thereupon and 2. Venire facias awarded to the Sheriffs of the several Counties and now 7. of the County of Worcester appeared and 5. of Gloucester And although there ought to have béen 6. sworn of each County to try that Issue as appears 49 Ed. 3. 1. 31 H. 8. 46. yet by the assent of the parties those 12. who appeared by advice of all the Iustices were sworn and tryed the Issue And it was commanded that this Assent should be entred upon Record for otherwise it would be a strange President In an Action of Trover apud Paxton in Com. Hunt the Defendant pleads a Bargain and Sale apud Royston in Com. Hertford Covenant in P. to sell at â— tryed at P. in the Market there whereby he after converted them apud P. in Com. Hunt The Plaintiff saith that he was possessed of those Goods apud P. in Com. Hunt and that J. S. there stole them from him and by Covenant betwixt him and the Defendant at P. in Com. H. he sold them to the Defendant as he hath pleaded The Issue was upon the sale made by Covenant c. And it was tryed in the County of Hunt and found for the Plaintiff And it was moved to be a mis-tryal for it ought to have béen by a Iury of the County of Hâ—rtford or at leastwise by a Iury of both Counties But it was adjudged to be well tryed because the sale is confessed and the Issue is upon the Covenant alledged in Hertford Cro. 3. part 511. Usurous Contract in another County In Debt upon a Bond in London the Defendant pleaded an usurious Contract in the County of Warwick the Plaintiff replyed that the Bond was made upon good consideration Absque hoc that it was made for such usurious Contract the Tryal shall be in the County of Warwick A Dures shall be tryed there not where the Action is brought for the Bond is confessed and the usury in Warwick is only in question so if the Issue be whether the Déed were made by Dures the Tryal shall be where the Dures and not where the Déed is supposed to be made Cro. 3. part 195. Where Issue is taken upon a surrender Surrender it shall be tryed where it was alleadged to be done and not where the Mannor is of which the Copy-hold is holden Ib. fo 260. Br. tit Visne 114. In an Assumpsit laid at London in Warda de Cheape Ward or Hundred no good Visue the Venire was De parochia de Arcubus in Warda de Cheape whereas no Parish was mentioned before in the Count and adjudgad that the Venire was ill laid in the Count for a Venire facias may be of a Town Parish Mannor or other place known but not of a Hundred or Ward ib. and so it is adjudged ib. Cro. 1. part 165. for the Ward in a City is but as the Hundred in a County Where the Visne is laid to be at a City City in an Action brought in a superior Court or within the City though it be both a City and County the Venire facias may be de vicinet Civitatis Lach. 258. Though it hath béen held not good but that the Venire facias must be de Civitate leaving out Vicinet as you may read in Stamf. 155. But now the Case in Cro. 2. part 308. and Bulstr 1. part 129. say that all Venire fac are awarded de vicinet Civitatis which is intended as well de Civitate it self as de vicinet infra Jurisdictionem of the City And so it is Stiles 2. March 125. de vicinet Civitatis or de vicinet or de Civitate Coventry Eborum Norwich Sarum Bristow Exon and all other Cities which are Counties in themselves In all places besides London London no mention is made of the Parish or Ward Ib. 493. But in London the Parish and Ward is mentioned And therefore it was adjudged Cro. 2. part 150. That it was not good to alleadge any thing done in London generally But it must be in what Parish from which a Venire may be But where a thing is laid in a City in alta Warda there and the Venire facias is from the City City only it is well because it shall be intended there be no more Wards in the same City Cro. 3. part 282. A Venire facias was awarded from T. and not de vicinet de T. and for this cause resolved to be ill De vicinet out ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the Issue be Si rex Concessit per literas patentes Where the Land lies The Tryall shall be as hath béen said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed it shall be tryed by the Record and therefore the Issue being upon non Concessit the Issue is not upon the Patent but where the Issue is upon non Concessit or non dimisit of a thing which passeth by Deed the Tryal shall be where the Grant or Demise is alleadged But of a Feoffment or Lease for life pleaded the Issue being non Feoffavit or non diâ—isit Livery ought to be made and therefore the Tryal shall be where the Land lies Cro. 2. part 376. 3. part 259. Where the offence is laid in the Count to be in one County and the Iustification in another County and the Plaintiff replies Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is de injuriâ— sua propria c. The Visne shall be where the Iustification is alledged As one Example for all to illustrate In an Action upon the Case for words supposed to be spoken at Bridg-North in the County of Salop thâ— Defenâ—ant pleads that he spake them as a Witness upon his Oath upon an Issue tryed at Chard in the County of Somerset The Plâ—intiff replies de son tort demesne c. And thereupon it was tryed by a Venire facias of Bridg-north And Error thereof assigned because it ought to have béen by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryall and not ayded by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. In an Action of the Case against a Sheriff upon an escape in London and the Arrest laid to be in South-hampton adjudged Where the escape was and not where the Arrest was that the Visne shall be where the escape was because that is the ground of the Action and not where the Arrest was Cro. 3. part 271. In Debt upon an Obligation payment was pleaded apud domum mansionalem Rectoriae de Much-Hadam and the Venire facias was de vicineto de Much-Hadham where it ought to have béen de vicinet Rectoriae de Much-Hadam but it was adjudged good because Much-Hadam is here intended a Vill. Ib. 804.
