Vice Comiti i. e. to one who is Vice Comitis and hath the Regiment of the County instead of the Earl of that County to whom once it did belong As we are taught in the Mirror Chap. 1. Sect. â— Scil. That it appeareth by the Ordinance of ancient Kings before the Conquest That the Earls of the Counties had the Custody or Guard of the Counties and when the Earls left their Custody or Guards then was the Custody of Counties committed to Viscounts who therefore are called Vice Comites What great Repose and Trust both the King and Laws put in this great Officer The Oracle tells you What Trust in the Sheriff 1 Inst 168. That he is Shireve that is pâ—aefectus Comitatus Governour of the County For the words of his Patent be Commissimus vobis Custodiam Comitatus nostride c. And he hath a thréefold Custody triplicem Custodiam viz. first Vitae Justiciae for no Suit begins and no Proces is served but by the Sheriff And he is to return indifferent Juries for the tryall of mens lives Liberties Lands Goods c. Secondly Vitae Legis he is after long Suits and chargeable to make Execution which is the life and soul of the Law Thirdly Vitae Reipublicae he is Principalis Conservator pacis within the County which is the life of the Common-wealth for Vita Reipublicae Pax. To whom the Venire facias ought to be directed Yet notwithstanding the heighth and Latitude of this great Officers power and trust The Law adjudges him in many Cases not capable to do so much as return a Jury For if he be of kindred by nature or of affinity by Marriage to any of the parties or that I may say all in a little if he be not as indifferent almost in all respects he is whom the Law allows to be a Juror he ought not to meddle with the retorning of the Jury But the Venire facias shall be directed to the Coroners Coroners or to some of them if the residue are not indifferent who in that Case are vice Vice Com. And if the Coroners are not indifferent Forrescue cap. 2. 5. then the Venire shall be directed Ad 2 Electores that is to two whom the Court shall chuse and déeme fit to retorn the Jury And to the retorn of these Elisors or Esliors Esliors ab Eligendo no Challenge Challenge will be admitted Bro. tit Venire facias 14. as to the Array But to the Polles 1 Inst 158. If one of the Sheriffs of London Sheriff of London be a party then the Venire may be directed to the other Sheriff If the Vnder Sheriff be a party yet the Venire may be directed to the Sheriff with this Proviso Quod sub Vic. tuus in in nullo se intromittat cum executione istius brevis 18 E. 4. 3. Iudicial Writs say Cook and Sanders Plo. 74. may be directed to the Coroners As the Venire facias where the parties are at Issue there upon the surmise of the Plaintiff that the Sheriff is his Cozen and upon prayer that the Venire be directed to the Coroners Coroners for avoydance of his own delay that might happen by the Challenge of the Array The Defendant shall be examined whether it be true or not and if he confess it then the Venire shall be awarded to the Coroners for then it appeares to the Court by the Defendants confession that the Sheriff is not indifferent Examination But if the Defendant denies it then the process shall be awarded to the Sheriff because the Sheriff's Authority and profit shall not be taken away without cause apparant to the Court But if the Defendants will alledge any such matter and pray a Venire facias to the Coroners there the Plaintiff shall not be examined neither shall such allegations be allowed because delayes are for the Defendants advantage The Defendant may not have a Venire facias to the Coroners and the Defendant may challenge the Iury for this cause and so is at no prejudice And sée in term H. 3. H. 7. fo 5. placit ult In a quare Impedit where the Defendant shewed how the Sheriff was Cozen to the Plaintiff and prayed a Writ to the Coroners but it was denyed him upon the same Reason Fitz. tit suggestion placit 8. br Challenge 153. Venire facias once directed to the Coroners shall not be to the Sheriff afterwards When the Process is once awarded to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. bro. tit Venire facias 17. So the Entry is Ita quod Vice comes se non intromittat 18 E. 4. 3. And therefore where the Sheriff ought not to retorn the Venire Sheriff shall not return the Tales where he cannot the Venire faciar he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner And afterwards a Tales was awarded and it was returned by the Sheriff and it was tryed and a Verdict given and Iudgment And for this câ—use held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 1 part ult pub 574. bro. tit octo tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After Issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and after Verdiâ— Where the Coroner returns the Vâ—nire facias he ought to return the Tales it was moved in Arrest of Iudgement that the Tales de Circumstâ—ntibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgment For it is a mis-ryall not aided by any of the Statutes for process being once awarde to the Coroners the Sheriff afterwards is not the Officer to return the Iury no more than any other man And process ought alwayes to be returneâ— by him who is an Officer by Law to return it otherwise it is méerly void But afterwards upon view of the Record it apâ—eared that the Tales was returned by the Coroners No name to the Return and their names annexed thereto wherefore it was without further question But the Court said if their names had not béen annexed to the Tales yet it had béen well enough for they be annexed to the first Pannel And it shall be intended that the right Officer returned it and the usuall course is That to such Tales there is not any Officers names
of Error was brought and the Iudgeâ—ent affirmed For as in reall actioâ—s the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the case of Costs he shall recover for the expences depenâ—ing the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past Damages in reall and personall actions and not to expences of suit For in personall actions he counts to damages because he shall recover damages onely for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in reall actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages and costs intirely together Damages and Costs intirely assessed without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs then the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover onely so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 1â— H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20. marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22. marks and the Verdict was held to be good for 20. marks and void for the residue because it doth not appear how much was intended for damages and how much for costs so that there may be more damages then the Plaintiff declared for or lesse and so the Court knowes not 〈◊〉 to increase the cost whereâ—â—e he shall have Iudgement but â—20 marks by reason of the inâ—â—â—tainty Where a special Verdict is not â—â—tred according to the Notes Verdict amended by the notes the â—â—cord may be amended and made â—grée with the notes at any time â—â—ugh it be 3 or 4 c. Termes afâ—â—r it is entred lib. 4. 52. lib. 8. 162. â—â—o 1 part 145. If the matter Form Hob. 54. and substance of â—â—e Issue be found it is sufficient â—â—r precise forms are not required â—â—y Law in special Verdicts which â—â—e the finding of Lay-men as in Pleadings which are made by men â—urned in the Law and therefore â—tendment in many cases shall â—â—lp a special Verdict as much as 〈◊〉 Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury finde generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they finde that he was made Deputy by Déed because it doth tantamount lib. 9.51 And in the 5th Report Goodales Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. III conclusion In all Cases where the Iury finde the matter committed to their charge at large and over more conclude against Law the Verdict is good More 105. 269. and the conclusion ill li. 4. 42. and the Iudges of the Law will give Iudgement upon the speciall matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Where the Dâ—claration in Trespas is Cum aliquibus averiis As generall as the Narr of a number uncertain and the Verdict is as generall as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione â—irme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per non ina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton that this Verdict was imperfect in all Quoad Residuum incertain For when the Iury finde that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they finde quoad residuum the special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2. part 113. Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10. acres and Quoad Residuum Quod Residâ—um not guilty and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances Circumstances upon an Evidence given to incite them to finde fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury maâ— finde Circumstances and presumâ—tions upon which the Court ought to judge As to finde that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that the Husband assented to the devise at first More 192. Where a Verdict is certainly â—iven at the Tryall Postea amended how and uncertainly returned by the Clerk of the Asâ—izes c. The Postea may be amended upon the Iudges certifyâ—ng the truth how the Verdict was given Cro. 1. part 338. In many Cases a Verdict may â—ake an ill Plea or Issue good Ill Plea made good by Verdict As 〈◊〉 an action for words Thou wast â—erjured and hast much to answer for 〈◊〉 before God Exception after Verdict for the Plaintiff in arrest â—f Iudgement For that it is not â—nd in the Declaration that he â—pake the words in auditu compluriâ—orum or of any one according to â—he usuall form sed non allocatur for â—â—ing found by the Verdict that he â—pake them it is not materiall alâ—hough he doth not say in auditu â—urimorum whereupon it was adâ—udged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place â—f payment was alledged yet the â—ayment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the
battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in trespass de clauso fracto of the Barons Baron Feme which ought not to be But for the Battery of the feme they may joyn whereto all the Court agreed But it was moved that in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespas by Baron and Feme for the battery of both The Defendant pleaded Not guilty and found guilty and damages assessed for the Battery of the Baron by its self and for the Battery of the Feme by its self and Iudgment was given for the damages for the battery of the feme the Writ abated for the residue And of that opinion was Lea Chief Justice Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife Rochel and his Wife against Steel brought an action of trespass and assault in the Exchequer Hill 16. 59. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but â—â—und nothing concerning the Husband Wherefore Iudgment was stayd but the Barons held that if the Iury had found the Defendants not guilty as to the Husband then the Verdict had helped the Declaration and the Plaintiff should have had Iudgment for the damages for the battery of the Wife Of what a Verdict may be The Iury may finde any thing that may be given in Evidence to them as Records either Patent Statute or Iudgment Things done in another County Plo. Com. 411. or Country for which sée Evidence before Hob. 227. And of these things they ought to have Conusance they are to have Conusance also of all Incidents Incidents and dependants thereupon for an Incident is a thing necessarily depending upon another Co. Littleton 227. b. The Verdict may be against the Letter of the Issue so the substance is found If the matter and substance of the Issue be found it is sufficient though it be against the Letter of the Issue As in the first Institutes fo 114. b. A modus decimandi was alledged by prescription time out of minde for Tythes of Lambs And thereupon Issue ioyned And the Iury found that before twenty years then last past there was such a prescription Prescription and that for these twenty years he had payd Tythe Lamb in specie And it was objected first that the Issue was found against the Plaintiff for that the prescription was generall for all the time of the prescription and 20. years fail thereof 2. That the party by payment of Tythes in specie had waved the prescription or custome But it was adjudged for the Plaintiff for albeit the modus decimandi had not béen payd by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assise of Darrein Presentment if the Plaintiff alledge the avoydance of the Church by privation Avoydance and the Jury finde the voydance by death the Plaintiff shall have judgement for the manner of voydance is not the title of the Plaintiff but the voydance is the matter 1 Instit 282. If a Gardein of an Hospitall bring an Assise against the Ordinary Deprivation he pleadeth that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron the Ordinary shall have judgement for the deprivation is the substance of the matter Ib. The Lessée Covenants with the Lessor not to cut down any Trées c. and binds himself in a Bond of 40. pounds for the performance of Covenants The Lessée cut down 10. Breach of 20. Trees cut down for 10. Trées the Lessor bringeth an action of debt upon the Bond and assigneth a breach that the Lessée cut down 20. Trées whereupon Issue is joyned and the Jury finde that the Lessée cut down ten Judgment shall be given for the Plaintiff for sufficient matter of the Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminall Causes For if A. be appealed or indicted of Murder viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo forma Indictment of Murder and Verdict findes Manslaughter yet the Jury may finde the Defendant guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and malice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma Modo forma are not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not finde the precise Issue As if a man bring a Writ of Entry in casu proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the alienation made in Fée and the Tenant saith that he did not alien in Manner as the Demandant hath declared Alienation and upon this they are at Issue and it is found by Verdict that the Tenant aliened in tail or for terme of another mans life The Demandant shall recover yet the alienation was not in manner as the Demandant hath declared Littleton Sect. 483. Also if there be Lord Tenant the Tenant hold of the Lord by fealty onely the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespas against his Lord Trespass by the Tenant against the Lord. for his Cattel so taken and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behinde he came to distrain c. And demand Iudgement of the Writ brought against him Quare vi armis c. And the other saith that he doth not hold of him in manner as he supposed and upon this they are at Issue And it is found by Verdict that he holdeth of him by fealty onely in this case the Writ shall abate and yet he â—oth not hold of him in manner as the Lord hath said For the matter of the Issue is whether the Tenant holdeth of him or no for if he holdeth of him although that the Lord distrain the Tenant for other services which he ought not to have yet such
subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed But it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgment But if the Venire be awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose Venire facias to the Sheriff after one awarded to the Coroners upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time er else to Essiors sic e converso In Error of a Iudgment in Chester the parties being at Issue Venire facias to the Coroners after one to the Sheriff a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vice comes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cousinage betwixt him and the Sheriff which was awarded accordingly and at the day of Tryall the Defendant made default and thereupon Iudgment Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not materiall Cro. 1 part ult pub 853. But the Defendant might have demurred to this Prayer No Venire facias to the Coroners after one to the Sheriff For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the array nor have a Venirâ— afterwards to the Coroners becausâ— the Sheriff is his Cozen or foâ— any other principall Challenge whereof he might by common intendment have Conusance when hâ— so prayed the Venire facias for upon shewing this Cause at first hâ— might have prayed Process to the Coroners But for a principall Challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Shâ—riff c. he may afterwards challenge the array when thâ—y appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to the Coroners If the Defendant dâ—nies the Plaintiffs suggestion he shall have no b nefit of it by Challenge because he is of kindred to the Sheriff if the Defendant will not confess this but denyes it this shall be entred and the Defendant shall not challenge the Array for this Cause afterwards br tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryall without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff without such consent of parties This is an insufficient Tryall not remedied by any