I Do allow the PRINTING and PUB­LISHING of this BOOK, Entituled Tryals Per Pais: Or, The Law of England, Concerning Iuries by Nisi Prius.

Fr. Pemberton.

Tryals per Pais, OR THE Law of England CONCERNING JURIES BY Nisi Prius, &c.

The Second Edition, Newly Revised, and much inlarged, with an Addition of Precedents, and Forms of Challenges, De­murrers upon Evidence, Bills of Exception, Pleas puisne Darrein Continuance, &c.

Very Useful and Necessary for all Lawyers, Attorneys and other Practicers, especially at the Assizes.

By G. D. of the Inner Temple, Esquire.

Per testes solum, lex ipsa nunquam litem dirimit, quae per Juratam xij. hominum decidi poterit. Cum sit modus isle ad veritatem eliciendam multo potior, & efficacior, quam est forma aliquarum aliarum legum orbis.

Fortescue. cap. 21.

LONDON, Printed for George Dawes, and are to be Sold by Matthew Wotton, at the Three Pigeons, against the Inner Temple Gate, in Fleetstreet, 1685.

TO THE PRACTICERS OF …

TO THE PRACTICERS OF THE LAW.

Gentlemen,

IN the Dedication of Books, such persons should be chosen, whose Studies or Professi­on agree with the nature of the Subject. To prove conclusi­ons, in one science, by the Hete­rogene Principles of another; To make a Grammarian Patron to a pecie of the Mathematicks; to dedicate a Treatise of Logick to [Page] a Master of Musick, or a matter of Practice, to a man of Specu­lation; would not only be improper, but absurd. You know that in the whole Practice of the Law, there is nothing of greater excellency, nor of more frequent use, than Tryals by Juries. In this, our Common-Law (and not without just cause) values it self, beyond the Imperial Laws, before the Canon Law, or any o­ther Laws in the world. And see­ing the hopes and life of all the Process, the force of the judgement, and the truth, nay the right of the Parties, lie in the Tryal; for as one elegantly says, Qui non probat, at the Tryal, dicitur veritate & jure carere, and indeed the knowledge of all the Law, tends to this: for with­out victory at the Tryal, to what purpose is the science of the Law? The Judge can give no sentence, no [Page] decision without it, and must give judgement for that side, the Tryal goes; therefore I may well say; 'tis the chief part of the Practice of the Law: And if so, to whom should I of­fer this Treatise, but to you, the Pra­cticers?

I need say nothing for small Tracts and Treatises: The infinite number of them in the Civil Law (there be­ing for every Title, a distinct Tract) nay the number of them in our Law, sufficiently shews their use.

Ringelbergius, in his Book de ratione studii, giving directions what books Students ought to carry with them, when they change places, and tra­vel from one to another, tells us, That out of the Volums (by reason of their big­ness not portable) he used to tear out se­veral leafs, and take them with him, in his journeys, and so he says he had ser­ved the works of Pliny, Tully, Plato, [Page] Demosthens, &c. although he had given great prices for them; which ju­stifies the writing of this Treatise, the subject matter thereof, being of such general use in all Circuits.

When I read the elaborate books of Farinacius de testibus, and the 3 Exquisite and Incomparable Volums of Mascardus de probationibus, in the Caesarian, and Pontifical Laws, (which works were so valued and e­steemed, that they were looked upon as new lights sent from Heaven, by the pro­fessors of those Laws:) I could not but see the defect, and want of such books, in our Law: for surely they are as necessary in the one as in the other. And although I cannot compare my weak indeavours, with those excellent and methodical works, theirs being intire, this only quasi an Abridge­ment, fitted for use, not for show: Yet until more learned, and judicious [Page] Proficients in our Law, shall under­take the work, I thought fit to produce mine.

To compare this sort of Tryal by Jury, with the Tryals of other Laws and Countries, and declare how much and wherein it excels them all, after Fortescue de laudibus, &c. and his learned Commentator; would be like the arrogance, of Limning after Apelles, and requires the room of a Vo­lum, rather than an Epistle. And considering my own insufficiencies, I shall praise it more by saying no­thing, than all I can: for to say less than a thing deserves, would be, in­stead of an Encomium, a disparage­ment. Therefore I shall content my self only to say, that Tryals in other Laws are by Witnesses only, private­ly examined; This, by Witnesses publickly examin'd and confronted; and by Jury also, and so consequently the [Page] fact is setled, with the greater certainty of truth, upon which the uprightness of the judgement depends.

It would be well if there were less corruption in the returning of Juries, but I think 'tis parallel'd, if not exceed­ed, by that of examining Witnesses pri­vately, on whose depositions, the Tryals in other Laws consist: And so that must be no objection against the thing. I hope an expedient may be found out to prevent the corruption in return­ing Juries, but I believe it never can in the other.

To say this Tryal by Jury is too popular in a Monarchy, would be a good objection, from a French-man, but not of any English-man, who lives under the best tempered Monarchy, and the best sort of Government in the World, to which this manner of Tryal is so proper, and well accommodated, that neither the wisdom of our Ance­stors [Page] could, nor (I may say) can this pre­sent, nor after ages invent a better.

But as the unskilful Painter, drew a Curtain, before what he could not express, with his Pencil, so must I vail, with silence, the excellencies of this Celebrated Tryal, which I am not able to delineat.

Gentlemen,

To make an Apology for the stile of a Law book, especially of an Epitome, would be a vain thing, Ornari res ipsa negat contenta doceri; neither shall I make any Apology for my under­taking this work: if 'twas better per­formed, yet Momus would be carping; and if 'twas worse, it would be good enough for him, who cannot, or will not, do it better: Be it what it will your kind reception will abundantly satisfie

Your Servant G. Duncombe.

THE PREFACE TO THE FIRST EDITION.

THE Philosopher could not see a man unless he heard 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 Knowledge of the bravest spirits.

Wherefore Learned Salust from Historiae facil princeps. this takes his Exordium; Omnes homi­nes qui sese student praestare caeteris ani­malibus, summa ope niti decet, ne vi­tam silentio transeant, veluti pecora: Those men who would excel Beasts, should labour that their lives might not pass 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 quam virium opibus gloriam quaerere; & quoniàm vita ip­sa, quâ fruimur, brevis est, memoriam nostri quàm maxime longam efficere: In my opinion, 'tis far better, to acquire Glory by the Riches of Wit, than strength; and because our lives are short of themselves, we should indeavour by Ingenuity, to eternize their memory.

And to effect this, Nulla dies abeat, Nulla dies sine linea. quin linea ducta supersit; No day should pass over our heads wherein we should not act some memorable ex­ploit: Men should not live like Snails, never stirring out of their [Page] 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; Whose soul served only as Salt to keep his body sweet, and is no sooner dead, than forgotten, long before he is half rotten; yet who is so apt to deride the Endeavours of other men, as this ancient Ignoramus, whose wrinkles 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 needful in no Sci­ence more than in the Law; For without Books, how would the Lawyers do for Arguments at the Bar, or Re­solutions at their Chambers? Whence [Page] the Oracle Sir Edward Cook 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 Lex loquens; and some to the collecting of these Cases and Resolutions, methodizing, and fitting them for some particular pur­pose, as Littleton, Stamford, 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 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 Reports;

And Ash's Tables, Fitsherbert, and Brooks's Abridgement, 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 illustrationi magis idoneum, vel cogitando quidem consequi, quis­quam poterit. Than 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 Judgements which lye scattered in the Voluminous Books of the Law; which would otherwise 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 imagaine, that I am so guilty of vain Ostentation, as to believe, that my [Page] 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 less 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 gene­ral 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 it, is, in a manner Epi­demical; since mens Lives and Estates The use of the Book. are subject to that Tryal per Pais, here demonstrated; but in particular, the Practisers at Law, (especially Circuit-Advocates, Attorneys, Sollicitors, 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 Judgements, Vincat Ʋtilitas. The profit which every in­genious Reader shall gather out of it, [Page] will speak more for it, than the best Eulogical Preface.

And for my own part, I profess my self to be Philomathes; but not Poly­mathes. And notwithstanding the hard-favoured 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 knowledge 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 knowledge 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, Lex est sanctio sancta, jubens honesta, & prohibens con­traria; Fortescue, cap. 3. sanctum etenim oportet, quod esse sanctum definitum: The Law is a holy Sanction, or Decree, commanding [Page] 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 Laws 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 Laws 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 Mo­ral; as also the Grounds of Logick, 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 ornatè dicendi, and consisteth of those two parts, Elocution, and Pronunciation; How can we read in our Law-Books, those Learned Arguments, Elegant Speeches, and Judgements pronoun­ced with such Eloquence and Ele­gance of words and matter, and not conclude, that Rethorick 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 Annals 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 [Page] self in this Eulogical 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 ex­cellency of the Law it self cannot in­vite to study it, 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 always judges ac­cording to his capacity, or affection; for which cause, if I were 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, Bracton, l. 1. fol. 1. Ʋt si quid superfluum, vel perperam po­situm, in hoc opere intervenerit, illud corrigant, & emendent, vel Conniven­tibus [Page] 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 connive at 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.

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

CAP. I. THE Derivation of the word [Jury]. The Definition, Antiquity, and Ex­cellency of Juries, by way of Preface.p. 1
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 the Spi­ritual Law, When by Certificate, when by Battail, 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.p. 7
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 [Page] to Bayliffs. When well awarded. &c.p. 35
CAP. IV. What faults in the Venire facias shall vitiate the Tryal, what not; when a Venire faci­as de novo, shall be awarded; when several Ven. fac. When the Ven. fac. shall be betwixt the Party, and a stranger to the Issue. Who may have a Venire facias by Proviso, and when.p. 50
CAP. V. Why the Venire facias runs to have the Jury appear at Westm. though the Tryal be in the Country; Of the Writ of Nisi prius, when first given, when grantable, when not, and in what Writs of the Justices of Nisi prius. Of the Tales, at Common Law, and by Stat. when the Transcript of the Record of the Nisi prius, differs from the Roll, whereby the Plaintiff is nonsuited he may have a Distringas de novo.p. 66
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 less, no Error; and of the number 12. And when the Tryal shall be per primer Jurors. And of Inquests of Office. And when to remain pro defect. Jurator.p. 83
CAP. VII. Who may be Jurors, who not; who exemp­ted, and of their Quality and Sufficiency.p. 90
CAP. VIII. Concerning the Visne, from what place the Jury shall come, &c.p. 98
CAP. IX. Challenges.p. 130
CAP. X. Of What things a Jury may inquire, when of spiritual; when of things done in another County or in another Kingdom; when of Esto­pels, and when not; when of a mans intent, &c.p. 173
CAP. XI. Evidence and Witnesses.p. 181
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 [Page] betwixt two Aliens, by all English. Of the Ven. fac. per medietatem linguae, and of Challenges to such Juries.p. 351
CAP. XIII. The Learning of general Verdicts, especial Ver­dicts, privy Verdicts, and Verdicts in open Court; and where the Inquest shall be taken by Default. Inquests of Office, &c. Arrest of judgement, Variance betwixt the Nar▪ and the Verdict, &c. [...] 359
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 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 Justices may carry them in Carts, till they agree of their Verdict. An amerce­ment affered by the Jury.p. 416
CAP. XV. 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 Judgement for striking a Juror in Westmin. &c.p. 430

Precedents containing the Forms of Challenges to the Array, &c. And the Proceed­ings thereupon. Pleas Puis le Darrein Continuance; De­murrers upon the Evidence, Bills of Exception, &c. And the Law concerning the same. Very Useful for all Lawyers and other Attorneys, Practisers especially at the Assizes.

A Form of Challenge to the Array.p. 449
Challenge to the Array, because the Sheriff is Cousin, &c.p. 450
A Challenge because the Sheriff is Tenant, &c.ibid.
A Precedent of a Challenge for default of Hundredors, which hath been several times made use of at the Assises.p. 451
The form of a Challenge made by the Defen­dant, because the Plaintiff is the Sheriffs Cousin.p. 452
A Challenge to the Array, because no Knight was returned upon the Jury.p. 453
A Challenge against the Sheriff for returning the Jury at the Instance, request and deno­mination of the Plaintiff.p. 454
A Challenge because that the Town is within a Hundred, of which the Plaintiff is Lord, and prays a Writ to the next Hundred.p. 455
Challenge because the Sheriff and two Coroners are Tenants of the Plaintiff, and a Venire facias awarded to the rest of the Corroners:p. 456
Challenge, where after the last Continu­ance, the Cousin of the Plaintiff, is made Sheriff after Issue joyned.ibid.
Challenge because the Sheriff is of Councel with the Plaintiff and hath received Fees, and the Defendant doth deny the Challenge, therefore the Venire facias awarded to the Sheriff notwithstanding.p. 457
Challenge because the Plaintiff is Brother to the Sheriff.p. 458
Challenge where the Plaintiff is Sheriff and one of the Coroners is his Tenant.ibid.
Another Challenge to the same purpose.ibid.
Challenge because the Wife of the Plaintiff is Kin to the Sheriffs Wife.p. 459
Challenge because the Plaintiff is the Sheriffs Servant.ibid.
Challenge after the Jury Impannelled, retur­ned and called; because the Prie in aid is Sheriff, and of the Council of the Plaintiff, and a Distringas Jur. with a decem Tales Coron. awarded.ibid.
Challenge because the Plaintiff is one of the She­riffs of London, and the Venire facias a­warded to the other Sheriff.p. 460
Challenge to the Deputy Sheriff, because he Impannelled and return'd the Jury at the instance and Denomination of the Plaintiff.p. 461
Challenge by the Kings Serjeant upon an In­dictment of Felony, because the Sheriff re­turned the Jury of Life and Death, at the Instance and request and denomination of [Page] the Prisoner.ibid.
Challenge by the Kings Serjeant for the King, to some of the Jury for default of Freehold to the vallue of 40 s. per annum.p. 462
A Precedent of Challenge to the Array.p. 464
A Precedent of a Plea after the last Conti­nuance.p. 465
A Precedent of a Demurrer upon the Evi­dence.p. 469
A Bill of Exception.p. 470
A Release pleaded, at the Assises after Issue joyned.p. 475
The Death of one of the Defendants pleaded after the Last Continuance.475
A Baron Challenges the Pannel, because no Knight was returned of the same.p. ibid.

Tryals per pais.

CAP. I. The Derivation of the Word [Jury.] The Definition, Antiquity and Ex­cellency of Juries.

JUrie (Jurata) cometh of the French Vid. Cap. 12 Jurie. word [Jurer, i. e. Jurare.] And sig­nifieth in Law, those 12 men who are sworn Judges in matters of fact, evi­denced by witnesses, & debated before them: I call them Judges, because, as 'tis the property of the Court, Jus dicere; so tis in the power of the Jury to determine the fact, upon an E­vidence Pro, and Con; According to those common Adagies, Ad quaestionem Juris respon­dent Judices; Ad quaestionem facti respondent Juratores: And as the Judgment of the [Page 2] Court ought to be guided by the Law; So Vid. cap. 15. is the Verdict of the Jury, by the Evidence. They of the Jury are called Juratores Jurors, à Jurando, as in ancient Laws Sacramentales à Sacramento praestando.

I need not here divide and shew the dif­ferences The Antiqui­ty and excel­lency of Ju­ries. of Juries, nor the several sorts, they being so well known, viz. The Grand Jury, or great Inquest, and petty Jury, or Jury of Life and Death, in Criminal causes, and in Civil Causes, the Assise. Jury. Inquest of Office: By some called Inquest of Jury, and Inquest of Office. Something concerning each of these, will incidently be spoken of in what follows. As to the excellency of Juries, it appears from their Antiquity.

Sr. Hen. Spelman, verb. [Inquestio] says, Tryal by Juries was used in England, Nor­mannis no [...]d [...]m ingressis, Leg. Ed. Confess. Ca. 38 postea inquisisset Justitia, i. e. [Justi­tiarus] per Lagamannos, i. e. [legales homines] & per meliores homines de Burgo, vel de Villa, vel de Hundredo, ubi mansisset Emptor, &c.

For as to Tryal by 12 men, though Mr. Daniel and Poyldor Virgil deny it. to be older than the Conquest, and the latter says there is no Religion in it, but in the num­ber; yet he stands fairly Corrected, by that Excellent and learned Antiquary, Mr. Cam­den. p. 1 [...]3. who says, Whereas Polydor [Page 3] Virgil writeth that William the Conqueror first brought in the Tryal by 12. men, there is nothing more untrue; For it is most certain and apparent by the Laws of Etheldred, that it was in use many years before. &c. And whereas Lamb. verb. [Centuria] says, In singulis Centuriis Comitia sunto, a [...]que liberae Conditionis viri duodeni, atate superiores, una cum praeposito Sacra tenentes jurento, se adeo virum aliquem innocentem haud damnatu­ros, sontemve absoluturos, he referrs to the Laws of Etheldred, cap. 4. cited by the learned Spelman verb. [Jurata.]

And to the same doth my Lord Coke re­ferr, Com. super Lit. 155. and Preface to his 3. and 8. Report. And as to the Reli­gion in the number of 12. my Lord Coke gives instances ubi suprà, and Sir Henry Spelman, in verb. [Jurata] suprà, makes addition thereto.

So that I may truly say, Tryals by Juries have been used in this Nation, time out of mind, and were contemporary and coeval with the first Civil Government thereof and Administration of Iustice; for amongst the first Inhabitants, the Britains, the Free-holders were used in all Tryals.

And Tryal by Juries was (as you see practised by the Saxons) continued by the Normans, and confirmed by Magna Charta. [Page 4] And was ever so esteemed and prised in this Island, that no Conquest, no change of Government ever prevailed to alter it.

'Tis true, Tryals by Juries before the time of H. 2. were not so frequent, be-because Sadae or Purgationes, Ordalia, Tryals by hot Iron, hot Water, cold Water, Duels, and other Superstitious ways, were then in use; but Tryals by Juries were here in the Saxons time, and were found here, and not brought in by Wil­li [...]m the Conqueror from Normandy: Nay, rather setled by Edw. the Confessor in Normandy, where he a long time was, and taught many Laws, as you may see in the book of the Customs of Normandy.

Glanvil lib. 2. cap. 7. says, Ex aequita­te autem maxima prodita est legalis ista insti­t [...]tio, speaking of these Tryals in opposi­tion to Duels, &c.

Their general use (being the only Tryers The use of Juries. of Choses in fair, almost in all Courts throughout England) speaks them a pub­lick good. To be tryed by ones Peers is the greatest priviledge a Subject can wish for, and so excellent is the constitution of the Government of this Kingdom, that no Sub [...]ect shall be tryed but by his Peers. The Lords by their's, The Commons by [Page 5] their s, which is the Fortress and Bulwark of their Lives, Liberties, and Estates; and if the good of the Subject be the good of the King, as most certainly it is, then those are enemies to the good of the King and State, who attempt to alter or invade this Fundamental Principle, in the admi­nistration of the Iustice of this Realm, by which the Kings Prerogative has flourish­ed, and the just liberties of the people have been secured so many Ages.

And what answer shall I make to the Prin­ces, vehementer admiror, videlicet, Where­fore are not Juries used in other Countries, if they are so good? but that of Fortescue, the Portescue ca. 29. 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, 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 knows best how to express Things not words most regarded in the Law. her self, in her own terms, wherefore all other Sciences must learn, with reve­rence, to keep their distance, And (as the Golden Finch sings) be glad to have their Finch. c. 3. sparks raked up in her Ashes.

And since an Issue is previous, and the matter of a Tryal, I shall first give you the description thereof, and then touch upon the several Tryals 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 the Spiritual Law, 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, is a single, 1. Inst. fo. 126. Omnia unum aliquem sorti­untur exitum; vel per patri­am, vel per Judices termi­nandum. Finch. Epistle. certain and material point, issuing out of the Allegations, and Pleas, of the Plaintiff and Defendant, consisting regularly upon an Affirmative and Nega­tive, to be tryed by Twelve men; and it is twofold, scil. either special, as where the special matter is pleaded; or general, as in Trespass, Not guilty: In Assise, nul tort, nul disseisin, &c. And as an Issue natu­ral cometh of two several persons, so an [Page 8] Issue legal, issueth out of two several Alle­gations of adverse parties.

And to give you likewise his definition of Tryals. 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. Rolls. tit. Try­als. 626. 723. Tryal, It is to find out, by due examina­tion, the truth of the point in Issue or question between the parties, whereupon Iudgement may be given; And as the question between the parties is twofold, so is the Tryal thereof; For either it is quaestio Juris, (and that shall be tryed by the Judges, either upon a demurrer, Special Verdict or Exception: For, Cuilibet in sua arte perito est credendum, & quod quisque noverit, in hoc se exerceat.) Or it is quaestio facti, And the tryal of the fact is in divers sorts; First, chiefly, and most commonly, by a Jury of Twelve men, (of which kind of tryal, my intention is principally to treat in this Book.)

For by Twelve men are matters of Proceedings in Civil Causes. fact (for the most part) tryed with us in England, in Causes both Criminal and Civil: in Causes Civil, after both Parties have said what they can, one against an­other, in Pleading, if there arise a que­stion about any matter of fact, it is re­ferred to Twelve indifferent men, to be Impanelled by the Sheriff, and as they bring in their Verdict, so Iudgment pas­seth. And this the Judge is to declare as the Law is upon the fact found: For the [Page 9] Judge saith, the Jury finds thus, and then the Law is thus, and so we judge. For the Law arises upon the fact.

For Criminal Causes, the course is this: Proceedings in Criminal Causes. At the Kings-Bench for Midds. and at the great and general Assises, and at the general Sessions of the Peace, there is one Jury called the Grand-Jury, which consists commonly of 24 men substantial men, out of every Hundred with in the County re­turned by the Sheriff, and they are to consider of all Bills of Indictment prefer­red to them, which they either approve of by writing Billa Vera, or disapprove by writ­ing upon them Ignoramus; and those which they approve of are to be tryed by another Jury called the Petit-Jury. Or the Grand-Jury may charge any person, upon their own Presentment, which will be of the force of an Indictment, and the party charged may Traverse the offence, and bring it to be try­ed by a Petit Jury.

Some lesser matters in these Courts are proceeded upon without a Jury, and some things are removed by Certiorari into high­er Courts, and then must be tryed there; and that thing to which there is a Tra­verse put in, must be tryed and ended by a Petit Jury, which (for the most part) in all Civil and Criminal Causes are but Twelve men, which ought to be Free-men, [Page 10] not Villains or Aliens, and lawful men, not Outlawed, and also men of worth and honesty.

But because it is necessary to be known, that there are many ways allowed by the Common-Law, to try matters of fact, be­sides this by Juries, I will here repeat some of them; And for this, first hear the Oracle, who tells you, that he had read of six 1 Inst. fol. 74. kinds of Certificates, allowed for Tryals, by the Common-Law.

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

2. If it be alledged in avoydance of an Outlawry, that the Defendant was in prison at Burdeaux, in the service of the Mayor of Burdeaux, It shall be tryed by the Certificate of the Mayor of Burdeaux. Note this was when Burdeaux was par­tel of the dominions of the King of Eng­land. Rolls tit. Tryal fo. 583.

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

[Page 11] 4. By the Certificate of the Sheriff, upon a Writ to him directed, in case of Privi­ledge, if one be a Citizen or Foreigner.

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

6. In Causes Ecclesiastical, as Loyal­ty of Marriage, general Bastardy, Ex­commengement, profession; These and the like are regularly to be tryed by the Certi­ficate of the Ordinary. vide apres 16.

If the Def. claim his priviledge as a Scholar of the Vniversity of Oxon, of such a Colledge, or Hall: This shall not be tryed by Certificat, but per pais. Rolls tit. Tryal. 583.

Concerning Certificates of Spiritual per­sons, vide Rolls ibidem. 591, 592.

7. A Record shall be tryed by the Record it Records. self, and not per pais. But matter of fact concerning a Record is tryable by a Jury, as whether a plaint, &c. was levied accord­ing to the Custom; & non prosecutus est ullum breve, is tryable by the Country. Mixt with fact. Hob. 244. Hutt. 20. So if a Statute hath two Seals, or but one, 1 Leon. 229. 2 Cro. 375. 1 Inst. 125. b. so in a per quae servitia, [Page 12] if the Tenant say he held not of the Conu­sor Jour del note levie, shall be tryed per pais. In Escape upon a Cepi returned ne unques in son gard, shall be tryed per Record, but up­on Rolls tit. Tryal. 574. a Capias not returned, the prisal shall be tryed per pais. So shall an action brought by Covin, for the Covin is not of Record. In a scire facias per Roy to have execution of a Iudgment in a Quare impedit, if the Def. say that after the Recovery the King presented, & issint Judgement execute, and the issue be whether the King presented per cause del Judgement, or of an avoydance after the death of J. S. who was presented by a stranger after the avoidance, upon which the King had Iudgment; This shall be tryed per pais. And Why there needs no visne, where Letters Pa­tents were made; other­wise in plead­ing Deeds. 4 Rep. 71. for this Reason, in pleading of Letters Patents, the place need not be alledged, where the Letters Patents were made, be­cause the D [...]fendant 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 Inst. 117. 260. Plo. Com 231. But upon a Non est factum pleaded to a Deed, there must be a place alledged where the Deed was made, because (though the Deed, as to the matter of Law, be tryable by the Court, yet) the sealing and delivery there­of, Dee [...]. and other matter of fact, must be try­ed by the Jury; so that in this case of a Deed, there is a Tryal per Pais, and by the Court. 1 Inst. fol. 35. vide apres▪ 18.

The issue upon an Indictment or acquit­tal What issues shall be tryed per Record. upon this shall be tryed by the Record. So shall the allowance of a Protection in Bank. The imprisonment upon the execu­tion, and not for other cause, in escape. The justification of an imprisonment, because he is a Iustice of Peace. A Statute-Merchant, Count or not Count, Baron of the Parliament, or Vicount or not. Whether a place be within the Ligeance of the King of Eng­land, or in Scotland. A Fine sur release, Ren­dring his body in discharge of his Baile, shall be tryed by the Record. Rolls tit. Tryal 574.

But in escape against the Mayor of A­staple What per Pais for suffering J. S. in execution upon a Statute Staple to go at large, if the De­fendant say he was not in Prison upon the execution, but upon a Plaint there, this shall be tryed per pais and not per Record, because 'twould be unreasonable that the Defendant should certifie a Re­cord, where he himself was concerned. ibid. The time of inrolliing Letters Patents shall be tryed per pais. Co. Lib. 4. 71. 9 H. 7. 2.

Disseisin of an Office in any Court, or Office Rase­ing a Record. rasing a Record in any Court, by the Filizers and Attorneys of the Court.

[Page 14] 8. A Peer of the Realm, i. e. a Lord of Peers. the Parliament, 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 Praemunire, his Tryal shall be per pais. 12 Bep. 93. Lamb. In [...]t. 520. 3. Inst. 30. Bolstr. 1. part 198. Dutchesses, Countesses, or Baronesses, although mar­ried, shall be tryed, as Peers of the Realm are, but so shall not Bishops and Abbots. Stam. 153. 20 H. 6. 9. 2. Inst. 48, 49, 50. 156. b. 294.

9. The Customs and usages of every Court shall be tryed by the Judges of the Customs of Courts, &c. tryed by the Judges. same Court, 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 Inst. fol. 56. And in some Cases matter of fact shall be tryed by the Judges, as if the Plaintiff [Page 15] appear by Attorney in Court, and then the Defendant pleads that the Plaintiff is dead; If one appears, and saith, that he is the Plain­tiff, whether he is, or not, shall be tryed by Inspection. the Judges, li. 9. 30. So the non-age of an Infant, generally by inspection of the Court. But in many Cases, Infancy shall be tryed per Pais, as if an Infant appear by Attorney, v. Bulst. 1 part 131. Rolls tit. Try­als 573. in Error, this shall be tryed per Pais, li. 9. 31. and so it is in an Aetate probanda.

Maihim, in an Appeal of Maihim the Maihim. Court may adjudge this upon the view, at the prayer of the Defendant, and this Tryal is peremptory to the Parties, by a Jury of Chirurgeons. Vide Rolls tit. Try­al 578.

Maihim may be tryed again by the Court, by inspection for increase of Damages but then these things are to be considered, First, it must be a Maihim, and not a bare wounding. Secondly, The Maihim must be ascertained in the declaration, so as that it Maihim. may appear that the Maihim inspected, and the Maihim in the declaration be all one, as was resolved Mich. 21 Car. 2. B. R. in the Case of Badwel and Burford, the principal Case of which was, that the De­fendant whip'd the Plaintiffs Horse, which made him throw her, and another Horse trod on her, and maim'd her hand, and adjudged no increase of Damages in that [Page 16] Case, being a Consequential, and not a direct Maihim.

Nonage in a Writ of Error to reverse a Inspection. Iudgement or a fine of the Tenant by resceit, of one vouched come deins age, & issint praie le paroll à demurrer, Non­age sur aid praier, in Appeal, Audita que­rela, to avoid a Statute Accompt, and in all actions where 'tis prayed that the paroll demurroit, Nonage shall be tryed per In­spection. But in accompt against one of full age, if he plead Nonage when he was Bayly, this cannot be tryed by inspe­ction. Rolls tit. Tryal 572. how this Try­al by inspection shall be, vide Rolls ibid. at large.

In all Cases where the matter may be tryed by inspection, examination or discre­tion of the Justices, if they doubt the mat­ter, they may refuse to try this, and com­pel the Parties to a Tryal per pais, or other proofs 21 H. 7. 40. per touts Justices.

10. There are many Tryals allowed by Tryals by Witnesses and proofs. the Common Law, by Witnesses only, 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 three Wit­nesses, [Page 17] 1 Inst. 6. and divers other things v. 4. Inst. 278. must be tryed by examination of the parties and Witnesses, as the Tryal by Wager of Law, &c. Finch 423.

Nonage was anciently tryed by the Ver­dict Glanvil lib. 13. cap. 18. of Eight men, but now by inspection, and Fullage by Twelve men.

In an Appeal by a Feme of the death of Appeal. her Husband, if the Defendant say that the Baron is alive in another County, or generally, that he is alive, this shall be tryed per proofs. 41 Assise 5. Vide Rolls tit. Tryal 577. what shall be tryed by proofs in an Assise, and what not.

In a Writ of Annuity if the Defendant Annity. say the Party is dead in Britain, this shall be tryed per proofs. 26 E. 3. 70.

11. Duke or no Duke, Earl or no Dukes, &c. 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 tryed per pais, because the marriage is matter of fact.

12. In a Plea del alien nee, the League League. between 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.

[Page 18] 13. If a Mannor be ancient demesn, or Mannor. not, it shall be tryed by the Book of Doomesday, which is in the Exchequer. But whether certain Acres be parcel of such a Mannor, or no, it shall be tryed by the Country. ib.

14. The proceedings of a Court, which Courts not of Record. 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.

The Priviledges and Liberties of Courts By Charters and Records. of Record, Cities, and Boroughs must be tryed by their Charters and Records.

15. Whether the Ordinary committed Wills and Ad­ministration. Administration to the Plaintiff, or whether the Testament was proved before the Or­dinary, or whether such a Will be the Will of the Party, or whether he dyed intestate, or not? In all these Cases, the Tryal shall be per pais, because probate of Wills, and constituting Administrators, did not be­long to Ecclesiastical Judges originally, but were given to them of late. But the tryal thereof is left to the Common Law, and was not given to them. lib. 9. 32. 40.

An Executor brings an Action of Debt, the Defendant pleads that the Testator [Page 19] never made him Executor, if the Plaintiff gives in evidence the Probate of the Will, the Defendant shall only give evidence in Dis-affirmance of the Plaintiffs Probate, which is matter of Fact; but as to matter of Law the Court gives credit thereto, as where another Will was made, for there the parties might have appealed, but if the Seal be Counterfeit, or the Probate forg­ed, its Tryable per Jury, Adj. Pasch. 20. Car. 2. B. R. Noell and Wells. v. Went­worth's Executor. 69.

The Tryal of all Criminal matters is Criminal matters. by the Country, and the party accu­sed cannot be denyed it, unless it be his own fault, as where he is mute, and will not put himself upon his Country, in due time, for then without further tryal Iudg­ment de pain foit & dure is passed by the Judges upon him, Stamf. Pl. Coron. 150.

16. In an action upon the Case for cal­ling Plo. Com. 267. Special Ba­stardy. one Bastard, the Defendant justified that the Plaintiff was a Bastard; And it was awarded that this should be tryed per pais, and not by the 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. vide hic cap. 22.

[Page 20] 17. When an issue is taken, whether a Customs of London. Custome or no Custome in London, If the Mayor, 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 Mayor and Alder­men, by the Recorder. Hob. 85. Day and Savadges Case. Devant. 3. Stiles 137. Moor 871. vide apres tit. Visne. Rolls tit. Tryal 579, 580.

The Custome of London shall be certified by the Mayor and Aldermen, by the mouth of the Recorder. Co. Lit. 74.

In an information upon the Statute 5 Eliz. for using a Trade, to which the Defendant was not bound Apprentice, If the Defendant plead a Custom of the City, that he who is free of one Trade, may use any other; This shall be tryed by the mouth of the Recorder.

Note this difference, He that is free of one Manual Trade cannot use another Manuel Trade: but it is otherwise of those Trades which are not Manual. In such, one that is free of one, may use another by the Custome.

Liberties claimed by Custome in London, the Custome of making Indentures of Apprenticeship void, if not Inrolled within & year, The Custome to devise Lands, [Page 21] Foreign Attachment, &c. shall he tryed by the mouth of the Recorder. But the Issue whether there be a Market every day of the week in London shall be tryed per pais, be­cause the issue is not upon the Custome. Rolles tit. Tryals 580. vide hic cap. 8.

18. A matter of Record being mixt with Matter of Re­cord, mixt with matter of Fact. 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, and Appeals Tryals by Battel. that touch life, Tryal may be by Battel, or by Jury, at the Defendants choice; The Battel, in a Writ of Right, must be by Writ of Right. Champions, (who must be Freemen.) But in an Appeal, it must be in proper person. The Champions, in a Writ of Right are not bound to fight longer than until the Stars appear; and if the Champion of the Tenant can defend himself until then, the Tenant shall prevail: The Judges of the Court of Common Pleas, are Judges of the Battel, in a Writ of Right: and the Judges of the Kings Bench in an Appeal of Felony. It séems they seldom or never killed one another in this tryal of Battel, for their Weapons were but Batoons, 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 [Page] upon this, Iudgement 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.

Glanvil saith, the tryal by Grand Assise Grand Assise. came by the Clemency of the Prince. Est autem (saith he) Magna Assiza Regale quod­dam beneficium, Clementia Principis, de con­silio Procerum populis indultum.

For the Tryal of Treason, Murther, and Felony as well upon Appeals, as up­on Indictments, see Stamford's Pleas of the Crown.

By Glanvil cap. 1. lib. 14. it appeareth the tryal of these Crimes by the old Law, was this; If there were no direct proof, nor accuser, or if there was any accuser, or direct proof, yet if the party denyed the same, then the tryal was by Wager of Battel, if the party accused was not 60 years old, and of sound Limbs; but if he was older, or not sound, then he Per judicium Dei. was to be tryed per judicium Dei, namely, per calidum ferrum vel aquam, that is, if he was a Freeholder, he was to run bare foot, and bare legg'd over a row of hot Iron Barrs, and if he passed three times with­out stop or fall, he was acquitted. And if [Page] he was a meaner person, called Rusticus, he was to run through vessels filled with scalding water.

20. In a Writ of Disceit, upon a Reco­very Recovery by default. Summoners pernors, veiors. by default, the Tryal shall be, if the Iudgment was given upon the Petit Cape, by the Summoners, if upon the Grand Cape, by the Summoners pernors, or veiors, and not per pais; So if a Recovery by de­fault in a real Action be pleaded, to which the other saith, Nient comprise, this shall Nient Com­prise. not be tryed per pais, but by the Summoners and Veiors. lib. 9. 32.

En Assise if the issue be, whether the Land was extended in an Elegit, &c. This shall be tryed by the extendors joyn­ed with the Assise. 31. Ass. 6. vide Rolls tit. Tryal 581, 582.

Of Tryals per L'escheator, per Exami­nation, vide ib.

In an Appeal, if the Exigent be award­ed, Escheator Sheriff. and the party pray a Writ to inquire of the goods and Chattles, and to seise them, this may be awarded to the Eschea­tor, or Sheriff at the Election of the Court. 41. Ass. 13. vide hic cap. 24, 27.

21. In debt upon a simple Contract, De­tinue, Wager of Law. &c. The tryal may be by Wager of [Page 24] Law, or per pais, at the Defendants Ele­ction. But when the Defendant wageth his Law, he ought to bring with him Ele­ven of his Neighbours, 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 Tryal.

22. If Profession be denyed, it shall be Profession. tryed by the Court Christian; But if the time of the Profession be in issue, this shall be tryed by the Country. lib. 4. 71. So though an Inrollment, or other matter of Inrollment. Record, cannot be tryed per pais, yet the time when the Inrollment was made, may be tryed per pais. So whether the party Appearance. appeared in such a Court, or on such a day, &c. shall be tryed per pais. Cro. 3. part. 13. So whether one was Sheriff Sheriff. Admission, &c. Plenarty. such a day or not. Cro. 1. part. 421. Admission, Institution, Plenarty, and Ability of the Par­son, shall be tryed by the Bishop. But In­duction shall be tryed by the Country, 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, shall by tryed by the Metropolitan [...], if the Clerk be living; but per pais, if he be dead. l. 5. 58.

Ability shall be tryed by the Ordinary, if Per spiritual Law. Vide hic cap. 16. the Clerk be alive, but if dead, then per pais. Institution, resignation, full or not full; Profess [...]on, unless alledged in a Stranger. Prior removeable at will, or perpetual ge­neral Bastardy, the Right of Espousals, Divorce, &c. shall be tryed by the Bishops: but in many cases, these matters being mix­ed with other circumstances, shall be try­ed per pais.

As if the Church be void by Resignation, Per pais. For although Institution, re­signation, &c. are Spiritual, yet avoidance, induction &c. are notorious to the Coun­try. or void or not void, Induction, Institution and Induction together, because the Com­mon Law shall be preferred, Prior or not Prior.

Bastardy alledged in a stranger to the Writ, or in one dead, or Abatement of the Writ. Whether a feme, be a feme covert in possession, &c. in trespass by Baron and feme, Nient Son feme shall be tryed per pais. And see in Rolls tit. Tryal 584. &c. Many cases where Bastardy, Marriage, &c. shall be tryed per ley spiri­tual, or per pais. The time &c. of Conse­cration of a Bishop, and of other spiritual matters, shall be tryed per pais. By what spiritual person the tryal shall be, and for what cause. vide ib.

[Page 26] 23. An Ideot, found so from his Nati­vity Ideoty. 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, which he shall call to him (who are called the Council 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, whether the Sheriff. Sheriff made such a retorn or not, 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 Retorn. the question be, whether such a one be Sheriff or not, he is made by Letters Pa­tents of Record, and therefore it shall be tryed by the Record. ib. Cro. 1. part. 421.

25. If an Approver say, that he Com­menced Dures. 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.

26. The Tryal, whether a Statute shew­ed Statute. before, be the true Statute or not, shall be by the examination of the Mayor, and [Page 27] 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. part. 228, 229.

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

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

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

30. It seems an Almanack is so infallible, Almanack. that it hath countervailed the Verdict of a Jury. For in Error of a Iudgment given in Lynne, the Error assigned was, that the Iudgment was given at a Court held there on the 16th day of February, 26 Eliz. [Page 28] 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 Tryal, and that a Tryal per pais, was not necessary, al­though it were an Error in Fact; and so the Iudgment was reversed. Cro. 3. part. so. 227. 1 Leon. 242. the same Case, and there it was said, it was twice so ruled be­fore.

31. In ancient times there was a tryal in Criminal Causes called Ordalium, for Orde al. upon Not Guilty pleaded, the Defendant might put himself upon God and the Coun­try (as is the use at this day) or else upon God only; and then if he was a Fréeman, he was to be tryed per ignem, that is, he was to pass over Novem vemeres ignitos nu­dis pedibus, and if he was not hurt by this, then he was to be acquitted, otherwise con­demned: and this was called Judicium Dei; But if he was a slave, then his tryal was to be per aquam, and that divers ways, which all appear in Lambard, verbo Orda­lium. From which kind of tryal, I pre­sume we still retain this expression of an innocent person, That he need not fear fire or water: this manner of tryal was first pro­hibited by the Canons, then by Parliament: The tryal by Battel is likewise prohibited by Battel. the Canons; but not by Parliament, as you may read in the ninth Report, fo. 32. [Page 29] and in the authorities there cited, which I therefore omit to recite here, (though I have the Books by me) and so in this whole Treatise, where I refer you to a Book, I shall not set down the authorities cited in that Book, which will avoid pro­lixity.

32. When the matter alledged, extend­eth Which Tryal shall be first. to a place at the Common Law, and a place within a Franchise, it shall be tryed at the Common Law. 1 Inst. 125. 4. Inst. 221.

In what Cases a Tryal in one issue shall Tryal in one issue binds in another. bind the same party in another issue, upon the same matter.

In Debt against two per several Precipes, if one plead a release, and they are at issue upon the Deed, and the other plead the same issue, if it be found the Deed of the Plain­tiff in the former issue, this shall bind him in the second issue, 12 H. 4. 8.

In trespass if the Defendant Plead vil­lenage in the Plaintiff, if this be found against the Defendant, this shall bind him in the same issue, in another action in the same Court betwixt the same parties. 44. Ass. 5.

If a man be found guilty of a Conspi­racy upon an Indictment at the Kings suit, [Page 30] this shall not bind in a Writ of conspi­racy at the suit of the Party, but he may plead not guilty. 27. Ass. 13.

If a man upon an Indictment of extor­tion confess it, and put himself in the Kings grace and makes fine, &c. this shall bind him, and he shall not plead not guilty to the suit of the party, for a confession is stronger than a Verdict. 27. Ass. 57. per Sharde. vide Rolls tit. Tryal 625.

He which is not party to the issue nor In what Cases tryal against one shall be against others. can have attaint, or challenge the In­quest, shall not be bound by the Tryal. 11. H. 4. 30.

And therefore in Trespass against two, and one pleads a Release, and the other justifies as his Servant: If the issue be found against the Master, it shall not conclude the Ser­vant. 11 H. 4. 30. Rolls ib. 625.

One shall not be compelled to try a tra­verse At what time the Tryal shall be. the same Sessions he makes it, for a man shall have time to make his defence, and is not supposed to be ready to answer sudden objections, and for this reason ma­ny Iudgments upon Indictments have been reversed.

Iustices of Oyer and Terminer, nor Iu­stices of Peace cannot inquire and determine [Page 31] the same day. But Iustices of Gaol Deli­very, and Iustices in Eyre may.

Justices of Peace cannot proceed to the delivery of a person indicted of Felony be­fore them, the same day he is arraigned. 22 E. 4. Coron. 44. Declared by all the Iu­stices of England, to be observed as a Law.

In an Indictment in B. R. or in the same County and removed thither, the Defen­dant may be arraigned and tryed the same day. For the Kings Bench is a Court of Eyre for all Offences in that County. O­therwise of an Indictment removed out of a­nother County. Vide Rolls tit. Tryal 626. many Cases de ceo.

33. All matters done out of the Realm of Marshal Af­fairs. England, concerning War, Combate or Deeds of Arms, shall be tryed and termined before the Constable and Marshall of England, before whom the Tryal is by Witnesses, or Witnesses or Combate. by Combat, and their proceeding is according to the Civil Law, and not by the Oath of Twelve men, 1 Inst. 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any Foreign Country, the Wife or Heir of the Dead, may have an Appeal before the Constable and Marshall, who sentence upon the testimony of Witnes­ses or Combat. ib. So if a man be wounded in France, and dye thereof in England. ib. 4. Inst. 140.

It is worthy our observation, to take What Issue shall be first tryed. notice when there are several issues, which of them shall be first tryed; And for this you have already heard, that where issue is joyned for part, and a Demurrer for the Resi­due, the Court may direct the Tryal of the Issue, or judge the demurrer first, at their Latch. 4. pleasure, though by the opinion of Dodrige, It is the best way to give Iudgment upon the Demurrer first, because when the issue comes afterwards to be tryed, the Jury may assess Damages. damages for the whole.

A Scire facias was brought on a Recog­nisance in Chancery, the Terre-tenants pleaded several Pleas, the Plaintiff demurred to one, and took issue on the other, the Record was sent into B. R. to try the issue, and it was tryed, and Verdict pro Plaintiff, the de­murrer not being argued, and it was adjudg­ed per R. B. that Iudgment ought to be given on both by that Court, Jeffreyson and D [...]w­son's Case Hill. 21, 22 Car. 2. B. R. vide for these things 1. Roll. abr. 534, 535. Roll. rep. 287. and in the principal Case, 4 Inst. 80. was denied to be Law.

An Immaterial issue joyned, which will Immaterial is­sue. not bring the matter in question to be tryed, is not helped after Verdict by the Statute of Jeofailes, but there must be a Repleader; because this is matter of substance; for if there were no issue, there could be no Ver­dict, [Page 33] and so it is as if nothing had béen done in the cause.

In an Action against two, the one pleads Plea to the Writ. 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 personal against divers De­fendants, Plea to the whole, first tryed. the one Defendant pleads in barr to parcel, or which extendeth only to him that pleadeth it: And the other pleads a Plea which goeth to the whole: the Plea, that goeth to the whole, (that is) to both De­fendants, shall be first tryed, because the other Defendant shall have advantage there­of; For in a personal Action, the discharge of one, is the discharge of both.

As for example, if one of the Defendants Release. in Trespass, pleads a Release to himself (which in Law extends to both) and the other pleads not guilty, (which extends but Rolls tit. Try­al 628. to himself;) or if one pleads a Plea which excuseth himself only, 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, because the dis­charge [Page 34] of one, is the discharge of both. Discharge of one discharg­eth both. But in a Plea real it is otherwise, for every Tenant may lose his part of the Land; as if a Praecipe be brought as Heir to his Father against two, and one pleads a Plea which extendeth but to himself, and the other pleads a Plea which extends to both, as Bastardy in the Demandant, and it is found for him, yet the other issue shall be tryed; for he shall not take advantage of the Plea of the other, because one Ioyntenant may lose his part by his mis­plea.

Brown and Stamford Iustices, consulted with Grammarians in things of Grammar; and Hulls a Batchelor of Law (Tempore Hen. 6.) was called into Court, to shew the difference between precise and causa­tive Compulsion. Vide Plow. 122. 127, 128.

Pasch. 16 Car. 2. B. R. An action of Trover, &c. was brought de sex Capita­libus fibulatis, Anglice 6 laced Coifs; after Verdict for the Plaintist, it was moved in Arrest of Iudgement, that the Latine words were both Adjective, and so not cer­tain: but it was answered, that Capaital is a Substantive, and the Nomenclator of Westminster School was produced to war­rant it, and it was adjudged for the Plain­tiff accordingly, and the Court allowed that authority before Rider's Dictionary.

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. When well awarded. &c.

HAving given you the Epitome of what Tryals are allowed by the Common Law, and what shall be tryed per pais, and what not; we shall now apply our selves more particularly to the Tryal by Juries: And because a Venire facias is the foundati­on and Causa sine qua non, of a Jury, (I mean in Civil Causes; for in Criminals, as upon Indictments, the Justices of Gaol Delivery, give a general Command to the Sheriff, to cause the Country to come against their coming; and take the Pan­nels of the Sheriff without any process di­rected to him; yet process may be made a­gainst the Jury, 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. Praecipimus ti­bi Venire facias. quod venire facias coram Just ciariis nostris de Banco apud Westm. tali die, duo­decim liberos & legales homines de vicinet. de C. quo [...]um quilibet habeat quatuor libras terrae, tenement. vel reddit. 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. patriae inter partes praedict. de placito, &c. quia tam idem D. quam praedict. F. inter quos inde contentio est, posuer. se in Jur. illam. Et habeas ibi nomina Jur. illorum & hoc bre­ve. T. &c.

This is one of those Latine Letters, (as Finch terms them, fo. 237.) which the King sends with Salutation to the Sheriff. But withall Commands him, that he cause to come twelve free and lawful men of his County, to resolve the question of the fact, in dispute between 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 pa [...]riam, by the Plaintiff, and issue joyned thereupon, the Court awardeth the Venire faci [...]s, vid Ideo fiat inde Jurat.

And if they come not at the day of the Writ returned, then shall go forth against them, an Habeas Corpora, and Distringas to bring them in to try the matter. The which two last Writs are usually made with this clause, Nisi prius Justiciarii ve­nerint, &c. and are returnable after the time of the Judges coming their Circuit.

And first, you see it is directed Viceco­miti, Sheriff. i. e. to one who is Vicecomes, and hath the Regiment of the County, instead of the Earl of that County, to whom once it did belong: as we are taught in the Mirror, Chap. 1. Sect. 3. 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 Vicecomites.

What great Repose and Trust both the What trust in the Sheriff. King and Laws put in this great Offi­cer, the Oracle tells you, 1 Inst. 168. that he is Sheriff, that is, praefectus Comita­tus, Governour of the County; For the words of his Patent be, Commisimus vobis Custodiam Comitatus nostri de, &c. And he hath a threefold Custody, triplicem Custodi­am, viz. first, Vitae Justitiae, for no Suit [Page 38] begins, and no Process is served but by the Sheriff. And he is to return indifferent Juries for the tryal 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, Vitae Reipublicae, he is Principalis Conservator pacis, within the County, which is the life of the Common­wealth, for Vita Reipublicae Pax.

Yet notwithstanding the height and To whom the Venire facias ought to be directed. 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 as 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, (or to some of them, Coroners. if the residue are not indifferent) who in that case are hac vice, Vicecom. And if the Coroners are not indifferent, then the Ve­nire shall be directed Ad 2 Electores, that Fortescue, cap. 2. 5. is, to two whom the Court shall chuse and deem fit to retorn the Jury; And to the retorn of these Elisors or Esliors, ab Eligendo, Esliors. no Challenge will be admitted. Bro. tit. Veni­re facias 14. as to the Array; but to the Challenge. Sheriff of London. Polles, 1 Inst. 158. If one of the Sheriffs [Page 39] 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 nullo se intromit­tat cum executione istius brevis. 18 E. 4. 3.

Iudicial Writs (say Cook and Sanders, Suggestion. Plo. 74.) may be directed to the Coroners; As the Venire facias, where the parties Of whom. are at issue; there, upon the surmise of the Plaintiff, that the Sheriff is his Cousin, and upon prayer that the Venire Coroners. be directed to the Coroners, for avoydance of his own delay that might happen So in Eject­ment against four upon Af­finity of the Sheriff to one of the Defendants. Rolls tit. Try­al 668. Examination. 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 appears to the Court by the Defendants confession, that the Sheriff is not indifferent; But if the De­fendant denies it, then the process shall be awarded to the Sheriff, because the Sheriffs Authority and profit shall not be taken a­way, without cause apparent to the Court; But if the Defendants will alledge Not of the Defendants Suggestion. 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 delays are The Defen­dant may not have a Venire facias to the Coroners. for the Defendants advantage, and the Defendant may Challenge the Iury [Page 40] for this cause, and so is at no pre­judice.

And see in term. Hil. 3 H. 7. fo. 5. placit. ult. In a quare Impedit, where the Defen­dant shewed how the Sheriff was Cousin 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.

In the Lord Brook's Case Trin. 1657. B. R. In Ejectment, the Court was moved, that Lord Brooks might be made Ejector, which was granted; then the Court was informed that the Lessor of the Plaintiff was High Sheriff of the County, and that the Coroner was Vnder-Sheriff, and it was prayed that Elizors might return the Jury; but the Court would not grant it at the prayer of the Defendant, though the Plaintiff offered to agree to it, it be­ing in a Tryal by Nisi prius: but had it been in a Tryal at Bar, they would have granted it. But the regular course is, for the Plaintiff to pray it, or else the De­fendant may challenge the Array at the As­sises; for it's a principal challenge, that the Lessor of the Plaintiff is High Sheriff, or of kindred to the Sheriff, for which see Hutt. 25. More 470. Rolls rep. 328. And it was so adjudged, Trin. 15 Car. 2. B. R. Duncomb and Ingleby, that it is a principal challenge.

In Ejectment, the Plaintiff suggested For what causes Pro­cess shall be directed to be Coroners. that he and one of the Coroners, were all of the Liberty del Countee Wigorn', and prayed a Venire facias to the other Coroner; although this is no principal challenge, and the Defendant might have opposed the prayer, yet because he confessed it, the A­ward was well to the Coroner. So if the cause be that one of the Coroners be retain­ed of Counsel with the Plaintiff. If the suggestion do not comprehend a principal challenge, but only of favour, this is not sufficient to award process to the Coroners; but if it be a principal challenge, as affi­nity, &c. if the Defendant confess it, the award shall be to the Coroners; if he will not confess it, then to the Sheriff; and in such case the Defendant shall never challenge the Array for that cause: so if the Plaintiff pray process to the Coroners for favour in the Sheriff, if the Defendant say that this is not favourable, he shall never challenge for favour unless de puisne temps.

