So you sée that where a thing is alledged to be done at the Capitall House * Rectoriae of D. there the Venire shall be of D. For that is intended to be all one with the Vill. but where it is at the Castle of Hartford c. Castell There the Venire facias shall not be de vicineto de Hartford but de Castro de Hartford for Castrum Hartford is intended a distinct place by it self and so of all Castles Cro. 2. part 239. More 862. Where the Issue is not parcel of the Mannor Mannor of D. or the Custom of a Mannor is in question the Venire ought to be of the Mannor Hob. 284. Cro. 2. part 327. If the Mannor be laid to be in a Vill. the Venire facias may be of the Mannor in the Vill. as de vicineto manerii de Stansted Hall in Windham Cro. 2. part 405. More 851. Arundels Case li. 6. 14. In the Common Bench in Trespas for taking away a Bag of Pepper the Defendant justified as Servant of the Maior and Commonalty of London for Wharfage due to them by the Custom of London which the Plaintiff refused to pay The Plaintiff replyed that the Custom did not extend to him London because he was a Frée-man of the City and ought not to pay Wharfage to which the Defendant re-ioyned that the Custom extended to him as well as to strangers upon which Issue was joyned Resolved 1. That the Issue should be tryed per Pais not by the mouth of the Recorder Recorder because he certifies nothing but what the Maior and Aldermen direct who are concerned in the cause 2. That the Venire facias should not be awarded to the Sheriffs of London nor Middlesex because the Tryals there are by Fréemen Where the tryal shall be by the County next adjoyning But it shall be to the County next adjoyning viz. to the Sheriff of Surry So where any City is concerned the venire facias shall not be directed to the Officers of the City but to the County next adjoyning Hob. 85. Stiles 137. More 871. Where a Man lends a Horse to another to till his Land Where a man lends his horse in one place and he is spoiled in another Visne where he is spoiled and the Horse dies with excessive Labour the Visne shall be from the place where the excessive labour was and not where the delivery was More 887. vide Hob. 188. Promise in one place and breach in another Visne guided by the Issue Where a promise is laid in oâ—â— place and the breach in another t 〈◊〉 Visne must be according to the evâ—â— of the Issue whether it be takeâ— upon the promise or breach Bâ—â— if no place be alledged for thâ— breach Issue be taken upon it tâ—â— Visne must be from the place of the promise which shall be intendeâ— right where the contrary appeares not sée Godbolt 274. Easter 39 Eliz. In the Kings Bench Trespass Assault and Battery 〈◊〉 Wilts continuing the Assault iâ— Middlesex and adjudged that the Jurors shall come out of both Counties More 538. Misnomer The name of a Mannor or Land or other locall thing shall be tryed where it lies because it is locall but the name or aâ—dition of a person shall be tryed where the Action is brought because this is transitory Bro. ut Visne 7. lib. 6. 65. In Covenant upon an Indenture of Demise of the Rectory of Stoken Church in the County of Oxford That the Defendant had good Power and Authority to demise Where the Land lies The Indenâ—â—re was alledged to be made at London and the Venire facias was awarded to the Sheriff of Oxon and this being assigned for Error Iudgment was affirmed and this adjudged to be good More 710. because the Rectory was in Com. Oxon. Vide pag. 45. Where the Parish Parish is named by way of denotation or explanation of the place where the Fact is alledged to be done as at the Parish-Church of Hauk-hucknol there the Venire facias shall be of the Town not of the Parish Bulstr 1 part 60. 61. If the Fact be alledged in King-street Town in the Parish of St. Margarâ—â— in Com. Mid. You have already heard that the Visne shall be from Kingstreet because it is intended to be a Town but where it is alledged to be done at the Grays-Inn Hall or Lincolns-Inn-Hall c. Holborn the Visne shall be froâ— Holborn which is the Town iâ— as Yelverton said Inns of Court it was never heaâ—â— of any Venire facias to be had of 〈◊〉 of the Inns of Court Bulstr 2. pâ—â— 120. Not from house or hall especially of the Hall becaâ—â—â— it cannot be of a House much leâ—â— of a Hall In Ejectment upon a Demisâ—â— made at Denham of Lands in parâ—chia de Denham predîct The Visne may be of Denham or of the Pariâ—â— of Denham because Denham Parochia de Denham predict are all 〈◊〉 by intendment of Law Bulstr 2. part 209. More 709. Hob. 6. Bâ—â— when it appears by the Record oâ— is intended that the Parish Parish is moâ—â— spacious than the Town as the Case in More 837. where in Ejectment the Lease was alledged to be made at Bredon of Tythes in W. and W. Hamlets within the Parish of Bredon there the Venire facias unâ—â— not be of Bredon but of the Parish because it appeares that the Parish extends further than the Town Hob. 326. Where an Action of Debt for Rent For Rent where the Land lies and when not is brought upon the privity of the Contract by the Lessor as against the Lessee or his Executors for Arrearages due in the life-time of the Testator the Visne may be laid in any place but where the Action is brought upon the privity in Estate as against the Assignee of the Lessee or his Executors for Rent due after the Testators death the Visne must be where the Lands lie Lach misprinted 197. li. 3. 