Statute except it be upon an insufficient suggestion and then the Stat. of 21 Jac. 13. helps it Vpon suggestion that the Plaintiff and the Sheriff Venire facias to some of the Coroners and one of the Coroners are of kindred to the Plaintiff or Defendant or upon any other suggestion which contains a Principall Challenge the Venire facias may be directed to the other Coroners Dier 367. Error of a Iudgment in Northhampton because in Northampton the Court being held before the Maior and two Bayliffs Bayliffs the Venire facias upon the Issue was awarded to the two Bayliffs to return a Jury before the Maior and Bayliffs Secundum Consuetudinem which being returned and Iudgment given the Error assigned was because the Bayliffs being Iudges of the Court could not also be Officers to whom Process should be directed there being no Custome that can maintain any to be both Officer and Iudge But all the Court absente Hide conceived it might be good by Custome And that it is not any Error for the Iudges be not the Bayliffs onely but the Maior and Bayliffs and it is a common course in many of the Antient Corporations where the Bayliffs are Judges Judge and Officer to return Writs or the Maior and they be Judges yet in respect of executing Process they be the Officers also And one may be Iudge and Officer diveâ—sis respectibus as in Redisseisin the Sheriff is Judge and Officer Whereupon Iudgment was affirmed Cro. 1 part 138. In Trespass and Assault laid in the Court Venire facias to the Garden of the Palace of Westminster to be at the Palace of Westm It was adjudged that the Venire facias shall issue al Garden del Palice and not to the Sheriff of Middlesex Bro. tit Ven. fac 31. CAP. VI. What faults in the Venire facias shall vitiate the Tryall what not when a Venire facias de novo shall be awarded when severall Ven. fac When the Venire facias shall be betwixt the party and a stranger to the Issue Who may have a Venire facias by Proviso and when Veâ—ire facias why the Writ so called VVE have now shewed you to what Officer the Venire facias shall be directed The next step in the Writ is Precipimus tibi quod Venire facias Which words Venire facias are the most effectuall words in the Writ and therefore they give the denomination to the whole Writ And here opportunity is offered us to speak something of a Venire facias in generall I am not ignorant how our Books swarm with Cases which arise from the defects in this Process and how that Verdicts have béen set aside Iudgments stayed and reversed for want of sufficient Returns misawarding disagréement with the Rolls discontinuance and many other faults in this Writ But the Statutes of Ieofailes especially the Statute 21 Jacob. cap. 13. have pardoned as I may so say these enormities As Statute of Jeof iles 21 Jac. 13. the awarding this Writ hab Corpora or distringas to a wrong Officer upon any insufficient suggestion or by reason the Visne is in some part misawarded or sued out of more places or of fewer places than it ought to be so as some place be right named The misnaming of any of the Jury either in Sur-name or addition of any of the said Writs or in any Return thereupon so that upon examination it be proved to be the same man
9. H. 6. 66. and the Jury cannot finde no Wast for that would be against the Record be within the same Record in which the Issue is joyned upon which the Jurors give their Verdict there they cannot finde any thing against this which the parties have affirmed and admitted of Record although it be not true For the Court may give Iudgement upon a thing confessed by the parties aâ—d the Jurors are not to be charged with any such thing but onely with things in which the parties vary Ib. li. 5. 30. So Estoppels Estoppel which binde the Interest of the Land as the taking of a Lease of a mans own Land by Déed intended and the like being specially found by the Iury Cro. 1. paâ—t 110. Lib. 4 53. the Court ought to judge according to the speciall matter for albeit Estoppels regularly must be pleaded and relyed upon by apt conclusion and the Iury is sworn ad veritatem dicend yet when the finde veritatem facti they persue well their Oath and the Court ought to adjuâ—ge according to Law So may the Iury finde a Warranty being given in evidence though it be not pleaded because it bindeth the right Warranty not pleaded unless it be in a Writ of Right when the Mise is joyned upon the méer right 1 Inst 227. Verdicts ought to be such that the Court may go clearly to Iudgment thereon Uncertain Verdicts and therefore Verdicts finding matter incertainly or ambiguously are insufficient and voyd and no Iudgement shall be given thereupon As if an Executor plead Plene Administravit and Issue is joyned thereon and the Jury finde that the Defendant hath Goods within his hands to be administred but finde not to what value this is an uncertainty and therefore an insufficient Verdict li. 9. 74. 1 Inst 227. It is the Office of the Jurors to shew t e verity of the fact The Office of the Jury and leave the Iudgement of the Law to the Court. And therefore upon an Indictment of murder quod felonice per cussit c. If the Iury finde per cussit tantum yet the Verdict is good for the Iudges of the Court are to resolve upon the special matter whether it was felonice and so murder or not li. 9. 69. And if the Court adjudge it Murder then the Jurors in the conclusion of their Verdict finde the Felon guilty of the murther contained in the Indictment A Verdict that findes part of the Issue Verdict finding part of the Issue and finding nothing for the rest is insufficient for the whole because they have not tryed the whole Issue wherewith they are charged More 406. As if an Information of intrusion be brought against one for intruding into a Messuage and 100 Acres of Land upon the generall Issue the Iury finde against the Defendant for the Land but say nothing for the House this is insufficient for the whole Finding more than the Issue But if the Iury give a Verdict of the whole Issue and of more c. That which is more is surphisage and shall not stay Iudgement for Utile per inutile non vitiatur Leon. 1 part 66. Cro. 1 part 130. But necessary incidents required by Law the Iury may finde Where the Verdict ought to be of more than is in the Issue Yet in many Cases nay almost in all the Iury ought to finde more than is put in Issue otherwise their Verdict is not good and therefore they are to assess Damages and Cost because it is parcel of their Charge as a Consequent upon the Issue though it be not part of the Issue in terminis li. 10. 119. So in Trespass against two one â—â—ines and pleads Not guilty Damages by the first Inquest and â—s found guilty In this case the â—rst Inquest shall assess damages â—n the whole Trespass by both Defendants and afterwards the â—ther comes and pleads Not guilty â—d is found guilty The finâ—ing â—f Damages by the first Inquest to which he was not party shall binde â—im and therefore if the Damaâ—es are outragious and excessive â—he Defendant in the last Enquest â—hall have an Attaint Attaint li. 10.119 So in Trespass Quare clausum â—egit if Issue be joyned upon a Feâ—â—ment and the Jury give outragiâ—â—s Damages An Attaint lies for â—e inquiry of Damages is conseâ—eat and dependant upon the Isâ—ae and parcâ—l of their charge ib. In the 11th Report fo 5. It was â—esolved Damages by the first Inquest that in Trespass against â—wo where one comes and appears c. against whom the Plaintiff declares with a simul Cum c. who pleads and is found guilty and Damages assessed by the Enquest and afâ—erwards the other comes and pleads and is found guilty The Defendant which pleaded last shall be charged with the Damages taxed by the first Inquest for the trespass which the Plaintiff had made joynt by his Writ and Count and done at one time cannot be severed by the Jurors if they finde the trespass to be done by all at one and the same time as the Plaintiff declared Severall damages So in Trespass against divers Defendants if they plead not guilty or severall Pleas and the Jury finde for the Plaintiff in all the Jurors cannot assess several Damages against the Defendants because all is but one Trespass and made ioynt by the Plaintiff by his Writ and Count. And although that one of them was more malicious and de facto did more and greater wrong than the others yet all came to do an unlawful act and were of one party so that the act of one is the act of all of the same party being present But in trespass against two if the Jurors finde one guilty at one time and the other at another time there severall Damages may be taxed But if the Plaintiff bring an Action of Trespass against two and declare upon a several Trespas his Action shall abate And this is the diversity betwéen the finding of the Jury and the confession of the party And in trespass where the Defendants plead several Pleas all tryable by one Jury and they finde generally for the Plaintiff the Jurors cannot sever the Damages if they do their Verdict is vicious But in trespass against two Judgment de melioribus dampnis where one appeares and pleads not guilty to a Declaration against him with a simul Cum c. and afterwards the other appears and pleads not guilty to a Declaration against him also with a simul Cum c. Whereupon two Venire fac issue out and one Issue tryed after the other and severall Damages assessed in judgement of the Law the severall Juries give one Verdict all at one time and the Plaintiff hath his Election to have judgment de melioribus dampnis by any of the Inquests And this shall binde all but fiat nisi unica Executio It is a Maxim that in every case where an Inquest is taken
