assisas in ComÌ„ N. Capiend assignÌ„ ê‘ formam statuti c. venÌ„tam infra nominatÌ„ J. A. quaÌ„ infra scriptÌ„ H. C. ê‘ atturnatÌ„ suos infra ContentÌ„ IurÌ„ Iure unde infra fit mentio ExactÌ„ similitÌ„ venerÌ„ Qui ad veritatem de infra ContentÌ„ dicend electi triati Iurati fuerÌ„ Super quo pÌ„d H. ê‘ quendam J. B. de Consilio ipsius H. C. manutentione exitus interius IunetÌ„ Coram pÌ„fatÌ„ IustÌ„ IurÌ„ pÌ„d in Evidentijs oftend dicÌ„ quod c. Here recite the Evidence truely unde petitÌ„ IudiciuÌ„ qd IurÌ„ pÌ„d veredictÌ„ suum de suê‘ infra ContentÌ„ pro ipso H. reddant c. Et pd J. A. ê‘ quendaÌ„ C. J. de Consilio suo Demurrer dicÌ„ qd materia ê‘d ê‘ pÌ„fatÌ„ H. C. IurÌ„ pred suê‘ius in Evidentiis ostentÌ„ minus in lege existic ad pro band exitum interius IunctÌ„ pro parte ejusdem H. quodque ipse ad materiam illam in forma pÌ„d in EvidentÌ„ ostentÌ„ necesse necesse non habet nec ê‘ legem terrÌ„ tenetÌ„ respondere hoc paratus est verificare unde pro defectu sufficientÌ„ materÌ„ IurÌ„ pÌ„d in hac parte ostens Idem I. petitÌ„ IudicÌ„ quod IurÌ„ de VeridictÌ„ suo suê‘ Exit pÌ„d reddend exoneretur debitum suum infra specÌ„ una cum dampnÌ„ suis occasione de tentÌ„ debiti illius sibi addiundi cari c. Et pÌ„d H. C. Ex quo ipse sufficÌ„ materÌ„ in Joynde lege ad manutenen exitÌ„ infra ContentÌ„ pro parte ipsius H. IurÌ„ pred suê‘ius in EvidentÌ„ ostens qd ipse ê‘atÌ„ est verificare quaÌ„ quidem materiaÌ„ pÌ„d J. non dedicit nec ad eam aliqualiter respond sed verificationem illam admittere omnino recusat petÌ„ IudicÌ„ qd pred J. ab actione sua pred versus Eum habend precludatur ac qd IurÌ„ pred de VeredictÌ„ suo suê‘ exitÌ„ pred reddend onerentur c. A Precedent of a Demurrer upon the Evidence And now at this day the said Plaintiff and Defendant by their Attornies did appear and the Iury likewise did appear and were sworn c. upon which Sir T. W. Serjeant at Law of Councel with the Plaintiff gave in Evidence so and so and repeat it truely and did require the Iurors to find for the Plaintiff upon which J. C. of Councel with the Defendant saith That the Evidence and Allegations aforesaid alledged were not sufficient in Law to maintain the Issue joyned for the Plaintiff to which the Defendant néedeth not nor by the Laws of the Land is not holden to give any Answer wherefore for default of sufficient Evidence in this behalf the Defendant demands Iudgment that the Iurors aforesaid of giving their Verdict be discharged c. and that the Plaintiff be barr'd from having a Verdict c. Then the Plaintiff joyns and says That he hath given sufficient matter in Evidence to which the Defendant hath given no Answer c. and demands Iudgment and that the Iury be discharged and that the Defendant be Convicted then the Iury may give Damages if Iudgment shall happen to be for the Plaintiff c. A Bill of Exception Memorand That the First day of August Ebor. sc An. 1650. before T. P. and W. Iustices of our said Lord the King for taking of Assizes in the said County assigned in a Plea of Trespass and Ejectment which J. S. in the Court of our said Lord the King before himself by Bill doth Prosecute against E. B. supposing by the said Bill that the aforesaid T. B. c. and recite the substance of the Declaration or what it is c. and the Issue and then what the Evidence to prove the Defendant guilty was c. which here was a Surrender of a Copyhold out of Court c. and that he desired the Iury aforesaid to give their Verdict for the said T. B. of and upon the Premisses and that he likewise desired the Iudges aforesaid that they would inform the Iury aforesaid that the Surrender aforesaid out of Court made was good and effectual in Law and the aforesaid Iustices the aforesaid Surrender of the Land aforesaid with the Appurtenances made out of Court of the Mannour aforesaid in form aforesaid did affirm to the said Iurors was not good in Law by which the said Thomas for that the aforesaid matter to the said Iurors in Evidence shewed doth not appear c. did request of the said Iustices according to the form of the Statute in such case provided this present Bill which doth contain in it the matter aforesaid above by him to the Iurors aforesaid shewed by which the said Clayton's Reports Iustices at the request of the said Thomas this Bill have sealed at D. aforesaid 1. Westm 2. 31. 13 E. 1. When the Iustices will not allow a Bill of Exception upon Prayer if the Party impleaded tender the same unto them in Writing and requires their Seals thereunto they or one of them shall do it 2. If the Exception sealed be not put into the Roll upon Complaint thereof to the King the Iustice shall be sent for and if he cannot deny the Seal the Court shall procéed to Iudgment according to the Exception This Bill of Exception is given by the Statute Westm 2. cap. 31. before which Statute a man might have had a Writ of Error for Error in Law either in redditione Judicii in redditione Executionis or in Processu c. which Error in Law must be apparent in the Record or for Error in sait by alledging matter out of the Record as the death of either party c. before Iudgment But the mischief was if either party did offer any exception praying the Iustices to allow it and the Iustices over-ruling it so as it was never entred of Record this the party could not assign for Error because it neither appeared within the Record nor was any Error in fait but in Law and so the party grieved was without remedy until this Statute was made This Act extendeth to all Courts to all Actions and to both parties and to those who come in their places as to the vouchee c. who comes in loco tenentis It extendeth not only to all Pleas Dilatory and Peremptory c. to Prayers to be received Oier of any Record or Déed and the like but also â—o all Challenges of Iurors and any material Evidence given to any Iury which by the Court is Over-ruled 2 Inst fo 427. All the Iustices ought to Seal the Bill of Exceptions yet if one doth it it is sufficient if all refuse it is a contempt in them all And the party grieved may have a Writ grounded upon this Statute commanding them to put their Seals Juxta formam Statuti hoc sub periculo quod incumbit nullatenus omittatis The party must pray the Iustices to put their Seals but if they deny it they may be
in the Court. And their names The names of the Jurors must be returned into the Court before any Tryal and why 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 Nisi prius So that by what hath been said you It is in the Courts discretion whether to grant a Nisi prius or not may perceive to what purpose 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 Tryal at the Bar. And for this 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 Tryal 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 c. it is not in When the Court cannot grant a Nisi prius 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 Justices 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 without especial Warrant from the King or the Attorney Where the King is concerned Generals consent Stamf. 156. F. N. B. 241. 4 Inst 161. In a praecipe quod reddat if the Tenant after aid of the King pleads to the Inquest the Plaintiff shall not have a Nisi prius because the Tenant hath aid of the King and so the King is in a manner Party 25 E. 3. 39. Neither is a Nisi prius to be granted if any of the parties may have prejudice by it If the Iustices de Nisi prius die before Certification of Verdicts the day in Bank yet the Record shall be received from the Clerk of Assise without a Certiorari or other form of entry but the antient form Also in that Case a Certiorari may be directed to the Executors or Administrators of the Iustices to certifie the Record D. 4 5 Mar. 163. 55. Rolls tit Tryal 629. They have no power to increase Damages What things the Justices of Nisi prius may do nor to allow or disallow protections nor to allow a Plea of Excommengement in the Plaintiff But they may record the protection and the default and this shall be allowed or disallowed in B. They may demand the Iurors upon a Jurors sur paine fine Pein they may amerce Iurors and punish a Trespass done in their presence which is in despite of the King and for this make Process and may fine Offenders In Ejectment the Defendant may plead at the Assises that the Plaintiff hath entred into parcel of the Land mentioned in the Declaration puis le darrein continuance and the Plea puis darrein continuance Iustices of Nisi prius may accept this Plea But it is in their Election for if they perceive the Plea is dilatory they may refuse it for it is in their discretion Sir Hugh Browns Case in Scaccario Mich. 8 Jac. Rolls tit Tryal 630. If 11 Iurors be sworn and the 12th The power of the Judge upon disagreement or other matter is challenged and the Iurors cannot agree in the challenge for 10 affirm the challenge and the other denies it although the party which did not take the challenge will not agree that the Eleven sworn shall Challenge have another to them in the lieu of him that is challenged yet the Court may do this If a challenge be taken to the Array before any Iuror is sworn and Triors be chosen who cannot agree yet they shall not be commanded in Custody because they never were sworn upon the principal But the Court may discharge them and chuse others If there be three Triors who will not agree the Court cannot take the Verdict Jurors discharge of two and command the other to prison The same Law in case of a Verdict upon an issue Where 14 Iurors are impannelled for the King the Judge cannot discharge any of them after they are sworn if not that they will not agree with their Companions If the Iury say upon demand of the Amencement Court that they are agreed and afterwards when they are opposed they say the contrary in any matter they may be amerced for this Rolls tit Tryal 675. And now since the Nisi prius for so it is Nisi prius why so called 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 Court before the granting of the Nisi prius therefore the Nisi prius is now in No Nisi prius before the Venire facias is returned the Hab. Corp. and Distringas And if the Sheriff return not a Pannel of the Iurors upon the Venire facias there shall be no Nisi prius upon the Tales until a Pannel be returned 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales A Tales is a supply of such men as were The Tales at Common Law impannelled upon the Return of the Venire facias grantable when enough of the principal Pannel to make a Jury do not appear or if a full Jury do appear yet if so many are challenged that the residue will not make a Jury 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 Jury 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 Assise and Nisi prius Tales by Statute at the Request of Plaintiff or Demandant Defendant or Tenant or of the prosecutor tam quam if two more or but one of the principal 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 hereupon the very Act is called a Tales de circumstantibus Note the difference between Tales
