Tryals per Pais; OR, THE LAW, CONCERNING JURIES BY Nisi-Prius, &c.

Methodically Composed for the Pub­lick Good, in the 16th Year of the Reign of our Soveraign Lord CHARLS the Second, King of England, Scotland, France and Ireland, &c.

By S. E. of the Inner-Temple, Esquire.

Per testes solum, lex ipsa nunquam litem dirimit, qua per Juratam xij. hominum decidi poterit. Cum s [...] modus iste ad veritatem eliciendam multo potior, & efficatior, quàm est forma aliquarum aliarum legum orbis. Fortescue, cap. 31.

London, Printed by John Streater, James Flesher, and Henry Twyford; The Assigns of Richard Atkyns, and Edward Atkyns, Esquires, 1665.

The PREFACE.

THE Philosopher could not see a man unless he hear him speak. Loquere ut videam; Speech is the Index of the Mind, and the Mind only discriminates the Man: For, although an Ideot who hath but the shape of a man, may with silence so hide his folly, that strangers to his Manners cannot discern him from a Sophister; Yet, doubtless, Silence is the greatest Enemy to Learning, the Grave wherein oblivion buries the Parts and Knowledg of the bravest spirits.

Wherefore Learned Salust, from this takes his Exordium; [Page] Omnes homines qui sese student praestare caeteris animalibus, sum­ma ope niti decet, ne vitam silen­tia transeant, veluti pecora, Those men who would excel Beasts, should labour that their lives might not passe in such si­lence, as Beasts do. It seems he deemed, that man little inferior to a Beast, who acted nothing to prolong his Memory; For this he held to be the duty of every man, saying, Quo mihi rectius esse videtur, ingenii quàm virium opibus gloriam quaerere; & quoniam vita ipsa, qua fruimur, brevis est, memoriam nostri quàm maxime longam effiiere. In my opinion, 'tis far better, to ac­quire Glory by the Riches of Wit, then strength; and be­cause our lives are short of themselves, we should indea­vour by Ingenuity, to eternize their memory.

And to effect this,Nulla dies sine linea. Nulla dies abeat, quin linea ducta supersit; No day should passe over our heads, wherein we should not act some memorable exploit: Men should not live like Snails, never stirring out of their Hou­ses; but be active (I mean not busie-bodies in other mens mat­ters, but) in their own Call­ings, of which the wise Cato tells us, Every man should give a reasonable account; And if we believe the famous Seneca, Nihil est turpius quàm grandis natu se­nex, qui nullum habet vitae suae argumentum, quo diu se vixisse dicat, praeter aetatem. Nothing is more unworthy, than an old man, who hath nothing to shew for his Antiquity, but a Gray-Beard; who is no sooner dead, than forgotten, long before he is half rotten; yet who is so apt to deride the Endeavors [Page] of other men, as this antient Ignoramus, whose wrinckles in his face, worn-out looks, and many years sway more with the vulgar people, than all the Ar­guments of Law or Reason: Had Seneca been such a silent Momus, the World would ne­ver have been blest, with his so learned Works. And doubt­less, writing Books is needfull in no Science more, than in the Law; For without Books, how would the Lawyers do for Arguments at the Barr, or Resolutions at their Chambers: Whence the Oracle Sir Edward Coke pronounces this, Omnes debere Juris-prudentiae libris com­ponendis animum adjicere; That all men ought to addict them­selves to the Composing Books of Law; some to the Reporting of the Judgments and Resolu­tions of the Judges, who are [Page] Lex loquens; and some to the col­lecting of these Cases and Reso­lutions, methodizing, and fitting them for some particular pur­pose, as Littleton, Standford, Fitz­herbert, Crumpton, Perkins, Finch, &c. and indeed, most of the Law-Books extant, if not all, (setting aside the Reports) are nothing else, but Collections out of others. This I speak, not in derogation of them, in the least; for as 'tis equally, if not more laborious; so 'tis full as glorious, Judiciously to cull out authentick Cases, out of the Volumes of the Law (where so many are no Law), and right­fully place them in a particular Treatise, as 'tis to report the Judgements and Resolutions from the mouth of the Court; for the Reporter is but the Courts Secretary, and Cook's Institutes merit as much as his [Page] Reports; And Ash's Tables, Fitzherbert, and Brooks's Abridg­ment, are as useful as the Year Books themselves, of which kind of Collections, one Ele­gantly thus breaks out, Quo qui­dem beneficio, haud scio, aut aliud aut legum Candidatis magis gra­tum, aut Reipublicae magis commo­dum, aut divini honoris illustra­tionis magis idoneum, vel cogitando quidem consequi, quisquam poterit. Then which benefit I know not, whether any man can even ima­gine another, either to Law­yers more grateful, or to the Commonwealth more profita­ble, or for the illustration of di­vine honour more fit. For with the least labour, a small price, and little time, they present you with those Resolutions, and Judgments which lye scattered in the voluminous Books of the Law; which would otherwise [Page] cost much time, pains and char­ges, to find out. The thoughts of which publick good, first gave life to these Endeavors of mine: Not that any one should in the least imagine, that I am so guilty of vain ostentation, as to believe, that my Parts or Abilities can perform any thing in this kind, like other men: No, Ipse mihi nunquam Judice me placui.

I could never yet please my self with my own labours, much lesse are they worthy to please others, haud equidem tali me dig­nor honore. However, when I consider, that no man hath yet written particularly concerning this Subject, and of what gene­rall use it is, I doubt not, but that this Treatise will receive a favourable construction from most men, and a plausible ac­ceptation from others.

The Use of the Book.The use of it, is, in a manner, Epidemicall; since mens Lives and Estates are subject to that Tryall per Pais, here demonstra­ted; but in particular, the Pra­ctisers at Law, (especially At­turneys, Solicitors, Clerks, &c.) and all Jurors, (for whose di­rections it is of singular use) are chiefly concerned herein. But I will not hang a Bush out, to invite, and prepossess your Judg­ments, Vincat Utilitas. The pro­fit which every ingenious Rea­der shall gather out of it, will speak more for it, than the best Eulogical Preface.

And for my own part, I pro­fess my self to be Philomathes; but can plead no other Plea, than Not guilty, to Polymathes. I must confess, never any man took a Law-Book in hand, with greater affection to it, than I; and notwithstanding, the hard-favoured [Page] objections, which some men cast upon it, I really think the study of the Law, to be the most pleasant Study in the World. And he which de­lighteth in the study of any other Art or Science, must con­sequently be delighted with this. For the knowledg of the Law, as Doderidge saith, is most truly stiled Rerum Divinarum humanarumque scientia, and wor­thily imputed to be the Science of Sciences; for therein lies hid, the knowledg of every other Learned Science.

So that he which gives him­self to the study of Divinity, may here fill himself with holy and pious Principles of Divine Laws: For,Fortesoue, cap. 3. Lex est sanctio san­cta, jubens honesta, & prohibens contraria; sanctum etenim oportet, quod esse sanctum definitum. The Law is a holy Sanction, or De­cree, [Page] commanding things that be honest, and forbidding the contraries: Now the thing must needs be holy, which by defini­tion, is determined to be holy. So that in this respect, saith Fortescue, men may well call Lawyers, Sacerdotes, that is, gi­vers, or teachers of holy things. For the Lawes being holy, it followeth, that the Ministers, and setters forth of them, must be givers of holy things; and so by interpretation, doth Sa­cerdos signifie; and doubtless, he which duly considers those Rules of Theology, which lie scat­tered throughout the whole body of the Law, must needs conclude our Lawes to be Commentaries upon the Old and New Testament; and do so much bear the Image Legis Di­vinae, that they may well be at­tributed to the Most High.

The Rules of Grammar, Philo­sophy natural, Political, Oecono­mick, and Morall; as also the Grounds of Logick, both from the Predicable, and Predicament, &c. and of other Arts, and Sci­ences, so much abound in our Books, that the very reading of the Law, will make a man Ma­ster of any of those Sciences.

And since Rhetorick is Ars or­nate dicendi, and consisteth of those two parts, Elocution, and Pronunciation.

How can we read in our Law-Books, those Learned Ar­guments, Elegant Speeches, and Judgments pronounced with such Eloquence of words and matter, and not conclude, that Rhetorick is the Glory and Grace of a Lawyer. Though some (not gifted that way) would perswade us, that the Law hath little relation to it.

If any man be delighted in History, let him read the Books of Law, which are nothing else but Annalls and Chronicles of things done and acted from year to year; in which every Case, presents you with a petite Hi­story; and if variety of matter doth most delight the Reader, doubtless, the reading of those Cases, (which differ like mens faces) though like the Stars in number, is the most pleasant reading in the World.

I thought to have expatiated my self in this Eulogicall Com­mendation of the Study of the Law; But when I consider the Glory of the thing it self, I think it but in vain to light the Sun with Candles; and as no Arguments will perswade one to love against Nature, so he whom the rarity of the Law it self cannot invite to study it, [Page] will never be forced to it with the fist of Logick, or other per­swasion: Wherefore 'tis now time to expose my self to the Censure of the Reader, who alwayes judges according to his capacity, or affection; for which cause, if I was to chuse my Reader, I could wish with Caius Lucilius, Quod ea quae scribo, neque ab indoctissimis, ne (que) à doctissimis legi, quod alteri ni­hil intelligerent, alteri plus for­tasse, quàm ipse de se. That this Treatise might not be read, of the most Learned, nor of those who are not learned at all, be­cause these understand nothing, and the others more perhaps than my self.

However, I put this Request to all, Ut si quid superfluum, Bracton. li. 1. fo. 1. vel perperam positum, in hoc opere intervenerit, illud corrigant, & [Page] emendent, vel Conniventibus ocu­lis pertranseant; Cum omnia ha­bere in memoria, & in nullo pec­care, divinum sit potius quàm humanum: That if any thing be superfluous, and placed amiss in this Work, That they will either correct and amend it, or without carping connivea [...] it; since to remember to do all things right, and nothing amiss, is rather the part of a God, than Man: wherefore let him which never offended, cast the first stone.

S. E.

To the Reader.

I Thought to have made a Table to this Book; but when I considered the particulars hereof were collected under general Heads, and Titles; and the mat­ters therein pointed to, with Mar­ginall Notes; I concluded to present you onely with the Contents of the Chapters; but would advise you, not to rely altogether, upon the view of the Contents: For what you cannot finde there, you may perhaps finde in the Chapters at large.

ERRATA.

SOme Errors have risen from the Press; for instance, fo. 133. where D. is the last letter of the line in the Margent, add where the Trespass was committed in the County of S. Likewise the false pointing in some places, may seem to alter the sence: as a Comma being put for a Period, &c. But the Reader having long since espoused Jurisprudence; and thereof got Issue a good Judgment, is bound per la Cour­tesie dengleterre, to amend, or wink at such misprisions. pa. 17. line 19. for Cro. 2. read Cro. 1. p. 76. l. 3. add in Civitate Westm. next to Margaretae. p. 163. l. 11. for Aliens, r. English. p. 142. l. 1. add in next be. fo. 210. at the end of the Title of the 14th Chapter, it should be, An Amercement af­fered by the Jury. fo. 223. li. last, for offered, read afferred.

A Summary of the Contents of each Chapter in this Book.

Cap. 1. Fol. 1.
THe Derivation of the word (Jury). The Definition, An­tiquity, and Excellency of Juries, by way of Preface.
Cap. 2. fo. 5.
Of an Issue; and the divers sorts of Tryalls thereof; and when a [Page] Tryall shall be by a Jury, and when not: when by Certificate, when by Battail, and when by an Alma­nack, &c. What Issue shall be first tryed per Pais; what shall be tryed by the Court; and what by examination of the Attorney, Sheriff, &c.
Cap. 3. fo. 24.
Of a Venire facias; To whom it shall be directed; when to the Sheriff, when to the Coroners, when to Essiors, and when to Bayliffs.
Cap. 4. fo. 38.
What faults in the Venire facias shall vitiate the Tryall, what not; when a Venire facias de novo, shall be awarded; when severall Ven. fac. When the Ven. fac. shall be betwixt the party, and a stranger [Page] to the Issue. Who may have a Ven. fac. by Proviso, and when.
Cap. 5. fo. 50.
Why the Ven. fac. runs to have the Jury appear at Westm. though the Tryall be in the Country; Of the Writ of Nisi prius, when first given, when grantable, when not, and in what Writs of the Tales, at common Law, and by Stat. Where, when the Transcript of the Record of the Nisi prias, differs from the Roll, whereby the Plaintiff is non­suited, he may have a Distringas de novo.
Cap. 6. fo. 64.
Of the number of the Jurors, and why the Sheriff returns 24. though the Venire facias mentions but 12. If he returns more or less, no Error; and of the number 12.
[Page] Cap. 7. fo. 68.
Who may be Jurors, who not; who exempted, and of their Quality and Sufficiency.
Cap. 8. fo. 75.
Concerning the Visne, from what place the Jury shall come, &c.
Cap. 9. fo. 99.
The Law concerning Challen­ges, very necessary to be known of all men.
Cap. 10. fo. 131.
Of what things a Jury may in­quire, when of espirituall, when of things done in another County, or in another Kingdom; when of Estop­pell, and where not; when of a mans intent, &c.
[Page] Cap. 11. fo. 137.
Concerning Evidence to be given to a Jury. What Evidence will maintain the Issue, and what not. Of Witnesses, &c.
Cap. 12. fo. 154.
The Juries Oath; Why called Recognitors in an Assise, and Jurors in a Jury. Of the Tryall per me­dietatem linguae; when to be prayed, and when grantable. Of a Tryall betwixt two A [...]iens, by all English. Of the Ven. fac. per medietatem linguae, and of Chal­lenges to such Juries.
Cap. 13. fo. 164.
The Learning of general Ver­dicts, special Verdicts, and Verdicts in open Court; and where the In­quest shall be taken by default, &c.
[Page] Cap. 14. fo. 210.
How the Jury ought to demean themselves, whilest they consider of their Verdict; when they may eat and drink, when not; What mis­demeanor of theirs will make the Verdict voyd; Evidence given them, when they are gone from the Barr, spoyls their Verdict: For what the Court may fine them, and where the Justice may carry them in Carts, till they agree of their Ver­dict. An amendment affected by the Jury.
Cap. 15. fo. 224.
What punishment the Law hath provided for Jurors offending; as taking reward to give their Ver­dict. Of Embraceors. Decies tantum. Attaint: Several fines on Jurors. What Issues they forfeit, and of Judgment for striking a Ju­ror in Westminster.

Tryalls per pais.

CAP. I. The Derivation of the Word (Jury.) The Definition, Anti­quity and Excellency of Juries, by way of Preface.

JUrie (Jurata) cometh of the French word (Jurer. i. e. Jurare. Vid. Cap. 1 [...]. Jurie.) And meto­nymically signifieth in Law, those 12 men who are sworn Judges in matters of fact, evidenced and debated, by Witnesses, before them: I call them Judges, because, as the Pleadings, of Serjeants and Counsellors at Law, do serve only Ad illustrandum; ('tis the property of the Court, Jus dicere.) So the testimony of Witnesses, only illu­minateth the Question, 'Tis in the [Page 2] power of the Jury to determine the fact, upon an Evidence Pro, and Co [...]; According to those common Adages, Ad questionem Juris respondent Judices; Ad questionem facti respondent Jura­tores: Though, as the Judgment of the Court ought to be guided by the Law; So, is the Verdict of the Jury, by the Evidence.

The Antiquity and excellency of Juries.I will but only dip my pen into that fathoml [...]ss depth of prayses, which belong to t [...]e right use of Juries; Those silver drops which flow from their Eulogies, would soon drown, (and so make barren) the most fruitful Author, even with redundancy of mat­ter: Such showres must fall into the Ocean; they cannot be received, in such small rivulets, as I have con­tracted my self to. Their Antiquity pro­claims them venerable, For (asCom. upon Littleton, fol. 155. vid. l b. 3. 8. Preface. Cook desires you) hear what the Law was before the Conquest. In sin­gulis Centuriis Comitia sunto, atque li­berae conditionis vici cuodeni aetate supe­riores, una cum praeposito sacra te­nentes juranto. &c. Lamb. verb. Centuria. And Cambden (in his Britannia page 153.) Correcteth [Page 3] Polidor Virgil, saying, Whereas Palidor Virgil writeth, that William the Con­queror first brought in the Tryall by 12. men, there is nothing more untrue; For it is most certain and apparant, by the Lawes of Etheldred, that it was in use many years before. &c.

Their generall use (being the only tryers of Choses in fait, The use of [...]ries. almost in all Courts throughout England) speak them a publique good; And what an­swer shall I make to the Princes, vehementer Admiror. Fortescue, cap. 28. Videlicet, Wherefore are not Juries used in other Countries, if they are so good? But that of Fortescue, the Learned, who best could tell, Scil. That other Coun­tries can scarce produce one Jury, so well accomplished with Wealth and Ingeny, as one County, nay one Hun­dred, can in England.

But not to dwell in the Porch of Florishes, I will address my self to the Gravity of the Law, where you must not so much expect the flash of Rheto­rick, as the light of Reason; No, the Law knowes best how to express her [Page 4] self, in her own termes, wherefore all other Sciences must learn, with reve­rence, to kéep their distance, And (as the Golden Finch Finch. ca. 3. sings) be glad to have their sparks, raked up in her Ashes.

[...]nd since an Issue is praevious, and the matter of a tryall, I shall first give you the description thereof, and then touch upon the several Tryalls allowed by the Law, for discussion of the truth.

CAP. II. Of an Issue, and the divers sorts of Tryals thereof: and when a Tryal shall be by a Jury, and when not; when by Certificate, when by Battail, and when by an Almanack; what Issue shall be first tryed, Per Pais; what shall be tryed by the Court; and what by Examination of the Attorney, Sheriff, &c.

ISsue, exitus, saith Cook 1. Com. fo. 126. Omnia unum aliquem sorti­untur exitum, vel per patri­am, vel per Judices termi­nandum. Finch. Epistle. is a single certain and materiall point, issuing out of the Allegations, and Pleas, of the Plaintiff and Defendant, consisting regularly upon an Affirma­tive, and Negative, to be tryed by 12 men; and it is twofold, Scil. either speciall, as where the special matter is pleaded, or generall; as in Trespass, [Page 6] not guilty: in Assise, nul tort, nul dis­seisin, &c. And as an Issue naturall cometh of two several persons, so an Issue legall, issueth out of two several Allegations of adverse parties.

And to give you likewise his De­finition of Tryall, Tryall. It is to finde out, by due examination, the truth of the point in Issue or question betwéen the parties, whereupon Iudgment may be given; And as the question betwéen the parties is twofold, so is the Tryall thereof; For either it is questio Juris, (and that shall be tryed by the Judges, either upon a demurrer, special Verdict or Exception,Note, that up­on a demurrer to part, and Issue to part, though it is the best way to give Judgment upon the quae­stio juris first, yet the Court may try the quaestio facti first, at their discretion. 1 Inst. 72 125. Lach. 4. For Cuilibet in sua arte perito est Credendum, et quod quisque noverit in hoc se exerceat. Or it is quaestio facti, And the tryall of the fact is in divers sorts; First, chiefly, and most commonly, by a Jury of 12 men, (of which kind of Tryall, my intention is principally to treat in this Book.) But because it is necessary to be known, that there are many wayes, allowed by the common-Law, to try matters of fact, besides [Page 7] this by Juries: I will here repeat some of them; And for this, first hear the Oracle, who tells you,1. Com. fol. 74. that he read of six kindes of Certificates, al­lowed for Tryalls, by the Common-Law.

1.Tryalls by Certificate. The doing of service by him that holdeth by Escuage in Scotland, was to be tryed by the Kings Marshall of his Army, Person Certificat en es­cript south son seal q̄ serra mis a les Justices, saith Littleton.

2. If it be alleadged in avoydance of an Outlawry, that the Defendant was in prison, at Burdeaux, in the Ser­vice of the Maior of Burdeaux, It shall be tr [...]ed by the Certificate of the Maior of Burdeaux.

3. For matters within the Realm, The Custome of London shall be Cer­tified, by the Maior, and Aldermen, by the mouth of the Recorder. vide apres 17.

4. By the Certificate of the Sheriff, upon a Writ to him directed, in case [Page 8] of Priviledge, if one be a Citizen or forreiner.

5. Tryall of Records, by Certifi­cate of the Judges, in whose Custody they are by Law. All these be in tem­porall Causes.

6. In Causes Ec [...]lesiastical, as loyalty of Marriage, general Bastar­dy, Excommengement, Profession: These and the like are regularly to be tryed by the Ce [...]tificate of the Ordina­ry. apres vide 16.

Records.7. Matters of Record shall be tryed by the Record it self, and not per Pais. And for this Reason,Why there needs no visne, where Letters Patents were made; other­wise in plead­ing Deeds. in pleading of Letters Patents, the place néed not be alleadged, where the Letters Patents were made, because the Defendant cannot plead nul tiel Record, but must plead, non concessit, and then the Jury shall come from the place where the Lands lie. Vide, li. 6. fo. 15. 1 Com. 117.260. Plo. Com. 231. But upon a Non est factum pleaded to a Deed, there must be a place alleadged where the Deed was made, because (though [Page 9] the Deed, as to the matter of Law, be tryable by the Court, yet) the sealing and delivery thereof, and other matter of fact, must be tryed by the Iury; so that in this case of a Deed, there is a Tryall per Pais, and by the Court. 1 Com. fo. 35. vide apres. 18.

