdanes case fo 83. Count of a joynt Lease made by two in evidence it appears they were Tenants in Common by 3 Just against one it 's not good 2 Cro. 166. Mantles Case Count of a Lease by Husband evidence was a Lease by Husband and Wife with Letter of Attorney to make livery and 't is made in name of both by 3 Just against one it 's good for Livery as to the Feme was void 2. Cro. Gardners case Of a Lease made 5. May 10. Regis habendum from Lady-day last past for 21 years Extunc prox sequent In evidence a Lease of 5 May 10. Regis habendum from Lady-day last past for 21 years next following the date of the said Indenture adjudged good and affirmed in Error Hob. 19. Ejectment of a Rectory evidence of the taking of Tythes only and not Entry into the Glebe the Plaintiff was nonsuit Latch 62. Hems and Stroud Ejectment of a Lease to A. of Lands in the possession of three Tenants for years delivered to I. S. as an Escrow with Letter of Attorney to enter into all and then to deliver his Deed c. evidence that the Attorney entred upon one Lessee in name of all and delivered the Deed c. Per Jones Just It 's good enough for where the Freehold is in one his Entry into one Lessee for years in name of all the rest is good Latch 71. Dame Argells case Where one declares on a fictitious Lease to A. for three years and within the same time declares of another fictitious Lease to B. of the same Lands the last is not good For Trespass for the mean profits must be brought in the first Lessees name ut dicitur Ejectment of Tythes a Lease for life of Tythes is good if there be Church or Church-yard to make Livery in resolved in Tryal at Bar Wheeler vers Hanchet Hill 14 15 Car. 2. B. R. v. Jones rep 321 322. Entry and Claym made upon the Land within 5 years after the death of the Baron of the Countess of Peterborough to avoid a fine she being issue in tayle proved by one Witness and allowed at a Tryal at Bar B. R. Mich. 15 Car. 2. Floyd and Pollard Custom of Copyholders in extream is to surrender into one Tenants hands in the presence of credible Witnesses A surrender was made accordingly but presented to be done to another Tenant yet being proved to be done to a Tenant it was holden by Wadh. Wyndham Just to be good and by him a Glove or a Turfe is a Rod to give seisin by Maye's case Norf. Summer Assises 1663. A Will under which Title to Land is made must be shown it self and the Probate is not sufficient Contr. if it were on a Circumstance or as inducement or that the Will remain in Chancery or other Court by special order of such Court. Eden vers Chalk-hill Mich. 13 Car. 2. B. R. Also Inrollment of a Deed which needs no Inrollment is no evidence ib. The issue was fine uncertain or certain 2 years Rent and no more the evidence was of admittances on surrenders uncertain but all under 2 years Rent Per Williams Just you ought to produce fines on descent and fines paid above two years Rent 2 Bulst 32. Allen vers Abraham A lease was made by parol and agreed to be put in Writing and Indentures bespoke but being held for Ten years and no Indentures executed it was ruled for a lease parol Per Barkley Just 13 Car. 1. York Clayton 53. By Just Berkley 1638. York Hedges cont-Clayton 57 a Will under Seal proved examined by the original was allowed good evidence Quaere I think the practice against it A Lease and Release were given in evidence to entitle the Plaintiff and they both were named haec Indentura but were not indented good per Hale Ch. Baron Norf. Summer Assises 1668. Briant vers Trendle After default in Ejectment the Defendant may confess Lease Entry and ouster and may give evidence and have all advantages except Challenges and if the Plaintiff becomes non suit any one for the Defendant may pray it be recorded Per H. Wyndham Just Bucks Lent 68 Dr. Crawle's case Deprivation in spiritual Court for Simony disables from bringing Ejectment because he can make no Lease yet quaere If Mortgagor continues in possession without provision for that purpose in the Deed he is Tenant at Will and if he levies a Fine it 's no disseisin by him continuing in possession still because after the Will determin'd he is Tenant at sufferance Per Hale Ch. Baron Bedford Summer Ass 1669. Declaration on a Lease made 14 Jan. 30. Eliz. evidence of a Lease Sealed 13 Jan. good for if it was a Lease 13. it was a Lease made 14. 4. Leon 14. Feoffments of 40 years standing and possession going accordingly you need not prove Livery it may be intended per Jury Roll. rep 132. The Common Rock on which so many have split is laying the Lease to be à die datus and the Entry the same day which is a disseisin not purged by the Commencement of the Lease for where an interest passes à is exclusive and so the entry the same day is before the Lease was to Commence is a disseisin but in cases of Obligation where no interest passes it is contra quod nota Trespass Count of Trespass done in one acre evidence of Trespass done but in half that acre good 2 Cro. Winkworths Case The Lady Hatton brought Trespass for breaking her Close and taking away her Horse c. against two Defendants they plead Not guilty as to the taking of Her Horse as to the rest they say that the Horse of one of the Defndants was in the Close c. and they took him out doing as little damage as they could quae est
eadem c. The Plaintiff replies de injuriâ suâ propriâ c. The evidence was that the Plaintiff as Lady of the Mannor took the Horse as an Estray and it was Cryed and Marked c. that the Defendants refused to pay for the meat and took him away before the year and a day was out 1. Per Wadh. Wyndham Just d'assize A Lord may detain an Estray for meat yet no Trespass lies if the owner takes him but an action of the Case lies for the meat 2. If the action had been brought against the servant only he must justifie c. But being brought against Master and Servant this joynt-justification is good Cambr. Summer Assises 1667. Lady Hatton against Cotes and al. In Trespass the evidence for the Defendant was that the Defendant had a Barn and purschased a way over the Plaintiffs Land to that Barn after the Defendant bought other Lands lying contiguous to that Barn on the one side and to a Haven on the other side and carried Carriages by that way to the Barn and through it over his own new purchased Land to the Haven Per Hale Ch. Baron If I purchase a general way to such a place I may go from thence on my own ground whither I please though I purchase the ground after the way purchased Summer Assises Norf. 1665. Heynsworth vers Bird. Trespass was brought against many by a School-mistress for taking away a child her Scholar with a Scarfe of the Mistresses per Keeling Ch. Just In Trespass for taking things all are principals that are present and consenting Contra in taking persons and this action lies not by the Mistress for the child but for the Scarfe only Lent Norf. Ass 1663. Mary Coopers case Trespass lies for Lessee in Ejectment on a fictitious Lease to recover mean profits during the continuance of that Lease mentioned on Record And the Recovery shall maintain it Otherwise if brought by the Lessor for he is no party to the action Trespass lies not for pulling down a Pew in a Church fastned to a pillar with a Chain Contra had it been fixed by nails driven into the pillar per Glyn Ch. Just Trevors case Trespass quare fregit liberam Warrenam suam and took his Conies In evidence it appeared that the Plaintiff had liberty of chase in the place which though it includes Warren yet a general Trespass lies not but an action of the case E. of Arundels case Pasch 1658. B. R. Per Earl Sergeant if Beasts be impounded and the Key lost the Officer by Replevin may break the pound and deliver the Cattle per Stat. Marlebridge 52 H. 3. 21. Tenants in Common must joyn in Trespass done against them so Avowry Lead and Lamsteads case 7 Car. B. R. cited by Finch in Argument Or Tenant in Common surviving shall have Trespass In Trespass the Defendant sets forth a conditional Feoffment for payment of money at such a day and place and that he paid it accordingly issue joyned on the payment at the day and place evidence of payment before the day is not good Contra had the special matter been pleaded with acceptance More 47. In Trespass with Continuando to recover mean profits an Entry and possession of the Land before the Trespass must be proved and also another Entry after the Trespass In Trespass the Defendant prescribes to dig in the Common for Clay to repair antient houses holden of that Mannor and good Berney vers Stafford Norf. Lent Assises 1667. In Trespass they were at issue on Not Guilty and at the Assises the Defendant left his former plea and pleaded an accord with satisfaction the Iudge would have had it replied to and tryed presently but the Councel refused whereupon the Jury was sworn and the Plaintiff nonsuited Bedford Assises Lent 1667. Green vers Reynolds But this was contrary to the opinion of Sir Orlando Bridgeman at the same Assises and Contr. to 10 H. 7. 