Selected quad for the lemma: land_n
Text snippets containing the quad
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A38736
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Tryals per pais, or, The law concerning juries by nisi-prius &c. by G.D. of the Inner Temple, Esquire.
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G. D.
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1685
(1685)
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Wing E3413A; ESTC R36204
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212,735
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464
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judgement of more knowing Judges of fact when they become litigious and this was by an Act of 16 17 Car. 2. cap. 3. which being but a probationer and to continue but for 3 years and from thence to the end of the next Session of Parliament it is expired but for that it may be revived as I humbly judge it expedient I have thought fit to hint thus much concerning it Such a man who hath Land Rent Office or other profit Apprendre out of ancient Demesn to the clear yearly value of 4. li. of which he may have an Assise he hath sufficient Freehold to be a Juror Vide the said reading Where you may know what Estate is sufficient to make a man a Juror See hic in the Chapter of Challenges Et qui nec D. E. nec F. G. aliqua affinitate Jurors mus not be of affinity to the parties attingunt the Law is very cautelous in not leading men into temptation Therefore lest kindred and Affinity should wrong the Conscience to help a freind our Jurors must not be related to any of the parties And for this Reason likewise the Statutes provide that no man of Law shall ride Judge of Assise or Gaol-delivery in his own Country 8 R. 2. 2. 33 H. 8. cap. 24. yet the contrary hereof is often done by a non obstante but how consistent with integrity or prudence they know best who procure it to be done But because most things concerning the Quality and sufficiency of Jurors will come more properly under the Title Challenge I will refer you thither And first observe more particularly De quo vicinet the Jury ought to come CAP. VIII Concerning the Visne from what place the Jury shall come c. VIcinetum is derived of this word Vicinus Visne and signifieth Neighbour-hood or a place near at hand or a Neighbour place where the question about the fact is moved And the most general Rule saith Coke 1 Inst 125. is That every Tryal shall be out of that Town Parish or Hamblet or place known out of the Town c. within the Record within which the matter of fact issuable is alledged which is most certain and nearest thereunto the Inhabitants whereof may have the better and more certain knowledge of the fact And if a thing be alledged in D. the Venue must not be of D. but de vicineto de D. for otherwise the Neighbourhood would be excluded Roll. tit Tryal 622. And if the fact be alledged in quadam plaâ—ea vocat Kingstreet in parochia sanctae Margaretae in Civitate Westm in Com. Midd. In this Case the Visne cannot come out Parish of Platea 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 been alledged in Kingstreet in the Parish of St. Margaret in the County of Middlesex then should it have come out of Kingstreet for then should Kingstreet have been esteemed 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 Town taken for a Town And albeit parochia generally alledged is a Parochia place incertain and may as we see by experience 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 But when a Parish is alledged within a More 559. City there without question the Visne shall come out of the Parish for that is more certain than the City If a matter be pleaded done apud Bradford in Forfeild in parochia de Belbroughton the Venue shall be of Belbroughton and not of Bradford for Belbroughton shall be intended to be a Town and one Town shall not be intended to be in another Town and therefore Bradford shall not be intended to be a Town Rolls tit Tryal 619. The Venue shall ever be of the most certain place In a Quo warranto for using a Warren in D. if the Defendant say the Ville D. is parcel of the Manner of S. and prescribes to have a Warren within the said Mannor and Demesnes thereof the Venire facias shall be of the Mannor for the Mannor by intendment is more large than the Vill. If the Visne be de D. and S. and the Venire facias be de D. S. and V. this is not good because it is too large If apud Burgum de Plimouth the Venue may be de Plimouth generally If apud Villam de Cambridge in Warda Fori and the Venire facias is de Villa Warda praedict this is helpt by the Statute of Jeofailes If the place be out of a Town the Venue shall not be of the next Town but from the place it self but the Sheriff ought to return the Jury de pluis prochein vill In Ejectment of Land in Foresta de Kevennon in Com. the Venue may be de vicineto Forestae for this is a place known and by intendment because the Defendant hath not pleaded in abatement This is out of any Parish or Vill. In inferior Courts within Boroughs the Venire facias is Quod Venire facias 12. liberos Burgenses Burgi parochiae de B. although there may be 12 Burgesses which are not inhabitants Rolls tit Tryal 