8. A Peer of the Realm. i. e. a Lord of the Parliament, Peers. shall upon an In­dictment of Treason, or Felony, mis­prision of Treason, and misprision of Felony, be tryed by his Peers without Oath, 1 H. 4. 2. But in an Appeal at the Suit of the party, he shall be tryed per probos & legales homines Juratores. 10 E. 4. 6. &c. because that is not the Kings Suit, but the parties. Vide, li. 9. 31. Le case del abbot de Strata Mercella. And in a Premunire, his Tryall shall be per Pais. Bolstr. 1. part 198. Dutchesses, Countes­ses, or Barronesses, although married, shall be tryed, as Péers of the Realm are, but so shall not Bishops and Ab­bots. Stam. 153. 20 H. 6. 9.

9.Customs of Courts, &c. tryed by the Judges. The Customs and usages of e­very Court shall be tryed by the [Page 10] Iudges of the same Cout, if they are pleaded in the same Court, ib. and many other things are tryed by the Judges, as the reasonableness of a fine of an offender or upon surrender of a Copy-hold Estate; and so it is of Cu­stomes, Services, and also of the time that a Tenant at will shall have to carry away his Goods: And these Cases come under the Rule, which makes matter of Law to be tryed by the Judges; Vide 1 Com. fo. 56. And in some Cases matter of fact shall he tryed by the Iudges, as if the Plain­tiff appe [...]r by Attorney in Court, and then the Defendant pleads that the Plaintiff is dead; If one appeares, and saith, that he is the Plaintiff, whe­ther he is, or not, shall be tryed by the Iudges, li. 9. 30. So the non-age of an Infant, generally, and Maihme, by inspection of the Court. But in many Cases, Infancy shall be tryed per Pais, as if an Infant appear by Attorney, in Error, this shall be tryed per Pais, Bulstr. 1 part 131. li. 9. 31. and so it is in an Ae­tate probanda.

[Page 11]10.Tryals by Witnesses. There are many Tryalls al­lowed by the Common Law, by Wit­nesses onely, without a Jury, as of the life and death of the Husband in Dower, so the proof of a Summons, or the Challenge of a Juror, must be tryed by Witnesses; and regularly, the proof ought to be by two or thrée Witnes­ses, 1 Inst. 6. and divers other things must be tryed by examination of the parties and Witnesses, as the Tryall by Wager of Law, &c. Finch 423.

11. Duke or no Duke, Dukes, &c. Earl or no Earl, Baron or no Baron, shall be tryed by the Kings Writ. lib. 5. 35. lib. 6. 53. But Dutchess or no Dutchess, &c. by marriage, shall be [...]ryed per Pais, be­cause the marriage is matter of fact.

12. In a Plea del alien nee, the League League. betwéen the King, and the So­veraign of the Alien, shall be tryed by the Record of the Chancery, for every League is of Record. lib. 9. 32.

13. If a Mannor be ancient demene, or not?Mannour. It shall be tryed by the Book of Doomesday, which is in the Exche­quer. [Page 12] But whether certain Acres be parcel of such a Mannor, or no, it shall be tryed by the Country. ib.

Courts not of Record.14. The procéedings of a Court, which is not of Record (as the County Court, the Hundred Court, the Court Baron, &c. shall be tryed by the Country, and not by the Rolls of the Court, because they are no Record. ib. Co. Lit. 117. b.

Wills and Ad­ministration.15. Whether the Ordinary com­mitted Administration to the Plaintiff, or whether the Testament was proved before the Ordinary, or whether suc [...] a Will, be the Will of the party, or whether he dyed intestate, or not? In all these Cases, the tryall shall be p [...]t Pais, because probate of Will, and Constituting Administrato [...]s, did not belong to Ecclesiastical Judges original­ly, but were given to them of late. But the tryall thereof is left to the Common Law, and was not given to them. lib. 9. 32. 40.

Plo. Com. 267. Special Ba­stardy.16. In an Action upon the Case for calling one Bastard, the Defendant ju­stified [Page 13] that the Plaintiff was a Bastard: And it was awarded that this should be tryed per Pais, and not by t [...]e Or­dinary, Hob. 179. Devant. 6. And so a Plea that the Plaintiff was born at such a place before marriage, this is special Bastardy, and shall be tryed per Pais. Plo. 14. Dyer 89.

17. When an Issue is taken, whe­ther a Custome or no Custome in Lon­don, Customs of London. If the Maior, Commonalty, and Citizens be parties or interessed in the Action, This Custome shall be tryed by a Jury, and not by the Certificate of the Maior and Aldermen, by the Re­corder. Hob. 85. Day and Savadges Case. Devant. 3. Stiles. 137. Moor 871. vide apres tit. Visne.

18.Matter of Re­cord, mixt with matter of Fact. A matter of Record bring mixt with a matter of fact, shall be tryed per Pais, and not by the Record. Hob. 244. Peter and Staffords Case. De­vant. 7.

19. In Writs of Right,Tryalls by Battail. and Ap­peals that touch life, Tryall may be by Battail, or by Jury, at the D [...]fen­dants [Page 14] choice; The Battaile, in a Writ of Right, must be by Champions, (who must be Fréemen.) But in an Appeal, it must be in proper person. The Champions, in a Writ of Right are not bound to fight longer than untill the Starrs appear; and if the Cham­pion of the Tenant can defend him­self untill then, the Tenant shall prevail: The Iudges of the Court of Common Pleas, are Iudges of the Battel, in a Writ of Right; and the Iudges of the Kings Bench in an Appeal of Felony; It séems they sel­dom or never killed one another in this tryall of Battel, for their Wea­pons were but Batoones, and he that was vanquished, was presently upon Proclamation made, to acknowledge his fault, in the Audience of the People, or else to cry Cravent in the name of Recreantise, &c. and upon this, Iudgment was to be given, and after this the Recreant should amittere liberam legem, that is, should become infamous, &c. 2 Institutes 247. Finch. 421. lib. 9. 31. Mirror of Justice 161. 162, &c. 1 Inst. 294.

[Page 15]20. In a Writ of Disceit, Recovery by default. upon a Recovery by default, The Tryall shall be, If the Iudgement was given upon the Petit Cape, by the Summoners, If upon the Grand Cape, by the Sum­moners, per nors, or velors, and not per Pais; So if a Recovery by default in a reall Action be pleaded, to which the other saith, Nient Comprise, Nient Com­prise. this shall not be tryed per Pais, but by the Sum­moners and Veiers, lib. 9. 32.

21.Wager of Law. In debt upon a simple Con­tract, Detinue, &c. The Tryal may be by Wager of Law, or per Pais, at the Defendants Election. But when the Defendant wageth his Law, he ought to bring with him eleven of his Neighbors, who will avow upon their Oath, that in their Consciences he saith true, so as he himself must be sworn de fidelitate, and the eleven de Credulitate. Ib. Finch 423. and 1 Inst. 295. you may read excellent Learn­ing concerning this Tryall.

22. If Profession Profession. be denyed, it shall be tryed by the Court Christian; But if the time of the Profession be in Issue, [Page 16] this shall be tryed by the Country. lib. 4. 71. So though an Inrollment,Inrollment. or other matter of Record, cannot be tryed per Pais, yet the time when the Inrollment was made, may be tryed per Pais. Appearance. So whether the party ap­peared in such a Court, Sheriffe. or on such a day, &c. shall be tryed per Pais. Cro. 3. part. 131. So whether one was She­riff such a day or not. Cro. 1. part. 421. Admission, Admission. &c. Institution, Plenarty, and A­bility of the Parson, shall be tryed by the Bishop. But Induction shall be tryed by the Country,Plenarty. and so shall Avoy­dance by resignation. Dyer 229. Moor 61. and voyd, or not voyd shall be tryed per Pais, 1 Inst. 344. And Ple­narty, if the Clerk be dead, Mirror of Justice 324. li. 6. 49. The Cause of refusal of a Clerk by the Bishop,Lib. 6. 49. shall be tryed by the Metropolitane, if the Clerk be living; but per Pais, if he be dead. l. 5. 58.

Ideocy.23. An Ideot, found so from his Nativity by Office, may come in per­son in the Chancery, before the Chan­cellor, and pray that before him, and such Iustices or Sages of the Law, [Page 17] which he shall call to him (who are called the Councel of the King), he may be examined, whether he be an Ideot, or no; or by his friends he may sue a Writ out of Chancery, retornable there, to bring him into the Chancery, Ibidem Coram nobis, & concilio nostro examinand. lib. 9. 31.

24. If it be in question, wh [...]ther the Sheriff made such a retorn or not,Sheriffe. It shall be tryed by the Sheriff if whe­ther the Undersheriff made such a Re­torn or not, it shall be tryed by the Undersheriff; If the question be, whe­ther such a one be Sheriff or not, It shall be tryed by the Examination of the Sheriff, yet he is made by Letters Patents of Record, and therefore it may be [...]ryed by the Record. ib. Cro. 2. part. 421.

25. If an Approver say,Durer. that he Commenced his Appeal before the Co­roner per dures, this shall be tryed by the Record of the Coroner; and if it be found that he did it without dures, he shall be hanged, ib. Corone br. 75.

[Page 18]26. The Tryall, whether a Statute Statute. shewed before, be the true Statute or not, shall be by the Examination of the Maior, and Clerk of the Statutes, which took the Statute, and not per Pais, ib. whether a Statute hath two Seals or not, shall be tryed per pais, Leon. 1 part. 228, 229.

27. In Assise the Tenant said, that the Lands were taken into the Kings hands, this shall be tryed by the Examination of the Escheator. Escheator.

Certificate.28. If one in avoydance of an Out­lawry, alledge that he was in Prison at Burdeaux, ultra mare in servitio Ma­joris de Burdeux, this shall be tryed by the Maior's Certificate; and in such like Cases, other Tryals shall be by the Certificate of the Marshall of the Host, and by the Captain of Calice, and also by Messenger,Messenger. of a thing done beyond Sea. Ib.

29. At the Petit Cape, Petit Cape. the Tenant said that he was imprisoned 3. dayes before the default, and 3. days after, this shall be tryed by the Examination [Page 19] of the Attorney; Nient Attach. per. 15. jours in Assize shall not be tryed per pais, but by examination of the Bay­ley.Bayley. Ib.

30. It séems an Almanack Almanack. is so in­fallible, that it hath countervailed the Verdict of a Jury, For in Error of a Iudgment given in Lynne, The Er­ror assigned was, that the Iudgement was given at a Court held there on the 16th day of February, 26 Eliz. and that this day was Sunday, and it was so found by Examination of the Alma­nacks of that year, upon which it was ruled, that this Examination was a sufficient Tryall, and that a Tryall per pais, was not necessary, although it were an Error in Fact; and so the Iudgment was reversed. Cro. 1 part. last pub. fo. 227.

31.Ordeale. In ancient times there was a Tryall in Cryminall Causes called Ordalium, for upon Not guilty plead­ed, the Defendant might put himself upon God and the Country (as is the [...]e at this day) or else upon God only, [Page 20] 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 [...]o in this whole Treatise, where I refer you to a Book, I shall not s [...]t down the Authorities cited in that Book, which will avoid pro­lixity.

[Page 21]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 b [...]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 De [...]d, may have an Appeal before the Constable and Marshall, who sentence upon the testimony of Wit [...]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 w [...]en there are several Is­sues, which of them shall be first tryed; [Page 22] 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, [Page 23] 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 Re­leaseRelease. 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 [Page 24] 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.

H [...]ving given you the Epitome of what Tryals are allowed by t [...]e Common Law, and what shall be tryed per pais, and what not; we shall now a [...]ply our selves more particular­ly to the Tryal by Juries: And be­c [...]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 [Page 25] 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 [...]am Idem D. quam predict. F. [Page 26] 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 Vice Comiti, i. e. to one who is Vice Comitis, and hath the Regiment of the County, instead of the Earl of that County, to whom once it did belong: As we are [Page 27] taught in the Mirror, Chap. 1. Sect. [...]. Scil. That it appeareth by the Ordi­nance of ancient Kings before the Con­quest, That the Earls of the Coun­ties had the Custody or Guard of the Counties; and when the Earls left their Custody or Guards, then was the Custody of Counties committed to Viscounts, who therefore are called Vice Comites.

What great Repose and Trust both the King and Laws put in this great Officer, The Oracle tells you,What Trust in the Sheriff. 1 Inst. 168. That he is Shireve, that is, p [...]ae­fectus Comitatus, Governour of the County; For the words of his Pa­tent be, Commissimus vobis Custodiam Comitatus nostride, &c. And he hath a thréefold Custody, triplicem Custodiam, viz. first, Vitae Justiciae, for no Suit be­gins, and no Proces is served but by the Sheriff, And he is to return indif­ferent Juries for the tryall of mens lives, Liberties, Lands, Goods, &c. Secondly, Vitae Legis, he is after long Suits, and chargeable, to make Execution, which is the life and soul of the Law. Third­ly, [Page 28] Vitae Reipublicae, he is Principalis Conservator pacis, within the County, which is the life of the Common­wealth, for Vita Reipublicae Pax.

To whom the Venire facias ought to be directed.Yet notwithstanding the heighth and Latitude of this great Officers power and trust, The Law adjudges him in many Cases not capable, to do so much as return a Jury; For if he be of kindred by nature, or of affinity by Marriage to any of the parties, or (that I may say all, in a little,) if he be not as indifferent almost in all respects he is, whom the Law allows to be a Juror, he ought not to meddle with the retorning of the Jury. But the Venire facias shall be directed to the Coroners, Coroners. (or to some of them, if the residue are not indifferent) who in that Case are vice, Vice Com. And if the Coroners are not indifferent,Forrescue, cap. 2. 5. then the Venire shall be directed Ad 2 Electores, that is, to two whom the Court shall chuse and déeme fit to retorn the Jury; And to the retorn of these Elisors or Esliors, Esliors. ab Eligendo, no ChallengeChallenge. will be ad­mitted. Bro. tit. Venire facias 14. as to [Page 29] the Array; But to the Polles, 1 Inst. 158. If one of the Sheriffs of London Sheriff of London. be a party, then the Venire may be di­rected to the other Sheriff, If the Vn­der Sheriff be a party, yet the Venire may be directed to the Sheriff, with this Proviso. Quod sub Vic. tuus in in nullo se intromittat cum executione istius brevis. 18 E. 4. 3.

Iudicial Writs (say Cook and San­ders, Plo. 74.) may be directed to the Coroners; As the Venire facias, where the parties are at Issue; there, upon the surmise of the Plaintiff, that the She­riff is his Cozen, and upon prayer that the Venire be directed to the Coroners, Coroners. for avoydance of his own delay that might happen by the Challenge of the Array, The Defendant shall be exa­mined whether it be true, or not, and if he confess it, then the Venire shall be awarded to the Coroners; for then it appeares to the Court by the Defen­dants confession that the Sheriff is not indifferent;Examination. But if the Defendant denies it, then the process shall be a­warded to the Sheriff, because the [Page 30] Sheriff's Authority and profit shall not be taken away, without cause ap­parant to the Court; But if the De­fendants will alledge any such mat­ter, and pray a Venire facias to the Co­roners, there the Plaintiff shall not be examined, neither shall such allegati­ons be allowed, because delayes are for the Defendants advantage,The Defendant may not have a Venire facias to the Coro­ners. and the Defendant may challenge the Iury for this cause, and so is at no pre­judice.

And sée in term. H. 3. H. 7. fo. 5. placit. ult. In a quare Impedit, where the De­fendant shewed how the Sheriff was Cozen to the Plaintiff, and prayed a Writ to the Coroners, but it was de­nyed him upon the same Reason. Fitz. tit. suggestion placit. 8. br. Challenge. 153.

Venire facias once directed to the Coro­ners, shall not be to the Sheriff after­wards.When the Process is once awarded to the Coroners, for a default in the Sheriff, if there be a new Sheriff made afterwards, who is indiffe­rent, yet the Process shall not re­vert, but continue to the Coroners pen­dant le plea. 14 H. 7. 31. bro. tit. Venire [Page 31] facias. 17. So the Entry is, Ita quod Vice comes se non intromittat. 18 E. 4. 3.

And therefore where the Sheriff ought not to retorn the Venire, Sheriff shall not return the Tales, where he cannot the Venire faciar. he can­not retorn the Tales; For in Error in the Exchequer Chamber of a Iudge­ment in the Queen's Bench, the Error assigned was, because the Venire facias was awarded to the Coroners, for Con­sanguinity in the Sheriff; and it was retorned by the Coroner, And after­wards a Tales was awarded, and it was returned by the Sheriff, and it was tryed, and a Verdict given, and Iudg­ment. And for this c [...]use held to be Erroneous, and not aided by the Sta­tute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed. Cro. 1 part. ult. pub. 574. bro. tit. octo. ta­les 9.

I will instance one Case more in the same Reports, fo. 586. because it is very full in the point. After Issue in Trespass, the Plaintiff for his expedi­tion surmised, that he was Servant to the Sheriff, which being confessed by the Defendant, the process was awar­ded [Page 32] to the Coroners, and after Ver­di [...],Where the Coroner re­turns the V [...]nire facias, he ought to return the Tales. it was moved in Arrest of Iudge­ment, that the Tales de Circumst [...]ntibus was awarded, and returned by the Sheriff; which was held by the whole Court to be good cause for Staying the Iudgment: For it is a mis-ryall, not aided by any of the Statutes; for process being once awarde to the Co­roners, the Sheriff afterwards is not the Officer to return the Iury, no more than any other man. And process ought alwayes to be returne [...] by him, who is an Officer by Law to return it, other­wise it is méerly void; But afterwards upon view of the Record, it ap [...]eared that the Tales was returned by the Co­roners, No name to the Return. and their names annexed there­to, wherefore it was without further question. But the Court said, if their names had not béen annexed to the Tales, yet it had béen well enough; for they be annexed to the first Pannel, And it shall be intended, that the right Officer returned it, and the usuall course is, That to such Tales there is not any Officers names subscribed, and yet it is good enough; for it is not [Page 33] within the Statute of York, which appoints that the name of the She­riff should be subscribed; But it was moved, that the Record of the Postea is, that the Tales were returned by the Sheriff; But the Court held, that it was amendable, and it was done accordingly, and the Plaintiff had Iudgment.

But if the Venire be awarded to the Coroners, for default in the Sheriff, and they do nothing upon the Writ, then I suppose,Venire facias to the Sheriff, after one a­warded to the Coroners. upon a default discovered in the Coroners, de puisne temps, the party may shew this to the Court, and have a Venire awarded to the Sheriff, (if there be an indifferent one made in the mean time) er else to Essiors, & sic e con­verso.

In Error of a Iudgment in Che­ster, the parties being at Issue,Venire facias to the Coroners, after one to the Sheriff. a Venire was awarded to the Sheriff. And at the day of the Return, it was entred Quod Vice comes non misit breve. And then the Plaintiff [Page 34] prayed a Venire facias, to the Coro­ners, for Cousinage betwixt him and the Sheriff; which was awarded accordingly, and at the day of Tryall, the Defendant made de­fault, and thereupon, Iudgment, Error was assigned, because that after the Plaintiff had admitted the Sheriff to execute the Writ, he could not pray a Venire facias to the Coroners, without some cause de pu­isne Temps, sed non allocatur, be­cause there was nothing done upon the first Writ. And the Defendant having made default, it was not materiall. Cro. 1 part. ult. pub. 853.

But the Defendant might have demurred to this Prayer;No Venire fa­cias to the Coroners, after one to the Sheriff. For if the Plaintiff pray a Venire facias, to the Sheriff, he shall not chal­lenge the array, nor have a Venir [...] afterwards to the Coroners, becaus [...] the Sheriff is his Cozen, or fo [...] any other principall Challenge whereof he might by common in­tendment have Conusance, when h [...] so prayed the Venire facias; for up­on shewing this Cause at first, h [...] [Page 35] might have prayed Process to the Coroners; But for a principall Challenge, of which by common in­tendment, the Plaintiff could not know at the first, as that the Defen­dant is of kindred to the Sh [...]riff, &c. he may afterwards challenge the array, when th [...]y appear, or if the Sheriff doth nothing upon the Writ, he may pray a new Venire to the Coroners. 15 H. 7. 9.

If the Plaintiff prayes a Venire facias to the Coroners, If the Defen­dant d [...]nies the Plaintiffs sug­gestion, he shall have no b nefit of it by Challenge. because he is of kindred to the Sheriff, if the Defendant will not confess this, but denyes it, this shall be entred, and the Defendant shall not chal­lenge the Array for this Cause af­terwards. br. tit. Venire facias 21. and 23.