that the very reading of the Law will make a man Master of any of those Sciences And since Rhetorick is Ars ornatè dicendi and consisteth of those two parts Elocution and Pronunciation How can we read in our Law-Books those Learned Arguments Elegant Speeches and Judgements pronounced with such Eloquence and Elegance of words and matter and not conclude that Rethorick is the Glory and Grace of a Lawyer Though some not gifted that way would perswade us that the Law hath little relation to it If any man be delighted in History let him read the Books of Law which are nothing else but Annals and Chronicles of things done and acted from year to year in which every Case presents you with a petite History and if variety of matter doth most delight the Reader doubtless the reading of those Cases which differ like mens faces though like the Stars in number is the most pleasant reading in the World I thought to have expatiated my self in this Eulogical Commendation of the Study of the Law But when I consider the Glory of the thing it self I think it but in vain to light the Sun with Candles and as no Arguments will perswade one to love against Nature so he whom the excellency of the Law it self cannot invite to study it will never be forced to it with the fist of Logick or other perswasion Wherefore 't is now time to expose my self to the Censure of the Reader who always judges according to his capacity or affection for which cause if I were to chuse my Reader I could wish with Caius Lucilius Quod ea quae scribo neque ab indoctissimis neque à doctissimis legi quod alteri nihil intelligerent alteri plus fortasse quà m ipse de se That this Treatise might not be read of the most Learned nor of those who are not learned at all because these understand nothing and the others more perhaps than my self However I put this Request to all Bracton l. 1. fol. 1. Vt si quid superfluum vel perperam positum in hoc opere intervenerit illud corrigant emendent vel Conniventibus oculis pertranseant Cum omnia habere in memoria in nullo peccare divinum sit potius quà m humanum That if any thing be superfluous and placed amiss in this Work That they will either correct and amend it or without carping connive at it since to remember to do all things right and nothing amiss is rather the part of a God than Man wherefore let him which never offended cast the first stone A Summary of the Contents of each Chapter in this Book CAP. I. THE Derivation of the word Jury The Definition Antiquity and Excellency of Juries by way of Preface p. 1 CAP. II. Of an Issue and the divers sorts of Tryals thereof and when a Tryal shall be by a Jury and when not when by the Spiritual Law When by Certificate when by Battail when by an Almanack c. What Issue shall be first Tryed per Pais what shall be tryed by the Court and what by examination of the Attorney Sheriff c. p. 7 CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs When well awarded c. p. 35 CAP. IV. What faults in the Venire facias shall vitiate the Tryal what not when a Venire facias de novo shall be awarded when several Ven. fac When the Ven. fac shall be betwixt the Party and a stranger to the Issue Who may have a Venire facias by Proviso and when p. 50 CAP. V. Why the Venire facias runs to have the Jury appear at Westm though the Tryal be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs of the Justices of Nisi prius Of the Tales at Common Law and by Stat. when the Transcript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is nonsuited he may have a Distringas de novo p. 66 CAP. VI. Of the number of the Jurors and why the Sheriff returns 24. though the Venire facias mentions but 12. If he returns more or less no Error and of the number 12. And when the Tryal shall be per primer Jurors And of Inquests of Office And when to remain pro defect Jurator p. 83 CAP. VII Who may be Jurors who not who exempted and of their Quality and Sufficiency p. 90 CAP. VIII Concerning the Visne from what place the Jury shall come c. p. 98 CAP. IX Challenges p. 130 CAP. X. Of What things a Jury may inquire when of spiritual when of things done in another County or in another Kingdom when of Estopels and when not when of a mans intent c. p. 173 CAP. XI Evidence and Witnesses p. 181 CAP. XII The Juries Oath Why called Recognitors in an Assise and Jurors in a Jury Of the Tryal per medietatem linguae when to be prayed and when grantable Of a Tryal betwixt two Aliens by all English Of the Ven. fac per medietatem linguae and of Challenges to such Juries p. 351 CAP. XIII The Learning of general Verdicts especial Verdicts privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by Default Inquests of Office c. Arrest of judgement Variance betwixt the Nar and the Verdict c. ◠359 CAP. XIV How the Jury ought to demean themselves whilest they consider of their Verdict when they may eat and drink when not What misdemeanor of theirs will make the Verdict voyd Evidence given them when they are gone from the Barr spoyls their Verdict For what the Court may fine them and where the Justices may carry them in Carts till they agree of their Verdict An amercement affered by the Jury p. 416 CAP. XV. What punishment the Law hath provided for Jurors offending as taking reward to give their Verdict Of Embraceors Decies tantum Attaint Several fines on Jurors What Issues they forfeit and of Judgement for striking a Juror in Westmin c. p. 430 Precedents containing the Forms of Challenges to the Array c. And the Proceedings thereupon Pleas Puis le Darrein Continuance Demurrers upon the Evidence Bills of Exception c. And the Law concerning the same Very Useful for all Lawyers and other Attorneys Practisers especially at the Assizes A Form of Challenge to the Array p. 449 Challenge to the Array because the Sheriff is Cousin c. p. 450 A Challenge because the Sheriff is Tenant c. ibid. A Precedent of a Challenge for default of Hundredors which hath been several times made use of at the Assises p. 451 The form of a Challenge made by the Defendant because the Plaintiff is the Sheriffs Cousin p. 452 A Challenge to the Array because no Knight was returned upon the Jury p. 453 A Challenge against the
the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their Latch 4. pleasure though by the opinion of Dodrige It is the best way to give Iudgment upon the Demurrer first because when the issue comes afterwards to be tryed the Jury may assess Damages damages for the whole A Scire facias was brought on a Recognisance in Chancery the Terre-tenants pleaded several Pleas the Plaintiff demurred to one and took issue on the other the Record was sent into B. R. to try the issue and it was tryed and Verdict pro Plaintiff the demurrer not being argued and it was adjudged per R. B. that Iudgment ought to be given on both by that Court Jeffreyson and Dâ—wson's Case Hill 21 22 Car. 2. B. R. vide for these things 1. Roll. abr 534 535. Roll. rep 287. and in the principal Case 4 Inst 80. was denied to be Law An Immaterial issue joyned which will Immaterial issue not bring the matter in question to be tryed is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader because this is matter of substance for if there were no issue there could be no Verdict and so it is as if nothing had béen done in the cause In an Action against two the one pleads Plea to the Writ in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personal against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth only to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personal Action the discharge of one is the discharge of both As for example if one of the Defendants Release in Trespass pleads a Release to himself which in Law extends to both and the other pleads not guilty which extends but Rolls tit Tryal 628. to himself or if one pleads a Plea which excuseth himself only and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof because the discharge of one is the discharge of both Discharge of one dischargeth both But in a Plea real it is otherwise for every Tenant may lose his part of the Land as if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea Brown and Stamford Iustices consulted with Grammarians in things of Grammar and Hulls a Batchelor of Law Tempore Hen. 6. was called into Court to shew the difference between precise and causative Compulsion Vide Plow 122. 