21. and 1 Bul. 92. Trespass lies by Recoveror in Erroneous Iudgement for a mean Trespass because the Plaintiff in Writ of Error recovers all mean profits and the Law by fiction of relation will not make a wrong doer dispunishable 13. rep Co. 22. but Contra where Act of Parliament restores c. Trespass for assault and wounding in Suff. the Defendant as to vi armis non Cul. As to the other justification of molliter Manus c. in Norf. and several Tryals Per Hale Ch. Baron Suff. Ass Summer 1668. the vi armis can't be tryed till the other be tryed Contr. If the first issue of non Cul. was as to the wounding and by him evidence of Livery of seisin generally shall be intended for life only The Hogs of B. were put into the yard of A. and broke into the Land of C. and did Trespass action lies against A. though the servant of B. did look to them and serve them by which the owner had the special possession of them So if Agisted Cattle do Trespass the Agistor shall answer Dawtry vers Huggins Clayton 33. per Barkley 11 Car. York A. by Indent of uses raised an Estate to B. in Fee who regrants Turbary to A. by another Deed and after A. levies a fine to confirm the Estate and uses abovesaid declared this doth not touch the Turbary per Vernon 11 Car. York Clayton 42. Any one imployed by an Officer is an Officer within 7 Jac. 5. to plead general issue and give the special matter in evidence Clayton 54. Prescription to tether Equos Boves upon such a balk c. Mares and Cowes good evidence within that prescription Per Barkley Clayton 54. Per Hale A Corporation may bargain and sell though it has been thought an use upon use they being seised to the use of their house But I think it rather a trust than an use If a Just of P. send his Warrant to I. S. who is no Officer to bring one before him if I. S. be no Officer he is not bound to execute it yet if he does execute it it 's good and he may execute it in any part of the County And so a Constable of one Town may execute a Warrant in any other Town in the same County and any such Warrant is as large as the Justices Commission is per Hale Norf. Summer Assises 1668. Wrongries case In Trespass against one for Gleaning on his ground per Hale Norf. Sum. Assises 1668. The Law gives licence to the poor to glean c. by the general Custom of England but the licence must be pleaded specially and can't be given in evidence on non Cul. Trover The Citizens of London gave in evidence their Custom to take Toll Jones 240. In Trover for an Horse proved of 15 l. value the Jury gave but 3 l. damages upon mistake they thinking that the Plaintiff had his Horse again Per Wadh. Wyndham if the Jury had not been gone they should have mended their Verdict but a new action of
per medietatem linguae he cannot challenge the Array for this cause at the Tryal if the Iury be all Denizens notwithstanding Stamford's Opinion to the contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. Vide Rolls tit Trial. 643. If the Plaintiff be an Alien he must suggest it before the awarding of the Venire facias but if the Defendant be an Alien the Plaintiff is allowed to surmise that before or after the Venire facias because the Defendants quality may not be known to him before 27 H. 7. 32. CHAP. XIII The Learning of General Verdicts Special Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default Inquests of Office c. Arrest of Judgment Variance betwixt the Nar. and the Verdict c. VErdit or Verdict In Latine Vere dictum Verdict quasi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12 men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgment of the Court is built for â—x facto jus oritur the Law ariseth from â—he fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as â—ot to believe the matter of fact until it is sworn by 12 sufficient men of the Neighbourhood where the fact was done whom the Law supposeth to have most cognisance of the truth or falsehood thereof which being sworn for the words are Juratores predict The Credit of Verdicts dicunt super sacruÌ„m suum c. is the Verdict whereof we now treat And such credit doth the Law give to Verdicts that no proof will be admitted to impeach the verity thereof so long as the Verdict stands not reversed by Attaint And therefore upon an Attaint no Supersedeas is grantable by Law Plo. Com. 496. And it is worth our observation that the Law seems to take more care of the fact than of her self for the Major part of the Iudges give the Iudgement of the Law though the other Iudges dissent But every one of the 12 Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assise pl. 27. And this Verdict is of two kinds viz. one General or special general and the other special or at large The general Verdict is positively either General Verdict in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury find Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do find Quod predict B. in juste sinâ— judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a general Verdict 1 Inst 228. A Special Verdict or Verdict at large is Special Verdict so called because it findeth the special matter at large and leaveth the Iudgment of the Law thereupon to the Court of which 1 Instit 226. kind of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court The Court cannot refuse it cannot refuse a Special Verdict if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned whether the Iury A special Verdict may be found upon any Issue as upon an absque hoc c. could find a Special Verdict upon a special point in Issue or no as they might upon the general Issue But this question hath been fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Vardict and find the matter at large en chescâ—n issue en le monde so that the matter found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions real personal and mixt and upon all Issues joyned general or special the Iury might find the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not only in Cases between party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmative of the Common Law And as this spetial Verdict is the safest for A Free-hold upon Condition without Deed may be found by Verdict though it cannot be pleaded the Iury 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concerns a Freehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12 men taken at large in an Assize of Novel dissâ—isin or in any other Action where the Iustices will take the Verdict of 12 Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for term of life without Deed upon Condition to render to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessee is seised as of Fréehold and after the Rent is behind by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Dissesin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for term of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behind at any such Feast at which it ought to be paid then it should be lawful for the Lessor to enter c. By force of which Lease
if a Release be pleaded in a Foreign County and tryed there for the Plaintiff there also shall damages be assessed by the same Iury. For where the 21 Ass 14. principal is tryed there also shall the Accessary and incidents be inquired of I need use no other instances to illustrate this than the case abovesaid They may find a Condition to defeat a What things the Jury may find Freehold of Land although it be not pleaded but of things in grant they must also find the Déed of the Condition Vpon Traverse of a Lease Modo forma the Iury may find a Lease of another date Modo forma although the date be mistaken in the Pleading but not a Lease made by another than from whom was pleaded for this is out of the issue in matter and form In an Assise of Rent the Iury may find Rent that the Rent was granted with an Atturnment although no specialty be shewed A Fine or Recovery may be found by the Matter of Record Iury without shewing of it under Seal The Iury cannot find against what is admitted by the Record They may find a Divorce which is a Record Divorce in the Spiritual Court but not by our Law Attainder of Felony not pleaded cannot be Attainder found unless Sub pede sigilli 26 Ass 2. The Iury is not to inquire of this which is agréed by the parties As in Dower if the Tenant says he has Dower been always ready to render Dower and the issue be if the Husband dyed seised the Iury is not to inquire if the Estate was dowaable for this is confessed If the Defendant doth not deny the Wast Wast but Pleads another matter scilicet nul tiel vill lou c. the Iury is not to inquire of the Wast but give damages although no Wast be made In Debt upon a Bond with a Condition Award to perform an Award and the Defendant Plead Nullum fecit Arbitrium and the Plaintiff reply fecit Arbitrium and sets it forth and the Defendant rejoyn Nul tiel award the Iury cannot find any matter dehors to make the Award