If a Venire facias be awarded to the Coroners, By Consent, the Venire fa­cias may be directed to a wrong Officer. where it ought to be to the Sheriff, or the Visne cometh out of a wrong place, yet if it be per assensum partium, and so entred of Record, it shall stand, for omnis consensus tollit errorem. 1 Inst. 126. [Page 36] li. 5.Mistryall with­out such con­sent.36. But if it be directed to the Coroners, where it ought to be to the Sheriff, without such consent of parties: This is an insufficient Tryall, not remedied by any Sta­tute, except it be upon an insuffici­ent suggestion, and then the Stat. of 21 Jac. 13. helps it.

Vpon suggestion that the Plain­tiff and the Sheriff,Venire facias to some of the Coroners. and one of the Coroners are of kindred to the Plain­tiff, or Defendant, or upon any other suggestion which contains a Prin­cipall Challenge, the Venire facias may be directed to the other Coro­ners. Dier. 367.

Error of a Iudgment in North­hampton, because in Northampton the Court being held before the Maior, and two Bayliffs, Bayliffs. the Venire facias upon the Issue was awarded to the two Bayliffs, to return a Jury, be­fore the Maior and Bayliffs, Se­cundum Consuetudinem: which be­ing returned, and Iudgment given, the Error assigned was, because the [Page 37] Bayliffs being Iudges of the Court, could not also be Officers, to whom Process should be direct­ed, there being no Custome that can maintain any to be both Officer and Iudge. But all the Court (ab­sente Hide) conceived it might be good by Custome. And that it is not any Error, for the Iudges be not the Bayliffs onely, but the Maior and Bayliffs; and it is a com­mon course, in many of the Antient Corporations, where the Bayliffs are Judges, Judge and Of­ficer to return Writs. or the Maior and they be Judges; yet in respect of executing Process, they be the Officers also. And one may be Iudge, and Officer dive [...]sis respectibus, as in Redisseisin, the Sheriff is Judge and Officer: Whereupon Iudgment was af­firmed. Cro. 1 part. 138.

In Trespass and Assault laid in the Court,Venire facias to the Garden of the Palace of Westminster. to be at the Palace of Westm. It was adjudged, that the Venire facias shall issue al Gar­den del Palice, and not to the [Page 38] Sheriff of Middlesex. Bro. tit. Ven. fac. 31.

CAP. VI. What faults in the Venire fa­cias shall vitiate the Tryall, what not, when a Venire fa­cias de novo, shall be award­ed; when severall Ven. fac. When the Venire facias shall be betwixt the party and a stranger to the Issue; Who may have a Venire facias by Proviso, and when.

Ve [...]ire facias, why the Writ so called.VVE have now shewed you to what Officer the Venire facias shall be directed; The next step in the Writ is Precipimus tibi quod Venire facias, Which words, Venire facias, are the most effectuall words in the Writ, and therefore they give the denomination to the [Page 39] whole Writ. And here opportu­nity is offered us, to speak some­thing of a Venire facias in generall. I am not ignorant how our Books swarm with Cases which arise from the defects in this Process, and how that Verdicts have béen set aside, Iudgments stayed, and reversed, for want of sufficient Returns, mis­awarding, disagréement with the Rolls, discontinuance, and many o­ther faults in this Writ. But the Statutes of Ieofailes (especially the Statute 21 Jacob. cap. 13.) have pardoned (as I may so say) these enormities; As,Statute of Jeof iles. 21 Jac. 13. the awarding this Writ, hab. Corpora, or distringas to a wrong Officer, upon any insufficient suggestion, or by reason the Visne is in some part misawarded or sued out of more places, or of fewer places than it ought to be, so as some place be right named, The misnaming of any of the Jury, either in Sur-name, or ad­dition of any of the said Writs, or in any Return thereupon, so that upon examination, it be proved to be the same man that was meant to be re­turned; [Page 40] or if no Return be upon any of the said Writs, so as a Pannel of the names of the Jurors be returned, or an­nexed to the said Writ; or if the Sheriff or Officers name, having the Return thereof, is not set to the Return of any such Writ, so as upon Exami­nation, it be proved that the said Writ was returned by the Sheriff, or Under-Sheriff, or such other Officer. In all these Cases, the Iudgment shall not be stayed, nor reversed for these defects.

But this Act doth not extend to any Writ, Declaration, or Suit of Appeal of Felony, or Murther, nor to any Indictment, or Present­ment of Felony or Murther, or Treason; nor to any Process upon any of them; nor to any Writ, Bill, Action,Popular Acti­ons, &c. or Information upon any popular, or penall Statute: Wherefore since Informations, and popular Actions are grown so frequent, the Attorneys, &c. herein had best beware of these Jeofailes.

By this Statute, many defects are remedied, which were not by the Statutes of 32 H. 8. Cap. 30. and 18 Eliz. Cap. 14. yet all are not; for this Act onely helps the mis-na­ming of a Juror, in Sur-name, or addition,Christian name mistaken in the Venire facias, incu­rable. and saith nothing of his Christian name: wherefore I con­ceive the Law in Codwells Case, in the fifth Report, remains as it was then; which is, that if a Juror be mis-named in his Christian name, on the Venire, though he be named right in the Distringas, and Postea, yet this is ill, and not amendable; and with this agrées, Goddards Case, Cro. 2. part. 458.

And since the Court (Cro. 1 part. fo. 203.) doubted thereof,Christian name right in the Venire faci­as, and wrong in the Distrin­gas. I may well put the Question, if a Juror be right named upon the Venire, and mis-named in his Christian Name, in the Distringas, &c. whether this is amendable, or not; without dis­pute, it is not by the Statute 21 Jacob, for that onely helps the Sur-name. But with Reverence [Page 42] to the Courts doubt, I conceive clearly, it is h [...]lpen by the Sta­tutes of 32 H. 8. and 18 Eliz. as a discontinuance of Process; and I may with the more confidence be­lieve it, because in Codwells Case aforesaid, where in the Pannell of the Venire, a Juror was named Palus Cheale, and in the Distringas, &c. he was right named Paulus Cheale, and so because he was mis-named in his Christian Name, in the Venire, Iudgment was arrested. But it is there adjudged, that if he had béen well named on the Venire, and mis-named upon the Distringas or Postea, then upon Examination, it should be amended. But the Coun­tess of Rutlands Case, lib. 5. 42. is expresse in the point, and so is Cro. 3. part. 860.

And it is to be known, that in most Cases, where the Venire facias, Hab: Corpora, or Distringas be de­fective, they are to be amended; but if the Malady be so fatall in the Ve­nire, that it causes a Mistriall, (as [Page 43] in the mistake of a Jurors Christian Name, or where a Juror not return­ed is sworn, &c.) then the Verdict is to be set aside, and a Venire facias de novo, Venire facias de novo. to be awarded; and so was it to be upon those mistakes, (now amendable by the Statutes,) before the making thereof. And where a Jury giveth a Verdict which is ac­cepted, and recorded by the Court,One Jury shall not try a cause twice. be the Verdict perfect or imperfect, the Jurors are discharged, and shall never try the same Issue again up­on a new Nisi prius. But if the Ver­dict be so imperfect, that Iudgment cannot be given upon it, then the Court shall award a Venire facias, de novo, to try the Issue by other Jurors. li. 8. 65. Bulstr. 2 part. 32.

In Yelvertons Reports, fo. 64.Album breve, the County left out in a Veni [...]e facias. the Case is, That a Venire facias was made Vice-Comiti, (leaving out) Salop, for which there was a blanck le [...]t in the Writ. But re vera, it was returned by the Sheriff of Salop. In Arrest of Iudgment it was alleadged, that the Venire [Page 44] facias was vitious for this cause; But Gawdy said it should be a­mended, And by Fenner and Williams, It is as no Writ, because it is not directed to a­ny Officer. And then it is ayded by the Stat. of Jeofailes, For it might rather be called a blanck, then a Writ, because it was directed to no Officer.

Severall Ve­nire facias.In Cases where there are seve­rall Defendants, who plead several Pleas, the Plaintiff may chuse either to have one Venire facias for all, or severall, for every one of the Defendants; But (if you will be ruled by Stamford) the surest way is to have a Venire facias against every one, and then one cannot have benefit of the others Challenge: neither shall the death of one abate the Venire facias against the other; (This he speaks of in Appeals) but if the Court once award a joint Venire facias, you cannot have seve­rall Venires afterwards, though there be nothing done upon the first; [Page 45] except it be upon matter de pu­isne Temps, as the death of one of the Defendants, &c. li. 8. 66. li. 11. 5. 6. Stamf. 155. bro. tit. Venire fa­cias 2. 35.

But now it is the usuall course to have but one Venire facias, One Venire facias in seve­rall Issues. upon severall Issues, though against seve­rall Defendants, Cro. 3. part. 866. hob. 36. 64. And so usuall, that the Court declared, Cro. 2. part. 550. That there never shall be severall Venire facias to try severall Issues in one County; For what néed the Plaintiff trouble himself, and the Country, with severall, when one Iury will serve his turn; Et frustra fit per plura quod fieri potest per pau­ciora. But other wise, if it be in two Counties. Cro. 3. part. 866.

After Issue joyned by two De­fendants, if one of them die,Venire facias between the Plaintiff and 2. Defendants where one is dead. and then a Venire facias is awarded be­twixt the Plaintiff, and both the Defendants, and so in the Hab: Cor­pora and Distringas, yet this shall not [Page 46] vitiate the Venire facias, &c. to make Error, because though one of the Defendants be dead, yet the other being alive, it is sufficient. And there néeds be no surmise in Iudiciall Writs,No surmise in Judicial Writs of death in one of the parties. that one of the Defendants is dead; It is time enough to shew it to the Court at the day in banck. Cro. 1 part. 4. 26. But if there be two Defendants, and the Venire facias be but against one of them, 'tis Error, 7 H. 4. 13. and bro. tit. ven. fac. 11. Cro. 1. part. 426.

Venire facias dated before the Action brought.If the Venire facias beares date before the Action brought, or varies from the Roll, yet it is aided by the Statutes of Jeofailes. Cro. 1. part. 38. 90, 91. 203, 204. Miscontinu­ance or discontinuance, or misconvey­ing of Process, is ayded by 32 H. 8. 30. The want of any Writ Originall or Judiciall, Jeofailes. defaults in their form, and insufficient Returns thereupon, are ayded by 18 Eliz. 14. Cro. 3. part. 259. But you must have a care the Venire facias be not faulty in any other matters of Substance; for if the [Page 47] parties names be mistaken,Parties names mistaken in a Venire facias. or the Issue, as if the Issue be ne unques Executor, and the Venire facias be in placito debiti, &c. this is a Mi­stryall.Mistryall. Cro. 2. part. 528. So it is, if the Venire facias be in placito transgressionis, where the Action is in placito transgressionis, & ejectionis firme. This in sawarding of Process is not ayded by any of the Sta­tutes, and better it was, that there had béen no Venire facias at all in such a Case;No Venire fa­cias holpen. for then the Statutes would have holpen it. Cro. 3. part. 622.

In some Cases a Venire facias shall be awarded to make an En­quest betwixt a stranger to the Writ and Issue and the party.Venire facias between a party and a stranger. I will instance but in one, and that is upon the Statute of Westm. 2. cap. 6. If a Tenant being implead­ed vouch to warranty and the Vou­chée denieth the Déed, or other cause of the Warranty, &c. That the Demandant may not hereby be delayed, he may sue out a Venire [Page 48] facias to try the Issue betwéen the Tenant and Vouchée.

Inquest at whose request.Inquests in Pleas of Land, shall be as well taken at the Request of the Tenant, as of the Demandant. 2 E. 3. cap. 16. If the Plaintiff, or Demandant, defisteth in prosecu­ting his Action,Venire facias by Proviso. and bringeth it not to Tryall, then the Defendant, or Tenant may sue forth a Veni. facias with a Proviso, which is to no other end, but that the Sheriff should summon but one Iury, if the Plain­tiff also should have brought him another Writ, to the same pur­pose; And although, (as my Lord Dyer saith, fol. 215.) the granting of this Venire facias, &c. with a Pro­viso, depends much upon the discre­tion of the Court, yet for the grea­ter part, it is not grantable for the Defendant, unless when he is actor as well as the Plaintiff, or unless there be a default, and Laches in the Plaintiff; therefore there can be no Tryall by Proviso against the King (unless with the Attorney [Page 49] Generall's consent,) because no de­default, or Laches can be imputed to the King: But an avowant in Replevin,Proof presently after Issue joyned. may have a Venire facias with a Proviso, immediately after Issue joyned, because he is actor, and in nature of the Plaintiff.

But note the Nota (in Stamford's Pleas, del. Coron. fol. 155.How the Plain­tiff may stop the Defendants Proviso.) That if by negligence of the Plaintiff, the Defendant sues a Venire Facias with a Proviso, yet the Plaintiff may at his pleasure stay the Defendant, that he shall not procéed in his Process; in praying a Tales, upon the Defen­dants Proces, as it appeares T. 15 H. 7. fol. 9. And the Defendant shall nevet be received to persue this Process with a Proviso, so long as the Plaintiff persues, or is ready to persue, as appears, Mich. 14 H. 7. fol. 7.

And séeing the Tales menTales men. offer themselves to us, we will tell them upon what accompt t ey come, be­fore they thrust themselves into the [Page 50] Inquest, commonly for the love of eight pence; but it may be, to do some of their Neighbours a shrewd turn.

CAP. V. Why the Venire facias runs to have the Jury appear at West­minster, though the Tryall be in the Country. Of the Writ of Nisi prius, when first given, when gran [...]able, when not, and in what Writs. Of the Tales at Common Law, and by Statute. When the Trans­script of the Record of the Nisi prius differs from the Roll, whereby the Plaintiff is non-suited, he may have a Distringas de novo.

BVt to observe the Method of the Writ, the next words are [Page 51] Coram Justiciariis nostris de Banco apud Westminst. tali die. And here first of all, you may ask me to what purpose the Sheriff is commanded to cause the Iury to come to West­minster, when they are to try the Cause in the Country, and in truth are not to come to Westminster. I must confess the resolution of this question is not unnecessary: where­fore we must know, that originally, before the Writ of Nisi prius was given, the purpose for which the 12.Why the Veni­re facias is to have the Jury appear at West­minster. men were to be summoned upon the Writ of Venire facias to come to Westminster, was, that contained in the Writ, videl. Ad faciend. quan­dam Juratam; for then was the Try­all [...]ntended to be there, if a full Iury appeared; if not, then a Hab. Corpora, (with a Tales sometimes annexed to it, the form whereof you may sée in the Register) and if they did not appear at the Return in the Hab. Corpora, then went out the Distringas. Hab. Corpus. This I speak of the Common Pleas:Distringas. But the course of the Kings Bench, and Exchequer, is, [Page 52] after the Venire facias, to have a Distringas, leaving out the Hab. Corpora. Tryals then were all at the Barr. (I speak not of Assizes.) But now, because Iurors did not use to appear upon the Venire facias, it being without penalty; Tryals at the Barr,Tryals at Bar. are appointed upon the Hab. Corpora, and Distringas, because the Iury will more certainly ap­pear at the day in the Distringas, through fear of forfeiting Issues: which the Sheriff returns on the Distringas, not on the Venire facias. By the Statute of 18 Eliz. cap. 5. No Iury shall be compelled to ap­pear at Westminster, for the Tryal of an offence (upon any penall Law) committed above 30.Where a Jury is no [...] compel­lable to appear at Westminster. miles from Westminster, except the Attorny Ge­nerall can shew reasonable cause for a Tryal at Barr.

Thus it was at Common Law, before the giving of the Writ of Nisi prius, when all Iurors, toge­ther with the parties, came u [...] to the Kings higher Courts of Iustice, [Page 53] where the Cause depended; which (when Suits multiplyed) was to the intolerable burthen of the Country, 27 E. 1. cap. 4. wherefore by the Statute of Westminst. 2 cap. 30. A Writ of Nisi prius, Nisi prius, when first given, and wherefore. w [...]s first given; And that, in the Venire fa­cias, as we may sée in the form of the Writ there mentioned, Scil. Praecipimus tibi quod Venire facias coram Justiciariis nostris apud West­mon. in octabis, Sancti Michaelis, nisi talis & talis tali die & loco ad partes illas vene [...]int 12. &c. By which Writ it appears, that the Venire facias was not returnable, till after the day of the Nisi prius. N [...]si prius in the Venire facias. But the mischief thereof was so great, part­ly in respect that the parties not knowing the Iurors names, could not tell how to make their Chal­lenges, and so were surprized; and partly, in respect of the Iury, who were greatly delayed by the Es­soyns of the parties, that by the Statute of 42 E. 3. cap. 11. It is Ordained, That no Enquest, but As­sizes and deliverances of Goals, be ta­ken [Page 54] by Writ of Nisi prius, nor in o­ther manner, at the Suit of the great or small, before that the names of all them that shall passe in the Inquests be re [...]u [...]ned in the Court. The names of the Juro [...]s must be returned in­to the Court before any Tryall, and why. And their names must be returned upon a Pannel annexed to the Venire facias, so that either party may have a Co­py of the Iury, that he may know whom to challenge; And the Iury not coming upon the Venire facias, make a feigned default, which war­rants the Distringas, &c. unless they appear at the day of the Nisiprius.

So that by what hath béen said, you may perceive to what purpose,It is in the Courts discre­tion, whether to grant a Nisi prius, or not. the Sheriff is commanded to cause the 12. men to come to Westminster, though the Tryal be in the Coun­try. And that, ad faciend quandam Juratam, because it is in the discre­tion of the Court, whether to grant a Writ of Nisi prius, or to have a Tryall at the Barr; And for t [...]is, the Duke of Exeter being Plaintiff in Trespass, a Nisi prius was pray­ed for the Duke, and it was denyed, [Page 55] for that the Duke was of great power in that County. And if the Tryall should be had in the Coun­try, inconvenience might thereupon follow, as you may read, 2 Inst. 424. and 4 Inst. 161. Nay in some Cases, (as if the Cause require long exa­mination,When the Court cannot grant a Nisi prius. &c.) it is not in the power of the Court to grant a Nisi prius; if the King please: For in such Cases, as it appears by the Writ in the Register, 186.) the King by his Writ may restrain, and com­mand the Iustices, that they shall not award any Writ of Nisi prius, and if they have, that they super­sede it. F. N. B. 240. 241. No Nisi prius shall be granted where the King is party,Where the K [...]ng is con­cerned. without especiall Warrant from the King, or the Attorney Generalls consent. Stamf. 156. F.N.B. 241. 4 Inst. 161.

And now since the Nisi prius (for so it is called,Nisi prtus, why so called. because the word prius is before venerint, in the Di­stringas, &c. which was not so in the venire facias, upon the Statute of [Page 56] W. 2. cap. 30. before rehearsed,) must not be in the venire facias, be­cause the names of the Iurors are to be returned to the Couet, before the granting of the Nisi prius; therefore the Nisi prius is now in the Hab. Cor. and Distringas. And if the Sheriff return not a Pannel of the Iurors,No Nisi prius before the Venire facias is returned. upon the venire facias, there shall be no Nisi prius upon the Tales, untill a Pannel be returned. 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales.

The Tales at Common Law.A Tales is a supply of such men, as were impanalled upon the Re­turn of the venire facias, grantable, when enough of the principall Pan­nell to make a Jury do not appear, or if a full Iury do appear, yet if so many are challenged, that the resi­due will not make a Iury, then a Tales may be granted. And this at Common Law was by Writs of Decem tales, Octo tales, &c. (out of the Kings Courts) one of them af­ter another, as there was néed, un­till there was a full Iury. But [Page 57] now by the Statutes of 35 H. 8. 6. 4. 5. P.M. 7. 5 Eliz. 25. and 14 Eliz. 9.

The Iustices of Assize,Tales by Statute. and Nisi prius, at the Request of Plaintiff, or Demandant, Defendant or Te­nant, or of the prosecutor tam quam, (if two, more, or but one of the prin­cipall Pannel appear at the day of Nisi prius,) may presently cause a supply to be made of so many men as are wanting, of them that are there present standing about the Court; And hereu [...]n the very act is called a Tales de circumstan­tibus.

But since none can come after the Reporter, observe with me his Nota Lecteur, in his 10th Report 104. That at Common Law, in the granting of a Tales, five things are to be considered,

  • 1. The time of the granting, &c. thereof.
  • 2. The number of the Tales.
  • 3. The order of them.
  • 4. The manner of Tryall, that [Page 58] is, where, by them with others, and where, by them only.
  • 5. The quality of them is to be considered.

As to the first, 4 things are like­wise to be considered,

1. That the time of granting them, is upon default of so many of the principal Pannel, that there cannot be a full Inquest.

2. That at the time of granting them, the principall Array stand; for Tales are words similitudinary, and have refe [...]ence to the assem­blance, which then ought to be in esse; and therefore if the Array be quashed, or all the Polls challenged and treited, no Tales shall be award­ed, for then there are not Quales, but in such a Case, a new venire f [...]cias shall b [...] awarded. But if at the time of granting the Tales, the principall Pannel stand, and after­wards is quashed as aforesaid, yet the Tales sh [...]ll stand; For it suffi­ceth if there were Quales, at the time of granting the Tales.