Writ of Trespass Quare vi armis c. doth not lye against the Lord but shall abate Littleton Sect. 485. Also in a Writ of Trespass for Battery or for Goods carried away The Verdi nay finde the Defendant guilty of the Trespass at another day or place if the Defendant plead not guilty in manner as the Plaintiff suppose and it is found that the Defendant is guilty in another Town or at another day then the Plaintiff suppose yet he shall recover And so in many other cases these words scil in manner as the Demandant or the Plaintiff hath supposed do not make any matter of substance of the Issue Littleton Sect. 485. And 't is a Rule Modo forma when words of soâ—â—â— that where the Issue taken goeth to the point of the Writ or action there Modo forma are but words of form as in the cases aforesaid But when a Collateral point in pleading is traversed When of substance must be found by the Verdict as if a Feofment be alledged by two and this is traversed Modo forma So in non assumpsit modo forma upon an Indebitatus assumpsit there modo forma were not materiall Secus when the action is upon a collaterall promise And it is found the Feoffment of one there Modo forma is materiall So if a Feoffment be pleaded by Déed and it is traversed Absque hoc quod feoffâ—vit Modo forma upon this Collateral issue Modo forma are so essentiall as the Jury cannot finde a Feoffment without Déed Co. Littleton 282. But here is a diversity to be observed That albeit the Issue be upon a Collaterall point yet if by the finding of part of the Issue it shall appear to the Court that no such action lyeth for the Plaintiff no more than if the whole had béen found there Modo forma are but words of form as in the aforesaid case of the Lord and Tenant it plainly appeares for it was all one Trespass Quare vi armis lies not against the Lord for distraining his Tenant without cause whether the Tenant held by fealty onely or by fealty and Rent because if either was true the Tenant could have no Trespass Quare vi armis against the Lord in that use by the Statute of Marlbridge cap. 3. After the Verdict recorded the Jury cannot vary from it Jury cannot vary from their Verdict when it is recorded but before it is recorded they may vary from the first offer of their Verdict And that Verdict which is recorded shall stand 1 Inst 227. Plo. Com. 212. There is also a Verdict given in open Court Oâ—â—â—cict and privy Verdict and a privy Verdict given out of Court before any of the Iudges of the Court so called because it ought to be kept secret and privy from each of the parties before it be affirmed in Court Because the Jury may vary from their private Verdict as if that find for the Plaintiff The Jury may vary from a Private Verdict the open Verdict may be for the Defendant and this shall stand and the private Verdict shall not be déemed a Verdict for the Jury are charged openly in Court and in Court their Verdict ought to be received and this which they pronounce openly in Court shall be adjudged their Verdict And although it is usuall to take the Verdict secretly when the Jurors are agreed yet this is not of necessity of Law but of courtesie of Law for the ease of the Jurors and in this case their saying shall not be their Verdict till it is openly pronounced in the Court for when they come in the Court the Plaintiff shall be demanded and then may be non-suited But when they give their Verdict secretly the Plaintiff is not demandable nor can be then non-suited but he may be non-suited when the Verdict of right ought to be rendred Ergo the force is in the giving of the Verdict in the Court and not elsewhere Bro. tit Verdict 12. And also in the Court it self if they pronounce their Verdict they may change it if they be mistaken or it be not full in Law or for some other reasonable cause immediately perceived Therefore if they may vary and contradict their first Verdict given in open Court A fortiore upon better advisement they may do so when their first Verdict was given out of Court and they not discharged for they be in the Custody of the Baily till they be discharged in Court Plo. Com. 211. More 33. The Jury having once given their Verdict although it be imperfect Jury shall give but one Verdict in the same cause shall never be sworn again upon the same Issue unless it be in case of Assise when the party is to recover by view of the Jurors But there must be a Venire facias de novo Cro. 2. part 210. If a Verdict be good in part Verdict good in part and naught in another part it shall stand in part and a new Inquest shall be for the rest Bro. tit Verdict 89. For the Juries direction in their Verdict What permitted in pleading for the Juries direction in their Verdict greater liberty is permitted in pleading a matter doubtfull in Law for a Traverse for this Reason may be omitted As in debt against an Executor It is a good plea to say Administration was committed to him and therefore he should be named Administrator and not Executor without traversing that he is not Executor for the lay-people know no difference betwéen one administrating as Executor and one administrating as Administrator 9 E. 4 33. For this Reason likewise the speciall matter may be pleaded together with the generall Issue c. As that the Obligation put in suit was sealed by him and delivered to A. to kéep till certain Indentures were made betwéen the Plaintiff and him A Special non est sactum before which Indentures made the Plaintiff took the Obligation out of the possession of A. so is not his Déed This is good and yet by this generall conclusion the matter precedent shal not be wayed for it were perillous to put the speciall matter in the mouth of Lay-people 9 H. 6. 