void in Law which doth not appear within the Award pleaded As that the release awarded would discharge the Bond of the Submission for nothing is in issue but whether such an Award was made in fâ—it as is alledged neither could this matter be alledged by any Rejoynder for it would have béen a departure from the Plea and â— Iury cannot find that which would have béen a departure because out of their issue But in this Case if the Defendant would have took advantage of it he ought to have Pleaded all this matter in his Barr and not have said Nullum fecit Arbitrium for 't is a departure in the Rejoynder to acknowledge an Award which was denyed in the Plea In Debt for 20 s. and the Issue be solvit How the Jury ought to find their Verdict and what shall be intended ad diem and the Verdict be quod debet the 20 s. this is not good because it is not direct but by Argument In Debt upon an Obligation if the Defendant say That he is a Lay-man not lettered and 't was read as an Acquittance Nient lettered Et issint nient son fait if the Iury find he knew what he did and that it was a Bond and he was willing to be bound this is no good Verdict because they ought precisely to find if it was his Déed or not If the Issue be whether where a Copyhold is granted to thrée for the lives of two if he which dye seised c. ought by Custom to Custom pay a Heriot or not and the Iury find that there was never any such Estate granted in the Mannor this is not good for the reasons aforesaid So if the Issue be if by Custom an Estate tayle may be granted and the Iurâ— find that it may be granted in Fée which is greater yet 't is not good In Trespass for taking and cutting his Trespass Leather if the Defendant justifie as a Searcher and cut it for the better search More scrutatorum without any other damage and the Plaintiff reply De injuria sua propria Absque hoc that he cut it More scrutatorum upon which Traverse issue is joyned and the Iury find that the Defendant cut it as the Plaintiff has alledged this is no good Verdict because 't is not any answer to the issue but by Argument In Trespass and Battery in A. to find Battery not guilty in A. is not good for it ought to be generally not guilty Vpon this Plea if the Plaintiff reply Riens per Descent that he hath divers Lands in D. per descent and the Iury find he had divers Lands by descent this is good without finding what for 't is Incertain not material in regard upon this false Plea a general Iudgment is to be without having respect to the Assets Of 5 Acres if they find the Defendant Ejectment guilty in 8 pieces de terre parcel tenementorum predict 't is a void Verdict because uncertain and no Execution can be made of peices In case upon non Assumpsit Pleaded if Verdict Special the Iury find that the Defendant non Assumpsit yet if two Witnesses say true then we find that he did Assume The first shall stand for the Defendant and the last words are void and Surplusage shall not vitiate Surplusage If upon a Lease of 20 Acres and the Defendant Ejectment plead Non dimisit and the Iury find quod dimisit 10 Acres tantum and the Conclusion of the Verdict is Et si super totam materiam Curiae videbitur quod Defendant dimisit 20 Acres then they find for the Plaintiff and if not then for the Defendant this is repugnant and so the Verdict is void in all To Assess Damages incertainly is void Certain As to say we Assess 40 l. if we must by Law if not then but 3 l. this is void Indelitatus assumpsit to Assess Damages occasione debiti predicti is good although it ought to be occasione non performationis c. In an Information upon the Statute Information 39 El. ca. 11. for Dying with Logwood by which he lost 20 l. for every Offence upon Not guilty if the Iury find him Guilty for using this against the Statute for 40 days by which he lost this is not good because he forfeits 20 l. for every time and the number of times do not appear If the Iury find the words in the Will and yet do not find the Will the Verdict is not good If they first find the Special Matter and then find the Issue generally the Special Matter is hereby waved If the Iury find that J. S. was seised in Where a Special Verdict shall be good by Intendment Fée and Devised the Land to J. D. although they do not find
Castle but that there was a Goal this was for the Plaintiff because Goal is the Substance If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt assigned by the Plaintiff and the Iury find an Accompt before R. only the Issue is found for the Defendant for the Accompt is the effect of the Issue Vide Rolls tit Trial. 707. c. If 11 agrée and the 12th will not the Verdict of the 11 cannot be taken but the Court Jury agree may carry the Iurors with them in Carts until they are agréed 41 Ass 11. A privy Verdict may be altered in open Verdict altered Court In an Extendi fac upon a Statute if the Iury deliver their Verdict in Writing they may afterwards make it more formal but they cannot alter it in substance for it is a compleat Verdict by the delivery So of Presentments c. A Fine pleaded in Barr and that after Fine and Non-claim the death of A. scil 1 August 3. Car. B. Father of the Plaintiff was alive in plena vita remansit infra hoc Regnum infra quatuor Maria c. apud W. in Com. D. and no Entry or Claim within five years after and the Plaintiff replies and takes Issue què Modo forma il non fuit remansit infra hoc Regnum Angliae modo forma c. And the Iury find quod non fuit remansit infra hoc Regnum Angliae 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a Month and refer to the Court Au fuit remansit infra hoc Regnum modo forma c. This Issue is found for the Defendant for the matter and substance of the Plea is whether he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff and modo forma shall not make the day material Roll. tit Trial. 713. Iudgment upon a Demurrer and a Writ Judgment Arrest at what time of Inquiry executed at the return the party may shew any thing in Arrest of Iudgment for Iudgment is not compleat until the last Iudgment The first is but an Award A man may plead any thing in Arrest of Iudgment after a Verdict which will make Error if the Iudgment be given In Debt upon a simple Contract against an Executor if he will not plead in Abatement but other Matter which is found against him he shall not afterwards alledge that he is not chargeable in Arrest of Iudgment So in Debt against Executors upon Arrearages of Accompt where they are not chargeable That which appears ill upon the same Record What may be alledged but not a maâ—â—er of Fact which doth not appear upon the Record because the parties cannot by the Issue As that a Iuror was challenged and yet served on the Tales for this cannot appear without alledging matter of Fact Nor that the Defendants Attorney had no Warrant But if there be any irregular or foul practice this may be offered to set aside a Iudgment If any thing be omitted in the Declaration Variance between the Verdict and the Declaration or if more be put into the Declaration than is found by the Iury if it make a material Variance betwixt the Nar. and the Verdict the Action shall abate These following are adjudged material Variances If the Declaration be for these words Thou procuredst eight or Ten of thy Neighbours Words to Perjure themselves and the Iury find that he said Thou hast caused eight or 10 c. for he might be a remote Cause scilicet causa sine qua non without Procurement Nar. He is a Bankrupt Verdict He will be a Bankrupt within two days Nar. He is a Thief Ver. He stole a Horse Nar. Thou art a Murderer Ver. He is c. Nar. I know him to be a Thief Ver. I think him to be a Thief So it is a material Variance if a special Promise be laid to be upon Request and the Verdict find it without Request So if the Promise Declaration be upon a Lease made by two or by Baron and feme and the Iury find that one of them had nothing in the Land or that the Baron only made the Lease or that the two were Tenants in Common and so several Leases otherwise if they were Coparteners So in Case that the Testator was indebted to the Plaintiff in 55 l. and the Defendant being Administrator in consideratione c. Promise to pay this upon non Assumpsit if the Verdict find the Promise to be to pay 30 l. part of the 55 l. So in Ejectment If the Nar. be of a Lease Eje ment of thrée Acres a Lease of a Moiety will not maintain the Nar. So in Wast for Cutting Trees and the Wast Verdict find that he eradicated the Trées but did not cut them A Prescription in modo decimandi That Prescription every one who hath seven Lambs or under seven shall pay to the person ob for every Lamb and the Iury find that and further That if he had more than seven Lambs he should pay a Lamb and that the Parson should pay the Parishioner ob This is not the same Prescription but makes a Variance But if there be a Variance between the Variance Verdict and the Nar. either by way of Surplus or Defect but if this matter of Variance be not material in the extenuation of the Action or Damages the Action shall lye notwithstanding the Variance These ensuing are adjudged not to be material Nar. Strong Thief Verdict Thief Nar. I say c. Ver. I affirm or I doubt not Nar. The Plaintiff will do such a thing Ver. I think in my Conscience he will c. Nar. Of a Lease by a Parson for five years if he tam diu should be Parson tam diu viveret And the Verdict find the Lease to be for five years if he tam diu viveret without the words and should continue Parson for the Law implyeth That if he be deprived or resign that the Lease Determines Nar. He is a Murderer Ver. He was a Murderer for when he says He is a Murderer 't is not intended that he did the Act in presenti but before So in Trespasses or Actions upon Torts and wrongs which are several If the Verdict find part 't is no material Variance and the Plaintiff in these Cases shall have Iudgment Roll. tit Tryal 720. A Jury of Middlesâ—x was demanded in Enquest by default the Common-Pleas the first day of the Term and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the
informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgment was stayed for after the Iury are sworn they ought not to sée nor carry with them any other Evidence but what was delivered to them by the Court Afterwards the Plaintiff said That the Escrowle proved the same Evidence which was given to them at Barr by him wherefore it was not so bad as if it had béen new Evidence not given before Sed non allocatur 11 H. 4. 17. Pasche 38 Eliz. Inter Vicary Farthing Church-Book delivered to the Jury act of Court at the Nisi prius The Issue was about Non-age and two Church-Books were given in Evidence one whereof was delivered to the Iury in Court by the assent of parties and afterwards the other was delivered to the Iury out of the Court by the Solicitor of the Plaintiff without the assent of the Court and a Verdict for the Plaintiff and this was indorsed on the Postea The Question was whether this should make the Verdict void or no for the Iustices differed in opinion Popham and Gawdy that it should not Fenner and Clench that it should the Negative Iustices gave these Reasons That the Book was delivered in Evidence in the Court and so the other party might answer to it and that the Court had informed the Iury of the validity thereof how far they were to believe iâ— with many other Reasons But the Affirmative was urged because there might be some matter in this Book to induce them otherwise than was intended before and because it was delivered on his part for whom the Verdict passed without the Courts assent yet one Book scil Cro. last part 411. tells us Iudgment was afterwards given for the Plaintiff sée More 's Reports 452. The Books differ for Cro. makes Clinch give Consider the Reasons in the former cases his opinion for the Verdict But More brings him on the other side which I conceive is truest and for my part I know no reason why foisting of Evidence to the Iury without the Court should have any favour at all In the Case of Taylor and Webb Trin. 1653 B. R. Twisden moved to set aside a Verdict given at Barr because that after Evidence when the Writings were delivered to the Iury some Writings which were not sealed and therefore ought â—ot to be delivered to the Iury were delivered by a stranger to the Iury. Hales Counsel of the other side produces an Affidavit of the Foreman 's of the Iury that they made no use of them in giving their Verdict and that most of those Writings were read in Court in Evidence upon the Tryal and Hales said That if this should avoid the Verdict then that would be in the power of any Stranger unknown and against the mind of the parties to avoid any Verdict Roll. Ch Iust The Affidavit of the Iury ought not to be allowed to make good their own Verdict for now they are as it were parties and have offended and shall not be allowed by their own Oath to take off their offence and it is the Duty of the Iury to look what Writings they receive before they go from the Barr and if any such Paper be wrap'd up among other Papers delivered to them by the Court so soon as they have discovered it they should call in the Tip-staff who keeps them and deliver it to him and to testifie they made no use of it and he said it would be dangerous to give the least way to the delivering of any Writings to a Iury. And at another day Roll cited 11 H. 4. 18. the Plaintiff before the Tryal delivered a a breviaâ—e of his Evidence to the Iury which contained no more than was proved in Court yet by this the Verdict was avoided So Mich. 31 Eliz. C. B. Metcalfe and Dean After the Iury were gone from the Barr they sent for one of the Witnesses and re-examined him who gave the very same Evidence that he had before given in Court yet the Verdict was avoided and the reason of both is a fear and jealousie that other matters might be given c. 37 Eliz. Farthing's Case a Paper not under Seal which was given in Evidence was delivered to the Iury this did not avoid the Verdict because here can be no such fear and per Roll If any Writing though not given in Evidence be delivered to the Iury by the Court it shall not avoid the Verdict And in the principal Case the Verdict was avoided Hill 40 Eliz. Rot. 847. In Arrest of Iudgment after Verdict it was alledged Escrowle from one who was no party that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Evidence at the Tryal and adjudged no cause to Arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. but otherwise if it had béen given by a party and the Iury had found for him In the Case of Duke and Veâ—tres Mich. 1656. B. R. tryed at Barr one Mr. Beverly of Suff. a Barrister was returned of the Iury who having béen at a Tryal of the same Cause above 20 years before in the Cheq and heard there great Evidence to make a Deed fraudulent which was now the Contest demanded of the Court whether he ought to inform the rest of the Iury privately of this or conceal it or declare it in open Court The Court ordered him to come into Court and deliver all his knowledge which he heard then proved which Evidence was not now given because the parties were dead and so he did being not sworn again but only upon the Oath taken as a Iuryman And certainly It is of dangerous Consequence to receive a Verdict against Evidence given on supposal that some of the Iury knew otherwise or on private Information given by one Iuryman to the rest where he can't be Cross-Examin'd and let such Iurors beware of Attaint but the best way is as before in open Court In a Writ of Error the first Error assigned was that Termino Trin. twelve Iurors and no more did appear This ex assensu partium was adjourned until Jury adjourned Crastino Animar on which day two others came in and were sworn being of the first Pannel The Court all clear of Opinion that this is no Error this being good enough they being all to be called again Leon. 3. part 38. If a Iuror depart after he is sworn Juror depart he shall be sined and imprisoned and by assent of parties another Iuror may be sworn Bro. Jurors 46 lib. 5. 40. If a man be non-suited after the Jury is ready to give their Verdict the Court may cause the Amercement of the Plaintiff to be presently affered by the Iurors li. 8. 39. CAP. XV. What Punishment the Law hath provided for Jurors offending as taking Reward to give their Verdict Of Embraceors Decies tantum Attaint several Fines on Jurors
Embraceors F. N. 6. Br. 171. So much doth the Law hate that Jurors Fined for taking Money after their Verdict should privately take Money for their Verdict That certain Jurors were fined for taking Money after their Verdict though there was no prâ—ingagement for it 39 Assise p. 19. The practice is otherwise at this day if it were not the Middlesex Iuries would not so Court the Bayliffs to return them especially to Tryals at Barr where 5 l. a man is frequent Gratuity sometimes more If a full Iury appear and some are challenged Issues off so that the Iury remains for default of Iurors the Defaulters shall loose their Issues 4 H. 6. 7. otherwise if a Iury be sworn and one is withdrawn by consent But if there be a joynder of Counties and a Iury of one County appear and not of the other The Defaulters of that County from which enough came shall not loose their Issues because the Inquest doth not remain for their default but for the default of them of the other County 48 Ass 5. Mes quaere If the Iurors at the return of Scire fac Amercement make default yet they shall not be amerced because the parties may be claimed at the first day but at the return of the Habeas Corpora they shall 10 E. 4. 19. 1 E. 3. 12. If any of the Iurors appear the Court Demand sur peine may charge them to inquire if any of the other Iurors were within the Town after the return and if they find they were they shall be demanded upon a Pein and if they come not they shall be amerced Rolls tit Trial. 