3. It is to be observed, that he [Page 59] which is méerly Defendant, cannot pray a Tales, till the Plaintiff hath made default.

4. In some Cases, a Tales shall be granted after a full Ju [...]y appear & is sworn, as if a Jury be charged, and afterwards before a Verdict given in Court, one of them die, a Tales shall be awarded, and no new venire fa­cias, and so if any of the Iurors im­pannelled die before they appear; and this appears by the Sheriffs retorn, the Pannell shall not abate, but if there be néed, a Tales shall be awarded. And the time for Chal­lenge, and tryall of the Tales, is af­ter the principall Pannel be tryed; and if the principall Pannel be af­firmed, the same tryors shall try the Tales; But if it be quashed, then the two tryers of the princi­pall, shall not try the Tales.

As to th [...] second, to wit, the num­ber, two things are to be observed.

1. That in all Cases, the Tales ought to be under the number of the pri [...]ipall in the venire facias, (un­less [Page 60] in Appeales) as in Attaint, un­der 24. and in other Actions where the venire facias is of 12. under 12. And the Reason wherefore more than the number may be granted in Appeals of the Plaintiffs part, is, because the Defendant may chal­lenge peremptorily; and if default be in the Plaintiff, then the De­fendant may pray a Tales, and the Reason is in favorem vitae. and that he may expedite and frée himself from vexation, and the question of his life, for fear that his Witnesses should die.

2. That the number ought al­wayes to be certain, as 10. 8. 6. or 4. &c. But now by the Statute of 35 H. 8. a Tales de Circumstanti­bus may be granted, as well of an uncertain, as a certain number, and that by force of these words in the Stat. 35 H. 8. So many, &c. as shall make up a full Jury.

As to the third, to wit, the Or­der, It is to be known, that al­wayes [Page 61] in every new Tales, the num­ber shall be diminished, as if the first be 10. the second shall be 8. and so always lesse. But if the Tales awarded be quashed by Challenge, you may have another of the same number.

As to the fourth, to wit, the man­ner of Tryal, that is commonly by them with others; but by them only, when after the granting the Tales, the principall Pannel is quashed, then the Tryal shall be only by the Tales; or if the Tales do not amount to a full Enquest, another Tales to supply the former, may be granted.

As to the fifth, to wit,Therefore if [...]he Venire fa­cias be not de medietat. lin­guae, the Tales cannot. 3 E. 4.12. the Qua­lity of the Tales, they ought to be of the same quality as the Quales are; and therefore if the first be per medietatem linguae, of English and Aliens, so ought the Tales to be, so if the Principal be out of a fran­chise, so if the Venire facias be di­rected to the Coroners, so ought the Tales; and all things which are re­quired [Page 62] by the Law, in the Quale [...] are required in the Tales: as yo [...] may read in the aforesaid Sta­tutes. vide, Stamf. Plees del Coron [...] fol. 155.

Where a Iuror is withdrawn, when the Plaintiff intends to bring the Cause to Tryal again, he may have a Distringas, &c. with a Dece [...] Tales.

By the Statute of 23 H. 8. ca. 3. If there be not enough sufficient Fréeholders as are required in an Attaint, Attaint. in the County where such Attaint is taken; a Tales may be a­warded into the Shire next ad­joyning.

If the Transcript of the Record of the Nisi prius be mistaken, and not warranted by the Rolls, for which cause the Plaintiff becomes non-suit, he may have a Distringas de novo, Nisi prius a­mendable. upon motion to the Court, and the Postea shall not be recorded, Cro. 1 part. 204. For there is but a [Page 63] Transcript of the Record sent to the Iustices of Nisi prius. Justices of Nisi prius, and Justices of Assise. First they were Justices of Assize, and therefore they retain that name still, though Assizes are very rarely brought: For this common Action of Ejectment hath Ejected most reall Actions; and so the Assise is almost out of use.

CAP. VI. Of the number of the Jurors, and why the Sheriff returns 24. though the Venire facias mentions but 12. If he re­turns more or lesse, no Error, and of the number 12.

NOw for the Quales: and these you sée for number, must be 12. by the Common Law, D. and St. fo. 14. for quality, liberos & lega­les homines. And first of their num­ber 12. And this number is no less estéemed of by our Law then by Ho­ly Writ; Of the number 12. If the 12 Apostles on their 12. Thrones, must try us in our eternall State, good Reason hath the Law to appoint the number of 12. to try our temporall. The Tribes of Israel were 12. the Pa­triarchs were 12. and Solomon; Offi­cers [Page 65] were 12. 1 King. 4.7. There­fore not only matters of fact were tryed by 12. But of ancient time, 12.Plow. Com. in proaemio. 12 Judges. Iudges were to try matters in Law, in the Exchequer Chamber, and t [...]ere were 12. Counsellors of State, for matters of State; And he that wageth his Law, must have 11. o­thers with him, which think he sayes true.Less then 12. in Inquests of Office. And the Law is so pre­cise in this number of 12. that if the Tryall be by more or less, it is a Mys-triall; But in Enquests of Of­fice, as a Writ of Wast,Finch 400. 484. there less than 12. may serve. F.N.B. 107. c. and in Writs to inquire of Dama­ges, the just number of 12. is not requisite, for they may be over or under; And although there can be no Verdict, but by 12. yet by anci­ent course and usage, (which as my Lord Cooke tells you, makes the Law in this Case, 1 Inst. 155.Why the Sheriff re­turns 24.) the Sheriff is to return 24. And this is for expedition of Iustice; for if 12. should only be returned, no man should have a full Iury ap­pear or sworn, in respect of Chal­lenges, [Page 66] without a Tales, which should be a great delay of Tryals; And for this cause at common Law, 'twas Error if the Sheriff return­ed less then 24. But now it is re­medied by the Statute of 18 Eliz. as a mis-return,If the Sheriff return less then 24. it is no Error. sée Cro. 1 part. 223. li. 5. 36, 37. By which Books it ap­pears, that if the Sheriff return but 23. &c. it shall not vitiate the Verdict of 12. No, though a full Iury do not appear, so that the Tryal is by ten of the principal Pannel, and two of the Tales, not­withstanding Maynards Opinion to the contrary, and Cro. 3. part. 587. The Sheriffs used to summon a­bove 24.Must not re­turn above 24. Scil. effrenatam multitudi­nem, but now they are prohibited by Statute, to summon above 24. Westm. 2. cap. 38.

Where there must be 16. and 24. in a Jury.To make a Iury in a Writ of Right, which is called the Grand Assize, there must be 16. Scil. four Knights, and 12. others; the Iury in an Attaint, called the Grand Iury, must be 24. Firch 412. & 485.

When Process used to be made out against the Witnesses in Carta nominat. to joyn with the Iury in Tryal of the Déed,Where Wit­ness joyn with the Jury; the number is in­certain. then the num­ber was uncertain, according as the number of Witnesses were in the Déed: wherefore no attaint lay, if the Déed were affirmed, because more then 12. joyned in the Ver­dict. But otherwise, if the Déed was not found,Cannot prove a Negative. because Witnesses cannot prove a Negative. F. N. Br. 106. h. 1 Inst. 6. 2 Inst. 130. &c.

If 12. are sworn, and one of them depart by consent, another of the Pannel may be sworn,Juror departs; and another sworn by consent. and joyn with the other 11. in the Verdict. 11 H. 6. 13.

In Error upon a Iudgment in Cornwall, A Jury of 6. because the Tryal was but by 6. adjudged that it was er­roneous, though it was returned secundum consuetudinem ibidem ante, &c. for such Customs are against Law, unless in Wales, which are permitted by Act of Parliament. Cro. 1. part. 259.

CAP. VII. Who may be Jurors, who not; who exempted; and of their Quality, and Sufficiency.

Jurors must be Liber.SO much for their number, next their Quality is to be consider­ed; And for this, the Writ informs you who they ought to be, 1. Liberos, that is, Fréemen, not Villains, or Aliens, and that not only Frée­men, and not bond; but also those as have such fréedom of minde, that they stand indifferent, without any Obligation of Affinity, Interest, or any other Relation whatsoever, to either party; sometimes the word Probos, Fortescue. cap. 25. instead of Liberos, is attri­buted to them; they are both good Epethites for a Juror, but I estéem the first most significant.

[Page 69]2. They ought to be Legales, Legales. not outlawed, not such as have lost Li­beram legem, or become infamous, as Recreants, persons attainted of Felony, false Verdict, Conspiracy, Perjury, Premunire, or Forgery upon the Stat. of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. Not such as have had Iudgment to lose their Ears, stand on the Pil­lory or Tumbrel, or have béen stig­matized or branded, nor Infidels, neither can any such be Witnesses, 1 Inst. 6.

3. Homines; A Jury of Women. they ought to be men, (yet there shall be a Iury of Women to try if a Woman be En­seint, upon the Writ de venire in­spiciendo,) But what kinde of men these ought to be, is worthy to be known. And for this, some men are exempted from serving in Iu­ries, in respect of their Dignity, as Barons, and all above them in de­grée;Exemption of Juries. Many are exempted by the Writ de non ponendis in Assisis. F. N. B. 166. as aged persons 70. years [Page 70] old, and many others are exempted, as Clerks,Who are to be exempted from Juries. Tenants in ancient De­mesne, Ministers of the Forrest, (out of the Forrest): Coroners, Enfants under the age of 14. years, Officers of the Sheriff, sick dēcre­piō men, and such as are exempted by the Kings Charter: yet in a Grand Assize, preambulation, At­taint, and in some other special Ca­ses, such men as are not exempted by reason of their Dignity, shall be forced to serve, notwithstanding their exemption in other Cases. Sée Daltons Office of Sheriffs, fo. 121. 52 H. 3. cap. 14. 2 Inst. 127. 130. 378. 447. and 561. Counsel­lors, Attorneys, Clerks, and other Ministers of the Kings Courts, are not to serve on Iuries; But I finde one Iury made of Attorneys of the Common Bench, and Ex­chequer, In a Case brought upon a Bill in the Exchequer, by Sir Thomas Seton, Iustice against Luce C. for calling of him Traytor in the presence of the Treasurer and Barons of the Exchequer.A Jury of Attorneys. And this Iury of [Page 71] Attorneys gave the Justice one hundred marks damages. 30 As­size 19.

4. De vicenet. de C. It is not suf­ficient that they dwell in the Coun­ty, but they are to be of the Neigh­bourhood, Nay, le plus prochenies, Visne. to the place of the fact, as by Artic. super, cap. 9. it is appointed They must be most near, most sufficient, and least suspicious, ib. as I shall shew hereafter.

5.Sufficiency of Jurors. Quorum quilibet habeat qua­tuor libras terre, tenement. vel reddit. per annum ad minus; This is their sufficiency, where the debt or dama­ges (or both together, 1 Inst. 272.) amount to 40 Marks or above; The sufficiency of Jurors in other Cases of lesser moment, is still left to the discretion of the Iustices, Fortescue, cap. 25. who, (experience tells us) never require Jurors under 4 li. per annum, according to the Statute of 27 Eliz. cap. 6. before which, men of 40 s. per annum, served; But nei­ther [Page 72] this, nor the Stat. of 35 H. 8. extend to Juries in Cities, Towns Corporate, or other priviledged places, or in the 12. Shires of Wales, so that there they shall be re­turned, as before they lawfully might have béen; for the Jurors suf­ficiency in Attaints, sée the Sta­tutes, 15 H. 6. 5. 18 H. 6. 2. and 13 H. 8. 3.

It is the general course of the World, to estéem men according to their Estate; For Quantum quisque sua nummorum servat in arca, Tantum habet et fidei; And sure I am, the makers of this Law, had cause enough to do so, in this Case; for if men of less Estates should serve in Juries, such Fellows would only be shifted into Enquests, as had more néed to be relieved by the 8 d. then discretion to sift out the truth of the fact: 'Tis hard to act an unbyassed Iury now; But surely, less rewards would sooner bribe and byass meaner men, than these. Therefore least poverty or nec [...]s­sity [Page 73] should tempt: Every Juror must have 4 li. per annum, as aforesaid, of Frée-hold, out of Ancient Demesne. And the Court may in matters of great consequence,Jurors of a­bove 4 l. per annum. direct a Venire facias, for a Jury of above 4 l. per annum, a piece, but not under Cro. 2. part. 672. But in such Cases (eve­ry one knowes) the Court most commonly orders the Prothonotary to chuse 48. out of the Sheriffs Book of Freeholders, of the most sub­stantial men in the County, and the parties strike out 12. a piece, then the Sheriff returns the rest.

Et qui nec D.E. nec F.G. aliqua affini­tate attingunt, the Law is very caute­lous,Jurors must not be of af­finity to the parties. in not leading men into temp­tation: Therefore least kindred and Affinity, should wrong the Consci­ence to help a friend, our Ju [...]ors must not be related to any of the parties; And for this Reason like­wise, the Statutes provide, that no man of Law shall ride Iudge of Assize, or Goal-delivery in his own Country. 8 R. 2. 2. 33 H. 8. cap. 24. [Page 74] 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 generall Rule (saith Coke, 1 Inst. 125.) is, That every Tryal shall be, out of that Town, Parish, or Hamlet, 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 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 al­ledge [...] is a place incertain, and and may (as we sée by experie [...]ce) [Page 77] 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. 55 [...]. 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 [Page 78] 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 BastardyBastardy. is alledged, the Tryal shall be in [Page 79] 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 [Page 80] 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 AlienAlien. 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 [Page 81] 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 [Page 82] 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 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. [Page 83] 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 [...]. 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 [Page 84] 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 H [...]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, [Page 86] 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 CityCity. 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 di [...]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 injuri [...] 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, th [...] Defen [...]ant pleads, that he spake them as a Witness upon his Oath, upon an Issue tryed at Chard, in the County of Somerset. The Pl [...]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, [Page 89] and the Arrest laid to be in South­hampton; 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. So you sée, that where a thing is al­ledged to be done at the Capitall HouseRectoriae. 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 MannorMannor. 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 o [...] place, and the breach in another, t [...] Visne must be according to the ev [...] of the Issue, whether it be take [...] upon the promise, or breach. B [...] if no place be alledged for th [...] breach, & Issue be taken upon it, t [...] Visne must be from the place of the promise, which shall be intende [...] right, where the contrary appeares not, sée Godbolt 274.

Easter 39 Eliz. In the Kings Bench, Trespass, Assault and Battery, [...] Wilts, continuing the Assault i [...] 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 a [...]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 [Page 93] Church, in the County of Oxford. That the Defendant had good Power and Authority to demise: Where the Land lies. The Inden­ [...]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 ParishParish. 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 King­street,Town. in the Parish of St. Marga­r [...], 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 [Page 94] Hall, or Lincolns-Inn-Hall, &c. Holborn, the Visne shall be fro [...] Holborn, which is the Town; i [...] as Yelverton said,Inns of Court. it was never hea [...] of any Venire facias to be had of [...] of the Inns of Court, Bulstr. 2. p [...]. 120.Not from house or hall. especially of the Hall, beca [...] it cannot be of a House, much le [...] of a Hall.

In Ejectment upon a Demis [...] made at Denham of Lands in par [...] chia de Denham predîct. The Visne may be of Denham, or of the Pari [...] of Denham, because Denham & Pa­rochia de Denham predict. are all [...] by intendment of Law. Bulstr. 2. part. 209. More 709. Hob. 6. B [...] when it appears by the Record, o [...] is intended that the ParishParish. is mo [...] 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 un [...] not be of Bredon, but of the Parish, because it appeares, that the Parish [Page 95] 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, [Page 96] 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 MannorMannor. 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 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 b [...]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 [Page 97] 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 Iu [...]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 f [...]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 hi [...]: Iudgment hath the prehemi­nence of Invention, and the Law hates nothing more then Innova­tion; wherefore I shall follow his [Page 99] 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, [Page 100] 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 [Page 101] 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, [Page 102] 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 of the residue. And if others be joyned with the Lord of Parliament, yet if there be no Knight returned, the array shall be quashed against all. So in an at­taint, there ought to be a Knight returned to the Iury.

And when the King is party,Where the King is party. as in travers of an Office, he that tra­verseth [Page 104] may challenge the array, as hereafter in this Section shall ap­pear; And so it is in case of life: And likewise the King may chal­lenge the array, and this shall be tryed by Tryors according to the usuall course. The array challeng­ed on both sides shall be quashed.

And if two estrangers make a Pannel, and not in favourable manner for the one party, or the other, and the Sheriff returns the same, the array was challenged for this cause, and adjudged good.

If the Bayliff of a Liberty re­turn any out of his Franchise, the array shall be quashed, as an array returned by one that hath no Fran­chise shall be quashed.

Challenge to the favour.Challenge to the array for fa­vour: He that taketh this, must shew in certain the name of him that made it, and in whose time, and all in certainty: This kinde of Challenge being no principal chal­lenge, [Page 105] must be left to the discretion and conscience of the Triors; as if the Plaintiff or Defendant be Tenant to the Sheriff, this is no principall Challenge, for the Lord is in no danger of his Tenant, but è con­verso it is a principal Challenge; but in the other he may challenge for favour, and leave it to tryall. So affinity betwéen the Sonne of the Sheriff, and the Daughter of the party, or è converso, or the like, is no principal challenge, but to the favour; but if the Sheriff marry the Daughter of either party, or e converso, this (as hath béen said) is a principall Challenge,For the King. or the like. But where the King is party, one shall not challenge the array for favour, &c. because in re­spect of his allegeance, he ought to favour the King more. But if the Sheriff be a Vadelect of the Crown, or other meniall servant of the King, there the challenge is good, and likewise the King may chal­lenge the array for favour.

Note, upon that which hath béen said it appeareth,To me Array. that the challenge to the array, is in respect of the cause of unind [...]fferency, or default of the Sheriff or other Officer that made the Return, and not in respect of the persons returned, where there is no unindifference or de­fault in the Sheriff, &c. for if the challenge to the Array be found against the party that takes it, yet he shall have his particular chal­lenge to the Polls.

In some Cases a Challenge may be had to the Polls, and in some Cases not at all.To the Polls. Challenge to the Polls, is a challenge to the parti­cular persons, and these be of four kinds, that is to say, Peremptory, Principall, which indure favour, and for default of Hundredors.

Peremptory, this is so called, be­cause he may challenge perempto­rily upon his own dislike,Peremptory Challenge. without showing of any cause, and this only is in case of Treason or Felony, in [Page 107] farem vitae; and by the common [...]aw, the prisoner upon an Endict­ [...]nt or Appeal, might challenge [...]hirty five, which was under the [...]her of the thrée Iuries; but now the Statute of 22 H. 8. the number [...] reduced to 20. in petite Treason, [...]urder and Felony; and in Case of [...]gh Treason, and Misprision of high Treason, it was taken away by the Stat. of 33 H. 8. but now by the Stat. of 1 & 2 Phil. & Mary, the Common Law is revived for any Treason, the prisoner shall have his Challenge to the number of 35. and so it hath béen resolved by the Iu­stices, upon conference betwéen them in the Case of Sir Walter Releigh and George Brooks: But all this is to be understood when any subject that is not a Péer of the Realm, is arraigned for Treason or Felony. But if he be a Lord of Parliament, and a Péer of the Realm, and is to be tryed by his Péers,No Challenge of Peers. he shall not challenge any of his Péers at all, for they are not sworn as other Iurors be, but find [Page 108] the party guilty or not guilty, upo [...] their Faith or Allegeance to th [...] King, and they are Iudges of th [...] fact, and every of them doth sepa­rately give his Iudgment, begin­ning at the lowest. But a subject under the degrée of Nobility, may in case of Treason or Felony, chal­lenge for just cause as many as he can, as shall be said hereafter. In an appeal of death, against divers, they plead not guilty, and one ioynt Venire facias is awarded, if one challenge peremptorily, he shall be drawn against all. Otherwise it is of several Venire fac.

Note, that at the common Law, before the Stat. of 33 E. 1. the King might have challenged perempto­rily without shewing cause, but only that they were not good for the King, and without being limited to any number, but this was mischie­vous to the subject, tending to infi­nite delayes and danger. And there­fore it is Enacted. Quod de caetero licet pro Domino Rege dicatur quod [Page 109] ju [...]ores, &c. non sunt boni pro Re­ [...] non propter hoc remaneant in­ [...]sitiones, &c. sed ass [...]gnent certam [...]sam calumniae suae, &c. whereby [...] King is now restrained.

Principal, so called,Principall Challenge to the Polls. because if it is found true, it standeth sufficient [...] it self, without leaving any thing [...] the Conscience or discretion of the Triors. Of a principal cause of challenge to the Array, we have hi [...] somewhat already; now it fol­loweth with like brevity, to speak of principal Challenges to the Polls, (that is) severally to the persons returned.

Principal Challenges to the Poll may be reduced to four heads.To the Polls. first, Propter honoris respectum, for respect of Honour: Secondly Propter Defectum, for want or de­fault: Thirdly, Propter Affectum, for affection or partiality; Fourth­ly, Propter Delictum, for Crime or Delict.