127 128. Pasch 16 Car. 2. B. R. An action of Trover c. was brought de sex Capitalibus fibulatis Anglice 6 laced Coifs after Verdict for the Plaintist it was moved in Arrest of Iudgement that the Latine words were both Adjective and so not certain but it was answered that Capaital is a Substantive and the Nomenclator of Westminster School was produced to warrant it and it was adjudged for the Plaintiff accordingly and the Court allowed that authority before Rider's Dictionary CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs When well awarded c. HAving given you the Epitome of what Tryals are allowed by the Common Law and what shall be tryed per pais and what not we shall now apply our selves more particularly to the Tryal by Juries And because a Venire facias is the foundation and Causa sine qua non of a Jury I mean in Civil Causes for in Criminals as upon Indictments the Justices of Gaol Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriff without any process directed to him yet process may be made against the Jury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Praecipimus tibi Venire facias quod venire facias coram Just ciariis nostris de Banco apud Westm tali die duodecim liberos legales homines de vicinet de C. quoâ—um quilibet habeat quatuor libras terrae tenement vel reddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patriae inter partes praedict de placito c. quia tam idem D. quam praedict F. inter quos inde contentio est posuer se in Jur. illam Et habeas ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch terms them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve free and lawful men of his County to resolve the question of the fact in dispute between the parties upon the issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod inquiratur per paâ—riam by the Plaintiff and issue joyned thereupon the Court awardeth the Venire faciâ—s vid Ideo fiat inde Jurat And if they come not at the day of the Writ returned then shall go forth against them an Habeas Corpora and Distringas to bring them in to try the matter The which two last Writs are usually made with this clause Nisi prius Justiciarii venerint c. and are returnable after the time of the Judges coming their Circuit And first you see it is directed Vicecomiti Sheriff i. e. to one who is Vicecomes and hath the Regiment of the County instead of the Earl of that County to whom once it did belong as we are taught in the Mirror Chap. 1. Sect. 3. scil That it appeareth by the
but by one of the Coroners or for affinity in one c. Yet the Process shall still go to the Coroners Ita quod the Coroner se non intromittat If Default be in the Sheriff and To whom Process shall be directed for default in the Sheriff and Coroners Coroners the Court may choose two Esliors and if the parties can say nothing against them they shall make the Pannel But the Distringas shall not be directed to Esliers for the Court cannot make Officers to distreyn the Kings Liege people but the King may 8 H. 6. 12. dubitatur Process may be directed to the Justices of Assise by assent of parties not without When a Pannel is made by the Esliors they shall afterwards serve all Process that comes upon this as the Sheriff should 15 E. 4. 24. 18 E. 4. 3 8. Rolls tit Tryal 670. For it may be the Sheriff will distreyn only those who are his friends and be partial When the Process is once awarded Venire facias once directed to the Coroners shall not be to the Sheriff afterwards to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. Bro. tit Venire facias 17. So the Entry is Ita quod Vicecomes se non intromittat 18 E. 4. 3. 8 H. 6. 12. And therefore where the Sheriff ought Sheriff shall not return the Tales where he cannot the Venire facias not to retorn the Venire he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner and afterwards a Tales was awarded and it was retorned by the Sheriff and it was tryed and a Verdict given and Iudgement And for this cause held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 3. par 574. Bro. tit Octo. Tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and Where the Coroner returns the Venire facias he ought to return the Tales after Verdict it was moved in Arrest of Iudgement that the Tales de Circumstantibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgement For it is a mis-tryal not aided by any of the Statutes for process being once awarded to the Coroners the Sheriff afterwards is not the Officer to return the Jury no more than any other man And process ought always to be returned by him who is an Officer by Law to return it otherwise it is meerly void But afterwards upon view of the Record it appeared that the Tales was returned by the Coroners and their names annexed thereto wherefore it was without further question But the Court said if their names had not been annexed No name to the Return to the Tales yet it had been well enough for they be annexed to the first Pannel And it shall be intended that the right Officer return'd it and the usual course is That to such Tales there is not any officers name subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed but it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgement But if the Venire be awarded to the Coroners Venire facias to the Sheriff after one awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time or else to Esliors sice converso In Error of a Iudgement in Chester Venire facias to the Coroners after one to the Sheriff the parties being at issue a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vicecomes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cozenage betwixt him and the Sheriff which was awarded accordingly and at the day of tryal the Defendant made default and there upon Iudgement Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not material Cro. 3. part 853. But the Defendant might have demurred No Venire facias to the Coroners after one to the Sheriff to this prayer For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the Array nor have a Venire afterwards to the Coroners because the Sheriff is his Cousin or for any other principal challenge whereof he might by common intendment have Conusance when he so prayed the Venire facias for upon shewing this Cause at first he might have prayed Process to the Coroners but for a principal challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Sheriff c. he may afterwards challenge the Array when they appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to If the Defendant denies the Planitiffs suggestion he shall have no benefit of it by Challenge the Coroner because he is of kindred to the Sheriff if the Defendant will not confess this but denies it this shall be entred and the Defendant shall not challenge the Array for this cause afterwards Br. tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryal without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff
Defendant unless when he is actor as well as the Plaintiff or unless there be a default and Leches in the Plaintiff therefore there can be no Tryal by Proviso against the King unless with the Attorney General 's consent because no default or Laches can be imputed to the King But an avowant in Replevin may have a Venire facias with a Proviso immediately Proof presently after issue joyned after issue joyned because he is Actor and in nature of the Plaintiff If the Plaintiff in Detinue and the Garnishee be at issue and the Plaintiff prays a Nisi prius and this is granted Garnished yet the Garnishee at the same time may have a Nisi prius with Proviso because he is Plaintiff also 19. li. 6. 46. Rolls tit Tryal 629. If the Plaintiff deliver the Writ to the Sheriff tarde so late that he cannot serve Tarde it the Defendant shall have a Writ with a Proviso But at the same time the Plaintff may have another Writ and the Sheriff may return which of them he pleases at his Election 8 H. 6. 6. The Proviso ought to be quando duo brevia sunt in eodem gradu qualitate If the default be in Plaintiff after issue in the prosecuting of the Venire facias then the Defendant may have a Venire facias with Proviso but not a Hab. Corpus with a Proviso until the Plaintiff have made a default in the same Writ for he ought only to have the same Process with a Proviso in which there was a default of the Plaintiff first and therefore although the Defendant had a Venire facias with a Proviso upon a default of the Plaintiff yet he cannot have a Nisi prius by Proviso without another default of the Plaintiff If the Defendant had a Hab. Corpus by Proviso and the Jury remain for want of Hundredors yet he cannot have a Distringas Jur. with a 10. Tales cum Proviso until a default of this request of a Tales is in the Plaintiff D. 15 El. 318. 10. But note the Nota in Stamford's Pleas How the Plaintiff may stop the Defendants Proviso del Coron fol. 155. 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 proceed in his Process in praying a Tales upon the Defendants Process as it appears T. 15 H. 7. fol. 9. And the Defendant shall never be received to pursue this Process with a Proviso so long as the Plaintiff pursues or is ready to pursue as appears Mich. 14 H. 7. fol. 7. And seeing the Tales men offer themselves Tales men to us we will tell them upon what accompt they 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 Tryal be in the Country Of the Writ of Nisi prius when first given when grantable when not and in what Writs Of Justices of Nisi prius Of the Tales at Common Law and by Statute When the Transcript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is Non-suited he may have a Distringas de novo BUt 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 comâ—anded to cause the Iury to come to Westâ—â—â—ister 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. men were to be summoned upon the Writ of Venire fac Why the Venire facias is to have the Jury appear at Westminster to come to Westminster was that contained in the Writ videl Ad faciend quandam Juratam for then was the Tryal intended to be there if a full Iury appeared if not then a Hab. Corpora with a Tales sometimes Hab. Corp. annexed to it the form whereof you may see in the Register and if they did not appear at the Return in the Hab. Corpora then went out the Distringas This Distringas I speak of the Common Pleas But the course of the Kings Bench and Exchâ—quer is after the Venire fac to have a Distringas leaving out the Hab. Corpora Tryals then were all at the Bar. I speak not of Assises But now because Jurors did not use to appear upon the Venire facias it being without penalty Tryals at the Bar are appointed upon the Hab. Corpora and Distringas because the Iury will Tryals at Bar. 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 penal Law committed above 30. miles from Westminster Where a Jury is not compellable to appear at Westminster except the Attorney General can shew reasonable cause for a Tryal at Bar. Thus it was at Common Law before the giving of the Writ of Nisi prius when all Iurors together with the parties came up 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 was first Nisi prius when first given and wherefore given and that in the Venire facias as we may see in the form of the Writ there mentioned scil Prâ—cipimus tibi quod venire facias coram Justiciariis nostris apud Stamfords Pleas of the Crown 156. Westmon in octabus Sancti Michaelis nisi talis talis tali die loco ad partes illas venerint 12. c. By which Writ it appears that the Venire facias was not returnable till after the day of the Nisi prius But the mischief thereof was so great partly Nisi prius in the Venire facias 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 Inquest but Assises and deliverances of Gaols 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 pass in the Inquests be returned