If the Array be quashed because made by the Sheriffs Minister, who was aid­ing and of Councel with one of the parties, yet the Writ shall not be directed to the Coroners, but to the Sheriff, command­ing him to make the Pannel by another Officer. As, Ita quod the Sheriff ne se in­tromittat, &c.

If the Tales be quashed for affinity in the Sheriff, but not the principal Pannel, because 'twas made before the affinity, yet all shall be awarded to the Coroners, Scil. the Distringas of the principal Pannel, and that they return a new Tales, for there shall be but one Officer if the Array be quashed, because made but by one of the Coroners, or for affinity in one, &c. Yet the Process shall still go to the Coroners, Ita quod the Coroner se non intromittat.

If Default be in the Sheriff and To whom Process shall be directed for default in the Sheriff and Coroners. Coroners, the Court may choose two Es­liors, and if the parties can say nothing against them, they shall make the Pan­nel.

But the Distringas shall not be directed to Esliers, for the Court cannot make Officers to distreyn the Kings Liege people, but the King may. 8 H. 6. 12. dubitatur.

Process may be directed to the Justices of Assise, by assent of parties, not without. When a Pannel is made by the Esliors, they shall afterwards serve all Process that comes upon this, as the Sheriff should. 15 E. 4. 24. 18 E. 4. 3, 8. Rolls tit. Tryal 670. For it may be the Sheriff will distreyn only those who are his friends, and be partial.

When the Process is once awarded Venire facias once directed to the Coro­ners, shall not be to the Sheriff after­wards. 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 facias 17. So the Entry is, Ita quod Vicecomes se non intromittat. 18 E. 4. 3. 8 H. 6. 12.

And therefore where the Sheriff ought Sheriff shall not return the Tales, where he cannot the Venire facias. not to retorn the Venire, 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 retorned by the Sheriff, and it was tryed, and a Verdict given, and Iudgement. And for this cause held to be Erroneous, and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed. Cro. 3. par. 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 [Page 44] was awarded to the Coroners, and Where the Coroner re­turns the Ve­nire facias, he ought to re­turn the Tales. after Verdict, it was moved in Arrest of Iudgement, that the Tales de Circumstanti­bus was awarded, and returned by the Sheriff; which was held by the whole Court to be good cause for Staying the Iudgement: For it is a mis-tryal, not aided by any of the Statutes; for process being once awarded to the Coroners, the Sheriff afterwards is not the Officer to return the Jury, no more than any other man. And process ought always to be returned by him, who is an Officer by Law to return it, o­therwise it is meerly void. But afterwards upon view of the Record, it appeared that the Tales was returned by the Coroners, and their names annexed thereto, where­fore it was without further question. But the Court said, if their names had not been an­nexed No name to the Return. to the Tales, yet it had been well e­nough; for they be annexed to the first Pan­nel. And it shall be intended that the right Of­ficer return'd it, and the usual course is, That to such Tales there is not any officers name subscribed, and yet it is good enough; for it is not 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 Iudgement.

But if the Venire be awarded to the Co­roners, Venire facias to the Sheriff, after one a­warded to the Coroners. for default in the Sheriff, and they do nothing upon the Writ, then I suppose, 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) or else to Es­liors, & sice converso.

In Error of a Iudgement in Chester, Venire facias to the Coro­ners, after one to the Sheriff. the parties being at issue, a Venire was a­warded to the Sheriff. And at the day of the Return, it was entred Quod Vicecomes non misit breve. And then the Plaintiff prayed a Venire facias to the Coroners, for Cozenage betwixt him and the Sheriff, which was awarded accordingly; and at the day of tryal, the Defendant made de­fault, and there upon Iudgement, 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 material. Cro. 3. part. 853.

But the Defendant might have demur­red No Venire fa­cias to the Coroners, after one to the Sheriff. to this prayer; For if the Plaintiff pray a Venire facias to the Sheriff, he shall not [Page 46] challenge the Array nor have a Venire af­terwards to the Coroners, because the Sheriff is his Cousin, or for any other principal challenge, whereof he might by common intendment have Conusance, when he so prayed the Venire facias; for upon shewing this Cause at first, he might have prayed Process to the Coroners; but for a principal challenge, of which by common in­tendment the Plaintiff could not know at the first, as that the Defendant is of kin­dred to the Sheriff, &c. he may afterwards challenge the Array, when they 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 If the Defen­dant denies the Planitiffs suggestion, he shall have no benefit of it by Challenge. the Coroner, because he is of kindred to the Sheriff, if the Defendant will not confess this, but denies 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. li. 5. Mistryal with­out such con­sent. 36. But if it be directed to the Coroners, where it ought to be to the Sheriff, with­out [Page 47] such consent of parties: This is an in­sufficient Tryal, not remedied by any Sta­tute, except it be upon an insuff [...]ient sug­gestion, and then the Statute of 21 Jac. 13. helps it.

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

Error of a Iudgement in Northampton, Bayliffs. because in Northampton the Court being held before the Mayor, and two Bayliffs, the Venire facias upon the Issue was awarded to the two Bayliffs, to return a Jury, before the Mayor and Bayliffs, secundum Consue­tudinem: which being returned, and Iudge­ment given, the Error assigned was, be­cause the 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 on­ly, but the Mayor and Bayliffs; and it is a common course, in many of the Antient [Page 48] Corporations, where the Bayliffs are Judge and Officer to re­turn Writs. Judges, or the Mayor and they be Judges; yet in respect of executing Process, they be the Officers also. And one may be Iudge, and Officer diversis respectibus, as in Re­disseisin, the Sheriff is Judge and Officer: Whereupon Iudgement was affirmed. Cro. 1 part. 138.

In Trespass and Assault laid in the Venire facias to the Garden of the Palace of Westminster. Rolls tit. Try­al 667. Court, to be at the Palace of Westminster, It was adjudged, that the Venire facias shall issue al Garden del Palace, and not to the Sheriff of Middlesex. Bro. tit. Ven. fac. 31.

In Trespass against two, if one plead, Award of Venire facias. and two issues are joyned upon his Plea, and two other issues are also joy­ned, and the Court award a Venire ad triandum extitum illum quam praedictum a­lium exitum inter the Plaintiff and the other Defendant, &c. This is a good award, although there be several issues betwixt the Plaintiff and both Defendants, because that this word Exitus may be for all reddendo singula singulis. Hob. 91.

If an Inquest remain for default of Rapers, and a Decem Tales is awarded, and the Defendant saith for his delive­rance [Page 49] that he is Lord of the Rape, where, &c. and that all there are within his distress, and prays a Writ to the next Hundred; The Court may try this by Prochein Hun­dred. Tryors presently, without a return of the Sheriff, and if it be true may award to the next Hundred; otherwise if it be false. 3 H. 6. 39.

CAP. IV. What faults in the Venire facias shall vitiate the Tryal, what not. When a Venire facias de novo, shall be awarded; when several Veni­re facias's. 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.

WE have now shewed you to what Officer the Venire facias shall be directed; The next step in the Writ is Praecipimus tibi quod Venire facias: Which words, Venire facias, are Venire facias why the Writ so cal­led. the most effectual words in the Writ, and therefore they give the denomination to the whole Writ. And here opportunity is of­fered us, to speak something of a Venire facias in general. I am not ignorant how our Books swarm with Cases which arise from the defects in this Process, and how that Verdicts have been set aside, Iudge­ments stayed, and reversed, for want of suffici­cient [Page 51] Returns, misawarding disagreement with the Rolls, discontinuance, and ma­ny other faults in this Writ. But the Statutes of Jeofailes (especially the Statute 21 Jacob. cap. 13.) have pardoned (as I Statute of Jeofailes 21▪ Jac. 13. may so say) these enormities; As, 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 ouhgt to be, so as some place be right named, The misnaming of any of the Jury, either in Sir-name, or addition in 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; 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 Undersheriff, 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 [Page 52] them; nor to any Writ, Bill, Action, or Information upon any popular, or penal Statute: Wherefore since Informations, and popular Actions are grown so fre­quent, Popular Acti­on; &c. 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 only helps the mis-naming of a Juror in Sir-name, or addition, and saith nothing of his Christi­an name: wherefore I conceive the Law in Christian name mi­staken in the Venire fa­cias, incura­ble. Codwels 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, so. 203.) doubted thereof, I may well put the Christian name right in the Venine fa­cias, & wrong in the Di­stringas. 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 of 21 Jacob. for that only helps the Sir-name. But with Reverence to the Courts doubt, I conceive clearly, it is holpen by the Sta­tutes of 32 H. 8. and 18 Eliz. as a dis­continuance [Page 53] of Process; and I may with the more confidence believe it, because in Codwels Case aforesaid, where in the Pan­nel 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, Iudgement was arrested. But it is there adjudged, that if he had been well na­med upon the Venire, and misnamed on the Distringas or Postea, then upon Examinati­on, it should be amended. But the Countess of Rutlands Case, lib. 5. 42. is express in the point, and so is Cro. 3. part▪ 860. Rolls 196. Teppet in the Venire and Tipper in the Di­string. Amended. And so if the mistake be in the Pannel Jurata, the Sheriff may come in Court, and amend it. And so if Samuel be in the Venire and Distringas, and Daniel in the Nomina Juratorum, upon examination, this may be amended. And so if the name be right in the Ven. and mi­staken in the Christian name in the Di­stringas or Postea it is amendable. Rolls 197. And so if he be De A, in the Venire and Distringas, and De B. in the Nomina Juratorum, this is amendable.

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 fatal in the Venire, that it causes a mis-tryal, (as in the mistake of a Jurors Christian Name, or where a Juror [Page 54] not returned is sworn, &c.) then the Verdict Venire facias de novo. is to be set aside, and a 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, One Jury shall not try a cause twice. and recorded by the Court, 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 Iudgement 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.

If upon an issue all the matter be not Venire facias de novo. fully inquired, a Venire facias de novo shall issue. 18 E. 3. 50.

In an Audita Querela, if the parties go to issue upon payment according to the defea­sans of the Statute, and this is found for the plaintiff, but the Jury do not assess Damages, the Court shall award a Veni­re facias de novo, to assess damages. 22 E. 3. 5. vide hic cap. 6. and Rolls tit. Try­al. 593. 595.

If the Record of the Nisi prius be unum modum tritici for modium, and the Plain­tiff is Nonsuit at the A [...]se, for this mi­stake, if the Record in Court be right, scil. [Page 55] Modium, this Nonsuit shall not be Re­corded, but a Venire facias de novo shall be awarded. So for any other mistake, as if the Record in Court be Grays-Inn Lane, &c. and the Nisi prius, which is but a tran­script, be Graves-Inn Lane, &c. For this is a nonsuit upon another Record, than what is in Court.

In Battery against Three who plead Three several Pleas, and upon the Writ of Nisi prius, two issues are found for the Plaintiff, and Damages assessed; but nothing is found for the third issue, this is a mis-trial, and a Venire facias de novo shall issue.

In Detinue, if the Jury find Damages Detinue. and Costs, but no value, as they ought, this shall not be supplied by a Writ of Inqui­ry of Damages, but a Venire facias de novo shall be granted. And so of other defects in finding the full issue.

In a Quare impedit if the issue be found Quare impe­dit. for the Plaintiff, but by negligence, the Jury do not inquire of the four points, scil. de plenitudine, ex cujus pr [...]sentatione si tempus semestre transierit, and the value of the Church per annum; This shall be supplied by a Writ of Inquiry, without any Venire facias de novo, because the Court ex officio ought to have charged the Jury with the [Page 56] four points of Inquiry, and if the Jury had found them, no Attaint lay; for as to this, they were but as an Inquest of Of­fice.

In a Writ of Annuity, if the issue Annuity. be found for the Plaintiff, but the Jury do not assess Damages or Costs, this shall not be supplied by a Writ of Inquiry, but a Venire facias de novo shall be granted.

In Ejectment against Baron and Feme, and Ejectment. the Jury find the Wife not guilty, and find a special Verdict as to the Husband, which special verdict is afterwards adjudg­ed insufficient by the Court, a Venire fa­cias de novo shall be granted for both, as well the Wife as the Husband, and the Wife may be found guilty, because the Record and issue is intire, and the Ver­dict is insufficient and void in tout.

So if there be several issues, and the Imperfect Verdict. Jury find some well and directly, and in others special Verdicts which are imperfect, a Venire facias de novo shall be granted for all, and the Jury may find contrary to their first finding.

In trespass of Assault and Battery, and taking away of grain, and the Defen­dant as to the Batery justifies in defence [Page 57] of his grain, upon which the Plaintiff de­murs, and as to the grain he pleads not guilty, which is found for the Plaintiff, and the Jury do not tax Damages for the Battery depending in demurrer as they ought, in this case, if the demurrer be af­terwards adjudged for the Plaintiff, yet the Damages for this cannot be afterwards supplied and taxed by a Writ of Inquiry of Damages, but a Venire facias de novo shall issue to Tryal, because all is compri­sed in one Original. Vide apres cap. 13. and devant cap. 2.

Who shall grant it?

In a Scire facias upon a Recognisance in Chancery, if the Parties be at issue, upon which the Record is commanded in­to B. R. and there it appears that the Ve­nire facias is not well awarded, the Venire facias de novo shall be awarded in the Kings Bench, and not in the Chancery. Roll. [...]it. Tryal 723.

In Yelvertons Reports, fo. 64. the Case Album breve, the County left out in a Venire facias. is, That a Venire facias was made Vice­comiti, leaving out Salop, for which there was a blank left in the Writ. But re ve­ra, it was returned by the Sheriff of Salop. In Arrest of Iudgement it was alledged, that the Venire facias was Vicious for this cause; But Gawdy said, it should be amen­ded; [Page 58] and by Fenner and Williams, It is as no Writ, because it is not directed to any Officer. And then it is aided by the Statute of Jeofailes, For it might rather be called a blank, than a Writ, because it was directed to no Officer. If there be no return of the Sheriff indorsed upon the Ve­nire facias, it was held not amendable. 35 Eliz. lib. 5. 4 Otherwise of the Distringas, if that be Album breve, and no return, if the Venire facias be Right. Rolls tit. 204.

In Cases where there are several Defen­dants, who plead several Pleas, the Plain­tiff Several Veni­re facias. may chuse either to have one Venire fa­cias for all, or several, 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 joynt Venire facias, you can­not have several Venires afterwards, though there be nothing done upon the first; except it be upon matter de puisne Temps, as the death of one of the Defendants, &c. lib. 8. 66. lib. 11. 5, 6. Stamf. 155. Bro. tit. Venire facias 2. 35.

But now it is the usual course to have but one Venire facias upon several issues, [Page 59] though against several Defendants, Cro. 3. One Venire facias in seve­ral issues. Vide Rolls tit. Trial 596. 620. 667. Hob. 88. 51. part. 866. Hob. 36. 64. And so usual, that the Court declared, Cro. 2. part. 550. That there never shall be several Venire fa­cias to try several Issues in one County; For what need the Plaintiff trouble him­self, and the Country, with several, when one Iury will serve his turn; Et frustra fit per plura quod fieri potest per pauciora. But otherwise, if it be in two Counties. Cro. 3. part. 866.

After issue joyned by two Defendants, Venire facias between the Plaintiff and 2 Defendants where one is dead. if one of them die, and then a Venire fa­cias is awarded betwixt the Plaintff, and both the Defendants, and so in the Hab. Corpora and Distringas, yet this shall not 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 needs be no surmise in Iudicial Writs, that one of the De­fendants No surmise in Judicial Writs of death in one of the parties. is dead; It is time enough to shew it to the Court at the day in bank. 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.

If the Venire facias bears date before Venire facias dated before the Action brought. the Action brought, or varies from the Roll, yet it is aided by the Statutes of [Page 60] Jeofailes. Cro. 1. part. 38. 90, 91. 203, 204. Miscontinuance or discontinuance, or Jeofailes. misconveying of Process, is aided by 32 H. 8. 30. The want of any Writ Original or Jud [...]cial, defaults in their form, and insuffi­cient Returns thereupon, are aided 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 parties names be mistaken, or the issue, Parties names mistaken in a Venire facias. as if the issue be ne unques Execuor, and the Venire facias be in placito debiti, &c. this is a Mistrial. Cro. 2. part. 528. So it is, if the Venire facias be in placito trans­gressioni [...], Mis-tryal. where the Action is in placito trans­gressionis, & ejectionis firmae. This mis­awarding of Process is not aided by any of the Statutes, and better it were, that there had been no Ven [...]re facias at all in No Venire fa­cias holpen. such a Case; for then the Statutes would have holpen it. Cro. 3. part. 622.

If a Venire facias be directed to the Co­roners, Return of Process. all the Coroners ought to joyn in the return, they being Ministers, not Judges, and so both of the Sheriffs of London ought to joyn, or else the Return is not good. Hob. 97.

Note, the Principal Statutes of Jeofailes are 8 H. 6. cap. 12. and cap. 15. 32 H. 8. cap. 30. 18 Eliz. cap. 14. 21 Jac. cap. 13. and 16 and 17 Car. 2. 8. Intituled an Act [Page 61] to prevent Arrests of Judgements and super­seding Executions. And the three first of these Statutes do not extend to Appeals, nor to Pleas of the Crown, or to any proceedings upon them, for these are excep­ted, nor to the amendment of any Exigent, to make any one Outlawed. As you may see at large, lib. 8. 162. Blackamors Case.

And the four last of the said Statutes do neither extend to them nor to Actions, or informations upon Penal Laws. Only in the last of them, viz. 16, 17 Car. 2. there is a limitation in the negation of the Ex­tent, scil. Other than concerning Customs, Subsidies of Tonnage and Poundage, to which it doth extend.

If the Venire facias be directed Vicecomiti London, Salutem, &c. praecipimus tibi, and not vobis, after Verdict this is Amendable. 39 Eliz. B. R. Adjudge, Rolls 200.

And so it is, if after & habeas ibi hoc breve, & Nomina Juratorum be left out. ib. and 204.

But if the date of the Teste be after the return, this was held not amendable, 32, 33 Eliz. B. R. ib. sed vide hic ante. But if the Award of the Ven. fac. upon the Roll be right, and the Writ wrong, it may be amend­ed by the Roll, as the Misprision of the Clerk. ib. 201.

If the words, quorum quilibet habeat be left out, or duodecim, or qui nulla affi­nitate attingunt, or Vicecomiti be left out, these are amendable, as mistakes of the Clerk. Rolls 204, 205.

In some Cases a Venire facias shall be Venire facias between a party and a stranger. awarded to make an Enquest betwixt a stranger to the Writ and issue, and the party. 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 Vouchee denieth the Deed, or other cause of the Warranty, &c. That the Demandant may not hereby be delayed, he may sue out a Venire facias to try the issue between the Tenant and Vouchée.

Inquests in Pleas of Land, shall be as Inquest at whose re­quest. well taken at the request of the Tenant, as of the Demandant. 2 Edw. 3. cap. 16. If the Plaintiff, or Demandant, desisteth in prosecuting his Action, and bringeth it Venire facias by Proviso. not to Tryal, then the Defendant, or Te­nant may sue forth a Venire 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 [Page 63] 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 Leches in the Plaintiff; there­fore there can be no Tryal by Proviso against the King (unless with the Attor­ney General's consent,) because no default, or Laches can be imputed to the King. But an avowant in Replevin, may have a Venire facias with a Proviso, immediately Proof pre­sently after issue joyned. after issue joyned, because he is Actor, and in nature of the Plaintiff.

If the Plaintiff in Detinue, and the Garnishee be at issue, and the Plaintiff prays a Nisi prius, and this is granted, Garnished. yet the Garnishee at the same time may have a Nisi prius with Proviso because he is Plaintiff also. 19. li. 6. 46. Rolls tit. Tryal 629.

If the Plaintiff deliver the Writ to the Sheriff tarde, so late that he cannot serve Tarde. it, the Defendant shall have a Writ with a Proviso.

But at the same time the Plaintff may have another Writ, and the Sheriff may return which of them he pleases at his Election. 8 H. 6. 6.

The Proviso ought to be, quando duo [Page 64] brevia sunt in eodem gradu & qualitate.

If the default be in Plaintiff after issue in the prosecuting of the Venire facias, then the Defendant may have a Venire facias with Proviso, but not a Hab. Corpus with a Proviso until the Plaintiff have made a default in the same Writ, for he ought only to have the same Process with a Proviso, in which there was a default of the Plaintiff first: and therefore although the Defendant had a Venire facias with a Pro­viso upon a default of the Plaintiff, yet he cannot have a Nisi prius by Proviso with­out another default of the Plaintiff.

If the Defendant had a Hab. Corpus by Proviso and the Jury remain for want of Hundredors, yet he cannot have a Distrin­gas Jur. with a 10. Tales cum Proviso, until a default of this request of a Tales, is in the Plaintiff. D. 15 El. 318. 10.

But note the Nota (in Stamford's Pleas, How the Plaintiff may stop the De­fendants Pro­viso. del Coron. fol. 155.) 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 proceed in his Pro­cess, in praying a Tales upon the Defen­dants Process, as it appears T. 15 H. 7. fol. 9. And the Defendant shall never be received to pursue this Process with a Pro­viso, [Page 65] so long as the Plaintiff pursues, or is ready to pursue, as appears Mich. 14 H. 7. fol. 7.

And seeing the Tales men offer them­selves Tales men. to us, we will tell them upon what accompt they come, before they thrust them­selves into the 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 Tryal be in the Country. Of the Writ of Nisi prius, when first given, when grantable, when not, and in what Writs. Of Justices of Nisi prius. Of the Tales at Com­mon Law, and by Statute. When the Transcript of the Record of the Nisi prius differs from the Roll, whereby the Plaintiff is Non-suit­ed, he may have a Distringas de novo.

BUt to observe the Method of the Writ, the next words are, Coram Justiciariis nostris de Banco apud Westminst. tali die. And here first of all, you may ask me, to what purpose the Sheriff is com­ [...]anded to cause the Iury to come to West­ [...]ister, when they are to try the Cause in [Page 67] 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. men were to be summoned upon the Writ of Venire fac. Why the Venire facias is to have the Jury appear at Westminster. to come to Westminster, was that contain­ed in the Writ, videl. Ad faciend. quandam Juratam; for then was the Tryal intended to be there, if a full Iury appeared; if not, then a Hab. Corpora, (with a Tales some­times Hab. Corp. annexed to it, the form whereof you may see in the Register) and if they did not appear at the Return in the Hab. Cor­pora, then went out the Distringas. This Distringas. I speak of the Common Pleas: But the course of the Kings Bench, and Exch [...]quer, is, after the Venire fac. to have a Distrin­gas, leaving out the Hab. Corpora. Tryals then were all at the Bar. (I speak not of Assises.) But now, because Jurors did not use to appear upon the Venire facias, it being without penalty; Tryals at the Bar, are appointed upon the Hab. Cor­pora, and Distringas, because the Iury will Tryals at Bar. 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 penal Law) [Page 68] committed above 30. miles from Westmin­ster, Where a Jury is not compel­lable to ap­pear at West­minster. except the Attorney General can shew reasonable cause for a Tryal at Bar.

Thus it was at Common Law, before the giving of the Writ of Nisi prius, when all Iurors, together with the parties came up to the Kings higher Courts of Iustice, 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 was first Nisi prius, when first given, and wherefore. given; and that, in the Venire facias, as we may see in the form of the Writ there mentioned, scil. Pr [...]cipimus tibi quod ve­nire facias coram Justiciariis nostris apud Stamfords Pleas of the Crown. 156. Westmon. in octabus Sancti Michaelis, nisi talis & talis tali die & loco ad partes illas venerint 12. &c. By which Writ it ap­pears, that the Venire facias was not re­turnable, till after the day of the Nisi prius. But the mischief thereof was so great, partly Nisi prius in the Venire facias. 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 Inquest, but Assises and deliverances of Gaols, be taken by Writ of Nisi prius, nor in other manner, at the Suit [Page 69] of the great or small, before that the names of all them that shall pass in the Inquests, be re­turned in the Court. And their names The names of the Jurors must be re­turned into the Court be­fore any Try­al, and why. 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 Nisi prius.

So that by what hath been said, you It is in the Courts dis­cretion, whe­ther to grant a Nisi prius, or not. may perceive to what purpose 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 Tryal at the Bar. And for this, the Duke of Exeter being Plaintiff in Trespass, a Nisi prius was prayed for the Duke, and it was denyed, for that the Duke was of great power in that County. And if the Tryal 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, &c.) it is not in When the Court cannot grant a Nisi prius. 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, [Page 70] and command the Justices, 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, without especi­al Warrant from the King, or the Attor­ney Where the King is con­cerned. Generals consent. Stamf. 156. F. N. B. 241. 4 Inst. 161.

In a praecipe quod reddat, if the Tenant after aid of the King, pleads to the Inquest; the Plaintiff shall not have a Nisi prius, because the Tenant hath aid of the King, and so the King is in a manner Party. 25 E. 3. 39. Neither is a Nisi prius to be granted, if any of the parties may have prejudice by it.

If the Iustices de Nisi prius die before Certification of Verdicts. the day in Bank, yet the Record shall be received from the Clerk of Assise, without a Certiorari, or other form of entry but the antient form.

Also in that Case a Certiorari may be directed to the Executors or Administrators of the Iustices, to certifie the Record. D. 4, 5 Mar. 163. 55. Rolls tit. Tryal 629.

They have no power to increase Dama­ges, What things the Justices of Nisi prius may do. nor to allow or disallow protections, nor to allow a Plea of Excommengement in the Plaintiff. But they may record [Page 71] the protection and the default, and this shall be allowed or disallowed in B.

They may demand the Iurors upon a Jurors sur paine fine. Pein, they may amerce Iurors, and punish a Trespass done in their presence, which is in despite of the King, and for this make Process, and may fine Offenders.

In Ejectment the Defendant may plead at the Assises, that the Plaintiff hath entred into parcel of the Land mentioned in the De­claration puis le darrein continuance, and the Plea puis darrein con­tinuance. Iustices of Nisi prius may accept this Plea. But it is in their Election; for if they perceive the Plea is dilatory, they may refuse it, for it is in their discretion. Sir Hugh Browns Case in Scaccario. Mich. 8 Jac. Rolls tit. Tryal 630.

If 11 Iurors be sworn, and the 12th. The power of the Judge up­on disagree­ment or other matter. is challenged, and the Iurors cannot a­gree in the challenge; for 10 affirm the challenge, and the other denies it: although the party which did not take the challenge, will not agree that the Eleven sworn shall Challenge. have another to them in the lieu of him that is challenged, yet the Court may do this.

If a challenge be taken to the Array be­fore any Iuror is sworn, and Triors be chosen, who cannot agree, yet they shall not be commanded in Custody, because they never were sworn upon the principal. [Page 72] But the Court may discharge them and chuse others.

If there be three Triors who will not agree, the Court cannot take the Ver­dict Jurors dis­charge. of two, and command the other to prison. The same Law in case of a Verdict upon an issue.

Where 14 Iurors are impannelled for the King, the Judge cannot discharge any of them after they are sworn, if not that they will not agree with their Compani­ons.

If the Iury say upon demand of the Amencement. Court, that they are agreed, and after­wards when they are opposed, they say the contrary in any matter, they may be amerced for this. Rolls tit. Try­al 675.

And now since the Nisi prius (for so it is Nisi prius why so called. called, because the word prius is before ve­nerint, in the Distringas, &c. which was not so in the Venire facias, upon the Sta­tute of 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 Court, before the granting of the Nisi prius; therefore the Nisi prius is now in No Nisi prius before the Venire facias is returned. the Hab. Corp. and Distringas. And if the Sheriff return not a Pannel of the Iu­rors, [Page 73] upon the Venire facias, there shall be no Nisi prius upon the Tales, until a Pan­nel be returned. 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales.

A Tales is a supply of such men, as were The Tales at Common Law. impannelled upon the Return of the Venire facias, grantable, when enough of the princi­pal Pannel to make a Jury do not appear, or if a full Jury do appear, yet if so many are challenged, that the residue will not make a Jury, 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 Jury. But now by the Sta­tutes of 35 H. 8. 6. 4, 5. P. M. 7. 5 Eliz. 25. and 14 Eliz. 9.

The Iustices of Assise, and Nisi prius, Tales by Statute. at the Request of Plaintiff, or Deman­dant, Defendant or Tenant, or of the pro­secutor tam quam, (if two, more, or but one of the principal 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 hereupon the very Act is called a Tales de circumstantibus.

Note the difference between Tales at Common Law, and Tales by the Statute, [Page 74] the first called only [Tales], the second, [Tales de circumstanubus], the last of which can't be granted at a Tryal at Bar, which is a Tryal at Common Law; for there it must be only [Tales] by Writ annexed to the Venire facias. But Tales de circumstan ti­bus is given by Statute to Tryals by Assise and Nisi prius, per Stat. 35 H. 8. 6. Yet such a Tales to an indictment in Wales, was out of that Statute, and helped by 4, 5 Ph. Mar. 7.

If the Issue be to be tryed per two Coun­ties, and one full Inquest appear of one Tales in what Cases it shall be granted. County, but the Inquest remain for de­fault of Jurors of the other County, A Tales shall be awarded to the County where the de fault is, not to the other.

If a Juror die after he is Impannelled, a Tales shall issue, not a Venire facias.

Vpon a Pluries Distringas, three only ap­pear, What persons may have a Tales. the Plaintiff prays another Distringas, without praying a Tales, yet if the Defen­dant pray a Tales, the Court ought to grant it. D. 20 El. 359. 2.

A Tales shall be granted in an Attaint, if In what Cases. all the Grand Jury make default.

It cannot be granted at the day of the At what time. return of the Venire facias.

If the Venire facias be good, and the Hab. Corpus, ill, if the Pannel be affirmed, yet the Tales is void, for in effect there is on­ly a Venire facias returned, and then no Tales.

If the Defendant hath a Hab. Corpus Tales with a Proviso. with a Proviso, yet the Tales ought not to be granted with a Proviso at the Defen­dants request, before a default in the re­quest of a Tales in the Plaintiff.

At Common Law before the Statute by Custom of a Court a Tales de circumstanti­bus might be granted, for this is a good Custom. Dubitatur, Rolls tit. Tryal 672.

If great persons are concerned, and by Tales denyed. their labouring the Jury doth not appear, and Tales men are prepared for their turn, and there is a great tumult de circumstanti­bus; The Justices of their discretion may deny a Tales, and adjourn in Bank, not­withstanding the Statute. The princi­pal Pannel must stand, or else there can be no Tales.

If the Bayliff of the Franchise answer, that there be not sufficient of his Bayli­wick, the Justices may award a Tales de cir­cumstantibus to be returned by the Sheriff.

If the Tenant for life pray in aid of [Page 76] the King who hath the reversion, the Justi­ces cannot grant a Tales de circumstanti­bus, because the King is concerned.

If two Coroners or Esliers return the Pan­nel, one of them cannot return the Tales, &c.

If the Defendant sue the Writ of Nisi pri­us by Proviso, yet the Plaintiff may have a [...]ales, &c.

The Sheriff may return 24. 40. or any number upon the Tales de circumstantibus. And it may be prayed by Attorney, (al­though Attorney. the Statute doth not mention an Attorney) as well as in proper person. The Vouchee in a praecipe quod reddat may pray a Tales, though he be neither Plaintiff nor demandant, in the first action.

If there be three Plaintiffs in Reple­vin, &c. and one of them makes default at the Nisi prius, the other two cannot pray a Tales: otherwise of two Coparceners.

Mayor and Commonalty, in their proper persons cannot pray a Tales. A Bishop or Abbot may.

Two Plaintiffs in Trespass and at the Nisi prius the Defendant shews a Record to the Court, by which it appears that one of the Plaintiffs was Outlawed after the last [Page 77] continuance, the other cannot pray a Tales.

The Sheriffs upon the Tales de circum­stantibus may Impannel a Priest or Deacon, if he hath sufficient freehold of Lay Fee, but not an Infant, nor one of the age of 80 years.

He may Impannel Coroners, Capital What persons of the Tales. Ministers of any Corporation, Foresters, men blind, mute, (if they have their un­derstanding, but not Deaf men) Excommu­nicated persons, but not Outlawed or attaint, not Aliens, nor Clerks attainted, nor persons attainted of false Verdicts.

The Coroners may put the Sheriff on the Tales.

It seems by the Statute, none of the Challenge. parties can challenge the Array of the Tales, but only to the Poll.

After a challenge to the Poll tryed, there shall be no other challenge to the same Poll, for any cause or matter that is at the same time.

In an action of Trespass, for taking away the Plaintiffs money, one of the Tales was challenged, because he was a common Fosterer of Thieves, and dwelt in a suspicious place, and of ill fame, and held a good challenge.

For Challenges see the Tit. Challenge at large.

What issues shall be tryed by Tales de circumstantibus, see Williams his reading, & hic cap. 7.

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 Tryal, that 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 principal Array stand; for Tales are words similitudinary, and have reference to the [Page 79] 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 facias shall be awarded. But if at the time of granting the Tales, the principal Pannel stand, and afterwards is quashed as aforesaid, yet the Tales shall stand; For it sufficeth if there were Quales, at the time of granting the Tales.

3. It is to be observed, that he which is meerly Defendant, cannot pray a Tales till the Plaintiff hath made default.

4. In some Cases, a Tales shall be grant­ed after a full Jury appear and 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 Jurors Impannelled die before they appear; and this appears by the Sheriffs return, the Pannel shall not abate, but if there be need, a Tales shall be awarded. And the time for Challenge, and Tryal of the Tales, is af­ter the principal Pannel be tryed; and if the principal Pannel be affirmed, the same Tryors shall try the Tales; But if it be quashed, then the two Tryers of the Princi­pal shall not try the Tales.

As to the 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 principal in the Venire facias, (unless in Appeals) 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 free himself from vexation and the question of his life, for fear that his Witnesses should die.

2. That the number ought always 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 always in every new Tales, the number shall be diminished, as if the first be 10. the second shall be 8. and so always less. But if the Tales awarded be [Page 81] 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 principal Pannel is quashed, then the Tryal shall be only by the Tales; or if the Tales do not amount to a full In­quest, another Tales to supply the former, may be granted.

As to the fifth, to wit, the Quality of the Therefore if the Venire fa­cias be not de medietat. lin­guae, the Tales cannot. 3 E. 4. 12. 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 by the Law, in the Quales, are required in the Tales: As you may read in the aforesaid Statutes. vide Stamf. Plees del Corone, fol. 155.

Where a Juror is withdrawn, when the Plaintiff intends to bring the Cause to Tryal again, he may have a Distringas, &c. with a Decem Tales.

By the Statute of 23 H. 8. cap. 3. If there be not enough sufficient Freeholders as are required in an Attaint, in the County where Attaint. [Page 82] 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 Nisi prius. amendable. de novo, upon motion to the Court, and the Postea shall not be recorded, Cro. 1. part. 204. Palmers Reports. 378. For there is but a Transcript of the Record sent to the Justices of Nisi prius. First they were Justices of Nisi prius, and Justices of Assise. Justices of Assise, and therefore they retain that name still though Assises are very rare­ly brought: For this common Action of E­jectment hath Ejected most real 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 less, no Error, and of the number 12. And when the Tryal shall be per primer Jurors. And of Inquests of Office; and when to remain pro defectu Juratorum.

NOw for the Quales: and these you see for number, must be 12. by the Common Law, D. and St. fol. 14. for quality, liberos & legales homines. And first of their number 12. And this number is no less esteemed of by our Law than by Holy Writ; Of the num­ber 12. If the 12 Apostles on their 12 Thrones, must try us in our eternal State, good Reason hath the Law to appoint the number of 12. to try our temporal. The Tribes of Israel were 12. the Patriarchs were 12. and So­lomons Josh. 4. Genes. 49. Officers were 12. 1 Kings 4. 7. vide Sir Hen. Spelman, verb. [Jurata] There­fore not only matters of fact were tryed by 12. but of ancient time 12. Judges were [Page 84] to try matters in Law, in the Exchequer Plow. Com. in prooemio. 12 Judges. Chamber, and there were 12. Counsellors of State, for matters of State; And he that wageth his Law, must have 11. others with him, which think he says true. And the Law is so precise in this number Less than 12 in Inquests of Office. of 12. that if the Tryal be by more or less, it is a Mis-tryal; But in Inquests of Of­fice, as a Writ of Wast, there less than Finch 400. 484. 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 so it was re­solved Trin. 1651. B. R. Abbot vers. Holt, that the Sheriff ought (in Writs of Inqui­ry) to summon 12. by their names, yet Inquest of Of­fice. Vide hic cap. 13. Damages assessed by a less number is sufficient, and in the Writ to the Sheriff, quod ipse inquirat per Sacramentum pro bo­rum hominum, omitting [duodecem] its good and usual.

And in a Writ of Inquiry of Waste by 13. it was holden Good. 1. Cro. 414.

In Dower if the Tenant come at the Grand Cape, and say he was always ready to render Dower, and issue is taken upon this, although seisin of the Land be pre­sently awarded, yet no Inquest of Office, but the Jury upon the Tryal of the issue, shall assess Damages. 22 E. 3. 15.

In what cases there shall be an Inquest of Office, and in what not, see Rolls tit. Try­al 595.

And although there can be no Verdict Why the Sheriff re­turns 24. but by 12. yet by ancient course and usage, (which as my Lord Cook tells you, makes the Law in this Case, 1 Inst. 155.) 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 Jury appear or sworn, in respect of Challenges, 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 than 24. But now it is remedied by the Satute of 18 Eliz. as a mis-return, see Cro. 1 part. 223. li. 5. 36, If the Sheriff return less than 24 it is no Error. 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 Jury 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. scil. effraenatam multitudinem, but Must not re­turn above 24. now they are prohibited by Statute, to sum­mon above 24. Westm. 2. cap. 38. In what cases the Inquest shall remain for default of Jurors.

If the issue be to be tryed by 2 Counties, if but one of one County appear, although [Page 86] a full Inquest appear of the other, yet this shall remain for default, because they can­not try that whith is in another County. 2 Counties. There ought to be six of each County. And so of one Inquest out of a Franchise, and another out of the Guildable, and so of 2 Pannels returned in an Assise by seve­ral Bayliffs of Franchises to try one issue, and one Pannel makes default, the issue shall not be tryed by the other Pannel, for the Jurors in one Franchise cannot make the view in another Franchise. Roll tit. Tryal 673.

If the Jury be of 2 Counties, or 2 Pan­nels The manner of swearing the Jurors. of the Guildable and Franchise, &c. they shall be sworn interchangeably first one of one, then another of the other.

If the Jury go at large until another day after they are sworn, and the Roll of the entry be not in Court, they may be sworn a­new. Roll. tit. Trial 674.

To make a Jury in a Writ of Right, Where there must be 16. and 24. in a Jury. which is called the Grand Assise, there must be 16. scil. four Knights, and 12. others; the Jury in an Attaint, called the Grand Jury, must be 24. Finch 412. & 485. But if the issue be upon a matter out of the point of the Attaint, as upon a Plea of non-te­nure, the Tryal shall be by 12 Juratores. 21 E. 3. 10.

There may be more than 16 in a Writ of right. Rolls tit. Tryal 674.

When Process used to be made out Where Wit­nesses joyn with the Jury, the number is un­certain. against the Witnesses in Carta nominat. to joyn with the Jury in Tryal of the Deed, as was used before the Statute of 12 E. 3. C. 2. ([his Testibus] being then part of the Deed) then the number was uncertain, according as the number of Witnesses were in the Deed: wherefore no Attaint lay, if the Deed were affirmed, because more than 12 joyned in the Verdict. But otherwise, Cannot prove a Negative. if the Deed was not found▪ 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 Juror departs and another sworn by consent. by consent, another of the Pannel may be sworn, and joyn with the other 11. in the Verdict. 11 H. 6. 13.

In Error upon a Iudgment in Cornwal, 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.

If the record be pleaded in Bar of the Per primer Jurors. See hic cap. 4. Assise, and the Party that pleads says, the same Tenements were put in view to the former Jurors: If the Plaintiff saith nient comprise, This shall be tryed per primer Jurors, & auters. 13 H. 4. 10.

So if the Tenant saith that these Lands are not the same Lands before recovered, this shall be tryed per primer Jurors & auters. 22. Assise 16. and so in a Redis­seisin.

So in an Assise, if the Defendant plead a Recovery per view de Jurors in another Assise, this shall not be tryed by the Assise but per primer Jurors. 13 H. 4. 10.

And if at the return of the former Jurors and others, all the former Jurors appear, the Tryal shall be by them only, but if any do not appear, they shall be supplied by the others. 40. Assise 4.

In such cases where the Plaintiff is not to recover the Land, nor to defeate the former Iudgement, if nient comprise be pleaded upon a Recovery pleaded, this may be tryed by other than the former Jurors. 1 H. 6. 5.

As in Trespass for Trees cut, the De­fendant pleads that he recovered before in [Page 89] an Assise the same Land where, &c. and cut, &c. the Plaintiff says this Land, where, &c. was not put in view, and so nient comprise. This shall not be tryed by the first Jurors, but by others, be­cause this action doth not defeat the former Iudgement nor recover any thing but Da­mages. Note the difference. 1 H. 6. 5. Where the Tryal shall be per primer Jurors, Certificate of Assise what. and where by them and auters, and where only per auters, see Rolls tit. Tryal. 593.

This is where the Bayliff of a Tenant in an Assise pleadeth, &c. and loseth by the Assise. and the Tenant himself hath a release, or some other discharge to plead, then he may by this means have the parties and first Jurors to appear again, and if it be found, he that before recovered shall lose the Land, and yield double Damages. Terms of Law.

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

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

2. They ought to be Legales, not out­lawed, Legales. not such as have lost Liberam legem, or become infamous, as Recreants, persons attainted of Felony, false Verdict, Conspi­racy, Perjury, Praemunire, or Forgery upon the Statute of 5 Eliz. cap. 14. and not upon the [Page 91] Statute of 1 H. 5. 3. Not such as have had Iudgement to lose their Ears, stand on the Pillory or Tumbrel, or have been stigmatized or branded, nor Infidels, nei­ther can any such be Witnesses. 1 Inst. 6.

3. Homines; they ought to be men, (yet A Jury of Women. there shall be a Jury of Women to try if a Women be Enseint, upon the Writ de ventre inspiciendo.) But what kind of men these ought to be, is worthy to be known. And for this, some men are exempted from serving in Juries, in respect of their Dignity, as Barons, and all above them in degree. Many are exempted by the Writ de non Exemption of Juries. ponendis in Assisis, F. N. B. 166. as aged persons 70. years old, and many others are exempted, as Clerks, Tenants in an­cient Who are to be exempted from Juries. Demesne, Ministers of the Forest, (out of the Forest) Coroners, Infants under the age of 14. years, Officers of the Sheriff, sick decrepit men, and such as are exempted by the Kings Charter: yet in a Grand Assise, preambulation, Attaint, and in some other special Cases, such men as are not exempted by reason of their Dig­nity, shall be forced to serve, notwitstand­ing their exemption in other Cases. Sée Daltons Office of Sheriffs, fol. 121. 52 H. 3. cap. 14. 2 Inst. 127. 130. 378. 447. and 561. Counsellors, Attorneys, Clerks, and other Ministers of the King Courts, are not to serve on Juries; But I find one Jury [Page 92] 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 A Jury of Attorneys. of him Traytor in the presence of the Trea­surer and Barons of the Exchequer. And this Jury of Attorneys gave the Justice one hundred marks Damages. 30 Assise 19.

The Court frequently order a Jury of Merchants, to try Merchants Affairs.

If the Charter of exemption be, that he In what cases they shall be discharged by Charter. shall not be put in Juratis Assisis seu recog­nitionibus, aliquibus yet this shall not excuse in a Writ of Right upon Tryal of the Grand Assise, for he comes, not in in this Case by such Process as in other Cases, but is chosen by the Oath of the 4 Chivaliers, and now he is in a manner Iudge in this Case. 39 E. 3. 15.

Neither shall it exempt him in an At­taint, nor in a Grand Inquest, to inquire of Felonies, &c. because the Charter hath not this Clause, Licet tangat nos & haere­des nostros, 42. Ass. 5.

At the Nisi prius the Bayliffs of a Vill. A [...] what time and how the Charter shall he allowed. may shew a Charter, that to try con­tracts, & [...]. within the Vill. the Inquest shall be all of Denizens without Foreigners, and this shall be allowed, and the Foreigners shall be ousted. 29. Assise 15.

So may the Burgesses, who are put upon a Jury, out of the Borough, if they have such a Charter. 30. Assise 1.

If a man be Impannelled of an Inquest Allowed without Writ. and shew such Charter of exemption of the same King in whose time he shews it, this ought to be allowed without Writ. 39 E. 3. 15. Rolls ib. 633.

4. De vicinet. de C. It is not sufficient that they dwell in the County, but they are to be of the Neighbourhood, Nay le plus pro­cheins, 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. Quorum quilibet habeat quatuor libras Sufficiency of Jurors. terrae, 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 this, nor the Stat. of 35 H. 8. extend to Juries in Cities, Towns Corporate, or [Page] other priviledged places, or in the 12. Shires of Wales, so that there they shall be return­ed, as before they lawfully might have been; for the Jurors sufficency in Attaints, see the Statutes 15 H. 6. 5. 18 H. 6. 2. and 13 H. 8. 3.

As to the Statute 35 H. 8. 6. The tryal ordained by that Statute, lyes only in such actions, which have their ordinary tryal by 12. men, and not more, and by Writ of Nisi prius, and this only in those actions, in which the Process of Venire facias, Ha­beas Corpora and Distringas, lyes against the Jurors, and in no other actions.

And although the Statute only mention the Tryal of issues joyned in the Kings Courts commonly holden at Westminst. and if the action be commenced in any other Court: yet if the Issue be joyned in any of the Courts at Westminster, it shall be tryed according to the said Statute, and so if those Courts are removed from West­minster, the issues joyned in them shall be tryed as the said Statute directs.

And the words betwixt party and party, shall only be intended of Common per­sons, and not betwixt the King and any o­ther person, nor when the King joyns with any other person, in any action which by his release or pardon may be discharged before the action brought.

Which is necessary to be known, in re­spect of Tales de circumstantibus, &c. See Williams his reading upon this Statute lately come out in print. In which are many ingenious speculations, but because they do not come often in practice, and the pro­ject of this Treatise, is only to contain mat­ters useful for practicers; that the Book may not swell too big, I omitt them, refer­ring you to the reading it self. See af­terwards in the Chapter of Challenges.

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 & 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 Inquests as had more need to be relieved by the 8 d. than discretion to fift out the truth of the fact: 'Tis hard to get an unbyassed Jury now; But surely, less rewards would sooner bribe and byass meaner men, than these. Therefore lest poverty or necessi­ty should tempt, Every Juror must have 4 li. per annum, as aforesaid, of Free-hold, out of Ancient Demesne. And the Court may Jurors of above 4. l. per annum. in matters of great consequence, direct a Venire facias, for a Jury of above 4 l. per annum, a piece, but not under. Cro. 2. part. [Page 96] 672. But in such Cases (every one knows) the Court most Commonly orders the Proto­notary to chuse 48. out of the Sheriffs Book of Free-holders, of the most substanti­al men in the County, and the parties strike out 12 a piece, then the Sheriff re­turns the rest.

Note in former times when Estates of inheritance were in few mens hands, such Jurors of 20. per annum. as had 40. s. per annum were found sufficient men to serve on Juries. After Estates of in­heritance coming in greater measure to the Vulgar, it was by the said Statute 27 Eliz. cap. 6. made 4. l. per annum, and the same rea­son improving in late times, it was thought consisting with the wisdom of a Parliament to raise it to 20. l. per annum, to the end mens Estates might be trusted in the judge­ment of more knowing Judges of fact, when they become litigious, and this was by an Act of 16, 17 Car. 2. cap. 3. which being but a probationer, and to continue but for 3 years, and from thence to the end of the next Session of Parliament, it is expi­red, but for that it may be revived, as I humbly judge it expedient, I have thought fit to hint thus much concerning it.

Such a man who hath Land, Rent, Office or other profit Apprendre, out of an­cient Demesn, to the clear yearly value of 4. li. of which he may have an Assise, he hath [Page 97] sufficient Freehold, to be a Juror. Vide the said reading. Where you may know what Estate is sufficient to make a man a Juror. See hic in the Chapter of Challenges.

Et qui nec D. E. nec F. G. aliqua affinitate Jurors mus: not be of af­finity to the parties. attingunt, the Law is very cautelous, in not leading men into temptation: There­fore lest kindred and Affinity should wrong the Conscience to help a freind, our Jurors must not be related to any of the parties; And for this Reason likewise, the Statutes provide, that no man of Law shall ride Judge of Assise, or Gaol-delivery, in his own Country, 8 R. 2. 2. 33 H. 8. cap. 24. yet the contrary hereof is often done by a non obstante; but how consistent with integrity or prudence, they know best who procure it to be done. But because most things con­cerning the Quality and sufficiency of Ju­rors, will come more properly under the Ti­tle Challenge, I will refer you thither; And first, observe more particularly, De quo vi­cinet. the Jury ought to come.

CAP. VIII. Concerning the Visne, from what place the Jury shall come, &c.

VIcinetum is derived of this word Vicinus, Visne. and signifieth Neighbour-hood, or a place near at hand, or a Neighbour place, where the question about the fact is moved. And the most general Rule (saith Coke, 1 Inst. 125.) is, That every Tryal shall be, out of that Town, Parish, or Hamblet, or place known out of the Town, &c. within the Record, within which the matter of fact issuable is alledged, which is most certain and nearest thereunto, the In­habitants whereof may have the better and more certain knowledge of the fact.

And if a thing be alledged in D. the Venue must not be of D. but de vicineto de D. for otherwise the Neighbourhood would be excluded. Roll. tit. Tryal 622.

And if the fact be alledged in quadam pla [...]ea vocat. Kingstreet in parochia sanctae Margaretae in Civitate Westm. in Com. Midd. [Page 99] In this Case the Visne cannot come out Parish. of Platea, because it is neither Town, Pa­rish, Hamlet, nor place out of the Neigh­bour-hood, whereof a Jury may come by Law; but in this Case, it shall not come out of Westminst. but out of the Parish of St. Margaret, because that is the most certain. But therein also it is to be noted, that if it had been alledged in Kingstreet, in the Parish of St. Margaret, in the County of Middlesex, then should it have come out of Kingstreet; for then should Kingstreet have been esteemed in Law a Town: For when­soever a place is alledged generally in plead­ing (without some addition to declare the contrary, (as in this Case it is) it shall be Town. taken for a Town.

And albeit parochia generally alledged, is a Parochia. place incertain, and may (as we see by experi­ence include divers Towns; yet if a matter be alledged in parochia, it shall be intended in Law, that it containeth no more Towns than one, unless the party do shew the contrary. But when a Parish is alledged within a More 559. City, there without question the Visne shall come out of the Parish, for that is more cer­tain than the City.

If a matter be pleaded done apud Brad­ford in Forfeild in parochia de Belbroughton, the Venue shall be of Belbroughton, and not of Bradford, for Belbroughton shall be intend­ed [Page 100] to be a Town, and one Town shall not be intended to be in another Town, and therefore Bradford shall not be intended to be a Town. Rolls tit. Tryal 619.

The Venue shall ever be of the most cer­tain place.

In a Quo warranto for using a Warren in D. if the Defendant say the Ville D. is parcel of the Manner of S. and prescribes to have a Warren within the said Mannor and Demesnes thereof, the Venire facias shall be of the Mannor, for the Mannor by intendment, is more large than the Vill. If the Visne be de D. and S. and the Venire facias be de D. S. and V. this is not good, because it is too large. If apud Burgum de Plimouth, the Venue may be de Plimouth generally. If apud Villam de Cambridge in Warda Fori, and the Venire facias is de Villa & Warda prae­dict. this is helpt by the Statute of Jeo­failes.

If the place be out of a Town, the Ve­nue shall not be of the next Town, but from the place it self, but the Sheriff ought to return the Jury de pluis prochein vill.

In Ejectment of Land in Foresta de Ke­vennon in Com. the Venue may be de vici­neto Forestae, for this is a place known, and by intendment, because the Defendant hath [Page 101] not pleaded in abatement, This is out of any Parish or Vill.

In inferior Courts within Boroughs the Venire facias is Quod Venire facias 12. liberos Burgenses Burgi & parochiae de B. although there may be 12 Burgesses which are not inhabitants, Rolls tit. Tryal 622. &c.

The Venue shall follow the issue. vide hic postea.

