Action brought or varies from the Roll yet it is aided by the Statutes of Jeofailes Cro. 1. part 38. 90 91. 203 204. Miscontinuance or discontinuance or misconveying of Process is ayded by 32 H. 8. 30. The want of any Writ Originall or Judiciall Jeofailes defaults in their form and insufficient Returns thereupon are ayded by 18 Eliz. 14. Cro. 3. part 259. But you must have a care the Venire facias be not faulty in any other matters of Substance for if the parties names be mistaken Parties names mistaken in a Venire facias or the Issue as if the Issue be ne unques Executor and the Venire facias be in placito debiti c. this is a Mistryall Mistryall Cro. 2. part 528. So it is if the Venire facias be in placito transgressionis where the Action is in placito transgressionis ejectionis firme This in sawarding of Process is not ayded by any of the Statutes and better it was that there had béen no Venire facias at all in such a Case No Venire facias holpen for then the Statutes would have holpen it Cro. 3. part 622. In some Cases a Venire facias shall be awarded to make an Enquest betwixt a stranger to the Writ and Issue and the party Venire facias between a party and a stranger I will instance but in one and that is upon the Statute of Westm 2. cap. 6. If a Tenant being impleaded vouch to warranty and the Vouchée denieth the Déed or other cause of the Warranty c. That the Demandant may not hereby be delayed he may sue out a Venire facias to try the Issue betwéen the Tenant and Vouchée Inquest at whose request Inquests in Pleas of Land shall be as well taken at the Request of the Tenant as of the Demandant 2 E. 3. cap. 16. If the Plaintiff or Demandant defisteth in prosecuting his Action Venire facias by Proviso and bringeth it not to Tryall then the Defendant or Tenant may sue forth a Veni facias with a Proviso which is to no other end but that the Sheriff should summon but one Iury if the Plaintiff also should have brought him another Writ to the same purpose And although as my Lord Dyer saith fol. 215. the granting of this Venire facias c. with a Proviso depends much upon the discretion of the Court yet for the greater part it is not grantable for the Defendant unless when he is actor as well as the Plaintiff or unless there be a default and Laches in the Plaintiff therefore there can be no Tryall by Proviso against the King unless with the Attorney Generall 's consent because no dedefault or Laches can be imputed to the King But an avowant in Replevin Proof presently after Issue joyned may have a Venire facias with a Proviso immediately after Issue joyned because he is actor and in nature of the Plaintiff But note the Nota in Stamford's Pleas del Coron fol. 155. How the Plaintiff may stop the Defendants Proviso That if by negligence of the Plaintiff the Defendant sues a Venire Facias with a Proviso yet the Plaintiff may at his pleasure stay the Defendant that he shall not procéed in his Process in praying a Tales upon the Defendants Proces as it appeares T. 15 H. 7. fol. 9. And the Defendant shall nevet be received to persue this Process with a Proviso so long as the Plaintiff persues or is ready to persue as appears Mich. 14 H. 7. fol. 7. And séeing the Tales men Tales men offer themselves to us we will tell them upon what accompt t ey come before they thrust themselves into the Inquest commonly for the love of eight pence but it may be to do some of their Neighbours a shrewd turn CAP. V. Why the Venire facias runs to have the Jury appear at Westminster though the Tryall be in the Country Of the Writ of Nisi prius when first given when granâ—able when not and in what Writs Of the Tales at Common Law and by Statute When the Transscript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is non-suited he may have a Distringas de novo BVt to observe the Method of the Writ the next words are Coram Justiciariis nostris de Banco apud Westminst tali die And here first of all you may ask me to what purpose the Sheriff is commanded to cause the Iury to come to Westminster when they are to try the Cause in the Country and in truth are not to come to Westminster I must confess the resolution of this question is not unnecessary wherefore we must know that originally before the Writ of Nisi prius was given the purpose for which the 12. Why the Venire facias is to have the Jury appear at Westminster men were to be summoned upon the Writ of Venire facias to come to Westminster was that contained in the Writ videl Ad faciend quandam Juratam for then was the Tryall â—ntended to be there if a full Iury appeared if not then a Hab. Corpora with a Tales sometimes annexed to it the form whereof you may sée in the Register and if they did