24. Walkers Case Debt for rent of Land in another County in Debt upon a Lease of Land in another County Nihil debet shall be tryed where the Action is brought Br. tit Visne 119. Vide pag. 93. In Replevin brought by Strede against Hartly for taking a Distress at Baildon the Defendant made Conusance as Bayliff because that Iocus in quo c. was holden of W. H. as of his Mannor of Baildon and upon Issue hors de son fee the Venire facias was de vicineto de Baildon and upon motion that the Venire facias ought to have béen as well from the Mannor as the Town The Court adjudged it to be well enough for that the Court shall not intend the Mannor Mannor was larger than the Town because it doth not appear so to be though possibly it might as like the Case of Town and Parish Hob. 305. 326. If the Sheriff return that there are no Fréeholders of that
Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court cannot refuse a Special Verdict The Court cannot refuse it if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned A special Verd ct may be found upon any Issue as upon an eisque hoc c. whether the Iury could finde a Special Verdict upon a special point in Issue or no as they might upon the generall Issue But this question hath béen fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Verdict and finde the matter at large en chescun issue en le monde so that the matteâ— found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions reall personall and mixt and upon all Issues joyned generall or speciall the Iury might finde the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not onely in Cases betwéen party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmitive of the Common Law And as this special Verdict is the safest for the Iury A Free-hold upon Condition without Deed may be sound by Verdict though it cannot be pleaded 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366. 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concernes a Fréehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12. men taken at large in an Assize of Novel disseisin or in any other Action where the Iustice will take the Verdict of 12. Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for terme of life without Déed upon Condition to tender to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessée is seised as of Fréehold and after the Rent is behinde by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Disseisin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for terme of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behinde at any such Feast at which it ought to be paid then it should be lawfull for the Lessor to enter c. By force of which Lease the Plaintiff was seized in his Demesne as of Frée-hold and that afterwards the Rent was behinde at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgement that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same mannor it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue Also in such case Generall Verdict where the Enquest may give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise finde Estoppel Estoppels which cannot be pleaded as in the 2d Report fol. 4. it well appeares where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Déed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23 Eliz. and found the Tenor of the Déed in haec verba Noverint univeâ—si c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Déed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Déed And the Reason of the Iudgement was That although the Obligée in pleading cannot alledge the delivery before the date Note that a Deed may be pleaded to be delivered after the date but not before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. â— as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Déed yet the Jurors who are sworn ad veritatem dicend shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admâ—â—teth the Wast c.
have the better and more certain knowledge of the fact And if the fact be alledged in quadam platea vocat Kingstreet in parochia sanctae Margaretae in Com. Midd. In this Case the Visne cannot come out of Platea Parish because it is neither Town Parish Hamlet nor place out of the Neighbour-hood whereof a Jury may come by Law but in this Case it shall not come out of Westminst but out of the Parish of St. Margaret because that is the most certain But therein also it is to be noted that if it had béen alledged in Kingstreet in the Parish of St. Margaret in the County of Middlesex then should it have came out of Kingstreet for then should Kingstreet have béen estéemed in Law a Town For whensoever a place is alledged generally in pleading without some addition to declare the contrary