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 principal in the Venire facias unless in Appeals 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 free himself from vexation and the question of his life for fear that his Witnesses should die 2. That the number ought always 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 always in every new Tales the number shall be diminished as if the first be 10. the second shall be 8. and so always less 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 principal Pannel is quashed then the Tryal shall be only by the Tales or if the Tales do not amount to a full Inquest another Tales to supply the former may be granted As to the fifth to wit the Quality of the Therefore if the Venire facias be not de medietat linguae the Tales cannot 3 E. 4. 12. 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 Quales are required in the Tales As you may read in the aforesaid Statutes vide Stamf. Plees del Corone fol. 155. Where a Juror is withdrawn when the Plaintiff intends to bring the Cause to Tryal again he may have a Distringas c. with a Decem Tales By the Statute of 23 H. 8. cap. 3. If there be not enough sufficient Freeholders as are required in an Attaint in the County where Attaint 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 Nisi prius amendable de novo upon motion to the Court and the Postea shall not be recorded Cro. 1. part 204. Palmers Reports 378. For there is but a Transcript of the Record sent to the Justices of Nisi prius First they were Justices of Nisi prius and Justices of Assise Justices of Assise and therefore they retain that name still though Assises are very rarely brought For this common Action of Ejectment hath Ejected most real 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 less no Error and of the number 12. And when the Tryal shall be per primer Jurors And of Inquests of Office and when to remain pro defectu Juratorum NOw for the Quales and these you see for number must be 12. by the Common Law D. and St. fol. 14. for quality liberos legales homines And first of their number 12. And this number is no less esteemed of by our Law than by Holy Writ Of the number 12. If the 12 Apostles on their 12 Thrones must try us in our eternal State good Reason hath the Law to appoint the number of 12. to try our temporal The Tribes of Israel were 12. the Patriarchs were 12. and Solomons Josh 4. Genes 49. Officers were 12. 1 Kings 4. 7. vide Sir Hen. Spelman verb. Jurata Therefore not only matters of fact were tryed by 12. but of ancient time 12. Judges were to try matters in Law in the Exchequer Plow Com. in prooemio 12 Judges Chamber and there were 12. Counsellors of State for matters of State And he that wageth his Law must have 11. others with him which think he says true And the Law is so precise in this number Less than 12 in Inquests of Office of 12. that if the Tryal be by more or less it is a Mis-tryal But in Inquests of Office as a Writ of Wast there less than Finch 400. 484. 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 so it was resolved Trin. 1651. B. R. Abbot vers Holt that the Sheriff ought in Writs of Inquiry to summon 12. by their names yet Inquest of Office Vide hic cap. 13. Damages assessed by a less number is sufficient and in the Writ to the Sheriff quod ipse inquirat per Sacramentum pro borum hominum omitting duodecem it s good and usual And in a Writ of Inquiry of Waste by 13. it was holden Good 1. Cro. 414. In Dower if the Tenant come at the Grand Cape and say he was always ready to render Dower and issue is taken upon this although seisin of the Land be presently awarded yet no Inquest of Office but the Jury upon the Tryal of the issue shall assess Damages 22 E. 3. 15. In what cases there shall be an Inquest of Office and in what not see Rolls tit Tryal 595. And although there can be no Verdict Why the Sheriff returns 24. but by 12. yet by ancient course and usage which as my Lord Cook tells you makes the Law in this Case 1 Inst 155. 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 Jury 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 than 24. But now it is remedied by the Satute of 18 Eliz. as a mis-return see Cro. 1 part 223. li. 5. 36 If the Sheriff return less than 24 it is no Error 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 Jury do not appear so that the Tryal is by ten of
Stan. Plea Cor. lib. 3. cap. 7. And this Tryal in some Cases per medietatem It s Antiquity linguae was before the Conquest as appears by Lamb. fol. 91 3. Viri duodeni Jure consulti Angliae sex Walliae totidem Anglis Wallis Jus dicanto And of ancient time it was called Duâ—decim virale Judicium 1 Inst 155. But afterwards this Law became universal first by the Statute of 27 Ed. 3. cap. 8. It was Enacted that in Pleas before the Maior of the Staple if both parties were strangers the Tryal should be by strangers But if one party was a stranger and the other a Denizen then the Tryal should be per medietatem linguae But this Statute extended but to a narrow Compass to wit only where both parties were Merchants or Ministers of the Staple and in Pleas before the Maior of the Staple But afterwards in 28th Year of the same Kings Reign cap. 13. It was Enacted That in all manner of Enquests and Proofs which be to be taken or made amongst Aliens and Denizens be they Merchants or other as well before the Maior of the Staple as before any other Justices or Ministers although the King be party The one half of the Enquest or Proof shall be Denizens and the other half Aliens if so many Aliens and Foreigners be in the Town or place where such Enquest or Proof is to be taken that be not parties nor with the parties in Contracts Pleas or other Quarrels whereof such Enquest or Proof ought to be taken And if there be not so many Aliens then shall there be put in such Enquests or Proofs as many Aliens as shall be found in the same Towns or places which be not thereto parties nor with the parties as aforesaid is said and the Remnant of Denizens which be good men and not suspitious to the one party nor to the other So that this is the Statute which makes King the Law universal concerning the medietatem linguae for though the King be party yet the Alien may have this Tryal And it matters not whether the Moyety of Aliens be of the same Country as the Alien party to the Action is for he may be a Portugal and they Spaniards c. because the Stat. speaks generally of Aliens See Dyer 144. And the form of the Venire facias in this Venire facias per medietatem linguae Case is De vicenet c. Quorum una medietas sit de Indigenis altera medietas sit de alienigenis natis c. And the Sheriff ought to return 12 Aliens and 12 Denizens one by the other with addition which of them are Aliens and so they are to be sworn But if this Order be not observed it is holpen as a mis-return by the Statutes of 18 Eliz. Cro. 3. part 818. 841. So that Brooks says it is not proper to call it a Tryal per medietatem lâ—nguae 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 material of what sufficiency the Jurors are yet the form of the Venire facias shall not be altered but the Clause of Quorum 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 be all English for though the English may be supposed to favour themselves more than strangers yet when both parties are Aliens it will be presumed they favour both alike and so indifferent 21 H. 6. 4. but if the Plea be before the Maior of the Staple and both parties Alien Merchants of the Staple it shall be tryed by all Aliâ—ns Stamford's Pleas del Corone 159. A Scotchman is a Subject and shall not have this Tryal Egyptians are also excluded when tryed for Felony made by the Statute against them 1 Phil. Mar. cap. 4. 5 Eliz. cap. 20. Where an Alien is party yet if the All English Tryal be by all English it is not erroneous because it is at his peril if he will slip his time and not make use of the advantage which the Law giveth him when he should Dyer 28. The Alien ought to pray a Venire facâ—as When the Alien should pray a Venire facias per medietatem per medietatem linguae at the time of the awarding the Venire facias But if he doth it at any time before a general Venire facias be returned and filed the Court may grant him a Venire facias de novo Dyer 144. 21 H. 7. 32. though it hath been questioned But if he hath a general Venire facias he Tales cannot pray a Decem tales c. per medietatem linguae upon this because the Tales ought to persue the Venire facias 3 E. 4. 11 12. And so if the Venire facias be per medietatem linguae the Tales ought to be per medietatem Tales linguae 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 general 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 Ylaintiff 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 but if it be averred Where the Tryal of an Aliens cause shall be by English 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 Part English and part Aliens exhibited an Information against Barre and divers other Merchants some whereof were English and some Aliens After Issue the Aliens prayed a Tryal per mâ—dietat linguae But all the Iustices of England resolved that the Tryal should be by all English and likened it to the case of priviledge where one of the Defendants demands priviledge and the Court as to his Companion cannot hold Plea there he shall be ousted of his priviledge sic hic More 557. By the Statute of 8 H. 6. cap. 29. 29. Challenge Insufficiency or want of Fréehold is no cause of Challenge to Aliens who are impannelled with the English notwithstanding Stamford's Opinion Pl. Coron 160 for this Statute saith that the Stat. 2 H. 5. 3. shall extend only to Enquests betwixt Denizen and Denizen If the Defendant do not inform the Court When the Alien should pray a Venire facias per medietatem that he is an Alien upon awarding of the Venire facias and so yray a Venire facias