not appear at the Return in the Hab. Corpora then went out the Distringas Hab. Corpus This I speak of the Common Pleas Distringas But the course of the Kings Bench and Exchequer is after the Venire facias to have a Distringas leaving out the Hab. Corpora Tryals then were all at the Barr. I speak not of Assizes But now because Iurors did not use to appear upon the Venire facias it being without penalty Tryals at the Barr Tryals at Bar. are appointed upon the Hab. Corpora and Distringas because the Iury will more certainly appear at the day in the Distringas through fear of forfeiting Issues which the Sheriff returns on the Distringas not on the Venire facias By the Statute of 18 Eliz. cap. 5. No Iury shall be compelled to appear at Westminster for the Tryal of an offence upon any penall Law committed above 30. Where a Jury is noâ— compellable to appear at Westminster miles from Westminster except the Attorny Generall can shew reasonable cause for a Tryal at Barr. Thus it was at Common Law before the giving of the Writ of Nisi prius when all Iurors together with the parties came uâ— to the Kings higher Courts of Iustice where the Cause depended which when Suits multiplyed was to the intolerable burthen of the Country 27 E. 1. cap. 4. wherefore by the Statute of Westminst 2 cap. 30. A Writ of Nisi prius Nisi prius when first given and wherefore wâ—s first given And that in the Venire facias as we may sée in the form of the Writ there mentioned Scil. Praecipimus tibi quod Venire facias coram Justiciariis nostris apud Westmon in octabis Sancti
Michaelis nisi talis talis tali die loco ad partes illas veneâ—int 12. c. By which Writ it appears that the Venire facias was not returnable till after the day of the Nisi prius Nâ—si prius in the Venire facias But the mischief thereof was so great partly in respect that the parties not knowing the Iurors names could not tell how to make their Challenges and so were surprized and partly in respect of the Iury who were greatly delayed by the Essoyns of the parties that by the Statute of 42 E. 3. cap. 11. It is Ordained That no Enquest but Assizes and deliverances of Goals be taken by Writ of Nisi prius nor in other manner at the Suit of the great or small before that the names of all them that shall passe in the Inquests be reâ—uâ—ned in the Court. The names of the Juroâ—s must be returned into the Court before any Tryall and why And their names must be returned upon a Pannel annexed to the Venire facias so that either party may have a Copy of the Iury that he may know whom to challenge And the Iury not coming upon the Venire facias make a feigned default which warrants the Distringas c. unless they appear at the day of the Nisiprius So that by what hath béen said you may perceive to what purpose It is in the Courts discretion whether to grant a Nisi prius or not the Sheriff is commanded to cause the 12. men to come to Westminster though the Tryal be in the Country And that ad faciend quandam Juratam because it is in the discretion of the Court whether to grant a Writ of Nisi prius or to have a Tryall at the Barr And for tâ—is the Duke of Exeter being Plaintiff in Trespass a Nisi prius was prayed for the Duke and it was denyed for that the Duke was of great power in that County And if the Tryall should be had in the Country inconvenience might thereupon follow as you may read 2 Inst 424. and 4 Inst 161. Nay in some Cases as if the Cause require long examination When the Court cannot grant a Nisi prius c. it is not in the power of the Court to grant a Nisi prius if the King please For in such Cases as it appears by the Writ in the Register 186. the King by his Writ may restrain and command the Iustices that they shall not award any Writ of Nisi prius and if they have that they supersede it F. N. B. 240. 241. No Nisi prius shall be granted where the King is party Where the Kâ—ng is concerned without especiall Warrant from the King or the Attorney Generalls consent Stamf. 156. F.N.B. 241. 4 Inst 161. And now since the Nisi prius for so it is called Nisi prtus why so called because the word prius is before venerint in the Distringas c. which was not so in the venire facias upon the Statute of W. 2. cap. 30. before rehearsed must not be in the venire facias because the names of the Iurors are to be returned to the Couet before the granting of the Nisi prius therefore the Nisi prius is now in the Hab. Cor. and Distringas And if the Sheriff return not a Pannel of the Iurors No Nisi prius before the Venire facias is returned upon the venire facias there shall be no Nisi prius upon the Tales untill a Pannel be returned 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales The Tales at Common Law A Tales is a supply of such men as were impanalled upon the Return of the venire facias grantable when enough of the principall Pannell to make a Jury do not appear or if a full Iury do appear yet if so many are challenged that the residue will not make a Iury then a Tales may be granted And this at Common Law was by Writs of Decem tales Octo tales c. out of the Kings Courts one of them after another as there was néed untill there was a full Iury. But now by the Statutes of 35 H. 8. 