First, Propter Honoris respectum As any Péer of the Realm,Principall Chall nges to the Polls. or Lo [...] of Parliament, as a Baron, Viscount, Earl, Marquess, and Duke, for these in respect of Honour and Nobility, are not to be sworn [...] Juries; and if neither party will challenge him,Propter honoris respectum. he may challenge himself; for by Magna Charta it is provided, Quod nec super eum ibi­mus, nec super eum mittemus nisi per legale judicium parium suorum, aut per legem terrae. A Peer may challenge himself. Now the Common Law hath divided all the subjects into Lords of Parliament, and in­to the Commons of the Realm.Peers and Commons. The Péers 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 de­grées of Nobility are Péers to ano­ther: As if an Earl, Marquess, or Duke, be to be tryed for Trea­son or Felony, a Baron, or any o­ther degrée of Nobility is his Péer. [Page 111] In like manner, a Knight, Esq; &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 Commonsis to have a Tryal, ei­ther at the Kings Suit, or betwéen party and party, a Péer 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 Fréeman.

3. Annui sensus. i. liberi tenementi. First,See before, Quorum qui­libet habeat, 4 l. &c. what yearly Fréehold a In­ter ought to have, that passeth upon Tryal of the life of a man, or in a Plea reall, or in a Plea personal, where the debt or damage in the De­claration amounteth to 40. Marks, Vide, Littleton, Sect. 464. Secondly, this Fréehold must be in his own right, in Fée-simple, Fée tail, for terme of his own life, or for another mans life, although it be upon con­dition, or in the right of his Wife, [Page 112] out of antient Demesne; for Frée­hold within ancient Demesne will not serve, but the debt or damage amounteth not to 40. Marks, any Fréehold sufficeth. Thirdly, he must have Fréehold in that Coun­ty where the cause of the Action ari­seth, and though he 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 Frée­hold be determined, he may be chal­lenged for insufficiency of Frée­hold.

4. Hundredorum: First, by the common Law in a Plea reall, mixt, and personal,Challenges propter de­fectum hun­dredocum. 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 Iury is double, yet the Hundredors are not [Page 113] double. Secondly, If he hath ei­ther Fréehold in the Hundred, though it be to the value but of half an Acre, or if he dwell there, though he hath no Fréehold in it, it suffi­ceth. Thirdly, if the cause of the Action riseth in divers Hundreds, yet the number shall suffice, as if it had come out of one, and not seve­rall Hundredors Hundredors. out of each Hun­dred. Fourthly, if there be divers hundreds within one Léet or Rape, if he hath any Fréehold, 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, No Hundre­dors. wh [...]re the one party is Lord of the Hundred, or the like, there néed be 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 this no­tice remains; otherwise as hath bée [...] said for his insufficiency of Fréehold, for his fear to offend, and [Page 114] 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. Eightly, 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, but remain praeter H. that is, besides for the Hundred, and albeit he dwelleth, or have Land in the Hundred, yet must he have suffici­ent Fréehold.

Challenges propter af­fectum.3. Propter affectum: And this is of two sorts, either working a prin­cipall Challenge, or to the favour. And again a principal Challenge is of two sorts, either by Iudge­ment of Law, without any Act of his, or by Iudgment of Law upon his own Act.

And it is said that a principal ChallengePrincipall Challenge. is, when there is express favour, or express malice. First, without any Act of his, as if the [Page 115] Iuror be of blood or kindred to ei­ther party, Consanguineus, which is compounded ex Con & sanguine, quasi eodem sanguine natus, Kindred. as it were issued from the same blood; and this is a principal challenge, for that the Law presumeth that one Kinsman doth favour another, before a stranger, and how far re­mote so ever he is of kindred, yet the Challenge is good. And if the Plaintiff challenge a Juror for kin­dred to the Defendant, it is no Counterplea, to say that he is of kindred also to the Plaintiff, though he be in a néerer degrée. For the words of the Venire facias, forbid­deth the Juror to be of kindred to either party.

If a body politick or incorporate,Bodies Po­litick. sole or aggregate of many, bring any Action that concerns their body politick or incorporate, if the Juror be of kindred to any that is of that body (although the body politick or incorporate can have no kindred, yet) for that those bodies consist of natural persons, it is a principal [Page 116] chal­lenge. A Bastard cannot be of kin­dred to any, and therefore it can be no principal challenge. And here it is to be known, that Affinitas, Af­finityAffinity. hath in Law two senses. In his proper sense it is taken for that néerness that is gotten by mariage, Cum duae cognationes inter se divisae per nuptias copulantur, & altera ad al­terius fines accedit, & inde dicitur Affinis. In a larger sense Affinitas is taken also for Consanguinity and Kindred, as in the Writ of Venire facias, and other where. Affinity, or Alliance by Mariage, is a principal Challenge, and equi [...]alent for Con­sanguinity, when it is betwéen ei­ther of the parties, as if the Plaintiff or Defendant marry the Daughter, or Cousin of the Juror, or the Juror marry the Daughter or Cousin of the Plaintiff or Defendant, and the same continues, or Issue be had. But if the Son of the Juror hath maried the daughter of the Plaintiff, this is no principal Challenge, but to the favour, because it is not be­twéen the parties. Much more may [Page 117] be said hereof, sed summa sequor fa­stigia rerum.

If there be a Challenge for Co­sinage,Cosinage. he that taketh the Chal­lenge must shew how the Juror is Cousin. But yet if the Cosinage, that is, the effect and substance be found, it sufficeth; for the Law preferreth that which is material, before that which is formall.

If the Juror have part of the Land that dependeth upon the same Title.Depending on the same Title.

If a Juror be within the Hun­dred, Leet, or any way wi [...]hin the Seigniory, immediately, or medi­ately, or any other distressDistress. of either party, this is a principal Chal­lenge. But if either party be with­in the distress of the Juror, this no principal Challenge, but to the favour.

If a WitnesWitness. named in the Déed be returned of the Jury, it is a good cause of Challenge of him. So it is if one within age of one and twenty be returned,Infant. it is a good cause of Challenge.

Challenges a­rising from the Jurors own Act.Vpon his own Act, as if the Juror hath given a Verdict before, for the same cause, albeit it be reversed by Writ of Error, or if after Verdict, Iudgment were arrested. So if he hath given a former Verdict upon the same Title or matter, though betwéen other persons. But it is to be observed, that I may speak once for all, that in this or other like Cases,Former Verdict. he that taketh the Challenge must shew the Record, if he will have it take place as a principal Challenge, otherwise he must con­clude to the favour, unless it be a Record of the same Court, and then he must shew the day and terme.

So likewise one may be challen­ged,Indictment. that he was Inditor of the Plaintiff or Defendant, either of Treason, Felony, Misprision, Trespass, or the like in the same cause.

If the Juror be GodfatherGodfather. to the Child of the Plaintiff or Defendant, or e converso, this is allowed to be a good Challenge in our Books.

If a Juror hath béen an Arbitrator Arbitrators chosen by the Plaintiff or Defendant, in the same cause, and have béen in­formed of, or treated of the matter, this is a principal Challenge. O­therwise if he were never informed nor treated thereof; and otherwise if he were indifferently chosen by either of the parties, though he treated thereof. But a Commis­sioner chosen by one of the parties, for examination of Witnesses in the same cause, is no principal cause of challenge;Commissioner. for he is made by the King under the great Seal, and not by the party as the Arbitrator is, but he may upon cause be chal­lenged for favour.

If he be of counsel,Counsel. Servant, or of Robes, or Fée, or of either par­ty, it is a principal Challenge.

If any after he be returned,Eat or drink at the parties charge. do eat and drink at the charge of ei­ther party, it is a principal cause of Challenge, otherwise it is of a Trior after he be sworn.

Action brought either by the Ju­ror against either of the parti s,Actions of malice. or by either of the parties against him, which may imply malice or displeasure, are causes of principal Challenge, unless they be brought by Covyn, either before or after the return; for if Covyn be found, then it is no cause of Challenge; other Actions which do not imply malice or displeasure, are but to the fa­vour, as an Action of debt, &c. More 3.

Parson and Parishes.In a cause where the Parson of a Parish is party, and the right of the Church cometh in debate, a Pa­rishioner is a principal Challenge. Otherwise it is in debt, or any other Act [...]on where the right of the Church cometh not in question.

If eit [...]er party labour the Juror, and give him any thing to give his Verdict,To labour the Jury. t [...]is is a principal Chal­lenge. But if either party labour the Juror to appear, and to do his Conscience, this is no Challenge at all, but lawful for him to do it.

That the Juror is a Fellow-ServantFellow Servant. with either party, is no principall Challenge but to the favour.

Neither of the parties can take that Challenge to the Polls,To the Polls. which he might have had to the Array.

Note, if the Defendant may have a principal cause of Challenge to the Array, if the Sheriff return the Jury, Venire facias to the Cor [...] ­ners. the Pl [...]intiff in that case may for his own expedition, alledge the same, and pray Process to the Co­roners, which he cannot have, unless the Defendant will confess it; but if the Defendant will not confess it, then the Plaintiff shall have a Venire facias to the Sheriff, and the Defen­dant shall never take any Challenge for that cause, and so in like cases. But on the part of the Defendant, any such matter shall not be alledg­ed, and Process prayed to the Co­roners, because he may challenge the Jury for that cause, and can be at no prejudice.

Challenge concluding to the fa­vour,Challenges to the favour. when either party cannot take any principal Challenge, but sheweth causes of favour, which must be left to the conscience and discretion of the Triors, upon hear­ing their evidence to finde him fa­vourable, or not favourable. But yet some of them come néerer to a principal Challenge then other. As if the Juror be of kindred, or under the distress of him in the reversion or remainder, or in whose right the Avowrie or Iustification is made, or the like: These be in principall Challenges, because he in Reversi­on, remainder, or in whose right the Avowry or Iustification is, is not party to the Record; otherwise it is, if they were made parties by aid, R [...]script, or Voucher, and yet the cause of favour is apparent; so it is of all principal causes, if they were party to the Record. Now the causes of favour are infinite, and thereof somewhat may be gathered of that which hath béen said,Favour. and the rest I purposely leave the Rea­der to the reading of our Books [Page 123] concerning that matter. For all which the rule of Law is, that he must stand indifferent as he stands [...]sworn.

The Subject may challenge the Polles, where the KingKing. is party. And if a man be out-lawed of Treason or Felony, at the Suit of the King, and the party for avoyd­ing thereof alledgeth imprison­ment, or the like, [...]t the time of the Outlawry, though the Issue be ioyned upon a collateral point, yet shall the party have such Challen­ges, as if he had béen arraigned up­on the crime it self, for this by a meane concerneth his life also.

Propter delictum, As if the Juror be attainted or convicted of Trea­son, or Felony,Challenges propter delictun. or for any offence to life or member, or in attaint for a false Verdict, or for perjury as a Witness, or in a conspiracy at the Suit of the King, or in any Suit (either for the King, or for any sub­ject) be adjudged to the Pillory, Tumbrel, or the like, or to be branded, or to be stigmatique, or to h [...]ve any other corporal punish­ment [Page 124] whereby he becommeth infa­mous,Infamous. (for it is a maxime in Law, Repellitur a sacramento infamis) these and the like are principal cau­ses of challenge. So it is if a man be outlawedOutlawed. in trespass, debt, or any other action, for he is Exlex, and therefore is not legalis homo. And old Books have said, that if he be excommunicated, he could not be of a Iury.

Sée the Statutes of W. 2. and Artic. supra cartas, what persons the Sheriff ought to return on Iuries.Who ought to be on Juries. And sée F.N.B. breve de non ponen­dis in Assesis & juratis; and the Re­gister in the same Writ. And sée there what remedy the party hath that is returned against Law.

It is necessary to be known the time when the challenge is to be ta­ken.At what time Challenges must be taken. First, he that hath divers chal­lenges, must take t [...]em all at once, and the Law so requireth indiffe­rent trials, and divers challenges are not accounted double. Second­ly, if one be challenged by one party, if after he be tried indifferent, it is time enough for the other party to [Page 125] challenge him. Thirdly, after chal­ [...]nge to the Array, and tryal duly returned, if the same party take a challenge to the Polls, he must [...]w cause presently. Fourthly, so if a Iuror be formerly sworn, if he be challenged, he must shew cause presently, and that cause must rise [...]ce he was sworn. Fifthly, when the King is party, or in an appeal of Felony, the Defendant that chal­lengeth for cause, must shew his cause presently. Sixthly, If a man in case of Treason or Felony, chal­lenge for cause, and he be tryed in­different, yet he may challenge him peremptorily. Seventhly, a chal­lenge for the Hundred must be ta­ken before so many be sworn, as will serve for Hundredors,Hundredors. or else he l [...]seth the advantage thereof.

In a Writ of Right,Writ of Right. the grand Iury must be challenged before the four Knights, before they be return­ed in Court; for after they be re­turned in Court, there cannot any challenge be taken unto them.

Nota. The Array of the Tales shall not be challenged by any one party,The Array of the Tales. until the Array of the princi­pall be tryed; but if the Plaintiff challenge the Array of the princi­pall, the Defendant may challenge the Array of the Tales. After one hath taken a challenge to the Poll, he cannot challenge the Array.

Now it is to be séen how chal­lenge to the Array of the principall Pannel, or of the Tales, or of the Polls shall be tryed, and who shall be tryors of the same, and to whom process shall be awarded.

If the Plaintiff alledge a cause of challenge against the Sheriff, the process shall be directed to the Co­roners,Coroners. if any cause against any of the Coroners, process shall be a­warded to the rest, if against all of them, then the Court shall ap­point certain Elisors,Elisors. or Esliors (so named ab eligendo) because they are named by t [...]e Court, against whose return, no challenge shall be [Page 127] taken to the Array, because they were appointed by the Court, but he may have his challenge to the Polls. Note, if process be once a­warded for the partiality of the Sheriff, though there be a new Sheriff, yet process shall never be awarded to him: for the entry is, Ita quod vicecomes se non intromittar. But otherwise it is, for that he was Tenant to either party, or the like.

If the ArrayArray. be challenged in Court, it shall be tryed by two of them that be impannelled to be ap­pointed by the Court: for the try­ors in that case shall not excéed the number of two,Two Tryors. unless it be by con­sent. But when the Court names two for some special cause alledged by either party, the Court may name others; if the Array be quash­ed, then process shall be awarded, ut supra. If there be a demur to a challenge,Demur to a Challenge, how deter­minable. the Iudge before whom the cause is to be tryed, may deter­mine it, or adjourn it to be heard an­other time. Stiles 464. Vide Bulstr. 1. part. 114.

Array of the Principall and Tales.If a Pannel upon a Venire facias be returned, and a Tales, and the Ar­ray of the principall is challenged, the tryors, which try and quash the Array, shall not try the Array of the Tales; for now it is, as if there had béen no appearance of the prin­cipall Pannel; but if the tryors affirm the Array of the principal, then they shall try the Array of the Tales. If the Plaintiff challenge the Array of the principall, and the Defendant the Array of the Tales, there the one of the principall, and the other of the Tales shall try both Arrayes. For other matter concer­ning the Tales, sée in Cokes Reports matters worthy of observation. When any challenge is made to the Polls, two tryors shall be appoint­ed by the Court, and if they try one indifferent,Two Tryors. and he be sworn, then be and the two tryors shall try ano­ther: an [...] if another be tryed in [...]if­f [...]ent, and [...]e be sworn, t [...]en the two tryors cease, and the two that be sworn on the Iury shall try the rest.

If the Plaintiff challenge ten,Tryall of Challenges. and the Defendant one, and the twelfth is sworn, because one cannot try alone, there shall be added to him one c [...]allenged by the Plain­tiff, and the other by the Defen­dant. When the tryall is [...]o be had by two Counties, the manner of the tryall is worthy of observation, and apparent in our Books. If the four Knights in the Writ of Right be challenged, they shall try them­selves, and they shall choose the grand Assize, and try the challen­ges of the parties. If the cause of challenges touch the dishonor, or discredit of the Iuror,Juror exa­mined. he shall not be examined upon his Oath, but in other cases he shall be examined up­on his Oath, to inform the tryors. If an Inquest be awarded by de­fault, the Defendant hath lost his challenge; but the Plaintiff may challenge for just cause, and that shall be examined and tryed.

Wheresoever the Plaintiff is to recover per visum juratorum, View. there ought to be sir of the Jury t [...]a [...] have [Page 130] had the view, or known the Land in question so as he be able to put the Plaintiff in possession, if he reco­ver.

Challenges.In Proprietate probanda, and a Writ to inquire for waste, the par­ties have béen received to take their challenges. But passing over many things touching this matter, I will conclude with the saying of Bracton, Plures autem aliae sunt causae recusandi juratores, de quibus ad praesens non recolo, sed quae jam enumeratae sunt, sufficiant exempli causa.

CAP. X. Of what things a Jury may in­quire; when of espirituall; when of things done in ano­ther County, or in another Kingdom; when of Estop­pels, and when not; when of a mans intent.

THe next words in the Writ, which have not yet béen taken notice of, are these, perquos rei veri­tas melius sciri poterit; And this is the chief end of their méeting toge­ther:Ex facta ja [...] oritur. No Court can give a right Iudgment, unless the truth of the fact be certainly known; and to finde out this truth, no way is like to this of Iuries: f [...]r they do not onely go upon their own knowledge, though they are Neighbours to the place [Page 132] where the question is moved, and so are presumed to have a better know­ledge of the fact, then any others; For vicinus facta vicini presumitur scire; But least this presumption should fail, the Law allowes other Evidence to be given to them, by which, they may more certainly and confidently, give their Verdict of the Issue, which is meant by this word Rei.

And here, it will not be amiss to give you a brief description, de qui­bus rebus, what the Enquest may in­quire of, and finde;

Of the Law.Wherefore, though it be true, that a Iury shall not be charged, nor meddle with a matter of Law, and if they do, and finde it, their Verdict as to this shall be void, yet daily experience (as well as Littleton, Sect. 368) tells us, that they may take upon them the know­ledge of the Law, and give a ge­nerall Verdict; though to finde the speciall matter is the safest way for them, because, if they mistake the Law, they run into the danger of an [Page 133] At­taint. In many cases, the Jury are to inquire of the knowledge and in­tent of a man,Of a mans intent. as where the Nar. is that the Defendant kept a Dog which killed the Plaintiff [...] Shéep, Sciens canem suum ad mordendas oves consuetum; there though Sciens be not traversable, yet the Jury upon Evidence must inquire of it. lib. 4. 18.

In some Cases,Of spiritual things. a Jury may try and finde a spiritual thing, as a Di­vorce, Matrimony, &c. and must take notice thereof, upon pain of Attaint. lib. 4. 29. lib. 9. lib. 7 43.In Trespass Quare Clausum fregit, in the County of D. upon not guil­ty, If the Jury finde the De­fendant guilty in the County of S. their Verdict is void. But if they finde him guilty gene­rally, an At­taint lyeth. Finch 400.

The Jurors of one County, may finde any transitory things done in another County: Nay sometimes they must finde locall things in ano­ther County, as if the Heir pleads [...]iens per discent, and the Plaintiff replies, Assets in a Parish and Ward within London, the Ju [...]y may finde Assets in any County; In the same c [...]se against an Executor, who pleads ple [...]e administravit, the Jury may likewise finde Assets in a­ny [Page 134] part of the World;Of things done in another County, or Country. And the Reason is, because the place is one­ly named for necessity of tryall. But where the place is part of the Issue, it is otherwise. And there­fore if I promise in one place to do a thing in another, and Issue is upon the b [...]each, the Jury ought to come from the place of the breach: But if I promise in London, to do a thing at Budeaux in France, and Issue upon the breach, yet this shall be tryed in London for necessity, be­cause otherwise it would want try­all, and the Jury must inquire of the breach at Burdeaux. But if I pro­mise in France, to do a thing in France, so that both Contract and performance is beyond Sea, this wants tryall in our Law. lib. 6.47. li. 7. 23. 26. 27.

The Jury may finde Estoppels, Estoppels. as the taking of a Lease of a man's own Land, by Déed indented; or the deli [...]ery of a Déed before the date, as in Debt by an Administra­tor upon a Land dated 4 Aprilis, [Page 135] 24 Eliz. The Defendant pleaded, that the Intestate dyed before the date of the Obligation, and isint ni­ent son fait, upon which they were at Issue, and adjudged that the Jury might finde that the Bond was de­livered the 3d of April, because they are sworn ad veritatem dicendum; though the parties are estopped to plead a Déed was delivered before the date; but they may plead a de­livery after the date, because it shall never be intended, that a Déed was delivered before the date, but after it may.

But if the Estoppel,Estoppels. or admit­tance be within the same Record, in which Issue is joyned, then the Ju­rors cannot finde any thing contra­ry to this, which the parties have affirmed, and admitted of Record, though it be not true: For the Court may give Iudgement upon matters confessed by the parties; and the Jurors are not to be charged with any such thing, but onely with such, in which the parties vary. li. 2. 4. li. 4. 53. Co. Lit. 227.

The Jury may finde Déeds, or matter of Record,Records not shewed. if they will, though not shewed in Evidence. Finch 400. They may inquire of things done before the memory of man. lib. 9. 34.