as in this Case it is it shall be taken for a Town Town And albeit parochia Parochia generally alledgeâ— is a place incertain and and may as we sée by experieâ—ce include divers Towns yet if a matter be alledged in parochia it shall be intended in Law that it containeth no more Towns than one unless the party do shew the contrary More 55â— But when a Parish is alledged within a City there without question the Visne shall come out of the Parish for that is more certain than the City If a Trespass be alledged in D. and nul tiel ville is pleaded the Jury shall come de Corpore Comitatus De Corpora Comitatus But if it be alledged in S. D. and nul tiel ville de D. is pleaded The Jury shall come out de vicineto de S. For that is the more certain so if a matter be alledgd within a Mannor Manner the Jury shall come de vicineto Manerii But if the Mannor be alledged within a Town it shall come out of the Town because that is most certain for the Mannor may extend into divers Towns And all these points were resolved by all the Judges of England upon Conference betwéen them in the Case of John Arundell Esq indicted for the death of William Parker De Corpore Com. Where there may be a speciall Visne the Tryal shall never be de Corpore Comitatus Leon. 1 part 109. In a reall Action where the Demandant demands Land in one County Heir tryed where the Land lies where not as Heir to his Father and alledges his Birth in another County if it be denyed that he is Heir it shall not be tryed where the Birth is alledged but where the Land lyeth For there the Law presumes it shall be best known who is Heir But if the Defendant make himself Heir to a Woman for that is the surer and more certain side and the Mother is certain when perhaps the Father is incertain and therefore there it shall be tryed where the Birth is alledged Cro. 3. part 818. Cro. 2. part 303. because they have more certain Conusance then where the Land lyeth And so it is where Bastardy Bastardy is alledged the Tryal shall be in like Case Mutatis Mutandis If the man plead the Kings Letters Patents Non concessit where the Land lies and the other party plead non concessit it shall not be tryed where the Letters bear date for they cannot be denyed but where the Land lyeth Every Tryal must come out of the Neighbour-hood of a Castle Mannor Town or Hamlet Visne or place known out of a Castle Mannor Town or Hamlet as some Forrests and the like as before Every Plea concerning the person Plaintiff Where the Writ is brought at Common-Law c. shall be tryed where the Writ is brought When the matter alledged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common-Law Matters done beyond Sea may be tryed in England and therefore a Bond made beyond Sea Matters done beyond Sea how tryable in England may be alleadged to be made in any place in England if it beat date in no place But if there be a place as at Burdeaux in France then it shall be alleadged to be made in quodam loco vocat Burdeaux in France in Islington in the County of Middlesex and from thence shall come the Jury 1 Inst 261. Lach 4. and 5. So if the Tenant plead that the Demandant is an Alien Alien born under the Obedience of the French King and out of the Legiance of the King of England the Demandant may reply that he was born at such a place in England within the Kings Legiance and hereupon a Jury of 12. men shall be charged and if they have sufficient Evidence that he was born in France or in any other place out of the Realm then shall they finde that he was born out of the Kings Allegiance And if they have sufficient Evidence that he was born in England or Ireland or Jernsey or Jersey or elsewhere within the Kings Obedience they shall finde that he was born within the Kings Legiance And this hath ever béen the pleading and manner of Tryal in that Case So of other things done beyond Sea Things done beyond Sea the adverse party may alledge them to be done at such a place in England from whence the Iury shall come and in a Speciall Verdict Lib. 7.26 they may finde the things done beyond Sea Ib. lib. 7.26 So when part of the act is done in England and part out of the Realm Part without the Realm and part within that part that is to be performed out of the Realm if Issue be taken thereupon shall be tryed here by 12. men and they shall come out of the place where the Writ or Action is brought Ib. lib. 6.48 Error Full age tryed where the Land lies for that Iudgment was given by default against the Defendant being an Infant Issue was taken that he was of full age And Godfrey moved whether the Tryal should be in Norfolk where the Land was or in Middlesex where the Action was brought And the Court held that it should be tryed in the County where the Land lay and Tanfield said It was so adjudged in the Kings Bench betwéen Throgmotton and Burfind Cro. 3. part 818. If the Venue arise in two Counties the Iury upon 2. Venire facias shall come from both This is called a Joynder of Counties Finch 410. 6. out of one County and 6. from the other Cro 3. part 646. but by consent of parties entred upon Record it may be by 5. out of one and 7. from the other Jury out of two Counties as appears Cro. 3. part 471. where in Replevin the Defendant avows for damage fesant The Plaintiff by his Replication claims common by prescription in loco quo c. being Broadway in the County of Worcester appurtenant to his Mannor of D. in the County of Gloucester and Issue