In Trespass and Battery in London, if the Defendant justifie in Mid. by Process out of the Marshalls Court, that he arrested him, and because the Plaintiff would not go with him, he beat him, &c. Absque hoc that he is guilty in London vel alibi, out of the Iurisdiction of the Court. To which the Plaintiff replies and acknowledges the ar­rest, but says that he beat him at London de injuria sua propria absque tali causa, and is­sue upon this, This shall be tryed in London, and the words absque tali causa are void, the issue being joyned upon a place certain, scil. London, affirmed in a Writ of Error. Rolls ib. 624. But the Court said, that he might have Demurred upon this Plea.

If a Trespass be alledged in D. and nul De Corpore Comitatus. tiel ville is pleaded, the Jury shall come de Corpore Comitatus. But if it be alledged in S. & D. and nul tiel ville de D. is plead­ed, [Page 102] The Jury shall come out de vicineto de S. For that is the more certain. So if a matter be alledged within a Mannor, the Mannor. Jury shall come de vicineto Manerii. But if the Mannor be alledged within a Town, it shall come out of the Town, because that is most certain, for the Mannor may extend into divers Towns. And all these points were resolved by all the Judges of England, upon Conference between them, in the Case of John Arundel Esq; indicted for the death of William Parker.

Where there may be a special Visne, the De Corpore Com. Tryal shall never be de Corpore Comitatus, Leon. 1 part. 109.

If a Venire facias ought to be of one or more Vills in certain, in a County, and this is awarded de Corpore Comitatus, This seems to be aided by the Statute of 21 Jac. of Jeofailes, for this comes from the Vills out of which it ought to come, and from o­thers, in as much as it comes de Copore Co­mitatus. Rolls tit. Tryal 618. and many o­ther cases touching this matter.

But in Ejectment of Land called S. and no place is named where the Land lyes, and a Venire is awarded de Corpore Com. this is erroneous, and too large, because there is a place certain where the Land lyes, and yet it is not named in the Nar. as it ought to be. Hob. 121.

But if the issue be taken upon a title of dignity, as whether Chivaler or not, this may come de Corpore Comitatus, because that the lieu lou, &c. is not material. ib:

If A. by the name of A. of the County of Hamshire bring a Scire facias upon a Recog­nisance in Chancery in the Countie of Mid. against B. And the Defendant plead that the Plaintiff is Outlawed by the name of A. of the County of Chester, to which the Plaintiff replies, that he is not una & eadem persona, this may be, by the body of the County of Mid. where the Writ is brought. ibidem.

In a quare impedit for the Church de Usel­bee, and the Defendant pleads that there is no such Church, the Venue shall not come de Corpore Comitatus, but de vicineto de Usel­bee, for this is a place known, and it is in­tended the Church of Uselbee is within the Ville of Uselbee, Hob. 325.

IN a prohibition, if the parties be at is­sue Wild. upon a custom de non decimando of wood in the Wild of Sussex, the Venire facias shall be de Corpore Com. for the Wild is not such a place, whereof the Court may have conu­sance to be sufficient to have a Jury to come stom this, for the Wild is a wood by intend­ment. Hob. 348.

In a real Action where the Demandant Heir tryed where the Land lies, where not. demands Land in one County, 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, because they have more Cro. 3. part. 818. Cro. 2. part. 303. certain Conusance, than where the Land lyeth.

And so it is where Bastardy is alledged, Bastardy. the Tryal shall be in like Case, Mutatis mutandis.

If the man plead the Kings Letters Pa­tents, Non concessit where the Land lies. and the other party plead non con­cessit, it shall not be tryed where the Let­ters bear date, for they cannot be denyed, but where the Land lyeth.

Every Tryal must come out of the Neighbour-hood of a Castle, Mannor, Town, Visne. or Hamlet, or place known out of a Castle, Mannor, Town or Hamlet, as some Fo­rests, and the like, as before,

Every Plea concerning the person, Where the Writ is brought at Common-Law. Plaintiff, &c. shall be tryed where the Writ is brought.

When the matter alledged extendeth into a place at the Common Law, and a place within a Franchise, it shall be tryed at the Common-Law.

Matters done beyond Sea may be try­ed in England, and therefore a Bond made beyond Sea, may be alledged to be Matters done beyond Sea, how tryable in England. Vide cap. 10. made in any place in England, if it bear date in no place; But if there be a place, as at Burdeaux in France, then it shall be alledged to be made in quodam loco vo­cat. Burdeaux in France, in Islington in the County of Middlesex, and from thence shall come the Jury 1 Inst. 261. Lach. 4. and 5. So if the Tenant plead that the Demandant is an Alien born, under the Obedience of the French King, and out of the Legiance Alien. 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 find, that he was born out of the Kings Legiance. And if they have sufficient Evidence that he was born in England, [Page 106] or Ireland, or Guernsey, or Jersey, or elsewhere within the Kings Obedience, they shall find that he was born within the Kings Legiance. And this hath ever been the plead­ing, and manner of Tryal, in that Case. So of other things done beyond Sea, the ad­verse party may alledge them to be done at Things done beyond Sea. such a place in England, from whence the Jury shall come, and in a Special Verdict, they may find the things done beyond Sea. Ib. lib. 7. 26. Lib. 7. 26.

So when part of the act is done in Eng­land, and part out of the Realm, that part that is to be performed out of the Realm, Part without the Realm, and part within. 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, for that Iudgment was given by default against the Defendant, being an In­fant, Full age tryed where the Land lies. issue was taken that he was of full age. And Godfrey moved, whether the Tryal should be in Norfolk, where the Land was, or in Middlesex, where the Action was brought. And the Court held, that it should be tryed in the County where the Land lay; and Tanfield said, It was so adjudged in the Kings Bench, between Throgmorton and Burfind. Cro. 3. part. 818.

Questions of Title of Land (except by Where the Land doth ly. special order of the Judges in some cases) are to be tryed in the County where the Land lies, for the Law is, that all real and mixt actions, as Wast, Ejectment, &c. must be brought in the County where the Land is. But Debt, Detinue, Account, Transitory Actions. Actions of the Case, Battery, &c. are of their own nature Transitory, and yet they ought to be laid and tryed in their proper County, where the fact was done, unless the Court order the contrary, for some Special reasons; and if they are laid out of the proper County, dayly pra­ctice tells us the Court may alter the venue upon Affidavit, of the true place of the fact.

All Criminal matters are to be tryed Criminal matters. where the offence is committed.

If the Venue arise in two Counties, This is called a Joynder of Counties. Finch. 410. Jury out of two Counties. the Jury upon 2. Venire facias shall come from both, 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, as appears, Cro. 3. part. 471. where in Replevin, the Defendant avows for Da­mage But out of more than two Counties it cannot be made. 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 [Page 108] 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. And although there ought to have been 6. sworn of each County, to try that issue, as appears 49 Ed. 3. 1. 31 H. 8. 46. yet by the assent of parties, those 12 who appeared, by advice of all the Justices, 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 Precedent.

In an Assise of Common in Confinio Co­mitatus, and the issue be, whether he had Common by prescription in Land in one County, appendant to a Mannor in ano­ther County, this shall be tryed by both Counties.

The same Law is in Trespass brought in one County (which cannot be in confinio) up­on such an issue, the Tryal shall be per am­bideux Counties. 49 E. 3. 20. See Rolls tit. Tryal, 599. &c. many cases where the Jury shall come from two Counties.

In an Action upon the Statute of Marle­bridge, for taking a distress in one County and chasing in another County, upon not guilty, the Tryal shall be only by the County where the chasing is, for this is all the cause of the action. 4 H. 6. 4.

In Escape upon an Arrest in one County, Escape: and an Escape in another County, upon not guilty, this shall be tryed, where the Escape is laid, for the action is upon the Escape. Rolls ib. 602.

In an Action of Trover, apud Paxton in Covenant in P. to sell at R. tryed at P. Com. Hunt. the Defendant pleads a Bargain and Sale, apud Royston in Com. Hertford, in the Market there, whereby he after con­verted them, apud P. in Com. Hunt. The Plaintiff saith, that he was possessed of those Goods, apud P. in Com. Hunt. and that J. S. there stole them from him, and by Covenant betwixt him and the Defendant, at P. in Com. H. he sold them to the Defen­dant, as he hath pleaded: The issue was upon the Sale made by Covenant, &c. And it was tryed in the County of Hunt. and found for the Plain [...]ff. And it was moved to be a mis-tryal; for it ought to have been by a Jury of the County of Hertford, or at least­wise by a Jury 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.

In Debt upon a Bond in London, the Usurous Con­tract in ano­ther County. Defendant pleaded an Vsurious Contract in the County of Warwick; the Plaintiff replyed, that the Bond was made upon good consideration, Absque hoc, that it was made [Page 110] for such Vsurious Contract: the Tryal shall be in the County of Warwick; for the Bond is confessed, and the usury in Warwick is only in question; so if the issue A Dures shall be tryed there, not where the Action is brought. be, whether the Deed were made by Dures, the Tryal shall be where the Dures, and not where the Deed, is supposed to be made. Cro. 3. part. 195.

Where issue is taken upon a surrender, Surender. it shall be tryed where it was alledged 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 Ward or Hundred, no good Visne. de Cheape, the Venire was De parochia de Arcubus in Warda de Cheape, whereas no Parish was mentioned before in the Count, & adjudged 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. The Parish in London is in lieu of a Vill and the Ward of a Hundred. Roll. tit. Tryal 620, 621, 622. vide hic apres.

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 [Page 111] be de vicinet. Civitatis, Lach. 258. Though it hath been held not good, but that the Venire facias must be de Civitate, leaving out Vicinet. as you may read in Stamf. 155. But now the Case in Cro. 2. part. 308. and Bulstr. 1 part. Rolls 622. 623. 129. say, that all Venire facias's are award­ed de vicinet. Civitatis, which is intended as well de Civitate it self, as de vicinet. infra Ju­risdictionem So in all infe­rior Courts. Stiles 2. March 125. of the City. And so it is, 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, no London. mention is made of the Parish or Ward. Jb. 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 alledge any thing done in London generally; But it must be, in what Parish from which a Venire may be; But where a thing is laid in a City, in alta Warda there, and the Venire facias is from the City only, it is well, because City. it shall be intended there be no more Wards in the same City. Cro. 3. part. 282.

In an action against the Hundred upon the Hundred. Statute of Winton, &c. upon the Roll the Venire facias is awarded of Bradley quod est proximum Hundredum, and the Venire facias is generally of Bradley. This is well, because by the Roll it appears that Bradley and the Hundred were all one. Roll. tit. Tryal 598.

If a thing be laid done, apud Bristol, viz. in Wardae Sanctae Mariae in Warda de Ratliff, and the Venire facias is de Warda de Ratliff, this is not good. ib. 619.

But if it be alledged in a Ward in the City of Bristol, &c. the Venue shall be of the Ward, not de Civitate.

A Venire facias was awarded from T. Ward. and not de vicinet. de T. and for this cause resolved to be ill, and not amendable. Cro. 2. part. 399. Bro. tit. Ven. fa. 8.

If the issue be, Si rex concessit per lite­ras De vicinet. left out, ill. patentes, The Tryal shall be, as hath been said, where the Land lies, and not where the Patent was made, because the Patent is of Record; and if it be travers­ed, Where the Land lies. 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 alledged: But of a Feoffment, or Lease for life pleaded, the issue being non Feoffavit, or non dimisit, 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 Where the Action is laid in one Coun­ty, and the Justification in another, the Tryal shall be where the Justification is. to be in one County, and the Iustification in another County, and the Plaintiff replies, de injuria 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, the Defendant pleads, that he spake them as a Witness upon his Oath, upon an issue tryed at Chard, in the Coun­ty of Somerset. The Plaintiff 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 been by a Visne of Chard, where the Iustification arose, and it was held clearly to be a mis-tryal; and not aided by the Stat. of Jeofailes, wherefore the Iudg­ment was reversed. Cro. 3. part. 468. 261. 870. More 410.

Replevin, taking 2 Horses at such a place in Denford in Com. Northampton, the Defendant makes Con [...]sans as Bayliff to the Lord Mountague of his Mannor of S. which Mannor is holden of the Honour of Glouce­ster, and that the place in which, &c. is with­in the said Honour, and alledges a Custome within the said Honour, on which Custome the parties were at issue, and the Venire fa­cias was from Denford the place of taking, [Page 114] which was moved after Verdict, for that the Venue was not so large as the issue, which was the Honour, and of this opini­on was the whole Court of C. B. Pasch. 13 Car. 2. Hull vers. B [...]nning.

But the great question was, whence the Venue should arise in this Case, and per Bridgman Ch. Just. and Just. Hide, in no Case can a Venue arise from an Honour; and Ch. Just. said, he had caused the Protho­notaries to search for Precedents, and they Honours. could not find that ever a Venue did arise from an Honour, which is but a bundle of services, and an incorporeal thing, from which no Venue can come, and yet an Ho­nour may have demesns, as the Honours of Grafton and Hampton have, but Gloucester not.

Ch. Just. and Just. Hide, seemed that the Venue should be de Corpore Comitat. Hob. 266. 249. But when the Court was after moved for their opinion, they bad them take a Venire facias at their peril, and would give no opinion.

An action of Debt was brought on a Bond to perform Covenants in an Inden­ture, wherely the Defendant had granted to the Plaintiff, a walk called shrob-walk in the Forest of—in Com Northampton, and Covenanted for peaceable in joyment, &c. [Page 115] and he was ousted per Earl of Northampton who had right, on which Right issue was joyned, and the Venire facias was from Shrob-walk.

Per Cur. It's not good, for it appears by the Record that Shrob-walk is not a Vill: but if the Obligation had been laid to be made at Shrob-walk, the Venue should arise from thence as a Vill. Inter. Stirt & Bales Pasch. 19 Car. 2. B. R.

The Venue shall follow and be according Out of what County. to the issue.

As for words in Warwick-shire Thou art a Vide [...]ic ante & postea. Thief and stolest my Iron: The Defendant ju­stifies & says, the Plaintiff stole the Iron in Leicester-shire, and brought it into Warwick-shire, and therefore he spake the words in Warwick-shire. If the Plaintiff replies de in­juria sua propria absque tali causa, the Jury shall come from Leicestershire, to which the absque tali causa refers, for the words are ac­knowledged. See Rolls tit. Tryal 598. 623.

When part of the matter to be inquired of, is in one County or place, and part in another, the Tryal shall be there where the best Conusans of the matter may be.

As in an action upon the Case, the Plain­tiff declares that the Defendant took the From the place best known. [Page 116] Horse of A. at S. and sold him at D. to the Plaintiff as his proper Horse, and afterwards A. retook the Horse. If the Defendant plead that the property was in him at the sale, upon which issue is ioyned; The Venue shall be de S. where the taking is supposed, for there the property may be best known; which is only in question. 42. Ass. 8. see several cases in Rolls ib. 603. under this head.

If the issue be whether L. did ride from London to York, and from York to London Where the Counties cannot joyn. 5 times in six days, this may be tryed by London only. Although part of the matter to be inquired of was done in each County.

In an action of Battery in London, if the Defendant justifies in defence of his posses [...] ­on in D. in Essex, and the Plaintiff says de son tort demesn s [...]ns tiel cause, this ought to be tryed by both Counties if they might joyn, because he may be found guilty at an­other day, and therefore because they may not joyn, this may be tryed in Essex.

Of Assises in confinio Com. See. 1 Inst. 154.

In case for words in one County, if the Defendant justifie in another County, and the Plaintiff reply de son tort demesn, &c. although the Counties ought to joyn, if they could, and the Iustification is principal­ly put in issue, yet the Tryal may be in ei­ther County at the Election of the Plaintiff.

In Ejectment in London upon a Lease Rolls tit. Tryal 620. made there of Land in Mid. if the Defendant plead not guilty, this may be tryed in Lon­don, because the Counties cannot joyn al­though London can­not joyn with another County. 49 E. 3. 20. the Jury ought to enquire of the E­jectment in Mid. and judgement affirmed in a Writ of Error. See Rolls tit. Tryal 602.

Two Counties may joyn although they be not nearest, nay though 20 Counties be between them. Finch French. 59. 1 Inst. 154.

But if it be of a Lease at Ickford of Land in Bury in Suff. the Venue must be of Bury not of Ickford. ib. 619▪

If the issue be taken upon the name or Where the Writ is brought. condition of the person, this shall be tryed in the County where the Writ is brought, 21 E. 4. 8. for this may be well known there. Rolls ib. 615.

Where the issue is to be tryed upon a point which shall be tryed by two Counties, and one cannot joyn with the other, this shall be tryed, where the Writ is brought. 21 E. 4. 8. but for this see before where the Counties cannot joyn.

In Debt in London against I. S. of D. in Where in o­ther County than where the writ is brought. Essex, if the Defendant saith that he was at S. in Essex at the time of purchasing the [Page 118] Writ, and not at D. this shall be tryed in Essex, and not where the Writ is brought, for none can know where he dwelt so well as the County of Essex. 12 H. 6. 5.

Vide many cases in Rolls ib. 605. &c. about this matter.

In an Action of the Case against a Sheriff, upon an escape in London, and the Arrest laid Where the escape was, and not where the Arrest was. to be in Southampton; adjudged, 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 been de vicinet. Rectoriae de Much-Hadam; but it was adjudged good, because Much-hadam is here intended a Vill. ib. 804. So you see, that where a thing is alledged to be done at the Capital House Rectoriae. of D. there the Venire shall be of D. For that is intended to be all one with the Vill. Castle. But where it is at the Castle of Hertford, &c. there the Venire facias shall not be de Rolls tit. Try­al 621. vicineto de Hertford; but de Castro de Hert­ford, for Castrum Hertford is intended a distinct place by it self; and so of all Castles. Cro. 2. part. 239. More 862.

A Venire facias may be awarded of a Ca­stle. Rolls 618.

Where the issue is not parcel of the Man­nor Mannor. of D. or the Custom of a Mannor is in question, the Venire ought to be of the Man­nor. Hob. 284. Cro. 2. part 327. If the Man­nor be laid to be in a Vill, the Venire facias Rolls tit. Try­al 621. may be of the Mannor in the Vill, as de vicineto mane [...]ii de Stansted-Hall in Wind­ham. Cro. 2. part. 405. More 851. Arundels Case. li. 6. 14.

The Venue cannot be of a scite of a Man­nor. Rolls tit. Tryal 618.

In the Common Bench, in Trespass, for taking away a Bag of Pepper, the Defendant justified as Servant of the Mayor and Com­monalty of London, for Wharfage due to them, by the Custome of London, which the Plaintiff refused to pay. The Plaintiff reply­ed that the Custome did not extend to him, London. because he was a Free-man of the City, and ought not to pay Wharfage, to which the Defendant re-joyned, that the Custom ex­tended to him, as well as to strangers; up­on which, issue was joyned.

Resolved, 1. That the issue should be try­ed Re [...]order. per Pais, not by the mouth of the Recor­der, because he certifies nothing but what the Mayor 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 Free-men. But it shall be to the County Where the Tryal shall be by the Coun­ty next ad­joyning. 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. vide hic cap. 2.

If the issue concern the Mayor and Com­monalty of a Town, the Array shall be made all of Foreigners. 31. Assise 19. vide Rolls tit. Tryal 597.

So if the issue concern the Mayor and Commonalty, &c. although they are not parties, yet the Venire facias shall be directed to the Sheriff of the next County. 15 E. 4. 18.

Where a man lends a Horse to another Where a man lends his horse in one place, and he is spoiled in another, Visne where he is spoiled. to till his Land, 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. Rolls tit. Tryal 615. pasch. 22 Car. 2. B. R. Horsley versus Potter. An action of the case was brought for misusing an Horse, in Itinere; the Contract was laid at Swaf­ham in Norf. and the riding to Peterbo­rough [Page 121] in Northampton-shire, where the Horse died, it was tryed in Norf. and the Court seemed that it ought to have been try­ed in Northampton-shire, where the damage was done, and not where the contract was made, but it was aided by the Stat. of Jeo­failes. 17 Car. 2. cap. 17. (after Verdict) that Statute being then in force.

Where a promise is laid in one place, and Promise in one place and breach in an­other. Visne guided by the issue. the breach in another, the Visne must be according to the event of the issue, whether it be taken upon the promise, or breach. But if no place be alledged for the breach, and issue be taken upon it, the Visne must be from the place of the promise, which shall be in­tended right, where the contrary appears not, see Godbolt 274.

Easter 39 Eliz. In the Kings Bench, Tres­pass, Assault and Battery, en Wilts, conti­nuing the Assault in Middlesex, and adjudg­ed that the Jurors shall come out of both Counties. More 538.

The name of a Mannor, or Land, or Misnomer. other local thing, shall be tryed where it lies, because it is local; but the name or additi­on of a person, shall be tryed where the Acti­on is brought, because this is transitory. Bro. tit. Visne 7. lib. 6. 65.

In Covenant upon an Indenture of De­mise of the Rectory of Stoken Church, in the County of Oxford, That the Defendant Where the Land lies. had good Power and Authority to demise: The Indenture was alledged to be made at London, and the Venire facias was awarded to the Sheriff of Oxon, and this being as­signed for Error, Iudgement was affirmed, and this adjudged to be good. More 710. because the Rectory was in Com. Oxon. vide pag. 45.

In Debt upon an Obligation in one Where the Land lies and not where the Writ, &c. County to perform Covenants in a Lease, and the Land and payments were in an­other County; The Tryal shall be where the Land and payments are. 44 E. 3. 42.

In Debt upon a Lease in one County, and the payment of the Rent upon the Lease limited there also, but the Land was in an­other County, and the payment upon the Land; this shall be tryed where the Land and payment was, for he was bound to pay this there upon the distress. ib.

But the Tryal should have been where the Writ was brought, if the payment had not been alledged to be where the Land was. ib.

If Debt be brought for Rent upon a Lease Where the Land and Writ, &c. for years, and the Action is brought, where the Land is, but the Deed of the Lease bears [Page 123] Date in another County, the Tryal shall be where the Land and Writ is brought. 45 E. 3. 8. The issue being whether the Lessor had a conditional estate or not, & so a lawful eviction.

If the issue be in an Assise whether the Where the Land lies and where not. Tenant be the eldest Son of J. S. and his birth is alledged in another County, yet this shall be tryed where the Land is. 46. Ass. 5.

If an infant bring an Assise, and a re­lease of his Ancestor is pleaded against him dated in another County, this must be tryed where the Release is dated, and not by the Assise, although the Plaintiff be an Infant, and the circumstances are to be in­quired. 21 E. 3. 20. See Rolls ib. 611.

In case if the Plaintiff declare upon a trust Where from two places in one County, and where not. Vide hic. cap. 10. at D. and of a wrong at S. upon not guilty, if it appear the trust is not material, the Venue shall only come from S. and not from both places, one not being material.

In case for stopping a way from such a place, to such a place, and that the ob­struction was at D. upon not guilty the Ve­nue shall not come from D. only, for all the way is put in issue.

In Trespass in one Vill, and a release pleaded dated in another Vill, within the [Page 124] same County, upon non est factum, this shall be tryed per ambideux. Rolls ib. 624. vide hic ante. See Rolls ib. 615. many cases about this.

Where the Venue cannot be from a Vill, De Corpore Com. Hamlet or lieu conus, there it may be de Corpore Comitatus, for if it might not be so, the cause could not be tryed.

A lieu conus is a Castle, Mannor or o­ther notorious place well known, and ge­nerally taken notice of by those who dwell about it, and not a Close or Pasture of ground, or such like place of no repute.

A Custom of a County is to be tryed de Corpore Comitatus, for the Custom runs thorough the whole County.

Where the Parish is named by way of Parish. denotation, or explanation of the place where the Fact is alledged to be done, as at the Pa­rish▪Church of Hauk Huck [...]nol, 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, in Town. the Parish of St. Margarets, 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 Grays-Inn-Hall, or Lincolns-Inn-Hall, [Page 125] &c. in Holborn, the Visne shall be from Holborn, which is the Town; for as Yelverton said, it was never heard of any Inns of Court. Venire facias to be had of any of the Inns of Court, Bulstr. 2. part. 120. especially of the Not from house or hall. Hall, because it cannot be of a House, much less of a Hall.

In Ejectment upon a Demise made at Denham of Lands in parochia de Denham praedict. The Visne may be of Denham, or of the Parish of Denham, because Denham and Parochia de Denham pr [...]dict. are all one by intendment of Law. Bulstr. 2. part. 209. More 709. Hob. 6. But when it appears by the Record, or is intended that the Parish Parish. is more 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 must not be of Bredon, but of the Parish, because it appears, that the Parish extends fur­ther than the Town. Hob. 326.

Where an Action of Debt for Rent, is For Rent where the Land lies, and when not. brought upon the privity of the Contract, by the Lessor, as against the Lessee, or his Executors, for Arrearages due in the life­time 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 [Page 126] Rent due after the Testators death, the Visne must be, where the Lands lie. Lach. mis­printed, 197. 262. 271. v. li. 3. 24.

And so it was adj. in case of Hall and Arnold, Mich. 1656. B. R. and it was fur­ther adj. there, the Case being of a Lease made at London of Lands in Monmouth­shire, rendring Rent payable at the Old Exchange, for which action is brought by the Heir. If there had been no place of pay­ment, the Heir must have brought his A­ction where the Lands lie, but the place of payment being in another County, he has his Election, as on a Lease for years of Lands in two Counties.

Walkers Case, in Debt upon a Lease of Debt for rent of Land in another County. 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 locus in quo, &c. was holden of W. H. as of his Mannor of Baildon, and upon issue, hors de son fee, the Venire facias was de vicineto de Baildon; and up­on motion that the Venire facias ought to have been, as well from the Mannor, as the Town, The Court adjudged it to be well enough, for that the Court shall not intend Mannor. [Page 127] the Mannor was larger than the Town, be­cause it doth not appear so to be, though possibly it might, as like the Case of Town and Parish. Hob. 305. 326.

If the Sheriff return that there are no Visne next adjoyning in what Cases. Freeholders of that Visne, or if the Visne be where the Kings Writ runs not, as in the Cinque Ports, &c. or in a place where Cinque Ports. 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, (ou briefe le Roy ne Court) the Venire Wales. facias shall be directed to the Sheriff of the next English County, to cause the Jury to come de propinquiori Visne of his County, to the Visne in Wales adjoyning: For the Court shall not be ousted of the Plea. Fitz. Abridg. tit. Visne 8. Jurisdict. 24.

In an action against a Hundred, the Ve­nire facias may come from the next Hun­dred generally.

In Trespass, if the Defendant plead not guilty to part, and to the residue a Plea, which causes the Tryal of that to be by a Jury de Prochein Hundred, The Venire shall be awarded al Prochein Hun­dred, for both issues, because there ought not to be two Venire facias in one action vide Rolls tit. Tryal 596.

In an Appeal of murder committed in the Cinque Ports, although the King be concer­ned, yet because this is betwixt common per­sons, the Venire facias to the next adjoyning Vill. ibidem.

If the issue be joyned of a matter in Ire­land, Ireland. this shall be tryed by a Jury of the next County in England. ib.

If the issue be to be tryed by the Venue of Prochein Hundred. a Mannor, and the Plaintiff suggests that he is Lord of the Hundred in which the Mannor is, and that all within the Hundred are within his Distress, if the Defendant ac­knowledge this, the Venue shall not be de Corpore Comitatus, but of the next Hundred, for if it should be de Corpore Comitatus, this should be tryed by the Tenants of the Man­nor. Rolls ib. 667.

If the Visne is in some part mis-awarded, or Visne mis-awarded in part. sued out of more places or fewer than it ought to be, so as some place be right named, this is aided by the Stat. of Jeofailes, which hath ended the differences, in many cases repor­ted in our Books, concerning this point, wherefore I purposely omit them.

Error, for that the Iudgment was given Infamy where the Land lies. by default against the Defendant, being an Infant, upon issue that he was of full age, [Page 129] 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.

Holmes vers. Sanders Hill. 22, 23 Car. B. R. Error to reverse a Iudgement given in the Kings Bench in Ireland, in Debt for Rent brought by the Assignes of a reversion, the Plaintiff declared of a Lease of Land in such a Parish in the Suburbs of Dublin, on nil debet pleaded, the Venire facias was from the said Parish in Civitate Dublin, and Iudgement there per Plaintiff, it was assign'd for Error, because the Land lies in the Suburbs of the City, and the Venire facias was from a Parish in the City.

Per Cur. It is all one, for the Suburbs are always within the Franchise of the City, as Fleetstreet is within the Suburbs of Lon­don; but the Strand not, though so reputed.

Note, It was adjudged, Error in an In­ferior Court, that the Venire facias was a­warded secundum consuetudinem Curiae which ought to be per Curiam. Reader vers. More, Mich. 1650. B. R.

CAP. IX. Challenges.

YOu have already seen of what Visne the Jury ought to be: The next thing to be considered, is concerning Challenges.

Challenge is a word common as well to the English as to the French, and sometimes Challenge. signifieth to claim, and the Latine word is vendicare; 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 seeing there is no proper Latine 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 verb Calomnior, 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 to Calumn [...]ator. [Page 131] be a false accuser: but is derived of the old word Caloir, or Chaloir, which in one signi­fication is to care for, or foresee. And for that to challenge Jurors, is the mean to care for or foresee, 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 Summons, 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 majores, and therefore I will handle this matter the more largely.

A Challenge to Jurors is twofold, ei­ther Challenge is twofold. to the Array, or to the Polls: to the Array of the principal Pannel, and to the Array of the Tales. And herein you shall To the Array. 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 Verb, to Array the Jury, and so we say in common speech, Bat­tail Array, for the order of the Battail. Array. And this Array we call Arraiamentum, and to make the Array, Arraiare, 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 [Page 132] Partiality or default of the Sheriff, Coro­ner, or other Officer that made the Return.

And it is to be known, that there is a prin­cipal Principal Challenges. cause of challenge to the Array & a chal­lenge to the favour: principal, in respect of partiality, as first, if the Sheriff or other Of­ficers be of kindred or affinity to the Plaintiff or Defendant, if the affinity continue. Second­ly, If any one or more of the Jury be returned at the denomination of the party, Plaintiff or Defendant, the whole Array shall be quashed. So it is if the Sheriff return any one, that he be more favourable to the one than to the other, all the Array shall be quashed. Thirdly, if the Plaintiff or Defendant have an Action of Battery against the Sheriff, or the Sheriff against either party, this is a good cause of challenge. So if the Plaintiff or Defendant have an action of Debt against the Sheriff, (but otherwise it is, if the Sheriff have an action of Debt against ei­ther party) or if the Sheriff have parcel of the Land depending upon the same Ti­tle, or if the Sheriff or his Bayliff which returned the Jury, be under the distress of either party; or if the Sheriff or his Bay­liff be either of Counsel, Attorney, Officer in fee, 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 [Page 133] a party, may also challenge for the same 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.

In Ejectment, the Plaintiff suggesteth that his Lessor, the Sheriff and Coroners were Tenants to a Dean and Chapter, whose Interest was concerned, and prayed the Venire facias to Elisors, and had it, be­ing confessed by the Defendant, and the Court took it a principal challenge. v. Hut. 24. More 470. Roll. rep. 328. Duncomb and Ingleby, Trin. 15 Car. 2. B. R.

A prayer to Elisors in Tryals at Bar may be at the suit of the Defendant or Plaintiff, but in Nisi prius at the prayer of the Plaintiff only, and per Cur. it is a principal challenge that the Plaintiffs Lessor is Sheriff or kin­dred, and if the Plaintiff doth not pray, &c. the Defendant may challenge the Array at the Assises. Lord Brookes Case, Trin. 1657. B. R.

'Tis a good challenge to the Array, that the Array is made and returned by 2 Coroners, only when there are four in the County, and that the Writ is returned by one of the Sheriffs of London only. So if a Bayliff re­turn them that are out of his Franchise, or if an Array be to be of persons out of a [Page 134] Franchise & Guildable, and the Bayliff return them, for the Sheriff ought to make it; and that some of the Pannel were returned by the Bayliff of a Franchise, where the whole Pannel is returned as Array by the Sheriff, this is a good challenge to the Array, for otherwise the parties would lose their challenge to the Array made by the Bayliff. Rolls tit. Tryal 636.

If the Defendant sue the Writ of Hab. By what per­son. Corpus by Proviso at the return, the Plain­tiff may challenge the Array for Kindred be­tween the Defendant and the Sheriff. D. 15 El. 319. 13.

D. 15 El. 319. The Array was quashed although the Sheriff was the Naufe in What Consan­gunity is suf­ficient. descent, and the Tenant in the 7. descent from the Ancestor of whom both descended, Cousin to the parties Wife, although herself no party. So if the Wife be dead, if issue be alive. These are good challenges to the Array.

Alliance to one party is a good challenge. For affinity.

If the Sheriff be allied at the making At what time. of the Pannel, and be dead at the challenge, yet this is a good challenge. 'Tis no chal­lenge that the Sheriff became of kin after making the Pannel.

'Tis no challenge to the Array if all the Jurors be of affinity.

It may be after a Tales prayed, for no challenge can be until the Jury is full. If the suggestion of Cousinage to have the Ve­nire facias to the Coroners be denyed, and the Venire facias is awarded to the Sheriff, the same challenge shall not be allowed to the Array, but any other cause may be al­ledged, than what was before denyed.

Favourably made by the Sheriff or his For favour. Bayliff or the Bayliff of a Franchise, is a good challenge. That the Sheriff is within the Distress of a party, or servant to the Plaintiff, Of the Robes of the Plaintiff, was Arbitrator for a party, is procurator and main­tainer of a party, That the Sheriff pur­chased part of the Land in question, That the Pannel was made by the Bayliff of the Franchise of the other party. These are good challenges to the Array.

'Tis no principal challenge that one par­ty is Tenant, or servant to the Sheriff, but it is a good challenge for favour.

It is a good challenge to the Array, That Denomina­tion. the Sheriff made the Array, or put a Ju­ror into the Pannel at the denomination of any of the parties in favour to them, or of [Page 136] their servants, or of one interessed, or of a maintainer, or of the Counsel, or of a pro­curator.

Not if strangers by the Sheriffs leave make the Pannel, or it be made at the re­quest of both parties.

'Tis a good challenge to the Array, that For malice. one of the parties has brought an action of Debt against the Officer that returns the Pannel, or that there is a difference betwixt the Officer and the party, that the Officer killed his servant.

But not that the Officer has Debt a­gainst the party, for he may demand his Debt without malice.

The Challenge ought to be quod tempore How and in what manner the Challenge is to be made. Pannelli praedict Arraiati, the Sheriff was Cousin to the Wife of the Defendant, &c. not afterwards, nor before, unless you aver that she was alive or had issue at the ma­king the Pannel.

If the Challenge be taken for Cousinage, it ought to be shewn coment Cousin, but in such a challenge to be a Juror 'tis not ne­cessary to shew coment Cousin. What Coun­terplea of a Challenge is good and how to be pleaded.

The mannor and conveiance of the Cou­sinage alledged in a challenge is not tra­versable. [Page 137] You may traverse the Cousinage prout without modo & forma. If the Chal­lenge be that the Sheriff was Cousin to the Plaintiff, or within his distress; 'tis no Counterplea to say he is likewise of kin to the Defendant, or within his distress also.

Where the King is party to the issue, no Where the King is party. challenge shall be to the array for favour, 38 Ass. 19.

Otherwise if the Sheriff be Vadelect of the Kings Crown, or such menial ser­vant.

If it be presented that I. S. hath made a nusance to London and le gents, 'tis no chal­lenge to the array, to say the Sheriff of Mid­dlesex is deputed and removable by the Com­monalty of London, because this is the suit of the King.

The King may make his challenge that the Sheriff is within the parties distress, although every subject owes greater favour and obedienue to the King, by reason of his Allegiance, than to any Lord by reason of Tenure.

In a writ of Right or any other writ, a What persons may be im­pannelled. Baron of the Realm may excuse himself.

In a writ of Right the Inquest ought to be all Knights. A Banneret may be impannelled in this writ; so may a Serjeant, if there be not Chivalers co­venable.

In an attaint upon a recovery by false verdict in an Assise, some Knights ought to be returned, and if there be not any in the Hundred where the Land lies, they shall be returned out of the County.

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 Peer of the Realm, or Lord of Par­liament Where there must be a Knight re­turned of the Jury. 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 [Page 139] against all. So in an attaint, there ought to be a Knight returned to the Iury.

If two Peers sue as Gentlemen, and ad­mit themselves so in pleading; 'tis no chal­lenge to say, no Knight is returned; for the Sheriff is in no fault.

And when the King is party, as in tra­verse Where the King is party. of an Office, he that traverseth 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 usual 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 array for favour: He Challenge to the favour. that taketh this, must shew in certain the name of him that made it, and in whose time, and all in certainty: This kind of [Page 140] Challenge being no principal challenge, 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 principal 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 try­al. So affinity between the Son 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 è converso, this (as hath been said) is a prin­cipal Challenge, or the like. But where For the King. the King is party, one shall not challenge the array for favour, &c. because in respect of his allegiance, he ought to favour the King more. But if the Sheriff be a Vade­lect of the Crown, or other menial servant of the King, there the challenge is good; and likewise the King may challenge the ar­ray for favour.

Note, upon that which hath been said it appeareth, that the challenge to the array, To the Array. is in respect of the cause of unindifferency, 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 [Page 141] 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, Princi­pal, which induce favour, and for default of Hundredors.

Peremptory, this is so called, because he Peremptory Challenge. may challenge peremptorily upon his own dislike, without shewing of any cause, and this only is in case of Treason or Felony, in favorem vitae; and by the common Law, the prisoner upon an Indictment or Appeal, might challenge thirty five, which was un­der the number of three Iuries; but now the Statute of 22 H. 8. the number is redu­ced to 20. in petite Treason, Murder and Felony; and in Case of high 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 been resolved by the Iu­stices, upon conference between them in the case of Sir Walter Raleigh and George Brooks: But all this is to be understood when any subject that is not a Peer of the Realm, is arraigned for Treason or Felony. [Page 142] But if he be a Lord of Parliament, and a Peer of the Realm, and is to be tryed by his Peers, he shall not challenge any of his No Challenge of Peers. Peers at all, for they are not sworn as other Iurors be, but find the party guilty or not guilty, upon their Faith or Allegiance to the King, and they are Iudges of the fact, and every of them doth separately give his judg­ment, beginning at the lowest. But a Sub­ject under the degree 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 joynt 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 The Kings Challenge re­strained. 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 delays and dan­ger. And therefore it is Enacted, Quod de c [...]tero licet pro Domino Rege dicatur quod ju­ratores, &c. non sunt boni pro Rege: non propter hoc remaneant inquisitiones, &c. sed assignent certam causam calumni [...] suae, &c. whereby the King is now restrained.

Principal, so called, because if it be Principal Challenge the Polls. [Page 143] found true, it standeth sufficient of it self without leaving any thing to the Conscience or discretion of the Triors. Of a principal cause of challenge to the Array, we have said somewhat already; now it followeth with like brevity, to speak of principal Chal­lenges to the Polls, (that is) severally to the persons returned.

A principal Challenge is nothing else but such matter which proves evident favour, or enmity in the Iuror; and therefore it be­longeth to the Iustices to draw the Iuror, and not to leave the decision to Tryors, 21 E. 4. 11.

Principal Challenges to the Poll may be To the Polls. reduced to four heads. 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 Principal Challenges to the Polls. Peer of the Realm, or Lord of Parliament, as a Baron, Viscount, Earl, Marquess, and Duke, for these in respect of Honour and Nobility, are not to be sworn on Juries; and if neither party will challenge him, he Propter honoris respectum. may challenge himself: for by Magna Char­ta it is provided, Quod nec super eum ibimus, nec super cum mittemus nisi per legale judici­um [Page 144] parium suorum, aut per legem terrae. Now A Peer may challenge himself. the Common Law hath divided all the sub­jects into Lords of Parliament, and into the Commons of the Realm. The Peers Peers and Commons. of the Realm are divided into Barons, Vis­counts, Earls, Marquesses and Dukes; The Commons are divided into Knights, Esquires, Gentlemen, Citizens, Yeomen, and Burgesses: And in Iudgement of Law, any of the said degrees of Nobility are Peers to another: As if an Earl, Marquess, or Duke, be to be tryed for Treason or Felony; a Baron, or any other degree of Nobility is his Peer. In like manner, a Knight, E­squire, &c. shall be tryed per Pares, and that is by any of the Commons, as Gentlemen, Citizens, Yeomen, or Burgesses; so as when any of the Commons is to have a Tryal, either at the Kings Suit, or between party and party, a Peer of the Realm shall not be impannelled in any Case.

Secondly, Propter Defectum, Challenge Propter defect­um.

  • 1. Patriae, as Aliens born.
  • 2. Libertatis, as Villains or Bond­men, and so a Champion must be a Free­man.
  • 3. Annui sensus. i. e. liberi tenementi.

First, what yearly Freehold a Iuror ought [Page 145] to have, that passeth upon Tryal of the life See before, cap. 7. Quorum qui­libet habeat 4. l. &c. of a man, or in a Plea real, or in a Plea personal, where the Debt or damage in the Declaration amounteth to 40. Marks, Vide Littleton, Sect. 464. Secondly, this Free-hold must be in his own right, in Fee-sim­ple, Fee-tail, for term of his own life, or for another mans life, although it be upon con­dition, or in the right of his Wife, out of antient Demesne; for Freehold within ancient Demesn will not serve: but if the debt or Damage amounteth not to 40. Marks, any Freehold sufficeth. Thirdly, he must have Freehold in that County where the cause of the action ariseth, and though be hath in another, it sufficeth not. Fourth­ly, if after his return he selleth away his Land, or if Cesty que vie, or his Wife dyeth, or an entry be made for the condition broken, so as his Freehold be determined, he may be challenged for sufficiency of Freehold.

It seems before the Statute 2 H. 5. free-hold of any value was sufficient, for there Freehold of 5. s. was sufficient. 3. H. 4. 4. by that Statute in all Pleas real and personal, where the Debt or damage, or both to­gether amount to 40 marks, the Juror must have 40. s. Freehold. In an Attaint they must be able to expend 20. l. per an­num.

In an accompt upon the Receipt of 100. s. if he count to his damage, 200. s. if the Ju­ror hath but 20. s. or under 40. s. 'tis suffici­ent, because he shall not recover damages, and so this is not within the Statuts 10 H. 6. 18. for the sufficiency of Jurors. See Rolls tit. Tryal 648.

A man seised of the Mannor of Dale en­feoffs a stranger upon condition to pay yearly to J. S. and his Heirs 40. s. Rent. J. S. dies seised of this Rent, and then his Heir takes it. Yet the Heir hath not suf­ficient Freehold.

Land to the value of 40. s. is given to Husband and Wife and the Heirs of their two bodies begotten, who have issue a son, the Husband gives the Land by fine to an estranger and his Heirs, and dies, the Wife enters, and dies seised, the son hath not sufficient Freehold to be a Juror.

A man seised of Land to the value of 40. s. within the County of Mid. and of Land to the value of 12. within the County of Sussex, and grants a Rent-charge of 40. s. issuing out of all the said Land to a stranger in fee, the Grantee hath sufficient Free­hold to be a Juror in both Counties. See many speculative cases upon this subject, in Williams his Reading upon the Statute 35 H. 8. cap. 6.

4. Hundredorum: First, by the common Challenges propter de­fectum hun­drrdorum. Law in a Plea real, mixt, and personal, there ought to be four of the Hundred (where the cause of action ariseth) returned for their better notice of the cause; for Vicini vicinorum facta praesumuntur scire. And now since Littleton wrote, in a Plea perso­nal, if two Hundredors appear, it sufficeth; and in an Attaint, although the Jury is double, yet the Hundredors are not double. Secondly, If he hath either Freehold in the Hundred, though it be to the value but of half an Acre, or if he dwell there, though he hath no Freehold in it, it sufficeth: Thirdly, if the cause of the action riseth in Hundredors. divers Hundreds, yet the number shall suf­fice, as if it had come out of one, and not several Hundredors out of each Hundred. Fourthly, if there be divers Hundreds within one Leet or Rape, if he hath any Freehold, or dwell in any of those Hundreds, though not in the proper hun­dred, it sufficeth. Fifthly, if the Jury come de Corpore Comitatus, or de proximo Hun­dredo, where the one party is Lord of the No Hundre­dors. Hundred, or the like, there need no Hun­dredors be returned at all. Sixthly, if a Hundredor after he be returned, sell a­way his Land within that Hundred, yet shall he not be challenged for the Hundred, for that his notice remains; otherwise as hath been said for his insufficiency of Free­hold, [Page 148] for his fear to offend, and to have Lands wasted, &c. which is one of the Reasons of Law, is taken away. Se­venthly, he that challengeth for the Hun­dred, must shew in what Hundred it is, and not drive the other party to shew it. Eighthly, his Challenge for the Hundred is not simpliciter, but secundum quid; for though it be found that he hath nothing in the Hun­dred, yet shall not he be drawn, butremain praeter H. that is, besides, for the Hundred, and albeit he dwelleth, or have Land in the Hundred, yet must he have sufficient Free­hold.

Note, This challenge for want of Hun­dredors must be given in writing present­ly, and the other party is to demurr thereto, if opposed.

If a challenge be, that there is not any Hundredor returned, it may be averred to the Court, that there is not any sufficient within the Hundred, which is not within the Fee of the Plaintiff, although this be not returned by the Sheriff, and this be found true by Tryors, the Array shall be affirmed. 45. Ass. 1.

If the King be made party by aid prayer, and sufficient Hundredors do not appear nor are returned, yet the Pannel shall not be quashed, but a Tales of Hundredors shall [Page 149] be returned. But betwixt Common persons in such cases the Pannel shall be quashed, and this shall not be only a challenge to the heads. 25 E. 3. 43.

If the Sheriff return quod non sunt plures del Hundred, he shall take of the Hundred ad­joyning which shall be sufficient. 19 H. 6. 48.

If the Juror hath sufficient Land with­in the Hundred, although he doth not dwell within the Hundred, yet he is a suf­ficient Hundredor. 9 H. 6. 66. nay though he dwell in another County.

If he be not Hundredor at the return of the Venire, but be at the return of the Di­stringas, yet this doth not take away the challenge.

After four are sworn, or after a challenge At what time the Challenge must be. to the Polls, there can be no challenge for the Hundred. Rolls tit. Tryal 636.

Who shall be a sufficient Hundredor, See Williams his reading aforesaid.

If he dwell or have Assets, within the Leet, Rape, Franchise, or Vill, where the Venue is, he is a sufficient Hundredor.

If he hath Assets, in Rent, Common, of [Page 150] any sort Market, Fair, Piscary, Toll pas­sage, Leet, Office of Bayliwick, &c. he is a sufficient Hundredor; otherwise of an advow­son, &c.

3. Propter affectum: & this is of two sorts, either working a principal challenge, or to Challenges propteraffectum. 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 challenge is, when there is express favour, or express Principal Challenge. malice. First, without any Act of his, as if the Juror be of blood or kindred to ei­ther party, Consanguineus, which is com­pounded ex Con & sanguine, quasi eodem san­guine natus, as it were issued from the same blood; and this is a principal challenge, for that the Law presumeth that one Kins­man Kindred. doth favour another, before a stranger, and how far remote soever 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 nearer degree. For the words of the Venire facias, forbid the Juror to be of kindred to either party.

If a body politick or incorporate, sole or Bodies Poli­tick. aggregate of many, bring any action that [Page 151] 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 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, Affinity Affinity. hath in Law two senses. In its proper sense it is taken for that nearness that is gotten by marriage, 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 Marriage, is a principal chal­lenge, and equivalent for Consanguinity, when it is between either of the parties, as if the Palintiff 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 married the Daugh­ter of the Plaintiff, this is no principal chal­lenge, but to the favour, because it is not be­tween the parties. Much more may be said hereof, sed summa sequor fastigia rerum.

As if he hath formerly tryed the cause, al­though Peremptory Challenge upon Record. reversed by Error, or upon the same [Page 152] title; if the Record be not shewed, this chal­lenge is not peremptory. For he that grounds a challenge upon a Record, &c. ought to have the Record ready. 33 H. 6. 55. The Record ought to be exemplified. 21 E. 4. 74.

'Tis a good challenge to say the Juror was attainted in an Attaint, or Writ of Conspiracy, but attainder in a Writ of Forgery of false Deeds, upon the Statute 1 H. 5. 3. but 'tis upon 5 Eliz. 14. is not, because this Attainder is given of late time by the Statute 33 H. 6. 55.

In a Writ of Conspiracy 'tis a principal challenge, that the Juror was one of the In­dictors, and although the Tryal is now of the Conspiracy, and not upon the first point, viz. the Felony.

In Trespass if one justifie as Master, and the other as Servant; 'tis not a principal challenge to say the Juror pas­sed in the first issue for the Master, but he ought to conclude, & issint favourable. 18 E. 4. 12.

If two plead not guilty, and first one is­sue is tryed and then the other is tryed; 'tis no challenge to say the Juror tryed the other issue, and gave Damages, of which Dama­ges he shall be charged if he be attainted in an Attaint, for perhaps the Defendant will be found not guilty.

That the Juror is within the distress of a­ny Deins distress. of the parties, is a good cause of challenge. And so it is, if he be within the distress of any person concerned, although no party to the action. As within the distress of A. the Master of the Defendant who justifies as ser­vant to A. by reason of his Freehold; and the issue is sur le franktenemen [...]. So for him in reversion received, within the distress of the Tenant for life. And so in an Action by the Tenant for life, within the distress of him in reversion: these are good chal­lenges.

So in an Action by Dean and Chapter, within the distress of the Chapter, or one of the Chapter, are good challenges.

Consanguinity of the half blood is a prin­cipal Principal for Consanguini­ty. challenge: If the Juror be at the ninth degree, if it can be shewed it is good.

In an Action by the Dean and Chapter, or Major and Commonalty, Brother to one of the Comonalty, or to one of the Com­mons, is a good challenge: So to any per­son concerned in interest, although no par­ty to the action. As Cousin to the Patron, of the Parson &c. so in Attaint to one of the petit Jury.

But in an Ejectment, and Not Guilty [Page 154] pleaded; 'tis no challenge to the Array that the Sheriff is Cousin to the Lessor of the Plain­tiff: For it doth not appear that the Title of him in Reversion shall be in question, and he in Reversion is no party to the action. See it so adjudged upon Demurrer, Rolls tit. Tryal 653. But now in our feigned E­jectments it is otherwise, because the Title of the Lessor is only in question.

'Tis a good challenge that the Juror Princ [...]pal for Affinity. is Goss [...]p to the Plaintiff, & sic e converso; and so although the son be dead, for the spiritual affinity remains, and so is Curat of the Juror. That the Juror hath married the Sister of the party. That the Daughter of the Vncle of the Juror hath married the Vncle of the party. Cousin to the Wife of the party. These are good challenges although the Wife, &c. is dead, if her issue be alive; otherwise if she be dead without issue, for then the cause of the favour is determined.

But 'tis no challenge to say, the Juror is Brother to one who married the Sister of the party; nor that the Son of the party married the Sister of the Juror: because these are not parties to the action.

In Attaint 'tis a good challenge to the Ju­ror, that he hath married the Sister of the Wife of one of the petit Jury, for the Al­liance.

If a Juror declare the right of one party, Principal for favour. or give his Verdict before hand, or take mo­ney, this is a principal challenge: But if he promise a party, this is not a principal challenge, but for favour.

If the Action depending betwixt the par­ty Principal for malice. and Juror, be such as implyeth malice, this is a good challenge: but not if it imply no malice.

That the party hath an Appeal depending against the Juror, or the Juror against him, or Action of Battery. That they are in de­bate and wrangling, &c. are good challen­ges. Not actions of Debt, or Trespass, Quare clausum fregit, &c. Nor that the bro­ther, &c. of the party, hath actions against the Juror.

That the Juror was born out of the Kings Peremptory. Ligeance; for although he came into Eng­land an Infant, and is sworn to the King, yet he continues an Alien; and that he is Alien. outlawed, for then he is not legalis homo, are good challenges.

If the Juror says that he will pass for one For favour. party, because he knows the verity of the matter, this is no challenge: But if he says 'tis for favour, 'tis a good challenge, if the Tryors find he spoke for favour, and not for truth.

In an actioon betwixt the King and a par­ty, King. the Subject cannot take any challenge for favour, as in an Indictment of Barretry &c. the Defendant cannot challenge a Juror for favour to the King.

If the Record be in the same Court, it How Challen­ges shall be ta­ken of a Re­cord. need not be shewn, but if it be in another Court, it ought to be shewed; or else 'tis no principal challenge.

After the Array is affirmed, there shall At what time they may be taken. not be such challenge to a Juror which would have been a sufficient challenge to the Array. As 'tis not a good challenge that the Juror was impannelled at the denomination of a party, for this had been a good challenge to the Array.

If a man challenge a Juror for non-suffi­ciency of Freehold, and this is adjudged a­gainst him, yet he may challenge for favour. And this shall be tryed, 10 H. 6. 18.