The Jury may finde a Warranty, Warranty. being given in Evidence, though it be not pleaded: Nay the Jury may finde that, which cannot be pleaded, as in Trespass, upon not guilty; The Jury may finde that the Defen­dant leased Lands for life, upon Condition, and entred for the Con­dition broken: Though this can­not be pleaded without Deed, yet the Jury may finde it. Lit. Sect. 366.

But this matter comes more properly under the title Evidence; wherefore we will procéed to that.

CAP. XI. Evidence.

EVidence,Evidence. Evidentia; This word in legall understanding (saith Coke 1. Inst. 283.) doth not onely contain matters of Record, as Let­ters Patents, Fines, Recoveries, Inrollments, and the like, and wri­tings under Seal, as Charters and Déeds, and other Writings with­out Seal, as Court-Rolls, Ac­counts, and the like, which are call­ed Evidences Instrumenta. But in a larger sense, it containeth also Te­stimonia, The Testimony of Wit­nesses, and other proofs, to be pro­duced and given to a Jury for the finding of any Issue, joyned betwéen the parties; And it is called Evi­dence, because thereby the point in Issue is to be made evident to the [Page 138] Iury: Probationes debent esse evi­dentes (id est) perspicuae & facile in­telligitur.

And this Evidence (with Bracton) we may terme probatio duplex, viz. viva, as Witnesses, viva voce; and Mortua, as by Déeds, Writings, and Instruments; and violenta pre­sumptio, in many cases, is plena pro­batio, and therefore if all the Wit­nesses to a Déed be dead, then the Déed shall receive Credit,Presumption. per col­lationem sigillorum Scripturae, &c. but especially, if there hath béen a con­tinuall and quiet possession; which is a violent presumption. 1 Inst. 6. for no man can kéep his Witnesses alive.

Men that are so branded with Infamy, that they cannot be Jurors, (for which sée before, who may be Jurors) cannot be Witnesses; The Wife cannot be a Witness for, or against her Husband,Who may be Witnesses. neither can the party to the usurious Contract, be a Witness against the Usurer, in an Information upon the Statute of Usury. But Kinsmen never so [Page 139] near, Tenants, Servants, Masters, Counsellors, and Atturneys, &c. [...]ay be Witnesses. A Counsellor, may be a Witness to the Agrée­ment, &c. but not to validity of an assurance, nor to the Counsel he gave. March. Rep. 43. If a Witness being served with Process, and ha­ving money sufficient to bear his charges, (or lesse, if he accept it) do not appear to give his testimony, he forfeits 10 l. to the party dampni­fied, and must recompence his dam­mages. 5 Eliz. 9. If a Witness commit wilful perjury, he looseth 20 l. shall be imprisoned 6. months without bail, stand in the Pillory, and be disabled to be a Witness; so shall the suborner, who procures the perjury. 5 Eliz. 9.

RecordsRecords. prove themselves, and cannot be proved by Witnesses; but Copies of them must, and are good Evidence; and so may any thing done in the County-Court, Court-Baron, or Hundred-Court, &c. be proved by Witnesses.

A Fine,Fine. or common Recovery, may be given in Evidence, though it be not under the great Seal, or Seal of the Court, and without vouching the Roll of the Recovery; and the part indented is the usuall Evidence that there is such a Fine, though they which saw the Fine, are also good Evidence. Plow. 410. Stiles 22.

DepositionsDepositions. in the Ecclesiastical Court cannot be given in Evidence, though parties be dead. March 120. A Defendants answer in an English Court, is good Evidence against him, but not against others. Godbolt, 326. Where the Evidence proves the effect and substance of the Issue, it is good.

As upon plene administravit, if it be proved that the Execution hath goods of the Testators in his hands,Assets. he may give in Evidence, that he hath paid of his own money for the Testator, to the value of those goods. Co. Lit. 283.

So if a LeaseLease. be pleaded, a Lease upon Condition is good Evidence. [Page 141] H. 8. 20. because the Genus com­ [...]rehends the Species. So of a Feoffment pleaded, a Feoffment upon Condition, or a Fine which is Feoffment of Record, is good E­ [...]dence. 44 E. 3. 39. A speciall A­gréement, is evidence for an agrée­ment. Plo. 8.

But if a FeoffmentFeoffment be pleaded in Fée, upon Issue non feoffavit modo & forma, a Feoffment upon Con­dition is no Evidence, because it [...]oth not answer the Issue; and [...]heresoever Evidence is contrary to the Issue, and doth not maintain it, the Evidence is not good. 11 H. 4 3. Feoffments 41.

Vpon an Assumpsit to the Hus­band, an Assumpsit Assumpsit. to the Wife, and his agreement, is good Evidence. 27 H. 8. 29.

In ChallengeChallenge. to the Array, be­cause made at the denomination of the Sheriffs Clerk, Evidence at his Bayliffs denomination, is good, because favourably made is the sub­stance. 38 H. 6. 9.

If the Issue be a Suit against an Executor, Administrator, [...]r Heir, Assets Assets. in London; to prove Assets in any other place, is suffici­ent. li. 6. 47. Dyer 271.

AccomptAccompt. pleaded before two; Accompt before one, is good Evi­dence. Hob. 55. because the Accompt is the substance.

Vpon the general Issue, the De­fendant may give any thing in Evi­dence,What Evidence upon the ge­nerall Issue. which proves the Plaintiff hath no cause of Action, or which doth intitle the Defendant to the thing in question.

But if he hath cause of justification or excuse, it must be pleaded: where­fore upon non detinet, in detinue, the Defendant may give in Evidence a gift from the Plaintiff; for that proveth that he doth not detain the Plaintiffs goods;Detinue. but he cannot give in Evidence, that the Goods were vawned to him for money, and that it is not paid, but he must plead it. 1 Inst. 283.

Vpon Not guilty, in Battery, In Battery. Son assault demesne, is no Evidence; for thereby the Battery is confessed. Ib. [Page 143] neither is Not guilty, good Evidence [...]pon Son assault demesne.

Vpon Not guilty, in Trespass, Trespass. In­sufficiency of the Plaintiffs mounds, or to justifie for a Rent-Charge, Com­mon, or the like, is no good Evi­dence. Ib.

So upon the Plea, Nul wast fait, in [...] Action of Wast,Wast. he may give in evidence any thing that proveth it [...] Wast, as by Tempest, by Light­ [...]ing, by Enemies, &c. But he can­not give in Evidence any justifiable Wast, as to repair the House, or the like; nor a reparation of the Wast, before the Action brought. Ib.

Vpon non est factum, Non est factum. 'Tis no Evidence, to shew that the Bond was made upon an usurious Con­tract, or that the Sheriffs name is mistaken, &c. in a Bail-Bond, or that the Bond is joynt, or that it is void by Statute. But it must be pleaded in abatement. Ib. Hob. 72.

But to prove that the Seal was broken off, and put on again; or to prove a Rasure of the Déed; this is [Page 144] good Evidence. li. 5. 119. 11. 27. If 'twere done before the Action brought; but if the Seal was broke off, &c. by chance, after Issue joyned, the Iury may finde it spe­cially.

Vpon Not guilty, in Trover Trover. and Conversion, a Demand, and denyall of the Goods, is good Evidence. Plo. 14. li. 10. 57. Cro. 1 part. ult. pub. 495. Hob. 187.

Vpon plene administravit, Plene. Administravit. the Ex­ecutor cannot give a Iudgement in Evidence. Kelw. 59. nor payment of Debts by Contract, in debt brought upon an Obligation, upon nil debet in Debt for Rent, That the Lessor entred into part of the Land, is no good Evidence. Goldf. 81. But, non demisit, is, 9 H. 7. 3.

Vpon Not guilty, in an Action upon the Statute de parco fracto, Parco fracto. That the Plaintiff hath no Park, is good Evidence. 19 H. 8. 9.

So upon Not guilty, in Trespas, in the Plaintiffs Warren,Warren. Evi­dence that he hath no Warren, is good. 10 H. 6. 17. Kitchin 119.

A Shop-bookShop-books. no evidence after a year. 7 Jac. cap. 12.

In debt for Arrerages of an ac­comptAccompt. upon Nil debot modo & for­ [...]: No accompt is good Evidence. 1 H. 6. 26. Vpon Not guilty in tres­pas, a Loase for years, 12 H. 8. 2. or that locus in quo, Trespass. &c. is the Free­hold of another, 4 E. 4. 5. is good e­vidence; but upon this he cannot [...]tifie his entry upon the place by a strangers Licence, or Command, be generall Issue 81. because this is a Iustification by way of excuse: [...]either is a Lease at Will, good evidence in this case.

So upon not guilty, in trespassNot guilty in Trespass. for goods, 'tis good evidence that the goods were a strangers. 9 H. 6. 11. But that they were a strangers, and that he as Servant to the stranger, or by his commandment, took them from the Plaintiff, is not good, br. generall Issue 81. because the tres­pass is confessed. But that the stranger gave them to the Defen­dant is good. 9 H. 6. 11.

If the Defendant plead pay­ment to a Bond or Bill,Payment by presumption. and it ap­peares [Page 146] the debt is very old, and it hath not [...]éen demanded, nor any use paid for it many years, com­mon presumption is good evidence, that the money is paid, and the Ju­ries use to finde for the Defendants, in 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 [...]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.

'Tis 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, [Page 147] 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.

EvidenceEvidence. 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 [Page 148] 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, Co­vinCovin. may be given in Evidence, by the other, but not if the Issue be in­feoffed, or not infeoffed, for it is a Feoffment [...]iel quel, though made by Covin. li. 5. 60. Hob. 72.

Doomesd [...]y­book.The Book of Doomesday brought [Page 149] 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 [Page 150] 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, an [...] 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 pl [...]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 [Page 152] 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 Pa [...]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; [Page 153] but no cause was shewn,In nil debet, upon the Sta­tute for ty [...]hes, a Lay person cannot give a Non decimando in evidence, so may the King, and any other spiritual per­sons. li. 2. B. of Winchesters Case. either by [...]nity of possession, reall Composi­tion, or other cause to shew it dis­charged; Coke said it was no Evi­dence; for it is a prescription in non decimando, Curia contra; For a spirituall man may prescribe in non decimando, and by the Statute of 31 H. 8. he shall hold it discharged, as the Pryor held it; and if he held it discharged, non refert, by what means; for it shall be intended by lawful means, & the Iury after­wards found for the Plaintiff. Cro. 3. part. 206.

Vpon non assumpsit, in a generall Indebitatus assumpsit, Indebitatus ass [...]mpsit. the Defendant may give in evidence, payment at any time, before the Action brought, but upon a speciall promise to pay mony, &c. it is otherwise, Causa patet; for in the first Case, if there be no debt, the Law will infer no promise.

If a Church-Book, or any thing else is given in evidence, which ought not to be allowed, the Court above cannot quash the Ver­dict, [Page 154] except it be certified and re­turned with the Postea.Postea 26. As­ [...]se. pl. 4. Brownlow. 1 part. 207. But the Court may order a new Tryall, upon cause shewed, as for excessive dama­ges, &c.

CAP. XII. The Juries Oath; why called Recognitors in an Assise, and Jurors in a Jury; of the Tryal per medietatem linguae; when to be prayed, and when gran­table. Of a tryal betwixt two Aliens, by all English. Of the Venire facias, per medietatem linguae, and of Challenges to such Juries.

Assise, Enquest, and Proof, are taken fo [...] the word Jury. vide 28 E. 3. 23.THe Iury having heard their Evidence, let them now consi­der of their Verdict; But first they must remember their Oath, which in effect is, to finde according to [Page 155] their Evidence; and therefore they [...]hould have had it before the Evi­ [...]ence, but that the form and order [...]f the Venire facias, (which I have [...]ed my self to follow,) Leads me [...] it after their Evidence, in these words; Ad faciend, quandam Jura­am; I have al [...]eady shewed the [...]rivation of this word Jurata, See Chap. 1. and what is the legall acceptation of it; only observe with our great Master littleton, That the word Assize, 1 Inst. 154. is [...]ometimes taken for a Jury, so as the Learned Commentator doth well paraphrase, That the word Assise, Assisa for Jurata. is Nomen Aequivocum Aequi­ [...]ocan [...], because sometime it signifi­eth a Jury, sometime the Writ of Assise, and sometime and Ordinance, [...]r Statu [...]e; But Jurata, is Nomen [...]quivocum Aequivocatum, because we alwayes understand that word (according to the aforesai [...] defini­tion) to be a Iu [...]y of twelve men,The Juri [...]. Oath. so called, by reason of the Oath they take, Truly to try the Suit of Nisi prius, between party and party, ac­cording to their Evidence.

Why called Recognitors in an Assise, and Jurors in a Jury.And as in an Assise, the Jurors are called Recognitors, from these words in the Writ of Assise, facere Recognitionem; so upon a Nisi prius, they are called Juratores, from these words in the Venire facias, Ad faciend. quandam Juratam.

In ancient time, the Jury, as well in Common Pleas, as in Pleas of the Crown, were 12. Knights,12 Knights. as appeares by Glanvill, lib. 2. cap. 14. and Bracton, fol. 116.

The next words of the Venire facias, are Inter partes predictas. In the fourth Chapter, I have instan­ced, That in some Cases, a Iury shall be awarded betwixt the party, and a stranger to the Writ, and Issue; I will now shew what the Iury shall be, when one of the par­ties is an Alien, the other a Deni­zen; and when both parties to the Issue are Aliens.

This Tryal is called in Latine, Triatio bilinguis, Jury per me­dietatem linguae. or per medietatem linguae. And this Tryall by the Common Law was wont to be ob­tained of the King, by his Grant [Page 157] made to any Company of stran­gers, as to the Company of Lum­ [...]rds, or Almaignes, or to any other Company, that when any of them [...]as impleaded, the moyety of the [...]nquest should be of their ow [...] [...]ngue. Stan. Plea, Cor. lib. 3. cap. 7.

And this Tryal in some Cases, [...]s antiquity. per medietatem linguae, was before the Conquest, [...]s appeares by Lamb. fol. 91.3. Viri duo [...]oni Jure consulti, Anglie sex, Walliae totidem, Anglis & Wallis Jus dicanto. And of ancient time, it was called Duodecim virale Judicium. 1 Inst. 155.

But afterwards, this Law be­came universall: first by the Sta­tute of 27 Ed. 3. cap. 8. It was En­ [...]cted, that in Pleas before the Maior of the Staple, if both parties were strangers, the Tryal should be by strangers. But if one party was a stranger, and the other a Denizen, then the Tryal should be per medi­etatem linguae. But this Statute extended but to a narrow Compass, to wit, onely where both parties were Merchants or Ministers of [Page 158] the Staple, and in Pleas before th [...] Maior of the Staple. But after­wards, in the 28th Year of the sam [...] Kings Reign, cap. 13. It wa [...] Enacted,

That in all manner of Enquests and proofs, which be to be taken or made amongst Aliens, and Deni­zens, be they Merchants, or other, as well before the Maior of the Staple, as before any other Justi­ces, or Ministers, although the King be party. The one half of the Enquest, or proof, shall be De­nizens, and the other half Aliens, if so many Aliens and forraigners be in the Town, or place, where such Enquest or proof is to be ta­ken, that be not parties, nor with the parties in Contracts, Pleas, or other quarrels, whereof such En­quests or proofs ought to be taken: And if there be not so many Aliens, then shall there be put in such En­quests [Page 519] or proofs, as many Aliens, as shall be found in the same Towns or places, which be not thereto par­ties, nor with the parties, as afore­said is said, and the Remnant of Denizens, which be good men, and not suspitious to the one party, nor to the other.

So that this is the Statute which makes the Law universall,King. concerning the medietatem linguae; for though the King be party, yet the Ali [...]n may have this Tryall. And it matters not, whether the Moyety of Aliens, be of the same Country as the Alien, party to the Action, is: for he may be a Portugal, and they Spaniards, &c. because the Stat. speaks generally of Aliens. Sée Dyer 144.

And the form of the Venire facias, Venire facias, pe [...] medietatem linguae in this Case is De vicenet. &c. Quorum una medietas sit de Indige­nis, & altera medietas sit de alienige­nis natis, &c. And the Sheriff ought to return 12. Aliens, and 12. [Page 160] Denizens, one by the other, with addition which of them are Aliens, and so they are to be sworn. But if this Order be not observed, it is holpen as a mis-return, by the Sta­tutes of 18 Eliz. Cro. 3. part 818. 841. So that Brooks sayes, it is not pro­per to call it a Tryall per medieta­tem linguae, because any Aliens of any tongue may serve. But under his favour, I think it proper enough.

For people are distinguished by their Language, and Medietas Linguae, is as much as to say, half English, and half of another tongue or Country whatsoever, though it be not materiall of what sufficiency the Jurors are, yet the form of the Venire facias, shall not be altered, but the Clause of Quo [...]um quilibet habeat, 4 l. &c. shall be in, Cro. 3. part. 481.

But suppose that both parties be Aliens, of whom shall the Inquest be then? It is resolved, that the Inquest shall he all English; for though the English may be suppo­sed [Page 161] to favour themselves more than strangers, yet when both parties [...]e Aliens, it will be presumed, they favour both alike, and so indif­ferent. 21 H. 6. 4.

Where an Alien is party,All English. yet if [...]he Tryall be by all Englis [...], it is [...]terroneous, because it is at his [...]ill, if he will slip his time, and [...]t make use of the advantage [...]hich the Law giveth him when he [...]hould. Dyer 28.

The Alien ought to pray a Venire [...]cias, per medietatem linguae, When that A­lien should pray a Venire facias per medi­tatem. at the [...]me of the awarding the Venire fa­ [...]: But if he doth it at any time [...]fore a generall Venire facias be re­ [...]ned and filed, the Court may [...]t him a Venire facias, de novo. Dyer 144. 21 H. 7. 32. though it [...]th béen questioned.

But if he hath a generall Venire [...]as, he cannot pray a Decem tales, Tales. [...] per medietatem linguae, upon [...]s; because the Tales ought to [...]rsue the Venire facias. 3 E. 4.11, 2. And so if the Venire facias be [...] medietatem linguae, the Tales [Page 162] ought to be per medietatem linguae, Tales. as if 6. Denizens, and 5. Aliens appear of the principal Iury, the Plaintiff may have a Tales, per me­dietatem linguae, li. 10. 104. But if in this case the Tales be generall, de circumstantibus, it hath béen held good enough; for there being no exception taken by the Defendant, upon the awarding thereof, it shall be intended well awarded. Cro. 3. part. 818. 841.

If the Plaintiff or Defendant be Executor or Administrator, &c. though he be an Alien, yet the Tryal shall be by English, because he sueth in aut droit; Where the tryall of an A­liens cause shall he by English. but if it be averred that the Testator, or intestate, was an Alien, then it shall be per medietat. linguae. Cro. 3. part 275.

Mich. 40. & 41 Eliz. The Quéens Attorney exhibited an Information against Barre, Part English, and part Aliens. and divers other Mar­chants, some whereof were English, and some Aliens: After Issue, the Aliens prayed a Tryal per medietat. linguae. But all the Iustices of England resolved, that the Tryall [Page 163] should be by all English, and liken­ed it to the case of priviledge, where one of the Defendants de­ [...]ands priviledge, and the Court, us to his Companion cannot hold Plea, there he shall be ousted of his [...]riviledge, sic hic. More 557.

By the Statute of 8 H. 6. cap. 29.19. Challenge. Insufficiency, or want of Fxée­ [...]ld, is no cause of Challenge to Aliens, who are impanneled with the Aliens, (notwithstanding Stam­fords Opinion. Pl. Coron. 160) for this Statute saith, that the Stat. 2. H. 5. 3. shall extend onely to En­prests betwixt Denizen and De­ [...]izen.

If the Defendant do not inform the Court that he is an Alien, When the A­lien should pray a Venire facias per me­dietatem. upon [...]arding of the Venire facias, and [...]o pray a Venire facias, per medieta­ [...] linguae; he cannot challenge the Array for this cause at the Tryall, [...]f the Iury be all Denizens (not­ [...]ithstanding Stamfords Opinion to [...]he contrary, and the Books cited [Page 164] by him, fol. 159. pl. Cor.) For the Alien at his peril should pray a Ve­nire facias, per medietatem linguae, Dyer 357.

CAP. XIII. The Learning of Generall Ver­dicts, Speciall Verdicts, Pri­vy Verdicts, and Verdicts in open Court; and where the Inquest shall be taken by de­fault.

VErdict Verdict. or Verdict; In Latine, Vere dictum, quafi 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 Iudgement of the Court is built, for ex facto jus [Page 165] oritur; the Law ariseth from the fact; Wherefore it is no wonder, that the Law hath ever béen so cu­rious, and cautelous, as not to be­lieve the matter of fact, untill it is sworn by 12. sufficient men, of the Neighbourhood where the fact was [...]ne, whom the Law supposeth to [...]ve most cognisance of the truth, or falsehood thereof: which being sworn (for the words are, Jurato­ [...]es predict. dicunt super sacrum suum, The Credit of Verdicts. &c.) is the Verdict, whereof we now [...]eat; And such credit doth the [...]aw give to Verdicts, that no proof [...]ll be admitted to impeach the ve­ [...]ty thereof, so long as the Verdict [...]tands not reversed by Attaine; and [...]herefore upon an Attaint, no Super­ [...]deas is grantable by Law. Plo. Com. 496.