6. 4. 5. P.M. 7. 5 Eliz. 25. and 14 Eliz. 9. The Iustices of Assize Tales by Statute and Nisi prius at the Request of Plaintiff or Demandant Defendant or Tenant or of the prosecutor tam quam if two more or but one of the principall Pannel appear at the day of Nisi prius may presently cause a supply to be made of so many men as are wanting of them that are there present standing about the Court And hereuâ—â—n the very act is called a Tales de circumstantibus But since none can come after the Reporter observe with me his Nota Lecteur in his 10th Report 104. That at Common Law in the granting of a Tales five things are to be considered 1. The time of the granting c. thereof 2. The number of the Tales 3. The order of them 4. The manner of Tryall that is where by them with others and where by them only 5. The quality of them is to be considered As to the first 4 things are likewise to be considered 1. That the time of granting them is upon default of so many of the principal Pannel that there cannot be a full Inquest 2. That at the time of granting them the principall Array stand for Tales are words similitudinary and have refeâ—ence to the assemblance which then ought to be in esse and therefore if the Array be quashed or all the Polls challenged and treited no Tales shall be awarded for then there are not Quales but in such a Case a new venire fâ—cias shall bâ— awarded But if at the time of granting the Tales the principall Pannel stand and afterwards is quashed as aforesaid yet the Tales shâ—ll stand For it sufficeth if there were Quales at the time of granting the Tales 3. It is to be observed that he which is méerly Defendant cannot pray a Tales till the Plaintiff hath made default 4. In some Cases a Tales shall be granted after a full Juâ—y appear is sworn as if a Jury be charged and afterwards before a Verdict given in Court one of them die a Tales shall be awarded and no new venire facias and so if any of the Iurors impannelled die before they appear and this appears by the Sheriffs retorn the Pannell shall not abate but if there be néed a Tales shall be awarded And the time for Challenge and tryall of the Tales is after the principall Pannel be tryed and if the principall Pannel be affirmed the same tryors shall try the Tales But if it be quashed then the two tryers of the principall shall not try the Tales As to thâ— second to wit the number two things are to be observed 1. That in all Cases the Tales ought to be under the number of the priâ—â—ipall in
sworn by consent and joyn with the other 11. in the Verdict 11 H. 6. 13. In Error upon a Iudgment in Cornwall A Jury of 6. because the Tryal was but by 6. adjudged that it was erroneous though it was returned secundum consuetudinem ibidem ante c. for such Customs are against Law unless in Wales which are permitted by Act of Parliament Cro. 1. part 259. CAP. VII Who may be Jurors who not who exempted and of their Quality and Sufficiency Jurors must be Liber SO much for their number next their Quality is to be considered And for this the Writ informs you who they ought to be 1. Liberos that is Fréemen not Villains or Aliens and that not only Fréemen and not bond but also those as have such fréedom of minde that they stand indifferent without any Obligation of Affinity Interest or any other Relation whatsoever to either party sometimes the word Probos Fortescue cap. 25. instead of Liberos is attributed to them they are both good Epethites for a Juror but I estéem the first most significant 2. They ought to be Legales Legales not outlawed not such as have lost Liberam legem or become infamous as Recreants persons attainted of Felony false Verdict Conspiracy Perjury Premunire or Forgery upon the Stat. of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. Not such as have had Iudgment to lose their Ears stand on the Pillory or Tumbrel or have béen stigmatized or branded nor Infidels neither can any such be Witnesses 1 Inst 6. 