by the Mise of the parties by the same Inquest shall damages Damages be taxed for all And in Mich. 39 H. 6. fo 1. In an Action of Trespass against many who pleaded in Barr the Terme before and one of them made default Writ of Inquiry which was Recorded There it is Resolved by all the Court that for saving of a Discontinuance a Writ of Enquiry of Damages shall be awarded but none shall issue out because he shall be contributory to the damages taxed by the Inquest at the Mise of the parties if it be bound for the Plaintiff and if it be found against the Plaintiff then the Writ of Enquiry shall issue forth And the Reason wherefore no Writ shall issue out at first to inquire of damages untill c. is because that if a Writ should issue out and be executed this is nothing but an Inquest of Office and not at the Mise of the parties and yet this Inquiry if it might be allowed ought to serve for all the damages For inquiry of damages shall not be twice and the others which have pleaded to Inquest if the Issue be found against them shall be chargeable to those damages which are found by the Inquest of Office and if they be excessive they shall have no remedy although there be no default in them for they cannot have an Attaint because it is but an Inquest of Office But in trespass against two Damages by the first Inquest who plead not guilty c. severally and severall Venire fac awarded The Inquest which first passes shall assess damages for all and the second Inquest ought not to assess damages at all but that Defendant shall be contributory to the damages assessed by the first Jury notwithstanding he is not party to it yet if these damages be excessive he shall have an Attaint because though he is a stranger to the Issue yet in Law he is privy in Charge And so no damage or mischief can accrue to him in this Case Verdict when to be supplyed by Writ of Inquiry c. Now let us sée when something is lest out of the Verdict which the Jury ought to have inquired of whether it may be supplyed by matter expost facto and how And for this know that if damages be left out of a Verdict this omission cannot be supplyed by Writ of Inquiry of damages for this would prevent the Defendant of his Remedy by Attaint which would be very mischievous for then such omission might be on purpose to deprive the Plaintiff of his Attaint li. 10. 119. And the Rule is that when the Court ex officio ought to inquire of any thing upon which no Attaint lies There the omission of this may be supplyed by a Writ of Inquiry of damages as in a Quare impedit if the Jury omit to enquire of these 4. things that is to say de plenitudine ex cujus presentatione si tempus semestre transierit and the value of the Church per annum there the Plaintiff may have a Writ to inquire of these points Dyer 241. 260. because of these no Attaint lies as it is holden in 11 H. 4. 80. because that as to these the Inquest is but of Office But in all cases where any â—oint is omitted whereof an Attaint lyeth there this shall not be supplyed by Writ of Inquiâ—y upon which no Attaint lyeth And tâ—erefore in Deâ—inuâ— if the Jury finde Damages and Cost and no value as they ought this shall not be supplyed by Writ of Inquiry of damages for the Reason aforesaid Ib. Et sic in similibus But how then What Verdict set aside because the damages not well assessed shall the Plaintiff loose the benefit of his Verdict because tâ—e Jury assessed no damages or did insufficiently assess them Cerres in such Cases where damages onely are to be recovered he must loose the whole benefit of his Verdict but where any thing else is to be recovered besides damages as in Debt Ejectment c. he may release his Damages and have Iudgement upon his Verdict as to the rest And so where damages are to be recovered if part of them are assessed insufficiently and part well he may have Iudgement for those damages well assessed And oftentimes the iâ—sufficiency of the Declaration shall set aside the Verdict Verdict set aside in part as if an Action upon the Case be brought upon two promises and one of them be insufficiently laid and the Verdict give intire Damages this is naught for the whole But if the Damages had béen severally assessed upon the severall premises then the Verdict as to the promise well laid should have stood In the 11th Report fo 56. Marsh brought a Writ of Annuity against Bentham and the parties discended to issue which was tryed for the Plaintiff and the Arrerages found c. But the Iurors did not assess any damages or Cost which Verdict was insufficient and could not be supplyed by Writ of Inquiry of damages wherefore the Plaintiff released his damages and costs Release of damages where none were assessed and upon this had Iudgement upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict sed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Dyer 22 Eliz. 369. 370. Release of dâ—mages where they were not well assessed In a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lay not for the Heir yet the Plaintiff released his damages and had Iudgement for the Land And Note that insufficient assesment of damages and no assessing is all one Damages and Costs The Iury ought to assess no more damages pro injuria illata then the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and generall signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna intoto se attingunt cum c. More damages than the Plaintiff declares for But if the Iury do assess more damages than the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgement for the residue as in the 1â—th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryall of the Iury assessed damages occasione transgressionis predict ad 49 l. and for costs of suit 20 s. upon which Verdict the Plaintiff at the day in Bank remitted 9 l. parcel of the said 49 l. assessed for damages and prayed Iudgement for 4â— l. to which damage he had counted with increase of Costs of suit Damages remitted and had 9 l. de Incremento added by the Court which in all amounted to â—0 l. and had his Iudgement acâ—ordingly upon which a Writ
and because it was delivered on his part for whom the Verdict passed without the Courts assent yet one Book scil Cro. last part 411. tells us Iudgement was afterwards given for the Plaintiff sée Mores Reports 452. The Books differ Consider the Reasons in the former cases for Cro. makes Clinch give his opinion for the Verdict But More brings him on the other side which I conceive is truest and for my part I know no reason why foisting of Evidence to the Iury out of Court should have any favour at all Hill 40 Eliz. Rot. 847. In arrest of Iudgment after Verdict Escrowle from one who was no party it was alledged that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Eviâ—ence at the Tryall and adjudgeâ— no cause to arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. In a Writ of Error the first Error assigneâ— was that Termino Trin. twelve Iurors and no more did appear Jury adjourned This ex assensu partium was adjourned untill Crastino Animar on which day two others came in and were sworn being of the first Pannel The Court all clear of opinion that this is no error this being good enough they being all to be called again Leon. 3. part 38. If a Iuror depart Juror depart after he is sworn he shall be fined and imprisoned and by assent of parties another Iuror may be sworn Bro. Jurors 46. lib. 5. 40. If a man be non-suited after the Jury is ready to give their Verdict the Court may cause the Amercement of the Plaintiff to be presently offered by the Iurors li. 8. 