And it is worth our observation, [...]t the Law séems to take more [...]e of the fact, then of her self; for the Major part of the Iudges give [...]he Iudgement of the Law, though [...]he other Iudges dissent. But [...]very one of the 12. Iurors must a­grée [Page 166] together of the fact, before there can be a Verdict, which must be delivered by the first man of the Iury. 29 Assize. pl. 27.

Generall or speciall.And this Ve [...]dict is of two kinds, viz. one generall, and the other spe­ciall, or at large.

The generall Verdict, Generall Verdict. is posi­tively, either in the Affirmative, or Negative, as in Trespass, upon Not guilty pleaded; The Iury fi­ned 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 finde, Quod predict. B. in juste & fine judi­cio disseisivit predict. A. de predict. 20 acris terrae cum pertinentiis, &c. This is a generall Verdict. 1 Inst. 228.

A Special Verdict, Speciall Verdict. or Verdict at large, is so called, because it find­eth the special matter at large, and [Page 167] leaveth the Iudgement of the Law thereupon, to the Court,1 Instit. 226. of which kinde 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 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 eis (que) 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 matte [...] found at large, tend only to the Issue joyn­ed, and contain the certainty and [Page 168] 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, [Page 169] 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 Re­entry, &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, [Page 170] 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: [Page 171] 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 unive [...]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, [Page 173] 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. [...] 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, adm [...]teth the Wast, &c. 9. H. 6. 66. and the Jury cannot finde no Wast, for that would be against the Record. be within the same Record in which the Issue is joyned, upon which the Jurors give their Verdict, there they cannot finde any thing against this, which the parties have affirmed, and admitted of Record, although it be not true; For the Court may give Iudgement upon a thing confessed by the parties, a [...]d the Jurors are not to be charged with any such thing, but onely with [Page 174] things in which the parties vary. Ib. li. 5. 30.

So Estoppels, Estoppel. which binde the Interest of the Land, as the taking of a Lease of a mans own Land, by Déed intended, and the like, being specially found by the Iury,Cro. 1. pa [...]t. 110. Lib. 4 53. the Court ought to judge, according to the speciall matter; for albeit, E­stoppels regularly must be pleaded and relyed upon, by apt conclusion, and the Iury is sworn ad veritatem dicend. yet when the finde verita­tem facti, they persue well their, Oath, and the Court ought to ad­ju [...]ge according to Law. So may the Iury finde a Warranty, being given in evidence, though it be not pleaded, because it bindeth the right,Warranty not pleaded. unless it be in a Writ of Right, when the Mise is joyned up­on the méer right. 1 Inst. 227.

Verdicts ought to be such, that the Court may go clearly to Iudg­ment thereon;Uncertain Verdicts. and therefore Ver­dicts finding matter incertainly, or ambiguously, are insufficient and [Page 175] voyd, and no Iudgement shall be given thereupon: As if an Execu­tor plead Plene Administravit, and Issue is joyned thereon, and the Ju­ry finde that the Defendant hath Goods within his hands to be admi­nistred, but finde not to what value, this is an uncertainty, and there­fore an insufficient Verdict. li. 9. 74. 1 Inst. 227.

It is the Office of the Jurors, to shew t e verity of the fact,The Office of the Jury. and leave the Iudgement of the Law to the Court. And therefore upon an In­dictment of murder, quod felonice per cussit, &c. If the Iury finde per cussit tantum, yet the Verdict is good, for the Iudges of the Court are to resolve upon the special matter, whether it was felonice, and so mur­der, or not. li. 9. 69. And if the Court adjudge it Murder, then the Jurors in the conclusion of their Verdict, finde the Felon guilty of the murther contained in the In­dictment.

A Verdict that findes part of the Issue,Verdict finding part of the Issue. and finding nothing for the [Page 176] rest, is insufficient for the whole, because they have not tryed the whole Issue, wherewith they are charged;More 406. As if an Information of intrusion, be brought against one, for intruding into a Messuage, and 100 Acres of Land, upon the ge­nerall Issue, the Iury finde against the Defendant for the Land, but say nothing for the House, this is insuf­ficient for the whole.

Finding more than the Issue.But if the Iury give a Verdict of the whole Issue, and of more, &c. That which is more, is surphisage, and shall not stay Iudgement: for Utile per inutile non vitiatur, Leon. 1 part. 66. Cro. 1 part. 130. But ne­cessary incidents required by Law, the Iury may finde.

Where the Verdict ought to be of more than is in the Issue.Yet in many Cases, (nay almost in all) the Iury ought to finde more than is put in Issue, otherwise their Verdict is not good; and therefore they are to assess Damages and Cost, because it is parcel of their Charge, as a Consequent upon the Issue, though it be not part of the Issue in terminis. li. 10. 119.

So in Trespass against two, one [...]ines, and pleads Not guilty, Damages by the first In­quest. and [...]s found guilty. In this case, the [...]rst Inquest shall assess damages [...]n the whole Trespass, by both Defendants; and afterwards, the [...]ther comes, and pleads Not guilty, [...]d is found guilty: The fin [...]ing [...]f Damages by the first Inquest, to which he was not party, shall binde [...]im; and therefore if the Dama­ [...]es are outragious, and excessive, [...]he Defendant in the last Enquest, [...]hall have an Attaint.Attaint. li. 10.119.

So in Trespass, Quare clausum [...]egit, if Issue be joyned upon a Fe­ [...]ment, and the Jury give outragi­ [...]s Damages, An Attaint lies; for [...]e inquiry of Damages is conse­ [...]eat and dependant upon the Is­ [...]ae, and parc [...]l of their charge. ib.

In the 11th Report, fo. 5. It was [...]esolved,Damages by the first In­quest. that in Trespass against [...]wo, where one comes and appears, &c. against whom the Plaintiff de­clares with a simul Cum, &c. who [Page 178] pleads and is found guilty, and Damages assessed by the Enquest, and af [...]erwards the other comes and pleads, and is found guilty; The Defendant which pleaded last, shall be charged with the Damages tax­ed by the first Inquest; for the tres­pass which the Plaintiff had made joynt by his Writ, and Count, and done at one time, cannot be severed by the Jurors, if they finde the tres­pass to be done by all, at one and the same time as the Plaintiff de­clared.

Severall da­mages.So in Trespass against divers Defendants, if they plead not guil­ty, or severall Pleas, and the Jury finde for the Plaintiff in all, the Ju­rors cannot assess several Damages against the Defendants, because all is but one Trespass, and made ioynt by the Plaintiff, by his Writ and Count. And although that one of them was more malicious, and de facto, did more and greater wrong than the others, yet all came to do an unlawful act, and were of one party, so that the act of one, is the [Page 179] act of all, of the same party being present. But in trespass against two, if the Jurors finde one guilty, at one time, and the other at another time, there severall Damages may be taxed. But if the Plaintiff bring an Action of Trespass against two, and declare upon a several Trespas, his Action shall abate. And this is the diversity betwéen the finding of the Jury, and the confession of the party.

And in trespass, where the De­fendants plead several Pleas, all tryable by one Jury, and they finde generally for the Plaintiff, the Ju­rors cannot sever the Damages; if they do, their Verdict is vicious.

But in trespass against two,Judgment de melioribus dampnis. where one appeares, and pleads not guilty to a Declaration against him, with a simul Cum, &c. and af­terwards the other appears, and pleads not guilty to a Declaration against him also, with a simul Cum, &c. Whereupon two Venire fac. issue out, and one Issue tryed after the other, and severall Damages [Page 180] assessed: in judgement of the Law, the severall Juries give one Verdict, all at one time, and the Plaintiff hath his Election to have judgment de melioribus dampnis, by any of the Inquests. And this shall binde all, but fiat nisi unica Executio.

It is a Maxim, that in every case where an Inquest is taken by the Mise of the parties, by the same In­quest shall damagesDamages. be taxed for all: And in Mich. 39 H. 6. fo. 1. In an Action of Trespass against many, (who pleaded in Barr the Terme before) and one of them made de­fault,Writ of In­quiry. which was Recorded, There it is Resolved by all the Court, that for saving of a Discontinuance, a Writ of Enquiry of Damages shall be awarded, but none shall is­sue out, because he shall be contri­butory to the damages taxed by the Inquest, at the Mise of the parties, if it be bound for the Plaintiff; and if it be found against the Plaintiff, then the Writ of Enquiry shall is­sue forth.

And the Reason wherefore no Writ shall issue out at first, to in­quire of damages untill, &c. is, be­cause that if a Writ should issue out, and be executed, this is nothing but an Inquest of Office, and not at the Mise of the parties, and yet this Inquiry (if it might be allow­ed) ought to serve for all the da­mages; For inquiry of damages, shall not be twice, and the others which have pleaded to Inquest, if the Issue be found against them, shall be chargeable to those damages which are found by the Inquest of Office, and if they be excessive, they shall have no remedy, although there be no default in them; for they cannot have an Attaint, because it is but an Inquest of Office.

But in trespass against two,Damages by the first In­quest. who plead not guilty, &c. severally; and severall Venire fac: awarded. The Inquest which first passes, shall as­sess damages for all, and the second Inquest ought not to assess damages at all, but that Defendant shall be [Page 182] contributory to the damages asses­sed by the first Jury, notwithstand­ing he is not party to it; yet if these damages be excessive, he shall have an Attaint, (because though he is a stranger to the Issue, yet in Law, he is privy in Charge.) And so no damage or mischief can accrue to him in this Case.

Verdict, when to be supplyed, by Writ of In­quiry, &c.Now let us sée, when something is lest out of the Verdict which the Jury ought to have inquired of, whether it may be supplyed by mat­ter expost facto; and how: And for this, know, that if damages be left out of a Verdict, this omission cannot be supplyed, by Writ of In­quiry of damages: for this would prevent the Defendant of his Re­medy by Attaint, which would be ve­ry mischievous; for then such omis­sion might be on purpose, to de­prive the Plaintiff of his Attaint, li. 10. 119.

And the Rule is, that when the Court ex officio, ought to inquire of any thing, upon which no Attaint [Page 183] lies, There the omission of this, may be supplyed by a Writ of In­quiry of damages; as in a Quare im­pedit, if the Jury omit to enquire of these 4. things, that is to say, de plenitudine, ex cujus presentatione, si tempus semestre transierit, and the va­lue of the Church per annum, there the Plaintiff may have a Writ to inquire of these points. Dyer 241. 260. because of these no Attaint lies, as it is holden in 11 H. 4. 80. because that as to these, the Inquest is but of Office. But in all cases, where any [...]oint is omitted, whereof an Attaint lyeth, there this shall not be supply­ed by Writ of Inqui [...]y, upon which no Attaint lyeth. And t [...]erefore in De [...]inu [...], if the Jury finde Damages and Cost, and no value, as they ought, this shall not be supplyed by Writ of Inquiry of damages, for the Reason aforesaid. Ib. Et sic in simili­bus.

But how then? What,Verdict set a­side, because the damages not well as­sessed. shall the Plaintiff loose the benefit of his Ver­dict, because t [...]e Jury assessed no da­mages, (or did insufficiently assess [Page 184] them)? Cerres in such Cases where damages onely are to be recovered, he must loose the whole benefit of his Verdict; but where any thing else is to be recovered, besides damages, as in Debt, Ejectment, &c. he may release his Damages, and have Iudgement upon his Verdict as to the rest. And so where damages are to be recovered, if part of them are assessed insufficiently, and part well, he may have Iudgement for those damages well assessed. And oftentimes the i [...]sufficiency of the Declaration shall set aside the Ver­dict; Verdict set aside in part. as if an Action upon the Case be brought upon two promises, and one of them be insufficiently laid, and the Verdict give intire Dama­ges, this is naught for the whole; But if the Damages had béen seve­rally assessed upon the severall pre­mises, then the Verdict as to the promise well laid, should have stood.

In the 11th Report. fo. 56. Marsh brought a Writ of Annuity against Bentham, and the parties discended [Page 185] to issue, which was tryed for the Plaintiff, and the Arrerages found, &c. But the Iurors did not assess any damages, or Cost; which Ver­dict was insufficient, and could not be supplyed by Writ of Inquiry of damages; wherefore the Plaintiff released his damages, and costs,Release of da­mages where none were assessed. and upon this had Iudgement: upon which the Defendant brought a Writ of Error, and assigned the Er­ror aforesaid, scil. the insufficiency of the Verdict; sed Judicium affirma­tur, because the Plaintiff had re­leased his damages and costs, which is for the benefit of the Defen­dant.

In Dyer 22 Eliz. 369. 370.Release of d [...] ­mages where they were not well assessed. In a Writ of Ejectione Custodiae terrae & haeredis, the Iurors assessed dama­ges intirely, which was insuffici­ent; for it lay not for the Heir, yet the Plaintiff released his damages, and had Iudgement for the Land: And Note, that insufficient assesment of damages, and no assessing, is all one.

Damages and Costs.The Iury ought to assess no more damages pro injuria illata, then the Plaintiff declares for: But they may assess so much, and moreover give cost, which is called Expensae litis; though in the proper and gene­rall signification, Dampnum also comprehends Costs of Suit, as the Entry reciting both damages and costs, well affirms, scil. Quae dampna intoto se attingunt cum. &c.

More damages than the Plain­tiff declares for.But if the Iury do assess more damages than the Plaintiff declares for, the Plaintiff may remit the over­plus, and pray Iudgement for the residue, as in the 1 [...]th Report, fol. 115. in Trespass the Plaintiff de­clared ad dampnum &c. 40 l. at the tryall of the Iury assessed damages occasione transgressionis predict. ad 49 l. and for costs of suit 20 s. upon which Verdict, the Plaintiff at the day in Bank, remitted 9 l. parcel of the said 49 l. assessed for damages, and prayed Iudgement for 4 [...] l. (to which damage he had counted) with increase of Costs of suit,Damages re­mitted. and had [Page 187] 9 l. de Incremento, added by the Court, which in all amounted to [...]0 l. and had his Iudgement ac­ [...]ordingly: upon which, a Writ of Error was brought, and the Iudge­ [...]ent affirmed.

For as in reall actio [...]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 depen [...]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, [Page 188] 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 1 [...] 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 [Page 189] lesse, and so the Court knowes not [...] to increase the cost; where­ [...]e he shall have Iudgement but [...]20. marks, by reason of the in­ [...]tainty.

Where a special Verdict is not [...]tred according to the Notes,Verdict a­mended by the notes. the [...]cord may be amended, and made [...]grée with the notes at any time, [...]ugh it be 3, or 4, &c. Termes af­ [...]r it is entred. lib. 4. 52. lib. 8. 162. [...]o. 1 part. 145.

If the matter,Form. Hob. 54. and substance of [...]e Issue be found, it is sufficient; [...]r precise forms are not required [...]y Law in special Verdicts, (which [...]e the finding of Lay-men) as in Pleadings, which are made by men [...]urned in the Law; and therefore [...]tendment in many cases shall [...]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 [Page 190] 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 D [...]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 [...]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 Resi­d [...]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 Circum­stancesCircumstances. 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 ma [...] finde Circumstances and presum [...]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 [...]iven at the Tryall,Postea amend­ed, how. and uncertain­ly returned by the Clerk of the As­ [...]izes, &c. The Postea may be a­mended; upon the Iudges certify­ [...]ng the truth how the Verdict was given. Cro. 1. part. 338.

In many Cases a Verdict may [...]ake an ill Plea or Issue good.Ill Plea, made good by Verdict. As [...] an action for words, Thou wast [...]erjured, and hast much to answer for [...] before God; Exception after Verdict for the Plaintiff, in arrest [...]f Iudgement: For that it is not [...]nd in the Declaration, that he [...]pake the words in auditu compluri­ [...]orum, or of any one, according to [...]he usuall form: sed non allocatur; for [...]ing found by the Verdict that he [...]pake them, it is not materiall, al­ [...]hough he doth not say, in auditu [...]urimorum; whereupon it was ad­ [...]udged for the Plaintiff. Cro. 1. part. 199.

Sée Cro. last part 116. Where the Barr was ill, because no place [...]f payment was alledged, yet the [...]ayment being found by Verdict, it [Page 194] 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 battery of the feme, ad dampnum ipsorum, the Defendant, Quoad the Clausum fregit, pleaded Not guilty, Quoad the Battery justifies. And for the first Issue, it was found for the Defendant; And for the second, for the Plaintiff, and now moved in arrest of Iudgment, that the De­claration is not good, because the Baron joyns the feme with him in trespass de clauso fracto of the Ba­rons, Baron & Feme. which ought not to be; But for the Battery of the feme, they may joyn, whereto all the Court agreed; But it was moved, that in regard it was found against the Plaintiffs for this Issue, in which they ought not to joyn, and the De­fendant is thereof acquitted, and the Issue is found against the De­fendant, for that part wherein they ought to joyn: This Verdict hath discharged the Declaration for that [Page 195] part which is ill, and is good for the residue. As in 9 E. 4. 51. Trespas by Baron and Feme, for the battery of both: The Defendant pleaded Not guilty, and found guilty, and damages assessed for the Battery of the Baron, by its self, and for the Battery of the Feme by its self, and Iudgment was given for the dama­ges for the battery of the feme, & the Writ abated for the residue. (And of that opinion was Lea Chief Justice, & Doderidge al. contra.) And the same Law I conceive, if the Iury had found the Defendant Not guilty of the battery to the Husband, but guilty to the Wife. Cro. 2. part. 655.

Rochel and his Wife, Rochel and his Wife against Steel. brought an action of trespass and assault in the Exchequer, Hill 16. 59. against Steel, and others, who pleaded Not guilty, and the Verdict found Steel guilty of the Battery to the Wife; but [...]und nothing concerning the Hus­band. Wherefore Iudgment was stayd; but the Barons held, that if the Iury had found the Defen­dants not guilty, as to the Hus­band, then the Verdict had helped [Page 196] the Declaration, and the Plaintiff should have had Iudgment for the damages, for the battery of the Wife.

Of what a Verdict may be.The Iury may finde any thing that may be given in Evidence to them, as Records, either Patent, Statute or Iudgment. Things done in another County,Plo. Com. 411. or Coun­try; for which sée Evidence before. Hob. 227. And of these things they ought to have Conusance, they are to have Conusance also, of all In­cidents,Incidents. and dependants thereup­on; for an Incident is a thing ne­cessarily depending upon another. Co. Littleton 227. b.

The Verdict may be against the Letter of the Issue, so the substance is found.If the matter and substance of the Issue be found, it is sufficient, though it be against the Letter of the Issue. As in the first, Institutes, fo. 114. b. A modus decimandi was alledged by prescription, time out of minde, for Tythes of Lambs. And thereupon Issue ioyned. And the Iury found that before twenty years then last past, there was such [Page 197] a prescription,Prescription. and that for these twenty years, he had payd Tythe Lamb in specie. And it was objected first, that the Issue was found a­gainst the Plaintiff, for that the pre­scription was generall for all the time of the prescription, and 20. years fail thereof. 2. That the party by payment of Tythes in specie, had waved the prescripti­on, or custome. But it was ad­judged for the Plaintiff; for albeit, the modus decimandi had not béen payd by the space of twenty years, yet the prescription being found, the substance of the Issue is found for the Plaintiff.

In Assise of Darrein Presentment, if the Plaintiff alledge the avoydance of the Church by privation,Avoydance. and the Jury finde the voydance by death the Plaintiff shall have judge­ment; for the manner of voydance is not the title of the Plaintiff, but the voydance is the matter. 1 In­stit. 282.

If a Gardein of an Hospitall bring an Assise against the Ordi­nary,Deprivation. he pleadeth that in his visita­tion he deprived him as Ordinary, whereupon Issue is taken, and it is found that he deprived him as Pa­tron, the Ordinary shall have judge­ment, for the deprivation is the substance of the matter. Ib.

The Lessée Covenants with the Lessor, not to cut down any Trées, &c. and binds himself in a Bond of 40. pounds, for the performance of Covenants. The Lessée cut down 10.Breach of 20. Trees cut down for 10. Trées, the Lessor bring­eth an action of debt upon the Bond, and assigneth a breach, that the Lessée cut down 20. Trées: whereupon Issue is joyned; and the Jury finde that the Lessée cut down ten: Judgment shall be given for the Plaintiff, for sufficient matter of the Issue is found for the Plaintiff, to forfeit the Bond. Ib.

And this Rule holds in Crimi­nall Causes: For if A. be appeal­ed, [Page 199] or indicted of Murder, viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo & forma, Indictment of Murder, and Verdict findes Manslaughter. yet the Jury may finde the Defendant guilty of Man-slaughter without malice pre­pensed, because the killing of J. is the matter, and malice prepensed is but a Circumstance. Plo. Com. 101.

And generally where modo & forma, Modo & forma. are not of the substance of the Issue, but words of form; there it sufficeth, though the Verdict doth not finde the precise Issue.

