Selected quad for the lemma: son_n
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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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Lord of Parliament as a Baron Viscount Earl Marquess and Duke for these in respect of Honour and Nobility are not to be sworn on Juries and if neither party will challenge him he Propter honoris respectum may challenge himself for by Magna Charta it is provided Quod nec super eum ibimus nec super cum mittemus nisi per legale judicium parium suorum aut per legem terrae Now A Peer may challenge himself the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realm The Peers Peers and Commons of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses And in Iudgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tryed for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tryed per Pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a Tryal either at the Kings Suit or between party and party a Peer of the Realm shall not be impannelled in any Case Secondly Propter Defectum Challenge Propter defectum 1. Patriae as Aliens born 2. Libertatis as Villains or Bondmen and so a Champion must be a Freeman 3. Annui sensus i. e. liberi tenementi First what yearly Freehold a Iuror ought to have that passeth upon Tryal of the life See before cap. 7. Quorum quilibet habeat 4. l. c. of a man or in a Plea real or in a Plea personal where the Debt or damage in the Declaration amounteth to 40. Marks Vide Littleton Sect. 464. Secondly this Free-hold must be in his own right in Fee-simple Fee-tail for term of his own life or for another mans life although it be upon condition or in the right of his Wife out of antient Demesne for Freehold within ancient Demesn will not serve but if the debt or Damage amounteth not to 40. Marks any Freehold sufficeth Thirdly he must have Freehold in that County where the cause of the action ariseth and though be hath in another it sufficeth not Fourthly if after his return he selleth away his Land or if Cesty que vie or his Wife dyeth or an entry be made for the condition broken so as his Freehold be determined he may be challenged for sufficiency of Freehold It seems before the Statute 2 H. 5. free-hold of any value was sufficient for there Freehold of 5. s. was sufficient 3. H. 4. 4. by that Statute in all Pleas real and personal where the Debt or damage or both together amount to 40 marks the Juror must have 40. s. Freehold In an Attaint they must be able to expend 20. l. per annum In an accompt upon the Receipt of 100. s. if he count to his damage 200. s. if the Juror hath but 20. s. or under 40. s. 't is sufficient because he shall not recover damages and so this is not within the Statuts 10 H. 6. 18. for the sufficiency of Jurors See Rolls tit Tryal 648. A man seised of the Mannor of Dale enfeoffs a stranger upon condition to pay yearly to J. S. and his Heirs 40. s. Rent J. S. dies seised of this Rent and then his Heir takes it Yet the Heir hath not sufficient Freehold Land to the value of 40. s. is given to Husband and Wife and the Heirs of their two bodies begotten who have issue a son the Husband gives the Land by fine to an estranger and his Heirs and dies the Wife enters and dies seised the son hath not sufficient Freehold to be a Juror A man seised of Land to the value of 40. s. within the County of Mid. and of Land to the value of 12. within the County of Sussex and grants a Rent-charge of 40. s. issuing out of all the said Land to a stranger in fee the Grantee hath sufficient Freehold to be a Juror in both Counties See many speculative cases upon this subject in Williams his Reading upon the Statute 35 H. 8. cap. 6. 4. Hundredorum First by the common Challenges propter defectum hundrrdorum Law in a Plea real mixt and personal there ought to be four of the Hundred where the cause of action ariseth returned for their better notice of the cause for Vicini vicinorum facta praesumuntur scire And now since Littleton wrote in a Plea personal if two Hundredors appear it sufficeth and in an Attaint although the Jury is double yet the Hundredors are not double Secondly If he hath either Freehold in the Hundred though it be to the value but of half an Acre or if he dwell there though he hath no Freehold in it it sufficeth Thirdly if the cause of the action riseth in Hundredors divers Hundreds yet the number shall suffice as if it had come out of one and not several Hundredors out of each Hundred Fourthly if there be divers Hundreds within one Leet or Rape if he hath any Freehold or dwell in any of those Hundreds though not in the proper hundred it sufficeth Fifthly if the Jury come de Corpore Comitatus or de proximo Hundredo where the one party is Lord of the No Hundredors Hundred or the like there need no Hundredors be returned at all Sixthly if a Hundredor after he be returned sell away his Land within that Hundred yet shall he not be challenged for the Hundred for that his notice remains otherwise as hath been said for his insufficiency of Freehold for his fear to offend and to have Lands wasted c. which is one of the Reasons of Law is taken away Seventhly he that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Eighthly his Challenge for the Hundred is not simpliciter but secundum quid for though it be found that he hath nothing in the Hundred yet shall not he be drawn butremain praeter H. that is besides for the Hundred and albeit he dwelleth or have Land in the Hundred yet must he have sufficient Freehold Note This challenge for want of Hundredors must be given in writing presently and the other party is to demurr thereto if opposed If a challenge be that there is not any Hundredor returned it may be averred to the Court that there is not any sufficient within the Hundred which is not within the Fee of the Plaintiff although this be not returned by the Sheriff and this be found true by Tryors the Array shall be affirmed 45. Ass 1. If the King be made party by aid prayer and sufficient Hundredors do not appear nor are returned yet the Pannel shall not be quashed but a Tales of Hundredors shall be returned But