39. CAP. XV. What punishment the Law hath provided for Jurors offending as taking reward to give their Verdict Of Embracâ—ors Dâ—cies tantum Attaint several fines on Jurors What Issues they forfeit and of Judgement for striking a Juror in Westminster YOu have already heard how the Court may fine the Iurors for their misdemeanors in giving up their Verdict I will procéed in shewing what punishments they are lyable unto if they neglect their duty and doubtless no men have more néed of knowing what penalties the Law inflicts on their offences then common Iurors who too often being preingaged with favour to the Plaintiff or malice against the Detendant Et sic e converso or with common Interest as they call it where Tythes or Commons are in question will neither hearken to their Evidence nor â—â—rection of the Iudge But subvert the whole drift of the Common Law which will have them of the Neighbour-hood where the fact was committed to the end that they knowing most of the fact may consequently give the best Verdict yet contrarywise Iurors which live nearest do now a dayes most commonly so fetter themselves with favour or animosities to the parties that those which live furtheâ— off as Iuries from other Counties for the most part gide the cleanest Verdicts And how should the Iudges remedy this mischief but by severely punishing those Iuries which offend the Law in this will be their Guide for without doubt excepting life and member tâ—e Law hath provided more severe punishments against Iuries then against any other offendor whatsoever as well knowing that corruptio optimi est pessima And common Iurors generally have nothing to do with this verse Oderunt peccare boni virtutis amore Therefore 't is fit they should be concerned in the next Oderunt peccare mali formidine poenae wherefore the description of what this poena is shall be the conclusion of this Treatise If any Iuror take a reward to give his Verdict The penalty of Jurors taking rewards and be thereof attainted at the suit of other than the party and maketh fine he which sueth shall have half the fine and if any of the parties to the Plea bring his Action against such Juror he shall recover his damages And the Juror so attainted shall have imprisonment for one year which imprisonment shall not be pardoned for any fine this is by the Statute of 34 E. 3. cap. 8. 5 E. 3. ca. 10. It is accorded Shall not serve of any other Inquest That if any Juror in Assises Juries or Enquests take of the one party or of the other and be thereof duly attainted That hereafter he shall not be put in any Assises Iuries or Enquests and nevertheless he shall be commanded to prison Imprisoned and ransomed that is fined and further ransomed at the Kings will And the Iustices before whom such Assises Iuries and Enquests shall passe shall have power to enquire and determine according to this Statute A man would think that these Statutes should have frighted any Iuror from taking Rewards to give his Verdict But Quid non mortalia pectora cogis Auri sacra fames So sacred is this love of money that Conscience her self must vail to it and not stand in competition with such allurements wherefore the Law did redouble its force nay more produced a Decies tantum scil That a Iuror taking reward to give his Verdict shall pay ten times so much as he hath taken which forfeiture my thinks should make even those who love money best refuse to take mony upon such an account because it is like a Canker in their Estates depriving them in the end of ten times more then it brought for which hear the Statute 38 E. 3. cap. 12. Deâ—ies tantum Item As to the Article of Iurors in the 24th year it is assented and joyned to the same that if any Iurors in Assises sworn and other Enquests to be taken betwéen the King and party or party and party do any thing take by them or other of the party Plaintiff or Defendant to give their Verdict and thereof be attainted by process contained in the same Article be it at the suit of the party that will sue for himself or for the King Embraceor or any other person every of the said Iurors shall pay ten times as much as he hath taken And he that will sue shall have the one half and the King the other half And that all Embraceors that bring or procure such Enquests in the Country to take gain or profit shall be punished in the same manner and form as the Iurors And if the Iuror or Embraceor so attainted have not whereof to make grée in the manner aforesaid he shall have the imprisonment of one year And the intent of the King of Great men and of the Commons is That no Iustice or other Minister shall enquire of office upon any of the points of this Article but onely at the Suit of the party or of other as afore is said Vpon which Statute there is a Writ called a Decies tantum and who will may bring it for it is a popular Action and lies as you sée where any of the Iurors after he is sworn taketh of one party or of the
of the number 12. Cap. 7. fo 68. Who may be Jurors who not who exempted and of their Quality and Sufficiency Cap. 8. fo 75. Concerning the Visne from what place the Jury shall come c. Cap. 9. fo 99. The Law concerning Challenges very necessary to be known of all men Cap. 10. fo 131. Of what things a Jury may inquire when of espirituall when of things done in another County or in another Kingdom when of Estoppell and where not when of a mans intent c. Cap. 11. fo 137. Concerning Evidence to be given to a Jury What Evidence will maintain the Issue and what not Of Witnesses c. Cap. 12. fo 154. The Juries Oath Why called Recognitors in an Assise and Jurors in a Jury Of the Tryall per medietatem linguae when to be prayed and when grantable Of a Tryall betwixt two Aâ—iens by all English Of the Ven. fac per medietatem linguae and of Challenges to such Juries Cap. 13. fo 164. The Learning of general Verdicts special Verdicts and Verdicts in open Court and where the Inquest shall be taken by default c. Cap. 14. fo 210. How the Jury ought to demean themselves whilest they consider of their Verdict when they may eat and drink when not What misdemeanor of theirs will make the Verdict voyd Evidence given them when they are gone from the Barr spoyls their Verdict For what the Court may fine them and where the Justice may carry them in Carts till they agree of their Verdict An amendment affected by the Jury Cap. 15. fo 224. What punishment the Law hath provided for Jurors offending as taking reward to give their Verdict Of Embraceors Decies tantum Attaint Several fines on Jurors What Issues they forfeit and of Judgment for striking a Juror in Westminster Tryalls per pais CAP. I. The Derivation of the Word Jury The Definition Antiquity and Excellency of Juries by way of Preface JUrie Jurata cometh of the French word Jurer i. e. Jurare Vid. Cap. 1â— Jurie And metonymically signifieth in Law those 12 men who are sworn Judges in matters of fact evidenced and debated by Witnesses before them I call them Judges because as the Pleadings of Serjeants and Counsellors at Law do serve only Ad illustrandum 't is the property of the Court Jus dicere So the testimony of Witnesses only illuminateth the Question 'T is in the power of the Jury to determine the fact upon an Evidence Pro and Coâ— According to those common Adages Ad questionem Juris respondent Judices Ad questionem facti respondent Juratores Though as the Judgment of the Court ought to be guided by the Law So is the Verdict of the Jury by the Evidence The Antiquity and excellency of Juries I will but only dip my pen into that fathomlâ—ss depth of prayses which belong to tâ—e right use of Juries Those silver drops which flow from their Eulogies would soon drown and so make barren the most fruitful Author even with redundancy of matter Such showres must fall into the Ocean they cannot be received in such small rivulets as I have contracted my self to Their Antiquity proclaims them venerable For as (1) Com. upon Littleton fol. 155. vid. l b. 3. 