3. Homines A Jury of Women they ought to be men yet there shall be a Iury of Women to try if a Woman be Enseint upon the Writ de venire inspiciendo But what kinde of men these ought to be is worthy to be known And for this some men are exempted from serving in Iuries in respect of their Dignity as Barons and all above them in degrée Exemption of Juries Many are exempted by the Writ de non ponendis in Assisis F. N. B. 166. as aged persons 70. years old and many others are exempted as Clerks Who are to be exempted from Juries Tenants in ancient Demesne Ministers of the Forrest out of the Forrest Coroners Enfants under the age of 14. years Officers of the Sheriff sick deÌ„crepioÌ„ men and such as are exempted by the Kings Charter yet in a Grand Assize preambulation Attaint and in some other special Cases such men as are not exempted by reason of their Dignity shall be forced to serve notwithstanding their exemption in other Cases Sée Daltons Office of Sheriffs fo 121. 52 H. 3. cap. 14. 2 Inst 127. 130. 378. 447. and 561. Counsellors Attorneys Clerks and other Ministers of the Kings Courts are not to serve on Iuries But I finde one Iury made of Attorneys of the Common Bench and Exchequer In a Case brought upon a Bill in the Exchequer by Sir Thomas Seton Iustice against Luce C. for calling of him Traytor in the presence of the Treasurer and Barons of the Exchequer A Jury of Attorneys And this Iury of Attorneys gave the Justice one hundred marks damages 30 Assize 19. 4. De vicenet de C. It is not sufficient that they dwell in the County but they are to be of the Neighbourhood Nay le plus prochenies Visne to the place of the fact as by Artic. super cap. 9. it is appointed They must be most near most sufficient and least suspicious ib. as I shall shew hereafter 5. Sufficiency of Jurors Quorum quilibet habeat quatuor libras terre tenement vel reddit per annum ad minus This is their sufficiency where the debt or damages or both together 1 Inst 272. amount to 40 Marks or above The sufficiency of Jurors in other Cases of lesser moment is still left to the discretion of the Iustices Fortescue cap. 25. who experience tells us never require Jurors under 4 li. per annum according to the Statute of 27 Eliz. cap. 6. before which men of 40 s. per annum served But neither this nor the Stat. of 35 H. 8. extend to Juries in Cities Towns Corporate or other priviledged places or in the 12. Shires of Wales so that there they shall be returned as before they lawfully might have béen for the Jurors sufficiency in Attaints sée the Statutes 15 H. 6. 5. 18 H. 6. 2. and 13 H. 8. 3. It is the general course of the World to estéem men according to their Estate For Quantum quisque sua nummorum servat in arca Tantum habet et fidei And sure I am the makers of this Law had cause enough to do so in this Case for if men of less Estates should serve in Juries such Fellows would only be shifted into Enquests as had more néed to be relieved by the 8 d. then discretion to sift out the truth of the fact 'T is hard to act an unbyassed Iury now But surely less rewards would sooner bribe and byass meaner men than these Therefore least poverty or necâ—ssity should tempt Every Juror must have 4 li. per annum as aforesaid of Frée-hold out of Ancient Demesne And the Court may in matters of great consequence Jurors of above 4 l. per annum direct a Venire facias for a Jury of above 4 l. per annum a piece but not under Cro. 2. part 672. But in such Cases every one knowes the Court most commonly orders the Prothonotary to chuse 48. out of the Sheriffs Book of Freeholders of the most substantial men in the County and the parties strike out 12. a piece then the Sheriff returns the rest Et qui nec D.E. nec F.G. aliqua affinitate attingunt the Law is very cautelous Jurors must not be of affinity to the parties in not leading men into temptation Therefore least kindred and Affinity should wrong the Conscience to help a friend our Juâ—ors must not be related to any of the parties And for this Reason likewise the Statutes provide that no man of Law shall ride Iudge of Assize or Goal-delivery in his own Country 8 R. 2. 2. 33 H. 8. cap. 24. But because most things concerning the Quality and Sufficiency of Jurors will come more properly under the Title Challenge I will refer you thither And first observe more particularly De quo vicinet the Jury ought to come CAP. VIII Concerning the Visne from what place the Jury shall come c. VIcinetum is derived of this word Vicinus Visne and signifieth Neighbour-hood or a place near at hand or a Neighbour place where the question about the fact is moved And the most generall Rule saith Coke 1 Inst 125. is That every Tryal shall be out of that Town Parish or Hamlet or place known out of the Town c. within the Record within which the matter of fact issuable is alledged which is most certain and nearest thereunto the Inhabitants whereof may
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