the Plaintiff was seized in his Demesn as of Fréehold and that afterwards the Rent was behind at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgment that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same manner it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue But in Assise of Rent it cannot be found to be upon Condition unless they also find the Deed of the Condition So of a Confirmation in Fee to Lessée for years Per Hale Ch. Just Guild-hall Hill 1671. A Special Verdict may be found as to Damagâ—s in an Action of the Case as the Case was there viz. Pro Quer ' and if so c. then such Damages if so c. then Damages such and he said he had known it so done in Debt and the Damages three ways Also in such case where the Enquest may General Verdict give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise find Estoppel Estoppels which cannot be pleaded as in the 2 d Report fol. 4. it well appears where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Deed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23. Eliz. and found the Tenor of the Déed in haec verba Noveriat universi c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Deed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Deed And the Reason of the Iudgment was That although the Obligèe in Note that a Deed may be plâ—aded to be delivered after the dare but nor before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. pleading cannot alledge the delivery before the date as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Deed yet the Jurors who are sworn ad veritatem dicâ—nd shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance be As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admitteth the Wast c. 9 H. 6. 66. and the Jury cannot find no Wast for that would be against the Record Estoppel within the same Record in which the Issue is joyned upon which the Jurors give their Verdict there they cannot find any thing against this which the parties have affirmed and admitted of Record although it be not true For the Court may give Iudgement upon a thing confessed by the parties and the Jurors are not to be charged with any such thing but only with things in which the parties vary Ib. li. 5. 30. So Estoppels which bind the Interest of the Land as the taking of a Lease of a mans own Laâ—d by Déed indented and the like Cro. 1. part 110. Lib. 4. 53. being specially found by the Iury the Court ought to judge according to the special matter for albeit Estoppels regularly must be pleaded and relyed upon by apt conclusion and the Iury is sworn ad veritatem dicend yet when they find veritatem facti they persue well their Oath and the Court ought to adjudge according to Law So may the Iury find a Warranty being given in Evidence though it be not pleaded because it bindeth the right unless it be in a Writ of Right Warranty not pleaded when the Mise is joyned upon the méer right 1 Inst 227. Verdicts ought to be such that the Court Uncertain Verdicts may go clearly to Indgment thereon and therefore Verdicts finding matter incertainly or ambiguously are insufficient and void and no Iudgment shall be given thereupon As if an Executor plead Plene Administravit and Issue is joyned thereon and the Jury find that the Defendant hath Goods within his hands to be administred but find not to what value this is an uncertainty and therefore an insufficient Verdict li. 9. 74. 1 Inst 227. It is the Office of the Jurors to shew the The Office of the Jury verity of the fact and leave the Iudgment of the Law to the Court. And therefore upon an Indictment of Murder quod felonice per cussit c. If the Iury find per cussit tantum yet the Verdict is good for the Iudges of the Court are to resolve upon â—he special matter whether it was felonice and so Murder or not li. 9. 69. And if the Court adjudge it Murder then the Jurors in the conclusion of their Verdict find the Felon guilty of the murther contained in the Indictment A Verdict that finds part of the Issue and Verdict finding part of the Issue finding nothing for the rest is insufficient for the whole because they have not tryed the whole Issue wherewith they are charged As if an Information of intrusion be brought More 406. against one for intruding into a Messuage and 100 Acres of Land upon the general Issue the Iury find against the Defendant for the Land but say nothing for the House this
course was so for the parties are demandable before the Jury and if the Plaintiff make default he shall be non-suited and if the Defendant make default the Jury shall be awarded by default whether they appear or not Dyer 265. Where an Inquest is 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. quod non est lex Det. 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 for which the Plaintiff took nothing by his When the Defendant may be condemned by default and when an Enquest must be taken upon the default 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 â—ide folly in le Plaintiff Bro. Ib. 5. But upon such 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 damages are incertain in Trespass Bro. Ib. 3. And Finch fo 409. hath well collected out of Brook That always 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 only as payment or that an Acquittance pleaded in Barr by the Defendant was made by Dures c. The Inquest shall be taken by default if the Defendant makes default But in the last recited Actions of Debt c. If the Issue be upon the Acquittance it self Release or other matter in writing the Plaintiff may pray Iudgment upon the Defendants default if he will but if he do not pray it the Jury shall be taken by default as in an Action of Trespass The Jury may give a Verdict without testimony Verdict without or against testimony or against testimony when they themselves have Conuzans of the Fact Plo. Com. 86. CAP. XIV How the Jury ought to demean themselves whil'st 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 spoils their Verdict For what the Court may fine them and where the Justices may carry them in Carts till they agree of their Verdict An Amercement Assered by the Jury THere is a Maxime and an old Custom Jurors ought not to eat or drink in the Law that the Jury 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 Indgment 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 fellows also at their own costs or at For by assent of the parties they may eat and drink Br. Jurors the indifferent costs of the parties if they so agrée or by the assent of the Justices may both eat or drink and if the 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 sée whether they will agrèe And if they will in no wise agrée the Iustices may take such order in the matter as shall séem to them by their discretion to stand with reason and conscience by awarding of a â—ew Inquest and by setting fine New Inquest when the Jury cannot agree upon them that they shall find in default or otherwise as they shall think beâ—â— by their discretion like as they may do if one of the Iury die before the Verdict c. D. aâ—â— Student 158. If the Iury after their Evidence given unto them at the Barr do at their own Charges eat or drink either before or after they Where if the Jury eat or drink it shall avoid the Verdict and where only fineable be agreed on their Verdict it is finable 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 avoid the Verdict But if it be given for the Defendant it shall not avoid it Et sic è converso But if after they be agréed on cheir Verdict they eat or drink at the charge of him for whom they do pass it shall not avoid the Verdict 1 Inst 228. To give the Iury money makes their Verdict void by two Iustices Leon. 1 part 18. If the Plaintiff after Evidence given and What delivered to the Jury after Evidence shall avoid their Verdict 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 Et 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 Ib. By the Law of England a Jury after How the Jury ought to be kept by the Bayliff 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 unless When they may eat and drink See Smith's Common-wealth 74. it be the Bayliff and with him only 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 or alter their privy Verdict Where there can be no privy Verdict and that which is given in Court shall stand But in Criminal cases of life or member the Jury can give no privy Verdict but they must give it openly in Court Neither can a Jury sworn and charged in Where the Jury cannot be discharged before Verdict The King cannot be nonsuit case of life or member be discharged by the Court or any other but they ought to give a Verdâ—ct And the King cannot be non-suit for he is in Iudgment of Law ever present in Court but a common person may be nonsuit And in Civil Actions the Justices upon cause may discharge the Jury Br. Enquest 68. 47. 