8. Preface Cook desires you hear what the Law was before the Conquest In singulis Centuriis Comitia sunto atque liberae conditionis vici cuodeni aetate superiores una cum praeposito sacra tenentes juranto c. Lamb. verb. Centuria And Cambden in his Britannia page 153. Correcteth Polidor Virgil saying Whereas Palidor Virgil writeth that William the Conqueror first brought in the Tryall by 12. men there is nothing more untrue For it is most certain and apparant by the Lawes of Etheldred that it was in use many years before c. Their generall use being the only tryers of Choses in fait The use of â—ries almost in all Courts throughout England speak them a publique good And what answer shall I make to the Princes vehementer Admiror (3) Fortescue cap. 28. Videlicet Wherefore are not Juries used in other Countries if they are so good But that of Fortescue the 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 of Florishes 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 knowes best how to express her self in her own termes wherefore all other Sciences must learn with reverence to kéep their distance And as the Golden Finch (4) Finch ca. 3. sings be glad to have their sparks raked up in her Ashes â—nd since an Issue is praevious and the matter of a tryall I shall first give you the description thereof and then touch upon the several Tryalls 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 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 (5) 1. Com. fo 126. Omnia unum aliquem sortiuntur exitum vel per patriam vel per Judices terminandum Finch Epistle is a single certain and materiall point issuing out of the Allegations and Pleas of the Plaintiff and Defendant consisting regularly upon an Affirmative and Negative to be tryed by 12 men and it is twofold Scil. either speciall as where the special matter is pleaded or generall as in Trespass not guilty in Assise nul tort nul disseisin c. And as an Issue naturall cometh of two several persons so an Issue legall issueth out of two several Allegations of adverse parties And to give you likewise his Definition of Tryall Tryall It is to finde out by due examination the truth of the point in Issue or question betwéen the parties whereupon Iudgment may be given And as the question betwéen the parties is twofold so is the Tryall thereof For either it is questio Juris and that shall be tryed by the Judges either upon a demurrer special Verdict or Exception 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. For Cuilibet in sua arte perito est Credendum et quod quisque noverit in hoc se exerceat Or it is quaestio facti And the tryall of the fact is in divers sorts First chiefly and most commonly by a Jury of 12 men of which kind of Tryall my
Distress of either party this is a principal Challenge But if either party be within the distress of the Juror this no principal Challenge but to the favour If a Witnes Witness named in the Déed be returned of the Jury it is a good cause of Challenge of him So it is if one within age of one and twenty be returned Infant it is a good cause of Challenge Challenges arising from the Jurors own Act. Vpon his own Act as if the Juror hath given a Verdict before for the same cause albeit it be reversed by Writ of Error or if after Verdict Iudgment were arrested So if he hath given a former Verdict upon the same Title or matter though betwéen other persons But it is to be observed that I may speak once for all that in this or other like Cases Former Verdict he that taketh the Challenge must shew the Record if he will have it take place as a principal Challenge otherwise he must conclude to the favour unless it be a Record of the same Court and then he must shew the day and terme So likewise one may be challenged Indictment that he was Inditor of the Plaintiff or Defendant either of Treason Felony Misprision Trespass or the like in the same cause If the Juror be Godfather Godfather to the Child of the Plaintiff or Defendant or e converso this is allowed to be a good Challenge in our Books If a Juror hath béen an Arbitrator Arbitrators chosen by the Plaintiff or Defendant in the same cause and have béen informed of or treated of the matter this is a principal Challenge Otherwise if he were never informed nor treated thereof and otherwise if he were indifferently chosen by either of the parties though he treated thereof But a Commissioner chosen by one of the parties for examination of Witnesses in the same cause is no principal cause of challenge Commissioner for he is made by the King under the great Seal and not by the party as the Arbitrator is but he may upon cause be challenged for favour If he be of counsel Counsel Servant or of Robes or Fée or of either party it is a principal Challenge If any after he be returned Eat or drink at the parties charge do eat and drink at the charge of either party it is a principal cause of Challenge otherwise it is of a Trior after he be sworn Action brought either by the Juror against either of the parti s Actions of malice or by either of the parties against him which may imply malice or displeasure are causes of principal Challenge unless they be brought by Covyn either before or after the return for if Covyn be found then it is no cause of Challenge other Actions which do not imply malice or displeasure are but to the favour as an Action of debt c. More 3. Parson and Parishes In a cause where the Parson of a Parish is party and the right of the Church cometh in debate a Parishioner is a principal Challenge Otherwise it is in debt or any other Actâ—on where the right of the Church cometh not in question If eitâ—er party labour the Juror and give him any thing to give his Verdict To labour the Jury tâ—is is a principal Challenge But if either party labour the Juror to appear and to do his Conscience this is no Challenge at all but lawful for him to do it That the Juror is a Fellow-Servant Fellow Servant with either party is no principall Challenge but to the favour Neither of the parties can take that Challenge to the Polls To the Polls which he might have had to the Array Note if the Defendant may have a principal cause of Challenge to the Array if the Sheriff return the Jury Venire facias to the Corâ—ners the Plâ—intiff in that case may for his own expedition alledge the same and pray Process to the Coroners which he cannot have unless the Defendant will confess it but if the Defendant will not confess it then the Plaintiff shall have a Venire facias to the Sheriff and the Defendant shall never take any Challenge for that cause and so in like cases But on the part of the Defendant any such matter shall not be alledged and Process prayed to the Coroners because he may challenge the Jury for that cause and can be at no prejudice Challenge concluding to the favour Challenges to the favour when either party cannot take any principal Challenge but sheweth causes of favour which must be left to the conscience and discretion of the Triors upon hearing their evidence to finde him favourable or not favourable But yet some of them come néerer to a principal Challenge then other As if the Juror be of kindred or under the distress of him in the reversion or remainder or in whose right the Avowrie or Iustification is made or the like These be in principall Challenges because he in Reversion remainder or in whose right the Avowry or Iustification is is not party to the Record otherwise it is if they were made parties by aid Râ—script or Voucher and yet the cause of favour is apparent so it is of all principal causes if they were party to the Record Now the causes of favour are infinite and thereof somewhat may be gathered of that which hath béen said Favour and the rest I purposely leave the Reader to the reading of our Books concerning that matter For all which the rule of Law is that he must stand indifferent as he stands â—â—sworn The Subject may challenge the Polles where the King King is party And if a man be out-lawed of Treason or Felony at the Suit of the King and the party for avoyding thereof alledgeth imprisonment or the like â—t the time of the Outlawry though the Issue be ioyned upon a collateral point yet shall the party have such Challenges as if he had béen arraigned upon the crime it self for this by a meane concerneth his life also Propter delictum As if the Juror be attainted or convicted of Treason or Felony Challenges propter delictun or for any offence to life or member or in attaint for a false Verdict or for perjury as a Witness or in a conspiracy at the Suit of the King or in any Suit either for the King or for any subject be adjudged to the Pillory Tumbrel or the like or to be branded or to be stigmatique or to hâ—ve any other corporal punishment whereby he becommeth infamous Infamous for it is a maxime in Law Repellitur a sacramento infamis these and the like are principal causes of challenge So it is if a man be outlawed Outlawed in trespass debt or any other action for he is Exlex and therefore is not legalis homo And old Books have said that if he be excommunicated he could not be of a Iury. Sée