Defendant might put himself upon God and the Country as is the â—â—e at this day or else upon God only and then if he was a Fréeman he was to be tryed per ignem that is he was to passe over Noven vomeres ignitos nudis pedibus and if he was not hurt by this then he was to be acquitted otherwise condemned and this was call d Ju icium Dei But if he was a slave then his Tryall was to be per aquam and that divers wayes which all appear in Lambard verbo Ordalium From which kinde of Tryall I presume we still retain this expression of an innocent person That he need not feare fire or water This manner of Tryall was first prohibited by the Cannons then by Parliament The Tryall by Battail Battail is likewise prohibited by the Cannons but not by Parliament as you may read in the ninth Report fo 32. and in the Authorities there cited which I therefore omit to recite here th ugh I have the Books by me and â—o in this whole Treatise where I refer you to a Book I shall not sâ—t down the Authorities cited in that Book which will avoid prolixity 32. When the matter alleadged extendeth to a place at t e Common Law and a place within a franchise Which Tryall shall be first it shall be tryed at the Common Law 1 Inst 125. 33. All matters done out of the Realm of England concerning War Martiall Affairs Combat or Déeds of Arms shall be tryed and termined bâ—fore the Constable and Marshall of England before whom the Tryall is by Witnesses Witnesses or Combat or by Combate and their procéeding is according to the Civil Law and not by the Oath of 12. men 1 Just 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any forraign Country The Wife or Heir of the Deâ—d may have an Appeal before the Constable and Marshall who sentence upon the testimony of Witâ—esses or Combat ib. So if a man be wounded in France and dye thereof in England ib. It is worthy our observation What Issue shall be first tryed to take notice wâ—en there are several Issues which of them shall be first tryed And for this you have already heard that where Issue is joyned for part and a Demurrer for the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their pleasure though by the opinion of Doderidge Latch 4. It is the best way to give Iudgement upon the Demurrer first because when the Issue comes afterwards to be tryed Damages the Iury may assess damages for the whole Plea to the Writ In an Action against two the one pleads in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personall against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth onely to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personall Action the discharge of one is the discharge of both As for example if one of the Defendants in Trespass pleads a Release Release to himself which in Law extends to both and the other pleads not guilty which extends but to himself or if one pleads a Plea which excuseth himself onely and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof Discharge of one dischargeth both because the discharge of one is the discharge of both But in a Plea reall it is otherwise for every Tenant may lose his part of the Land As if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other Issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea ib. CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs Hâ—ving given you the Epitome of what Tryals are allowed by tâ—e Common Law and what shall be tryed per pais and what not we shall now aâ—ply our selves more particularly to the Tryal by Juries And becâ—use a Venire facias is the foundation and Causa sine qua non of a Iury I meane in Civil Causes for in Criminalls as upon Indictments the Justices of Goal Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriffe without any process directed to him yet process may be made against the Iury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Precipimus tibi quod venire facias Venire facias Coram Justiciariis nostris de Banco apud Westm tali die duodecem liberos legales homines de vicenet de C. Quorum quilibet habeat quatuor libras terre tenement velreddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patrie inter partes predict de placito c. quia â—am Idem D. quam predict F. inter quos inde contentio est posuer se in Jur. illam Et habeas Ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch termes them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve frée and lawful men of his County to resolve the question of the fact in dispute betwéen the parties upon the Issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod Inquiratur per patriam by the Plaintiff and Issue joyned thereupon the Court awardeth the Venire facias vid. Ideo fiat inde Jurat Sheriff And first you sée it is directed