39. c. But this is against Common practice and I have known that after a Iury of Life and Death have been sworn and charg'd with Prisoners Arraigned the Iudge having béen credibly Informed That it was a Iury pack'd to favour some Prisoner has discharged that Iury and made the Sheriff return another presently In Hillary Term Sexto H. 8. Rotulo 358. It was alledged in Arrest of the Verdict at the Nisi prius that the Jurors had eat and drunk And upon Examination it was found that they had first agreed and that returning to give their Verdict they saw Rede Chief Iustice in the way going to sée a fray and they followed him Et in veniendo viderunt cyplum inde biberunt And for this every one of them was fined 40 d. And the Plaintiff had Iudgment upon the Jurors fined Verdict Dyer 37. And Dyer 218. At the Nisi prius the Jury after their charge given returned and said That they were all agréed except one who had eat a Pear and drunk a draught of Ale Jurors at the Nisi prius fined in bank for eating Pears and drinking Ale for which he would not agrée And at the Request of the Plaintiff the Iury was sent back again and found the Issue for the Plaintiff And the matter aforesaid being examined by the Oath of the Iurors Seperatim and the Bayliff who kept them and found true the offender was committed and afterwards found Surety for his Fine Si c. And Fitzherbert the then Iustice of Assise gave him day in banco c. at which day a Fine of 20 s. was there assessed Et quoad Ball Curia avisare vult In Trespass by Mounson against West the Iury was charged and Evidence given and Iurors being retired into a House for to Fined for having Figgs and Pippins about them consider of their Evidence they remained there a long time without concluding any thing and the Officers of the Court who attended them seeing their delay searched the Iurors if they had any thing about them to eat upon which search it was found that some of them had Figgs and others Pippins for which the next day the matter was moved to the Court and the Iurors were examined upon Oath And two of them did confess that they had eaten Figgs before they had agréed of their Verdict and three other of them confessed that they had Pippins but did not eat of them and that they did it without the knowledge or will of any of the parties And afterwards the Court set a sine of 5 l. upon each of them which had eaten and upon the others which had not eaten 40 s. But upon great advice and consideration had and conference with the rest of the Iudges the Verdict was held to be good Notwithstanding the said misdemeanor Leon. 1. part 133. And sée the Book of Entries 251. The Fined for eating Raisins and Dates Iurors after they went from the Barr ad seipsos of their Verdict to advise Comederunt quasdam species scil Raisins Dates c. at their own Costs as well before as after they were agreed of their Verdict And the Iurors were committed to prison but their Verdict was good although the Verdict was given against the King In Ejectione firme it was found for the Finable for having sweet-meats c. about them though they do not eat them See Plo. Com. 519. One fined and imprisoned for having Sugar-Candy and Liquorish about him Defendant three of the Iurors had Sweet-meats in their Pockets and those thrée were for the Plaintiff until they were searched and the Sweet-meats found and then did agree with the other nine and gave Verdict for the Defendant It was the Opinion of the Iustices That whether they eat or not they were finable for having of the Sweet-meaâ—s with them for that is a very great misdemeanor Godbold 353. 40 Assise Placito 11. The Iustices said Jurors carted That if the Iurors will not agrée in their Verdict the Iustices may carry them in a Cart along with them till they are agréed The Iury were gone from the Barr to confer of their Verdict and one of the Witnesses before sworn on the Defendants part The same Evidence given to the Jury after they were gon from the Barr spoils the Verdict was called by the Iurors and he recited again his Evidence to them and after they gave their Verdict for the Defendant And complaint being made to the Iudge of the Assises of this misâ—emeanor he examined the Enquest who confessed all the matter and that the Evidence was the same in effect that was given before Et non alia nec diversa And this matter being returned by the Postea the Opinion of the Court was That the Verdict was not good and a Venire facias de novo was awarded Cro. last part 189. Trin. 1653. between Wells and Tayler Copies of a Bill Answer and Depositions were proved but not all read and delivered to the Iury who carried them with them from the Barr in a bundle which they layd by them and did not look on yet their Verdict at the Barr was set aside for this Cause and the Court would not regard their saying that they did not read them for they might say that to save themselves it being a fault to take any thing without the Courts knowledge If one of the parties say to the Iury after they are gone from the Barr You are weak If a party speak to them men it is as clear of my side as the Nose in a man's face This is new Evidence for his affirmation may much perswade the Iury and therefore shall quash the Verdict So if any thing be read to them which they ought not to have with theâ— as a book of Depositions some whereof were read in Evidence Pratt's Case 21 Jac. The Plaintiff delivered an Escrowle to a Escrowle delivered to a Juror before he was sworn Vitiates the Verdict Iuror impanelled before he was sworn who afterwards being sworn and gone with the Iury from the Barr to consider of the Verdict shewed the same Escrowle to his Companions who found for the Plaintiff The Minister who kept the Enquest
informed the Court hereof and the Iury being examined confessed the matter aforesaid upon which Iudgment was stayed for after the Iury are sworn they ought not to sée nor carry with them any other Evidence but what was delivered to them by the Court Afterwards the Plaintiff said That the Escrowle proved the same Evidence which was given to them at Barr by him wherefore it was not so bad as if it had béen new Evidence not given before Sed non allocatur 11 H. 4. 17. Pasche 38 Eliz. Inter Vicary Farthing Church-Book delivered to the Jury act of Court at the Nisi prius The Issue was about Non-age and two Church-Books were given in Evidence one whereof was delivered to the Iury in Court by the assent of parties and afterwards the other was delivered to the Iury out of the Court by the Solicitor of the Plaintiff without the assent of the Court and a Verdict for the Plaintiff and this was indorsed on the Postea The Question was whether this should make the Verdict void or no for the Iustices differed in opinion Popham and Gawdy that it should not Fenner and Clench that it should the Negative Iustices gave these Reasons That the Book was delivered in Evidence in the Court and so the other party might answer to it and that the Court had informed the Iury of the validity thereof how far they were to believe iâ— with many other Reasons But the Affirmative was urged because there might be some matter in this Book to induce them otherwise than was intended before and because it was delivered on his part for whom the Verdict passed without the Courts assent yet one Book scil Cro. last part 411. tells us Iudgment was afterwards given for the Plaintiff sée More 's Reports 452. The Books differ for Cro. makes Clinch give Consider the Reasons in the former cases his opinion for the Verdict But More brings him on the other side which I conceive is truest and for my part I know no reason why foisting of Evidence to the Iury without the Court should have any favour at all In the Case of Taylor and Webb Trin. 1653 B. R. Twisden moved to set aside a Verdict given at Barr because that after Evidence when the Writings were delivered to the Iury some Writings which were not sealed and therefore ought â—ot to be delivered to the Iury were delivered by a stranger to the Iury. Hales Counsel of the other side produces an Affidavit of the Foreman 's of the Iury that they made no use of them in giving their Verdict and that most of those Writings were read in Court in Evidence upon the Tryal and Hales said That if this should avoid the Verdict then that would be in the power of any Stranger unknown and against the mind of the parties to avoid any Verdict Roll. Ch Iust The Affidavit of the Iury ought not to be allowed to make good their own Verdict for now they are as it were parties and have offended and shall not be allowed by their own Oath to take off their offence and it is the Duty of the Iury to look what Writings they receive before they go from the Barr and if any such Paper be wrap'd up among other Papers delivered to them by the Court so soon as they have discovered it they should call in the Tip-staff who keeps them and deliver it to him and to testifie they made no use of it and he said it would be dangerous to give the least way to the delivering of any Writings to a Iury. And at another day Roll cited 11 H. 4. 18. the Plaintiff before the Tryal delivered a a breviaâ—e of his Evidence to the Iury which contained no more than was proved in Court yet by this the Verdict was avoided So Mich. 31 Eliz. C. B. Metcalfe and Dean After the Iury were gone from the Barr they sent for one of the Witnesses and re-examined him who gave the very same Evidence that he had before given in Court yet the Verdict was avoided and the reason of both is a fear and jealousie that other matters might be given c. 37 Eliz. Farthing's Case a Paper not under Seal which was given in Evidence was delivered to the Iury this did not avoid the Verdict because here can be no such fear and per Roll If any Writing though not given in Evidence be delivered to the Iury by the Court it shall not avoid the Verdict And in the principal Case the Verdict was avoided Hill 40 Eliz. Rot. 847. In Arrest of Iudgment after Verdict it was alledged Escrowle from one who was no party that a Iuror delivered to his Companions an Escrowle for Evidence to them which was not given in Evidence at the Tryal and adjudged no cause to Arrest Iudgment unless it had béen received from one of the parties which did not appear More 546. but otherwise if it had béen given by a party and the Iury had found for him In the Case of Duke and Veâ—tres Mich. 1656. B. R. tryed at Barr one Mr. Beverly of Suff. a Barrister was returned of the Iury who having béen at a Tryal of the same Cause above 20 years before in the Cheq and heard there great Evidence to make a Deed fraudulent which was now the Contest demanded of the Court whether he ought to inform the rest of the Iury privately of this or conceal it or declare it in open Court The Court ordered him to come into Court and deliver all his knowledge which he heard then proved which Evidence was not now given because the parties were dead and so he did being not sworn again but only upon the Oath taken as a Iuryman And certainly It is of dangerous Consequence to receive a Verdict against Evidence given on supposal that some of the Iury knew otherwise or on private Information given by one Iuryman to the rest where he can't be Cross-Examin'd and let such Iurors beware of Attaint but the best way is as before in open Court In a Writ of Error the first Error assigned was that Termino Trin. twelve Iurors and no more did appear This ex assensu partium was adjourned until Jury adjourned Crastino Animar on which day two others came in and were sworn being of the first Pannel The Court all clear of Opinion that this is no Error this being good enough they being all to be called again Leon. 3. part 38. If a Iuror depart after he is sworn Juror depart he shall be sined and imprisoned and by assent of parties another Iuror may be sworn Bro. Jurors 46 lib. 5. 