632. A Juror was challenged and six other Jurors were sworn to try the Challenge who found him indifferent and thereupon the Juror fined for departing when he was challenged Jury was demanded but did not appear for which default he was fined the value of his Lands for a year and the other Jurors inquired of the value c. although the other party then would have challenged him when he was demanded so that he might have béen treit But the Court would not admit this because then the King would have lost his Fine 36 H. 6. 27. If a Juror appear and is adjourned upon Juror adjourned upon pain pain and makes default in this Case because he shall be fined to the value of his Land per annum this shall be inquired by his Companions of the Jury because the Court knows not the value of his Land li. 8. 41. A Verdict was taken from the Fore-man Fined for giving a Verdict before they were agreed of the Jury to which one of them did not assent and damages assessed to 20 s. in Trespass and Assault and afterwards every one of the 11. were fined for giving their Verdict before they were all agreed 40 Assise 10. Where a Iury are to be fined a Fine The fine must not be joynt jointly imposed on them is not legal but they must be severally fined because the offence of one is not the offence of another Et nemo debet puniri pro alieni delicto For then it might be said Rutilius fecit Aemilius plectitur lib. 11. 42. A man stroke a Juror at Westm sitting Punishment for striking a Juror in the Court who passed against him and he was thereof indicted and arraigned at the Kings Suit and attainted his judgment was that he should go to the Tower and stay there in prison all days of his life and that his right hand should be cuâ— off and his Lands seised into the Kings haâ—ds 41 Assise p. 25. and now our Juror sées what punishment it is to strike him in the face of the Court. Let him hold his hands from others least the same Iudgment light on him By the Statute of 27 Eliz. cap. 6. It is Enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius 10 s. shall be returned in Issues upon every person impannelled and upon the second Writ 20 s. and upon the third 30 s. Issues And upon every Writ that shall be further awarded to try any Issue to double the Issues last afore specified until a full Jury be sworn And these Issues being returned upon a Not summoned Tenement in Fée simple in tail or for life of another or himself or in the right of his Wife the Land he then hath will be chargeable for it and any mans Cattel upon this Land may be distrained for it But if the Under Sheriff c. return a Juror summoned who in truth was not legally summoned and therefore doth not appear and so looseth Issues the Vnder-Sheriff shall pay him double the value of the Issues lost Sée the Statutes of 35 H. 8. 6. and the 2 E. 6. 32. And note the Law hath béen so careful to punish all offenders who would endeavour to byass and corrupt the Iury and to punish the Juries themselves if they receive Money to give their Verdict or any otherwise pre-ingage themselves to any of the parties All which is to the end that a true and honest Verdict may be given What punishment shall that Jury have which gives a false Verdict Such a punishment that as I said before in civil Causes it is without example and surely if the Jurors did bear it in their minds their Verdicts would be always grounded upon their Evidence and not upon their own Interests or any partiality to either of the parties Wherefore if the Jurors give a false Verdict which is perjury of the highest degrée upon an Issue joyned betwéen the parties in any Court of Record and Iudgment thereupon The party grieved may bring his Writ of Attaint in the Kings-Bench or Attaint Common-Pleas upon which 24 of the best men in the County are to be the Jurors who are to hear the same Evidence which was given to the Petite Iury and as much as can be brought in affirmance of the Verdict but no other against it And if these 24. who are called the Grand Iuâ—y find it a false Verdict then followeth â—â—is terrible and heavy Iudgment at Common Law upon the Petite Iury. 1. That they shall loose liberam legem for Judgment in Attaint ever that is they shall be so infamous as they shall never be received to be a Witness or of any Jury 2. That they shall forfeit all their Goods and Chattels 3. That their Lands and Tenements shall be taken into the Kings hands 4. That their Wives and Children shall be thrown out of doors 5. That their Houses shall be rased and thrown down 6. That their Trées shall be rooted up 7. That their Meadow-grounds shall be ploughed up 8. That their Bodies shall be cast into the Goal and the party shall be restored to all that he lost by reason of the unjust Verdict So odious is Perjury in this Case in the eye of the Common-Law And the severity of this
a Challenge made by the Defendant because the Plaintiff is the Sheriffs Cousin Et super hoc pÌ„dictus Defendens per A. B. AttornÌ„ suum venÌ„ CalumpnÌ„ ArraiamentÌ„ pannelli pÌ„d quia dicÌ„ qd pannellum illud factÌ„ arriatÌ„ fuit per C. D. AtÌ„ modo Tempore ArriamentÌ„ pannelli pÌ„d vicÌ„ ComÌ„ pÌ„d quiquidem vicÌ„ est Consanguineus E. H. genÌ„ modo dimissori querÌ„ in narratione pred quetÌ„ mentionÌ„at videltÌ„ fillius G. H. genÌ„ filii K. L. fillie M. N. filii O. P. Patris Q. R. Matris pÌ„d E. F. modo dimissori querÌ„ in narÌ„ pÌ„d nominat Et hoc paratÌ„ est verificare unde petÌ„ iudgmÌ„ qd pannellum illud cassetur c. If the Plaintiff deny the Kindred and Affinity then thus Nient Cousin par le Manner W. T. est Cousin G. D. Then are two or more Triors sworn but seldom more than two and after they have heard the Proofs and Evidence given to make good the Defendants Plea they give their Verdict accordingly Note The Plaintiff may if he please Demurr upon the Challenge A Challenge to the Array because no Knight was retorn'd upon the Jury Et super hoc predictus ComÌ„es ê‘ A. B. AttornÌ„ suum venÌ„ CalumpnÌ„ ArraiamentÌ„ pannelli Assize pÌ„d quia dicÌ„ qd ipÌ„e est Tempore Arraiamenti pannelli illius antea fuit Et adhuc est unÌ„ magnatÌ„ patium hujus Regni Angliae vâ—cem locum in quolibet Parliamento ejusdem Regni habens Et qd ArraiamentÌ„ Assize pannelli pÌ„d ArraiatÌ„ fuit ê‘ C. D. Mil ' nuper vicÌ„ pÌ„d ComÌ„ E. nullo Millite in eodem pannello ArriamentÌ„ illius nÌ„iatÌ„ retornÌ„ existen sicut esse debuit secundum legem hujus Regni Angliae hoc paratÌ„ est verificare unde petÌ„ IudgmÌ„ Et qd pannellum illud Cassetur c. Vies tiel Challenge in le liure de Monsieur Plowden demurrer sur ceo joinder in demurrer Iudgment que le pannell ill soit casse en le Case del Count de Darbie fo 117. A Challenge against the Sheriff for Retorning the Jury at the Instance Request and Denomination of the Plaintiff Et super hoc eadem A. B. ê‘ C. D. AttornÌ„ suum venÌ„ CalumpnÌ„ ArraiamentÌ„ pannelli ejusdem IureÌ„ quia dicÌ„ qd pannellum illud factÌ„ arriatÌ„ fuit ê‘ E. H. mil ' modo vicÌ„ ComÌ„ pÌ„d Ministros suos ad demoninationem promotionem ipsius querÌ„ infavorem ejusdem querÌ„ hoc paratÌ„ est verificare unde petÌ„ IudgmÌ„ qd pannellum illud cassetur c. To which the Plaintiff may plead that the Array of the Pannel pred bene equalitÌ„ factum arriatÌ„ fuit ê‘ pÌ„dictum vicÌ„ Ministros suos c. juxta officii sui debitÌ„ Or the Plaintiff if he will may confess it But if he Plead then the Iudges immediately assign Triors to try the Array which seldom excéed two who being chose and sworn the Associate or Clerk in Court doth declare and rehearse unto them the matter and cause of the Challenge and after he hath so done concludes to them thus And so your Charge is to enquire whether it be an even and Impartial Array or a favourable one and if they affirm it Then the Clerk enters underneath the Challenge Affirmatur But if the Triors find it favourable then thus Calumpnia vera A Challenge because that the Town is within a Hundred of which the Plaintiff is Lord and Prays a Writ to the next Hundred Et super hoc pÌ„d A. dicÌ„ qd predicta villa de Dale de qua transgrÌ„ pÌ„d facta fuit est infra hundred de B. Et quod ipse est DnÌ„s ejusdem hundredi quodque omnes lib Tenentes infra hundred illud sunt infra districtionem ipsius A. Et ea de causa petÌ„ breÌ„ DomÌ„ Regis de venire faciend hic xij c. ad triand exitum predictum de prox visuÌ„ in ComÌ„ pÌ„d exâ—ra hundred pÌ„d ville de B. prox adjacenÌ„ vicÌ„ ComÌ„ pred dirigend Et quia pÌ„d Defendens hoc non dediÌ„t ei conceditur c. Jo. pÌ„ceptÌ„ est vicÌ„ qd venire facÌ„ hic in Octab scÌ„i Hillary xij c. de prox visuÌ„ in ComÌ„ pÌ„d extra hundred pred predicte ville de Dale prox adjacenÌ„ ê‘ quos c. Et qui nec c. ad RecognÌ„ c. quia tam c. Challenge because the Sheriff and two Coroners are Tenants of the Plaintiff and a Ven. fac awarded to the rest of the Coroners Et suê‘ hoc pÌ„d A. B. dicÌ„ qd tam pÌ„d C. D. miles nunc vicÌ„ ComÌ„ pÌ„d qmÌ„ E. F. G. H. duo CoronÌ„ sunt Tenentes ipsius nunc I. Et infra districtionem