the venire facias unless in Appeales as in Attaint under 24. and in other Actions where the venire facias is of 12. under 12. And the Reason wherefore more than the number may be granted in Appeals of the Plaintiffs part is because the Defendant may challenge peremptorily and if default be in the Plaintiff then the Defendant may pray a Tales and the Reason is in favorem vitae and that he may expedite and frée himself from vexation and the question of his life for fear that his Witnesses should die 2. That the number ought alwayes to be certain as 10. 8. 6. or 4. c. But now by the Statute of 35 H. 8. a Tales de Circumstantibus may be granted as well of an uncertain as a certain number and that by force of these words in the Stat. 35 H. 8. So many c. as shall make up a full Jury As to the third to wit the Order It is to be known that alwayes in every new Tales the number shall be diminished as if the first be 10. the second shall be 8. and so always lesse But if the Tales awarded be quashed by Challenge you may have another of the same number As to the fourth to wit the manner of Tryal that is commonly by them with others but by them only when after the granting the Tales the principall Pannel is quashed then the Tryal shall be only by the Tales or if the Tales do not amount to a full Enquest another Tales to supply the former may be granted As to the fifth to wit Therefore if â—he Venire facias be not de medietat linguae the Tales cannot 3 E. 4.12 the Quality of the Tales they ought to be of the same quality as the Quales are and therefore if the first be per medietatem linguae of English and Aliens so ought the Tales to be so if the Principal be out of a franchise so if the Venire facias be directed to the Coroners so ought the Tales and all things which are required by the Law in the Qualeâ— are required in the Tales as yoâ— may read in the aforesaid Statutes vide Stamf. Plees del Coronâ— fol. 155. Where a Iuror is withdrawn when the Plaintiff intends to bring the Cause to Tryal again he may have a Distringas c. with a Deceâ— Tales By the Statute of 23 H. 8. ca. 3. If there be not enough sufficient Fréeholders as are required in an Attaint Attaint in the County where such Attaint is taken a Tales may be awarded into the Shire next adjoyning If the Transcript of the Record of the Nisi prius be mistaken and not warranted by the Rolls for which cause the Plaintiff becomes non-suit he may have a Distringas de novo Nisi prius amendable upon motion to the Court and the Postea shall not be recorded Cro. 1 part 204. For there is but a Transcript of the Record sent to the Iustices of Nisi prius Justices of Nisi prius and Justices of Assise First they were Justices of Assize and therefore they retain that name still though Assizes are very rarely brought For this common Action of Ejectment hath Ejected most reall Actions and so the Assise is almost out of use CAP. VI. Of the number of the Jurors and why the Sheriff returns 24. though the Venire facias mentions but 12. If he returns more or lesse no Error and of the number 12. NOw for the Quales and these you sée for number must be 12. by the Common Law D. and St. fo 14. for quality liberos legales homines And first of their number 12. And this number is no less estéemed of by our Law then by Holy Writ Of the number 12. If the 12 Apostles on their 12. Thrones must try us in our eternall State good Reason hath the Law to appoint the number of 12. to try our temporall The Tribes of Israel were 12. the Patriarchs were 12. and Solomon Officers were 12. 1 King 4.7 Therefore not only matters of fact were tryed by 12. But of ancient time 12. Plow Com. in proaemio 12 Judges Iudges were to try matters in Law in the Exchequer Chamber and tâ—ere were 12. Counsellors of State for matters of State And he that wageth his Law must have 11. others with him which think he sayes true Less then 12. in Inquests of Office And the Law is so precise in this number of 12. that if the Tryall be by more or less it is a Mys-triall But in Enquests of Office as a Writ of Wast Finch 400. 484. there less than 12. may serve F.N.B. 107. c. and in Writs to inquire of Damages the just number of 12. is not requisite for they may be over or under And although there can be no Verdict but by 12. yet by ancient course and usage which as my Lord Cooke tells you makes the Law in this Case 1 Inst 155. Why the Sheriff returns 24. the Sheriff is to return 24. And this is for expedition of Iustice for if 12. should only be returned no man should have a full Iury appear or sworn in respect of Challenges without a Tales which should be a great delay of Tryals And for this cause at common Law 't was Error if the Sheriff returned less then 24. But now it is remedied by the Statute of 18 Eliz. as a mis-return If the Sheriff return less then 24. it is no Error sée Cro. 1 part 223. li. 5. 