If the, Jury upon finding of the principal do not tax the Damages, for which a Venire facias issues to the same Jurors to tax the da­mages, the parties cannot take any chal­lenge for a cause before the first Tryal. But for a cause arising after they may. And so against les primer Jurors.

The King cannot challenge a Iuror after King. he is sworn, unless it be for a Cause arising after he is sworn.

If the Defendant challenge the array In what cases he which challenges ought to shew the cause pre­sently. which is found against him, or he release the challenge and the array is affirmed, and afterwards he challenge a Iuror; he ought to shew the cause presently.

But if there be two Defendants, and one challenge the array, and afterwards both challenge a Iuror; the other shall not shew cause presently.

If any of the Iurors be sworn, and there be not sufficient, for which a Tales is grant­ed, and at the return one of the primer Iu­rors is challenged, the cause ought to be shewed presently, he being sworn before.

In an action between the King and a King. common person, as in an Indictment of Bar­retry, presentment of nusance, &c. the De­fendant if he challenges any Iuror, must shew the cause presently.

But in an Inquest betwixt the King and a stranger, the stranger need not shew the cause presently: For in this case, the King is as a common person of the Realm.

Cause ought to be shewed before the Tales be perused.

If both Parties challenge, although for several causes, as if one be for favour, and Treat. the other peremptory; yet the Iuror shall be drawn without shewing cause.

It may be in an Inquest before the She­riff In what In­quest a Chal­lenge may be. to enquire of waste, both to the Array and Polls.

But not in an Inquest of Office, as in a writ of inquiry of damages.

In a writ of Right a challenge may be to the Polls del 4 Chivalers return.

Not of Cosinage to the witnesses coming to try the deed in an Assise.

If one party challenge the Array which Tryal and Tryors of Challenges. is affirmed, and afterwards challenge a Iu­ror; he ought to shew cause presently, and this shall be tryed presently; but otherwise of the other, who did not take the Challenge to the Array.

The challenge of him who first challeng­ed, shall be first tryed: Although the first be for favour, and that of the others be riens deins H.

If the Venue be of two Counties, and both Pannels challenged, the Esliors shall be one of one pannel and the other of the other.

If the array be challenged, the Court to try the array may chuse two Tryors, ac­cording to their discretion. 20 Ass. 15. 19 H. 6. 9.

If an action be depending between the Ju­ror What chal­lenge they may try. and one of the parties, and for this he is challenged, and the other says that this is brought by Covin; the Tryors may try this: for although the action is of record, yet the Covin is not.

The Juror may be examined upon a voier Evidence. dire, to any challenge that is not to his dis­honour; but the Tryors are not bound by his Oath.

The tryors after they are sworn may go at large by assent of the parties until another day.

In trespass against two who plead to In what cases a challenge or affirmance by one shall serve for o­thers, issue, and a Venire facias is returned, although one accept the Array, yet the other may chal­lenge it, and if it be found, the Array shall be quashed against all. So in an Appeal against Principal and Accessory, for one shall not disinherit the other.

But in an Appeal by two, if the Defen­dant challenge a Juror, and one of the Plain­tiffs agree to this; the other shall not be re­ceived to say that this is by Covin, but the Juror shall be drawn in favour to the life of man.

And yet in a Pr [...]cipe quod reddat by two, and the Tenant challenge the Array, because the Sheriff is Gossip to one of the Demandants, and one Demandant acknow­ledge the challenge, the other may say that this is not so, and have it tryed. Rolls tit. Tryal 662. &c.

In Gager de ley none shall be challenged Ley gager. for favour or insufficiency &c.

If there be a challenge for Cosinage, he Cosinage. 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 formal.

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

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

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

Vpon his own Act, as if the Juror hath Challenges a­rising from the Jurors own Act. 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 Former Ver­dict. same Title or matter, though between other persons. But it is to be observed, that I may speak once for all, that in this or other like Cases, 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 term.

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

If the Juror be Godfather to the Child of God father. the Plaintiff or Defendant, or è converso, this is allowed to be a good challenge in our books.

If a Juror hath been an Arbitrator chosen Arbitrator. by the Plaintiff or Defendant, in the same cause and have been 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 Commission­er. chosen by one of the parties, for ex­amination of Witnesses in the same cause, is no principal cause of challenge; 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.

Arbitrator in another matter is no cause of challenge.

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

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

Action brought either by the Juror against Actions of malice. either of the parties, or by either of the par­ties against him, which may imply malice or displeasure, are causes of principal chal­lenge, unless they be brought by Covin, ei­ther [Page 163] before or after the return; for if Covin 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.

In a cause where the Parson of a Parish Parson and Parishes. 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 Action where the right of the Church cometh not in question.

If either party labour the Juror, and give To labour the Jury. him any thing to give his Verdict, this 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 Servant with Fellow Ser­vant. either party, is no principal challenge but to the favour.

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

Note, if the Defendant may have a prin­cipal cause of challenge to the Array, if the Sheriff return the Jury, the Plaintiff in that Venire facias to the Coro­ners. case may for his own expedition, alledge the same, and pray Process to the Coroners, [Page 164] 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, when Challenges to the favour. either party cannot take any principal chal­lenge, but sheweth causes of favour, which must be left to the conscience and discretion of the Tryors, upon hearing their evidence to find him favourable or not favourable. But yet some of them come neerer to a principal challenge than other: As if the Juror be of kindred, or under the distress of him in the reversion or remainder, or in whose right the Avowry or Iustification is made, or the like: These be in principal 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, Receipt, 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 Favour. are infinite, and thereof somewhat may be gathered of that which hath been said, and the rest I purposely leave the Reader to the [Page 165] reading of in our books concerning that mat­ter. For all which the rule of Law is, that he must stand indifferent as he stands un­sworn.

The Subject may challenge the Polls, King. where the King is party. And if a man be out-lawed of Treason or Felony, at the Suit of the King, and the party for avoiding thereof alledgeth imprisonment, or the like, at the time of the Outlawry, though the issue be joyned upon a collateral point, yet shall the party have such challenges, as if he had been arraigned upon the crime it self, for this by a mean concerneth his life also.

Propter delictum, As if the Juror be at­tainted Challenges propter deli­ctum. or convicted of Treason, or Felony, 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 stigmatised, or to have any other corporal punishment whereby he becometh infamous, (for it is a maxime in Law, Repellitur à sacramento infamis) Infamous. these and the like are principal causes of challenge. So it is if a man be outlawed Outlawed. in Trespass, Debt, or any other action, for he is Exlex, and therefore is not legalis [Page 166] homo. And old Books have said, that if he be excommunicated, he could not be of a Jury.

A Bastard may be of a Jury, yet may be Bastard. challenged if he be of Kindred. Jenk. Cent. 1. Cap. 90.

Sée the Statutes of W. 2. and Artic. supra chartas, what persons the Sheriff ought to return on Juries. And see F. N. B. breve Who ought to be on Ju­ries. de non ponendis in Assisis & juratis; and the Register in the same Writ. And see 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. First, At what time Challenges must be taken. he that hath divers challenges, must take them all at once, and the Law so requireth, indifferent Tryals, 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 challenge him. Thirdly, af­ter challenge to the Array, and Tryal du­ly returned, if the same party take a chal­lenge to the Polls, he must shew cause pre­sently. Fourthly, so if a Juror be former­ly sworn, if he be challenged, he must shew cause presently, and that cause must rise since he was sworn. Fifthly, when the King is party, or in an appeal of Felony, the De­fendant [Page 167] 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 Hundredors. serve for Hundredors, or else he loseth the advantage thereof.

In a Writ of Right, the grand Jury must Writ of Righ [...] 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 The Array of the Tales. be challenged by any one party, until the Array of the principal be tryed; but if the Plaintiff challenge the Array of the principal, the Defendant may challenge the array of the Tales. After one hath taken chal­enge to the Poll, he cannot challenge the array.

Now it is to be seen how challenge to the array of the principal 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 [Page 168] to the Coroners; if any cause against any of the Coroners, Process shall be award­ed Coroners. to the rest; if against all of them, then the Court shall appoint certain Elisors, or Esliors (so named ab eligendo) because they Elisors. are named by the Court, against whose re­turn, no challenge shall be 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 intromit­tat. But otherwise it is, for that he was Tenant to either party, or the like.

If the array be challenged in Court, it Array. shall be tryed by two of them that be im­pannelled to be appointed by the Court: for the tryors in that case shall not exceed Two Tryors. the number of two, 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 demurr to a challenge, the Iudge before whom the cause is to be Demurr to a Challenge, how deter­minable. tryed, may determine it, or adjourn it to be heard another time. Stiles 464. Vide Bulstr. 1. part. 114.

If a Pannel upon a Venire facias be re­turned, Array of the Principal and Tales. and a Tales, and the array of the principal 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 been no appearance of the principal 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 principal, & the Defendant the array of the Tales, there the one of the principal, & the other of the Tales shall try both arrays. For other matter concerning the Tales, see in Cooks 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 he and the two Tryors shall try another: and if another be tryed indifferent, and he be sworn, then the two Tryors cease, and the two that be sworn on the Jury shall try the rest.

If any of the Jury, after some of them be sworn, be challenged, those that are sworn are to say, whether he that is challenged be in­different Tryals of challenges. or not. But if the first or second man be challenged, then the Court doth use to appoint some of them, (who it pleas­eth), that shall be afterwards sworn to try the indifferency of the person challenged.

[Page 170] 1. All challenges must be taken before Rules con­cerning Challenges. the Jurors are sworn.

2. If one challenge a Juror, and it be found against the challenger, he may not challenge the Juror for a second cause.

3. If one challenge the array and it be found against him, he may not afterward challenge any of the Polls, without shew­ing cause presently, and this shall be tryed presently.

4. No challenge shall be admitted a­gainst the Tryors, appointed by the Court.

If the Plaintiff challenge ten, and the De­fendant one, and the twelfth is sworn, be­cause Tryal of Challenges. one cannot try alone, there shall be added to him one challenged by the Plaintiff, and the other by the Defendant. When the Tryal is to be had by two Counties, the manner of the tryal 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 Assise, and try the challenges of the parties. If the cause of challenges touch the dishonour, or dis­credit of the Juror, he shall not be exami­ned upon his Oath; but in other cases he Juror exa­mined. shall be examined upon his Oath, to inform [Page 171] 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 View. per visum juratorum, there ought to be six of the Jury that have had the view, or known the Land in question so as he be able to put the Plaintiff in possession, if he reco­ver.

In Proprietate probanda, and a Writ Challenges. to inquire for waste, the parties have been 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. 1 Inst. 157, 158.

Treat doth signifie as taken out or with­drawn, Treat what. and is applied to a Juror, that is withdrawn by consent, or removed and discharged by challenge.

A Juror sick was withdrawn, and another sworn. Palmers Reports 411.

If the Defendant do not appear at the try­al Challenge lost. when he is called, he loseth his challenge [Page 172] to the Jurors although he doth afterwards appear.

'Tis a good challenge to a Juror to say he A wrong name. is returned by another name in the Pan­nel.

A Juror appeared and said he had no No Freehold. Freehold, and prayed that he might not serve, yet the Judge would not spare him; for he may have an action against the Sheriff for returning him. Rolls 2 part. Reports 483.

CAP. The Challenge pro defect. Hundred, must be written in Parchment, and t [...]e Council must arraign it in French, upon which the Defendant may take issue or demur. The Clerk or Associate in Court must call the Ju­ry over, and ask if they have any Lands within the Hundred, or had at the time of the Array of the Pannel, and whether they dwell, or did dwell, in the same. And upon examination if it appear clearly, that they have no Lands or Tenements, nor dwell in the Hundred; then the Clerk is to mark them by the side of every of their names thus [pr [...]ter Hundred] but if he find there be two Hundredors, he is to resort back to the prae [...]er Hundred. and swear them in or­der. So that you see the Tryal whether Hundredors or not, is determined by the Courts examination by the Poll severally. But if the Council demur, and the other side joyn in demurrer, the Iudge of Assises may affirm the Challenge, and over-rule the Demurrer, or allow the Demurrer good, and proceed to the Tryal of the Cause; or if the Iudge doubt, it may be determined in Bank, but this is great delay. If the chal­lenge be adjudged good, the Court awards, Que le pannel il soit casse.

At Common Law there ought to have been In Cities, Cor­porations, Burroughs, and Towns, and Counties, this Challenge cannot be. 4 Hundredors returned and appeared in all actions pro meliori notitia causae in controver­sia, for vicini vicinorum facta scire praesumun­tur. [Page 2] But by the Statute 35 H. 8. ca. 6. six are to be returned and appear. But since by the Statute 27 Eliz ca. 6. if two Hun­dredors be returned and appear, it is suffici­ent in all personal actions: But in real acti­ons there must be six, or else Remanet pro defectu Jur.

The Court shall appoint two Tryors in a challenge to the Poll, and if they find two indifferent the first Tryors shall be discharg­ed, and the two that are found indifferent, being sworn to try the Issue, shall also be sworn to try the rest of their Fellows.

At Common Law there used to be return­ed 24 upon the Venire, and afterwards a Habeas corpora with a Decem Tales, and if a full Jury did not appear or were challeng­ed, then a Distringas with an Octo Tales, and so to the Duo Tales, if there was not a Tales de cir­cumdantibus may be in the case of Aliens. full Jury. And this was the course until the Statute 35 H. 8. which gives the Tales de circumstantibus at the Assises, &c. and by the Stat. 5 Phil. & Marie ca 7. where the King, Queen, or Informer, &c. are parties.

A Challenge may be taken to those of the Tales de circumstantibus.

By the Statute 33 Ed. 1. The King and those who prosecute for him, must shew their cause of Challenge, as betwixt party and [Page 3] party, and left to the discretion of the Iusti­ces.

The King or any one authorised for him may release his challenge. Where the par­ty may challenge, the King may challenge.

'Tis no challenge to say, the Juror is the Kings Tenant, or that he is favourable to the King, but 'tis good to say, the Sheriff or Juror bears grudge or malice to the Defen­dant where the King is party. If the Juror hath any Freehold 'tis sufficient, although not to 40 s. a year: For the Statute which injoyns that, speaks only betwixt party and party.

The first, who challenges be he Plain­tiff or Defendant, shall have the preference and advantage of his challenge. If a Juror be once challenged and withdrawn upon the principal; he cannot serve upon the Tales, if he doth 'tis Error, and Iudge­ment may be stayed. And so if he be challenged, and a Jury remain pro de­fect. Juratorum, if he be sworn upon a new Distringas, 'tis Error, not helped by any Statute of Jeofailes, and a mis-tryal and a Venire facias de novo may be awarded. Cro. Eliz. fol. 429. Whitbys Case.

Elisors may be sworn in some cases to return and impannel all Juries, as should [Page 4] upon any Venire facias, Habeas Corpora or Distringas Jur. come to their hands impar­tially, indifferently and without favour or af­fection, or at the denomination of any person.

The Record of Attainder Conviction, Excommunication Outlawry, &c. or a Copy thereof ought to be produced, to prove the cause of challenge thereupon.

Where bodies politick or Corporate are concerned, a challenge may be taken which arises from the individuals, as Brother to one of the Prebendaries, is a good challenge where the Dean and Chapter are parties, &c. Hob. 87. so a Parishioner, where the right of the Church comes in question at the Suit of the Parson. 17. Ass. 15.

In High-Treason, the prisoner may pe­remptorily challenge to the number of 35. which is under the number of 3 Juries but in Petite Treason, murder or Felony the number is reduced to 20. The prisoner may challenge any that are Witnesses against him.

Where the King is party the Defendant must shew the cause of his challenge in­stantly.

After a challenge for cause, the prisoner may challenge the same person peremptorily.

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

THe next words in the Writ, which See more of this matter, cap. 13. have not yet been taken notice of, are these, per quos rei veritas melius sciri poterit; and this is the chief end of their meeting to­gether: No Court can give a right Iudge­ment, Ex facto Jus oritur. unless the truth of the fact be cer­tainly known; and to find out this truth, no way is like to this of Juries: for they do not only go upon their own knowledge, though they are Neighbours to the place where the question is moved, and so are presumed to have a better know­ledge of the fact, than any others; For vicinus facta vicini praesumitur scire; But lest this presumption should fail, the Law allows other Evidence to be given to them, [Page 174] 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 Inquest may inquire of, and find.

Wherefore, though it be true, that a Jury shall not be charged, nor meddle with Of the Law. a matter of Law; and if they do, and find 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 general Verdict; though to find the special matter is the safest way for them, because, if they mistake the Law, they run into the danger of an Attaint.

In the Case of Manby and Scott, adj. Trin. 13 Car. 2. B. R. one question was if the Verdict was well found, in an action of the case against the Husband for Wares bought by the Wife; the Verdict finding, that the Wares were necessaries, and according to her degree, whereas (as was objected) they ought to have found the degree of the party, and the value of the Wares and left it to the Court to judge.

But it was answered and resolved that the Court. i. e. the Judge before whom [Page 175] 'tis tryed informs the Jury of the matter of Law, and accordingly they find, and so it be­longs not to this Court.

Broughton a Reader of the Temple brought a Bill by Quo minus in the Che­quer against Prince for maintaining a suit against the Stat. &c. Prince pleads that he was admitted in the Inner Temple, and stu­dent for many years there, that he was Consiliarius, in Lege eruditus, and took his Fee in that cause. B. replied, de Injuriâ suâ propriâ absque hoc quod in lege eruditus, &c. & hoc petit &c. & deus defendit similiter.

It was moved that the Defendant should demurr to the Replication. Atkinson, excep­ted to the Traverse and Conclusion; for it can't be tryed by a Jury; for (says he) if matter in Law be to be tryed by the Judges, à fortiori, the learning of the Law ought to be tryed by them.

Per Manwood Ch. Baron, It shall be try­ed by the Country. 3 Leo. 237. Brough­ton vers. Prince; which case is cited 3 Cro. 728. to be otherwise ruled, yet, it was al­lowed there a good issue, whether a Parson of a Parish could speak Welch.

Hut. 20, 21. Whether a plaint was le­vied according to the Custom, was tryed by a Jury, who are directed by the Court, as [Page 176] to the plaint, and whether it were pur­suant to the Custom, and are to find accor­ding to such directions.

In many cases, the Jury are to inquire Of a mans intent. of the knowledge and intent of a man, as where the Nar. is, that the Defendant kept a Dog which killed the Plaintiffs Sheep, s [...]i­ens canem suum ad mordendos oves consuetum; though sciens be not traversable, yet the Jury upon Evidence must inquire of it. lib. 4. 18.

In some cases, a Jury may try and find a spiritual thing, as a Divorce, Matrimony, Of spiritual things. &c. and must take notice thereof, upon pain of Attaint. li. 4. 29. lib. 9. lib. 7. 43. vide hic cap. 2.

The Jurors of one County, may find any transitory thing done in another County: Nay In Trespass Quare Clausum fregit, in the County of D. where the Tres­pass was committed in the County of S. upon Not guilty, if the Jury find the Defendant guilty in the County of S. their Verdict is void. But if they find him Guilty gene­rally, an Attaint lyeth. Finch. 400. Because this Trespass is local; and what is local cannot be inqured of by men of another County, for they can have no conusans of it. some times they must find local things in another County; as if the Heir pleads riens per discent, and the Plaintiff replies, Assets in a Parish and Ward within London, the Jury may find Assets in any County; in the same case against an Executor, who pleads plene administravit; the Jury may likewise find Assets in any part of the world. And the Reason is, because the place is only [Page 177] named for necessity of tryal. But where Of things done in an­other Coun­ty or Coun­try. Vide cap. 8. 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 breach, the Jury ought to come from the place of the breach. But if I promise in London, to do a thing at Burdeaux in France, and issue upon the breach, yet this shall be tryed in London for necessity, because o­therwise it would want tryal, 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 Rolls tit. Try­al fol. 571. 624. beyond Sea, this wants tryal in our Law. lib. 6. 47. li. 7. 23, 26, 27.

In the Case of Drake and Beere. Trin. 15 Car. 2. B. R. this difference was a­greed by the Court, viz. That a Jury in an Inferiour Court may inquire of things out of the Iurisdiction, if they be but for en­crease of Damages, as is 1 Cro. 571. Ire­land vers. Blackwell, but if they inquire of any thing issuable out of that Iurisdiction, it is nought, 1 Cro. 101. 2 Cro. 503.

Error was brought to reverse a Iudge­ment given in the Palace Court, in In­debitat. for that the Defendant was indebt­ted to the Plaintiff Infrà Jurisdictionem for Nursing of a Child, not saying the Nur­sing was Infra Jurisdictionem.

[...] Windam Just. held it good, for that it is a debt every where, and not like a debt that ariseth by matter collateral: But Twisden [...]ust. doubted. Whitehead vers. Browne. Pasch. 15 Car. 2. B. R.

The Jury may find Estoppels, as the ta­king Estoppels. When the E­stoppel is found, the [...]ourt may judge accor­ding to the e­ [...]pecial mat­ter. of a Lease of a man's own Land, by Deed indented; or the delivery of a Deed before the date, as in Debt by an Admini­strator upon a Bond dated 4 Aprilis, 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 find that the Bond was delivered the 3d of April, because they are sworn ad veritatem dicen [...]um; though the parties are estopped to plead a Deed was delivered before the date; but they may plead a delivery after the date, because it shall never be intended, that a Deed was delivered before the date, but after it may.

But if the Estoppel, or admittance be Estoppels. within the same Record, in which Issue is joyned, then the Jurors cannot find [...]ny thing contrary to this, which the parties have affirmed, and admitted of Record, though it be not true: For the Court may give judg­ment upon matters confessed by the parties; and the Jurors are not to be charged with a­ny such thing, but only with such in which [Page 179] the parties vary. li. 2. 4. li. 4. 53. Co. Lit. 227.

A Decree in Chancery shall be tryed by a Decree. Jury, and not by it self; for it is not a Re­cord, but a Decree Recorded. The Chan­cery, as it is a Court of Equity is not a Court of Record: But touching things agitated in the Petty Bag Office, it is a Court of Re­cord.

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

Null tiel Record is not to be tryed by a Ju­ry, but upon the general issue, &c. they may find a Record.

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

Where a Collateral Warranty binds, this may well be given in Evidence: For al­though [Page 180] it doth not give a right, yet in Law this shall bar and bind a Right. Lib. 10. 97.

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

See also in Chap. 13.

CAP. XI. Evidence and Witnesses.

EVidence, Evidentia: This word in le­gal Evidence. understanding (saith Coke 1. Inst. 283.) doth not only contain matters of Re­cord, as Letters Patents, Fines, Reco­veries; Inrollments, and the like, and writings under Seal, as Charters and Deeds, 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 be­tween the parties: And it is called Evidence, because thereby the point in Issue is to be made evident to the Jury: Probationes de­bent esse evidentes (id est) perspicuè & facile intelligitur.

And this Evidence (with Bracton) we may term probatio duplex, viz. viva, as [Page 182] Witnesses, vivâ voce; and Mortua, as by Deeds, Writings, and Instruments; and violenta praesumptio, in many cases, is plen [...] probatio, and therefore if all the Witnesses to a Deed be dead, then the Deed shall re­ceive Credit; per collationem sigillorum scri­pturae, Presumption. &c. but especially if there hath been a continual and quiet possession; which is a violent presumption. 1 Inst. 6. for no man can keep his Witnesses alive.

If a thing be generally referred to proof, Proof. this shall be intended proof by Jury; but if o­ther manner of proof be agreed upon, that shall take away the proof which the Law ge­nerally intends by Jury: Hob. 127. As if I promise to pay what mony you prove B. bor­rowed; this may be proved in the same acti­on brought upon the promise. Vide Rolls tit. tryal 594, 595.

Men that are so branded with Infamy, Witnesses. that they cannot be Jurors, (for which see be­fore, who may be Jurors) cannot be Wit­nesses; yet per Glyn Ch. Just. and Newdi­gate Just. Mich. 1657. B. R. Conviction of common Barretry hinders not from being a witness, but Maynard, Sergeant, held strongly against it.

At Lent Assises, Suff. 1657. St. John Ch. Just. C. B. would not allow one who had been whipped for petty Larceny, to be a Wit­ness; [Page 183] but Earl Sergeant said, they ought to be stigmatici that are disabled from being Witnesses: Yet per Roll. Ch. Just. one burn­ed in the hand for Felony, may be a Wit­ness; for he is in capacity to purchase Lands, and his fault is purged by his punishment. Stiles 388.

The Wife cannot be a Witness for, or Who may be Witnesses. against her Husband, 1 Inst. 6. that is in case of a common person between party and party, but between the King and the party, on an Indictment she may, although it con­cerns the Feme her self, as in the Lord Audley's Case, Hutt. 116. So she may have the Peace against her Husband.

And so it was resolved in John Browne's Case, Trin. 25 Car. 2. B. R. on the Stat. of 3 H. 7. cap. 2. vid. 1 Cro. 492.

The King cannot be a witness by his Letters under his Signet manual: One attained of Piracy cannot be a witness to prove another guilty. If he accused another before he was attainted, and afterwards con­fesses he wronged him, this confession shall be rejected, because he is attainted. A wo­man cannot be a witness to prove a man to be a Villain. Co. Lit. 6. 8.

Neither can the party to the usurious Con­tract, be a Witness against the Vsurer, in [Page 184] an Information upon the Statute of Vsury. But Kinsmen never so near, Tenants, Ser­vants, Masters, Counsellors, and Attor­neys, &c. may be Witnesses. A Counsellor may be a Witness to the Agreement, &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 less if he accept it) do not appear to give his testimony, he forfeits 10 l. to the party damnified, and must recompence his dama­ges. 5 Eliz. 9. If a Witness commit wil­ful perjury, he loseth 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.

A party robbed is allowed a good witness in his own action against the Hundred, for he is not bound, nay is to be blamed, to tell any one what charge he carries with him; and if he should not testifie, the Law would be often fruitless for want of Evidence, or else more Robberies committed by the parties discovering his money.

In the Case of Brereton and Tatam, Mich. 1656. B. R. Glyn. Ch. Just. Cited the Lord Chandoi's Case in this Court, where one Gates an Executor was produced to prove the Will as a witness, to which he (as Coun­sel) [Page 185] excepted, because of his Executorship. It was answered that he had fully admini­stred: He replied, the Assets might after­ward come to his hand; but the [...]ourt re­solved that it would not be presumed to barr his Testimony, which was allowed in the principal Case, being in [...]j [...]ctment.

It's no good exception to a Witness that he hath common per cause of Vicinage in the Lands in question, because its but an excuse of Trespass, and no interest. Clapham's case. Mich. 1657. B. R.

The same of common of Shacke.

If Obli [...]ee devises the debt to the Obligor, and [...] Executors deliver up the Bond in sat [...]action of the Legacy which is cancell'd, and after the validity of the Will is question­ed, viz. whether the Testator was compos, &c. the Obligor is a good witness for the will, be­cause by the cancelling of the Bond his debt was discharged. But Contr. in case of a Mortgage, for though the deed be cancelled, if it be no good will, he must pay the mony. Goodman vers. Turbervill. Mich. 1657. B. R.

An Action was brought by the Corporati­on of the Weavers of Norwich, for a penalty against a Weaver for workign in his Trade in Harvest time, contrary to an Ordi­nance [Page 186] by them made. And Atkins, Just. al­lowed one of the Corporation to be a witness, though one moiety of the penalty was due to the Corporation. Lent Assise 1657.

In a Tryal at Bar, where an Estate for Life is limited to I. S. remainder to the poor of the Parish of Greenwich by Will; the In­habitants of Greenwich were allowed to be witnesses to prove the Will. Townsend and Roane Mich. 1658. B. R.

An Action of Debt was brought, Summer Ass. Suff. 1669. by the Town of Ipswich for 50 [...]. a Fine set on one chosen Common Council Man (called their prime Constable) for refusing to renounce the Covenant, &c. And the Town-Clerk (though a Freeman) was allowed a witness to prove Election, Refusal, &c. and the Fine set, which is for necessity, for that none other are or ought to be present at those Acts. Rainsford Just.

Per Hale Ch. Just. Norf. Summer Ass. 1668. A Freeman of Lynn is not an allowable wit­ness to prove the custom of Foreign bought and Foreign sold in that Town. Harwich vers. Twels.

As to Witnesses priviledges:

One was sub-poena'd ad testificandum, and prayed a priviledge from being arrested, [Page 187] which was granted, and per Cur. it will su­persede an Arrest on mean process, but not upon an Execution; yet the Sheriff in that Case may be committed for his Contempt. Hen. Nevil's case Mich. 15 Car. 2. B. R.

Detaining of Witnesses:

Sir Jo. Jackson was Convict on an In­formation for preventing of Evidence to be given on an Indictment of Perjury against Fenwick and Holt, who had been witne [...]es for Sir J. J. he arrested some witnesse [...], and gave mony to others and so they w [...]re ac­quitted: He was fined 1000 Marks, 1 [...]ths imprisonment, behaviour for 12 months. Hill. 1663. B. R.

Proofs to determine matter of Fact, and Proo [...]s. to be offered to a Judge and Jury, are of two sorts. First Living, as by Witnesses, and to a Jury one witness is sufficient. And Dead, as matters of Record, as Let­ters Patents, Fines, Recoveries, In­rollments, &c. Writings sealed and deli­vered; as Feoffments, Leases, Releases, &c. And without Seal, as Court-Rolls, Accounts, &c. And if the Case be between the King and a Prisoner, he is first to say what he can himself, and then all that can say any thing against him are to be heard upon Oath, and then others may be heard for him, but not upon Oath: And according [Page 188] to this Evidence on both sides, or without any Evidence at all, the Jury are to give their Verdict, according to their knowledge and Oaths.

Such persons as are infamous, as are persons attainted of Felony, or of a false Verdict, or of a Conspiracy, or of Perjury, or of Forgery, upon the Statute of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. and such as have had Iudgment, to lose their Ears, or stand on the Pillory or Tum­brel, or have been stigmatized or branded, and Infidels, Men not of sound memory, or not of discretion, or such as are interested in the cause, or have benefit, are not competent witnesses. Co. 1. Inst. 6. but we see Jews are daily admitted witnesses.

An account given to and allowed by the Plen [...] Admini­stravit. Ordinary, is not good Evidence; nor a Pedigree by a Herald of Arms, to prove an Pedigree. Heir, but it must be proved by Deeds, Re­cords, or Witnesses.

If the issue be a Recognizance or not, a Recogni­sance. Recognizance with a defeasance is good E­vidence. Plo. 14. So of an Agreement, Agreement. a special Agreement will prove it. Plo. 8.

A Licence to alien Land, or a pardon for alienation of Land, was held by a common Tenure in Ca­ [...]ite. presumption, to be a good proof that the Land was held in capite.

A thing which is concluded in the Ecclesi­astical Ecclesiastical proceedings. Court, which doth concern Lands, is not to be given in Evidence; for the Courts of Common Law are not to be guided by their proceedings.

Ancient Deeds may be given in Evidence, Ancient Deeds. although the execution of them cannot be proved.

He that takes out a Copy of part of a Re­cord, Copy of a Re­cord. must at least take out so much as con­cerns the matter in question, or else the Court will not permit it to be read.

If one produce [...] Lease made upon an Outlawry. Outlawry, in Evidence to a Jury to prove a Title, he must also produce the Outlawry it self.

To prove a Feoffment a Deed of Feoffment, Feoffment. is shewed, but no Livery is indorsed, if pos­session has gone with the Deed, it is good Evidence. Rolls Reports 1. part 132.

Vpon Not Guilty to an Information upon Proviso. a penal Law▪ a Proviso to excuse him may be given in Evidence. Jones Reports 320.

If a man prescribe in a non decimando Non deciman­do. generally, he cannot give a Bull in Evidence. Palmers Reports 38.

A Deed with the Seals torn off was ad­mitted Deed. to declare uses. Palmers Reports 403, 405.

Records prove themselves, and cannot be Records. 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, or common Recovery, may be Fine. 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 usual Evidence that there is such a Fine, though they which saw the Fine, are also good Evidence. Plow. 410. Stiles 22.

Depositions in the Ecclesiastical Court Depositions. 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. By order of Court the Depositions taken of a Sick Witness may be given in evi­dence.

As upon plene administravit, if it be proved Assets. that the Executor hath goods of the Testa­tors [Page 191] in his hands, 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. Dyer. 2.

So if a Lease be pleaded, a Lease upon Lease. Condition is good Evidence. 1 H. 8. 20. because the Genus comprehends the Species. So of a Feoffment pleaded, a Feoffment upon Condition, or a Fine which is a Feoff­ment of Record, is good Evidence. 44 E. 3. 39. A special agreement is evidence for an agreement. Plo. 8.

But if a Feoffment be pleaded in Fee, Feoffment. upon issue non feoffavit modo & forma, a Feoffment upon Condition is no Evidence, because it doth not answer the issue; and wheresoever Evidence is contrary to the issue, and doth not maintain it, the Evi­dence is not good. 11 H. 4. 3. Feoffments 41. agreement in reversion is no evidence but a Lease and Release is. 20 H. 7. 5. If the Indorsment be of a Livery by Attorney, the Letter of Attorney must be shewed.

Vpon an Assumpsit to the Husband, an Assumpsit. Assumpsit to the Wife, and his agreement, is good evidence. 27 H. 8. 29. upon non as­sumpsit to a special promise, payment is no evidence per 3 Iudges.

In challenge to the array, because made Challenge. 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 in a Suit against an Ex­ecutor, Assets. Administrator, or Heir, Assets in London; to prove Assets in another place, is sufficient. Li. 6. 47. Dyer 271.

Accompt pleaded before two; Ac­compt 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, which proves the Plaintiff hath no cause of action, What Evi­dence upon the general issues. or which doth intitle the D [...]fendant 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; but he cannot give in Evidence that the goods were pawned to De [...]inue. him for money, and that it is not paid, but he must plead it. 1 Inst. 283. For the property is in the pledger.

Vpon Not guilty, in Battery, Son assault In Battery. demesne, is no Evidence; for thereby the Battery is confessed. Ib. neither is Not Guilty, good Evidence upon Son assault demesne:

Vpon Not Guilty, in Trespass, Insuffici­ency Trespass. of the Plaintiffs mounds, or to justifie for a Rent-Charge, Common, Licence, Son assault demesne, or the like, is no good Evidence. Ib. but to prove a Trespass before or after the day laid in the Declaration is good. 1 Inst. 283.

So upon the Plea, Nul Wast fait, in an Wast. Action of Wast, he may give in Evidence any thing that proveth it no Wast, as by Tempest, by Lightning, 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, 'Tis no Evidence, to Non est factum. shew the Bond that 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 several, or delivered at another place; 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 Deed; delivered as an Escrow, &c. this is 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 Jury may find it spe­cially.

To prove the Sealing and delivery of a Deed, and not know the party that did it, is not good evidence; but if he knows the party upon sight of him, it is good enough. Kelw. 59.

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

Vpon plenè Administravit, the Executor Plenè Administra­vit. cannot give a Iudgement in Evidence. Kelw. 59. nor payment of Debts by Contract, in Debt brought upon an Obli­gation. A Cup pawned and redeemed with the Executors own money, is good Evidence; but a recovery ought to be pleaded: upon nil debet, in Debt for Rent, That the Lessor entred into part of the Land, is no good Evidence. Golds. 81. But non de­misit, i [...], 9 H. 7. 3.

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

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

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

In Debt for Arrerages of an accompt up­on Accompt. Nil debet modo & forma; No accompt is good Evidence. 2 H. 6. 26. Vpon Not guil­ty in Trespass, a Lease for years, 12 H. 8. 2. or that locus in quo, &c. is the Free­hold Trespass. of another, 4 E. 3. 45. is good Evidence; but upon this he cannot justifie his entry up­on the place by a strangers Licence, or Com­mand, Br. general issue 81. because this is a justification by way of excuse: Neither is a Lease at Will, good Evidence in this case.

So upon Not guilty, in Trespass for Not guilty in Trespass. 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. general issue 81. because the Tres­pass [Page 196] is confessed. But that the stranger gave them to the Defendant is good. 9 H. 6. 11. In Trespass the Buttals must be proved as they are laid.

If the Defendant plead payment to a Bond Payment by presumption. or Bill, and it appears the Debt is very old, and it hath not been demanded, nor any use paid for it many years, common presump­tion is good evidence, that the money is paid, and the Juries use to find for the De­fendants, in such cases.

If the Trespass were in truth done the 4th. Trespass ano­ther day. of May, and the Plaintiff alledgeth the same to be done the 5th. of May, or the first of May, when no Trespass 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 Deed. Jury by Witnesses, that there was such a Deed, which they have seen or read, or prove the Deed by a Copy, because the Deed may be upon Condition, Limitation, or power of Revocation; and if this should be permitted, the whole Reason of the Com­mon Law, in shewing Deeds to the Court, would be subverted; for the Deed might be imperfect, and void, which the Witnesses could not perceive; yet in cases of extremity, as where the Deed was burned, or lost by [Page 197] some other notorious accident, the Judges may at their discretion, allow them to be proved by Witnesses. li. 10. 92. and so of a Record.

In Case against an Executor; whereas Executor. the Testator was indebted to the Plaintiff, th [...] 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, upon the issue neunques Executor to prove an Administration granted to him, is good evidence. Dyer. 305.

Evidence shall never be pleaded, but the Evidence. matter of fact shall be pleaded, and if it be denied, the evidence shall be given to the Jury, not to the Court. lib. 9. 9.

Evidence, that the Wife of every Copy­holder, shall have the Land durante vidui­tate, will not maintain the issue, that the Custom of a Mannor is, that she shall have the Land during her life, af­ter Estate for life. her Husbands death, because, though durante viduitate, imports an Estate for life, yet an Estate durante vita, is more large and beneficial. li. 4. 30.

Things done before the memory of man, What may be given in Evi­dence. in another County, or in another King­dom, [Page 198] may be given in Evidence to a Jury, as Assets in another County, &c. More 47. See li. 4. 22. 9. 27. 28. & 34. li. 6. 46, 47.

Vpon issue, payment at the day; pay­ment Payment. before or after the day, is no Evidence. More 47. but upon Nil debet, it is good Evidence, because it proves the issue.

Vpon issue, Assets or no Assets, or seised, or not seised, if one give a Feoffment, &c. in Evidence, Covin may be given in Evi­dence, Covin. by the other, but not if the issue be infeoffed, or not infeoffed, for it is a Feoff­ment tiel quel, though made by Covin. li. 5. 60. Hob. 72.

The Book of Doomesday brought in Doomesday­book. Court, is good Evidence to prove the Land, to be ancient Demesne. Hob. 188.

In Attaint, the Plaintiff shall not Attaint. give more evidence, nor examine more Witnesses, than was before, but the De­fendant may. Dyer 212.

Copies of the Court-Rolls, are the on­ly Court-Rolls for Copy-holders. evidence for Copy-holders, for (as Lit­tleton, Sect. 75. tells you) they are called Tenants by Copy of Court-Roll, because they have no other Evidence, concerning their Tenements, but only the Copies of Court-Rolls. [Page 199] But Cook explains the Text, and says, This is to be understood of Evi­dences of Alienation; for a Release of a Right by Deed. A Copy-holder (that cometh in by way of admittance) may have, and that is sufficient to extingish the Right of the Copy-holder which he that maketh the Release had.

In Actions upon the Case, Trespass, Battery, or false imprisonment against any Iustice of Peace, Mayor, or Bayliff of City, or Town Corporate, Headborough, Por­treve, Special Evi­dence upon the general issue, by whom. Constable, Tythingman, Collector of Subsidy or Fifteen, 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 general issue, and give the special matter of their excuse, or Iustification in Evidence. 7 Jac. cap. 5.

General acts of Parliament, may be gi­ven Statutes. in Evidence, and need not be plead­ed; and so may general Pardons given by Parliament, if they be without Exceptions; But commonly advantage of the Act is gi­ven by the Act it self to the offnder, with­out pleading it, as by the late (most truly Pardons. so called) general act of Indempnity, eve­ry person thereby pardoned, may plead the [Page 200] general issue, and give the act in evidence, for his discharge, which are general, and which particular Statutes, see lib. 4. 76.

Vpon not guilty in Trover, the Defen­dant Trover. 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. A demand and denial of the goods is evidence of a conversion.

If there be two Batteries between Plaintiff and Defendant, at divers times, the If there be two Trespas­ses, and the Defendant peads 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. vide Apres. Plaintiff is bound to prove the Battery made the same day in the Declaration, and shall not be admitted to give another day in evi­dence, as the case may be. As in Battery, the Defendant pleaded, Son assault Demesne, and the Plaintiff replyed, de injuria sua propria absque tali sua, and in evidence, the Defen­dant maintained, that the Plaintiff beat him the day mentioned in the Declaration, and in the same place; which the Plaintiff perceiv­ing, he gave in evidence, that the battery was made another day and place, to which [Page 201] 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 between the parties. Littleton, Sect. 485.

Prohibition for suing for Tythes in Book­ing Park in Essex, and surmised, that the Lands were parcel of the possessions of the Priory of Christs Church in Canterbury, and the said Prior and his Predecessors had held it discharged of Tythes tempore disso­lutionis, and pleaded the Statute of 31 H. 8. The Defendant pleads, that the Prior and A non deciman­do. his Predecessors, did not hold them dis­charged, and upon issue joyned thereon, the evidence was that the Prior, or his Pre­decessors, time out of mind, &c, never paid Tythes; but no cause was shewn, ei­ther by unity of possession, real compo­sition, or other cause to shew it discharged: In nil debet, upon the Sta­tute for tythes 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. Cook said it was no evidence; for it is a prescription in non decimando, Curia contra; For a spiritual man may prescribe in non de­cimando, and by the Statute of 31 H. 8. he shall hold it discharged, as the Prior held it; and if he held it discharged, non refeit, by what means; for it shall be intended by lawful means, and the Jury afterwards found for the Plaintiff. Cro. 3. part. 2. 6.

Vpon non assumpsit, in a general Indebi­tatus Indebitatus assumsit. assumpsit, the Defendant may give in evidence, payment at any time, before the Action brought, but upon a special promise to pay money, &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 A Church-Book is no evidence. Brownlow 1. part 207. Postea 26. As­sise. pl. 4. in evidence, which ought not to be al­lowed, the Court above cannot quash the Verdict, except it be certified and returned with the Postea. Brownlow 1 part. 207. But the Court may order a new Tryal, up­on cause shewed, as for excessive damages, &c.

The Court will not permit the Jury to carry any Writings out with them, but what are proved, and under Seal.

But here I recollect my self, and consider that this Chapter is of greatest use to our Cir­cuit practiser, and therefore I shall go no fur­ther in scatter'd instances, but digest my further Collections into a method more beneficial, which may be improved by any Practiser, as other matter shall occur.

Quare defendens Crimen feloniae ei impo­suit, Action of t [...]e C [...]s [...]. &c. the Plaintiff cannot give in evidence words only, but Acts, as arresting, charging [Page 203] or conventing him before Justice of Peace for felony. Sanders vers. Edwards Mich. 14 Car. 2. B. R.

If any action arises on request, as in Trover or special promise, the Statute of li­mitation goes only to the request. Juy's case. Mich. 1652. C. B. v. 1 Cro. 139.

Declaration for words spoken in the pre­sence of A. B. and others, in evidence it sufficeth that they were spoken in the pre­sence of others only, Wingfield and Coote, Lent Assises Norf. 1662. per Hale Ch. Baron.

In Indebitatus for carrying of Herrings, the evidence was, he was a Porter at Yar­mouth, and when Herring-Ships came home, he went (of his own head) and carried up to the Defendants house, with other Porters, so many Herrings, and Good, by Twisden Judge of Assise Norf. Summer 1662. Jermin vers. Lucas.

In action for hindring to sit in a Pew claimed by prescription, repaired, &c. ought to be given in evidence; and one may pre­scribe to sit in the uppermost seat in a Pew. Buckston and Bateman, Mich. 14 Car. 2. B. R.

In action for executing an illegal War­rant, &c. It's good evidence to prove the Just. of Peace acted as such without shewing his Commiss [...]on, so on the Statute of Hue and Cry. Constables case. Norf. Lent Assises per Hale Chief Baron.

Action for stopping up lights, &c. One had a piece of Ground and builds an house on part, and Leases it, then he sells the o­ther part of the Ground to one who builds on it, and stops up the lights of the first house, the Lessee has a good action. But if two owe two pieces of Ground, and one builds, the other may also build and stop up his lights. Palmer vers. Flesher Mich. 15 Car. 2. B. R.

If a Master always gives his servant mo­ney to buy his Markets with, it is good evi­dence to discharge the Master in an action brought against him for goods taken up on Trust, by that servant. Per Glyn Ch. Just. Mich. 1658. at Guild-Hall, Sr. Tho. Rouses case.

A water course runs through my Ground to the Grounds of J. S. where is a pit that time out of mind used to be filled with that water. I may stop the water in my Ground, and use it as I will, so I do not turn the course another way, but when I have done [Page 205] with it, let it fall into its own course. Per St. John Ch. Just. C. B. Suff. Summer Assises. 1657. Smart and Tystead.

Action for words, You forswore your self in your answer in Chancery. Defendant justifies. Plaintiff replies de Injurià suà pro­priâ absque tali causa, per Hale Summer As­sise, Suff. It's a good replication, and a small mistake in an answer shall not convict of perjury, for the Councel may mistake or his Clerk.

Action for not scouring a Ditch, by which the water overflowed his Land, &c. and de­clare quod quidam Rivus run there, &c. Vpon evidence it appeared only a Land-floud, and good by name of Rivus, though it be dry great part of the year; and it was held the best pleading of the course of this River to put a place from whence it comes, & so to the Plain­tiffs Land, without mentioning mean places by which it passes, which may be many, and must be proved if laid, per Whitfield 1641. York, Clayton 96.

Souldiers lying in an Inn 14 days, are guests within the Custom of England, Har­lands Case, per Whitfield 1647.

The Plaintiff in action of the case intitles himself by prescription, to a Fold course for Sheep upon all the Lands in such a Field [Page 206] on Mich. day, and so to Lady day, the Lands being unsown, and for that the Defendant put on Sheep, &c. before Mich. day and af­ter, and thereby fed the grounds, &c. the Plantiff could not take so good feed. actio inde.

1. The owner may put on Sheep and feed his own grounds before Mich. unless a Cu­stom be to the contrary, which ought to be laid in the declaration, Contrà of a stranger.

2. It appearing that part of the Lands, &c. had been the Lands of the Plaintiff who was Lord of the Mannor, and prescribed as such, and there being no exception of those Lands in the prescription, the Plaintiff was nonsuit, for as to those Lands the prescription was gone by unity of possession. Per Hale Ch. Baron, Norf. Summer Assises 1668. Branth­wait vers. Hunt.

Assumpsit.

In Indebitatus, covenant to pay, is no evi­dence, 2 Cro. 505. nor money due for rent by specialty, or on Record. Hob. 284. Hutt. 35.

But an account stated for rent and other things, is good Evidence.

In Indebitat. for money, &c. delivery of Corn or other matter in satisfaction, is [Page 207] good evidence, Contr. in a special Action of the case on Assumpsit.

Indebit. lies not for money won at Dice, Wiche's Case Hill. 14, 15 Car. 2. B. R.

If a promise be made to pay at a day cer­tain, and the day is past, the Plaintiff may declare to pay on request: so if he declare on payment at a day certain, & give in evidence, a promise on request, i. e. when it's created on account which gives the duty, for there the time is ex abundanti; but where the acti­on is founded on the Contract, otherwise, for there the evidence must pursue the Con­tract. Hill. 1650. B. R. Child's case.

Promise to restore a Horse hired for a Iourney, if the Horse dies in the Iourney without the Riders default, his promise binds not. Lisle's case, cited in Matraver's case Trin. 1651. B. R.

One brings an Assumpsit for 20 l. and gives in evidence a promise if two would sur­render to pay them 20 l. a piece, good. Mich. 1655. B. R. Thomas and Gerey.

Indebit. for 50 l. brought by Edgar against Chetham Clerk. The evidence was, T. was indebted to Edgar in 50 l. Chetham de­sires Edgar to let him take the 50 l. of T. and he would give Edgar a Bill of Exchange [Page 208] to receive so much at London: accordingly T. promises to pay Chetham the money, which promise he accepted, and gave a Bill of Exchange to Edgar; after T. be­came insolvent, then Chetham prohibits the payment of his Bill, whereupon this action is brought. Per Wadh. Wyndham Just. Ass. Norf. Summer 1663. the action lies, for Chetham having accepted the promise of T. and given a Bill, &c. is now become a Debtor to Edgar until his Bill be paid, though he never receives the money of Thompson.

In Indebitat. It is good evidence against the Father, that Physick was delivered to his Daughter at his request, Stone-house vers. Bodvill Hill. 14 Car. 2. B. R.

One promises a Bayliff that if he would let one arrested be in his house that night, he would deliver him in the morning, it's a good promise, and the Bayliff or the Plain­tiff may bring the action. Benson vers. French Pasch. 15 Car. 2. B. R.

Indebitat. The case was, the Plaintiff sold 60 Comb of Rye to the Defendant at 14 s. per Comb, to be delivered before Mich. the Plaintiff delivered 50 Comb before the time, and brought this action for the money for it, and good, though it was agreed the money to be paid on the delivery of the last Rye. per Hale Ch. Baron.

  • [Page 209]1. Though the agreement is intire, yet the several deliveries make several contracts.
  • 2. Though the payment was to be on the last delivery, yet a time being set for delive­ry, it's intended to be paid when the deli­very should have been.
  • 3. The time being past, it's now a duty, and so Indebitatus lies.
  • 4. The Defendant has his remedy for not delivering the residue. Baker vers. Sutton. Lent Assise Norf. 1662.

Indebitat. lies for a portion, after the Ioyn­ture setled, so for 1000 l. on promise of so much for every Horse-shoo nail, but the Jury may mitigate Damages. ib.

A promise to marry B. within 3 Months, within a Fortnight after they meet, and the party promises again to marry her with­in 3 Weeks, this last promise is no dis­charge of the former, being all within the time of 3 Months, but had the last promise been to marry her within some other time af­ter the 3 Months, it had discharged the for­mer. Hite vers. Chaplin. Pasch. 1658. B. R.

Indebitatus by one, Defendant give evi­dence that another was partner with the [Page 210] Plaintiff, at the delivery of the Wares, Plain­tiff Nonsuit. Franklin vers. Walker, Norf. Lent Assise 1667. per Moreton. Contr. in Trespass, for there Ioint-tenancy must be pleaded.

Indebitatus for 9 l. Defendant pleaded non assumpsit infra sex annos, issue inde, the Plain­tiff proved a Debt of 9 l. due 10 years before, and an acknowledgement of the Debt with­in 6 years, and an offer to pay 5 l. for the whole.

Per Hale, The Plaintiff nonsuit, for the acknowledgement of the Debt is no more than is done by the Plea, but there must be a new promise of the Debt within 6 years to make the action hold, and here the promise or offer to pay 5 l. gives no action for the 9. l. Bass. vers. Smith Suff. Summer As­sise 1668.

Debt.

Debt on a Bond to perform Covenants, to deliver possession at the Terms end to the Lessor or his Assignes; breach was assign'd in not delivery to two purcha­sors, demand being made by both, and issue joyn'd thereon, in evidence demand by one is good. 2 Cro. 475.

Debt on Bond to perform an award, ita quod the award be delivered to the parties, in evidence, delivery proved to the Wife is sufficient for the Jury to presume the de­livery to the party himself, per Hale Norf. Summer Assise 1665. Trice and Prat.

At the same Assises per Moreton Just. deli­very to the parties Son is good evidence, Violet and Cook.

Debt against an Heir, &c. riens per de­scent, &c. a Feoffment given in evidence made before the action, that it was fraudu­lent may be given in evidence, though not pleaded, 5 rep. Co. Goathes case Hob. 72.

Debt against Executor, who pleaded ne unques, &c. Plaintiff replied that he Ad­ministred as Executor, and gave in evidence Administration granted to him, by which he Administred, Good. Dyer 305.

In Debt against Executors, and plenè Administravit pleaded, the Defendant cannot give in evidence a Bond satisfied, where the Executor and Testator were obligors, per Coventry Lord Keeper 33 Eliz. Perkins vers. Perkins.

In Debt for Tythes, Modus to a Vicar is good against the Parson, and so is a [Page 212] Modus to a Parish Clerk, per Moreton Just. Lent Cambr. 1667. Barber vers. Cosier.

In Debt against Executor de son tort, who pleads ne unques, &c. It is sufficient to charge him, by proving he hath admi­nistred of never so little value. Clayton 6.

Against Executor de son tort, who pleaded fully administred, the evidence was, the Intestate made a Bill of Sale of his goods to the Defendant, who was bound with him in a Bond as surety, for his Counter­security, but the goods remained in the In­testates possession during his life, for some few hours, ruled a fraudulent Deed by Barkley Just. at York. 11 Car. Legard and Linley. Clayton 39. quaere.