38. A Jury of Middlesex was demandeâ— in the Common-Pleas Enquest by default the first day of the Terme and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the 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
Defendant might put himself upon God and the Country as is the â—â—e at this day or else upon God only and then if he was a Fréeman he was to be tryed per ignem that is he was to passe over Noven vomeres ignitos nudis pedibus and if he was not hurt by this then he was to be acquitted otherwise condemned and this was call d Ju icium Dei But if he was a slave then his Tryall was to be per aquam and that divers wayes which all appear in Lambard verbo Ordalium From which kinde of Tryall I presume we still retain this expression of an innocent person That he need not feare fire or water This manner of Tryall was first prohibited by the Cannons then by Parliament The Tryall by Battail Battail is likewise prohibited by the Cannons but not by Parliament as you may read in the ninth Report fo 32. and in the Authorities there cited which I therefore omit to recite here th ugh I have the Books by me and â—o in this whole Treatise where I refer you to a Book I shall not sâ—t down the Authorities cited in that Book which will avoid prolixity 32. When the matter alleadged extendeth to a place at t e Common Law and a place within a franchise Which Tryall shall be first it shall be tryed at the Common Law 1 Inst 125. 33. All matters done out of the Realm of England concerning War Martiall Affairs Combat or Déeds of Arms shall be tryed and termined bâ—fore the Constable and Marshall of England before whom the Tryall is by Witnesses Witnesses or Combat or by Combate and their procéeding is according to the Civil Law and not by the Oath of 12. men 1 Just 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any forraign Country The Wife or Heir of the Deâ—d may have an Appeal before the Constable and Marshall who sentence upon the testimony of Witâ—esses or Combat ib. So if a man be wounded in France and dye thereof in England ib. It is worthy our observation What Issue shall be first tryed to take notice wâ—en there are several Issues which of them shall be first tryed And for this you have already heard that where Issue is joyned for part and a Demurrer for the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their pleasure though by the opinion of Doderidge Latch 4. It is the best way to give Iudgement upon the Demurrer first because when the Issue comes afterwards to be tryed Damages the Iury may assess damages for the whole Plea to the Writ In an Action against two the one pleads in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personall against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth onely to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personall Action the discharge of one is the discharge of both As for example if one of the Defendants in Trespass pleads a Release Release to himself which in Law extends to both and the other pleads not guilty which extends but to himself or if one pleads a Plea which excuseth himself onely and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof Discharge of one dischargeth both because the discharge of one is the discharge of both But in a Plea reall it is otherwise for every Tenant may lose his part of the Land As if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other Issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea ib. CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs Hâ—ving given you the Epitome of what Tryals are allowed by tâ—e Common Law and what shall be tryed per pais and what not we shall now aâ—ply our selves more particularly to the Tryal by Juries And becâ—use a Venire facias is the foundation and Causa sine qua non of a Iury I meane in Civil Causes for in Criminalls as upon Indictments the Justices of Goal Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriffe without any process directed to him yet process may be made against the Iury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Precipimus tibi quod venire facias Venire facias Coram Justiciariis nostris de Banco apud Westm tali die duodecem liberos legales homines de vicenet de C. Quorum quilibet habeat quatuor libras terre tenement velreddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patrie inter partes predict de placito c. quia â—am Idem D. quam predict F. inter quos inde contentio est posuer se in Jur. illam Et habeas Ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch termes them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve frée and lawful men of his County to resolve the question of the fact in dispute betwéen the parties upon the Issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod Inquiratur per patriam by the Plaintiff and Issue joyned thereupon the Court awardeth the Venire facias vid. Ideo fiat inde Jurat Sheriff And first you sée it is directed