Visne Visne next adjoyning in what Cases or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where the men are priviledged from serving on Juries out of that place as the Isle of Ely c. the Plaintiff may pray a Venire facias of the Visne next adjoyning and if the Visne be in Wales Wales ou bâ—iefe le Royne Court the Venire facias shall be directed to the Sheriff of the next English County to cause the Jury to come De propinquiori Visne of his County to the Visne in Wales adjoyning Fitz. Abridg. tit Visne 8. Jurisdict 24. If the Visne is in some part misawarded Visne misawarded in part or sued out of more places or fewer places than it ought to be so as some place be right named this is ayded by the Statute of Jeofailes which hath ended the differences in many Cases reported in our Books concerning this point wherefore I purposely omit them Error Infamy where the Land lies for that the Iuâ—gment was given by default against the Defendant being an Infant upon Issue that he was of full age adjudged that the Tryal should be in Norfolk where the Land was and not in Middlesex where the Action was brought Cro. 3. part 818. If the Visne cometh from a wrong place May be out of a wrong place by Consent yet if it be per assensum partium and so entred of Record it shall stand for Omnis Consensus tollit errorem 1 Inst 125. CAP. IX Challenges YOu have already séen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges And fâ—r this I shall present you with my Lord Cooks Collection 1 Inst 156. The rather because he hath taken more pains in the gathering and methodizing this Learning then any other one point whatsoever And I know no Reason wherefore I may not as well use his method for the perfection of this Treatise as he hath used other mens method and matter especially Perkins whom he seldom cites for the perfection of hiâ— Iudgment hath the preheminence of Invention and the Law hates nothing more then Innovation wherefore I shall follow his method in the description of a Challenge omitting the Book Cases and Authorities cited by him Challenge Challenge is a word common as well to the English as to the French and sometimes signifieth to claim and the Latine word is vendicate sometime in respect of revenge to challenge into the field and then it is called in Latine vindicare or provocare Sometime in respect of partiality or insufficiency to challenge in Court persons returned on a Jury And séeing there is no proper Latin word to signifie this particular kind of Challenge they have framed a word anciently written Chalumniare and Columpniare and Calumpniare and now written Calumniare and hath no affinity with the verbe Calumnior or Calumnia which is derived of that for that is of a quite other sense signifying a false accuser and in that sense Bracton useth Calumniator Calumniator to be a false accuser but it is derived of the old word Caloir or Chaloir which in one signification is to care for or foresée And for that to challenge Jurors is the mean to care for or foresée that an indifferent tryal be had it is called Calumniare to challenge that is to except against them that are returned to be Jurors and this is his proper signification But sometimes a Sommons Sommonitio is said to be Calumniata and a Count to be challenged but this is improperly And forasmuch as mens lives Fames Lands and Goods are to be tryed by Jurors it is most necessary that they be Omni exceptione majo es and therefore I will handle this matter the more largely Challenge is twofold A Challenge to Jurors is twofold either to the Array or to the Polls to the array of the principall Pannell To the Array and to the array of the Tales And herein you shall understand that the Jurors names are ranked in the Pannel one under another which order or ranking the Jury is called the Array and the Verbe to array the Jury and so we say in common spéech Battail array Array for the order of the battail And this array we call Arraiamentum and to make the array Arrairare derived of the French word Arroier so as to challenge the array of the Pannel is at once to challenge or except against all the persons so arrayed or impannelled in respect of the partiality or default of the Sheriff Coroner or other Officer that made the Return And it is to be known Principall Challenges that there is a principal cause of challenge to the Array and a challenge to the favour principall in respect of partiality as first if the Sheriff or other Officers be of kindred or affinity to the Plaintiff or Defendant if the affinity continue Secondly If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole array shall be quashed So it is if the Sheriff return any one that he be more favourable to the one than to the other