specialty or on Record Hob. 284. Hutt 35. But an account stated for rent and other things is good Evidence In Indebitat for money c. delivery of Corn or other matter in satisfaction is good evidence Contr. in a special Action of the case on Assumpsit Indebit lies not for money won at Dice Wiche's Case Hill 14 15 Car. 2. B. R. If a promise be made to pay at a day certain and the day is past the Plaintiff may declare to pay on request so if he declare on payment at a day certain give in evidence a promise on request i. e. when it 's created on account which gives the duty for there the time is ex abundanti but where the action is founded on the Contract otherwise for there the evidence must pursue the Contract Hill 1650. B. R. Child's case Promise to restore a Horse hired for a Iourney if the Horse dies in the Iourney without the Riders default his promise binds not Lisle's case cited in Matraver's case Trin. 1651. B. R. One brings an Assumpsit for 20 l. and gives in evidence a promise if two would surrender to pay them 20 l. a piece good Mich. 1655. B. R. Thomas and Gerey Indebit for 50 l. brought by Edgar against Chetham Clerk The evidence was T. was indebted to Edgar in 50 l. Chetham desires Edgar to let him take the 50 l. of T. and he would give Edgar a Bill of Exchange to receive so much at London accordingly T. promises to pay Chetham the money which promise he accepted and gave a Bill of Exchange to Edgar after T. became insolvent then Chetham prohibits the payment of his Bill whereupon this action is brought Per Wadh. Wyndham Just Ass Norf. Summer 1663. the action lies for Chetham having accepted the promise of T. and given a Bill c. is now become a Debtor to Edgar until his Bill be paid though he never receives the money of Thompson In Indebitat It is good evidence against the Father that Physick was delivered to his Daughter at his request Stone-house vers Bodvill Hill 14 Car. 2. B. R. One promises a Bayliff that if he would let one arrested be in his house that night he would deliver him in the morning it 's a good promise and the Bayliff or the Plaintiff may bring the action Benson vers French Pasch 15 Car. 2. B. R. Indebitat The case was the Plaintiff sold 60 Comb of Rye to the Defendant at 14 s. per Comb to be delivered before Mich. the Plaintiff delivered 50 Comb before the time and brought this action for the money for it and good though it was agreed the money to be paid on the delivery of the last Rye per Hale Ch. Baron 1. Though the agreement is intire yet the several deliveries make several contracts 2. Though the payment was to be on the last delivery yet a time being set for delivery it 's intended to be paid when the delivery should have been 3. The time being past it 's now a duty and so Indebitatus lies 4. The Defendant has his remedy for not delivering the residue Baker vers Sutton Lent Assise Norf. 1662. Indebitat lies for a portion after the Ioynture setled so for 1000 l. on promise of so much for every Horse-shoo nail but the Jury may mitigate Damages ib. A promise to marry B. within 3 Months within a Fortnight after they meet and the party promises again to marry her within 3 Weeks this last promise is no discharge of the former being all within the time of 3 Months but had the last promise been to marry her within some other time after the 3 Months it had discharged the former Hite vers Chaplin Pasch 1658. B. R. Indebitatus by one Defendant give evidence that another was partner with the Plaintiff at the delivery of the Wares Plaintiff Nonsuit Franklin vers Walker Norf. Lent Assise 1667. per Moreton Contr. in Trespass for there Ioint-tenancy must be pleaded Indebitatus for 9 l. Defendant pleaded non assumpsit infra sex annos issue inde the Plaintiff proved a Debt of 9 l. due 10 years before and an acknowledgement of the Debt within 6 years and an offer to pay 5 l. for the whole Per Hale The Plaintiff nonsuit for the acknowledgement of the Debt is no more than is done by the Plea but there must be a new promise of the Debt within 6 years to make the action hold and here the promise or offer to pay 5 l. gives no action for the 9. l. Bass vers Smith Suff. Summer Assise 1668. Debt Debt on a Bond to perform Covenants to deliver possession at the Terms end to the Lessor or his Assignes breach was assign'd in not delivery to two purchasors demand being made by both and issue joyn'd thereon in evidence demand by one is good 2 Cro. 475. Debt on Bond to perform an award ita quod the award be delivered to the parties in evidence delivery proved to the Wife is sufficient for the Jury to presume the delivery to the party himself per Hale Norf. Summer Assise 1665. Trice and Prat. At the same Assises per Moreton Just delivery to the parties Son is good evidence Violet and Cook Debt against an Heir c. riens per descent c. a Feoffment given in evidence made before the action that it was fraudulent may be given in evidence though not pleaded 5 rep Co. Goathes case Hob. 72. Debt against Executor who pleaded ne unques c. Plaintiff replied that he Administred as Executor and gave in evidence Administration granted to him by which he Administred Good Dyer 305. In Debt against Executors and plenè Administravit pleaded the Defendant cannot give in evidence a Bond satisfied where the Executor and Testator were obligors per Coventry Lord Keeper 33 Eliz. Perkins vers Perkins In Debt for Tythes Modus to a Vicar is good against the Parson and so is a Modus to a Parish Clerk per Moreton Just Lent Cambr. 1667. Barber vers Cosier In Debt against Executor de son tort who pleads ne unques c. It is sufficient to charge him by proving he hath administred of never so little value Clayton 6. Against Executor de son tort who pleaded fully administred the evidence was the Intestate made a Bill of Sale of his goods to the Defendant who was bound with him in a Bond as surety for his Counter-security but the goods remained in the Intestates possession during his life for some few hours ruled a fraudulent Deed by Barkley Just at York 11 Car. Legard and Linley Clayton 39. quaere Debt against Administrator who pleaded If the Defendant pleads plenè c. pretor judgements c. The Plaintiff must prove Assets above the sum of those Judgements Huntington by Judge Windham 33 Car. 2. plene c. and gave in evidence Iudgements and good without pleading per Henden 1638. York Clayton 65. Quaere for if Iudgements be kept on