36 37. By which Books it appears that if the Sheriff return but 23. c. it shall not vitiate the Verdict of 12. No though a full Iury do not appear so that the Tryal is by ten of the principal Pannel and two of the Tales notwithstanding Maynards Opinion to the contrary and Cro. 3. part 587. The Sheriffs used to summon above 24. Must not return above 24. Scil. effrenatam multitudinem but now they are prohibited by Statute to summon above 24. Westm 2. cap. 38. Where there must be 16. and 24. in a Jury To make a Iury in a Writ of Right which is called the Grand Assize there must be 16. Scil. four Knights and 12. others the Iury in an Attaint called the Grand Iury must be 24. Firch 412. 485. When Process used to be made out against the Witnesses in Carta nominat to joyn with the Iury in Tryal of the Déed Where Witness joyn with the Jury the number is incertain then the number was uncertain according as the number of Witnesses were in the Déed wherefore no attaint lay if the Déed were affirmed because more then 12. joyned in the Verdict But otherwise if the Déed was not found Cannot prove a Negative because Witnesses cannot prove a Negative F. N. Br. 106. h. 1 Inst 6. 2 Inst 130. c. If 12. are sworn and one of them depart by consent another of the Pannel may be sworn Juror departs and another
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
Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court cannot refuse a Special Verdict The Court cannot refuse it if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned A special Verd ct may be found upon any Issue as upon an eisque hoc c. whether the Iury could finde a Special Verdict upon a special point in Issue or no as they might upon the generall Issue But this question hath béen fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Verdict and finde the matter at large en chescun issue en le monde so that the matteâ— found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions reall personall and mixt and upon all Issues joyned generall or speciall the Iury might finde the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not onely in Cases betwéen party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmitive of the Common Law And as this special Verdict is the safest for the Iury A Free-hold upon Condition without Deed may be sound by Verdict though it cannot be pleaded 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366. 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concernes a Fréehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12. men taken at large in an Assize of Novel disseisin or in any other Action where the Iustice will take the Verdict of 12. Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for terme of life without Déed upon Condition to tender to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessée is seised as of Fréehold and after the Rent is behinde by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Disseisin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for terme of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behinde at any such Feast at which it ought to be paid then it should be lawfull for the Lessor to enter c. By force of which Lease the Plaintiff was seized in his Demesne as of Frée-hold and that afterwards the Rent was behinde at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgement that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same mannor it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue Also in such case Generall Verdict where the Enquest may give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise finde Estoppel Estoppels which cannot be pleaded as in the 2d Report fol. 4. it well appeares where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Déed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23 Eliz. and found the Tenor of the Déed in haec verba Noverint univeâ—si c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Déed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Déed And the Reason of the Iudgement was That although the Obligée in pleading cannot alledge the delivery before the date Note that a Deed may be pleaded to be delivered after the date but not before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. â— as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Déed yet the Jurors who are sworn ad veritatem dicend shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admâ—â—teth the Wast c.
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