of Error was brought and the Iudgeâ—ent affirmed For as in reall actioâ—s the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the case of Costs he shall recover for the expences depenâ—ing the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past Damages in reall and personall actions and not to expences of suit For in personall actions he counts to damages because he shall recover damages onely for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in reall actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages and costs intirely together Damages and Costs intirely assessed without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs then the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover onely so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 1â— H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20. marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22. marks and the Verdict was held to be good for 20. marks and void for the residue because it doth not appear how much was intended for damages and how much for costs so that there may be more damages then the Plaintiff declared for or lesse and so the Court knowes not 〈◊〉 to increase the cost whereâ—â—e he shall have Iudgement but â—20 marks by reason of the inâ—â—â—tainty Where a special Verdict is not â—â—tred according to the Notes Verdict amended by the notes the â—â—cord may be amended and made â—grée with the notes at any time â—â—ugh it be 3 or 4 c. Termes afâ—â—r it is entred lib. 4. 52. lib. 8. 162. â—â—o 1 part 145. If the matter Form Hob. 54. and substance of â—â—e Issue be found it is sufficient â—â—r precise forms are not required â—â—y Law in special Verdicts which â—â—e the finding of Lay-men as in Pleadings which are made by men â—urned in the Law and therefore â—tendment in many cases shall â—â—lp a special Verdict as much as 〈◊〉 Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury finde generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they finde that he was made Deputy by Déed because it doth tantamount lib. 9.51 And in the 5th Report Goodales Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. III conclusion In all Cases where the Iury finde the matter committed to their charge at large and over more conclude against Law the Verdict is good More 105. 269. and the conclusion ill li. 4. 42. and the Iudges of the Law will give Iudgement upon the speciall matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Where the Dâ—claration in Trespas is Cum aliquibus averiis As generall as the Narr of a number uncertain and the Verdict is as generall as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione â—irme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per non ina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton that this Verdict was imperfect in all Quoad Residuum incertain For when the Iury finde that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they finde quoad residuum the special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2. part 113. Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10. acres and Quoad Residuum Quod Residâ—um not guilty and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances Circumstances upon an Evidence given to incite them to finde fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury maâ— finde Circumstances and presumâ—tions upon which the Court ought to judge As to finde that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that the Husband assented to the devise at first More 192. Where a Verdict is certainly â—iven at the Tryall Postea amended how and uncertainly returned by the Clerk of the Asâ—izes c. The Postea may be amended upon the Iudges certifyâ—ng the truth how the Verdict was given Cro. 1. part 338. In many Cases a Verdict may â—ake an ill Plea or Issue good Ill Plea made good by Verdict As 〈◊〉 an action for words Thou wast â—erjured and hast much to answer for 〈◊〉 before God Exception after Verdict for the Plaintiff in arrest â—f Iudgement For that it is not â—nd in the Declaration that he â—pake the words in auditu compluriâ—orum or of any one according to â—he usuall form sed non allocatur for â—â—ing found by the Verdict that he â—pake them it is not materiall alâ—hough he doth not say in auditu â—urimorum whereupon it was adâ—udged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place â—f payment was alledged yet the â—ayment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the
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