Debt against Administrator, who plead­ed If the Defen­dant pleads plenè, &c. pre­tor judge­ments, &c. The Plaintiff must prove Assets above the sum of those Judge­ments. Hun­tington, by Judge Wind­ham. 33 Car. 2. plene, &c. and gave in evidence Iudge­ments, and good without pleading, per Hen­den. 1638. York. Clayton 65. Quaere, for if Iudgements be kept on foot by fraud, and given in evidence, how can a Creditor who sues for a just Debt, be prepared to detect this fraud? And note, in Scire facias a­gainst an Execuor on Iudgement per Te­stator, the Defendant pleaded fully, admini­stred generally, and the Plaintiff demurred specially, and Sir William Jones Sollictor ge­neral moved to amend the Plea, and Hale Ch. Just. thought he ought to plead special­ly, [Page 213] how fully administred. Bradford vers. Hut­chinson. H. 25, 26 Car. 2. B. R.

Debt for Rent on a Lease, the evidence to prove the Lease was, that the Plaintiff leased a House to the Defendant at a Rent, but no time mention'd, and it was agreed at the same time, that the Lessee was not to leave it without half a years warning, per Hale, Norf. Summer Assise 1668. It's a Lease at will, & the leaving on half a years warning, is but a Collateral agreement, and no part of the demise.

Ejectment.

The Plaintiff Counts of a joint Lease made by A. and B. in evidence it appeared that A. B. and C. were Ioynt-tenants, that C. Leased to B. and that A. and D. Leased to the Plaintiff, by 3. Just. against two it's good. 2 Cro. Jurdanes case. fo. 83.

Count of a joynt Lease made by two, in evidence it appears they were Tenants in Common, by 3 Just. against one, it's not good. 2 Cro. 166. Mantles Case.

Count of a Lease by Husband, evi­dence was a Lease by Husband and Wife with Letter of Attorney to make livery, and 'tis made in name of both, by 3 Just. against one it's good, for Livery as to the [Page 214] Feme was void. 2. Cro. Gardners case.

Of a Lease made 5. May 10. Regis ha­bendum from Lady-day last past for 21 years Extunc prox. sequent. In evidence a Lease of 5 May 10. Regis habendum, from Lady-day last past for 21 years next follow­ing the date of the said Indenture, ad­judged good and affirmed in Error. Hob. 19.

Ejectment of a Rectory, evidence of the taking of Tythes only, and not Entry in­to the Glebe, the Plaintiff was nonsuit. Latch. 62. Hems and Stroud.

Ejectment of a Lease to A. of Lands in the possession of three Tenants for years, delivered to I. S. as an Escrow with Letter of Attorney, to enter into all, and then to deliver his Deed, &c. evidence, that the Attorney entred upon one Lessee in name of all, and delivered the Deed, &c. Per Jones Just. It's good enough, for where the Free­hold is in one, his Entry into one Lessee for years in name of all the rest is good. Latch. 71. Dame Argells case.

Where one declares on a fictitious Lease to A. for three years, and within the same time declares of another fictitious Lease to B. of the same Lands, the last is not good. For Trespass for the mean profits must be brought in the first Lessees name, ut dicitur.

Ejectment of Tythes, a Lease for life of Tythes is good, if there be Church or Church-yard to make Livery in, resolved in Tryal at Bar, Wheeler vers. Hanchet Hill. 14, 15 Car. 2. B. R. v. Jones rep. 321, 322.

Entry and Claym made upon the Land within 5 years after the death of the Ba­ron of the Countess of Peterborough to a­void a fine, she being issue in tayle, proved by one Witness, and allowed at a Tryal at Bar, B. R. Mich. 15 Car. 2. Floyd and Pol­lard.

Custom of Copyholders in extream is to surrender into one Tenants hands, in the presence of credible Witnesses. A surren­der was made accordingly, but presented to be done to another Tenant, yet being pro­ved to be done to a Tenant, it was hold­en by Wadh. Wyndham Just. to be good, and by him, a Glove or a Turfe, is a Rod to give seisin by, Maye's case. Norf. Summer Assises 1663.

A Will under which Title to Land is made, must be shown it self, and the Probate is not sufficient. Contr. if it were on a Cir­cumstance, or as inducement, or that the Will remain in Chancery, or other Court [Page 216] by special order of such Court. Eden vers. Chalk-hill. Mich. 13 Car. 2. B. R.

Also Inrollment of a Deed, which needs no Inrollment, is no evidence. ib.

The issue was fine uncertain, or certain 2 years Rent and no more, the evidence was of admittances on surrenders uncer­tain, but all under 2 years Rent. Per Wil­liams Just. you ought to produce fines on descent, and fines paid above two years Rent. 2 Bulst. 32. Allen vers. Abraham.

A lease was made by parol and agreed to be put in Writing, and Indentures bespoke, but being held for Ten years, and no Inden­tures executed, it was ruled for a lease pa­rol. Per Barkley Just. 13 Car. 1. York, Clay­ton 53.

By Just. Berkley (1638. York, Hedges cont-Clayton 57) a Will under Seal, proved examined by the original, was allowed good evidence. Quaere, I think the practice a­gainst it.

A Lease and Release were given in evi­dence to entitle the Plaintiff, and they both were named haec Indentura, but were not indented, good, per Hale Ch. Baron, Norf. Summer Assises 1668. Briant vers. Trendle.

After default (in Ejectment) the Defendant, may confess Lease, Entry and ouster, and may give evidence, and have all advantages (except Challenges) and if the Plaintiff be­comes non suit, any one for the Defendant may pray it be recorded.

Per H. Wyndham Just. Bucks Lent 68 Dr. Crawle's case. Deprivation in spiritual Court for Simony disables from bringing Eject­ment, because he can make no Lease, yet quaere.

If Mortgagor continues in possession, without provision for that purpose in the Deed, he is Tenant at Will, and if he le­vies a Fine it's no disseisin by him continu­ing in possession still, because after the Will determin'd he is Tenant at sufferance. Per Hale Ch. Baron Bedford Summer Ass. 1669.

Declaration on a Lease made 14 Jan. 30. Eliz. evidence of a Lease Sealed 13 Jan. good, for if it was a Lease 13. it was a Lease made 14. 4. Leon 14.

Feoffments of 40 years standing, and possession going accordingly, you need not prove Livery, it may be intended per Jury. Roll. rep. 132.

The Common Rock on which so many [Page 218] have split, is laying the Lease to be à die da­tus, and the Entry the same day, which is a disseisin, not purged by the Commence­ment of the Lease, for where an interest pas­ses [à] is exclusive, and so the entry the same day, is before the Lease was to Com­mence, & is a disseisin, but in cases of Obliga­tion where no interest passes, it is contra, quod nota.

Trespass.

Count of Trespass done in one acre, evi­dence of Trespass done but in half that acre, good. 2 Cro. Winkworths Case.

The Lady Hatton brought Trespass for breaking her Close, and taking away her Horse, &c. against two Defendants, they plead Not guilty, as to the taking of [Her] Horse, as to the rest, they say that the Horse of one of the Defndants was in the Close, &c. and they took him out doing as little damage as they could, quae est eadem, &c. The Plaintiff replies de injuriâ suâ propriâ, &c.

The evidence was, that the Plaintiff as Lady of the Mannor took the Horse as an Estray, and it was Cryed and Marked, &c. that the Defendants refused to pay for the meat, and took him away, before the year and a day was out.

[Page 219] 1. Per Wadh. Wyndham Just. d'assize, A Lord may detain an Estray for meat, yet no Trespass lies if the owner takes him, but an action of the Case lies for the meat.

2. If the action had been brought against the servant only, he must justifie, &c. But being brought against Master and Servant, this joynt-justification is good.

Cambr. Summer Assises 1667. Lady Hat­ton against Cotes and al.

In Trespass, the evidence for the Defen­dant was, that the Defendant had a Barn, and purschased a way over the Plaintiffs Land to that Barn, after the Defendant bought other Lands lying contiguous to that Barn on the one side and to a Haven on the other side, and carried Carriages by that way to the Barn, and through it over his own new purchased Land to the Haven. Per Hale Ch. Baron. If I purchase a general way to such a place, I may go from thence on my own ground whither I please, though I purchase the ground after the way purcha­sed. Summer Assises Norf. 1665. Heyns­worth vers. Bird.

Trespass was brought against many, by a School-mistress, for taking away a child (her Scholar) with a Scarfe of the Mi­stresses, [Page 220] per Keeling Ch. Just. In Trespass for taking [things] all are principals that are present and consenting, Contra, in taking [persons] and this action lies not by the Mistress for the child, but for the Scarfe only. Lent Norf. Ass. 1663. Mary Coopers case.

Trespass lies for Lessee in Ejectment on a fictitious Lease to recover mean profits during the continuance of that Lease mentioned on Record: And the Recovery shall maintain it. Otherwise if brought by the Lessor, for he is no party to the a­ction.

Trespass lies not for pulling down a Pew in a Church fastned to a pillar with a Chain. Contra, had it been fixed by nails driven into the pillar, per Glyn Ch. Just. Trevors case,

Trespass quare fregit liberam Warrenam suam, and took his Conies. In evidence it appeared that the Plaintiff had liberty of chase in the place, which though it includes Warren; yet a general Trespass lies not, but an action of the case. E. of Arundels case, Pasch. 1658. B. R.

Per Earl Sergeant, if Beasts be impound­ed, and the Key lost, the Officer by Reple­vin may break the pound, and deliver the [Page 221] Cattle, per Stat. Marlebridge 52 H. 3. 21.

Tenants in Common must joyn in Tres­pass done against them, so Avowry, Lead and Lamsteads case, 7 Car. B. R. cited by Finch in Argument. Or Tenant in Common surviving shall have Trespass.

In Trespass, the Defendant sets forth a conditional Feoffment for payment of mo­ney at such a day and place, and that he paid it accordingly; issue joyned on the pay­ment at the day and place, evidence of pay­ment before the day is not good. Contra, had the special matter been pleaded with acceptance. More 47.

In Trespass with Continuando to reco­ver mean profits, an Entry and possession of the Land before the Trespass must be proved, and also another Entry after the Trespass.

In Trespass, the Defendant prescribes to dig in the Common for Clay, to repair anti­ent houses holden of that Mannor, and good. Berney vers. Stafford Norf. Lent Assises 1667.

In Trespass they were at issue on Not Guilty, and at the Assises the Defendant left his former plea, and pleaded an ac­cord with satisfaction, the Iudge would [Page 222] have had it replied to and tryed pre­sently, but the Councel refused, where­upon the Jury was sworn, and the Plain­tiff nonsuited. Bedford Assises Lent 1667. Green vers. Reynolds. But this was con­trary to the opinion of Sir Orlando Bridge­man, at the same Assises, and Contr. to 10 H. 7. 21. and 1 Bul. 92.

Trespass lies by Recoveror in Erroneous Iudgement for a mean Trespass, because the Plaintiff in Writ of Error recovers all mean profits, and the Law by fiction of relation will not make a wrong doer dispunishable. 13. rep. Co. 22. but Contra, where Act of Parliament restores, &c.

Trespass for assault and wounding in Suff. the Defendant as to vi & armis non Cul. As to the other justification of mol­liter Manus, &c. in Norf. and several Try­als. Per Hale Ch. Baron Suff. Ass. Summer 1668. the vi & armis can't be tryed till the other be tryed. Contr. If the first issue of non Cul. was as to the wounding: and by him evidence of Livery of seisin, general­ly shall be intended for life only.

The Hogs of B. were put into the yard of A. and broke into the Land of C. and did Trespass, action lies against A. though the servant of B. did look to them and serve [Page 223] them, by which the owner had the special possession of them. So if Agisted Cattle do Trespass, the Agistor shall answer. Dawtry vers. Huggins, Clayton 33. per Barkley. 11 Car. York.

A. by Indent. of uses raised an Estate to B. in Fee, who regrants Turbary to A. by another Deed, and after A. levies a fine to confirm the Estate and uses abovesaid de­clared, this doth not touch the Turbary, per Vernon, 11 Car. York, Clayton 42.

Any one imployed by an Officer, is an Of­ficer within 7 Jac. 5. to plead general issue, and give the special matter in evidence. Clay­ton 54.

Prescription to tether Equos & Boves up­on such a balk, &c. Mares and Cowes, good evidence within that prescription. Per Barkley Clayton 54.

Per Hale, A Corporation may bargain and sell, though, it has been thought an use upon use, they being seised to the use of their house. But I think it rather a trust than an use.

If a Just. of P. send his Warrant to I. S. (who is no Officer) to bring one before him, if I. S. be no Officer, he is not bound to exe­cute it, yet if he does execute it, it's good, and he may execute it in any part of the Coun­ty. And so a Constable of one Town [Page 224] may execute a Warrant in any other Town in the same County, and any such Warrant is as large as the Justices Commission is, per Hale Norf. Summer Assises 1668. Wron­gries case.

In Trespass against one for Gleaning on his ground, per Hale Norf. Sum. Assises 1668. The Law gives licence to the poor to glean, &c. by the general Custom of England, but the licence must be pleaded specially, and can't be given in evidence on non Cul.

Trover.

The Citizens of London gave in evidence their Custom to take Toll. Jones 240.

In Trover, for an Horse proved of 15 l. value, the Jury gave but 3 l. damages, upon mistake, they thinking that the Plaintiff had his Horse again.

Per Wadh. Wyndham; if the Jury had not been gone, they should have mended their Verdict; but a new action of Trover lies for damages for the Horse, in which the Jury shall prove the 3 l. given was only for the conversion, not the value of the Horse; and by him, Trover lies for goods in the Plaintiffs possession, to recover damages for the con­version only. Tyndal vers. Jolliffe Norf. Lent Assises 1660.

In Trover by Administrator where the conversion was in the time of the Intestate, the Plaintiff must shew the Letters of Admini­stration, Contr. where the conversion was after his death. Per Hale Norf. Sum. Ass. 1660.

If an Estray be claimed within the year and the day, &c. and the Lord refuses to deliver it; Trover lies, though the keeping is not paid for, and the Lord sayes he detains for the same, and the Lord can't detain for the meat, &c. but must bring his action. Per More­ton Just. Lent Norf. 1667. Bond vers. Paston, Quaere, & vide Dent tit. Trespass, per Wynd­ham Contr. and I think is Law.

At the same Assises, Daniel vers. Berney, by Moreton Just. Proclamation may be made of an Estray by any person, and it is not ne­cessary, that it should be made by the Bell-man or any other Officer. Vide Co. Entries 170. Barber vers. Fawcet, In Trover, issue was joyned, on tender of amends for keeping, &c. and Verdict pro Plaintiff and judgement.

Note, I find precedents, that in Trover, the matter of an Estray may be pleaded special­ly, or given in evidence on Not guilty.

Oats were taken from the owner, and carried to a Miller to make into Oat-meal, and before it was done, the owner prohibits the Mil­ler, &c. and demanded the Oats, who, not­withstanding, made them into Oate-meal: Per Barkely it's a conversion in the Miller. 1630. Clayton 57. Hollworth's case.

On non Cul. The Defendant gave in evi­dence, a seisure for goods Foreign bought and Foreign sold: Per Custom of Lynn Norf. good per Hale, Norf. Sum. Ass. 1668. Harwich vers. Twells.

A man lends his Horse to a special purpose, the Bailee abuses the Horse, and over works him, then the lender takes the Horse again: Per Hugh Wyndham Just. Lent Assises Bucks. Trover lies not, Constables case.

Dower.

In Dower, the issue was ne unque seisie que Dower, and for the Plaintiff, a Feoffment in Fee was given in evidence to the Husband, the Defendant would have given in evidence, a seisin in tayle with a discontinuance, and then the Feoffment, &c. and so a remitter, but it ought to be pleaded per Cur. Dyer. 41.

If an Heir Mortgage for years and then as­signe Dower legally i. e. a 3. part of the whole, the assignment shall bind the Mortgagee; Cont. if the assignment be illegal, as of one whole Mannor when there were three Mannors; that being not as the Law would have done it. And if a disseisor assigne a legal Dower, it's good: But if the Heir Mortgage in Fee, and then assigne, &c. legally, &c. that is not good, be­cause the whole Freehold was out of him at the time of assignment: Per Hugh Wynd­ham Just. Bucks Lent Ass. 1668.

Account.

Against S. as receiver of two 30 ls. and as Bayliff for receiving his Rents for several years, not saying any certain sum of Rents: Per Earl Sergeant, the proper way is to find quod Computet, as to what is certain in the declaration and so proved, as the money was, but not to the Rents, and so he said was the opinion of Hale. But per Moreton Just. the Verdict shall be general, and it may be both ways. Saye's case Norf. Lent Assises 1667.

Thus far I have made an Essay of a me­thod, to be further built upon by our Practiser, and have given some cases, not in Print, and (it may be) useful. I shall add some other cases, not so proper for heads except that of [Page 221] [Evidence] with which I shall conclude this Chapter.

Evidence.

Inspection of a Deed Inrolled may be gi­ven in evidence, Contr. of a bare Deed not In­rolled, or of a Deed that needs no Inrollment. Pasch. 1655. B. R. Goodson's case.

A Deed to Lead the uses of a fine was In­rolled on the acknowledgement of but one of the parties to it, & was allowed by Glyn Ch. Just. in evidence, as Roll Ch. Just. had done before him, though no binding evidence, Turber vers. Maddison Pasch. 1655. B. R.

An office found at a death, &c. may be gi­ven in evidence.

A Verdict against one, under whom either Plaintiff or Defendant claims, may be given in evidence against the party so claiming, cont. If neither claim under it. Duke and Ventres Mich. 1656. B. R.

If an Action be brought on a Statute, which has several provisoes in it, the Defendant may [Page 229] plead, not guilty, and aid himself by any of the provisoes in evidence: But if provisoes be made to that Statute, of which the Defendant may take advantage, he ought to plead it, and not give it in evidence, per Roll. Ch. Just. Mich. 1650. B. R. Jones 320. accord.

Iointenancy in trespass cannot be given in evidence; but must be pleaded in Abatement, Jones versus Randal, Hill. 1652. C. B.

Arrest and Imprisonment to prove a Bank­rupt must be proved by Record: Newby vers. Bathurst Pasch. 1659. B. R. In a Try­al at Barr.

The custome of New-England, to marry by the Magistrate in the presence of a Minister, was allowed good by Hale Ch. Just. B. R. Trin. 1663. at Guild-Hall, int. Hall & Hall.

The Certificate of the King under his sign Manual was allowed in Chancery for proof without exception, Hob. 213.

Records, as Patents, Statutes, Judgments, may be given in Evidence, Hob. 227. contr. to Dyer 129.

When Records are pleaded, they must be Sub pede Sigilli, Contr. if given in Evidence. Stiles 22. Whites case.

An answer in Chancery, is Evidence a­gainst the Defendant himself; but the Bill must he proved. Godb. 326.

Vpon a traverse of a Lease parol for years, viz. Abs (que) hoc quod A. demisit, &c. Nihil ha­buit in tenementis, may be given in Evidence. Dyer 122.

Shewing a Grant to digg Turfs, is no E­vidence against a Prescription for the same, but the Grant being the same with the Pre­scription, shall be taken as a confirmation. Crew & Vernon, Moore 819. Quaere tamen. v. Moore 830. Where a Court of Pipowder is claimed by Prescription and Grant, and good. 2 Cro. 313. Acc.

In Trespass for taking Goods, after Iudg­ment, per confession, non sum informatus, or nil dicit, Property need not be proved to a Writ of inquiry; for it would oppose the first Iudg­ment, Quod quaerens recuperet; and the [Page 123] Iudges might have Assessed damages if they would. Yelv. 151. Yet quaere, if the De­fendant may not disprove property in mitigati­on of Damages; for the Iury may find no Damages.

A Copy of a Deed, is good Evidence where the Defendant has the deed, and will not produce it. Per Vernon just. Clay­ton 15.

A deed of Feoffment without Livery may be given in Evidence as a Release. Per Berkly 11 Car. Clayton 32.

If a Fine be given in Evidence, with five years non clayme, &c. the fine must be shewed with the Proclamations under Seal, and the Chirograph will not serve.

The confession of a party must be taken whole, and not by parts; As if to prove a debt, it be sworn that the Defendant confessed it, but withal he said at the same time, That he paid it, his confession shall be valid as to the payment as well as that he owed it. Per Hale Ch. Just. And so is common practice.

A deed cancelled by practice, was allowed to be read, in Evidence in action under that Deed, the practice being proved. Hetly 138.

Against a Purchasor bona fide, recital in a Deed of money paid is not sufficient, nor acquittance for the money, unless it be of antient standing, and then it shall be pre­sumed.

The Deed to lead the uses of a Fine sur con­cessit, need not be proved per Testes.

If a deed of Feoffment be shown, but no Live­ry, possession going with the Deed, is Evidence to a Jury to find Livery.

At Guild Hall Trin. 23 Car. 2. Hale Ch. Just. cited the Case of Sir Paul Pindar, A Levari, &c. was proved by a recital of it in another Record, and Hale and Mainard demurred on the Evidence, and adjudged against them, for this Cause, viz. That it was proved, there was such a Record, that it was filed, that it was taken off the file. But (by him) ge­nerally without such proof, the evidence is [Page 233] not good, because one Record may recite one that never was.

The Jury are to decide the fact, and evi­dence is not given but to inform them in their consciences of the truth, for although no evidence is given of either side, yet they may give their verdict of one side or the other. 14 H. 7. 29. And therefore although two witnesses are necessary, where the tryal is by wit­nesses, as in the Civil Law; Yet they are not of necessity, where the tryal is by Jury. And where witnesses are joy­ned Office of the Jury. with the Jury, yet they may be re­jected, if they will not agree with the twelve, and the twelve may give their Verdict.

The Jury after they are departed from the Barr, may return to hear their evidence of any thing they doubt be­fore the Verdict.

Sur Travers de done in tayle, the wit­nesses Done in Tayle. prove, That another made the Done; this doth not warrant the issue.

In an action against the Sheriff upon Extortion vers. Vic. [Page 234] the Statute of Extortion, That he took it for Barretée of one who was acquit, is good evidence.

Possession is an evidence of right, and he that hath possession may distrain the Cat­tle Possession. of him that hath no title, for the taking is in respect of the possession, more than of the title.

In debt for Rent upon a Lease, and nil Debt for Rent. debet pleaded, ne unques seisie de terre is good evidence, otherwise upon the plea of riens arrere, or levy per distresse.

Parson or not Parson, in such issue Parson. you may give in evidence a resignation, although it be in another County and Spi­ritual.

In riens passe per le fait, Not his Fait. deed may be given in evidence.

In Trespass, quare claus. fregit, with What ought to be proved in evidence. abuttals, all the abuttals and descriptions must be proved. But if the abuttal be laid North, &c. and it incline North, though not directly, it is sufficient: & sic de caeteris.

Vpon this Issue, the account given Plene admini­stravit. to the Ordinary, shall not be given in evidence, nor any respect had to it.

Will, The probat is good for the perso­nal What shall be given in evi­dence, and what is good evidence. estate, but not to prove a Will in wri­ting of Land by the Statute.

Recital of other Grants by Letters Pa­tents, Recital in Letters Pa­tents. in Letters Patents are some evidence, but not fit to be allowed, without shew­ing the former Letters Patents or a copy. But the Jury may find them. Surmise in a Prohibition.

The proof of this surmise in any Court of Record, shall not be given in evidence in another action, upon the same custome, because the Defendant in the prohibition cannot cross examine. Depositions.

Depositions in the Court Christian, in the Court of the Councel of York touch­ing the title of Land, of which they have not conusance, or in another Suit against him who claimeth not under those parties, by the Commissioners upon a Com­mission of Bankrupt, because the party could not cross examine: shall not be al­lowed in evidence.

But a sentence given in the spiritual Court touching Tithes may be given in Evidence in an Action at Common-Law, for this is a judicial act.

After evidence given, and the Jury rea­dy Former Try­al. to give their Verdict; and then the Atturney General will not proceed, but draws a Juror, and brings another infor­mation, none of the former Jurors shall be admitted to give in evidence, that the Jury were ready to give their Verdict against the King in the first information, for this ought not to be discovered, for so no benefit would accrue to the King by his Prerogative to draw a Juror.

But this may be given in evidence in a­nother What may be given in evi­dence upon a special Issue. action, where the King is not concerned.

In debt for rent upon non demisit, that Debt for rent. the lessor riens avoit in the land at the time of the demise, may be given in evi­dence.

Vpon an Issue of Common appendant, &c. Common. [Page 237] common per cause de vicinage, cannot be gi­ven in evidence.

If the Defendant plead son assault demesne Son Assaule demesne in Battery. in Battery, and the Plaintiff reply, de injuria sua propria abs (que) tali causa, And so issue is joyned, if there was a battery at another day than what the Plaintiff and Defendent have assigned, upon the Plain­tiff, and another upon the Defendant by the Plaintiff, The Verdict ought to be for the Defendant; for if the Defendant prove any assault made upon him by the Plaintiff, this ought to be found for him, although it was at another day than what he hath alledged, for the day is not material: But upon such speciall justification the Defendant hath liberty to prove his Plea at any time, and the Plaintiff might have made a new assign­ment at another time, for peradventure there might be several trespasses at seve­ral times, to which the Defendant may have several Pleas, and therefore if such manner of pleading should not be allow­ed, and such evidence, the Defendant could not tell how to help himself, nor could know for what Trespass the acti­on is brought. Vide devant hic & ap­pres cap. 13.

If the Issue be whether the Kings Surrender. Tenant by Letters surrendred to the King or not, the accepting of new Let­ters Patents, which is a surrender in Law, is good evidence.

In a special promise to pay 20 l. if the Plaintiff would pay 10 l. &c. and an a­verment Non assump­si [...]. that he paid the 10 l. upon non assumpsit, the Defendant shall not give in evidence that the Plaintiff did not pay the 10 l. neither is the Plaintiff bound to prove it, for the issue is upon the assump­sit, and not upon the payment of the 10 l. which might have been traversed. And although 'twas said that in all actions there is a general issue to be taken, which shall put all the declaration in issue, and that must in this be non assumpsit, or nothing, yet by the advice of all the Iu­stices of Serjeants Inn in Fleetstreet, it was ruled as abovesaid. Mich. 16 Car. B. R. between Holditch and Brodrig. I have been the more particular in this, because I have known Plaintiffs nonsuited in such cases at the Assisses for want of proving rhe averment: although I must confess I never agreed with the Iudge herein that did it. For it is a mistake to say, The Plaintiff must in all cases prove his whole Declaration, if he proves the mat­ter [Page 239] in issue, he ought not to be nonsuited. Rolls tit. Tryal. 1681.

If an Advowson be pleaded to be grant­ed Grant per fait. Where it is sufficient to prove the ef­fect of the Issue. Per fait, and this issue is taken by a stranger to the fait, if it be found grant­ed sans fait, or by another fait, it is good, for the Deed is surplus, and the effect of the issue is upon the grant not upon the fait.

If an Imprisonment by dures at D. Dures. be in Issue, 'tis not material whether he was ever at D. or not, for the effect of the Issue is, if the Deed was made by dure [...].

So of a Feoffment pleaded by Deed, a Feoffment without Deed or another Feoffment. Deed is good, for the effect of the Issue is upon the Feoffment, not upon the Fait.

In escape of a Prisoner, and the Issue Fresh Suit. is, if the Gaoler immediately after the e­scape made fresh suit, if the Prisoner hath escaped a day and night before the Goaler knew it, and then he makes fresh suit, it is sufficient to prove the [Page 240] effect of the issue, for convenient pursuit is immediate fresh suit in Law.

If in pleading an Indenture of de­mise Non demisit modo & forma. you mistake the recital, and the issue is non demisit modo & forma; The mi­stake shall not hurt, for the effect of the Issue is upon the demise.

If a man plead not guilty, he cannot give What thing may be given in evidence upon the ge­neral Issue. Trespass. Battery. in evidence a matter justifiable, which shall be a confession of the act, for this is contra­ry to the issue. As son assault demesn in Bat­tery, upon Not guilty: but upon Not guilty, in Trespass for beating ones Servant, per quod servitium amisit, you may give in evi­dence that the Plaintiff did not lose his ser­vice by the Battery.

Nor upon nul wast fait, can he say, su­ficientment repair devant le brief purchase. Wast.

If my servant without my consent put my Cattle in the Land of another, I may Servant. plead Not guilty, and give this matter in evidence; for by puting the Cattle in, the servant has gained a property.

Vpon Not guilty, he may give in evi­dence Information. a discharge by a Proviso in the same Stat. for thereby he is Not guilty, Contra formam Statuti, but not a discharge by ano­ther Statute.

Vpon non habuit seu tenuit ad firmam con­tr. formam Statuti, the Parson may say, he took the Farm for maintenance of his house according to the Proviso in debt upon the Stat. 21. H. 8.

But upon the Stat. 5 E. 6. for ingros­sing upon Not guilty, 'tis said, that the De­fendant cannot give in evidence a licence according to the Proviso of the Stat. sed quaere rationem.

Vpon ne unque son Receivor, &c. the Accompt. Defendant cannot say that he paid the mo­ney according to directions, &c.

In a Scire facias against Terrtenants Seisin Feoff­ment. and a Feoffment pleaded before the judge­ment absque hoc that he was seised tem­pore Judicii, and issue upon the seisin, that the Feoffment was fraudulent, to defraud the judgement, may be given in evidence; but otherwise if the issue had been upon the Feoffment.

So upon reins per discent, by an Heir Riens per dis­cent. in debt upon an obligation, that the De­fendant aliened the Assets by fraud and [Page 242] covin, and so void by the Stat. of 13 El. may be given in evidence, because these are the general issues.

In Trespass for taking a stack of Corn, Parcel. the evidence may be of part, and the Ver­dict as to 4 Combs or Bushels, Guilty, and as to the rest Not Guilty.

Vpon this plea the Executor may give in evidence a retainer for a debt due to him­self, Plenè admini­stravit. of as high a nature: or paiment of debts with his own mony, and that he kept goods of the Testator in lieu, for this alters the property.

They can have nothing but what is deli­vered to them in Court, and given in evi­dence What evi­dence the Jury may have with them. Exemplifica­tions. by the party in Court, if an exem­plification come out of Chancery of witnes­ses examined there upon Oath who are dead, the Jury shall have this with them; but if the exemplification comprehend some Witnesses alive and some dead, they shall not have it with them. Nei­ther shall they have any Pedegree drawn by a Herauld at Arms, for it is no evi­dence Pedegree. but only information for direction. What Evidence the Jury may have with them, see the 14. Chapter.

If a man makes a Feoffment and after­wards Who may be witnesses. Not persons interested. makes another, with covenants that he was seised, &c. and afterwards an issue is taken upon the first Feoffment, the Feoffee shall not be a Witness.

In an information for Vsury, the Usury. party shall not be a Witness, because he would thereby avoid his own Bonds, &c. and be testis in propria causa.

Three men swear an Arbitrement, in Perjury. three several actions against them upon the Statute 5 Eliz. of perjury, each of them may be a Witness for the other; but in an Indictment of perjury, upon 5 Eliz. the party grieved shall not be a Wit­ness, for he is to have 20. l.

Common experience tells us upon an In­dictment for Battery, &c. the party grieved may be a Witness, because 'tis only for the King.

In an action against the Hundred up­on Hundred. the Statute of Winton, &c. the Les­sor living out of the Hundred may be a Witness, for 'tis not reason that he and [Page 244] his Lessee being an inhabitant should be both charged: If the Servant be robbed of the Masters money, the Master may be a Witness to prove the delivery of the money to the Servant before the Rob­bery. Rolls tit. Tryal 686.

A thing which is concluded in the Ec­clesiastical Proceedings in Ecclesiasti­cal Courts. Court concerning Lands, is not to be given in evidence to Juries, for the Courts of Common Law are not to be guided by their proceedings. Mich. 22 Car. B. R.

Matter in Law is not to be given in Matter in Law. evidence, for the Jury are only to try mat­ters of fact.

An ancient writing that is proved to Ancient Wri­tings. have been found amongst Deeds and evi­dences of Land, may be given in evidence, although the executing of it cannot be proved, for 'tis hard to prove ancient things, and finding them in such a place, by pre­sumption, they were honestly and fairly obtained, and preserved for use, and are free from suspicion of dishonesty. 24 Car. B. R.

A writing or answer permitted to be read Totum & pars. in part, may be read in toto.

A Copy of part of a Record cannot be Copy of Re­cords. given in evidence, unless 'tis proved that the part shewed in evidence is all con­cerning the matter in question.

A transcript of a Record or Enrollment Transcript Enrollment. of a Deed may be given in evidence, for they are things to be credited being made by Officers of trust.

The Council of that party who doth be­gin Council. to maintain the issue, whether of Plain­tiff or Defendant, ought to conclude.

A Juror who is a Witness, must be Juror. also sworn in open Court to give evi­dence, if he be called for a Witness; for the Court and Council are to hear the e­vidence as well as the Jury.

The Jury may carry from the Bar an Exemplifica­tion. exemplification under the Great Seal of Depositions in Chancery, but if they are [Page 246] not exemplified, the Jury can only look up­on them at the Bar, but not have them with them out of Court.

If one produce a Lease made upon an Lease upon an Outlawry. Outlawry, to prove a title, he must also produce the Outlawry it self: but if it be to prove other matter, he needs not shew the Outlawry. And so it is of an Extent, without shewing the Statute or Iudge­ment on which the Extent is grounded.

By Rolls an Office found after the Office. death of a Tenant in Capite, of Lands in another County, may be given in evi­dence to try the title of those Lands, if there was a special Livery granted unto the Heir.

If a Witness be Bayl, upon motion the Court will give leave to alter the Bayl. Bail. Stiles 385.

Debt for 10 l. against a Witness, upon the Statute 5 Eliz. doth not lie, unless Charges. the Witness hath his charges, and he is not bound to come without his Charges first paid: but if he accepts of 12 d. and a promise for the rest at the tryal, he [Page 247] is bound, and an action lieth against him if he doth not come. Cro. 1 part 522. 540. Goodwin against West.

A Counsellor may be examined as a Counsellor. Witness against his Client, so far as it is of his own knowledge, not what his Client reveals to him, and he knows only by his Clients information.

In Criminal causes against the King Criminal causes. Witnesses may be sworn, unless the Crime be Capital.

Tenant at Will of part of the Lands Tenant at Will. was admitted to prove Livery of sei­sin and the execution of a Feoffment under which he held. Bulst. 1 part 202.

If one be attainted of Felony and par­doned, Attainted of Felony. he shall not afterwards be sworn of a Jury, for Poena mori potest, culpa pe­rennis erit, and therefore is not fit to serve on the Inquest, nor yet to be an indifferent Witness, and two such persons proving a suggestion, were rejected, and the prohibition disallowed. Brown against Crasham Bulst. 2 part. 154.

In Trespass with a simul cum, if nothing Simul cum. be proved against them in the simul cum, they may be examined as Witnesses. Stiles Reports 401.

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.

THe Iury having heard their Evidence, Assise, Enquest and Proof, are taken for the word Jury. Vide 28 E. 3. 13. let them now consider of their Ver­dict; But first they must remember their Oath, which in effect is, To find accord­ing to their Evidence; and therefore they should have had it before the Evidence, but that the form and order of the Venire facias, (which I have tyed my self to follow,) leads me to it after their Evidence, in these words; Ad faciend. quandam Juratam; I have al­ready shewed the derivation of this word Ju­rata, See Chap. 1. and what is the legal acceptation of it; only observe with our great Master Littleton, That the word Assize, is sometimes taken 1 Inst. 154. for a Jury, so as the Learned Commentator [Page 352] doth well paraphrase, That the word Assise, is Nomen Aequivocum Aequivocans, because Assiza for Ju­rata. sometime it signifieth a Jury, sometime the Writ of Assise, and sometime an Ordinance, or Statute; But Jurata, is Nomen Aequivo­cum Aequivocatum, because we always un­derstand that wo [...]d (according to the afore­said definition) to be a Iury of twelve men, so called, by reason of the Oath they take, The Juries Oath. Truly to try the Suit of Nifi prius, between party and party, according to their Ev [...] ­dence.

And as in an Assise, the Jurors are called Why called Recognitors in an Assise, and Jurors in a Jury. Recognitors, from these words in the Writ of Assise, sacere 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 12 Knights. Pleas, as in Pleas of the Crown, were 12 Knights, as appears by Glanv [...]l, lib. 2. cap. 14. and Bracton, fol. 116.

The next words of the Venire facias, are Inter partes pr [...]dictas. 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 Jury per medie­tatem linguae. b [...]linguis, or per medietatem linguae. And this Tryal by the Common Law was wont to be obtained of the King, by his Grant made to any Company of strangers, as to the Company of Lumbards, or Almaignes, or to any other Company, that when any of them was impleaded, the moyety of the In­quest should be of their own tongue. Stan. Plea, Cor. lib. 3. cap. 7.

And this Tryal in some Cases, per medie­tatem Its Antiquity. linguae, was before the Conquest, as appears by Lamb. fol. 91, 3. Viri duodeni Jure consulti, Angliae sex, Walliae totidem, An­glis & Wallis Jus dicanto. And of ancient time, it was called Du [...]decim virale Judici­um. 1 Inst. 155.

But afterwards, this Law became univer­sal: first by the Statute of 27 Ed. 3. cap. 8. It was Enacted, 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, only where both parties were Merchants or Ministers of the Staple, and in Pleas be­fore the Maior of the Staple. But after­wards, in 28th Year of the same Kings Reign, cap. 13. It was Enacted,

[Page 354] 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 Fo­reigners 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 Enquest or Proof ought to be ta­ken: And if there be not so many Aliens, then shall there be put in such Enquests 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 King. the Law universal, concerning the medieta­tem linguae; for though the King be party, yet the Alien may have this Tryal. And it [Page 355] 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. See Dyer 144.

And the form of the Venire facias, in this Venire facias, per medietatem linguae. 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 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 says, it is not proper to call it a Tryal per medietatem l [...]nguae, 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 material of what sufficiency the Jurors are, yet the form of the Venire facias, shall not be altered, but the Clause of Quorum 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, [Page 356] that the Inquest shall be all English; for though the English may be supposed to favour themselves more than strangers, yet when both parties are Aliens, it will be pre­sumed, they favour both alike, and so indif­ferent. 21 H. 6. 4. but if the Plea be before the Maior of the Staple, and both parties Alien Merchants of the Staple; it shall be tryed by all Ali [...]ns. Stamford's Pleas del Co­rone. 159. A Scotchman is a Subject, and shall not have this Tryal. Egyptians are also excluded when tryed for Felony, made by the Statute against them, 1 Phil. & Mar. cap. 4. 5 Eliz. cap. 20.

Where an Alien is party, yet if the All English. Tryal be by all English, it is not erroneous, because it is at his peril, if he will slip his time, and not make use of the advantage which the Law giveth him when he should. Dyer 28.

The Alien ought to pray a Venire fac [...]as, When the A­lien should pray a Venire facias per me­dietatem. per medietatem linguae, at the time of the awarding the Venire facias: But if he doth it at any time before a general Venire facias be returned and filed, the Court may grant him a Venire facias, de novo. Dyer 144. 21 H. 7. 32. though it hath been questioned.

But if he hath a general Venire facias, he Tales. cannot pray a Decem tales, &c. per medieta­tem linguae, upon this; because the Tales [Page 357] ought to persue the Venire facias. 3 E. 4. 11, 12. And so if the Venire facias be per medie­tatem linguae, the Tales ought to be per medi­etatem Tales. linguae, 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 general, 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 Ylaintiff 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; but if it be a­verred Where the Tryal of an Aliens cause shall be by English. 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 Part English, and part A­liens. exhibited an Information against Barre, and divers other Merchants, some whereof were English, and some Aliens: After Issue, the Aliens prayed a Tryal per m [...]dietat. lin­guae. But all the Iustices of England re­solved, that the Tryal should be by all Eng­lish, and likened it to the case of priviledge, where one of the Defendants demands pri­viledge, and the Court, as to his Compa­nion cannot hold Plea, there he shall be ousted of his priviledge, sic hic. More 557.

By the Statute of 8 H. 6. cap. 29. 29. Challenge. Insufficiency, or want of Fréehold, is no cause of Challenge to Aliens, who are im­pannelled with the English, (notwithstanding Stamford's Opinion. Pl. Coron. 160) for this Statute saith, that the Stat. 2 H. 5. 3. shall extend only to Enquests betwixt Denizen and Denizen.

If the Defendant do not inform the Court When the A­lien should pray a Venire facias per me­dietatem. that he is an Alien, upon awarding of the Venire facias, and so yray a Venire facias, per medietatem linguae; he cannot challenge the Array for this cause at the Tryal, if the Iu­ry be all Denizens (notwithstanding Stam­ford's Opinion to the contrary, and the Books cited by him, fol. 159. pl. Cor.) For the Alien at his peril should pray a Venire fa­cias, per medietatem linguae. Dyer 357. Vide Rolls tit. Trial. 643.

If the Plaintiff be an Alien, he must sug­gest it before the awarding of the Venire fa­cias; but if the Defendant be an Alien, the Plaintiff is allowed to surmise that, before or after the Venire facias, because the Defen­dants quality may not be known to him be­fore. 27 H. 7. 32.

CHAP. XIII. The Learning of General Verdicts, Spe­cial Verdicts, Privy Verdicts, and Verdicts in open Court; and where the Inquest shall be taken by default. Inquests of Office, &c. Arrest of Judg­ment, Variance betwixt the Nar. and the Verdict, &c.

VErdit or Verdict; In Latine, Vere di­ctum, Verdict. quasi dictum veritatis, As Judi­cium, est quasi Juris dictum: Is the Answer and Resolution of those 12 men; concerning the matter of fact referred to them by the Court, upon the Issue of the parties. And this is the foundation, upon which the Iudg­ment of the Court is built, for [...]x facto jus oritur; the Law ariseth from [...]he fact; Where­fore it is no wonder, that the Law hath ever béen so curious, and cautelous, as [...]ot to be­lieve the matter of fact, until it is sworn by 12 sufficient men, of the Neighbourhood where the fact was done, whom the Law supposeth to have most cognisance of the truth, or falsehood thereof: which being [Page 360] sworn (for the words are, Juratores predict. The Credit of Verdicts. dicunt super sacrūm suum, &c.) is the Verdict, whereof we now treat; And such credit doth the Law give to Verdicts, that no proof will be admitted to impeach the verity thereof, so long as the Verdict stands not reversed by Attaint. And therefore upon an Attaint, no Su­persedeas is grantable by Law. Plo. Com. 496.

And it is worth our observation, that the Law seems to take more care of the fact, than of her self; for the Major part of the Iudges give the Iudgement of the Law, though the other Iudges dissent. But every one of the 12 Iurors must agrée together of the fact, be­fore there can be a Verdict, which must be delivered by the first man of the Iury. 29 Assise. pl. 27.

And this Verdict is of two kinds, viz. one General or special. general, and the other special, or at large.

The general Verdict, is positively, either General Ver­dict. in the Affirmative, or Negative, as in Tres­pass, upon Not guilty pleaded; The Iury find Guilty, or Not guilty; And so in an Assize of Novel disseisin, brought by A. against B. The Plaintiff makes his plaint, Quod B. disseisivit eum de 20 acris terrae, cum perti­nentiis, The Tenant pleads, Quod ipse nul­lam injuriam seu disseisinam prefato A. inde fecit, &c. The Recognitors of the Assize do find, Quod predict. B. in juste & sin [...] judicio [Page 361] disseisivit predict. A. de predict. 20 acris terrae cum pertinentiis, &c. This is a general Verdict. 1 Inst. 228.

A Special Verdict, or Verdict at large, is Special Ver­dict. so called, because it findeth the special mat­ter at large, and leaveth the Iudgment of the Law thereupon, to the Court, of which 1 Instit. 226. kind of Verdict it is said, Omnis Conclusio boni, & veri judicii sequitur, ex bonis & ve­ris premissis, & dictis Juratorum. And as a Special Verdict may be found in Common-Pleas, so may it also be found, in Pleas of the Crown, or Criminal Causes that con­cern life or member.

And it is to be observed, that the Court The Court cannot refuse it. cannot refuse a Special Verdict, if it be per­tinent to the matter in Issue. 1 Inst. 228.

It hath béen questioned, whether the Iury A special Ver­dict may be found upon any Issue, as upon an abs (que) hoc, &c. could find a Special Verdict, upon a special point in Issue, or no, as they might upon the general Issue. But this question hath been fully resolved in many of our Books, first in Plo. Com. 92. It is resolved, That the Iury may give a special Vardict, and find the matter at large, en chesc [...]n issue en le monde, so that the matter found at large, tend only to the Issue joyned, and contain the certainty and verity thereof. lib. 9. 12.

And in 2 Inst. 425. upon Collection of [Page 362] many Authors, it is said, That it hath béen resolved, that in all Actions, real, personal, and mixt, and upon all Issues joyned, gene­ral or special, the Iury might find the spe­cial matter of fact, pertinent, and tending onely to the Issue joyned, and thereupon pray the discretion of the Court for the Law. And this the Iurors might do at Common Law, not only in Cases between party and party, but also in Pleas of the Crown, at the Kings Suit, which is a proof of the Com­mon Law. And the Statute of Westm the 2d cap. 30. is but an affirmative of the Com­mon Law.

And as this spetial Verdict is the safest for A Free-hold upon Condi­tion, without Deed, may be found by Ver­dict, though it cannot be pleaded. the Iury, 1 Inst. 228. so in many Cases it is most advantagious to the party, and helps him where his own pleading cannot. As for example, saith Littleton, Sect. 366, 367, 368. Albeit a man cannot in any Action, plead a Condition, which toucheth and con­cerns a Freehold, without shewing writing of this; yet a man may be ayded, upon such a Condition, by the Verdict of 12 men, ta­ken at large, in an Assize of Novel diss [...]isin, or in any other Action, where the Iustices will take the Verdict of 12 Iurors at large: As put the case, a man seized of certain Land in Fée; letteth the same Land to ano­ther, for term of life, without Deed; upon Condition to render to the Lessor, a certain Rent, and for default of payment, a Re­entry, [Page 363] &c. By force whereof the Lessee is seised as of Fréehold; and after, the Rent is behind, by which the Lessor entreth into the Land, and after the Lessée arraign an Assize of Novel disseisin, of the Land against the Lessor, who pleads that he did no wrong, nor Dissesin. And upon this, an Assize is taken. In this case, the Recognitors of the Assize may say, and render to the Iusti­ces, their Verdict at large, upon the whole matter; as to say, that the Defendant was seized of the Land, in his Demesne as of Fée, and so seized, let the same Land to the Plaintiff, for term of his life, rendring to the Lessor such a yearly Rent payable at such a Feast, &c. Vpon such Condition, that if the Rent were behind at any such Feast, at which it ought to be paid, then it should be lawful for the Lessor to enter, &c. By force of which Lease, the Plaintiff was seiz­ed in his Demesn, as of Fréehold, and that afterwards, the Rent was behind, 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 Iudgment, that the Plaintiff shall not take any thing by his Writ of Assize, and so in such case, the Lessor shall be ayded, [Page 364] and yet no Writing was ever made of the Condition: For as well as the Iurors may have Conusance of the Lease, they also as well may have Conusance of the Condition, which was declared and rehearsed upon the Lease.

In the same manner 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.

But in Assise of Rent it cannot be found to be upon Condition, unless they also find the Deed of the Condition.

So of a Confirmation in Fee to Lessée for years.

Per Hale Ch. Just. Guild-hall, Hill. 1671.

A Special Verdict may be found as to Damag [...]s in an Action of the Case: as the Case was there, viz. Pro Quer', and if so, &c. then such Damages; if so, &c. then Dam­ages such; and he said, he had known it so done in Debt, and the Damages three ways.

Also in such case, where the Enquest may General Ver­dict. 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 find Estoppel, Estoppels. which cannot be pleaded, as in the 2d Re­port, fol. 4. it well appears, 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 Deed, 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, Noveriat universi, &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 Deed; And it was adjudged by Anderson, Chief Justice Windham, Periam, and Walmesley, that this [Page 366] was his Deed, And the Reason of the Iudg­ment was, That although the Obligèe, in Note, that a Deed may be pl [...]aded to be delivered after the dare, but nor before, be­cause it shall not be intend­ed, written be­fore the date, which may be after the date. 12 H. 6. 1. pleading, cannot alledge the delivery before the date, 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 Deed; yet the Jurors, who are sworn ad veritatem di­c [...]nd. 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, be As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self, admitteth the Wast, &c. 9 H. 6. 66. and the Jury can­not find no Wast, for that would be a­gainst the Re­cord. Estoppel. within the same Record in which the Issue is joyned, upon which the Jurors give their Verdict, there they cannot find 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, and the Jurors are not to be charged with any such thing, but only with things in which the parties vary. Ib. li. 5. 30.

So Estoppels, which bind the Interest of the Land, as the taking of a Lease of a mans own La [...]d, by Déed indented, and the like, Cro. 1. part 110. Lib. 4. 53. being specially found by the Iury, the Court ought to judge, according to the special mat­ter; for albeit, Estoppels regularly must be pleaded and relyed upon, by apt conclusion, and the Iury is sworn ad veritatem dicend. [Page 367] yet when they find veritatem facti, they per­sue well their Oath, and the Court ought to adjudge according to Law. So may the Iu­ry find a Warranty being given in Evidence, though it be not pleaded, because it bindeth the right, unless it be in a Writ of Right, Warranty not pleaded. when the Mise is joyned upon the méer right. 1 Inst. 227.

Verdicts ought to be such, that the Court Uncertain Verdicts. may go clearly to Indgment thereon, and therefore Verdicts finding matter incertainly, or ambiguously, are insufficient and void, and no Iudgment shall be given thereupon: As if an Executor plead Plene Administravit, and Issue is joyned thereon, and the Jury find that the Defendant hath Goods within his hands to be administred, but find 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 the The Office of the Jury. verity of the fact, and leave the Iudgment of the Law to the Court. And therefore up­on an Indictment of Murder, quod felonice per cussit, &c. If the Iury find per cussit tan­tum, yet the Verdict is good, for the Iudges of the Court are to resolve upon [...]he 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, find the Felon [Page 368] guilty of the murther contained in the In­dictment.

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

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

Yet in many Cases, (nay almost in all) Where the Verdict ought to be of more than is in the Issue. the Iury ought to find 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 t [...] be not part of the Issue in terminis. li. 10. 119.

An Action of the Case on Deceit was brought, for that he sold unto the Plaintiff [Page 369] two Oxen, and warranted them to be sound; on not Guilty, the Iury found him Guilty as to one, and not Guilty to the other, and good; for that the Action was founded not on the Contract, but the Deceit. 3 Cro. 884. Gravenor and Mete.

In Debt the Plaintiff declares, that he had Iudgment against Baron and Feme for a Debt of the Wives, dum sola, &c. that they were in Execution, and suffered to Escape, the Iury found the Husband only in Execution and Escaped, and Iudgment for the Plaintiff. Roberts versus Herbert, Hill. 12. Car. 2. C. B.

So in Trespass against two, one comes, Damages by the first In­quest. and pleads Not guilty, and is found guilty. In this case, the first Inquest shall assess damages for the whole Trespass, by both Defendants; and afterwards, the other comes, and pleads Not guilty, and is found guilty: The finding of Damages by the first Inquest, to which he was not party, shall bind him; and therefore if the Damages are outragious, and excessive, the Defendant Attaint. in the last Enquest, shall have an Attaint. li. 10. 119.

So in Trespass, Quare clausum fregit, if Issue be joyned upon a Feoffment, and the Jury give outragious Damages, An Attaint lies; for the inquiry of Damages is conse­quent [Page 370] and dependant upon the Issue, and parcel of their charge. Ibidem.

In the 11th Report, fo. 5. It was resol­ved, Damages by the first In­quest. That in Trespass against two, where one comes and appears, &c. against whom the Plaintiff declares with a simul Cum, &c. who pleads and is found guilty, and Dama­ges assessed by the Enquest, and afterwards 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 find the Tres­pass to be done by all, at one and the same time as the Plaintiff declared.

So in the Trespass against divers Defen­dants, Several Da­mages. Vide Devant ca. 4. if they plead not guilty, or several Pleas, and the Jury find for the Plaintiff in all, the Jurors cannot assess several Da­mages against the Defendants, because all is but one Trespass, and made joynt 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 act of all, of the same party being present. But in Trespass against two, if the Jurors find one guilty, [Page 371] at one time, and the other at another time, there several Damages may be taxed. But if the Plaintiff bring an Action of Trespass against two, and declare upon a several Tres­pass, his Action shall abate. And this is the diversity betwéen the f [...]nding 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 find generally for the Plaintiff, the Jurors cannot sever the Damages; if they do, their Verdict is vicious.