all the array shall be quashed Thirdly if the Plaintiff or Defendant have an Action of Battery against the Sheriff or the Sheriff against either party this is a good cause of challenge So if the Plaintiff or Defendant have an action of debt against the Sheriff but otherwise it is if the Sheriff have an action of debt against either party or if the Sheriff have parcel of the Land depending upon the same Title or if the Sheriff or his Bayliff which returned the Jury be under the distress of either party or if the Sheriff or his Bayliff be either of Counsel Atturney Officer in fée or of Robes or servant of either party Gossip or Arbitrator in the same matter and treated thereof And where a subject may challenge the array for unindifferency there the King being a party may also challenge for the fame cause as for Kindred or that he hath part of the Land or the like and where the array shall be challenged against the King you shall read in our Books By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a Péer of the Realm Where there must be a Knight returned of the Jury or Lord of Parliament be demandant or Plaintiff Tenant or Defendant there must a Knight be returned of his Iury be he Lord Spiritual or Temporal or else the array may be quashed but if he be returned although he appear not yet the Iury may be taken
such cases Trespass another day If the trespass were in truth done the 4th of May and the Plaintiff alledgeth the same to be done the â—th of May or the first of May when no trespas was done yet if upon evidence it falleth out that the trespass was done before the Action brought it sufficeth 1 Inst 283. 'T is dangerous to permit Evidence to a Iury by Witnesses that there was such a Déed Deed. which they have séen or read or prove the Déed by a Copy because the Déed may be upon Condition limitation or power of Revocation and if this should be permitted the whole Reason of the Common Law in shewing Déeds to the Court would be subverted for the Déed might be imperfect and void which the Witnesses could not perceive yet in cases of extremity as where the Déed was burned or lost by some other notorious accident the Iudges may at their discretion allow them to be proved by Witnesses li. 10. 92. In Case against an Executor Executor whereas the Testator was indebted to the Plaintiff the Executor promised to pay the debt in consideration the Plaintiff would forbear to sue him the Executor may give in evidence upon Non assumpsit that there was no debt or that he had no assets tempore promissionis for then there would be no Consideration li. 9. 94. William Banes Case Evidence Evidence shall never be pleaded but the matter of fact shall be pleaded and if it be denied the evidence shall be given to the Iury not to the Court lib. 9. 9. Evidence that the Wife of every Copy-holder shall have the Land durante viduitate will not maintain the Issue that the Custom of a Mannor is that she shall have the Land during her life after her Husbands death because though durante viduitate imports an Estate for life Estate for life yet an Estate durante vita is more large beneficiall li. 4. 30. What may be given in Evidence Things done before the memory of man in another County or in another Kingdom may be given in Evidence to a Iury as Assets in another County c. More 47. Sée li. 4. 22. 9. 27. 28. 34. li. 6. 46 47. Vpon Issue payment Payment at the day payment before or after the day is no Evidence More 47. but upon Nil debet it is good Evidence because it proves the Issue Vpon Issue Assets or no Assets or seised or not seised if one give a Feoffment c. in Evidence Covin Covin may be given in Evidence by the other but not if the Issue be infeoffed or not infeoffed for it is a Feoffment â—iel quel though made by Covin li. 5. 60. Hob. 72. Doomesdâ—ybook The Book of Doomesday brought in Court is good Evidence to prove the Land to be ancient Demesne Hob. 188. In Attaint Attaint the Plaintiff shall not give more evidence nor examine more Witnesses than was before but the Defendant may Dyer 212. Copies of the Court-Rolls Court-Rolls for Copy-holders are the onely evidence for Copy-holders for as Littleton Sect. 75. tells you They are called Tenants by Copy of Court-Roll because they haue no other Evidence concerning their Tenements but only the Copies of Court-Rolls But Coke explains the Text and sayes This is to be understood of Evidences of Alienation for a Release of a right by Déed A Copy-holder that cometh in by way of admittance may have and that is sufficient to extinguish the right of the Copy-holder which he that maketh the Release had In Actions upon the Case trespass battery or false im risonment against any Iustice of Peace Maior or Bayliff of City or Town Corporate Headborough Portreve Special Evidence upon the generall Issue by whom Constable Tythingman Collector of Subsidy or Fiftéen in any of his Majesties Courts at Westminst or elsewhere concerning any thing done by any of them by reason of any of their Offices aforesaid and all other in their ayd or assistance or by their Commandment c. They may plead the generall Issue anâ— give the speciall matter of their excuse or justification in Evidence 7 Jac. cap. 5. Generall Acts of Parliament may be given in Evidence Statutes and néed not be pleaded and so may general Pardons given by Parliament if t ey be without Exceptions But commonly advantage of the Act is given by the Act it self to the offender Pardons without pleading it as by the late most truly so called generall act of Indempnity every person thereby pardoned may plâ—ad the generall Issue and give the Act in evidence for his discharge which are generall and which particular Statutes see lib. 4. 