suam Et ea de causa petÌ„ brÌ„e ipsius DomÌ„ Regis de Ven. fac hic xij c. E. A. R. P. resid CoronÌ„ ejusdem DomÌ„ Regis in ComÌ„ pÌ„d dirigend ad triand exit pÌ„d quia pÌ„d W. hoc non dediÌ„t ei conceditur c. Jo. precÌ„ E. A. R. P. quod Ven. fac hic c. Challenge where after the last Continuance the Cosin of the Plaintiff is made Sheriff after Issue joyned Quia tam c. Ad quem diem hicÌ„ veuÌ„ partes c. Et vicÌ„ non misit brÌ„e Et super hoc predictus QuerÌ„ dicÌ„ qd post ultimam continuationem placiti videl ' postea Octab scÌ„i Michis ultimo pretÌ„ito de quo die loquela pÌ„d ultÌ„ continuatÌ„ fuit hic usque ad hunc diem scilicet tali die ultimo pretÌ„ito Dominus Rex nunc per lrÌ„as suas patentes Commissit cuidem A. B. mil'i custodiam ComÌ„ pÌ„d quarum quidem literarum patenÌ„ pretextu idem vicÌ„ ComÌ„ illius jam existit Quiquidem A. B. est Consanguineus pÌ„d querÌ„ viztÌ„ fil' c. Et ea de causa petÌ„ breve Domini Regis de venire fac hic xij c. CoronÌ„ DicÌ„ ComÌ„ Regis ComÌ„ pÌ„d dirigend Et quia predictus Defendens hoc non didicitÌ„ ei conceditur c. Et precÌ„ est CoronÌ„ DomÌ„ Regis ComÌ„ pÌ„d ven fac c. Challenge because the Sheriff is of Councel with the Plaintiff and hath received Fees and the Defendant doth deny the Challenge therefore the Venire fac awarded to to the Sheriff notwithstanding Et super hoc pÌ„dictus querÌ„ dicÌ„ qd quidem A. B. vicÌ„ ComÌ„ pÌ„d modo existit quiquidem A. B. est de consiliis ipsius querÌ„ habet de eodem querÌ„ Annuum Redditum sive feod xxl. Et ea de causa pet brÌ„e DomÌ„ Regis de veni ' faciend ' hic xij c. CoronÌ„ DomÌ„ Regis ComÌ„ pÌ„d dirigend Et quia predictus defendens hoc dedicÌ„ IoÌ„ non obstante allegationis pÌ„d queâ— precÌ„ est vic c. Challenge because the Plaintiff is Brother to the Sheriff Et super hoc quidem querens dicÌ„ qd A. B. miles modo vicÌ„ ComÌ„ pÌ„d existit
c. R. P. Esq late Sheriff of the said County of E. from the same Office of Sheriff of that County was duely amoved and the said King now by his Letters Patents haâ—h Committed unto one T. P. Knight the Custody of the said County of E. by pretence of which said Letters Patents the said J. P. now remaineth Sheriff of that County which said T. P. of A. at A. aforesaid took to his Wife Anne of the Blood of M. now the Wife of him the Plaintiff that is to say the Daughter of R. D. the Son of W. D. Knight Father of Anne Mother of the said M. now Wife of him the Plaintiff which said T. P. Knight and A. had Issue betwéen them A. P. yet alive and in full life remaining at A. aforesaid and this he is ready to prove c. And out of that cause he prayeth a Writ of the Lady the now Queen of Venire fac to try the said Issue in form aforesaid joyned to be directed to the Coroners of the said County and because the said Defendant doth gain-say and doth not grant that to be true therefore notwithstanding the same Challenge a Command Challenge gain-said is to the Sheriff that he make to come Twelve c. of the Visne of B. by whom c. Easter Term 38 H. 8. Rot. 558. And hereupon Challenge to the Array because the Coroners made the Pannel at the Denomination of the Plaintiff the Defendant doth Challenge the Array of the Pannel of the said Iury because he saith That that Pannel was made and arrayed by A. and C. Coroners of the said County at the Denomination and in favour of the Pannel of the said Plaintiff and this he is ready to verifie and requesteth that the same Pannel may be quashed And the said Plaintiff saith That the said Pannel by the said Coroners was well and equally made and not at the denomination nor in favour nor in promotion of the said Plaintiff whereupon the said Iustices by the consent of the said Parties did choose and assign D. and E. two of the said Iury now appearing to try the said Challenge which said Tryors being elected and tryed say upon their Oaths That the said Pannel was well and faithfully made and arrayed by the said Coroners and not at the denomination neither in favour nor in promotion of the said Plaintiff whereupon the Iurors of the said Iury being called tryed and sworn say c. A Precedent of Challenge to the Array May it please you Mr. Baron This Enquest you ought not to take for that Sir John Ramsden Knight Sheriff of the County of York who did retorn the Pannel betwéen the said A. Plaintiff and B. Defendant is Cosin to the Plaintiff c. and shew how of Kinn c. and so where the Challenge is for lack of Hundredors or other principal Challenge put it down c. and this he is ready to averr whereof he prays Iudgment and that the said Pannel be quashed Or thus And now at this day S. c. comes the aforesaid J. S. Plaintiff and J. B. Defendant by their Attorneys and the Iurors also impannelled and demanded did come and thereupon the said J. B. doth Challenge the Array of the Pannel aforesaid because c. This must be put in Writing but under Counsels hand where the Challenge is to the Poles it is in short way by a Verbal Challenge see the learning of this is excellent and copious in our Books A Precedent of a Plea after the last Continuance And now at this day c. comes such a one Defendant by J. C. his Councel and saith This Action the Plaintiff against the Defendant ought not to maintain for that after the Quindene of the Holy Trinity last past from which day until such a day in Michaelmas Term next unless the Iustices of Assizes before come such a day c. the Action aforesaid is continued c. the Plaintiff by his Déed dated c. did Release c. and shew the Matter what it is whether in abatement in Bar dilatory or peremptory as the Case is c. and this he is ready to averr Note Brook in his Abridgment tit Continuance 61. 83. says That after the Inquest is awarded to inquire of Damages The Defendant cannot plead a Plea Puis le darrein Continuance because he hath no day in Court to Plead The day of Nisi prius and day in Bank are all one so that a Release made betwixt these days cannot be pleaded in Bank but it seems that a Release made betwéen the day of the Venire facias retorned and the Writ of Nisi prius awarded and the day of the Nisi prius may be pleaded at the day of the Nisi prius but not after the Verdict 21 H. 6. fo 10. Bro. tit Jour c. 31 tit Continuance 76. 42. 27. 13. A man shall have but one Plea after the last Continuance for the Plaintiff shall not be delayed ad infinitum 16 H. 7. 11. Bro. tit Continuance 59. 41. 45 46. 5. 21. After the Inquest taken by default and before Iudgment the Defendant came and pleaded an Arbitrament made after the last Continuance And by the Opinion of the Court he had no day in Court to plead this Plea and 't was said That he could Plead no Plea in such Case but as Amicus Curiae and of matter apparent he shall be received otherwise he must resort to his Audita Quaerela 21 H. 7. 33. Broke ibid. 38. But if the Iury remain for default of Iurors the Defendant may plead a Release c. at the day in Bank Puis le darrein Continuance although he did not offer it at the Nisi prius otherwise if the Iury had béen taken at the Nisi prius 22 H. 6. 1. Broke ibid. 30. If it be pleaded at the Nisi prius the Court Record the Plea and discharge the Inquest and give day to the parties in Bank Bro. ibid. 34. 8. In Debt after Issue joyned the Defendant at the Nisi prius pleaded Payment of part after the latter Continuance in Abatement And the Iury being discharged and the Plea adjourned in Bank for that no place of Payment was pleaded the Plaintiff had Iudgment to recover his Debt because after Issue joyned no Respondes ouster can be awarded L. 5. E. 4. 139. Aleyn's Reports 66. in the Case of Beaton and Forrest Now although when difficulty arises in the Evidence the matter is most commonly of late found specially and Demurrers on the Evidence are seldom used yet in asmuch as it is sometimes done and that our Practicer may be prepared with an Authentick Precedent for that purpose I shall transcribe one out of Coke's Entries fo 134. viz. Postea die loco Infra ContentÌ„ Coram â—ss Postea Jacobo Dyer Milite Capitali IustitiatÌ„ DomÌ„ Regine de Banco Nicolao Barham uno servientÌ„ dictÌ„ DomÌ„ Regine ad legem IusticÌ„ ipsius DnÌ„e Regine ad