mis-return by the Statutes of 18 Eliz. Cro. 3. part 818. 841. So that Brooks sayes it is not proper to call it a Tryall per medietatem linguae because any Aliens of any tongue may serve But under his favour I think it proper enough For people are distinguished by their Language and Medietas Linguae is as much as to say half English and half of another tongue or Country whatsoever though it be not materiall of what sufficiency the Jurors are yet the form of the Venire facias shall not be altered but the Clause of Quoâ—um quilibet habeat 4 l. c. shall be in Cro. 3. part 481. But suppose that both parties be Aliens of whom shall the Inquest be then It is resolved that the Inquest shall he all English for though the English may be supposed to favour themselves more than strangers yet when both parties â—â—e Aliens it will be presumed they favour both alike and so indifferent 21 H. 6. 4. Where an Alien is party All English yet if â—he Tryall be by all Englisâ— it is â—â—terroneous because it is at his â—â—ill if he will slip his time and â—â—t make use of the advantage â—hich the Law giveth him when he â—hould Dyer 28. The Alien ought to pray a Venire â—â—cias per medietatem linguae When that Alien should pray a Venire facias per meditatem at the â—â—me of the awarding the Venire faâ—â—â— But if he doth it at any time â—fore a generall Venire facias be reâ—â—ned and filed the Court may â—â—â—t him a Venire facias de novo Dyer 144. 21 H. 7. 32. though it â—â—th béen questioned But if he hath a generall Venire â—â—as he cannot pray a Decem tales Tales 〈◊〉 per medietatem linguae upon â—â—s because the Tales ought to â—â—rsue the Venire facias 3 E. 4.11 2. And so if the Venire facias be 〈◊〉 medietatem linguae the Tales ought to be per medietatem linguae Tales as if 6. Denizens and 5. Aliens appear of the principal Iury the Plaintiff may have a Tales per medietatem linguae li. 10. 104. But if in this case the Tales be generall de circumstantibus it hath béen held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded Cro. 3. part 818. 841. If the Plaintiff or Defendant be Executor or Administrator c. though he be an Alien yet the Tryal shall be by English because he sueth in aut droit Where the tryall of an Aliens cause shall he by English but if it be averred that the Testator or intestate was an Alien then it shall be per medietat linguae Cro. 3. part 275. Mich. 40. 41 Eliz. The Quéens Attorney exhibited an Information against Barre Part English and part Aliens and divers other Marchants some whereof were English and some Aliens After Issue the Aliens prayed a Tryal per medietat linguae But all the Iustices of England resolved that the Tryall should be by all English and likened it to the case of priviledge where one of the Defendants deâ—ands priviledge and the Court us to his Companion cannot hold Plea there he shall be ousted of his â—riviledge sic hic More 557. By the Statute of 8 H. 6. cap. 29.19 Challenge Insufficiency or want of Fxéeâ—â—ld is no cause of Challenge to Aliens who are impanneled with the Aliens notwithstanding Stamfords Opinion Pl. Coron 160 for this Statute saith that the Stat. 2. H. 5. 3. shall extend onely to Enprests betwixt Denizen and Deâ—izen If the Defendant do not inform the Court that he is an Alien When the Alien should pray a Venire facias per medietatem upon â—â—arding of the Venire facias and â—o pray a Venire facias per medietaâ—â—â— linguae he cannot challenge the Array for this cause at the Tryall â—f the Iury be all Denizens notâ—ithstanding Stamfords Opinion to â—he contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. CAP. XIII The Learning of Generall Verdicts Speciall Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default VErdict Verdict or Verdict In Latine Vere dictum quafi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12. men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgement of the Court is built for ex facto jus oritur the Law ariseth from the fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as not to believe the matter of fact untill it is sworn by 12. sufficient men of the Neighbourhood where the fact was â—â—ne whom the Law supposeth to â—â—ve most cognisance of the truth or falsehood thereof which being sworn for the words are Juratoâ—es predict dicunt super sacrum suum The Credit of Verdicts c. is the Verdict whereof we now â—eat And such credit doth the â—aw give to Verdicts that no proof â—ll be admitted to impeach the veâ—ty thereof so long as the Verdict â—tands not reversed by Attaine and â—herefore upon an Attaint no Superâ—deas is grantable by Law Plo. Com. 496. And it is worth our observation â—â—t the Law séems to take more â—â—â—e of the fact then of her self for the Major part of the Iudges give â—he Iudgement of the Law though â—he other Iudges dissent But â—very one of the 12. Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assize pl. 27. Generall or speciall And this Veâ—dict is of two kinds viz. one generall and the other speciall or at large The generall Verdict Generall Verdict is positively either in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury fined Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do finde Quod predict B. in juste fine judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a generall Verdict 1 Inst 228. A Special Verdict Speciall Verdict or Verdict at large is so called because it findeth the special matter at large and leaveth the Iudgement of the Law thereupon to the Court 1 Instit 226. of which kinde of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special
taken by default What the Defendant looses by his default the Defendant shall loose his Challenges and by 28 Ass p. 42. tit Enquest in Fitz. he shall loose his Evidences also Bro. Enquest 10. Der. the Defendant pleaded a Release and the Plaintiff replyed non est factum and at the day of the Venire facias the Defendant made default and the Inquest was taken upon his default and found for the Defendant When the Defendant may be condemned by dâ—fault and when an Enquest must be taken upon the default for which the Plaintiff took nothing by his Bill And yet if the Plaintiff had prayed it he might have had the Defendant condemned by his default before the taking of the Verdict Et sic vide folly in le Plaintiff Bro. Ib. 5. But upon sucâ— Release and default in Trespass the Enquest shall be taken by default and the Defendant shall not be condemned by default though the Plaintiff pray it and the reason is because the debt is certain and the damaâ—es are incertain in Trespas Bro. Ib. 3. And Finch fo 4â—9 hath well collected out of Brooke that alwayes in an Action of Trespass whatsoever the Issue be Release Iustification c. and also in Debt Detinue Accompt and the rest which are for things in certainty if the Issue be taken upon a matter in fait onely as payment or that an Acquittance pleaded in Barr by the Defendant was made by Dures c. The Inquesâ— shall be taken by default if the Defendant makes default But in the last recited actiâ—â—â— of debt c. If the Issue be upon the acquittance it self Release or other matter â—â—-writing the Plaintiff may pray Iudgment upon the Defendants default if he â—ill but if he do not pray it the Jury shall be taken by default as in 〈◊〉 action of Trespass The Jury may give a Verdict â—ithout testimony Verdict without or against testimony or against testimony when they themselves have Conuzans of the fact Plo. Com. 16. CAP. XIV How the Jury ought to demean themselves whilest they consider of their Verdict when they may eat and drink when not What misdemeanor of thâ—irs will make the Verdict voyd Evidence given them wâ—en they are gone from the Barr spoyls their Verdict For what the Court may fine them and where the Justices may carry them in Carts till they agree of their Verdict An Amendment offered by the Jury Jurors ought not to eat or drink THere is a Maxime and an old Custom in the Law that the Ju y shall not eat nor drink after they be sworn till they have given their Verdict without the assent and Licence of the Justices and that is ordained by the Law for eschewing of divers inconveniencies that might follow thereupon and that especially if they should eat or drink at the Costs of the parties and therefore if they do so it may be laid in arrest of Iudgment But with the assent of the Iustices they may both eat and drink as if any of the Jurors fall sick before they be agréed of their Verdict so soon that he may not commune of the Verdict then by the assent of the Iustices he may have meat or drink and also such other things as be necessary for him and his fellowes also at their own costs For by assent of the parties they may eat and drink Br. Jurors 2. or at the indifferent Costs of the parties if they so agrée or by the assent of the Justices may both eat or drink and if tâ—e Case so happen that the Jury can in no wise agrée in their Verdict as if one of the Jurors knoweth in his own Conscience the thing to be false which the other Jurors affirm to be true and so he will not agrée with them in giving a false Verdict and this appeareth to the Iustices by Examination the Iustices may in such case suffer the Iury to have both meat and drink for a time to fée whether they will agrée And if they will in no wise agrée the Iustices may take such order in the matter as shall séem to the may their discretion to stand with reason and conscience by awarding of a new