But in Trespass against two, where one Judgment de melioribus dampnis. appears, 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 several Damages assessed: in judgment of the Law, the several 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 bind all, but fiat nisi una Executio.

It is a Maxim, That in every case where Damages. an Inquest is taken by the Mise of the parties, by the same Inquest shall damages be taxed for all: And in Mich. 39 H. 6. fo. 1. In an [Page 372] Action of Trespass against many, (who pleaded in Barr the Term before) and one of them made default, which was Recorded, Writ of In­quiry. 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 found 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 un­til, &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, who plead Damages by the first In­quest. not guilty, &c. severally; and several Venire fac. awarded. The Inquest which first passes, shall [Page 373] assess damages for all, and the second Inquest ought not to assess damages at all, but that Defendant shall be 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.

Now let us sèe, when something is left Verdict, when to be supplied, by Writ of In­quiry, &c. out of the Verdict which the Jury ought to have inquired of, whether it may be supplied by matter ex post facto; and how: And for this, know, that if damages be left out of a Vide hic. cap. 6. Verdict, this omission cannot be supplied, 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 lies, There the omis­sion of this, may be supplyed by [...] Writ of Inquiry of damages; as in a Quar 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 [Page 374] 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 point is omitted, whereof on Attaint lyeth, there this shall not be supplyed by Writ of Inquiry, upon which no Attaint lyeth. And therefore in Detinue, if the Jury find 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, shall the Plaintiff Verdict set a­side, because the damages not well as­sessed. loose the benefit of his Verdict, because the Jury assessed no damages, (or did insuffici­ently assess them)? Certes in such Cases where damages only 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 Iudg­ment Release Da­mages. 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 Iudgment for those dama­ges well assessed. And oftentimes the in­sufficienc [...] Verdict set aside in part. of the Declaration shall set aside the Verdict; as if an Action upon the Case be brought upon two promises, and one of For insuffici­ency in the Declaration. them be insufficiently laid, and the Verdict give intire damages, this is naught for the [Page 375] whole; But if the Damages had been seve­rally assessed upon the several promises, 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 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 Release of da­mages where none were as­sessed. the Plaintiff released his damages, and costs, and upon this had Iudgment: upon which the Defendant brought a Writ of Error, and assigned the Error aforesaid, scil. the insuf­ficiency of the Verdict; fed Judicium affirma­tur, because the Plaintiff had released his damages and costs, which is for the benefit of the Defendant.

In Detinue of Charters, or non detinet, Verdict for the Plaintiff, and Damages, but the Iury did not find the value of the Déeds, and a Writ of Inquiry was awarded to that purpose and returned, and ruled good; and by Twisden Just. Debt against Executor who pleads plenè, &c. and it's fou [...]d against him, and the Iury give no damages, that can't be aided by Writ of Inquiry. Burton versus Robinson. Pasch. 17 Car. 2. B. R.

In Dyer 22 Eliz. 369. 370. In a Wri Release of da­mages where they were not well assessed. 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 Iudgment for the Land: And Note, that in­sufficient assessment of damages, and no asses­sing, is all one.

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

But if the Iury do assess more damages More damages than the Plain­tiff declares for. then the Plaintiff declares for, the Plaintiff may remit the overplus, and pray Iudgment for the residue, as in the 10th Report, fol. 115. in Trespass the Plaintiff declared ad damp­num, &c. 40 l. at the tryal the Iury asses­sed damages occasione transgressionis pr [...]dict. 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 40 l. Damages re­mitted. (to which damage he had counted) with in­crease of costs of suit, and had 9 l. de Incre­mento, added by the Court, which in all [Page 377] amounted to 50 l. and had his Iudgment ac­cordingly: upon which, a Writ of Error was brought, and the Iudgment affirmed.

For as in real Actions 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 ease of Costs, he shall recover for the expences depending the suit, which being uncertain, cannot be com­prehended in the Count, because the Count extends to damages past, and not to expences of Suit. For in personal Actions, he counts Damages in real and per­sonal Actions. to damages, because he shall recover dama­ges only for the wrong done, before the Writ brought, and shall not recover dama­ges for any thing, pendant le briefe. But in real Actions, the Demandant never counts to damages, because he is to recover dama­ges also, pendant le briefe, which are in­certain.

The Iury may if they will, assess the da­mages Damages and Costs intirely assessed. and costs intirely together, without making any distinction, 18 E. 4. 23. But then they must not assess more damages and costs, than the damages are, which the Plaintiff counts to; for if they do, the Plaintiff shall recover only 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 13 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 than the Plaintiff declared for, or less, and so the Court knows not how to increase the cost; wherefore he shall have Iudgment but for 20 marks, by reason of the incertainty.

Where a special Verdict is not entred ac­cording Verdict a­mended by the Notes. to the Notes, the Record may be amended, and made agrée with the Notes at any time, though it be 3, or 4, &c. Terms after it is entred. lib. 4. 52. lib. 8. 162. Cro. 1 part. 145.

In the Case of Turnor and Thalgate, Mich. 1658. B. R. It was said per Cur' That spe­cial Verdicts may be amended by the Notes, but the Notes cannot be amended or inlarg­ed by any Averment or Affidavit, for that were to f [...]d a Verdict by the Court. Yet in that Case, where the Notes were, that the Iudgment, &c. was vacated pro ut per Rule, the Verdict was amended, vacated per Cur' pro ut per Rule; for so is implied in the Notes.

See a Verdict amended by the Notes af­ter Iudgment and Error brought, Rolls. 1 part. Reports. 82.

If the matter, and substance of the Issue Form. Hob. 54. be found, it is sufficient; for precise forms are not required by Law in special Verdicts, (which are the finding of Lay-men) as in Pleadings, which are made by men learned in the Law; and therefore intendment in many Cases shall help a special Verdict, as much as a Testament, Arbitrament, &c. And therefore he which makes a Deputy, ought to do it by Escript; but when the Iury find generally, that A. was Deputy to B. all necessary incidents are found by this; and upon the matter they find, that he was made Deputy by Déed, because it doth tantamount. lib. 9. 51. And in the 5th Report, Goodale's 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.

In all Cases where the Iury find the mat­ter Ill conclusion. committed to their charge, at large, and over more conclude against Law, the Verdict is good, and the conclusion ill. li. 4▪ 42. and More 105. 269. the Iudges of the Law will give [...]udgment upon the special 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. Vide De­vant.

Where the Declaration in Trespass is As general as the Narr. Cum aliquibus averiis, of a number uncertain, and the Verdict is as general as the Decla­ration, cum aliquibus averiis, there the Ver­dict is good. Cro. 2. part. 662.

In Ejectione firme, 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 nomina, &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; For when the Quoad Resi­duum, incer­tain. Iury find 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 find quoad residuum tne 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. 1 [...]3.

Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10 Acres, and Quoad Residuum not guilty; Quoad Resi­siduum. and it was moved in arrest of Iudgment, [Page 381] That it is uncertain in which of the Vills this Land lay: and therefore no Iudgment can be given: sed non allocatur, and it was adjudged for the Plaintiff, for the Sheriff shall take his Information from the party for what ten Acres the Verdict was. Cro. last part. 465. diversitas apparet.

Where the Iury find Circumstances upon Circumstan­ces. an Evidence given, to incite them to find 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 may find Cir­cumstances and presumptions, upon which the Court ought to judge: As to find that the Husband delivered Goods devised by the Wife. Vpon this, the Court adjudged that More 192. the Husband assented to the devise at first.

Where a Verdict is certainly given at the Postea amend­ed, how. Tryal, and uncertainly returned by the Clerk of the Assizes, &c. The Postea may be amended; upon the Iudges certifying the truth how the Verdict was given. Cro. 1. p [...]rt. 338.

In many Cases a Verdict may make an ill Ill Plea, made good by Ver­dict. Plea or Issue good. As in an Action for words, Thou wast perjured, and hast much to answer for it before God; Exception after Verdict for the Plaintiff, in arrest of Iudg­ment: For that it is not laid in the Decla­ration, [Page 382] that he spake the words in auditu complurimorum, or of any one, according to the usual form: sed non allocatur; for being found by the Verdict that he spake them, it is not material, although he doth not say, in auditu plurimorum; whereupon it was ad­judged for the Plaintiff. Cro. 1. part. 199.

Sée Cro. last part. 116. Where the Barr was ill, because no place of payment was alledged; yet the payment being found by Verdict, it was adjudged well enough; for a payment in one place, is a payment in all places.

Trespass by Baron and feme de clauso fra­cto, of the Barons. And for the 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 Baron & Feme. de clauso fracto of the Barons, which ought not to be; But for the Battery of the feme, they may joyn, whereto all the Court a­gréed; 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 [Page 383] that part wherein they ought to joyn: This Verdict hath discharged the Declaration for that part which is ill, and is good for the re­sidue. As in 9 E. 4. 51. Trespass 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 bat [...]ery of the feme, and the Writ abated for the residue. (And of that Opinion was Lea, Chief Justice, and Doderidge al. contra.) And the same Law I conceive, if the Iury had found the Defendant Not guilty of the battery to the Palmer's Re­ports, 338. Husband, but guilty to the Wife. Cro. 2. part. 655.

Rochel and his Wife, brought an Action of Trespass and Assault in the Exchequer, Rochel and his Wife against Steel. Hill. 1659. against Steel, and others, who pleaded Not guilty, and the Verdict found Steel guilty of the Battery to the Wife; but found 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 the Declaration, and the Plaintiff should have had Iudgment for the Damages, for the Battery of the Wife.

The Iury may find any thing that may be Of what a Ver­dict may be. [Page 384] given in Evidence to them, as Records, ei­ther Patent, Statute or Iudgment. Things Plo. Com 411. done in another County, or Country; for which sée Evidence before. Hob. 227. And of those things they ought to have Conu­sance, they are to have Conusance also, of all Incidents, and dependants thereupon; for an Incident is a thing necessarily depend­ing Incidents. upon another. Co. Littleton 227. b.

If the Verdict may by any ways be con­strued How constru­ed. good, a construction to destroy it, ought not to be made.

If one of the Iury be Outlawed when the Verdict is found, the Verdict is not good, but Outlaw. may be reversed by Error.

In a special Verdict the case in Fact must be found clear to a Common intent without Equivocation. Vaughan's Reports 78.

If the Iury collect the Contents of a Contents of a Deed. Deed, and also find the Déed in haec verba, the Court is not to Iudge upon their Colle­ction, but upon the Déed it self. The Iury may find the Contents of a Déed or Will proved by Witnesses, Ibidem.

Trespass for disturbing him of his Com­mon Common. belonging to 100 Acres, and the Iury find Common for 50. this is for the Plain­tiff; otherwise upon an Avoury, or Quod [Page 385] permittat, which are founded upon the right, but the Trespass is for Damages. Palmer's Rep. 289.

If the matter and substance of the Issue The Verdict may be against the Letters of the Issue, so the substance is found. 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 mind, for Tythes of Lambs: And thereupon Issue joyned. And the Iury found, that before twenty years then last past, there was such a prescription, and that for these twenty Prescription. 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 general 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 custom. But it was adjudged for the Plain­tiff; for albeit, the modus decimandi had not been paid by the space of twenty years, yet the prescription being found, the substance of the Issue is found for the Plaintiff.

In Assiise of Darrein Presentment, if the Avoydance. Plaintiff alledge the avoydance of the Church by privation, and the Jury find the voydance by death, the Plaintiff shall have Iudgment; 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 Hospital bring an As­sise against the Ordinary, he pleadeth that Deprivation. 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 judgment, for the deprivation is the substance of the matter. Ib.

The Lessee 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 Lessee cut down 10 Trees, the Lessor bringeth an A­ction Breach of 20 Trees cut down for 10. of Debt upon the Bond, and assigneth a breach, that the Lessée cut down 20 Trées: whereupon Issue is joyned, and the Jury find that the Lessée cut down ten: Iudgment shall be given for the Plaintiff, for sufficient matter of Issue is found for the Plaintiff, to forfeit the Bond. Ib.

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

And generally where modo & forma, are Modo & forma. not of the substance of the Issue, but words of [Page 387] form; there it sufficeth, though the Verdict doth not find the precise Issue.

As if a man bring a Writ of Entry in c [...]su proviso, of the Alienation made by the Tenant in Dower to his disinheritance, and counteth of the Alienation made in Fee, 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 term of another mans life. The Demandant shall recover, yet the Alie­nation was not in manner as the Demandant hath declared, Littleton, Sect. 483.

Also if there be Lord, and Tenant, and the Tenant hold of the Lord by fealty only, and the Lord distrain the Tenant for Rent, and the Tenant bringeth a Writ of Tres­pass against his Lord, for his Cattel so ta­ken, Trespass by the Tenant against the Lord. and the Lord plead that the Tenant holds of him by fealty and certain Rent, and for that Rent behind he came to distrain, &c. And demand Iudgment 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 V [...]rdict, that he holdeth of him by fealty only, in this case the Writ shall abate, and yet he doth not hold of him, in manner as the Lord hath said; For the matter of the Issue is, Whe­ther [Page 388] the Tenant holdeth of him or no; for if he holdeth of him, although that the Lord distrain, the 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, The Verdict may find the Defendant guilty of the Trespass at a­nother day or place. or for Goods carried away, 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.

So the Iury may find the Conspiracy at Conspiracy. another day, for the day is but form.

In Battery if the Defendant justifie at Battery. another day with a Traverse Devant & apres, he may be found guilty at another day.

If the Defendant by this Plea agrée with Son assault De­mesn. the Plaintiff in the day, year, and place, and the Plaintiff reply, De son tort demesn sans ties cause, and the Defendant prove an As­sault by the Plaintiff, the Plaintiff shall not give in Evidence a Battery at ano­ther day. Rolls. tit. Tryal. 687. Vide de­vant. cap. 11.

And so in many other cases these words, [Page 389] 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, That where the Issue ta­ken, Modo & forma, when words of form. 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 When of sub­stance, & must be found by the Verdict. is traversed, as if a Feoffment be alledged by two, and this is traversed Modo & forma; And it is found the Feoffment of one, there Modo & forma, is material; So if a Feoff­ment So in non as­sumpsit modo & forma, upon an Indebitatus as­sumpsit, there modo & forma, were not ma­terial. Secus, when the A­ction is upon a Collateral promise. be pleaded by Deed, and it is traversed Absque hoc quod feoffavit, Modo & forma, upon this Collateral issue, Modo & forma are so essential, as the Jury cannot find a Feoffment without Déed. Co. Little­ton, 282.

But here is a diversity to be observed, That albeit the Issue be upon a Collateral 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, Trespass Qua­re vi & armis, lies not against the Lord for distraining his Tenant, with­out cause. are but words of form, as in the afore­said case of the Lord and Tenant, it plainly appears; for it was all one, whether the Tenant held by fealty only, or by fealty and Rent, because if either was true, the Te­nant [Page 390] could have no Trespas, Quare vi & armis, against the Lord in that case, by the Statute of Marlbridge. cap. 3. Vide hic Devant.

After the Verdict recorded, the Jury can­not Jury cannot Vary from their Verdict, when it is re­corded. not vary from it, 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, and a privy Verdict given out of Court, before any of the Iudges of the Court, Open Verdict and privy Ver­dict. 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 The Jury may vary from a private Ver­dict. private Verdict, as if that find for the Plain­tiff, the open Verdict may be for the Defen­dant, and this shall stand, and the private Verdict shall not be deemed 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 usual 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 [Page 391] 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.

And also in the Court it self, if they pro­nounce Bro. tit. Ver­dict. 12. 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 fortiori upon better advise­ment, they may do so when their first Verd [...]ct 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, Jury shall give but one Ver­dict in the same cause. although it be imperfect, 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, and naught Verdict good in part. in another part, it shall stand in part, and a [Page 392] 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 doubtful in Law; for, a Traverse (for this Reason) may be omitted. As in debt against an Executor, It is a good plea to say, Administration was committed to him, and therefore he should be named Ad­ministrator, and not Executor, without tra­versing that he is not Executor; for the lay-people know no difference, betwéen one ad­ministrating as Executor, and one admini­strating as Administrator, 9 E. 4. 33.

For this Reason likewise, the special matter may be pleaded together with the ge­neral Issue, &c. As that the Obligation put in suit, was sealed by him, and delivered to A. to kéep till certain Indentures were made A Special non est factum. betwéen the Plaintiff and him; 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 ge­neral conclusion, the matter precedent shall not be waved, for it were perillous to put the special matter in the mouth of Lay-people. 9 H. 6. 38.

Damages. Where the Is­sue upon a col­lateral Matter is tryed in a foreign Coun­ty, Hundred, &c. where the Principal and Accessary shall be tryed. In Trespass, if a Release be pleaded in a Foreign County, and tryed there for the Plaintiff, there also shall damages be [Page 393] assessed by the same Iury. For where the 21 Ass. 14. principal is tryed, there also shall the Accessa­ry and incidents be inquired of. I need use no other instances to illustrate this, than the case abovesaid.

They may find a Condition to defeat a What things the Jury may find. Freehold of Land, although it be not pleaded; but of things in grant, they must also find the Déed of the Condition.

Vpon Traverse of a Lease Modo & forma, the Iury may find a Lease of another date, Modo & forma. although the date be mistaken in the Plead­ing, but not a Lease made by another, than from whom was pleaded; for this is out of the issue in matter and form.

In an Assise of Rent, the Iury may find Rent. that the Rent was granted with an Atturn­ment, although no specialty be shewed.

A Fine or Recovery may be found by the Matter of Re­cord. Iury, without shewing of it under Seal. The Iury cannot find against what is admit­ted by the Record.

They may find a Divorce, which is a Re­cord Divorce. in the Spiritual Court, but not by our Law.

Attainder of Felony not pleaded cannot be Attainder. found, unless Sub pede sigilli. 26 Ass. 2.

The Iury is not to inquire of this which is agréed by the parties.

As in Dower, if the Tenant says he has Dower. been always ready to render Dower, and the issue be if the Husband dyed seised, the Iu­ry is not to inquire, if the Estate was dowa­able; for this is confessed.

If the Defendant doth not deny the Wast. Wast, but Pleads another matter, scilicet nul tiel vill lou, &c. the Iury is not to in­quire of the Wast, but give damages although no Wast be made.

In Debt upon a Bond, with a Condition Award. to perform an Award, and the Defendant Plead Nullum fecit Arbitrium, and the Plain­tiff reply, fecit Arbitrium, and sets it forth, and the Defendant rejoyn Nul tiel award, the Iury cannot find any matter dehors to make the Award void in Law; which doth not ap­pear within the Award pleaded. As that the release awarded would discharge the Bond of the Submission, for nothing is in issue, but whether such an Award was made in f [...]it as is alledged, neither could this matter be alledged by any Rejoynder; for it would have béen a departure from the Plea, and [...] Iury cannot find that which would have béen a departure, because out of their issue. But in this Case, if the Defen­dant would have took advantage of it, he ought to have Pleaded all this matter in his [Page 395] Barr, and not have said Nullum fecit Arbi­trium; for 'tis a departure in the Rejoynder to acknowledge an Award which was denyed in the Plea.

In Debt for 20 s. and the Issue be, solvit How the Jury ought to find their Verdict, and what shall be intended. ad diem, and the Verdict be quod debet the 20 s. this is not good, because it is not direct but by Argument.

In Debt upon an Obligation, if the De­fendant say, That he is a Lay-man not let­tered, and 'twas read as an Acquittance, Nient lettered. Et issint nient son fait, if the Iury find he knew what he did, and that it was a Bond, and he was willing to be bound, this is no good Verdict, because they ought precisely to find if it was his Déed or not.

If the Issue be, whether where a Copyhold is granted to thrée for the lives of two, if he which dye seised, &c. ought by Custom to Custom. pay a Heriot or not, and the Iury find that there was never any such Estate granted in the Mannor; this is not good for the rea­sons aforesaid.

So if the Issue be, if by Custom an Estate tayle may be granted, and the Iur [...] find, that it may be granted in Fée; which is greater, yet 'tis not good.

In Trespass for taking and cutting his Trespass. [Page 396] Leather, if the Defendant justifie as a Searcher, and cut it for the better search More scrutatorum, without any other da­mage; and the Plaintiff reply, De injuria sua propria Abs (que) hoc, that he cut it, More scrutatorum, upon which Traverse, issue is joyned, and the Iury find that the Defendant cut it as the Plaintiff has alledged; this is no good Verdict, because 'tis not any answer to the issue, but by Argument.

In Trespass and Battery in A. to find Battery. not guilty in A. is not good; for it ought to be generally not guilty.

Vpon this Plea, if the Plaintiff reply Riens per De­scent. that he hath divers Lands in D. per descent, and the Iury find he had divers Lands by de­scent, this is good, without finding what; for 'tis Incertain. not material, in regard upon this false Plea a general Iudgment, is to be without having respect to the Assets.

Of 5 Acres, if they find the Defendant Ejectment. guilty in 8 pieces. de terre parcel tenemento­rum predict, 'tis a void Verdict because un­certain, and no Execution can be made of peices.

In case upon non Assumpsit Pleaded, if Verdict Spe­cial. the Iury find that the Defendant non As­sumpsit; yet if two Witnesses say true, then we find that he did Assume. The first shall stand for the Defendant, and the last words [Page 397] are void; and Surplusage shall not vitiate. Surplusage.

If upon a Lease of 20 Acres, and the De­fendant Ejectment. plead Non dimisit, and the Iury find quod dimisit 10 Acres tantum, and the Conclusion of the Verdict is, Et si, super to­tam materiam Curiae videbitur quod Defen­dant dimisit 20 Acres, then they find for the Plaintiff; and if not, then for the Defen­dant; this is repugnant, and so the Verdict is void in all.

To Assess Damages, incertainly is void. Certain. As to say we Assess 40 l. if we must by Law, if not then but 3 l. this is void.

Indelitatus assumpsit, to Assess Damages occasione debiti predicti is good, although it ought to be occasione non performationis, &c.

In an Information upon the Statute Information. 39 El. ca. 11. for Dying with Logwood, by which he lost 20 l. for every Offence upon Not guilty, if the Iury find him Guilty for using this against the Statute for 40 days, by which he lost this is not good, be­cause he forfeits 20 l. for every time, and the number of times do not appear.

If the Iury find the words in the Will, and yet do not find the Will, the Verdict is not good.

If they first find the Special Matter, and then find the Issue generally, the Special Matter is hereby waved.

If the Iury find that J. S. was seised in Where a Spe­cial Verdict shall be good by Intend­ment. Fée, and Devised the Land to J. D. although they do not find that the Land was held in Socage, yet this is good; for this shall be intended, this being a Collateral thing, and this being the most common Tenure.

If they find that he was seised and made his Will in haec verba, &c. although they Will. do not find that he Devised the Land as in the former; yet this is good by intendment.

But if a thing is left out, and cannot be intended, the Verdict is not good.

If the Issue be whether the Sheriff took J. S. and kept him in Prison in Execution for certain Debt and Damages by force of a Cap. ad Sa. and the Iury find that he took him by force of an alias Cap. ad Sa, &c. al­though they do not find that he kept him in Execution for the Debt and Damages afore­said, according to the Issue, yet this is a good Special Verdict; for it shall be intend­ed, for the Consequence is necessary from this which is found, for he could not take him, but that he must be in Execution. Vide several instances of this. Roll. tit. Tryal. 697, &c.

If the Iury find that J. S. was seised in Fée, and made his Will in haec verba, and that he afterwards died; although they do not find that he died seised, yet it shall be Will. intended that he died seised; and so good.

If they find that A. did Bargain and Bargain and Sale. Sell, &c. although they do not find any con­sideration, yet this shall be intended.

So if they find that such persons Authori­zati Letters Pa­tents. virtute literarum patentium dominae E­lizabethae, &c. and do not find that the Let­ters Patents were under the Great Seal, yet this shall be intended.

Verdicts of Lay-men shall be taken accord­ing to their intent, and néed not so precise a form as in Pleadings, lib. 4. 65. Hob. 76.

Therefore if the Iury find a Recognizance in nature of a Statute Staple in this man­ner, That the Conusor came before R. O. Recorder of London, and T. O. Maior of the Staple, Et recognovit se debere to B. 200 l. and do not say, Secundum formam statuti, &c. nor Prescriptum Obligatorium, &c. although the Statute of 23 H. 8. provide, That it shall be by Bill Obligatory, sealed with three seals; and here it doth not appear, that there was any Bond or Seal, nor that it was ac­cording to the Statute; yet these things shall be intended, they having found a Re­cognizance [Page 400] before the Maior and Recorder.

A Special Verdict may be amended by Notes. the Notes.

If the Iury find a Special Verdict, and Where a spe­cial Conclu­sion of a spe­cial Verdict shall aid the Imperfections of it. refer the Law upon that special Matter to the Court, although they do not find any title for the Defendant, which is a Collateral thing to the point which they refer to the Court, yet the Verdict is good enough, for all other things shall be intended, except this which is referred to the Court, lib. 5. 97.

In Ejectment, If the Plaintiff declare upon a Lease made by A. and the Iury find a Special Verdict, and Matter in Law upon a power of Revocation of Vses by an Inden­ture and limitation of new Vses, and then a Lease for years made to the Plaintiff by the Lessor in the Declaration, and another, in which there is an apparent Variance; but they conclude the Verdict, and refer to the Court, whether the grant of a new Estate found in the Verdict be a revocation of the first Indenture, or not. The special Conclu­sion shall aid the Verdict, so that the Court cannot take notice of the variance betwéen the Lease in the Declaration and Verdict, because the doubt touching the Revocation, is only referred to the Court. And although they refer to the Court, whether this be a Re­vocation of the first Indenture, and not of the [Page 401] former Vses, and limitation of new Vses, as it ought to be; yet in a Verdict this is good, for their intention appears.

So Note a difference between a special Conclusion and Reference to the Court, and a general Conclusion and Reference to the Court. Vide hic apres.

In Debt for 40 s. for a Horse sold, and For whom the Verdict shall be said to be found. the Iury find 40 s. Debt for two Horses sold; this is found against the Plaintiff, for this is not the same Contract.

So in Debt for 20 l. if the Iury find 40 l. Debt, this is against the Plaintiff.

In Debt for 20 l. for Wood sold, and the Iury find the Bargain was for 20 Marks; the Plaintiff shall not have Iudgment for this Variance.

So in Debt for Rent upon a Demise of two Acres, and the Iury find it upon the Demise of one Acre, the Plaintiff shall not have Iudgment.

But in Debt for 24 l. 8 s. received for the Plaintiffs use, if the Iury fi [...] the Defen­dant owes 24 l. but not the 8 s. the Plaintiff shall have Iudgment; for perhaps he had paid the 8 s.

In an Action upon the Case against A. if the Plaintiff declares, That by Custom, &c. amongst Merchants, &c. If two are found in Arrearages upon Accompt, and they as­sume to pay this at certain Days, that any one of them may be charged for the whole by himself, and then shews the Accompt of A. and B. who were found in Arrear, in so much, &c. and promised to pay this at cer­tain days, but paid it not, and now he brings his Action against A. although upon non As­sumpsit pleaded, it be found that the days of payment are mistaken, yet the days being past, the Action lyes, because the Law makes the Duty upon the Accompt; for which after the days an Action lyes.

Where all is to be given in Damages, Damages. the Iury are Chancellors, and may give so much as the Case requires in Equity.

In Detinue of a Bond of 100 l. if the Detinue. Iury find that he received a Bond of a greater or less Sum, the Verdict is for the De­fendant.

So in a promise to do two things, if the Promise. Iury find but one of them, 'tis for the De­fendant.

Otherwise in Ejectment upon a Demise Ejectment. of 10 Acres, if the Iury find a Demise of less, the Plaintiff shall have Iudgment.

If the Issue be upon a Prescription, for Prescription. Common belonging to a Messuage, and 200 Acres of Land, 50 of Meadow, and 50 of Pastu [...]e; if the Iury find Common belonging to the House 20 Acres of Meadow, and 20 of Pasture in two of the Vills, and not in the rest; the Prescription is not found.

If part of the Trespass or wrong be found Trespass. Case. 'tis sufficient, in Trespass or an Action of the Case upon a Tort; as by a Commoner for putting and depasturing Cattel in the Common.

If the Issue be whether all the Lands in Audita Quae­rela. Execution, were the Estate of the Father in Tail, or in Fee, and part is found in Tail, and part in Fée; Iudgment shall be given for the Defendant who pleaded the Seisin in Fée.

If the Plaintiff declares upon a Demise Ejectment. made the first of May to Commence at Mi­chaelmas next, if the Iury find a Lease made at any other day before the Feast, 'tis found for the Plaintiff; for the day of making is not material.

Otherwise of a Lease for years [...]n Posses­sion; As of a Lease made the 5th of May Habend for thrée years from Lady-day be­fore; and the Iury find a Lease made the 15th day of May for three years, from the [Page 404] same Lady-day; for this is a Lease in Pos­session.

In false Imprisonment in Middlesex, and Imprison­ment. the Defendant justifie in London, to which the Plaintiff saith, the Defendant took him in Middlesex de son Tort demesn, and Issue upon this, and the Iury find the Defendant took him in Middles [...]x lawfully upon a Writ, yet this is for the Plaintiff; for the Issue is upon the place, and not upon the Tort, for that is confessed by the Pleading, if the ta­king was in Middlesex.

In Debt for 20 l. and the Iury find 40 l. the Debt. Plaintiff shall not have Iudgment, the rea­son séems to be because it cannot be the same Debt which is intire; but upon another Con­tract, which is mislaid.

If the Issue be Payment af [...]er Execution, Audita Quae­rela. and the Iury find payment before, yet the Issue is proved; for payment before, is pay­ment after.

In Debt upon a Bond bearing date the 25 Obligation. of June upon Non est factum, if the Iury find it his Déed, but that it was delivered 8 days after the [...]ate, this is found for the Plaintiff.

If the Issue be that two made the Feoff­ment, Joynt and se­veral. or two were Churchwardens, &c. and the Iury find but one, &c. the Issue is not found.

If the breach of Covenant or Wast be Obligation. Covenant. Wast. assigned in cutting 20 Trees, and the Iury find but 10; yet the Plaintiff shall have Iudgment.

If in Replevin, &c. the Iury find that Totum & Pars. part of the Cattel were Levant and Couch [...]nt, and part not, and the Issue is upon all, the Issue is not found.

In Ejectment for him who pleaded all, Ejectment. Void in part. of 14 Acres, and the Iury find guilty of 20, the Plaintiff shall have Iudgment for the 14, and the Verdict is void for the residue.

In an Information upon an usurious Con­tract Information. Usury. by two, 'tis not sufficient to find a Con­tract by one. Otherwise where the Tort and offence is several, as against two upon the Statute 4 E. 6. P [...]o emptione butiri, and sel­ling it by Retail, &c. and so in an Action upon the Case in Nature of Conspiracy, and for words laid twice in one Declaration. This will put in Issue the manner as well Modo & forma. as the matter, where the manner is mate­rial; as the time of the Fact, and other Cir­cumstances.

The Plaintiff replies, That W. made a Replevin. Lease. Lease to him 30 Martii Habend. from Lady-day last, and Issue Modo & fo [...]ma, and the Iury find a Lease made the 25 Mar [...]ii, Ha­b [...]ndum, Ex [...]unc for a year, this is good, [Page 406] although the time of making; and Com­mencement of the Lease are mistaken, inas­much as Extunc includes the Feast. Yet be­cause a sufficient Title and Lease is found for the Plaintiff to put in his Cattel, this is sufficient, this being the substance, and the Modo & forma shall not put the Circum­stances in Issue.

So in Trespass, if the Defendant justifie the putting in his Cattel for Common which he Claims from Pentecost to a certain time every year, which is traversed Modo & forma, and the Iury find that he had Common in Vi­gilia Pentecostis in festo, and the day next to this, to the time, this is found for the De­fendant.

But otherwise in these Cases id an Assise of Common, because there he ought to re­cover his Title.

In Debt for Rent, if the Defendant plead an Entry by the Plaintiff before the Rent was due, scilicet such a day which was after, and Issue upon the Entry Modo & forma, and the Iury find for the Defendant, he shall have Iudgment, for the scilicet is void, and the Modo & forma go to the matter. Sée after.

In Debt upon a Bond, and the Defen­dant Non est factum. plead Non est factum, and the Iury [Page 407] find the Bond made joyntly by another with the Defendant, the Plaintiff shall have Iudgment; for the Defendant should have pleaded this.

If a Devise be pleaded Absolute, if the Devise. Iury find a Devise upon a Condition Prece­dent, 'tis not good.

In Debt against A. as Daughter and Riens per Dis­cent. Heir to B. and the Defendant plead Riens per discent of B. and the Iury find that B. was seised in Fée and dyed, having Issue the Defendant his Daughter, and his Wife with Child of a Boy, who was afterwards born alive, and dyed one hour after, this Issue is found against the Plaintiff, because the Defendant had the Land as Heir to her Brother who was last seised, and not to the Father, and so the Defendant had not the Land by Discent from the Father, but from the Brother, and yet this is Asse [...]s in her hands if it had béen specially pleaded.

In a Writ of Error brought by him in re­mainder Error. in Tail to reverse a Fine, if the Defendant plead in Barr of the Writ of Er­ror a Common recovery by the Tenant in Tail, to which the Plaintiff replies, That at the time of the Recovery suffered, he him­self was Tenant to the Praecipe, and so the Recovery void, Vpon which Issue is joyned, Part. and the Iury find that he was Tenant of [Page 408] part, but not of other part. This Issue is partly found for the Plaintiff, and partly for the Defendant, so the Court shall procéed to the Examination of the Error; for that whereof he was found no Tenant; but 'tis a good bar of the Writ of Error, for that whereof he is found Tenant to the Prae­cipe.

In Assumpsit to pay Money upon request, Promise. and issue upon this, if the Iury find the Plaintiff promised to pay the Money, but do not say upon request, nor Modo & forma, 'tis not found for the Plaintiff.

In Ejectment of a Manner, if the Iury If the Sub­stance of the Issue be found, 'tis sufficient Manner. find that there were no Fréeholders, and so 'tis no Manner in Law, yet being a Man­ner by Reputation, and so the Tenements pass by the Lease, Therefore this Verdict is found for him who pleads the Lease of the Manner, for the substance is, whether any thing was demised or not.

In an Information of Extortion against Goal. the Gaoler of the Goal, a Prison of the Castle of Maidston; the Iury found there was no Castle, but that there was a Goal; this was for the Plaintiff, because Goal is the Substance.

If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt. [Page 409] assigned by the Plaintiff, and the Iury find an Accompt before R. only, the Issue is found for the Defendant; for the Accompt is the effect of the Issue. Vide Rolls tit. Trial. 707. &c.

If 11 agrée, and the 12th will not, the Ver­dict of the 11 cannot be taken, but the Court Jury agree. may carry the Iurors with them in Carts until they are agréed. 41 Ass. 11.

A privy Verdict may be altered in open Verdict al­tered. Court.

In an Extendi fac. upon a Statute, if the Iury deliver their Verdict in Writing, they may afterwards make it more formal, but they cannot alter it in substance; for it is a compleat Verdict by the delivery. So of Pre­sentments, &c.

A Fine pleaded in Barr, and that after Fine and Non­claim. the death of A. scil. 1 August 3. Car. B. Fa­ther of the Plaintiff was alive, & in plena vita & remansit infra hoc Regnum infra qua­tuor Maria, &c. apud W. in Com. D. and no Entry or Claim within five years after, and the Plaintiff replies, and takes Issue, què Modo & for­ma. il non fuit & remansit infra hoc Regnum An­gliae modo & forma, &c. And the Iury find quod non fuit & remansit infra hoc Regnum Angliae, 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a [Page 500] Month, and refer to the Court Au fuit & re­mansit infra hoc Regnum modo & forma, &c. This Issue is found for the Defendant, for the matter and substance of the Plea is, whe­ther he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff, and modo & for­ma shall not make the day material. Roll. tit. Trial. 713.

Iudgment upon a Demurrer, and a Writ Judgment, Ar­rest, at what time. of Inquiry executed at the return, the par­ty may shew any thing in Arrest of Iudg­ment; for Iudgment is not compleat until the last Iudgment. The first is but an A­ward, A man may plead any thing in Arrest of Iudgment after a Verdict, which will make Error if the Iudgment be given.

In Debt upon a simple Contract against an Executor, if he will not plead in Abate­ment, but other Matter which is found a­gainst him, he shall not afterwards alledge that he is not chargeable in Arrest of Iudg­ment.

So in Debt against Executors upon Ar­rearages of Accompt, where they are not chargeable.

That which appears ill upon the same Re­cord, What may be alledged. but not a ma [...]er of Fact, which doth not appear upon the Record, because the parties [Page 501] cannot by the Issue. As that a Iuror was challenged, and yet served on the Tales, for this cannot appear without alledging matter of Fact. Nor that the Defendants Attorney had no Warrant. But if there be any ir­regular or foul practice, this may be offered to set aside a Iudgment.

If any thing be omitted in the Declara­tion, Variance be­tween the Ver­dict and the Declaration. or if more be put into the Declaration than is found by the Iury; if it make a ma­terial Variance betwixt the Nar. and the Verdict, the Action shall abate.

These following are adjudged material Variances.

If the Declaration be for these words, Thou procuredst eight or Ten of thy Neigh­bours Words. to Perjure themselves, and the Iury find that he said, Thou hast caused eight or 10, &c. for he might be a remote Cause, sci­licet causa sine qua non, without Procure­ment. Nar. He is a Bankrupt. Verdict. He will be a Bankrupt within two days. Nar. He is a Thief. Ver. He stole a Horse. Nar. Thou art a Murderer. Ver. He is, &c. Nar. I know him to be a Thief. Ver. I think him to be a Thief.

So it is a material Variance, if a special Promise be laid to be upon Request, and the Verdict find it without Request. So if the Promise. [Page 502] Declaration be upon a Lease, made by two, or by Baron and feme, and the Iury find that one of them had nothing in the Land, or that the Baron only made the Lease, or that the two were Tenants in Common, and so several Leases, otherwise if they were Coparteners.

So in Case that the Testator was indebt­ed to the Plaintiff in 55 l. and the Defen­dant being Administrator in consideratio­ne, &c. Promise to pay this upon non As­sumpsit, if the Verdict find the Promise to be to pay 30 l. part of the 55 l.

So in Ejectment, If the Nar. be of a Lease Eje & ment. of thrée Acres, a Lease of a Moiety will not maintain the Nar.

So in Wast, for Cutting Trees, and the Wast. Verdict find that he eradicated the Trées, but did not cut them.

A Prescription in modo decimandi, That Prescription. every one who hath seven Lambs, or under seven, shall pay to the person ob. for every Lamb, and the Iury find that; and further, That if he had more than seven Lambs, he should pay a Lamb; and that the Parson should pay the Parishioner ob. This is not the same Prescription, but makes a Variance.

But if there be a Variance between the Variance. Verdict and the Nar. either by way of Sur­plus or Defect; but if this matter of Va­riance be not material in the extenuation of the Action or Damages, the Action shall lye notwithstanding the Variance.

These ensuing are adjudged not to be material.

Nar. Strong Thief. Verdict. Thief. Nar. I say, &c. Ver. I affirm, or I doubt not. Nar. The Plaintiff will do such a thing. Ver. I think in my Conscience he will, &c. Nar. Of a Lease by a Parson for five years; if he tam diu should be Parson & tam diu vi­veret. And the Verdict find the Lease to be for five years, if he tam diu viveret without the words, and should continue Parson; for the Law implyeth, That if he be depri­ved or resign, that the Lease Determines. Nar. He is a Murderer. Ver. He was a Murderer; for when he says, He is a Mur­derer, 'tis not intended, that he did the Act in presenti, but before. So in Trespasses or Actions upon Torts and wrongs which are several. If the Verdict find part, 'tis no material Variance; and the Plaintiff in these Cases shall have Iudgment, Roll. tit. Tryal. 720.

A Jury of Middles [...]x was demanded in Enquest by default. the Common-Pleas, the first day of the Term, [Page 504] and some appeared, and some not, so that there was not a full Jury, and neither the Defendant, nor his Attorney did appear, and therefore the Plaintiff prayed, that the In­quest might be awarded by default; and by the opinion of Welsh and Dyer, his prayer shall be granted, and the Custos Brevium, and all the Prothonotaries said the course was so; for the parties are demandable before the Jury, and if the Plaintiff make default, he shall be non-suited; and if the Defendant make default, the Jury shall be awarded by de­fault, whether they appear or not. Dyer 265.

Where an Inquest is 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. quod non est lex.

Det. 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 Defendant, for which the Plaintiff took nothing by his When the De­fendant may be condemned by default, and when an En­quest must be taken upon the default. 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 [...]ide, folly in le Plaintiff. Bro. Ib. 5. But upon such Release, and default in Tres­pass, the Enquest shall be taken by default, and the Defendant shall not be condemned by [Page 415] default, though the Plaintiff pray it, and the reason is, because the debt is certain, and the damages are incertain in Trespass, Bro. Ib. 3.

And Finch, fo. 409. hath well collected out of Brook, That always 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 only, as payment, or that an Acquittance pleaded in Barr by the Defen­dant, was made by Dures, &c. The Inquest shall be taken by default, if the Defendant makes default; But in the last recited Acti­ons of Debt, &c. If the Issue be upon the Acquittance it self, Release, or other matter in writing, the Plaintiff may pray Iudgment upon the Defendants default, if he will; but if he do not pray it, the Jury shall be taken by default, as in an Action of Trespass.

The Jury may give a Verdict without te­stimony, Verdict with­out, or against testimony. or against testimony, when they themselves have Conuzans of the Fact. Plo. Com. 86.

CAP. XIV. How the Jury ought to demean them­selves, whil'st 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, spoils 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 A­mercement Assered by the Jury.

THere is a Maxime, and an old Custom Jurors ought not to eat or drink. in the Law, that the Jury 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 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 Indgment.

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 fellows also at their own costs, or at For by assent of the parties they may eat and drink. Br. Jurors. the indifferent costs of the parties, if they so agrée, or by the assent of the Justices, may both eat or drink: and if the 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 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 sée whether they will agrèe. And if they will in no wise agrée, the Iustices may take such order in the matter, as shall séem to them by their discretion, to stand with reason and conscience, by award­ing of a [...]ew Inquest, and by setting fine New Inquest when the Jury cannot agree. upon them, that they shall find in default, or otherwise as they shall think be [...], by their discretion; like as they may do, if one of the Iury die before the Verdict, &c. D. a [...] Stu­dent. 158.

If the Iury after their Evidence given un­to them at the Barr, do at their own Char­ges [Page 418] eat or drink, either before or after they Where, if the Jury eat or drink, it shall avoid the Ver­dict, and where only fineable. be agreed on their Verdict, it is finable, 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 avoid the Verdict: But if it be given for the Defen­dant, it shall not avoid it; Et sic è converso. But if after they be agréed on cheir Verdict, they eat or drink at the charge of him, for whom they do pass, it shall not avoid the Verdict. 1 Inst. 228.

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

If the Plaintiff after Evidence given, and What delive­red to the Ju­ry after Evi­dence, shall avoid their Verdict. 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, Et 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. Ib.

By the Law of England, a Jury after How the Jury ought to be kept by the Bayliff. 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, unless When they may eat and drink. See Smith's Common­wealth. 74. it be the Bayliff, and with him only, 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, or alter their privy Verdict, Where there can be no pri­vy Verdict. and that which is given in Court shall stand. But in Criminal cases of life or member, the Jury can give no privy Verdict, but they must give it openly in Court.

Neither can a Jury sworn and charged in Where the Jury cannot be discharged before Ver­dict. The King can­not be nonsuit. case of life, or member, be discharged by the Court, or any other, but they ought to give a Verd [...]ct And the King cannot be non­suit, for he is in Iudgment of Law ever pre­sent in Court; but a common person may be nonsuit. And in Civil Actions, the Justices upon cause, may discharge the Jury. Br. En­quest. 68. 47. 39. &c.

But this is against Common practice, and I have known, that after a Iury of Life and Death have been sworn and charg'd with Pri­soners Arraigned, the Iudge having béen [Page 420] credibly Informed, That it was a Iury pack'd to favour some Prisoner, has dischar­ged that Iury, and made the Sheriff return another presently.

In Hillary Term▪ 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 agreed; 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. And the Plaintiff had Iudgment upon the Jurors fined. Verdict. Dyer 37.

And Dyer 218. At the Nisi prius, the Ju­ry after their charge given, returned and said, That they were all agréed except one, who had eat a Pear, and drunk a draught of Ale, Jurors at the Nisi prius, fined in bank, for eating Pears, and drinking Ale. for which he would not agrée; 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 [Page 421] assessed. Et quoad Ball: Curia avisare vult.

In Trespass by Mounson against West. the Iury was charged, and Evidence given, and Iurors being retired into a House, for to Fined for ha­ving Figgs and Pippins about them. consider of their Evidence, they remained there a long time without concluding any thing, and the Officers of the Court who at­tended them, seeing their delay, searched the Iurors, if they had any thing about them to eat; upon which search it was found, that some of 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 three 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 sine 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. The Fined for eat­ing Raisins and Dates. Iurors after they went from the Barr, ad seipsos, of their Verdict to advise, Comede­runt quasdam species, scil. Raisins, Dates, &c. [Page 422] at their own Costs, as well before, as after they were agreed of their Verdict. And the Iurors were committed to prison, but their Verdict was good, although the Verdict was given against the King.

In Ejectione firme, it was found for the 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. Defendant, three of the Iurors had Sweet­meats in their Pockets, and those thrée were for the Plaintiff, until they were searched, and the Sweet-meats found, and then did agree with the other nine, and gave Verdict for the Defendant. It was the Opinion of the Iu­stices, That whether they eat or not, they were finable for having of the Sweet-mea [...]s with them, for that is a very great misde­meanor. Godbold 353.

40 Assise. Placito 11. The Iustices said, Jurors carted. 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 Barr, to confer of their Verdict, and one of the Wit­nesses before sworn on the Defendants part, The same Evi­dence given to the Jury, after they were gon 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 mis [...]emeanor, he examined the Enquest, who confessed all the matter, and [Page 423] 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.

Trin. 1653. between Wells and Tayler, Copies of a Bill, Answer, and Depositions were proved, but not all read and delivered to the Iury, who carried them with them from the Barr, in a bundle, which they layd by them and did not look on; yet their Ver­dict at the Barr, was set aside for this Cause, and the Court would not regard their saying that they did not read them, for they might say that to save themselves; it being a fault to take any thing without the Courts knowledge.

If one of the parties say to the Iury after they are gone from the Barr, You are weak If a party speak to them. men, it is as clear of my side as the Nose in a man's face, This is new Evidence; for his affirmation may much perswade the Iury, and therefore shall quash the Verdict.

So if any thing be read to them, which they ought not to have with the [...], as a book of Depositions, some whereof were read in Evidence. Pratt's Case, 21 Jac.

The Plaintiff delivered an Escrowle to a Escrowle deli­vered to a Ju­ror, before he was sworn, Vi­tiates the Ver­dict. Iuror impanelled, 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 kept the Enquest, informed the Court hereof, and the Iury being examined, confessed the matter aforesaid, upon which Iudgment 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 Escrowle 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.

Pasche 38 Eliz. Inter Vicary & Farthing, Church-Book delivered to the Jury, act of Court. 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 Po­stea; The Question was, whether this should make the Verdict void or no, for the Iustices differed in opinion, Popham and Gawdy, that [Page 425] it should not; Fenner and Clench, that it should; the Negative Iustices gave these Reasons; That the Book was delivered in Evidence in the Court, and so the other party might answer to it, and that the Court had informed the Iury of the validity there­of, how far they were to believe i [...], 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, Iudgment was afterwards given for the Plaintiff; sée More's Reports 452. The Books differ; for Cro. makes Clinch give Consider the Reasons in the former cases. his opinion for the Verdict. But More brings him on the other side, which I con­ceive is truest; and for my part, I know no reason, why foisting of Evidence to the Iury without the Court, should have any favour at all.

In the Case of Taylor and Webb, Trin. 1653, B. R. Twisden moved to set aside a Verdict given at Barr, because that after Evidence when the Writings were delivered to the Iury, some Writings which were not sealed (and therefore ought [...]ot to be deli­vered to the Iury) were delivered by a stran­ger to the Iury.

Hales Counsel of the other side, produces an Affidavit of the Foreman's of the Iury, that they made no use of them in giving their Verdict, and that most of those Writings were read in Court in Evidence upon the Tryal, and Hales said, That if this should avoid the Verdict, then that would be in the power of any Stranger unknown, and against the mind of the parties to avoid any Verdict.

Roll. Ch Iust. The Affidavit of the Iury ought not to be allowed to make good their own Verdict, for now they are (as it were) parties, and have offended, and shall not be allowed by their own Oath to take off their offence, and it is the Duty of the Iury to look what Writings they receive before they go from the Barr; and if any such Paper be wrap'd up among other Papers delivered to them by the Court, so soon as they have dis­covered it, they should call in the Tip-staff, who keeps them, and deliver it to him, and to testifie they made no use of it; and he said it would be dangerous to give the least way to the delivering of any Writings to a Iury.

And at another day Roll cited 11 H. 4. 18. the Plaintiff (before the Tryal) delivered a a brevia [...]e of his Evidence to the Iury, which contained no more than was proved in Court, yet by this the Verdict was avoided, So [Page 427] Mich. 31 Eliz. C. B. Metcalfe and Dean, After the Iury were gone from the Barr, they sent for one of the Witnesses, and re­examined him, who gave the very same Evidence that he had before given in Court, yet the Verdict was avoided; and the rea­son of both is, a fear and jealousie that other matters might be given, &c.

37 Eliz. Farthing's Case, a Paper not un­der Seal, which was given in Evidence was delivered to the Iury, this did not avoid the Verdict, because here can be no such fear; and per Roll, If any Writing (though not given in Evidence) be delivered to the Iury by the Court, it shall not avoid the Verdict. And in the principal Case the Verdict was avoided.

Hill. 40 Eliz. Rot. 847. In Arrest of Iudgment after Verdict, it was alledged, Escrowle from one who was no party. that a Iuror delivered to his Companions, an Escrowle for Evidence to them, which was not given in Evidence at the Tryal, and adjudged no cause to Arrest Iudgment, unless it had béen received from one of the parties, which did not appear. More 546. but otherwise, if it had béen given by a par­ty, and the Iury had found for him.

In the Case of Duke and Ve [...]tres, Mich. 1656. B. R. tryed at Barr, one Mr. Beverly of Suff. a Barrister was returned of the [Page 428] Iury, who (having béen at a Tryal of the same Cause above 20 years before in the Cheq. and heard there great Evidence to make a Deed fraudulent, which was now the Contest) demanded of the Court, whe­ther he ought to inform the rest of the Iury privately of this, or conceal it, or de­clare it in open Court? The Court ordered him to come into Court, and deliver all his knowledge which he heard then proved (which Evidence was not now given, be­cause the parties were dead) and so he did, being not sworn again, but only upon the Oath taken as a Iuryman.

And certainly, It is of dangerous Con­sequence, to receive a Verdict against Evi­dence given, on supposal that some of the Iury knew otherwise, or on private Infor­mation given by one Iuryman to the rest, where he can't be Cross-Examin'd; and let such Iurors beware of Attaint, but the best way is (as before) in open Court.

In a Writ of Error, the first Error assigned was, that Termino Trin. twelve Iurors, and no more, did appear: This ex assensu partium, was adjourned until Jury adjourn­ed. 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 good enough, they being all to be called again. Leon. 3. part 38.

If a Iuror depart after he is sworn, Juror depart. he shall be sined 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 affered 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 Embraceors. Decies tantum. Attaint: several Fines on Jurors. What Issues they forfeit, and of Judgment for striking a Juror in Westminster, &c.

YOu have already heard how the Court may fine the Iurors for their misde­meanors in giving up their Verdict, I will proceed in shewing what punishments they are lyable unto, if they neglect their duty; and doubtless, no men have more need of know­ing what penalties the Law inflicts on their offences, then common Iurors, who too often being preingaged with favour to the Plain­tiff, or malice against the Defendant, Et sic è converso; or with common Interest, (as they call it) where Tythes or Commons are in questio [...], will neither hearken to their Evidence, [...]or direction of the Iudge. But subvert the whole drift of the Common Law, which will have them of the Neighbour-hood, [Page 431] where the fact was committed, to the end, that they knowing most of the fact, may con­sequently give the best Verdict; yet contra­riwise, Iurors which live nearest, do now a days, most commonly so fetter themselves with favour or animosities to the parties, that those which live furthest off (as Iuries from other Counties) for the most part, give 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) the Law hath provided more severe punishments a­gainst Iuries, than against any other offen­dor whatsoever; as well knowing that cor­ruptio optimi [...]st 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, and be thereof attainted, at the suit of other than the party, and maketh fine, he The penalty of Jurors taking Rewards. which sueth shall have half the fine, and if any of the parties to the Plea [...], bring his Action against such Juror, he s [...]ll recover his damages. And the Juror so attainted shall have imprisonment for one year, which [Page 432] imprisonment shall not be pardoned for any fine, this is by the Statute of 34 E. 3. cap. 8.