40. If a man be non-suited after the Jury is ready to give their Verdict the Court may cause the Amercement of the Plaintiff to be presently affered by the Iurors li. 8. 39. CAP. XV. What Punishment the Law hath provided for Jurors offending as taking Reward to give their Verdict Of Embraceors Decies tantum Attaint several Fines on Jurors
that in an Action upon the Case far Asumpset the parties being at issue a demurrer was joyned upon the evidence and thereupon the Jury discharged and afterwards judgment was given for the Plaintiff and a Writ of Inquiry of damages awarded and damages found and Judgment thereupon where the Jurors which came to find the Issue although by the Demurrer they were discharged of the Issue yet ought to have assessed damages conditionally if judgment should be given for the Plaintiff And in proof thereof was cited Newis and Scholastica's Case in Plo. Com. fol. 408. and the old Books of Entries c. And it was said by the Court If these Precedents be good Law thâ—â— it may be inquired of by the same Jury conditionalâ—y But it may be as well inquired of by a Writ of Inquiry of damages when the Demurrer is determined And the most usual course is when there is a demurrer upon evidence to discharge the Jury without more inquiry But as My Lord Chief Baron Montague held at the Assises in Cambridgeshire 1682. it may be one way or other In the Assise by R. Newis and Scholastica his Wife against Lark and Hunt which was taken by default The Precedent in Plowd Com. as to this matter runs thus Recogn ' Assisae pred exacti venerunt qui ad veritatem de premissisdicend electi triati 8 â—â—rati fuerunt sup quo Willielmus Bendlows Serviens ad legem de consilio predictorum R. Scholasticae in manutentione Assisae pred coram Justic Dominae Reginae de Banco hic in evident Recognit Assisae pred dixit quod diu ante diem impetration is Assisae pred quidam H. Clark fuit seisitus â—c Et condidit testamentum ultimam voluntatem sua in scriptis inter alia unde pars inde in hiis Anglicis verbis sequitur videl Also this is the last Will and Testament of me the said Henry Clark for and concerning c. Et ulterius idem Serviens ad legem ex parte pred R. S. dedit in evident eisd Recognit quod c. Quorum pretextu idem jam Serviens ad legem exigit quod iidem Recogn Assisae pred Assisam pred de tenementis pred cum pertin ' in visu c. pro parte ipsorum R. S. triari comparere debeant c. Et veredictum suum dare debent quod pred W. Lark J. Hunt dictos R. S. de tenementis pred cum pertin ' in visu c. disseisiverant c. Et pred W. Lark J. H in propriis personis suis dic quod evidentiae allegationeâ— pred ex parte pred R. S. superius allegat minus sufficien in lege existunt ad manutenend Assisam pred ad quos ipsi necesse non habent nec per leg terrae tenentur respondere unde pro defectu sufficien evident in hac parte pet judicium quod juratores pred de veredicto suo in premissis dicend exonerentur c. Et quod pred R. N. S. ab Assisa sua pred habend precludantur c. Et pred R. S. dicunt quod ex quo ipsi sufficien materiam in manutentione Assisae pred in evident recognit pred ostend quam quidem materiam pred W. Lark J. Hunt non dedicunt nec ad eam aliqualit respond petunt judicium Et quod iidem Jurator inde exonerentur quod pred W. J. de Assisa illa convincantur c. Sup. quo dict est Recogn pred quod inquir quae dampna pred R. S. sustinuertam occasione disseisinae pred quam pro misis custagiis suis per ipsos circa sectam suam in hac parte apposit si conting judicium pro eisdem R. S. in placito pred sup evidentias pred reddi Qui quidem Recogn dicunt sup sacram suum quod si conting judicium in placito pred pro pred R. S. sup evidentias pred reddi iidem R. S. sustinuer dampna occasione disseisinae pred ad 13 s. 4 d. pro misis custagiis suis ad 20 s. Et quia Justitiarii hic se advisare volunt de sup premissis priuâ—quam judicium inde reddant dies datus est partibus predict c. Note several Exceptions were taken to the manner of giving the Evidence First for that the intire Will was not shewed but part and that this being the foundation of the Evidence the whole Will ought to have been shewed for there might be some oâ—her matter of substance as a Condition Limitation c. in the parts not shewed But all the Justices disallowed this Exception and said the party in any Title or Bar needs shew no more than what makes for him As in an Act of Parliament in which are divers branches 't is sufficient to shew that branch which serves ones purpose and not like the Case of a Fine or Recovery of 20 acres where I must shew the whole Record although I am concerned but in one acre because the Originial is intire and so is the Record grounded upon it See also Fulmerâ—ton and Stewards Case Plo. Com. 102. Another Exception was That the fine was not shewed under the Seal of the Court or the Great Seal but one part indented of the Chirograph was only shewn which the Jurors were not bound to believe because it wanted a Seal But all the Justices were against this and said the Jury might find the Fine of their own knowledge without the shewing of the parties or they might find it upon the Credit of any Witness that had seen it and the shewing the part indented is the usual evidence of a Fine Note a Fine indented and not exemplified under Seal c. shall not be delivered to the Jury 34 H. 6. 25. And they said because it is only the Inducement of the verity to the Jurors the party could not Demurr upon this for the effect of the matter is that therâ— is such a Fine which is amongst the Records And this is the substance of the matter and the part of the Chirograph is nothing but the Image of the verity and therefore suum coram Baronibus hic prestitum in premissis dicit quod c. here recite the Evidence Et pred Attorn Domini Regis pro eod Domino Rege dic quod evidentiae pred superius dat minus sufficien in lege existunt ad manutenend seu proband exit pred pro parte ipsius A. F. superius ad patriam junct unde ob insufficient earundem evident ac ex quo per evidentias illas non dedicitur forisfactura bonorum pred in informatione pred spec i em Attorn Domini Regis pro ipso Domino Rege petit judicium ac quod eadem bona remaneant Domino Regi forisfacta juxta formam statuti pred Et pred A. F. dic quod evidenciae pred superius ex parte ipsius A. F. dat
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
the administration purges his wrong and although he shall not abate the Writ by taking out Letters of administration yet he may plead this in Barr. Stiles Reports 338. In a Replevin the taking was supposed in R. The No evidence to be given against what is admitted upon the Record Defendant said that the place where is 40 acres parcel of the Mannor of R. which is his Freâ—hold and avowed for Damage seasant The Plaintiff said that the place where is parcel of the Mannor of R. in R. and conveyed title to himself in that Absque hoc that the Mannor of R. unde was the Freehold of the Defendant It was the opinion of the Justices that the Plaintiff is estopped to give evidence that the Defendant Note Leon 3. part 210. If the parties admit a thing per nient dedire the Jury is not bound by it but where upon the pleading a special matter is confessed the Jury shall be bound by it Impropriation had not any Mannor of R. for the words absque hoc and unde imply he had such a Mannor but he ought to have taken it by protestation that the Defendant had no such Mannor of R. in R. absque hoc that the 40 acres was the Freehold of the Defendant Dyer 183. Trespass concerning the Rectory of Norton Pinkney which belongs to Oriel Colledge in Oxford The Issue was if there was a Vicaridge indowed there or only a stipendiary Curat 1. All agreed that if a Vicaridge be erected and established if there was no Endowment de facto of the Vicaridge the Vicar could not claim any thing 2. There was shewed an Impropriation by the Licence of the Pope made in the time of E. 2 Dodderidge said that was not good Jones è contra And it will be perillous to such ancient impropriations if now the consent of the King must be shewed and at that time it was taken good by the assent of the Pope without the King Dod. denyed that the Pope without the King at that time could make an impropriation with the Ordinary and Patron But Crew agreed with Jones And in things of such antiquity omnia praesumuntur solempniter acta and said that so it was ruled in a case before And Jones said it was nothing to the Vicar for the Vicaridge may be endowed without the consent of the King and 't is not Mortmain Palmers Reports 427. Erasmus Copes Case against Bedford Where hors de son fee is pleaded a release of the Seigniory is good evidence 8 E. 2. Fol. Hors de son fee. 262. In debt for Rent upon a Lease for years the Issue being joyned if the Rent was paid or not the Defendant gave in evidence for part of the Rent That the Plaintiff was by covenant to repair the House and did it not and thereupon he expended the Rent Debt for rent in repairing the house and the question was if this evidence will maintain the Issue Gawdy conceived it did for the Law giveth this liberty to the Lessee to expend the Rent in reparations and recoup the Rent V. 12 H. 8. 