76. Vpon not guilty in Trover Trover the Defendant may give in Evidence that the goods were pawned to him for 10 l. That he distrained them for Rent or damage feasant That as Sheriff he levied them upon Execution or that he took them as Tythes severed Cro. 1 part 157. 3 part 435. Hob. 187. If there be two Batteries between Plaintiff and Defendant If there be two Trespasses and the Defendant pleads a Justification if the Plaintiff replies de injuria sua propria c. he cannot give in Evidence a Trespass at another time But he should have replyed that at another time in the same day of his Count the Defendant did the other Trespass c. to which the Defendant may plead another Justification but the Plaintiff cannot then plead a Trespass at another time but must conclude Sans tiel cause c. at divers times the Plaintiff is bound to prove the battery made the same day in the Declaration and shall not be admitted to give another day in evidence as the case may be As in Battery the Defendant pleaded son assault Demesne and the Plaintiff replyed de injuria sua propria absque tali sua and in evidence the Defendant maintained that the Plaintiff beat him the day mentioned in the Declaration and in the same place which the Plaintiff perceiving he gave in evidence that the battery was made another day and place to which the Defendant demurred upon the difference aforesaid Brownlow 1 part 233. 19 H. 6. 47. But upon not guilty it is otherwise though there be never so many batteries betwéen the parties Littleton Sect. 485. Prohibition for suing for Tythes in Bocking Paâ—k in Essex and furmised that the Lands were parcel of the possessions of the Pryory of Christs Church in Canterbury and that the said Pryor his Predecessors had held it discharged of Tythes tempore dissolutionis and pleaded the Statute of 31 H. 8. A non Decimando The Defendant pleads that the Pryor and his Predecessors did not hold them discharged and upon Issue joyned thereon the Evidence was that the Pryor or his Predecessors time out of minde c. never paid Tythes but no cause was shewn In nil debet upon the Statute for tyâ—hes a Lay person cannot give
other or of both and then he is called an Ambidexter Ambidexter any reward to give his Verdict c. And it may be brought against all the Iurors and Embraceors So F. N. Br. saith But for my part I think he is mistaken for the Statute mentioneth nothing of his taking money and in my opinion the case of 37 H. 6. 13. is full against hiâ— although they take severall sums of money and although the Jury give no Verdict or a true Verdict But it doth not lie against an Embraceor if he taketh no money and imbraces or taketh money and doth not embrace Sée Bro. Tit. Decies tantum 13. and F.N. Br. 171. An Imbraceor Imbraceor is he that procures the Jurors in the Country to take gain or profit or comes to the Barr with the party and speaks in the matter or stands there to survey the Jury c. or to â—ut them in fear or solicits them to find on the one side or other and this Fellow cloaks his Embracery under pretence of labouring the Jurors to appear and to do their Conscience And thus the â—tturneys in the Country often take upon them to do Attorneys ill practice and many times put in a word or two for their Clyents which practice deserves the most severe punishment next to their getting the Sheriff to return such and such in the Jury which they having béen Vnder-Sheriffs themselves and so agrée with one another are most expert at But Counsellors Counsellors at Law may plead for their money at the Barr But they must not labour the Jury privately and if they take money for tâ—is they are Imbraceors F. N. 6. 171. So much doth the Law hate Fined for taking money after their Verdict that Jurors should privately take money for their Verdict That certain Jurors were fined for taking money after their Verdict though there was no preingagement for it 39 Assise p. 19. A Juror was challenged and six other Iurors were â—â—orn to try the Challenge who found him indifferent Jury fined for departing when he was challenged and thereupon the Iury was demanded but did not appear for which default he was fined the value of his Lands for a year and the other Iurors inquired of the value c. although the other party then would have challenged him when he was demanded so that he might have béen treit But the Court would not admit this because then the King would have lost his Fine 36 H. 6. 