5 E. 3. ca. 10. It is accorded, That if any Juror in Assises, Juries or Enquests, take of the one party, or of the other, and be Shall not serve of any other Inquest. thereof duly attainted, That hereafter he shall not be put in any Assises, Iuries, or Enquests; and nevertheless, he shall be commanded to prison, and further ransomed at the Kings will. And the Iustices before whom such Assises, Iuries and Enquests, Imprisoned and ransomed, (that is) fined. shall pass, 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, 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 s [...] much, as he hath taken; which forfeiture, methinks, should make even [Page 433] those who love Money best, refuse to take Money upon such an account, because it is like a Canker in their Estates, depriving them in the end, of ten times more than it brought; for which, hear the Statute 38 E. 3. cap. 12.

Item, As to the Article of Iurors, in the Decies tantum. 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, 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 Embraceor. King, 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 agrée, 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 only 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) any Reward to give his Verdict, &c. Ambidexter. And it may be brought against all the Iu­rors 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 him. Embraceor. and Embraceors, although they take several Sums of Money: and although the Iury give no Verdict, or a true Verdict. But it doth not lye against an Embraceor, if he taketh no Money, and imbraces, or taketh Money, and doth not imbrace. Sée Bro. Tit. Decies tantum 13. and F. N. Br. 171.

An Embraceor, 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 put them in fear, or solicits them to find on the one side or other; and this Fellow cloaks his Embracery, under pretence of labouring the Jurors to appear, & to do their Conscience: And thus the Attor­neys in the Country, often take upon them to do, and many times put in a word or two Attorneys ill practice. for their Clyents; which practice deserves the most severe punishment, next to their getting the S [...]eriff to return such and such in the Jury; [...]hich they, having been Vnder-Sheriffs themselves, and so agrée with one another, are most expert at.

But it was said by Roll. Ch. Iust. That a Plaintiff might well intreat one Iuror to appear, and that it was allowed in the Star-Chamber, but a Stranger could not labour one Iuror to appear.

But Counsellors at Law, may plead for Counsellors. their Money at the Barr; But they must not labour the Jury privately; and if they take Money for this, they are Embraceors. F. N. 6. Br. 171.

So much doth the Law hate, that Jurors Fined for ta­king Money after their Verdict. should privately take Money for their Ver­dict. That certain Jurors were fined, for taking Money after their Verdict, though there was no pr [...]ingagement for it. 39 Assise. p. 19.

The practice is otherwise at this day; if it were not, the Middlesex Iuries would not so Court the Bayliffs to return them, espe­cially to Tryals at Barr; where 5 l. a man is frequent Gratuity, sometimes more.

If a full Iury appear, and some are chal­lenged Issues. off, so that the Iury remains for de­fault of Iurors, the Defaulters shall loose their Issues. 4 H. 6. 7. otherwise if a Iury be sworn, and one is withdrawn by consent.

But if there be a joynder of Counties, and a Iury of one County appear, and not of [Page 436] the other. The Defaulters of that County from which enough came, shall not loose their Issues; because the Inquest doth not remain for their default, but for the default of them of the other County, 48 Ass. 5. Mes quaere.

If the Iurors at the return of Scire fac. Amercement. make default, yet they shall not be amerced, because the parties may be claimed at the first day, but at the return of the Habeas Corpora they shall. 10 E. 4. 19. 1 E. 3. 12.

If any of the Iurors appear, the Court Demand sur peine. may charge them to inquire if any of the o­ther Iurors were within the Town after the return; and if they find they were, they shall be demanded upon a Pein, and if they come not, they shall be amerced, Rolls tit. Trial. 632.

A Juror was challenged, and six other Jurors were sworn to try the Challenge, who found him indifferent, and thereupon the Juror fined for departing when he was challenged. Jury was demanded, but did not appear; for which default, he was fined the value of his Lands for a year; and the other Jurors 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.

If a Juror appear, and is adjourned upon Juror adjourn­ed upon pain. 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 Jury, because the Court knows not the value of his Land. li. 8. 41.

A Verdict was taken from the Fore-man Fined for giv­ing a Verdict before they were agreed. of the Jury, 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 agreed. 40 Assise 10.

Where a Iury are to be fined, a Fine The fine must not be joynt. jointly imposed on them, is not legal, 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, Aemilius plectitur. lib. 11. 42.

A man stroke a Juror at Westm. (sitting Punishment for striking a Juror. in the Court) who passed against him, 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 days of his life, and that his right hand should be cu [...] off, and his Lands seised into the Kings ha [...]ds, 41 As­sise. p. 25. and now our Juror▪ sées what pu­nishment [Page 438] 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 third 30 s. Issues. And upon every Writ that shall be further awarded to try any Issue, to double the Issues last, afore specified, until a full Jury be sworn.

And these Issues being returned upon a Not sum­moned. Tenement in Fée simple, in tail or for life, of another, or himself, or in the right of his Wife; the Land he then hath will be chargeable for it, and any mans Cattel upon this Land may be distrained for it.

But if the Under Sheriff, &c. return a Ju­ror summoned, who in truth was not legally summoned, and therefore doth not appear, and so looseth Issues, the Vnder-Sheriff shall pay him double the value of the Issues lost. Sée the Statutes of 35 H. 8. 6. and the 2 E. 6. 32.

And note, the Law hath béen so careful to punish all offenders, who would endeavour [Page 439] 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 civil Causes it is without example: and surely, if the Jurors did bear it in their minds, their Verdicts would be always grounded upon their Evidence; and not upon their own Interests, or any partiality to ei­ther of the parties.

Wherefore if the Jurors give a false Ver­dict (which is perjury of the highest degrée) upon an Issue joyned betwéen the parties in any Court of Record, and Iudgment there­upon. The party grieved, may bring his Writ of Attaint, in the Kings-Bench, or Attaint. Common-Pleas; upon which, 24 of the best men in the County are to be the Jurors, 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 Iu [...]y) find it a false Verdict; then followeth [...]is terrible and heavy Iudgment, at Common Law, up­on the Petite Iury.

  • [Page 440]1. That they shall loose liberam legem for
    Judgment in Attaint.
    ever, that is, they shall be so infamous, as they shall never be received to be a Wit­ness, or of any Jury.
  • 2. That they shall forfeit all their Goods and Chattels.
  • 3. That their Lands and Tenements shall be taken into the Kings hands.
  • 4. That their Wives and Children shall be thrown out of doors.
  • 5. That their Houses shall be rased and thrown down.
  • 6. That their Trées shall be rooted up.
  • 7. That their Meadow-grounds shall be ploughed up.
  • 8. That their Bodies shall be cast into the Goal, and the party shall 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 Crudelita [...]parcens. And séeing all Tryals of real, personal, and mixt actions, depend upon the Oath of 12 men, prudent Antiqui­ty [Page 441] 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 at his Ele­ction, either bring his Writ of Attaint, at the Common-Law, or upon that Statute. Wherefore let the Juror expect the great­est punishment, when he offends. 3 Inst. 163. 222.

And so I conclude as to the Iuror, only with the words of Fortescue, Quis tunc (etsi immemor salutis animae suae fuerit) non for­midine tantae poenae, & verecundia tantae in­famiae, veritatem non diceret 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?

But as to our Practicer, I would give this one further Advertisement, which relates also to Iurors.

When a Verdict has been given by a for­mer Iury in the same Cause, and on the [Page 442] same Evidence it is allowed to give the for­mer Verdict in Evidence, and I have known this Introduced by the Counsel, as obliging to the latter Iury to find accordingly; inti­mating, that otherwise they do (in effect) perjure the former 12 men, which may amuse render minds, and draw them from the strict Inquiry into the Merits of the Cause, in fa­vour of their Predecessors; which is a palpa­ble mistake and misinformation, for these Reasons.

  • 1. The same Evidence in the former Cause and Tryal (perhaps) was not so perspicu­ously delivered as in this.
  • 2. This latter Iury may be of more saga­cicus and Comprehensive Iudgment than the former.
  • 3. The Directions of the Court (which the Iury most héed) may be more clearly de­livered to this Iury.
  • 4. The Matter in Contest (perhaps) was not in the former Tryal so clearly manag'd by the Counsel, being not so well instructed as afterwards.
  • 5. And la [...]ly, supposing, the Evidence equally deliuered by the Witnesses, appre­hended by the Iury, directed by the Court, manag'd by the Counsel, yet it's no perjury [Page 443] or fault to differ in Iudgment; for if 24 Iurymen were to try a Matter of Fact, and 12 were of one Opinion, and 12 of another, who is in fault? while they Iudge accord­ing to the best of their Knowledge and Skill, to which (only) they are sworn. And it's a reasonable kindness to Iury-men, to make good Construction of differing Iudgments among them, while we sée, how oft Iudges themselves differ in their Opinions, on a matter stated equally to them all, and that (not only as to matter of Law, but) as to matter of Fact, as attending Practicers may observe in Tryals at Earr, in the several Iudges several Directions. And this I thought good to advertise, for that I have known Verdicts gained on this unwarran­table Suggestion, against clear and express Evidence, and could instance some Cases. Sed verbum sat, &c.

As to the difference betwixt the Judge and the Jury, and that Question which has made such a noise, viz. Whether a Jury is fineable for going against their Evidence in Court, or the Direction of the Judge? I look upon that Question, as dead and buried, since Bushel's Case, in my Lord Vaughan's Re­ports; yet some of the Ashes thereof I may sprinkle here without offence. It doth ap­pear there to have béen resolve [...] by all the Iudges upon a full Conference at Serjeants-Inn, That a Jury is not fineable for going [Page 444] against their Evidence where an Attaint lyes; And that it is Evident by several Resolutions of all the Iudges, That where an Attaint lyes, the Iudge cannot fine the Iury, for going against their Evidence, or Direction of the Court, without other Misdemeanour.

And where an Attaint doth not lye, as in Criminal Causes upon Indictments, &c. My Lord Vaughan says these words, That the Court could not Fine a Jury at the Com­mon Law, where Attaint did not lye; I think to be the clearest Position that ever I considered either for Authority or Reason of Law. And one reason for this, which can never be answered, is, The Iudge cannot fully know upon what Evidence the Iury give their Verdict; for they may have other Evidence than what is shew'd in Court; They are of the Vicinage, the Judge is a Stranger, they may have Evidence from their own personal knowledge, that the Wit­nesses speak false, which the Iudge knows not of; they may know the Witnesses to be stigmatised and infamous, which may be unknown to the Parties or Court.

And if the Iury knew no more than what they heard in Court, and so the Iudge knew so much as they, yet they might make diffe­rent Conclusions, as oftentimes two Iudges do; and therefore, as it would be a strange and absurd thing to punish one Iudge for differing [Page 445] with another in Opinion or Iudgment; so it would be worse for the Iury, who are Judges of the Fact, to be punished for find­ing against the Direction of him who is not Iudge of the Fact. But he that would be better satisfyed in this point, may read that Case, and the Authorities, and Reasons gi­ven by my Lord Vaughan, whom I must ho­nour, as a man of great reason.

It is shewed in that Case, That muth of the Office of Jurors, in order to their Ver­dict, is Ministerial, as not withdrawing from their fellows after they are sworn; not re­ceiving from either side Evidence after their Oath, not given in Court, not eating and drinking before their Verdict, refusing to give a Verdict, and the like; wherein if they transgress, they are Fineable: But the Verdict it self when given is not an act Ministerial, but Judicial, and according to the best of their judgment; for which they are not fineable, nor to be punisht but by Attaint.

Nor can any man shew, That a Jury was ever punisht upon an Information, either in Law, or in the Star-Chamber, where the Charge was only, for finding against their Evidence, or giving an untr [...]e Verdict, unless Imbracery, Subornation [...]r the like, were joyned.

But the Fining and Imprisoning of Jurors for giving their Verdicts, hath several times béen declared in Parliament an Illegal and Arbitrary Innovation, and of dangerous Consequence to the Government; the Lives, and Liberties of the People. This celebra­ted tryal by Iuries, having béen confirmed by many Parliaments.

Littleton, Sect. 368. tells us, That as the Iury may find the matter at large, that is a Special Verdict, (which the Court cannot refuse, if it be pertinent to the matter put in Issue) and leave the Law to the Court so if the Iury will, they may take upon them the knowledge of the Law upon the matter, and may give their Verdict generally, as is put in their Charge. As for example, upon all general Issues; As Not guilty pleaded in Trespass, Nil debet in Debt, Nul Tort, nul disseisin, in Assise. Ne disturba pas in Quare impedit, &c. Though it be matter of Law, whether the Defendant be a Trespasser, a Debtor, Disseisor, or Disturber, in the par­ticular Cases in Issue; yet the Iury find not (as in a Special Verdict) the Fact of every Case by it self, leaving the Law to the Court, but find for the Plaintiff, or Defen­dant, upon the Issue to be tryed, wherein they resolve [...] both the Law, and the Fact complicatly▪ and not the Fact by it self. And so upon Not guilty to an Indictment of Felony, Breach of the Peace, Trespass. &c. [Page 447] and other Cases where the Law and the Fact are complicate and joyned, they may determin upon both: Yet I must give them my Lord Coke's Caution, which is, That although the Iury, if they will, may take upon them the knowledge of the Law, and give a general Verdict, yet it is dangerous for them so to do; for if they do mistake the Law, they run into the danger of an Attaint. Therefore to find the matter specially, is the safest way where the Case is doubtful.

And to end, as I begun, That Decanta­tum in our Books (as my Lord Vaughan calls it) Ad quaestionem facti non respondent Judices, ad quaestionem legis non respondent Juratores, Literally taken is true; for if it be demanded what is the Fact? the Iudge cannot answer it: If it be ask'd, what is the Law in the Case? the Iury cannot answer it. But upon the general Issue, if the Iury be asked the Question, guilty, or not? which includes the Law, they resolve both Law, and Fact, in answering Guilty, or Not Guilty. So as though they answer not sin­gly to the Question what is the Law; yet they determine the Law in all matters, where Issue is joyned and tryed, but where the Verdict is Special. But in such Cases, the Iudge cannot of himself answer, or de­termine one Particle of the Fa [...], but must leave it to the Jury, with whom let it rest and continue for ever, as the best kind of [Page 448] tryal in the world for finding out the Truth, and the greatest safety of the just Preroga­tives of the Crown, and the just Liberties of the Subject; and he which desireth more for either of them, is an Enemy to both.

FINIS.
PRECEDENTS, CONTAIN …

PRECEDENTS, CONTAINING The Forms of Challenges TO THE ARRAY, &c.

AND THE PROCEEDINGS thereupon.

Pleas Puis le Darrein Continuance, Demurrers upon the Evidence, Bills of Exception, &c.

AND The LAW concerning the same.

Very Useful for all Lawyers and Practi­cers; especially at the ASSIZES, &c.

By G. D. of the Inner-Temple, Esq;

LONDON, Printed Anno Dom. 1682.

PRECEDENTS, Containing the forms of Challenges to the Array, &c. and the Proceed­ings thereupon. Pleas Puis le Dar­rein Continuance; Demurrers upon the Evidence; Bills of Exception, &c. And the Law concerning the same, very useful for all Lawyers and Pra­cticers; especially at the Assizes, &c.

A Form of Challenge to the Array.

ET nunc ad hunc diem scil't &c. venit predict' A. Quer' & B. Defend ꝑ attor­nat̄ suos, & Iuratores fuer Impanellet̄ & demand & venerunt, & Inde predict' B. Ca­lumniavit Arrajam̄ panell' predict' quia, &c.

This must be read by the Councel in French, and delivered to the Clerk to read it in Latin.

A Challenge to the Array, because the She­riff is Cousin, &c.

Et suꝑ hoc idem Henricus Vernon calump­niat Arraimentsi pannelli p̄dict' quia dic. quod panellū illud arriat' fuit ꝑ quendam Johannem Zouch Militē jam & tēe Arrai­ment' pred fact' vic̄ pred Com̄ Derb' qui quidem vic̄ est consanguineus pred Johannis Maners vizt. filii Georgii Zouch Arī filii Johannis Zouch Mil. fil' Johannis Zouch Arī filii Johannis Zouch Arī filii Willielmi Domini Zouch filii Alan Domini Zouch filii Willielmi Domini Zouch filii Elizabethe filie Willielmi Domini Roos Patris Williel­mi Domini Roos Patris Thome Domini Roos Patris Elianore Matris Georgii Man­ners Militis Patris Thome Comitis Rut­land Patris pred Johannis Manners Et hoc paratus est verificare unde petit Iudicium ac quod panellum pred cassetur, &c. que qui­dem calumpn̄ ꝑ pred Tho. Stanley dedic̄ ꝑ N. Sturley de Beachiff At̄ & R. F. de T. Ar̄ triatores ad hoc electos & juratos comꝑta est vera Ideo panellum pred cassetur & amovea­tur, &c. Cokes Ent [...]ies, 340.

A Challenge because the Sheriff is Tenant, &c.

Et suꝑ hoc idem Johannes Dom̄ St. John dic̄ qd J. D. At̄ vic̄ Com̄ p̄d jam existit quod (que) [Page 451] idem J. D. tenet duodecim acras prati cum ꝑtin̄ in Budenham in Com̄ p̄d de ipso Johanne Domino St. John ad voluntatem ꝑ reddit 40 s. eidem Johanni Domino St. John annuatim solvend Et ea de causa petit bīe Domine Regine de ve fac' hic xijcem, &c. ad triandum exitum p̄d superius junct̄ Co­ronatoribꝰ ejusdem Domine Regine in Com p̄d dirigend, &c. Super quo p̄d Tho. dic̄ qd p̄d Jo. D. non tenet p̄d xij acras prati cumꝑtin̄ nec aliquam inde parcell' de p̄fat̄ J. Domino St. John ad voluntat̄ ꝓut idem Jo­hannes Dominus St. John superius allega­vit Ideo non obstante Calumpnia p̄d Jo. Dūi St. John ad p̄fat̄ vic̄ Precep [...]n̄ est eidem vic̄ qd ve fac. hic, &c. Cokes Entries 397.

A President of a Challenge for Default of Hundredors which hath been several times made use of at the Assises.

Et super hoc p̄d A. B per C. D. Attorn̄ suum ven̄ & Calumpn̄ Arriament̄ pannell' p̄d quia dic̄ qd villa de Dale in Com̄ p̄d in qua quidē villa causa Actionis oritur & in narratione p̄d quet̄ locatur & oriri suppon̄ est & Tem­pore arriamenti pannelli illius fuit & adhuc existit infra hundred de Downs in Com̄ p̄d quod (que) modo vic̄ Com̄ p̄d non Retorn̄ seu impannellavit aliquos hundredos be hundred de Downs p̄d ad triand exit int̄ partes p̄d modo junct̄ nec Iur̄ modo Impannellat̄ & [Page 452] retorn̄ habent seu aliquis eorundem Iur̄ ha­buit vel modo habet aliquas t̄as seu tenen̄ [...]ta infra hundred de Downs p̄d nec habent ha­buer̄ seu aliquis eorundem Iur̄ habuit tem­pore Arriamenti pannelli p̄d seu unquam antea vel postea seu habitant vel Commo­rant aut aliquis eorundem habitabat vel Commorat̄ infra hundred pred modo vel Tempore Arriamenti pannelli illius Et hoc parat est verificare unde pet̄ Iudicium Et qd pannellum illud Cassetur, &c.

This must be under Councels Hand, and the Proceedings herein you may read before, if they Demurr thus

Moratur in Lege

W. T.

Ioynder in Demurrer

G. D.

The Form of a Challenge made by the De­fendant, because the Plaintiff is the She­riffs Cousin.

Et super hoc p̄dictus Defendens per A. B. Attorn̄ suum ven̄ & Calumpn̄ Arraiament̄ pannelli p̄d quia dic̄ qd pannellum illud fact̄ & arriat̄ fuit per C. D. At̄ modo & Tem­pore Arriament̄ pannelli p̄d vic̄ Com̄ p̄d quiquidem vic̄ est Consanguineus E. H. gen̄ modo dimissori quer̄ in narratione pred quet̄ mention̄at videlt̄ fillius G. H. gen̄ filii [Page 453] K. L. fillie M. N. filii O. P. Patris Q. R. Matris p̄d E. F. modo dimissori quer̄ in nar̄ p̄d nominat Et hoc parat̄ est verificare unde pet̄ iudgm̄ & qd pannellum illud casse­tur, &c.

If the Plaintiff deny the Kindred and Affi­nity, then thus,

Nient Cousin par le Manner

W. T.

est Cousin

G. D.

Then are two or more Triors sworn, but seldom more than two, and (after they have heard the Proofs and Evidence given to make good the Defendants Plea) they give their Verdict accordingly.

Note, The Plaintiff may if he please De­murr upon the Challenge.

A Challenge to the Array, because no Knight was retorn'd upon the Jury.

Et super hoc predictus Com̄es ꝑ A. B. At­torn̄ suum ven̄ & Calumpn̄ Arraiament̄ pannelli Assize p̄d quia dic̄ qd ip̄e est & Tempore Arraiamenti pannelli illius & an­tea fuit Et adhuc est un̄ magnat̄ & pa­tium hujus Regni Angliae & v [...]cem & locum in quolibet Parliamento ejusdem Regni ha­bens Et qd Arraiament̄ Assize pannelli p̄d [Page 454] Arraiat̄ fuit ꝑ C. D. Mil' nuper vic̄ p̄d Com̄ E. nullo Millite in eodem pannello Arriament̄ illius n̄iat̄ & retorn̄ existen sicut esse debuit secundum legem hujus Regni Angliae & hoc parat̄ est verificare unde pet̄ Iudgm̄ Et qd pannellum illud Cassetur, &c.

Vies tiel Challenge in le liure de Monsieur Plowden & demurrer sur ceo joinder in de­murrer & Iudgment que le pannell ill soit casse en le Case del Count de Darbie, fo. 117.

A Challenge against the Sheriff for Retorn­ing the Jury at the Instance, Request, and Denomination of the Plaintiff.

Et super hoc eadem A. B. ꝑ C. D. Attorn̄ suum ven̄ & Calumpn̄ Arraiament̄ pannelli ejusdem Iurē quia dic̄ qd pannellum illud fact̄ & arriat̄ fuit ꝑ E. H. mil' modo vic̄ Com̄ p̄d & Ministros suos ad demoninatio­nem & promotionem ipsius quer̄ & infavorem ejusdem quer̄ & hoc parat̄ est verificare unde pet̄ Iudgm̄ & qd pannellum illud cassetur, &c.

To which the Plaintiff may plead that the Array of the Pannel, pred bene & equalit̄ factum & arriat̄ fuit ꝑ p̄dictum vic̄ & Mini­stros suos, &c. juxta officii sui debit̄.

Or the Plaintiff, if he will, may confess it. But if he Plead, then the Iudges immedi­ately assign Triors to try the Array, which seldom excéed two, who being chose and sworn, the Associate or Clerk in Court doth declare and rehearse unto them the matter and cause of the Challenge, and after he hath so done, concludes to them thus, And so your Charge is to enquire whether it be an even and Impartial Array, or a favou­rable one; and if they affirm it. Then the Clerk enters underneath the Challenge.

Affirmatur.

But if the Triors find it favourable, then thus,

Calumpnia vera.

A Challenge because that the Town is within a Hundred of which the Plaintiff is Lord, and Prays a Writ to the next Hundred.

Et super hoc p̄d A. dic̄ qd predicta villa de Dale de qua transgr̄ p̄d facta fuit est infra hundred de B. Et quod ipse est Dn̄s ejusdem hundredi quod (que) omnes lib Tenentes in­fra hundred illud sunt infra districtionem ip­sius A. Et ea de causa pet̄ brē Dom̄ Regis de venire faciend hic xij &c. ad triand exitum predictum de prox visū in Com̄ p̄d ex [...]ra hundred p̄d ville de B. prox adjacen̄ vic̄ Com̄ pred dirigend Et quia p̄d Defendens hoc [Page 456] non dedīt ei conceditur, &c. Jo. p̄cept̄ est vic̄ qd venire fac̄ hic in Octab sc̄i Hillary xij, &c. de prox & visū in Com̄ p̄d extra hundred pred predicte ville de Dale prox adjacen̄ ꝑ quos, &c. Et qui nec, &c. ad Recogn̄ &c. quia tam, &c.

Challenge because the Sheriff and two Coro­ners are Tenants of the Plaintiff, and a Ven. fac. awarded to the rest of the Co­roners.

Et suꝑ hoc p̄d A. B. dic̄ qd tam p̄d C. D. mi­les nunc vic̄ Com̄ p̄d qm̄ E. F. & G. H. duo Coron̄ sunt Tenentes ipsius nunc I. Et in­fra districtionem suam Et ea de causa pet̄ br̄e ipsius Dom̄ Regis de Ven. fac. hic xij, &c. E. A. & R. P. resid Coron̄ ejusdem Dom̄ Regis in Com̄ p̄d dirigend ad triand exit p̄d & quia p̄d W. hoc non dedīt ei conceditur, &c. Jo. prec̄ E. A. & R. P. quod Ven. fac. hic, &c.

Challenge where after the last Continuance the Cosin of the Plaintiff is made Sheriff after Issue joyned.

Quia tam, &c. Ad quem diem hic̄ veū partes, &c. Et vic̄ non misit br̄e Et super hoc predictus Quer̄ dic̄ qd post ultimam con­tinuationem placiti videl' postea Octab sc̄i Michis ultimo pret̄ito de quo die loquela p̄d [Page 457] ult̄ continuat̄ fuit hic us (que) ad hunc diem sci­licet tali die ultimo pret̄ito Dominus Rex nunc per lr̄as suas patentes Commissit cui­dem A. B. mil'i custodiam Com̄ p̄d quarum quidem literarum paten̄ pretextu idem vic̄ Com̄ illius jam existit Quiquidem A. B. est Consanguineus p̄d quer̄ vizt̄ fil', &c. Et ea de causa pet̄ breve Domini Regis de venire fac. hic xij, &c. Coron̄ Dic̄ Com̄ Regis Com̄ p̄d dirigend Et quia predictus Defendens hoc non didicit̄ ei conceditur, &c. Et prec̄ est Coron̄ Dom̄. Regis Com̄ p̄d ven. fac. &c.

Challenge because the Sheriff is of Councel with the Plaintiff, and hath received Fees, and the Defendant doth deny the Chal­lenge, therefore the Venire fac. awarded to to the Sheriff notwithstanding.

Et super hoc p̄dictus quer̄ dic̄ qd quidem A. B. vic̄ Com̄ p̄d modo existit quiquidem A. B. est de consiliis ipsius quer̄ & habet de eodem quer̄ Annuum Redditum sive feod xxl. Et ea de causa pet br̄e Dom̄ Regis de veni' faciend' hic xij, &c. Coron̄ Dom̄ Regis Com̄ p̄d dirigend Et quia predictus defendens hoc dedic̄ Iō non obstante allegationis p̄d que [...] prec̄ est vic, &c.

Challenge because the Plaintiff is Brother to the Sheriff.

Et super hoc quidem querens dic̄ qd A. B. miles modo vic̄ Com̄ p̄d existit & frater ejusd quer̄ Et ea de causa pet̄ br̄e Dom̄ Regis de Venire faciend' hic xij, &c. Coron̄ dic̄ Dom̄ Regis Com̄ p̄d dirigend Et quia p̄d defen­dens hoc non didicit̄ ei conceditur, &c. Iō, &c.

Challenge where the Plaintiff is Sheriff, and one of the Coroners in his Tenant.

Et super hoc p̄d Quer̄ dic̄ qd ipse est vic̄ Com̄ p̄d & qd sunt in eodem Com̄ Duo Co­ron videlt̄ R. H. & R. D. quod (que) idem R. H. unus Coron̄ ejusdem Com̄ ten̄et de ipso quer̄ unum Messuagium, &c. ꝑ fidelitatem & an­nuum Pasche 24 H. 8. Rot. 138. reddit singulis annis ad festa, &c. per equales porc̄ones solvend Et eis de causis pet̄ br̄e Dom̄ Regis de Ve fac. hic xij, &c. p̄sat̄ R. D. alt̄ Coron̄ Com̄ pred dirigend & quia, &c. conceditur Et precept. est eidem R. D. qd, &c.

Another Challenge to the same purpose.

Et suꝑ hoc idem quer̄ dic̄ qd A B. vic̄ &c. Pasche 20 & 21 H. 8. Rot. 424. ten̄et 10 a [...]r̄ t̄re cum pertin̄, &c. de ipso quer̄ ut de Mannerio, &c. per fidelitatem, &c. Et ea de causa pet̄ br̄e ut supra.

Challenge because the Wife of the Plaintiff is Kin to the Sheriffs Wife.

Et super hoc idem Querens dic̄ qd p̄dicta Mich. 11 H. 7. Rot. 453. Bridgitta nunc uxor H. I. modo vic̄ Com̄ p̄d consanguinea A. uxori prefat̄ quer̄ videlt̄ fillia Misororis ipsius A. uxor̄ prefat̄ quer̄ Et ea de causa pet̄ br̄e, &c. Coron̄, &c.

Challenge because the Plaintiff is the Sheriffs Servant.

Et super hoc idem Quer̄ dic̄ qd ipse est serviens & de librea R. T. millitis modo vic̄ Com̄ p̄d & ea de causa, &c.

Challenge after the Jury Impannelled, re­torn'd and called, because the Prie in Aid is Sheriff, and of the Councel of the Plain­tiff, and a Distringas Jur' with A. 10 tales Coron' awarded.

Et modo hic adhunc diem ven̄tam p̄d R. Ac p̄dicti J. S. & W. V. qui se seperatim junrer̄, &c. quam p̄d W. M. ꝑ Attorn̄ suos p̄d & Iur̄ inde impannellat̄ exact quidem eo­rum ven̄ & quidem eorum non ven̄ prout pa­tet in pannello, &c. & super hoc p̄d R. H. ac p̄d J. S. & W. V. qui seperatim junxer̄, &c. dic̄ qd pred J. S. modo vic̄ Com̄ p̄d existit quod (que) idem J. S. est de feodo p̄d W. & consil­lie [Page 460] in premissis & aliis negociis suis etaliis de causis pet̄ br̄e de distrinḡ Iur̄ Iure pre­dicte unacum 10 talibꝰ de visu p̄d eis imponend Coron̄ Dom̄ Regis Com̄ p̄d diri­gend Sur Hill. 9 H. 8. Rot. 343. super quo quesit est a p̄dicto W. M. si­quid pro se habeat vel dic̄ Sciat quare br̄e illud Coron̄ Dom̄ Regis Com̄ p̄d distrinḡ Iur̄ Iure p̄d unacum 10 talibꝰ de visu pred eis impon̄end ratione permissorum fieri non debet quia dic̄ qd non Iō p̄c' est. Coron̄ Dom̄ Regis p̄d qd distrinḡ Iur Iure p̄d ꝑ omnes terras, &c. & qd de exit, &c. Ita qd habent corpora, &c. ad fac̄ Iuram p̄d Et appon̄ ei 10 tales, &c.

Challenge because the Plaintiff is one of the Sheriffs of London, and the Ven' fac' awarded to the other Sheriff.

Et super hoc p̄dictus Querens dic̄ qd ipse ac quidem Johannes Blunt miles sunt vic̄ London & pro eo qd ipse est unus vic̄ London pet̄ qd processus de Venire fac. hic xij, &c. ad triand exit p̄dictum p̄fat̄ J. B. tantum diri­getur, &c. & quesit est a p̄fat̄ defend siquid dicere Sciat quare processum illi p̄fat̄ Johan­ni Blunt altero vic̄ &c. tantum ea ratione fieri non debet qui dic̄ qd non Iō prec̄ est ei­dem Johanni Blunt altero vic̄ &c. qd Ven. fac. in Octab pur: Ita qd p̄dictus querens in nul­lo se intro mittat̄ xij, &c. per quos, &c. & qui nec, &c. ad recogn̄ &c. quia tam, &c.

Challenge to the Deputy Sheriff, because he Impannell'd and retorned the Jury at the instance and denomination of the Plaintiff.

Et super hoc p̄d Defendens Calumpn̄ Ar­raiam̄tum pannelli Iurate p̄d eo qd pannel­lum illud factum & arraiat̄ fuit ꝑ T. W. sub vic̄ Com̄ p̄d ad denominationem pred quer̄ & in favorem & promotionem ejusdem quer̄ Que­quidem Calumpnia ꝑ Triatores ad hoc elect & Iurat̄ Comperta est vera Iō, &c.

Challenge by the King's Serjeant upon an In­dictment of Felony, because the Sheriff re­torn'd the Jury of Life and Death at the i [...] ­stance and request and denomination of the Prisoner.

Laurentius B. nuper de A. in Com̄. pred. gen̄. capt̄ &c. Recitando totum indictamen­tum us (que) Iō fiat inde Iurā &c. super quo A. B. serviens Dom̄ Regis ad legem pro eo­dem Domino Rege Calumpn̄ Arraiament̄ pannelli Iur̄e p̄d quia dic̄ qd pannellum il­lud fact̄ & arraiat̄ fuit ꝑ Henricum Fortescue vic̄ Com̄ p̄d ad denominationem p̄fat̄ Lau­rentii & in favorem & promotionem ejusdem Laurentii quequidem Calumpn̄ ꝑ Triatores inde Iur̄ compert̄ est vera Iō pannellum a­moveatur & cassetur, &c. & Ven [...]e [...]a [...]. award­ed to the Coron̄.

Challenge by the King's Serjeant for the King to some of the Jury for Default of Freehold, to the value of 40s. per Annum.

Super quo facta publica proclamatione pro Domino Rege, &c. ac quidem J. G. miles ser­viens dic̄ Dom̄ Regis ad legem nunc pro eo­dem Domino Rege ven̄ & quidem Iur̄ modo comparen̄ videl't J. L. in Iuram̄ p̄d Iurat existit Et quia resid Iur̄ ejusdem Iur̄e modo Comparen̄ non habent acras seu tenementa in Com̄ p̄d ad annuum valorem xl s. a pannel­lo illo penitus extrahuntur, &c.

Mich. 23 and 24 Eliz. Rot. 109. There­fore Entry of a Challenge af­ter Issue joyn'd where the She­riff is amo­ved, &c. came thereupon the Iury before the Lord the King at Westm. the day, &c. and who neither, &c. to Recognize, &c. because as well, &c. the same day is given to the said parties there, &c. at which day before the said King at Westm. came the said Parties by their said Attorneys, and the Sheriff sent not the Writ; and upon this, the same Between Bark­ley and Jeffer­son. Plaintiff saith, That after the last conti­nuance of the said Plea, that is to say, after the Saturday next after, &c. now last past; from which day the said Plaintiff was conti­nued here until this day, that is to say, the day, &c. R. P. Esq; late Sheriff of the said County of E. from the same Office of She­riff of that County was duely amoved, and the said King now by his Letters Patents, [Page 463] ha [...]h Committed unto one T. P. Knight, the Custody of the said County of E. by pre­tence of which said Letters Patents the said J. P. now remaineth Sheriff of that County, which said T. P. of A. at A. aforesaid, took to his Wife Anne of the Blood of M. now the Wife of him the Plaintiff; that is to say, the Daughter of R. D. the Son of W. D. Knight Father of Anne, Mother of the said M. now Wife of him the Plaintiff; which said T. P. Knight, and A. had Issue betwéen them A. P. yet alive, and in full life remaining at A. aforesaid, and this he is ready to prove, &c. And out of that cause he prayeth a Writ of the Lady, the now Queen, of Venire fac. to try the said Issue in form aforesaid joyned, to be directed to the Coroners of the said County; and because the said Defendant doth gain-say, and doth not grant that to be true, therefore notwith­standing the same Challenge, a Command Challenge gain-said. is to the Sheriff, that he make to come Twelve, &c. of the Visne of B. by whom, &c.

Easter Term, 38 H. 8. Rot. 558. And here­upon Challenge to the Array, be­cause the Coro­ners made the Pannel at the Denomination of the Plaintiff. the Defendant doth Challenge the Ar­ray of the Pannel of the said Iury, because he saith, That that Pannel was made and arrayed by A. and C. Coroners of the said County at the Denomination, and in favour of the Pannel of the said Plaintiff, and this he is ready to verifie, and requesteth that the same Pannel may be quashed. And the [Page 464] said Plaintiff saith, That the said Pannel by the said Coroners was well and equally made; and not at the denomination, nor in favour, nor in promotion of the said Plain­tiff; whereupon the said Iustices by the con­sent of the said Parties, did choose and as­sign D. and E. two of the said Iury now ap­pearing, to try the said Challenge; which said Tryors being elected and tryed, say up­on their Oaths, That the said Pannel was well and faithfully made and arrayed by the said Coroners, and not at the denomination, neither in favour nor in promotion of the said Plaintiff; whereupon the Iurors of the said Iury being called, tryed, and sworn, say, &c.

A Precedent of Challenge to the Array.

May it please you, Mr. Baron, This En­quest you ought not to take, for that Sir John Ramsden Knight, Sheriff of the County of York, who did retorn the Pannel betwéen the said A. Plaintiff, and B. Defendant, is Co­sin to the Plaintiff, &c. and shew how of Kinn, &c. and so where the Challenge is for lack of Hundredors, or other principal Challenge put it down, &c. and this he is ready to averr, whereof he prays Iudg­ment, and that the said Pannel be quashed.

Or thus, And now at this day S. &c. comes the aforesaid J. S. Plaintiff, and J. B. De­fendant by their Attorneys, and the Iurors also impannelled and demanded did come, and thereupon the said J. B. doth Challenge the Array of the Pannel aforesaid, be­cause, &c.

This must be put in Writing, but under Counsels hand, where the Challenge is to the Poles, it is in short way by a Verbal Challenge; see the learning of this is excel­lent, and copious in our Books.

A Precedent of a Plea after the last Con­tinuance.

And now at this day, &c. comes such a one Defendant by J. C. his Councel, and saith, This Action the Plaintiff against the Defendant ought not to maintain; for that after the Quindene. of the Holy Trinity last past, from which day until such a day in Mi­chaelmas Term next, unless the Iustices of Assizes before come such a day, &c. the Action aforesaid is continued, &c. the Plaintiff by his Déed dated, &c. did Release, &c. and shew the Matter what it is, whether in abate­ment in Bar dilatory, or peremptory, as the Case is, &c. and this he is ready to averr.

Note, Brook in his Abridgment, tit. Con­tinuance, 61. & 83. says, That after the Inquest is awarded to inquire of Damages, The Defendant cannot plead a Plea Puis le darrein Continuance, because he hath no day in Court to Plead.

The day of Nisi prius, and day in Bank are all one; so that a Release made betwixt these days cannot be pleaded in Bank; but it seems that a Release made betwéen the day of the Venire facias retorned, and the Writ of Nisi prius awarded, and the day of the Nisi prius may be pleaded at the day of the Nisi prius, but not after the Verdict, 21 H. 6. fo. 10. Bro. tit. Jour. &c. 31 tit. Continu­ance, 76. 42. 27. 13.

A man shall have but one Plea after the last Continuance; for the Plaintiff shall not be delayed ad infinitum, 16 H. 7. 11. Bro. tit. Continuance, 59. 41. 45, 46. 5. 21.

After the Inquest taken by default, and before Iudgment the Defendant came and pleaded an Arbitrament, made after the last Continuance; And by the Opinion of the Court, he had no day in Court to plead this Plea, and 'twas said, That he could Plead no Plea in such Case, but as Amicus Curiae, and of matter apparent he shall be receiv­ed; otherwise, he must resort to his Au­dita [Page 467] Quaerela 21 H. 7. 33. Broke ibid. 38.

But if the Iury remain for default of Iurors, the Defendant may plead a Re­lease, &c. at the day in Bank Puis le dar­rein Continuance, although he did not offer it at the Nisi prius, otherwise if the Iury had béen taken at the Nisi prius, 22 H. 6. 1. Broke. ibid. 30.

If it be pleaded at the Nisi prius, the Court Record the Plea, and discharge the Inquest, and give day to the parties in Bank, Bro. ibid. 34. 8.

In Debt after Issue joyned, the Defen­dant at the Nisi prius pleaded Payment of part after the latter Continuance in Abate­ment. And the Iury being discharged, and the Plea adjourned in Bank; for that no place of Payment was pleaded, the Plain­tiff had Iudgment to recover his Debt, be­cause after Issue joyned, no Respondes ouster can be awarded, L. 5. E. 4. 139. Aleyn's Re­ports 66. in the Case of Beaton and Forrest.

Now, although when difficulty arises in the Evidence, the matter is most commonly (of late) found specially, and Demurrers on the Evidence are seldom used; yet in asmuch as it is sometimes done, and that our Pra­cticer may be prepared with an Authen­tick Precedent for that purpose, I shall [Page 468] transcribe one out of Coke's Entries, fo. 134. viz.

Postea die & loco Infra Content̄ Coram [...]ss. Postea. Jacobo Dyer Milite Capitali Iustitiat̄ Dom̄ Regine de Banco & Nicolao Barham uno ser­vient̄ dict̄ Dom̄ Regine ad legem Iustic̄ ip­sius Dn̄e Regine ad assisas in Com̄ N. Ca­piend assign̄ ꝑ formam statuti, &c. ven̄tam infra nominat̄ J. A. quā infra script̄ H. C. ꝑ atturnat̄ suos infra Content̄ & Iur̄ Iure unde infra fit mentio Exact̄ similit̄ vener̄, Qui ad veritatem de infra Content̄ dicend, electi, triati, & Iurati fuer̄ Super quo p̄d H. ꝑ quendam J. B. de Consilio ipsius H. C. manutentione exitus interius Iunet̄ Coram p̄fat̄ Iust̄ Iur̄ p̄d in Evidentijs oftend & dic̄ quod, &c. [Here recite the Evidence truely] unde petit̄ Iudiciū, & qd Iur̄ p̄d veredict̄ suum de & suꝑ infra Content̄ pro ipso H. reddant, &c.

Et pd J. A. ꝑ quendā C. J. de Consilio suo Demurrer. dic̄ qd materia ꝑd ꝑ p̄fat̄ H. C. Iur̄ pred suꝑius in Evidentiis ostent̄ minus in lege existic ad pro band exitum interius Iunct̄ pro parte ejusdem H. quod (que) ipse ad materiam illam in forma p̄d in Evident̄ ostent̄ necesse necesse non habet nec ꝑ legem terr̄ tenet̄ re­spondere, & hoc paratus est verificare, unde pro defectu sufficient̄ mater̄ Iur̄ p̄d in hac parte ostens. Idem I. petit̄ Iudic̄ ▪ & quod Iur̄ de Veridict̄ suo suꝑ Exit p̄d reddend ex­oneretur [Page 469] & debitum suum infra spec̄ una cum dampn̄ suis occasione de tent̄ debiti illius sibi addiundi cari, &c.

Et p̄d H. C. Ex quo ipse suffic̄ mater̄ in Joynde lege ad manutenen exit̄ infra Content̄ pro parte ipsius H. Iur̄ pred suꝑius in Evident̄ ostens. qd ipse ꝑat̄ est verificare, quā quidem materiā p̄d J. non dedicit nec ad eam aliqua­liter respond sed verificationem illam admit­tere omnino recusat pet̄ Iudic̄, & qd pred J. ab actione sua pred versus Eum habend pre­cludatur, ac qd Iur̄ pred de Veredict̄ suo suꝑ exit̄ pred reddend onerentur, &c.

A Precedent of a Demurrer upon the Evidence.

And now at this day the said Plaintiff and Defendant by their Attornies did appear, and the Iury likewise did appear and were sworn, &c. upon which Sir T. W. Ser­jeant at Law, of Councel with the Plaintiff, gave in Evidence so and so, and repeat it truely, and did require the Iurors to find for the Plaintiff, upon which, J. C. of Councel with the Defendant saith, That the Evidence and Allegations afore­said alledged, were not sufficient in Law to maintain the Issue joyned for the Plain­tiff, to which the Defendant néedeth not, nor by the Laws of the Land is not holden [Page 470] to give any Answer; wherefore for default of sufficient Evidence in this behalf, the Defendant demands Iudgment, that the Iurors aforesaid of giving their Verdict be discharged, &c. and that the Plaintiff be barr'd from having a Verdict, &c. Then the Plaintiff joyns and says, That he hath given sufficient matter in Evidence, to which the Defendant hath given no An­swer, &c. and demands Iudgment, and that the Iury be discharged, and that the Defendant be Convicted; then the Iury may give Damages, if Iudgment shall hap­pen to be for the Plaintiff, &c.

A Bill of Exception.

Memorand. That the First day of August, Ebor. sc. An. 1650. before T. P. and W. Iustices of our said Lord the King for taking of Assizes in the said County assigned, in a Plea of Trespass and Ejectment, which J. S. in the Court of our said Lord the King before himself, by Bill doth Prosecute against E. B. supposing by the said Bill, that the aforesaid T. B. &c. and recite the substance of the Declaration, or what it is, &c. and the Issue, and then what the Evidence to prove the Defendant guilty was▪ &c. which here was a Surren­der of a Copyhold out of Court, &c. and that he desired the Iury aforesaid to give [Page 471] their Verdict for the said T. B. of and up­on the Premisses, and that he likewise desired the Iudges aforesaid that they would inform the Iury aforesaid, that the Sur­render aforesaid out of Court made, was good and effectual in Law, and the afore­said Iustices, the aforesaid Surrender of the Land aforesaid, with the Appurtenan­ces made out of Court of the Mannour a­foresaid, in form aforesaid, did affirm to the said Iurors was not good in Law, by which the said Thomas for that the aforesaid matter to the said Iurors in Evidence shewed doth not appear, &c. did request of the said Iustices according to the form of the Statute in such case provided this pre­sent Bill, which doth contain in it the matter aforesaid above by him to the Iu­rors aforesaid shewed, by which the said Clayton's Re­ports. Iustices at the request of the said Thomas this Bill have sealed at D. aforesaid.

1. Westm. 2. 31. 13 E. 1. When the Iustices will not allow a Bill of Exception upon Prayer, if the Party impleaded ten­der the same unto them in Writing, and requires their Seals thereunto, they or one of them shall do it.

2. If the Exception sealed be not put into the Roll, upon Complaint thereof to the King, the Iustice shall be sent for, and if he cannot deny the Seal, the Court [Page 472] shall procéed to Iudgment according to the Exception.

This Bill of Exception is given by the Statute Westm. 2. cap. 31. before which Statute a man might have had a Writ of Error; for Error in Law either, in reddi­tione Judicii, in redditione Executionis or in Processu, &c. which Error in Law must be apparent in the Record, or for Error in sait; by alledging matter out of the Record, as the death of either party, &c. before Iudg­ment. But the mischief was if either par­ty did offer any exception, praying the Iusti­ces to allow it, and the Iustices over-ruling it, so as it was never entred of Record, this the party could not assign for Error, because it neither appeared within the Record, nor was any Error in fait, but in Law, and so the party grieved was without remedy until this Statute was made.

This Act extendeth to all Courts, to all Actions, and to both parties, and to those who come in their places, as to the vouchee, &c. who comes in loco tenentis.

It extendeth not only to all Pleas Dila­tory and Peremptory, &c. to Prayers to be received, Oier of any Record or Déed, and the like; but also [...]o all Challenges of Iurors and any material Evidence given to any Iury, which by the Court is Over-ruled. 2 Inst. fo. 427.

All the Iustices ought to Seal the Bill of Exceptions, yet if one doth it, it is sufficient, if all refuse, it is a contempt in them all. And the party grieved may have a Writ grounded upon this Statute, commanding them to put their Seals Juxta formam Statu­ti. & hoc sub periculo quod incumbit nulla­tenus omittatis.

The party must pray the Iustices to put their Seals, but if they deny it, they may be commanded, and may do it after Iudgment.

If the party grieved be dead, his Heirs or Executors, &c. according to the Case, may have a Writ of Error upon this Bill of Ex­ceptions. And no diminution can be alledged, for the parties are confined to the matter in the Bill.

If the Iustice dye before he acknowledgeth his Seal according to the Act, a Scire sac. shall go to his Executor or Administrator, for the Death of the Iudge is the act of God, which shall not prejudice the party: As in the case of a Certificate of the Marshal of the King's Host, that the person outlawed was in the King's Service beyond Sea, in a Writ of Error a Scire fac. shall go to the Marshals Exe­cutor or Administrator upon shewing the Certificate.

If the Iudge denyeth his Seal, the party may prove it by Witnesses, ib.

Error of a Iudgment at the Grand Ses­sions in the County of Pembrok, in an Assise of darrein Presentment, by Henry Cort against the Bishop of St. Davids, Dorothy Owen & al. for the Church of Stackpoole.

The fourth Error assigned was, because the Issue being, whether H. Cort did last present one R. D. the last Incumbent who was instituted and inducted upon his Presen­tation: The Plaintiff offered in Evidence Letters of Institution, which appeared to be and so mentions that they were sealed with the Seal of the Bishop of London, because the Bishop of St. Davids had not his Seal of Of­fice there, And those Letters were made out of the Diocess; And the Defendant had de­murred thereupon, That those Letters were insufficient, and the Demurrer was denyed, which Jones said was an Error, because they ought to have permitted the Demurrer, and should have adjudged upon it. But it was held that the not admitting of the Demurrer ought not co be assigned for Error: for when upon the Evidence the matter was over-ruled by the Iustices of Assize, That was a proper cause of a Bill of Exceptions, and the reme­dy which the Statute appoints in that Case; And for the matter of the Letters of Institu­tion sealed with another Seal, and made out of the Dio [...]ess, it was held they were good enough, for the Seal is not material, it being an Act made of the Institution, & the writing [Page 475] and sealing is but a testimonial thereof, which may be under any Seal, or in any place. But of that point they would advise. Croke 1. part 340.

Note, This Bill is to prevent the precipitancy of the Judges, and ought to be allowed in all Courts, and in all places of Pleadings, and may be put in at any time before the Jury have given their Verdict.

But this Bill is rarely used, there being impar con­gressus, betwixt the Judge and the Councel; and the Prudence of the Judges induce them to find special Verdicts in Cases of doubt and difficulty.

A Release Pleaded at the Assises after Issue joyned.

Et pred. Def. in propria persona sua ven. & dic. quod pred. Justic. Dom. Regis hic ad caption. Jur. ss. pred. inter ipsum Def. & prefat. Quer. procedere non debent quia dic' quod post xii diem F. ult. preterit. de quo die Jurat. pred. inter partes pred. continuat, fuit, & ante hunc diem [scilt. diem de Assise] scilt. primo die M. Anno, &c. apud, &c. pred. Quer. per nomen, &c. remisit, relaxavit, &c. Et hoc, &c. unde pet. quod Justic. pred. ad captionem Jur. pred. ulterius procedere nolunt.

The Death of one of the Defendants Pleaded after the last Continuance.

Et pred. Def. per A. B. Attorn. suum ven. & pred. T. non ven. & super hoc pred. Def. dic. quod post ult. concinuationem placiti pred. scilt. post xv. Pasche ult. preterit. de quo die loquela pred. ult. continuat. fuit hic usq. ad hunc diem scilt. in Cro. sce. Trin. tunc prox' sequen' & ante eundem diem scilt. decimo die Maii ult. preterit. pred. T. apud A. pred. obiit Et pet. quod null. process' nec aliquid aliud in placito pred. ulterius versus prefat. T. fiat Et quia pred. J. & K. hoc non dedic. Ideo null. process. nec aliqui [...] aliud in pla­cito pred. versus prefat. T. fiat, &c.

A Baron Challenges the Pannel because no Knight was retorned of the same.

Et sup. hoc idem T. calumpniat arraiament. pa­nelli pred. quia dic. quod ipse est & tempore arraia­ment. panelli il [...]ius fuit Baro hujus Regni Angliae, lo­cum & vocem habens in quol. Parliamento hujus Reg. Quod (que) in eodem pan [...]llo nullus Miles nominat. & retorn. existit Et hoo paratus est verificare unde petit Judicium & quod panellum illud cassetur, &c.

Evidence, and demurrer upon Evidence, Middleton against Baker. Cro. Eliz. 42. fol. 751.