1. Fitz. tit Bar. 242. 14 H. 4. 27. Fenner It is no evidence for if the Lessor will not repair it the Lessee may have his covenant against him Cleâ—ch seemed he might well expend the Rent in reparations but he ought to have pleaded it and cannot give it evidence upon the general Issue and thereupon they moved the Jury to find the special matter So that it seemed to the Justices that the Defendant had liberty to expend the Rent in the reparations they being to be done at the Plaintiffs cost but then that he ought to have pleaded this matter as it was done in almost the like case Fitz. tit Bar. 242. Yet why might he not give it in evidence upon the general Issue for if the Law allows this to amount to a payment of the Rent then the Defendant own nothing which maintains nil debet and I think the other book of 14 H. 4. 27. rejects this sort of special plea upon this reason that the Plea amounted to the general Issue But there indeed the Rent was pleaded to be laid out at the Plaintiffs command here only by authority in â—aw I should be glad if any one would reconcile those two Books better I know there is another reason in the Book and assigned by Rolls in his Abridgment of the Case why the Plea was rejected viz. that the duty was acknowledged by the Plea and therefore the matter of the plea not good without shewing a Deed of it but I should have been better pleased with him if he had assigned the other reason viz. that it amounted to the general Issue Which made Cheyne that he durst not joyn in demurrer For 't is not pretended in either Case that the Deed ordered the Rent to be laid out in the repâ—irs And in that Case in F. where there was no express order of the Plaintiff it may be the Judges allowed the special matter to be pleaded because the Jury should not be intrusted with the Law upon the general Issue which may be said for the special pleading this matter in our Case although it may amount to the general Issue But as to the residue the Defendant shewed he paid Reparations Vide the Cases of Recouper lib. 5. 30. it to others by the Plaintiffs order which was held clearly good for what is paid by the Lessors appointment is a payment to himself Cro. Eliz. 223. Taylor against Beal vide Rolls tit Debt 605. 34 H. 6. 17. Bro. Debt 27. Where a man is Estopped in pleading to speak Estoppel against his own deed yet he shall not in evidence As in Isehams Case against Morris Cro. 4 Car. 109. upon evidence at Barr It was held by all the Justices of the Common Pleas That where one makes a Lease for years of Land by Indenture and hath nothing in the Land and afterwards purchaseth the Land and aliens it although it be a good Lease for years by Estoppel against him and his Allence by way of pleading and shall bind them yet it shall not bind the Jury but they may find the truth and if they find the truth the Court shall adjudge it to be a void Lease vide tamen Rawlin's Case lib. 4. 53. Sutâ—on and Dickens Case Leon. 1. part fol. 206. 1 Inst 47. 227. Edwards against Omellhallum Marsh 64. James and Landons Case Cro. 27. Eliz. fol. 36. Leon. 3. part 210. Bulstr 2. part 41. Note That if a Demurrer be made upon the evidence the evidence ought to be entred verbatim Keiâ—way 77. Where in account against one generally as Bayliff the evidence that charged him specially by reason of his Tenure to collect c. was upon Demurrer held not good Matter of Surplusage shewed in evidence shall not Surplusage hurt Keilway 166. Issue was upon a devise to A. Harding and her Will. Heirs modo forma and the
Will given in evidence was A. H. shall have all my inheritance if the Law will allow it and held sufficient to maintain the Issue Hob. 2. so upon Ne unques receiver per maines J. S. a delivery from J. D. by the appointment of J. S. Account to the Plaintiffs use is good evidence Hob. 36. Issue whether A. was taken by a Capias ad sat at the suit of B. and evidence of a taking at the suit of C. Arrest and then a delivery of a Capias ad sat at the suit of B. to the Sheriff is good Hob. 55. But a taking upon a Cap. utlagat or cap. pro fine with a prayer of the Plaintiff that he may remain for his satisfaction is not ibid. In a Consimili casu where the demandant counts Consimili casu Substance of an alienation in Fee yet the Defendant shall make his Traverse to the alienation modo forma and then the demandant shall maintain the Issue by an Alienation in Fee or in Taile or for Life for they are all alike material Hob. 105. In an Assise the Defendant pleaded the Deed of Warranty the Brother of the Plaintiff with Warranty A Deed of the Father with Warranty will not maintain the Defendants Issue Hob. 55. In Bennets Case Stiles 223. In a Tryal at Barr It was Juror said by the Court that if either of the parties to a Tryal desire that a Juror may give evidence of some thing of his own knowledge to the rest of the Jurors that the Court will examine him openly in Court upon his Oath and he ought not to be examined in private by his Companions And it was also said that if a Robbery be done in Crepusculo the Hundred shall Robbery not be charged but if it be done by clear day light whether it be before Sun rise or after Sun set it is all one and the Hundred shall be charged In an action of the Case for digging a hole in the Demurrer upon evidence High-way into which his Gelding fell c. upon Not Guilty this evidence was given that the Plaintiffs servant was driving the Plaintiffs Gelding in the way and that by reason of the hole he fell c. Upon which it was demurred because it was not proved that there was such a High-way nor who Action sur Case digged the hole Roll Chief Justice This evidence is no more than a special Verdict and it ought to find the way and the hole digged and all the matter conducing to the Issue and therefore it is not good as it is and a venire de novo was awarded Stiles 335. In Trover and conversion there was a Demurrer Demurrer upon evidence joyned upon the evidence and thereupon the Court directed the Jury to find Damages for the Plaintiff if upon the argument of the Demurrer the Law should be adjudged for him and then the parties desired the Jury might be discharged and referred the matter to the Judges to determine the Law upon the evidence In this Case Roll Justice took this difference If a record be pleaded it must be sub pede sigilli or else the Judges cannot judge of it But it may be given in evidence and the Jury may find Record it though it be not sub pede sigilli And the Court advised the parties for their own expedition to let a venire facias de novo be Issued out and to wave the Demurrer upon the evidence because it was not good nor could not bring the matter in question before them that they might determine it for one party saith there is a Writ and the other saith there is not a Writ which is bare matter of fact for the Jury to determine and not for the Court and the Demurrer ought to have been whether the Writ be good or bad and should have admitted that there was a Writ tiel quel and then had the whole matter come legally before the Court to wit whether the evidence given to the Jury be sufficient for them to find a verdict for the Plantiff upon the Issue joyned or not-For the matter of fact ought to be agreed in a Demurrer to an evidence otherwise the Court cannot proceed upon the Demurrer And he said if a Deed be pleaded the party must shew it in Court but in Deed. evidence 't is not absolutely necessary to shew it if it can otherwise be proved to the Jury and so it is of a Record and concluded that the Demurrer was Record not good and that there ought to be a venire facias de novo to try the matter again Bacon Justice said there ought not to be a venire facias de novo but that judgment ought to be given against one party to wit the Defendant for ill joyning in the Demurrer to the intent the party that is not in fault may be dismissed and the parties here have waved the Tryal per pays by joyning in Demurrer But Roll answered that no judgment at all could be given for both parties be in fault one by tendring the Demurrer and the other by joyning in it and the Defendant might have chosen whether he would have joyned or not but might have prayed the judgment of the Court whether he ought to join The Court advised to search Precedents for a venire facias de novo after a Demurrer upon an evidence and if there be any they hold that the same Jury ought to come again and not another Roll said if a special Verdict be found insufficient a new venire facias ought to Issue and he saw no difference betwixt that and this Case Wright and Pindars Case Stiles 22. and 34. In Debt for Servants Wages viz. 20 s. or a robe Debt yearly The Defendant may plead payment of the robe and shall not be put to the general Issue Servants wages where the payment is of another thing than money but of money he must plead nil deb and give the payment in evidence And the Defendant may plead that the Plaintiff departed out of his service and shall not be forced to the general Issue 9 E. 4. 36. Though surely that may be given in evidence upon nil deb for the Plaintiff must prove he served so indebitatus Assumpsit non Assumpsit upon the promise in Law an extinguishment by taking a Bond Extinguishment being a matter of a higher nature for the Debt may be given in evidence And Note if an Infant buy Goods and afterwards give a Bond and this Bond be avoided by Infancy Yet it seems the Contract shall not be revived Sed dubitatur Rolls tit Extinguishment 604. for now this Bond which was voidable is become void and a void thing shall not have such effect But a personal action once suspended is gone for ever But acceptance of a Bond shall not extinguish Rent nor arrerages of an account before an Auditor of Record because these are of a