assisas in ComÌ„ N. Capiend assignÌ„ ê‘ formam statuti c. venÌ„tam infra nominatÌ„ J. A. quaÌ„ infra scriptÌ„ H. C. ê‘ atturnatÌ„ suos infra ContentÌ„ IurÌ„ Iure unde infra fit mentio ExactÌ„ similitÌ„ venerÌ„ Qui ad veritatem de infra ContentÌ„ dicend electi triati Iurati fuerÌ„ Super quo pÌ„d H. ê‘ quendam J. B. de Consilio ipsius H. C. manutentione exitus interius IunetÌ„ Coram pÌ„fatÌ„ IustÌ„ IurÌ„ pÌ„d in Evidentijs oftend dicÌ„ quod c. Here recite the Evidence truely unde petitÌ„ IudiciuÌ„ qd IurÌ„ pÌ„d veredictÌ„ suum de suê‘ infra ContentÌ„ pro ipso H. reddant c. Et pd J. A. ê‘ quendaÌ„ C. J. de Consilio suo Demurrer dicÌ„ qd materia ê‘d ê‘ pÌ„fatÌ„ H. C. IurÌ„ pred suê‘ius in Evidentiis ostentÌ„ minus in lege existic ad pro band exitum interius IunctÌ„ pro parte ejusdem H. quodque ipse ad materiam illam in forma pÌ„d in EvidentÌ„ ostentÌ„ necesse necesse non habet nec ê‘ legem terrÌ„ tenetÌ„ respondere hoc paratus est verificare unde pro defectu sufficientÌ„ materÌ„ IurÌ„ pÌ„d in hac parte ostens Idem I. petitÌ„ IudicÌ„ quod IurÌ„ de VeridictÌ„ suo suê‘ Exit pÌ„d reddend exoneretur debitum suum infra specÌ„ una cum dampnÌ„ suis occasione de tentÌ„ debiti illius sibi addiundi cari c. Et pÌ„d H. C. Ex quo ipse sufficÌ„ materÌ„ in Joynde lege ad manutenen exitÌ„ infra ContentÌ„ pro parte ipsius H. IurÌ„ pred suê‘ius in EvidentÌ„ ostens qd ipse ê‘atÌ„ est verificare quaÌ„ quidem materiaÌ„ pÌ„d J. non dedicit nec ad eam aliqualiter respond sed verificationem illam admittere omnino recusat petÌ„ IudicÌ„ qd pred J. ab actione sua pred versus Eum habend precludatur ac qd IurÌ„ pred de VeredictÌ„ suo suê‘ exitÌ„ pred reddend onerentur c. A Precedent of a Demurrer upon the Evidence And now at this day the said Plaintiff and Defendant by their Attornies did appear and the Iury likewise did appear and were sworn c. upon which Sir T. W. Serjeant at Law of Councel with the Plaintiff gave in Evidence so and so and repeat it truely and did require the Iurors to find for the Plaintiff upon which J. C. of Councel with the Defendant saith That the Evidence and Allegations aforesaid alledged were not sufficient in Law to maintain the Issue joyned for the Plaintiff to which the Defendant néedeth not nor by the Laws of the Land is not holden to give any Answer wherefore for default of sufficient Evidence in this behalf the Defendant demands Iudgment that the Iurors aforesaid of giving their Verdict be discharged c. and that the Plaintiff be barr'd from having a Verdict c. Then the Plaintiff joyns and says That he hath given sufficient matter in Evidence to which the Defendant hath given no Answer c. and demands Iudgment and that the Iury be discharged and that the Defendant be Convicted then the Iury may give Damages if Iudgment shall happen to be for the Plaintiff c. A Bill of Exception Memorand That the First day of August Ebor. sc An. 1650. before T. P. and W. Iustices of our said Lord the King for taking of Assizes in the said County assigned in a Plea of Trespass and Ejectment which J. S. in the Court of our said Lord the King before himself by Bill doth Prosecute against E. B. supposing by the said Bill that the aforesaid T. B. c. and recite the substance of the Declaration or what it is c. and the Issue and then what the Evidence to prove the Defendant guilty was c. which here was a Surrender of a Copyhold out of Court c. and that he desired the Iury aforesaid to give their Verdict for the said T. B. of and upon the Premisses and that he likewise desired the Iudges aforesaid that they would inform the Iury aforesaid that the Surrender aforesaid out of Court made was good and effectual in Law and the aforesaid Iustices the aforesaid Surrender of the Land aforesaid with the Appurtenances made out of Court of the Mannour aforesaid in form aforesaid did affirm to the said Iurors was not good in Law by which the said Thomas for that the aforesaid matter to the said Iurors in Evidence shewed doth not appear c. did request of the said Iustices according to the form of the Statute in such case provided this present Bill which doth contain in it the matter aforesaid above by him to the Iurors aforesaid shewed by which the said Clayton's Reports Iustices at the request of the said Thomas this Bill have sealed at D. aforesaid 1. Westm 2. 31. 13 E. 1. When the Iustices will not allow a Bill of Exception upon Prayer if the Party impleaded tender the same unto them in Writing and requires their Seals thereunto they or one of them shall do it 2. If the Exception sealed be not put into the Roll upon Complaint thereof to the King the Iustice shall be sent for and if he cannot deny the Seal the Court shall procéed to Iudgment according to the Exception This Bill of Exception is given by the Statute Westm 2. cap. 31. before which Statute a man might have had a Writ of Error for Error in Law either in redditione Judicii in redditione Executionis or in Processu c. which Error in Law must be apparent in the Record or for Error in sait by alledging matter out of the Record as the death of either party c. before Iudgment But the mischief was if either party did offer any exception praying the Iustices to allow it and the Iustices over-ruling it so as it was never entred of Record this the party could not assign for Error because it neither appeared within the Record nor was any Error in fait but in Law and so the party grieved was without remedy until this Statute was made This Act extendeth to all Courts to all Actions and to both parties and to those who come in their places as to the vouchee c. who comes in loco tenentis It extendeth not only to all Pleas Dilatory and Peremptory c. to Prayers to be received Oier of any Record or Déed and the like but also â—o all Challenges of Iurors and any material Evidence given to any Iury which by the Court is Over-ruled 2 Inst fo 427. All the Iustices ought to Seal the Bill of Exceptions yet if one doth it it is sufficient if all refuse it is a contempt in them all And the party grieved may have a Writ grounded upon this Statute commanding them to put their Seals Juxta formam Statuti hoc sub periculo quod incumbit nullatenus omittatis The party must pray the Iustices to put their Seals but if they deny it they may be
commanded and may do it after Iudgment If the party grieved be dead his Heirs or Executors c. according to the Case may have a Writ of Error upon this Bill of Exceptions And no diminution can be alledged for the parties are confined to the matter in the Bill If the Iustice dye before he acknowledgeth his Seal according to the Act a Scire sac shall go to his Executor or Administrator for the Death of the Iudge is the act of God which shall not prejudice the party As in the case of a Certificate of the Marshal of the King's Host that the person outlawed was in the King's Service beyond Sea in a Writ of Error a Scire fac shall go to the Marshals Executor or Administrator upon shewing the Certificate If the Iudge denyeth his Seal the party may prove it by Witnesses ib. Error of a Iudgment at the Grand Sessions in the County of Pembrok in an Assise of darrein Presentment by Henry Cort against the Bishop of St. Davids Dorothy Owen al. for the Church of Stackpoole The fourth Error assigned was because the Issue being whether H. Cort did last present one R. D. the last Incumbent who was instituted and inducted upon his Presentation The Plaintiff offered in Evidence Letters of Institution which appeared to be and so mentions that they were sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there And those Letters were made out of the Diocess And the Defendant had demurred thereupon That those Letters were insufficient and the Demurrer was denyed which Jones said was an Error because they ought to have permitted the Demurrer and should have adjudged upon it But it was held that the not admitting of the Demurrer ought not co be assigned for Error for when upon the Evidence the matter was over-ruled by the Iustices of Assize That was a proper cause of a Bill of Exceptions and the remedy which the Statute appoints in that Case And for the matter of the Letters of Institution sealed with another Seal and made out of the Dioâ—ess it was held they were good enough for the Seal is not material it being an Act made of the Institution the writing and sealing is but a testimonial thereof which may be under any Seal or in any place But of that point they would advise Croke 1. part 340. Note This Bill is to prevent the precipitancy of the Judges and ought to be allowed in all Courts and in all places of Pleadings and may be put in at any time before the Jury have given their Verdict But this Bill is rarely used there being impar congressus betwixt the Judge and the Councel and the Prudence of the Judges induce them to find special Verdicts in Cases of doubt and difficulty A Release Pleaded at the Assises after Issue joyned Et pred Def. in propria persona sua ven dic quod pred Justic Dom. Regis hic ad caption Jur. ss pred inter ipsum Def. prefat Quer. procedere non debent quia dic ' quod post xii diem F. ult preterit de quo die Jurat pred inter partes pred continuat fuit ante hunc diem scilt diem de Assise scilt primo die M. Anno c. apud c. pred Quer. per nomen c. remisit relaxavit c. Et hoc c. unde pet quod Justic pred ad captionem Jur. pred ulterius procedere nolunt The Death of one of the Defendants Pleaded after the last Continuance Et pred Def. per A. B. Attorn suum ven pred T. non ven super hoc pred Def. dic quod post ult concinuationem placiti pred scilt post xv Pasche ult preterit de quo die loquela pred ult continuat fuit hic usq ad hunc diem scilt in Cro. sce Trin. tunc prox ' sequen ' ante eundem diem scilt decimo die Maii ult preterit pred T. apud A. pred obiit Et