622. c. The Venue shall follow the issue vide hic postea In Trespass and Battery in London if the Defendant justifie in Mid. by Process out of the Marshalls Court that he arrested him and because the Plaintiff would not go with him he beat him c. Absque hoc that he is guilty in London vel alibi out of the Iurisdiction of the Court. To which the Plaintiff replies and acknowledges the arrest but says that he beat him at London de injuria sua propria absque tali causa and issue upon this This shall be tryed in London and the words absque tali causa are void the issue being joyned upon a place certain scil London affirmed in a Writ of Error Rolls ib. 624. But the Court said that he might have Demurred upon this Plea If a Trespass be alledged in D. and nul De Corpore Comitatus tiel ville is pleaded the Jury shall come de Corpore 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 alledged within a Mannor the Mannor 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
per medietatem linguae he cannot challenge the Array for this cause at the Tryal if the Iury be all Denizens notwithstanding Stamford's Opinion to the contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. Vide Rolls tit Trial. 643. If the Plaintiff be an Alien he must suggest it before the awarding of the Venire facias but if the Defendant be an Alien the Plaintiff is allowed to surmise that before or after the Venire facias because the Defendants quality may not be known to him before 27 H. 7. 32. CHAP. XIII The Learning of General Verdicts Special Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default Inquests of Office c. Arrest of Judgment Variance betwixt the Nar. and the Verdict c. VErdit or Verdict In Latine Vere dictum Verdict quasi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12 men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgment of the Court is built for â—x facto jus oritur the Law ariseth from â—he fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as â—ot to believe the matter of fact until it is sworn by 12 sufficient men of the Neighbourhood where the fact was done whom the Law supposeth to have most cognisance of the truth or falsehood thereof which being sworn for the words are Juratores predict The Credit of Verdicts dicunt super sacruÌ„m suum c. is the Verdict whereof we now treat And such credit doth the Law give to Verdicts that no proof will be admitted to impeach the verity thereof so long as the Verdict stands not reversed by Attaint And therefore upon an Attaint no Supersedeas is grantable by Law Plo. Com. 496. And it is worth our observation that the Law seems to take more care of the fact than of her self for the Major part of the Iudges give the Iudgement of the Law though the other Iudges dissent But every one of the 12 Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assise pl. 27. And this Verdict is of two kinds viz. one General or special general and the other special or at large The general Verdict is positively either General Verdict in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury find Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do find Quod predict B. in juste sinâ— judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a general Verdict 1 Inst 228. A Special Verdict or Verdict at large is Special Verdict so called because it findeth the special matter at large and leaveth the Iudgment of the Law thereupon to the Court of which 1 Instit 226. kind of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court The Court cannot refuse it cannot refuse a Special Verdict if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned whether the Iury A special Verdict may be found upon any Issue as upon an absque hoc c. could find a Special Verdict upon a special point in Issue or no as they might upon the general Issue But this question hath been fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Vardict and find the matter at large en chescâ—n issue en le monde so that the matter found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions real personal and mixt and upon all Issues joyned general or special the Iury might find the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not only in Cases between party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmative of the Common Law And as this spetial Verdict is the safest for A Free-hold upon Condition without Deed may be found by Verdict though it cannot be pleaded the Iury 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concerns a Freehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12 men taken at large in an Assize of Novel dissâ—isin or in any other Action where the Iustices will take the Verdict of 12 Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for term of life without Deed upon Condition to render to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessee is seised as of Fréehold and after the Rent is behind by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Dissesin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for term of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behind at any such Feast at which it ought to be paid then it should be lawful for the Lessor to enter c. By force of which Lease