27. Juror adjourned upon pain If a Iuror appear and is adjoyned upon pain and makes default in this Case because he shall be fined to the value of his Land per annum this shall be inquired by his Companions of the Iury because the Court knowes not the value of his Land li. 8. 41. A Verdict was taken from the Fore-man of the Jury Fined for giving a Verdiâ—â— before they were agreed to which one of them did not assent and damages assessed to 20 s. in trespass and assault and afterwards every one of the 11. were fined for giving their Verdict before they were all agréed 40 Assise 10. Where a Iury are to be fined a Fine joyntly imposed on them The Fine must not be joynt is not legall but they must be severally fined because the offence of one is not the offence of another Et nemo debet puniri pro alieni delicto For then it might be said Rutilius fecit Aeimilius plectitur lib. 11. 42. A man stroke a Juror at Westm sitting in the Court who passed against him Punishment for striking a Juror and he was thereof indicted and arraigned at the Kings Suit and attainted his judgment was that he should go to the Tower and stay there in prison all dayes of his life and that his right hand should be cut off and his Lands seized into the Kings hands 41 Assise p. 25. and now our Juror sées what punishment it is to strike him in the face of the Court. Let him hold his hands from others least the same Iudgment light on him By the Statute of 27 Eliz. cap. 6. It is Enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius 10 s. shall be returned in Issues upon every person impannelled and upon the second Writ 20 s. and upon the 3 d Iâ—â—â— 30 s. And upon every Writ that shall be further awarded to try any Issue to double the Issues last afore specified untill a full Jury be sworn Not summoned But if the Under Sheriff c. return a Juror summoned who in truth was not legally summoned therefore doth not appear and so looseth Issues the Vnder-Sheriff shall pay him double the value of the Issues lost Sée the Statutes of 35 H. 8. 6. and the 2 E. 6. 32. And note the Law hath béen so careful to punish all offenders who would endeavour to byass and corrupt the Iury and to punish the Juries themselves if they receive money to give their Verdict or any otherwise pre-ingage themselves to any of the parties All which is to the end that a true and honest Verdict may be given What punishment shall that Jury have which gives a false Verdict Such a punishment that as I said before in civill Causes it is without example and surely if the Iurors did bear it in their minds their Verdicts would be alwayes grounded upon their Evidence and not upon their own Interests or any partiality to either of the parties Wherefore if the Iurors give a false Verdict which is perjury of the highest degrée upon an Issue joyned betwéen the parties in any Court of Record and judgement thereupon The party grieved may bring his Writ of Attaint Attaint in the Kings-Bench or Common-Pleas upon which 24. of the best men in the County are to betâ—e Iurors who are to hear the same Evidence which was given to the Petite Iury and as much as can be brought in affirmance of the Verdict but no other against it And if these 24. who are called the Grand Iury finde it a false Verdict then followeth this terrible and heavy judgement at Common Law upon the Petite Iury. Judgement in Attaint 1. That they shall loose liberam legem for ever that is they shall be so infamous as they shall never be received to be a Witness or of any Iury. 2. That they shall forfeit all their Goods and Chattels 3. That their Lands and Tenements shall be taken into the Kings hands 4. That their Wives and Children shall be thrown out of doors 5. That their Houses shall be rased and thrown down 6. That their Trées shall be â—â—ted up 7. That their Meadow-grounds â—hall be plowed up 8. That their bodies shall be â—ast into the Goal and the party â—hall be restored to all that he lost by reason of the unjust Verdict So odious is perjury in this Case in the eye of the Common-Law And the severity of this punishment is to this end Ut poena ad paucos metus ad omnes perveniat for there is Misericordia puniens and there is Crudelitas parcens And séeing all Tryals of reall personal and mixt actions depend upon the Oath of 12. men prudent Antiquity inflicted this severe punishment upon them if they were attainted of perjury 1 Inst 294. But now by the Stat. of 23 H. 8. cap. 3. The severity of this punishment is moderated if the Writ of Attaint be grounded upon that Statute But the party grieved may 〈◊〉 his Election either bring his Wiâ— of Attaint at the Common-Law 〈◊〉 upon that Statute Wherefoâ— let the Iuror expect the greatest puâ—ishment when he offends 3 Inst 16 222. And so I conclude with the wordâ— of Fortescue Quis tunc etsi immâ— mor salutis animae suae fuerit non foâ— midine tantae poenae verecundiâ— tantae infamiae veritatem non dicere sic Juratus Who then though he regard not his Souls health yet for fear of so great punishment and for shame of so great infamy would not upon his Oath declare the truth FINIS