pet quod null process ' nec aliquid aliud in placito pred ulterius versus prefat T. fiat Et quia pred J. K. hoc non dedic Ideo null process nec aliquiâ— aliud in placito pred versus prefat T. fiat c. A Baron Challenges the Pannel because no Knight was retorned of the same Et sup hoc idem T. calumpniat arraiament panelli pred quia dic quod ipse est tempore arraiament panelli ilâ—ius fuit Baro hujus Regni Angliae locum vocem habens in quol Parliamento hujus Reg. Quodque in eodem panâ—llo nullus Miles nominat retorn existit Et hoo paratus est verificare unde petit Judicium quod panellum illud cassetur c. Evidence and demurrer upon Evidence Middleton against Baker Cro. Eliz. 42. fol. 751. In Eject It was held by all the Court upon evidence to a Jury That if the Plaintiff give in evidence any matter in writing or Record or a sentence in the Spiritual Court as it was in this case and the Defendant offers to demurr thereupon the Plaintiff ought to joyn in the demurrer or wave the Evidence because the Desendant shall not be compelled to put matter of difficulty to lay Gens and because there cannot be any variance of a matter in writing But if either party offer to demurr upon any evidence given by Witness the other unless he pleaseth shall not be compelled to joyn because the Credit of the testimony is to be examined by a Jury and the Evidence is incertain and may be enforced more or less But both parties may agree to joyn in demurrer upon such evidence And in the Queens Case The other party may not demurr upon evidence shewn in Writing or Record for the Queen unless the Queens Councel will thereto assent But the Court in such case shall charge the Jury to find the matter specially as appears 34 H. 8. Dyer 53. But this is by Prerogative vide lib. 4. 104. the same case and 1. Inst 72. where my Lord Cook says If the Plaintiff in evidence shew any matter of Record or Deeds or Writings or any sentence in the Ecclesiastical Court or other matter of evidence by Testimony of Witnesses or otherwise whereupon doubt in Law ariseth and the Defendant offer to Demurr in Law thereupon the Plantiff cannot refuse to joyn in demurrer no more than in a Demurrer upon a Count Replication c. and so è converso may the Plaintiff Demurr in Law upon the evidence of the Defendant but the Kings Councel shall not be enforced to joyn in Demurrer but in that Case the Court may direct the Jury to find the special matter So that the several sorts of evidence make no difference as to the joyning in Demurrer 1. part Leon. 206. Darrose against Newbott Cro. 4. Car. fol. 143. In Error of a Judgment in Bridgewater The Error assigned was for
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
morning in open Court they may either affirm or alter their privy Verdict Where there can be no privy Verdict and that which is given in Court shall stand But in Criminal cases of life or member the Jury can give no privy Verdict but they must give it openly in Court Neither can a Jury sworn and charged in Where the Jury cannot be discharged before Verdict The King cannot be nonsuit case of life or member be discharged by the Court or any other but they ought to give a Verdâ—ct And the King cannot be non-suit for he is in Iudgment of Law ever present in Court but a common person may be nonsuit And in Civil Actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. But this is against Common practice and I have known that after a Iury of Life and Death have been sworn and charg'd with Prisoners Arraigned the Iudge having béen credibly Informed That it was a Iury pack'd to favour some Prisoner has discharged that Iury and made the Sheriff return another presently In Hillary Term Sexto H. 8. Rotulo 358. It was alledged in Arrest of the Verdict at the Nisi prius that the Jurors had eat and drunk And upon Examination it was found that they had first agreed and that returning to give their Verdict they saw Rede Chief Iustice in the way going to sée a fray and they followed him Et in veniendo viderunt cyplum inde biberunt And for this every one of them was fined 40 d. And the Plaintiff had Iudgment upon the Jurors fined Verdict Dyer 37. And Dyer 218. At the Nisi prius the Jury after their charge given returned and said That they were all agréed except one who had eat a Pear and drunk a draught of Ale Jurors at the Nisi prius fined in bank for eating Pears and drinking Ale for which he would not agrée And at the Request of the Plaintiff the Iury was sent back again and found the Issue for the Plaintiff And the matter aforesaid being examined by the Oath of the Iurors Seperatim and the Bayliff who kept them and found true the offender was committed and afterwards found Surety for his Fine Si c. And Fitzherbert the then Iustice of Assise gave him day in banco c. at which day a Fine of 20 s. was there assessed Et quoad Ball Curia avisare vult In Trespass by Mounson against West the Iury was charged and Evidence given and Iurors being retired into a House for to Fined for having Figgs and Pippins about them consider of their Evidence they remained there a long time without concluding any thing and the Officers of the Court who attended them seeing their delay searched the Iurors if they had any thing about them to eat upon which search it was found that some of them had Figgs and others Pippins for which the next day the matter was moved to the Court and the Iurors were examined upon Oath And two of them did confess that they had eaten Figgs before they had agréed of their Verdict and three other of them confessed that they had Pippins but did not eat of them and that they did it without the knowledge or will of any of the parties And afterwards the Court set a sine of 5 l. upon each of them which had eaten and upon the others which had not eaten 40 s. But upon great advice and consideration had and conference with the rest of the Iudges the Verdict was held to be good Notwithstanding the said misdemeanor Leon. 1. part 133. And sée the Book of Entries 251. The Fined for eating Raisins and Dates Iurors after they went from the Barr ad seipsos of their Verdict to advise Comederunt quasdam species scil Raisins Dates c. at their own Costs as well before as after they were agreed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King In Ejectione firme it was found for the Finable for having sweet-meats c. about them though they do not eat them See Plo. Com. 519. One fined and imprisoned for having Sugar-Candy and Liquorish about him Defendant three of the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff until they were searched and the Sweet-meats found and then did agree with the other nine and gave Verdict for the Defendant It was the Opinion of the Iustices That whether they eat or not they were finable for having of the Sweet-meaâ—s with them for that is a very great misdemeanor Godbold 353. 40 Assise Placito 11. The Iustices said Jurors carted That if the Iurors will not agrée in their Verdict the Iustices may carry them in a Cart along with them till they are agréed The Iury were gone from the Barr to confer of their Verdict and one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gon from the Barr spoils the Verdict was called by the Iurors and he recited again his Evidence to them and after they gave their Verdict for the Defendant And complaint being made to the Iudge of the Assises of this misâ—emeanor he examined the Enquest who confessed all the matter and that the Evidence was the same in effect that was given before Et non alia nec diversa And this matter being returned by the Postea the Opinion of the Court was That the Verdict was not good and a Venire facias de novo was awarded Cro. last part 189. Trin. 1653. between Wells and Tayler Copies of a Bill Answer and Depositions were proved but not all read and delivered to the Iury who carried them with them from the Barr in a bundle which they layd by them and did not look on yet their Verdict at the Barr was set aside for this Cause and the Court would not regard their saying that they did not read them for they might say that to save themselves it being a fault to take any thing without the Courts knowledge If one of the parties say to the Iury after they are gone from the Barr You are weak If a party speak to them men it is as clear of my side as the Nose in a man's face This is new Evidence for his affirmation may much perswade the Iury and therefore shall quash the Verdict So if any thing be read to them which they ought not to have with theâ— as a book of Depositions some whereof were read in Evidence Pratt's Case 21 Jac. The Plaintiff delivered an Escrowle to a Escrowle delivered to a Juror before he was sworn Vitiates the Verdict Iuror impanelled before he was sworn who afterwards being sworn and gone with the Iury from the Barr to consider of the Verdict shewed the same Escrowle to his Companions who found for the Plaintiff The Minister who kept the Enquest