As if a man bring a Writ of Entry in casu proviso, of the Aliena­tion made by the Tenant in Dower to his disinheritance, and counteth of the alienation made in Fée, and the Tenant saith, that he did not alien in Manner, as the Demandant hath declared,Alienation. and upon this they are at Issue, and it is found by Ver­dict, that the Tenant aliened in tail, or for terme of another mans life. The Demandant shall reco­ver, [Page 200] yet the alienation was not in manner as the Demandant hath de­clared. Littleton, Sect. 483.

Also if there be Lord, & Tenant, & the Tenant hold of the Lord by fe­alty onely, & the Lord distrain the Tenant for Rent, and the Tenant bringeth a Writ of Trespas a­gainst his Lord,Trespass by the Tenant against the, Lord. for his Cattel so taken, and the Lord plead that the Tenant holds of him by fealty and certain Rent, and for that Rent be­hinde he came to distrain, &c. And demand Iudgement of the Writ brought against him Quare vi & armis, &c. And the other saith, that he doth not hold of him, in manner as he supposed; and upon this, they are at Issue. And it is found by Ver­dict, that he holdeth of him by fe­alty onely, in this case the Writ shall abate, and yet he [...]oth not hold of him, in manner as the Lord hath said; For the matter of the Issue is, whether the Tenant holdeth of him or no; for if he holdeth of him, although that the Lord distrain, the [Page 201] Tenant for other services which he ought not to have, yet such 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 'tis a Rule,Modo & forma. when words of so [...]. 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 [Page 202] 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 feoff [...]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 [Page 203] 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,O [...]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 [Page 205] 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, [Page 206] 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 deman­de [...] in the Common-Pleas, Enquest by default. the first day of the Terme, and some ap­peared, and some not, so that there [Page 207] 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 taken by default,What the De­fendant looses by his default. the Defendant shall loose his Challenges, and by 28 Ass. p. 42. tit. Enquest in Fitz. he shall loose his Evidences also. Bro. Enquest 10.

Der. the Defendant pleaded a Release, and the Plaintiff replyed non est factum, and at the day of the Venire facias, the Defendant made default, and the Inquest was taken upon his default, and found for the [Page 208] Defendant, When the De­fendant may be condemned by d [...]fault, and when an En­quest must be taken upon the default. for which the Plaintiff took nothing by his Bill; And yet if the Plaintiff had prayed it, he might have had the Defendant con­demned by his default before the ta­king of the Verdict, Et sic vide, folly in le Plaintiff. Bro. Ib. 5. But upon suc [...] Release, and default in Tres­pass, the Enquest shall be taken by default, and the Defendant shall not be condemned by default, though the Plaintiff pray it, and the reason is, because the debt is certain, and the dama [...]es are incertain in Trespas. Bro. Ib. 3.

And Finch, fo. 4 [...]9. hath well col­lected out of Brooke, that alwayes in an Action of Trespass, whatsoe­ver the Issue be, Release, Iustifi­cation, &c. and also in Debt, De­tinue, Accompt, and the rest which are for things in certainty, if the Issue be taken upon a matter in fait onely, as payment, or that an Ac­quittance pleaded in Barr by the Defendant, was made by Dures, &c. The Inques [...] shall be taken by de­fault, if the Defendant makes de­fault; [Page 209] But in the last recited acti­ [...] of debt, &c. If the Issue be upon the acquittance it self, Re­lease, or other matter [...]-writing, the Plaintiff may pray Iudgment upon the Defendants default, if he [...]ill, but if he do not pray it, the Jury shall be taken by default, as in [...] action of Trespass.

The Jury may give a Verdict [...]ithout testimony,Verdict with­out, or against testimony. or against testi­mony, when they themselves have Conuzans of the fact. Plo. Com. 16.

CAP. XIV. How the Jury ought to demean themselves, whilest they con­sider of their Verdict; when they may eat and drink, when not; What misdemeanor of th [...]irs, will make the Verdict voyd; Evidence given them, w [...]en they are gone from the Barr, spoyls their Verdict: For what the Court may fine them, and where the Justices may carry them in Carts, till they agree of their Verdict. An Amendment offered by the Jury.

Jurors ought not to eat or drink.THere is a Maxime, and an old Custom in the Law, that the Ju y shall not eat, nor drink, after they be sworn, till they have given their Verdict, without the assent and Licence of the Justices; and that is [Page 211] ordained by the Law, for eschewing of divers inconveniencies, that might follow thereupon; and that especially, if they should eat or drink, at the Costs of the parties; and therefore if they do so, it may be laid in arrest of Iudgment.

But with the assent of the Iusti­ces, they may both eat and drink; as if any of the Jurors fall sick, before they be agréed of their Verdict, so soon that he may not commune of the Verdict, then by the assent of the Iustices, he may have meat or drink, and also such other things as be necessary for him; and his fel­lowes also at their own costs,For by assent of the parties they may eat and drink. Br. Jurors 2. or at the indifferent Costs of the parties, if they so agrée, or by the assent of the Justices, may both eat or drink: and if t [...]e Case so happen, that the Jury can in no wise agrée in their Verdict; as if one of the Jurors knoweth in his own Conscience, the thing to be false, which the other Jurors affirm to be true, and so he will not agrée with them, in giving [Page 212] a false Verdict, and this appeareth to the Iustices by Examination, the Iustices may in such case, suffer the Iury to have both meat and drink for a time, to fée whether they will agrée. And if they will in no wise agrée, the Iustices may take such order in the matter, as shall séem to the, may their discretion, to stand with reason and conscience, by a­warding of a new Inquest,New Inquest when the Jury cannot agree. and by setting fine upon them, that they shall finde in default, or otherwise as they shall think best, by their dis­cretion; like as they may do, if one of the Iury die before the Verdict, &c. D. and Student. 158.

W [...]ere, if the Jury eat or drink, it shall avoid the Ver­dict, and where onely fi [...]eable.If the Iury after their Evidence given unto them at the Barre, do it their own Charges eat or drink, either before or after they be agréed on their Verdict, it is [...]nable, but it shall not avoid the Verdict; But if before they be agréed on their Verdict, they eat or drink at the charge of the Plaintiff, if the Verdict be given for him, it shall avoyd the [Page 213] Verdict: But if it be given for the Defendant, it shall not avoid it; Et sic è converse. But if after they be agréed on their Verdict, they eat or drink at the charge of him, for whom they do passe, it shall not avoyd the Verdict. 1 Inst. 228.

To give the Iury money, makes their Verdict voyd by two Iustices. Leon. 1 part 18.

If the Plaintiff after Evidence given,What deli­vered to the Jury after E­vidence, shall avoid their Verdict. and the Jury departed from the Barr, or any for him, do deliver any Letter from the Plaintiff, to any of the Jury, concerning the matter in Issue, or any Evidence, or any escrowle touching the matter in Is­sue, which was not given in Evi­dence, it shall avoid the Verdict, if it be found for the Plaintiff, but not if it be found for the Defendant, Ec sic è converso. But if the Jury car­ry away any Writing unsealed, which was given in Evidence in open Court, this shall not avoid their Verdict, albeit they should not have carried it with them. lb.

How the Jury ought to be kept by the Bayliff.By the Law of England, a Jury after their Evidence given upon the Issue, ought to be kept together, in some convenient place, without meat or drink, fire or Candle, (which some Books call an impri­sonment) and without spéech with any,When they may eat and drink. See Smith's Common-wealth. 74. unless it be the Bayliff, and with him onely, if they be agréed. After they be agréed, they may in causes betwéen party, and party, give a Verdict, and if the Court be risen, give a privy Verdict before any of the Judges of the Court, and then they may eat and drink, and the next morning in open Court, they may either affirm,Wh [...]re there can be no pri­vy Verdict. or alter their privy Verdict, and that which is given in Court shall sta [...]d. But in criminall cases of life or mem­ber, the Jury can give no privy Ver­dict, but they must give it openly in Court. Ib.

Where the Jury cannot be discha [...]ged bef [...]re Ver­dict.Neither can a Jury sworn and charged in case of life, or member be discharged by the Court, or any other, but they ought to give a Ver­dict. [Page 215] And the King cannot be non­suit,The King can­not be nonsuit. for he is in Iudgment of Law ther present in Court, but a com­mon person may be nonsuit. And in civill actions, the Justices upon cause, may discharge the Jury. Br. Enquest. 68. 47. 39. &c.

In Hillary Terme, Sexto H. 8. Ro­tulo 358. It was alledged in arrest of the Verdict at the Nisi prius, that the Jurors had eat and drunk. And upon Examination, it was found, that they had first agréed; and that returning to give their Verdict, they saw Rede Chief Iustice in the way, going to sée a fray, and they followed him, Et in veniendo vide­runt cyplum, & inde biberunt. And for this, every one of them was fi­ned 40 d. Ju [...]ors fined. And the Plaintiff had Iudgment upon the Verdict. Dyer 37.

And Dyer 218. At the Nisi prius, the Iury after their charge given, re­turned and said, that they were all agréed except one, who had e [...]t a Pear, and drunk a draught of Ale, [Page 216] for which he would not agrée;Jurors at the Nisi prius, fined in bank, for eating peares, and drinking Ale. And at the Request of the Plaintiff, the Iury was sent back again, and found the Issue for the Plaintiff. And the matter aforesaid being ex­amined by the Oath of the Iurors Seperatim, and the Bayliff who kept them, and found true, the offender was committed, and afterwards found Surety for his Fine. Si, &c. And Fitzherbert, the then Iustice of Assise, gave him day in banco, &c. at which day a Fine of 20 s. was there assessed. Et quoad Ball: Curia avisare vult.

In trespass by Mounson against West, the Iury was charged, and Evidence given, and the Iurors being retired into a House, for to consider of their Evidence,Fined for ha­ving Figgs and Pippins about them. they re­mained there a long time without concluding any thing, and the Of­ficers of the Court who attended them, séeing their delay, searched the Iurors, if they had any thing about them to eat; upon which search it was found, that some of [Page 217] them had Figgs, and others Pippins, for which the next day, the matter was moved to the Court, and the Iurors were examined upon Oath: And two of them did confess, that they had eaten Figgs before they had agréed of their Verdict, and thrée other of them confessed, that they had Pippins, but did not eat of them; and that they did it without the knowledge or will of any of the parties. And afterwards the Court set a fine of 5 l. upon each of them which had eaten, and upon the others which had not eaten 40 s. But upon great advice and consideration had, and conference with the rest of the Iudges, the Verdict was held to be good. Not­withstanding the said misdemeanor. Leon. 1. part 133:

And sée the Book of Entries, 251.Fined for eat­ing Raisins and Dates. The Iurors after they went from the Barr, ad seipsos, of their Ver­dict to advise, Comederunt quasdam species, scil. Raisins, Dates, &c. at their own Costs, an well before, as [Page 218] after they were agréed of their Verdict. And the Iurors were com­mitted to prison, but their Verdict was good although the Verdict was given against the King.

Finable for having sweet­meats, &c. about them, though they do not eat them. See Plo. Com. 519. One fined, and imprisoned for having Sugar-Candy and Li­quorish about him.In Ejectione firme, it was found for the Defendant, thrée [...] the Iu­rors had Sweet-meats in their Pockets, and those thrée were for the Plaintiff, untill th y were searched, and the Sweet-meats found, an [...] then did agrée with the other nine, and gave Verdi [...]t for the De­fendant. It was the Opinion of the Iustices, that whether they eat or not, they were finable for having of the Sweet-meats with them, for that is a very great misdemcanor. Godbolt 353.

Jurors careed.40 Assise. Placito 11. The Iu­stices said, that if the Iurors will not agrée in their Verdict, the Iu­stices may carry them in a Cart along with them, till they are agréed.

The Iury were gone from the Sarr, to confer of their Verdict, [...]nd one of the Witnesses before sworn on the Defendants part,The same Evi­dence given to the Jury, after they were gone from the Barr, spoils the Ver­dict. was called by the Iurors, and he reci­ted again his Evidence to them, and after they gave their Verdict for the Defendant. And complaint be­ing made to the Iudge of the As­sises of this misdemeanor, he exa­mined the Enquest, who confessed all the matter, and that the Evi­dence was the same in effect, that was given before, Et non alia nec diversa. And this matter being re­turned by the Postea, the Opinion of the Court was, that the Verdict was not good, and a Venire facias de novo was awarded. Cro. last part, 189.

The Plaintiff delivered an es­crowl to a Iuror impanelled,Escrowle deli­vered to a Ju­ror, before he was sworn Vi­tiates the Ver­dict. before he was sworn, who afterwards be­ing sworn, and gone with the Iury from the Barr, to consider of the Verdict, shewed the same Escrowle to his Companions, who found for the Plaintiff. The Minister who [Page 220] kept the Enquest, informed the Court hereof, and the Iury being examined, confessed the matter a­foresaid, upon which Iudgement was stayed; for after the Iury are sworn, they ought not to sée, nor carry with them any other Evi­dence, but what was delivered to them by the Court: Afterwards the Plaintiff said, that the Escrowl proved the same Evidence, which was given to them at Barr by him; wherefore it was not so bad, as if it had béen new Evidence not given before: Sed non allocatur. 11 H. 4. 17.

Church-Book delivered to the Jury, act of Court. Pasche 38 Eliz. Inter Vicary at Far­thing, at the Nisi prius. The Issue was about Non-age, and two Church-Books were given in Evi­dence, one whereof was delivered to the Iury in Court, by the assent of parties, and afterwards, the other was delivered to the Iury out of the Court by the Solicitor of the Plaintiff, without the assent of the Court, and a Verdict for the Plain­tiff, and this was indorsed on the [Page 221] Postea; The Question was, whe­ther this should make the Verdict [...] or no, for the Iustices differed [...] opinion, Popham and Gawdy, that [...]t should not; Fenner and Cleach, [...]t it should; the Negative Iu­ [...]es gave these Reasons. That [...]e Book was delivered in Evi­dence in the Court, and so the other p [...]rty might answer to it, and that the Court had informed the Iury of the validity thereof, how farr they were to believe it, with many other Reasons: But the Affirmative was urged, because there might be some matter in this Book, to in­duce them otherwise than was in­tended before, and because it was delivered on his part, for whom the Verdict passed, without the Courts assent; yet one Book (scil. Cro. last part 411.) tells us, Iudge­ment was afterwards given for the Plaintiff; sée Mores Reports 452. The Books differ;Consider the Reasons in the former cases. for Cro. makes Clinch give his opinion for the Verdict. But More brings him on the other side, which I conceive is [Page 222] truest; and for my part, I know no reason, why foisting of Evidence to the Iury out of Court, should have any favour at all.

Hill. 40 Eliz. Rot. 847. In arrest of Iudgment after Verdict,Escrowle from one who was no party. it was alledged, that a Iuror delivered to his Companions, an Escrowle for Evidence to them, which was not given in Evi [...]ence at the Tryall, and adjudge [...] no cause to arrest Iudgment, unless it had béen re­ceived from one of the parties, which did not appear. More 546.

In a Writ of Error, the first Error assigne [...] was, that Termino Trin. twelve Iurors, and no more, did appear:Jury adjourn­ed. This ex assensu par­tium, was adjourned untill Crastino Animar. on which day, two others came in and were sworn, being of the first Pannel.

The Court all clear of opinion, that this is no error, this being [Page 223] good enough, they being all to be called again. Leon. 3. part 38.

If a Iuror departJuror depart. after he is sworn, he shall be fined and im­prisoned, and by assent of parties, another Iuror may be sworn. Bro. Jurors 46. lib. 5. 40.

If a man be non-suited after the Jury is ready to give their Verdict, the Court may cause the Amerce­ment of the Plaintiff to be present­ly offered by the Iurors. li. 8. 39.

CAP. XV. What punishment the Law hath provided for Jurors of­fending; as taking reward to give their Verdict. Of Em­brac [...]ors. D [...]cies tantum. At­taint: several fines on Jurors. What Issues they forfeit, and of Judgement for striking a Juror in Westminster.

YOu have already heard how the Court may fine the Iurors for their misdemeanors in giving up their Verdict, I will procéed in shewing what punishments they are lyable unto, if they neglect their duty; and doubtless, no men have more néed of knowing what penal­ties the Law inflicts on their offen­ces, then common Iurors, who too [Page 225] often; being preingaged with fa­vour to the Plaintiff, or malice a­gainst the Detendant, Et sic e con­verso; or with common Interest, (as they call it) where Tythes or Commons are in question, will nei­ther hearken to their Evidence, nor [...]rection of the Iudge. But sub­vert the whole drift of the Com­mon Law, which will have them of the Neighbour-hood, where the fact was committed, to the end, that they knowing most of the fact, may consequently, give the best Verdict; yet contrarywise, Iurors which live nearest, do now a dayes, most com­monly so fetter themselves with favour or animosities to the par­ties, that those which live furthe [...] off (as Iuries from other Coun­ties) for the most part, gide the cleanest Verdicts. And how should the Iudges remedy this mischief, but by severely punishing those Iu­ries which offend; the Law in this will be their Guide; for without doubt, (excepting life and member) [Page 226] t [...]e Law hath provided more severe punishments against Iuries, then against any other offendor whatso­ever; as well knowing that corrup­tio optimi est pessima: And common Iurors generally have nothing to do with this verse, Oderunt peccare boni, virtutis amore, There­fore 'tis fit they should be con­cerned in the next, Oderunt pec­care mali, formidine poenae; where­fore the description of what this poena is, shall be the conclusion of this Treatise.

If any Iuror take a reward to give his Verdict,The penalty of Jurors taking rewards. and be thereof at­tainted, at the suit of other than the party, and maketh fine, he which sueth shall have half the fine, and if any of the parties to the Plea, bring his Action against such Juror, he shall recover his damages. And the Juror so attainted shall have impri­sonment for one year, which impri­sonment shall not be pardoned for [Page 227] any fine, this is by the Statute of 34 E. 3. cap. 8.

5 E. 3. ca. 10. It is accorded,Shall not serve of any other Inquest. That if any Juror in Assises, Juries or Enquests, take of the one party, or of the other, and be thereof duly attainted, That hereafter he shall not be put in any Assises, Iuries or Enquests; and nevertheless, he shall be commanded to prison,Imprisoned and ransomed, (that is) fined. and further ransomed at the Kings will. And the Iustices before whom such Assises, Iuries and Enquests, shall passe, shall have power to en­quire and determine according to this Statute.

A man would think that these Statutes should have frighted any Iuror from taking Rewards to give his Verdict. But

—Quid non mortalia pectora cogis,
Auri sacra fames?

So sacred is this love of money, [Page 228] that Conscience her self must vail to it, and not stand in competition with such allurements: wherefore the Law did redouble its force; nay more, produced a Decies tantum, scil. That a Iuror taking reward to give his Verdict, shall pay ten times so much, as he hath taken; which forfeiture, my thinks, should make even those who love money best, re­fuse to take mony upon such an ac­count, because it is like a Canker in their Estates, depriving them in the end, of ten times more then it brought; for which, hear the Statute 38 E. 3. cap. 12.

De [...]ies tantum. Item, As to the Article of Iu­rors, in the 24th year, it is assented and joyned to the same, that if any Iurors in Assises sworn, and other Enquests to be taken betwéen the King and party, or party and par­ty, do any thing take by them or other of the party, Plaintiff or Defendant, to give their Verdict, [Page 229] and thereof be attainted by process contained in the same Article, be it at the suit of the party that will sue for himself, or for the King,Embraceor. or any other person, every of the said Iurors, shall pay ten times as much as he hath taken. And he that will sue, shall have the one half, and the King the other half. And that all Embraceors, that bring or procure such Enquests in the Country, to take gain or profit, shall be punished in the same man­ner and form as the Iurors. And if the Iuror or Embraceor so at­tainted, have not whereof to make grée, in the manner aforesaid, he shall have the imprisonment of one year: And the intent of the King, of Great men, and of the Com­mons is, That no Iustice, or other Minister, shall enquire of office, upon any of the points of this Ar­ticle, but onely at the Suit of the party, or of other, as afore is said.

Vpon which Statute, there is a Writ called a Decies tantum; and who will, may bring it, for it is a popular Action and lies (as you sée) where any of the Iurors, after he is sworn, taketh of one party, or of the 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 hi [...]. 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 [...]ut them in fear, or solicits them to find on the one [Page 231] 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 [...]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 CounsellorsCounsellors. at Law, may plead for their money at the Barr; But they must not labour the Jury privately, and if they take money for t [...]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 [Page 232] was no preingagement for it. 39 Assise. p. 19.

A Juror was challenged, and six other Iurors were [...]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 Verdi [...] 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 [Page 234] 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,I [...].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 [Page 235] 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 [Page] Kings-Bench, or Common-Pleas; up­on which, 24. of the best men in the County are to bet [...]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.

[Page 237] 6. That their Trées shall be [...]ted up.

7. That their Meadow-grounds [...]hall be plowed up.

8. That their bodies shall be [...]ast into the Goal, and the party [...]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 Wi [...] of Attaint, at the Common-Law, [...] upon that Statute. Wherefo [...] let the Iuror expect the greatest pu [...] ishment, when he offends. 3 Inst. 16 222.

And so I conclude with the word [...] of Fortescue, Quis tunc (etsi imm [...] mor salutis animae suae fuerit) non fo [...] midine tantae poenae, & verecundi [...] 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.

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