Inquest New Inquest when the Jury cannot agree and by setting fine upon them that they shall finde in default or otherwise as they shall think best by their discretion like as they may do if one of the Iury die before the Verdict c. D. and Student 158. Wâ—ere if the Jury eat or drink it shall avoid the Verdict and where onely fiâ—eable If the Iury after their Evidence given unto them at the Barre do it their own Charges eat or drink either before or after they be agréed on their Verdict it is â—nable but it shall not avoid the Verdict But if before they be agréed on their Verdict they eat or drink at the charge of the Plaintiff if the Verdict be given for him it shall avoyd the Verdict But if it be given for the Defendant it shall not avoid it Et sic è converse But if after they be agréed on their Verdict they eat or drink at the charge of him for whom they do passe it shall not avoyd the Verdict 1 Inst 228. To give the Iury money makes their Verdict voyd by two Iustices Leon. 1 part 18. If the Plaintiff after Evidence given What delivered to the Jury after Evidence shall avoid their Verdict and the Jury departed from the Barr or any for him do deliver any Letter from the Plaintiff to any of the Jury concerning the matter in Issue or any Evidence or any escrowle touching the matter in Issue which was not given in Evidence it shall avoid the Verdict if it be found for the Plaintiff but not if it be found for the Defendant Ec sic è converso But if the Jury carry away any Writing unsealed which was given in Evidence in open Court this shall not avoid their Verdict albeit they should not have carried it with them lb. How the Jury ought to be kept by the Bayliff By the Law of England a Jury after their Evidence given upon the Issue ought to be kept together in some convenient place without meat or drink fire or Candle which some Books call an imprisonment and without spéech with any When they may eat and drink See Smith's Common-wealth 74. unless it be the Bayliff and with him onely if they be agréed After they be agréed they may in causes betwéen party and party give a Verdict and if the Court be risen give a privy Verdict before any of the Judges of the Court and then they may eat and drink and the next morning in open Court they may either affirm Whâ—re there can be no privy Verdict or alter their privy Verdict and that which is given in Court shall staâ—d But in criminall cases of life or member the Jury can give no privy Verdict but they must give it
openly in Court Ib. Where the Jury cannot be dischaâ—ged befâ—re Verdict Neither can a Jury sworn and charged in case of life or member be discharged by the Court or any other but they ought to give a Verdict And the King cannot be non-suit The King cannot be nonsuit for he is in Iudgment of Law ther present in Court but a common person may be nonsuit And in civill actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. In Hillary Terme Sexto H. 8. Rotulo 358. It was alledged in arrest of the Verdict at the Nisi prius that the Jurors had eat and drunk And upon Examination it was found that they had first agréed and that returning to give their Verdict they saw Rede Chief Iustice in the way going to sée a fray and they followed him Et in veniendo viderunt cyplum inde biberunt And for this every one of them was fined 40 d. Juâ—ors fined And the Plaintiff had Iudgment upon the Verdict Dyer 37. And Dyer 218. At the Nisi prius the Iury after their charge given returned and said that they were all agréed except one who had eâ—t a Pear and drunk a draught of Ale for which he would not agrée Jurors at the Nisi prius fined in bank for eating peares and drinking Ale And at the Request of the Plaintiff the Iury was sent back again and found the Issue for the Plaintiff And the matter aforesaid being examined by the Oath of the Iurors Seperatim and the Bayliff who kept them and found true the offender was committed and afterwards found Surety for his Fine Si c. And Fitzherbert the then Iustice of Assise gave him day in banco c. at which day a Fine of 20 s. was there assessed Et quoad Ball Curia avisare vult In trespass by Mounson against West the Iury was charged and Evidence given and the Iurors being retired into a House for to consider of their Evidence Fined for having Figgs and Pippins about them they remained there a long time without concluding any thing and the Officers of the Court who attended them séeing their delay searched the Iurors if they had any thing about them to eat upon which search it was found that some of them had Figgs and others Pippins for which the next day the matter was moved to the Court and the Iurors were examined upon Oath And two of them did confess that they had eaten Figgs before they had agréed of their Verdict and thrée other of them confessed that they had Pippins but did not eat of them and that they did it without the knowledge or will of any of the parties And afterwards the Court set a fine of 5 l. upon each of them which had eaten and upon the others which had not eaten 40 s. But upon great advice and consideration had and conference with the rest of the Iudges the Verdict was held to be good Notwithstanding the said misdemeanor Leon. 1. part 133 And sée the Book of Entries 251. Fined for eating Raisins and Dates The Iurors after they went from the Barr ad seipsos of their Verdict to advise Comederunt quasdam species scil Raisins Dates c. at their own Costs an well before as after they were agréed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King Finable for having sweet-meats c. about them though they do not eat them See Plo. Com. 519. One fined and imprisoned for having Sugar-Candy and Liquorish about him In Ejectione firme it was found for the Defendant thrée 〈◊〉 the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff untill th y were searched and the Sweet-meats found anâ— then did agrée with the other nine and gave Verdiâ—t for the Defendant It was the Opinion of the Iustices that whether they eat or not they were finable for having of the Sweet-meats with them for that is a very great misdemcanor Godbolt 353. Jurors careed 40 Assise Placito 11. The Iustices said that if the Iurors will not agrée in their Verdict the Iustices may carry them in a Cart along with them till they are agréed The Iury were gone from the Sarr to confer of their Verdict â—nd one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gone from the Barr spoils the Verdict was called by the Iurors and he recited again his Evidence to them and after they gave their Verdict for the Defendant And complaint being made to the Iudge of the Assises of this misdemeanor he examined the Enquest who confessed all the matter and that the Evidence was the same in effect that was given before Et non alia nec diversa And this matter being returned by the Postea the Opinion of the Court was that the Verdict was not good and a Venire facias de novo was awarded Cro. last part 189. The Plaintiff delivered an escrowl to a Iuror impanelled Escrowle delivered to a Juror before he was sworn Vitiates the Verdict before he was sworn who afterwards being sworn and gone with the Iury from the Barr to consider of the Verdict shewed the same Escrowle to his Companions who found for the Plaintiff The Minister who kept the Enquest informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgement was stayed for after the Iury are sworn they ought not to sée nor carry with them any other Evidence but what was delivered to them by the Court Afterwards the Plaintiff said that the Escrowl proved the same Evidence which was given to them at Barr by him wherefore it was not so bad as if it had béen new Evidence not given before Sed non allocatur 11 H. 4. 17. Church-Book delivered to the Jury act of Court Pasche 38 Eliz. Inter Vicary at Farthing at the Nisi prius The Issue was about Non-age and two Church-Books were given in Evidence one whereof was delivered to the Iury in Court by the assent of parties and afterwards the other was delivered to the Iury out of the Court by the Solicitor of the Plaintiff without the assent of the Court and a Verdict for the Plaintiff and this was indorsed on the Postea The Question was whether this should make the Verdict 〈◊〉 or no for the Iustices differed 〈◊〉 opinion Popham and Gawdy that â—t should not Fenner and Cleach â—â—t it should the Negative Iuâ—â—â—â—es gave these Reasons That â—â—e Book was delivered in Evidence in the Court and so the other pâ—rty might answer to it and that the Court had informed the Iury of the validity thereof how farr they were to believe it with many other Reasons But the Affirmative was urged because there might be some matter in this Book to induce them otherwise than was intended before