In Eject. It was held by all the Court upon evidence to a Jury, That if the Plaintiff give in evidence any matter in writing, or Record or a sentence in the Spi­ritual Court, (as it was in this case) and the Defen­dant offers to demurr thereupon, the Plaintiff ought to joyn in the demurrer, or wave the Evidence, be­cause the Desendant shall not be compelled to put matter of difficulty to lay Gens, and because there cannot be any variance of a matter in writing. But if either party offer to demurr, upon any evidence given by Witness, the other, unless he pleaseth, shall not be compelled to joyn, because the Credit of the testimony is to be examined by a Jury, and the Evi­dence is incertain, and may be enforced more or less. But both parties may agree to joyn in demur­rer upon such evidence. And in the Queens Case, The other party may not demurr upon evidence shewn in Writing, or Record, for the Queen, un­less the Queens Councel will thereto assent; But the Court in such case shall charge the Jury to find the matter specially, as appears 34 H. 8. Dyer 53. But this is by Prerogative. vide lib. 4. 104. the same case, and 1. Inst. 72. where my Lord Cook says, If the Plaintiff in evidence shew any matter of Record, or Deeds, or Writings, or any sentence in the Ecclesi­astical Court, or other matter of evidence by Testimony [Page 477] of Witnesses or otherwise, whereupon doubt in Law ariseth, and the Defendant offer to Demurr in Law thereupon, the Plantiff cannot refuse to joyn in de­murrer, no more than in a Demurrer upon a Count, Replication, &c. and so è converso, may the Plaintiff Demurr in Law upon the evidence of the Defendant: but the Kings Councel shall not be enforced to joyn in Demurrer; but in that Case, the Court may direct the Jury to find the special matter. So that the se­veral sorts of evidence make no difference, as to the joyning in Demurrer. 1. part Leon. 206.

Darrose against Newbott. Cro. 4. Car. fol. 143.

In Error of a Judgment in Bridgewater: The Error as­signed was, for that, in an Action upon the Case far As­umpset, the parties being at issue, a demurrer was joyned upon the evidence, and thereupon the Jury discharg­ed, and afterwards judgment was given for the Plain­tiff, and a Writ of Inquiry of damages awarded, and damages found, and Judgment thereupon: where the Jurors which came to find the Issue, although by the Demurrer they were discharged of the Issue, yet ought to have assessed damages conditionally, if judgment should be given for the Plaintiff. And in proof thereof was cited Newis and Scholastica's Case in Plo. Com. fol. 408. and the old Books of Entries, &c. And it was said by the Court, If these Precedents be good Law, th [...] it may be inquired of by the same Jury conditional [...]y: But it may be as well inquired of by a Writ of Inquiry of damages, when the Demurrer is determined: And the most usual course is, when there is a demurrer upon evidence, to discharge the Jury without more inquiry. But as My Lord Chief Baron Montague held at the Assises in Cambridgeshire, 1682. it may be one way or other.

In the Assise by R. Newis and Scholastica his Wife a­gainst Lark and Hunt, which was taken by default, The Precedent in Plowd. Com. as to this matter runs thus. Recogn' Assisae pred. exacti vene­runt, qui ad veritatem de premissisdicend. electi, triati, 8 [...]rati fuerunt, sup. quo Willielmus Bendlows Ser­viens [Page 478] ad legem de consilio predictorum R. & Scho­lasticae in manutentione Assisae pred. coram Justic. Dominae Reginae de Banco hic in evident. Recognit. Assisae pred. dixit, quod diu ante diem impetration is Assisae pred. quidam H. Clark fuit seisitus, [...]c. Et condi­dit testamentum & ultimam voluntatem sua in scriptis, inter alia, unde pars inde in hiis Anglicis verbis sequi­tur, videl. Also this is the last Will and Testament of me the said Henry Clark, for and concerning, &c. Et ulterius idem Serviens ad legem ex parte pred. R. & S. dedit in evident. eisd. Recognit. quod, &c. Quo­rum pretextu idem jam Serviens ad legem exigit quod iidem Recogn. Assisae pred. Assisam pred. de te­nementis pred. cum pertin' in visu, &c. pro parte ipsorum R. & S. triari & comparere debeant, &c. Et veredictum suum dare debent quod. pred. W. Lark & J. Hunt dictos R. & S. de tenementis pred. cum pertin' in visu, &c. disseisiverant, &c.

Et pred. W. Lark & J. H▪ in propriis personis suis dic. quod evidentiae & allegatione [...] pred. ex parte pred. R. & S. superius allegat. minus sufficien. in lege existunt ad manutenend. Assisam pred ad quos ipsi necesse non habent nec per leg. terrae tenentur respondere unde pro defectu sufficien. evident. in hac parte pet. judi­cium quod juratores pred. de veredicto suo in pre­missis dicend. exonerentur, &c. Et quod pred. R. N. & S. ab Assisa sua pred. habend. precludantur, &c.

Et pred. R. & S. dicunt quod ex quo ipsi sufficien. materiam in manutentione Assisae pred. in evident. recognit. pred. ostend. quam quidem materiam pred. W. Lark & J. Hunt non dedicunt nec ad eam aliqua­lit. respond. petunt judicium Et quod iidem Jurator. inde exonerentur, & quod pred. W. & J. de Assisa illa convincantur, &c. Sup. quo dict. est Recogn. pred. quod inquir. quae dampna pred. R. & S. sustinuer­tam occasione disseisinae pred. quam pro misis & cu­stagiis suis per ipsos circa sectam suam in hac parte apposit. si conting. judicium pro eisdem R. & S. in placito pred. sup. evidentias pred. reddi Qui quidem Recogn. dicunt sup. sacram. suum quod si conting. judicium in placito pred. pro pred. R. & S. sup. evi­dentias [Page 479] pred reddi, iidem R. & S. sustinuer. dampna occasione disseisinae pred. ad 13 s. 4 d. & pro misis & custagiis suis ad 20 s. Et quia Justitiarii hic se advi­sare volunt de & sup. premissis priu [...]quam judicium inde reddant, dies datus est partibus predict. &c.

Note, several Exceptions were taken to the manner of giving the Evidence: First, for that the intire Will was not shewed, but part, and that this being the foundation of the Evidence, the whole Will ought to have been shewed; for there might be some o [...]her matter of substance, as a Condition, Limitati­on, &c. in the parts not shewed. But all the Justi­ces disallowed this Exception, and said, the party, in any Title or Bar, needs shew no more, than what makes for him. As in an Act of Parliament, in which are divers branches, 'tis sufficient to shew that branch which serves ones purpose; and not like the Case of a Fine or Recovery of 20 acres, where I must shew the whole Record, although I am concerned but in one acre, because the Originial is intire, and so is the Record grounded upon it. See also Fulmer [...]ton and Stewards Case. Plo. Com. 102. Another Exception was, That the fine was not shewed under the Seal of the Court, or the Great Seal but one part indented of the Chirograph was only shewn, which the Jurors were not bound to believe, because it wanted a Seal. But all the Justices were against this, and said, the Jury might find the Fine of their own knowledge, without the shewing of the parties; or they might find it upon the Credit of any Witness that had seen it, and the shewing the part indented, is the usual evidence of a Fine. (Note, a Fine indented and not exemplified under Seal, &c. shall not be de­livered to the Jury, 34 H. 6. 25.) And they said, be­cause it is only the Inducement of the verity to the Jurors, the party could not Demurr upon this; for the effect of the matter is, that ther [...] is such a Fine which is amongst the Records. And this is the sub­stance of the matter, and the part of the Chirograph is nothing but the Image of the verity, and there­fore [...] [Page 486] [...] [Page 487] [...] [Page 482] suum coram Baronibus hic prestitum in premissis, dicit, quod, &c. (here recite the Evidence.)

Et pred. Attorn. Domini Regis pro eod. Domino Rege dic. quod evidentiae pred. superius dat. minus sufficien. in lege existunt, ad manutenend. seu pro­band exit. pred. pro parte ipsius A. F. superius ad pa­triam junct. unde ob insufficient. earundem evi­dent. ac ex quo per evidentias illas non dedicitur fo­risfactura bonorum pred. in informatione pred. spec. i em Attorn. Domini Regis pro ipso Domino Rege petit judicium ac quod eadem bona remaneant Domi­no Regi forisfacta juxta formam statuti pred. Et pred. A. F. dic. quod evidenciae pred. superius ex par­te ipsius A. F. dat. sufficien. in lege existunt tam ad manutenend. & proband. exit. pred. pro parte dicti A. F. superius ad patriam junct. quam ad excludend. Do­min. Regem de aliqua forisfactura bonor. pred. habend. Ad quas pred. Attorn. Domini Regis, pro ipso Do­mino Rege minus sufficienter respondit, nec aliquod pro ipso Rege allegavit; unde idem A. pet. judi­cium ac quod pred. bona in dicta informatione spec. ei reliberentur, quodque ipse quoad premissa ab hac Curia dimittatur. Ideo ad judicium.

Note, In this Case, the agreement according to the Statute, was put in Issue generally, and yet the speci­al agreement maintained the Issue.

And wheresoever the Evidence do [...]h not warrant, prove Regula. and maintain the v [...]ny same thing that is in Issue, that Evidence is defective, and may be Demurred upon.

Upon non est factum to a Bond dated at York: It Non [...]st factum. was said, in this case, that, to prove the Bond made in another place doth not prove the Bond nor Warrant the Issue, because the delivery is intended to be where the Dare is; but the Witnesses prove the contrary, and so the Issue is not proved: But surely if this be found, the Plaintiff shall have Judgment as well as up­on a Bond delivered before the date. 31 H. 6. Plo. 7. Rolls 677. But infancy, or made by Dures, cannot be given in evidence upon non est factum, lib. 5. Whelpdales Case, 119. because thereby the Bond is not void but only voidable: Otherwise of the [Page 483] Bond of a Feme Covert, or Monk, for there the Bond is void, and so non est factum; and so of a Bond made to a Feme Covert, and the Husband disagree to it, or by Husband and Feme, Non est factum of the Wife.

In an Assise if the Tenant plead Nul tort, nul disseisin, he cannot give in evidence a release after the dissei­sin; but a release before the Disseisin he may, for Release. then there is no Disseisin upon the matter.

In a Writ of Right, if the Tenant joyn the Mise Warranty. upon the meer Right, he cannot give in evidence a Collateral Warranty, for he hath not any right by it, and therefore it ought to have been pleaded. 1. Inst. 283.

Regularly, whatsoever is done by force of a Warrant, or Authority, ought to be pleaded. Regula.

But, Note, in all Cases where one cannot have ad­vantage of the special matter, by way of Plea, there he may have advantage of it in evidence: as for ex­ample, The rule of Law is, That one cannot justifie the Death or Killing of a man; and therefore if one kill another in his own defence, he cannot plead this specially; but he may give it in evidence: and so in defence of his House, against Thieves and Rob­bers, &c.

By the Statute 23 H. 8. cap. 5. any thing done by Sewers. the authority of the Commission of Sewers, may be given in evidence upon the general Issue.

After taking the General Issue, the Defendant cannot give in evidence any thing that goes in discharge Regula. of the Action; as in Debt upon nil Debet, he cannot give in evidence a Release, nor a grant to cut Trees, Release. to repair upon nul wast fait, nor making of a Ditch to amend the Meadow▪ but that he only lopped the Wast. Trees, he may, if wast be Assigned in succidendo Arbores, &c. Neither if a Statute was made that all Statute. Tenants for life should be dispunishable of wast, could he give in evidence this Statute, 28 H. 8. Dy­er 28. for the discharge ought to be pleaded, because it admits a Cause of Action without it.

In Debt against Executors, and Assets inter marus, Assets. in Issue, 'Tis good evidence that they sold Land, by the [Page 484] Will of the Testator, &c. and that they had the mo­ney. And so that they recovered Damages in Trespass for goods taken in the life of the Testator, &c. 3 H. 6. 3.

In an Issue upon Villenage regardant to a Mannor, Villenage. a Villain in gross, is no evidence, Dyer 48.

In wast by the Grantee of a Reversion, by Mon­tague Attornment. and Fitz. The Lessee may plead that he in reversion ne grant a pas per le fait, and give in evi­dence, that he never attorned, or he may Traverse the Attornment at his election, Dyer 31.

In Trespass, Quare clausum fregit, the Defendant Trespass. says that locus in quo, &c. is 6 Acres in D. which is his Freehold: the Plaintiff replies that it is his Free­hold, and not the Defendants: The Defendant can­not give in evidence, other 6. Acres in D. which are his Freehold, because the plea shall be intended to refer to the 6 Acres of the Plaintiffs, Dyer 23.

In Rescous by the Lord, upon not guilty, the Rescous. Defendant shall not give in evidence, that he doth not hold; by Vavasour and Bryan: and so if he said nothing is behind in avowry, he shall not give in evi­dence that he doth not hold of him. T. 9 H. 7. 3. Avowry.

In Assise, Feoffment pleaded, the Plaintiff said, he Feoffment. did not enfeoff modo & forma upon the Deed and Letter of Attorney to Infeoff upon condition found, if the Attorny made it without condition, this well proves the Issue for the Plaintiff, 13 E. 4. 4.

If one plead a Feoffment of a Jointment to his Com­panion, or of a Feme Covert, the other may say ne enfeoffa pas, and give the matter in evidence; and the Court shall instruct the Jury of the Law, 18 E. 4. 29.

Upon the general Issue, any thing may be given in evi­dence, Regula. which proves the Plaintiff had no cause of Action.

Trespass by the Warden of the Fleet, upon not Trespass. Guilty, you may give in evidence, that he is not Warden, 4 E. 4. 7.

So in Trespass of a House, that he had no house there, or the Freehold of another, and not of the Plaintiff, is good evidence upon not Guilty: but in Trespass of Goods, 'tis no good Plea to say, the pro­perty [Page 485] was in another, although it is in a Replevin; and therefore it seems to be no good evidence in Tres­pass, because possession maintains the Action against all but the owner; but that the property was in a stranger, and he gave them to the Defendant, is good. See before cap. Evidence, 27 H. 8. 25. But in Trover, Trover. that they were not the Goods of the Plaintiff, is good evidence, 5 H. 7. 3.

Cessavit, [...] Count, that of diverse Lands held by Cessavit. entire service, upon non tenuit modo & forma, held by several services, is good evidence, for he had no such cause of Action, 10 H. 7. 24.

Upon the general Issue, for the Defendant by evidence to Regula. convey to himself the same Interest and Title, [...] good evidence.

As in Trespass of Goshauks, Not Guilty, and evi­dence, Trespass. that he had a lease of that Wood for Years where they were taken, is good, for it is his Title, 16 E. 4. 2.

Account of Receipt, by the hands of J. S. the Account. Defendant pleads Ne unques son Receiver, and evi­dence, that J. S. gave this to him, is good, 2 H. 4. 13. So in Trespass, a Lease for Years, Tenancy at Sufferance, (but not at Will) That they were a strangers goods, who gave them to the Defendant, is good evidence, upon Not guilty. 22. Ass. 73. be­cause by these matters he makes himself a Title, & sic de caeteris.

Upon the general Issue, if by the evidence the Defen­dant Regula. acknowledge that he did the wrong, and justifie this, and gives matter that goes to discharge him of the act by Justification, this evidence is not good, but he ought to have pleaded it.

This rule is demonstrated, by those Cases where upon Not Guilty, in Trespass, the Defendant would say, the property was in a stranger, and that by his commandment, or as his Servant, he took the goods. Not Guilty, and that he did the Battery se defenden­do. Not Guilty in maintenance, and lawful mainte­nance. Insufficiency of Mounds. The Freehold of a stranger, and his Licence. A former recovery in another action. So for Common, Rent-service, Rent-charge, [Page 486] Licence, &c. cannot be given in evidence upon the general Issue, for these matters in evidence are justifications, which go in discharge of the party, but not by Title, but by justification.

So where an Imprisonment or entry is given by au­thority of Law, or by authority from any party, as for an imprisonment, by the Statute of Trespassers in Parks, putting a man off his ground, thrusting a man out of Church that troubles the Congregation in service, parting an Affray, and keeping the Quarrellers a­part, in defence of himself, or his, Entry in per­amblation, Entry to amend his Gutter leading to his house, as of antient time had been used. That it was a Common Inn. That he put in his Cattle by the Plaintiffs agreement. That he entred and took the Emblements after the death of the Tenant for Life. That the Plaintiff owed him money, and by his invitation he went into his house to receive it. That he took the goods, as a Hariot, Waif, E­stray or Wreck. Or the Plaintiff took away the Defendants Cattle and he entred into the Close where they were, and took them again. That he took the Cattle damage seasant in his ground, or for an Amercement in a Leet, &c. That the goods were the goods of J. S. who delivered them to the Plain­tiff to keep, and J. S. commanded the Defendant to take them; or excuse it, that the Plaintiff delivered them to him: That he took them by a writ. That as Schoolmaster he gave moderate Correction. These are excuses and justifications without Title, and therefore must be pleaded, and cannot be given in evidence upon Not Guilty.

So in an action de malefactoribus in parcis, he can­not plead Not Guilty, and give a Licence in evi­dence. So in an Appeal, if he plead Not Guilty, and shews that he was Sheriff, and executed his Office, or that he was [...]oster, and killed him because he fled, and would not submit. vide 12 H. 8. fol. 1. The best Case of this matter.

Evidence which is contrary to that in Issue, or which Regula. is not agreeable to the matter in issue, is not good.

As appears, by several Cases, which you may find in the Chapter of Evidence. As upon the Issue, nothing passes by the Deed, you cannot give in evidence, that it is not your Deed, for this is contrary to the Issue, and to that which is acknowledged in the plea by impli­cation, 5 H. 4. fol. 2.

And so upon Not Guilty, in assault and Battery, and evidence that it was done in his own defence, is not good.

And so in debt upon a Bail-bond, you must plead, that there is not the name of Sheriff in it, Et issint­nient son fait, and cannot give it in evidence upon non est factum, for it is contrariant, 5 E. 4. 5.

So upon Issue of Common appendant, Common pur cause de vicinage, is not agreeable to the matter in Issue, and therefore cannot be given in evidence, 13 H. 7. 13.

Where the evidence proves the effect and substance of Regula. the Issue, it is good.

As to prove a Grant or Lease pleaded simplement, a Grant or Lease upon condition, and the condition executed, is good, for this proves the effect and sub­stance of the Issue, 14 H. 8. 20. so a promise to the Wife, and the Husbands agreement proves a promise to the Other cases of evidence. Husband, and this you may see in many Cases, in the Chapter Evidence.

In Trespass for goods taken, the Defendant, upon Trespass. Not Guilty, in mitigation of Damages may give in evidence, that the Plaintiff had his goods again, 11 H. 4. 24. 19 H. 6. 34.

Justifiable maintenance cannot be given in evi­dence Maintenance. upon the general Issue, but must be pleaded. The Master may justifie for his Servant. Any man for his kindred, &c. or to give money to the Poor, &c. But that he was of his Counsel, may be given in evidence upon the general Issue, for to give Counsel, is not maintenance. 22 H. 6. 35. 28 H. 6. 6.

Upon this Issue, the Defendant may give in evi­dence, Non est factum. that he is a Lay-man not lettered, and that [Page 488] it was read to him in another form, 15 E. 4. 18. but A witness may prove the contents of a Deed, or Will. Vaugh­ans Rep. 77. Prescription. it is the best way to plead it, for the understand­ing of the Jury, 39 H. 6. 9. Bro. Waiver 2.

In an Issue upon a prescription Traversed, the Plaintiff gave in evidence a Deed bearing date after the time of limitation, scil. After the time of R. 1. And the Defendant would have demurred in Law upon it, and well he might, per Cur. Whereupon the Plaintiff would not give this in evidence, but gave other evidence. 34 H. 6. 37. See Chapter Evi­dence, fol. 230. where a Grant shall be taken as a Confirmation of a Prescription.

Note the opinion, 12 H. 4. 21. That a Deed made before the time of memory, may be given in evidence, although it cannot be pleaded. Antient Deeds. False impri­sonment.

Upon Not Guilty, the Defendant gave in evidence, that by the Plaintiffs agreement he carried him from D. to S. and held good, because, what is done by the Plaintiffs agreement, is no Imprisonment. 14 H. 6. 2.

Upon Not Guilty, the Defendant said, his Master locked the Plaintiff into a Chamber of his House, and gave the Defendant, being his Servant, the Key to keep. 22 E. 4. 45.

Vide Repl. in Fitz. 34. Repl. of a Sow and Piggs, the Defendant justified for the Sow, and to the Sow pigged, being taken in Distress. Piggs, pleaded he did not take them; the Jury found, that the Sow was with Pigg, when she was taken, and afterwards cast her Piggs, in the Custody of the defendant; and the Plaintiff recovered Damages, for says Bro. Aridg. tit. General Issue, 88. This is a special taking in Law.

Dower of rent. Hill. ne unque seisie que Dower la poit. Dower. Horton J▪ S. granted the rent to the Husband, pay­able at Michaelmas next, and the Husband dyed be­fore the day, and so he was seised in Law, and demanded judgment. Thirm. You shall say gene­rally, quod seisie que Dower la poit, and give your Case in evidence, Et sic bene notwithstanding the doubt of the lay Gents, for they ought to credit the Law, and evidence is not to be pleaded. 11 H. 4. 88.

Tenant for life leaseth for years, who is ousted, and the Tenant for life is disseised; The disseisor leaseth for years, who sows the Land; The Tenant for Life dies; he in remainder in Fee, brings Tres­pass against the Defendants claiming the Emblements Emblements. Knivets Case. lib. 5. 85. by the Lessee of the Disseisor. Adjudged, that they had not the meer right, but in respect of their pos­session, they should barr the Plaintiff, who had no right: and that the meer right was in the Lessee of the Tenant for Life, and that he might bring Trespass a­gainst the Lessee of the Disseisor, and recover all the mean profits. But as to the entry into the Land to take the Emblements, this was good matter of justifica [...]ion; but in regard it was not pleaded, it could not be gi­ven in evidence upon Not Guilty; and therefore the Plaintiff had judgment for the entry, and was barred for the residue. Note that the Lessee of Tenant for Life had right to the Land, and by con­sequence to the Emblements, as things annexed to the Land, and the death of the Tenant for Life deter­mins his interest to the Land, but his right to the Emblements remains.

It sufficeth to prove the substance, without any precise Regula. Substance. Circumstance regard to the Circumstance. As if an Indictment be, that with a Dagger the offender gave another a mor­tal wound, &c. and in evidence it is proved to be done with a Sword, Rapier, Club, Bill, or any other Weapon, the offender upon this evidence ought to be found guilty: For the mortal wound is the substance, and the manner of the Weapon is but the Circumstance; yet some Weapon, ought to be mentioned in the Indictment. And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors; To prove that B. stroke is sufficient, &c.

Manslaughter upon an Indictment must be found, if proved, because the killing is substance, upon which judgment shall be given.

Indictments for [...]urther of Ministers of Justice, in execution of their Office, may be general, viz. that the prisoners, felonice, voluntarie & ex malitia [Page 490] sua praecogitata, &c. percusserunt, &c. without alledging the special matter, which may be given in evidence, for the Law implyes malice prepensed. So if a Thief in rob­bing kills the man that resists him, or a man is killed without any provocation, or without malice prepen­sed that can be actually proved, the Law adjudges this murder, and implyes the malice; and in these Cases, the offenders may be indicted generally, that they killed of malice prepense, for the malice imply­ed by Law, given in evidence, is sufficient to main­tain the general Indictment. lib. 9. 67. Machallyes Case.

So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient. lib. 9. 119.

In Cromwels Case, lib. 4. 12. Although it was objected that in an Action of slander, If the Defendant will justi­fie, he must justifie the same words & in the same sense, as it is laid in the Nar. or else he must plead, Not Guilty, and give the special matter, that is the variance in evi­dence. Yet the Court held, that the Defendant should not be put to the general Issue, but might justifie, al­though he varied from the Plaintiff in the sense and Copyhold. In Pilkintons Case. Stiles, 450. Rolls said, If Copies of Court Roll be shewed to prove a Cu­stomary E­state, the en­joyment of such Estates must also be proved, o­therwise the proof is not good. Forger. Totum & pars. quality of the words: and might set forth the cohe­rent words. As for calling the Plaintiff Murderer, the Defendant may shew that they were speaking of Hares, and the words were spoken in reference to killing of Hares.

Upon the Issue, if the Lord of the Mannor grant­ed the Lands, per copiam rotulorum Curiae manerii pred. secundum consuetudinem manerii pred. To prove that there were customary Lands in the Mannor, and that the Lord of late granted the Land, &c. per Copiam rotul. Curiae, where it was never granted by Copy be­fore, is no good evidence to find the Custom, or that the Lands, &c. were grantable or demiseable by Custom. Leon. 55. Kemp and Carters Case.

Forger of a Deed, in which is contained a demise of the site of the Mannor of R. and terras domini­cales, &c. A Deed of the site, and all the Demesnes of the said Mannor, Exceptis duabus clausuris, &c. is good evidence, for it is not necessary to construe ter­ras dominicales, &c. omnes terras dominicales, &c. for [Page 491] Lands not excepted are terrae dominicales, and so the Count is satisfied by that evidence. Leon 139. Atkins and Hales Case.

Debt against an Executor, upon plene administravit, it appeared, that the Executor medled, and admi­nistred, Plene admini­stravit. and then refused in Court, and administra­tion was granted to another; and that several summs were recovered against the Administrator; it was said by Periam Justice, 1. That if an Administrator (who is a stranger) administer, without the Com­mandment of the Executor, the Executor cannot give such administration in evidence, to prove his Issue. 2. That in the principal Case the Executor ha­ving administred he could not refuse, and so the ad­ministration is granted without cause, and what he did was without warrant, and no administration. Ieon. 134. Hawkins and Lawse Case. At Bury Assi­ses 1682. before Judge Windham, The Executor gave the administration of the Administrator in evi­dence, and allowed; but there, what the Administra­tor did, was by the Executors consent, in Mr. Lun and his Mothers Case.

An Executor de son tort cannot give in evidence Plene admini­stravit. An Executor pleads plene administra­vit praeter a judgment, re­plication, and Issue, that the judgment was fraudulent. The Obligee who had the judgment, was denyed to have evidence about his Debt, for he sweareth to have Assets for himself; and is interested in the thing. Before Judge Windham, at Bedford Assises, 1682. his retaining of goods to pay himself, for he cannot re­tain; but if he takes out letters of Administration (although) pendente lite, he may retain for a Debt of as high a Nature and plead this in Barr, for the administration purges his wrong, and although he shall not abate the Writ by taking out Letters of administration, yet he may plead this in Barr. Stiles Reports. 338.

In a Replevin, the taking was supposed in R. The No evidence to be given a­gainst what is admitted up­on the Record Defendant said that the place where, is 40 acres, par­cel of the Mannor of R. which is his Fre [...]hold, and avowed for Damage seasant; The Plaintiff said, that [Page 492] the place where, is parcel of the Mannor of R. in R. and conveyed title to himself in that; Absque hoc, that the Mannor of R. unde was the Freehold of the Defen­dant. It was the opinion of the Justices, that the Plaintiff is estopped to give evidence that the De­fendant Note Leon 3. part 210. If the parties admit a thing per nient dedi­re, the Jury is not bound by it; but where upon the pleading a special matter is confessed, the Jury shall be bound by it. Impropriati­on. had not any Mannor of R. for the words absque hoc and unde imply he had such a Mannor, but he ought to have taken it by protestation, that the Defendant had no such Mannor of R. in R. absque hoc that the 40 acres was the Freehold of the Defen­dant, Dyer 183.

Trespass, concerning the Rectory of Norton Pinkney, which belongs to Oriel Colledge in Oxford, The Issue was, if there was a Vicaridge indowed there, or on­ly a stipendiary Curat.

1. All agreed, that if a Vicaridge be erected and established, if there was no Endowment de facto of the Vicaridge, the Vicar could not claim any thing.

2. There was shewed an Impropriation, by the Li­cence of the Pope made in the time of E. 2 Dod­deridge said, that was not good, Jones è contra. And it will be perillous to such ancient impropriations, if now the consent of the King must be shewed; and at that time it was taken good by the assent of the Pope, without the King. Dod. denyed that the Pope without the King at that time could make an impro­priation with the Ordinary and Patron. But Crew agre­ed with Jones. And in things of such antiquity om­nia praesumuntur solempniter acta, and said, that so it was ruled in a case before: And Jones said it was nothing to the Vicar, for the Vicaridge may be endow­ed without the consent of the King, and 'tis not Mortmain. Palmers Reports 427. Erasmus Copes Case against Bedford.

Where hors de son fee is pleaded, a release of the Seigniory is good evidence. 8 E. 2. Fol. Hors de son fee. 262.

In debt for Rent upon a Lease for years, the Issue being joyned, if the Rent was paid or not, the Defendant gave in evidence, for part of the Rent, That the Plaintiff was by covenant to repair the House, [Page 493] and did it not, and thereupon he expended the Rent Debt for rent. in repairing the house, and the question was, if this evidence will maintain the Issue. Gawdy conceived it did, for the Law giveth this liberty to the Lessee to expend the Rent in reparations, and recoup the Rent, V. 12 H. 8. 1. Fitz. tit. Bar. 242. 14 H. 4. 27. Fenner, It is no evidence, for if the Lessor will not re­pair it, the Lessee may have his covenant against him. Cle [...]ch, seemed he might well expend the Rent in re­parations, but he ought to have pleaded it, and cannot give it evidence upon the general Issue, and thereupon they moved the Jury to find the special matter.

So that it seemed to the Justices, that the Defen­dant had liberty to expend the Rent in the repa­rations (they being to be done at the Plaintiffs cost) but then that he ought to have pleaded this matter, as it was done in (almost) the like case. Fitz. tit. Bar. 242. Yet why might he not give it in evidence upon the general Issue? for if the Law allows this to amount to a payment of the Rent, then the De­fendant own nothing, which maintains nil debet, and I think the other book of 14 H. 4. 27. rejects this sort of special plea, upon this reason, that the Plea amounted to the general Issue: But there in­deed the Rent was pleaded to be laid out at the Plain­tiffs command, here only by authority in [...]aw. I should be glad if any one would reconcile those two Books better, I know there is another reason in the Book, (and assigned by Rolls in his Abridgment of the Case) why the Plea was rejected, viz. that the duty was acknowledged by the Plea, and therefore the matter of the plea not good, without shewing a Deed of it, but I should have been better pleased with him, if he had assigned the other reason, viz. that it amounted to the general Issue. Which made Cheyne that he durst not joyn in demurrer. For 'tis not pretended in either Case that the Deed order­ed the Rent to be laid out in the rep [...]irs.

And in that Case in F. where there was no ex­press order of the Plaintiff; it may be the Judges allowed the special matter to be pleaded, because [Page 494] the Jury should not be intrusted with the Law upon the general Issue, which may be said for the special pleading this matter in our Case, although it may a­mount to the general Issue.

But as to the residue the Defendant shewed, he paid Reparations. Vide the Cases of Re­couper. lib. 5. 30. it to others by the Plaintiffs order, which was held clearly good, for what is paid by the Lessors appoint­ment is a payment to himself. Cro. Eliz. 223. Taylor against Beal. vide Rolls tit. Debt 605. 34 H. 6. 17. Bro. Debt 27.

Where a man is Estopped in pleading to speak Estoppel. against his own deed, yet he shall not in evidence; As in Isehams Case against Morris Cro. 4 Car. 109. upon evi­dence at Barr, It was held by all the Justices of the Common Pleas, That where one makes a Lease for years of Land by Indenture, and hath nothing in the Land, and afterwards purchaseth the Land and aliens it; although it be a good Lease for years, by Estoppel against him and his Allence, by way of plead­ing, and shall bind them, yet it shall not bind the Jury, but they may find the truth, and if they find the truth, the Court shall adjudge it to be a void Lease. vide tamen Rawlin's Case lib. 4. 53. Sut [...]on and Dickens Case Leon. 1. part fol. 206. 1 Inst. 47. 227. Ed­wards against Omellhallum. Marsh. 64. James and Lan­dons Case. Cro. 27. Eliz. fol. 36. Leon. 3. part 210. Bulstr. 2. part 41.

Note, That if a Demurrer be made upon the evi­dence, the evidence ought to be entred verbatim. Kei [...] ­way 77. Where in account, against one generally as Bay­liff, the evidence that charged him specially by rea­son of his Tenure to collect, &c. was upon Demur­rer held not good.

Matter of Surplusage shewed in evidence shall not Surplusage. hurt. Keilway 166.

Issue was upon a devise to A. Harding and her Will. Heirs, modo & forma, and the Will given in evidence was A. H. shall have all my inheritance if the Law will allow it, and held sufficient to maintain the Issue, Hob. 2. so upon Ne unques receiver per maines J. S. a delivery from J. D. by the appointment of J. S. Account. [Page 495] to the Plaintiffs use, is good evidence. Hob. 36.

Issue whether A. was taken by a Capias ad sat. at the suit of B. and evidence of a taking at the suit of C. Arrest. and then a delivery of a Capias ad sat. at the suit of B. to the Sheriff is good. Hob. 55. But a taking up­on a Cap. utlagat or cap. pro fine, with a prayer of the Plaintiff that he may remain for his satisfaction, is not. ibid.

In a Consimili casu, where the demandant counts Consimili casu. Substance. of an alienation in Fee, yet the Defendant shall make his Traverse to the alienation modo & forma, and then the demandant shall maintain the Issue by an Alienati­on in Fee, or in Taile, or for Life, for they are all alike material. Hob. 105.

In an Assise the Defendant pleaded the Deed of Warranty. the Brother of the Plaintiff with Warranty, A Deed of the Father with Warranty will not maintain the Defendants Issue. Hob. 55.

In Bennets Case Stiles 223. In a Tryal at Barr, It was Juror. said by the Court, that if either of the parties to a Try­al desire that a Juror may give evidence of some thing of his own knowledge to the rest of the Jurors, that the Court will examine him openly in Court up­on his Oath, and he ought not to be examined in pri­vate by his Companions. And it was also said that if a Robbery be done in Crepusculo, the Hundred shall Robbery. not be charged, but if it be done by clear day light, whether it be before Sun rise, or after Sun set it is all one, and the Hundred shall be charged.

In an action of the Case for digging a hole in the Demurrer upon evi­dence. High-way, into which his Gelding fell, &c. upon Not Guilty, this evidence was given that the Plain­tiffs servant was driving the Plaintiffs Gelding in the way, and that by reason of the hole he fell, &c. Upon which it was demurred, because it was not proved that there was such a High-way, nor who Action sur Case. digged the hole. Roll Chief Justice, This evidence is no more than a special Verdict, and it ought to find the way and the hole digged and all the matter conducing to the Issue, and therefore it is not good as it is: and a venire de novo was awarded. Stiles 335.

In Trover and conversion, there was a Demurrer Demurrer upon evi­dence. joyned upon the evidence, and thereupon the Court directed the Jury to find Damages for the Plaintiff, if upon the argument of the Demurrer the Law should be adjudged for him, and then the parties desired the Jury might be discharged, and referred the matter to the Judges, to determine the Law up­on the evidence. In this Case Roll Justice took this difference: If a record be pleaded it must be sub pede sigilli, or else the Judges cannot judge of it: But it may be given in evidence, and the Jury may find Record. it, though it be not sub pede sigilli. And the Court advised the parties, for their own expedition, to let a venire facias de novo be Issued out, and to wave the Demurrer upon the evidence, because it was not good, nor could not bring the matter in question before them, that they might determine it; for one party saith there is a Writ, and the other saith, there is not a Writ, which is bare matter of fact for the Jury to determine, and not for the Court, and the Demurrer ought to have been, whether the Writ be good, or bad, and should have admitted that there was a Writ tiel quel, and then had the whole matter come legally before the Court, to wit, whether the evi­dence given to the Jury be sufficient for them to find a verdict for the Plantiff upon the Issue joyned or not-For the matter of fact ought to be agreed in a De­murrer to an evidence, otherwise the Court cannot proceed upon the Demurrer. And he said, if a Deed be pleaded, the party must shew it in Court, but in Deed. evidence 'tis not absolutely necessary to shew it, if it can otherwise be proved to the Jury; and so it is of a Record: and concluded, that the Demurrer was Record. not good, and that there ought to be a venire facias de novo to try the matter again. Bacon Justice said, there ought not to be a venire facias de novo, but that judgment ought to be given against one party, to wit, the Defendant, for ill joyning in the Demurrer, to the intent the party that is not in fault may be dis­missed, and the parties here have waved the Tryal per pays, by joyning in Demurrer. But Roll answered [Page 497] that no judgment at all could be given, for both par­ties be in fault, one by tendring the Demurrer, and the other by joyning in it, and the Defendant might have chosen whether he would have joyned or not, but might have prayed the judgment of the Court, whether he ought to join. The Court advised to search Precedents, for a venire facias de novo after a De­murrer upon an evidence, and if there be any, they hold that the same Jury ought to come again, and not another. Roll said if a special Verdict be found insufficient, a new venire facias ought to Issue, and he saw no difference betwixt that and this Case. Wright and Pindars Case, Stiles 22. and 34.

In Debt for Servants Wages, viz. 20 s. or a robe Debt. yearly: The Defendant may plead payment of the robe, and shall not be put to the general Issue, Servants wages. where the payment is of another thing than money; but of money he must plead nil deb. and give the payment in evidence. And the Defendant may plead that the Plaintiff departed out of his service, and shall not be forced to the general Issue 9 E. 4. 36. Though surely that may be given in evidence up­on nil deb. for the Plaintiff must prove he served: so indebitatus Assumpsit & non Assumpsit upon the pro­mise in Law, an extinguishment, by taking a Bond Extinguish­ment. (being a matter of a higher nature) for the Debt, may be given in evidence.

And Note, if an Infant buy Goods, and afterwards give a Bond, and this Bond be avoided by Infancy: Yet it seems the Contract shall not be revived. Sed du­bitatur, Rolls tit. Extinguishment 604. for now, this Bond which was voidable, is become void, and a void thing shall not have such effect: But a per­sonal action once suspended is gone for ever. But ac­ceptance of a Bond shall not extinguish Rent, nor arrerages of an account before an Auditor of Record, because these are of a higher nature than the Bond, the Rent being real, and the other of Record. But the Bond extinguishes the contract, for the ar­rears upon an Insimul comput asset, &c.

Acceptance of Rent due the last day, and an Acceptance. Rent. acquittance thereof, discharges all the arrerages due before. lib. 3. 65. Unity of possession, in as high an Estate destroys the prescription &c.

A seisure and condemnation in the Exchequer of for­feited Trover. Trespass. Vide Rolls 1. part 1. 2. A custom plead­ed in Trover to take Corn to repair a bridge, and Cro. Eliz. 433. & 262. Promise. Imperfect Issue. goods, may be given in evidence upon Not Guilty in Trover, but it must be pleaded in Trespass. In Trover of a Horse, that he is a Common Hostler, and that the Horse was put to him at Livery and dyed, is good upon Not Guilty. Rolls 1. part 22.

Upon Assumpsit the Plaintiff declares upon two con­siderations, and a simple promise: If the Jury find but one, or a conditional promise, this doth not maintain the Issue for the Plaintiff. Leon 173. Musted and Hoppers Case.

Where the Issue is not perfect, no evidence can be applied, neither can the Justices of Nisi prius pro­ceed to the Tryal of such an Issue. As whether the money was paid after the date of the Obligation, and the date was left out, and did not appear in the Record. Brown 2. 47.

In Debt upon a Bond, conditioned to pay 20 s. at Payment. the house of the Defendant the 7. day of May, upon payment at the time and place: The Jury found the payment before the 7. day, and prayed the advice of the Court, if this was a payment at the day. The Court adjudged that the payment and acceptance before the day, was as well, as if it had been paid at the day. Saviles Reports 96. Bond against Richard­son. And so saies Cook 1. Institutes 212. The time and place are but circumstances, and if the Obligee or Feoffee receive the money at another place, or before the day, it is sufficient: Or a lesser summ before the day. But More 47. upon Issue of payment at the day and place, and evidence of payment a month before, and Demurrer upon the evidence. Dyer, Brown and Welsh, said this evidence doth not maintain the Issue, because before the day of payment there is no duty, land the day and place are parcel of the Issue, and the act on one day, is not an act done on another day: As if an Executor pleads payment at [Page 499] the day, 'tis not good evidence to shew that it was paid before the day by the Testator, for this doth not prove the Issue, and yet there was not any duty re­maining at the day, and therefore the pleading ought to have been specially according to the truth. Vide devant 198. And 'tis not like the Case, where the circumstances of time and place are pu [...] only for necessity of Tryal; but, in regard that payment is the substance; why is it not sufficient to prove, as well as to find, the effect and substance of the Issue? And 'tis not the case of collateral conditions, where the condition is not to pay money, but to do some Collateral thing, as to deliver a Horse, a Robe or Ring, &c. or to pay money to a stranger, such Collateral conditions are more strictly to be observed. vide 1 Inst. 212.

Note, if there be a Demurrer, yet there may be a Plea puis dar­rein continu­ance. plea puis darrein continuance, and if the Plaintiff take Issue or demur to this plea, yet the Court must al­so consider of the first Demurrer; for if upon that standing confessed by the Demurrer, the Plaintiff could not have his action, the Court cannot give judgment for him, howsoever the latter Issue or De­murrer pass. But otherwise if the first had been an Is­sue, for then nothing were confessed to his preju­dice, and then that had been utterly relinquished by a second Issue, or Demurrer, Hob. 81. with a Quaere, &c. When this plea is pleaded, the Justices of Nisi prius cannot proceed to take the Inquest, neither can the Plaintiff reply there; but in Bank Bulst. 92. 93.

Per Doderige, In Trover and conversion of goods, Trover. if the Defendant derive a title from a stranger, this amounts to the general Issue, otherwise if from the Plaintiff. Latch. 186. And baylment of the goods to deliver to another, and delivery accordingly a­mounts to the general Issue, and may be given in evidence upon it. Bulst. 3. part 209.

In Trespass against two, for entring into the Plaintiffs Trespass. Freehold. Land, if one pleads his Freehold, and the other that he entred by the commandment of him that pleads it is his Freehold, here is to [...]e but one Issue joyned, [Page 500] viz. by him that claims the interest, for upon that Issue, all depends: If it be found against him, his servant has no colour.

And in regard what may be averred, may be proved, and given in evidence; 'twill not be Averments. impertinent to draw a short scheme of Averments with which I will conclude.

To alter, qualifie, or abridge the operation of it if there be any apt words in the Deed, whereupon Averment had upon or against a Deed. to ground it. As a grant to A. the Son of B. and he hath two Sons of that name, of the Mannor of S. and he hath two Mannors of that name, which Son or Mannor was intended, may be averred. And so may a consideration of a Deed that is besides, but Considera­tion. not that is against the express consideration of the Deed: nor can any thing against the words of the Deed, either inlarge or restrain it.

Nor can a Use against or besides the express uses in the Deed; but where no use is expressed, or incer­tainly Use. expressed, it may, and also to reconcile a fine and the Indentures to lead the uses of the fine. lib. 2. 75.

But when a Deed is utterly incertain, no averment shall help it. As a grant to one of the Sons of J. S To two & haeredibus, &c.

An estate to a Woman for her life, may be averred to be made for her joynture. Dyer 146. lib. 4. 4. Upon or a­gainst a Re­cord. And that the thing granted to me by a new name is all one thing, with that which has another, or an old name. Dyer 37. 44.

A thing that is against or besides a Record, or any A fine taken, by R. M. Esq; and retorned by R. M. Mili­tem, upon the Ded. p. the Record not to be averred a­gainst in Er­ror. Yelverton 33. Cro. 2. part 11. thing that is within it, shall not be averred. There­fore the date of a Recognisance expressed to be taken at Dale, cannot be averred to be taken at Sale. But such an averment as may stand with the Record, may be admitted. As that the fine was before the Inrollment (being both in one Term) The uses of a fine or common Recovery may be averred: Or what, or who was meant, where there are two of a name, &c. lib. 8. 155. The Heir in tail cannot aver against a fine levied by his Ancestors, That partes finis nihil [Page 501] habuerint, lib. 3. 84, 85. Leon 75, 76. &c. But when Te­nant in tayl accepts of a fine, and grants and renders the Land, by the same fine, which is Executory, there, if no execution be sued, in the life of Tenant in tayl, his Issue may aver continuance of possession, &c. in his Father, for this stands with the fine, and the acceptance of the fine alters not the Estate.

If a man and his Wife sell her Land for money, and after levy a fine to the Vendee and his Heirs, it may be averred it was for money, and so carry the use to the Vendee without any declara [...]ion of use, which otherwise would result to the Woman and her Heirs: and [...]o other uses may be proved, than what are in an Indenture of uses subsequent to the convey­ance, &c. lib. 9. 8. 5. 26.

Tenant in tail, with remainder in tail to A. Re­version in see to himself, bargains and sells Land, &c. and levies a fine to him with Proclamation, with general warranty. The Conusee infeoffs A.

Resolved, The Bargainee had an Estate determina­ble upon the death of the Tenant in Tail (and also the reversion in fee, which the Bargainor had) and his Wife shall be endowed, but this determines upon the death▪ of the Tenant in Tail.

Resolved, The fine doth not discontinue the re­mainder, for this doth not pass any Estate, but makes this Estate of the Bargainee durable, &c. so that it shall not determine, untill the Tenant in Tail die without Issue: a [...]d the conclusion may be confessed and avoided.

Resolved, the Warranty doth not barr the remain­der, for this was annexed to the fee determinable, &c. and to the reversion in fee, and doth not extend to the remainder, for this was not displaced, and the Feoffee of the Conusee cannot inlarge, &c. 'Tis a Maxim that a Warranty barrs no Freehold, which is in esse, possession or remainder, &c. and not displaced before or at the time of the Warranty, although it be devested before the descent.

Resolved, A Warranty cannot inlarge the Estate.

Resolved, the Feoffment of the Conusee was not a discontinuance of the remainder, because he was not Tenant in Tail; so of the Grantee of totum sta­tum suum, &c.

Resolved, A Collateral Warranty may be given in evidence, and found by the Jury.

The Chief Justice held that by the Feoffment of the Conusee, the Remainder was not displaced nor put to a right, for his Fee simple, and his Fee determi­nate pass, and the Feoffment which in it self is not tortious, cannot be tortious to another. Otherwise it is when Tenant for life, or remainder in Tail, &c. makes a Feoffment, for the Feoffment it [...]elf is tor [...]ious.

Note, there are some titles, to which a Warranty doth not extend, as in the Case of an Eschange, con­dition upon a Mortgage, Mortmain, consent to a Ra­visher, &c. for in these Cases no action lies, in which Voucher, or Rebutter may be, neither shall a descent take away Entry in these cases, and cannot be displa­ced out of their Original essence. Collateral War­ranty shall barr dower, and yet an action is given for this. But a fine &c. and five years barr these titles, and dower also, if an action be not brought in time. Seymour's Case. lib. 10. 96.

Buckler and Harveys Case. lib. 2. 55.

Tenant for life leases for 4 years, and afterwards grants the Tenements Hab. from P. for life, after P. the Lessee attorns, then the Grantee enters and leases at will, to which Tenant at will the Tenant for life levies a fine Come ceo, &c. Rem. in fee enters.

Resolved, The Grant was void, for an Estate of Free­hold cannot commence in futuro; and the Grant being void at the Commencement the Attornment after­wards cannot make it pass; and that the Grantee was a Disseisor: but if the Grant had been good at the Commencement, and was only to have its perfection by a subsequent act, as by livery upon a Charter of Feoffment, &c. and the Grantee enter before the perfection, he is not a Disseisor, but a Tenant at will.

Resolved also, If the fine had been levyed to the Disseisor himself Come c, &c. he which had the right of remainder, may enter for the forfeiture, for it was agreed, that the right of a particular Estate may be forfeited, and entry given to him who had but a right. As if Lessee for years be ousted, or Tenant for life Disseised, and the Lessee for years brings an assisse, or the Lessee for life a Writ of right, &c. 'Tis a forfeiture.

Resolved also, That the fine being levied to the Tenant at will, it is a forfeiture, and he which had the right of remainder may enter, and the Tenants for life and at will also, shall be estopped to say quod partes finis nihil hab. &c. and of such estoppels which are by matter of Record, and trench to the disherison of them in reversion, &c. they shall take advantage although they are strangers to the Record, for they are privies in Estate.

Resolved also, If the Disseisee levy a fine to an estranger, the Disseisor shall retain for ever; for the Disseisee, against his own fine cannot claim the Land, and the Conusee cannot enter, for the right of the Conu­sor cannot be transferred to him, but by the fine the right is extinct, whereof the Disseisor shall have ad­vantage. But in Crok 1. part 482. 13 Car. it was moved, if the Disseisee, not knowing of the Desseism, levied a fine to a stranger, whether that should barr his right, and move to the benefit of the Disseisor: according to Bucklers Case; and said, if admitted, would be of very mischievous consequence, and by two Judges held, that it should not enure to the benefit of the Disseisor, but to the use of the Conusor himself, for otherwise a Disseisin being secret, may be the cause of disherison of any one who intends to levy a fine for his own benefit, for assurance of his Lands upon his Wife and Children or otherwise. 1. Inst. 277.

Not against such Certificates as are a defini­tive Against a Certificate. Tryal of the thing certified, As the Bishops Certificate of Excommunication, Bastardy, lawful Marriage, &c. so Certificates of the Marshal of the Host, which is a Tryal, but a­gainst [Page 504] Certificates only of information it may be: As a­gainst Certificates upon Commission out of any Court, or of the Commissioners that affirm a man a Bank­rupt, which are not Tryable in a course of Law, but informations. lib. 7. 14 lib. 8. 121.

So of a return, if it is a definitive Tryal of the Upon a Re­turn. thing returned, no averment lyeth against it. As the retorn of a Sheriff upon some Writs, as a Writ of Partition, Elegit, and of Hab. Corp. from a Mayor, &c. But if the retorn is not definitive, as upon a Rescous, &c. an averment doth ly, and upon this it may go to Tryal: So if it be a return to in­danger a mans Life, or his Inheritance, an aver­ment may be had against it, Dyer 348. 177. So it ly­eth against the returns of Bayliffs of Franchises, so that the Lords be not prejudiced in their Franchises thereby. Goldsb. 139. 129. pl. 23.

An action for a false return, an averment doth ly against the Sheriff return, Winch 100. and so it doth Upon or a­gainst a Will or Admini­stration, it lyeth, al­though they be under Seal of the Court. in any other action, than in that the retorn was in.

Any averment may be upon a Will or any part of it, that may help to expound it, and of such a thing that may stand with the Will, and may be collected out of the words. As which Son he meant, &c. lib. 8. 31. 41. But no averment against or besides that which is expressed in the Will, or which cannot be gathered to be the mind from the words, nor of any thing that doth not cohere with the Will: especially if it be a­bout Lands. As in the Lord Cheyneys Case, lib. 5. 68. A devise to A. and the Heirs of his body, the remainder to B. and the Heirs Males of his Body, on condition that he or they or any of them shall not align, &c. no averment shall be taken to prove by Wit­nesses or other evidence, that the Devisor intended to include A. within this condition by the words [...]e or they: for the construction of Wills ought to be collected out of the words of the Will in wri­ing, and not by any averment or proof out of it.

It lyes against the Rolls or Records of County Against Court Rolls, or up­on them. Courts, Hundred Courts, Courts Baron. As that there is no such Record, or it is not as it is certifi­ed. 34 H. 6. 42. 9 E. 4. 4.

No Averment or proof is to be admitted against Against com­mon presum­ption, or rea­son. common presumption, as that there was more Rent behind when the acquittance of the last Rent was made. 1. Inst. 373. Nor against common reason, as that Land doth belong to Land or to a messuage. Plo. 170. lib. 437.

If the matter contained in an award and the mat­ter Upon an a­ward. in the submission do not agree, it will hardly be supplied by an averment. Dyer 242. 52.

If the Defeasance of a Recognisance be dated be­fore Date. the Recognisance, it may be averred to be deliver­ed at or before the time of the Recog. entred into. Per­kins Case 147.

Things apparent or necessarily intendable by Law, need not be averred, manifesta non probatione indigent; Quod constat clare, non debet verificari. lib. 11. 25. Plo. 8.

Chief Justice Anderson held, Godbolt 131. that if Devise. one devise Lands to the Heirs of J. S. and the Clerk writes it to J. S. and his Heir, that the same may be holpen by averment, because the intent of the Devi­sor is written, and more, and it shall be naught for that which was against his Will, and good for the residue. But if a Devise be to J. S. and his Heirs, and it is written but to the Heirs of J. S. there an averment shall not make it good to J. S. because it is not in writing, which the Law requires; And so an averment to take away any surplusage is good, but not to increase that which is defective in the Will of the Testator. But with submission, if the Law should admit of such averments, it would be as mischievous one way as the other, and no man could know by the words of the Will, what constructi­on to make; nor what advice to give, but this shall be controlled by collateral averments out of the Will; and instead of proving the Testators Will, it would be the destroying of it.

If the partition be by Writ, although it be un­equal, Partition. yet it shall not be avoided by averment, but shall bind the Feme Coverts. And such averment against the retorn of the Sheriff shall not be good. 1. Inst. 171.

A valuable consideration in a Bargain and Sale Considerati­on. not expressed, may be averred. 2. Inst. 672.

A consideration which consists with the Deed, and not repugnant, may be averred, as in a Bargain and Sale, if a particular consideration be expressed, and the general clause, of other good causes and conside­rations, or without that general clause, yet other consi­derations may be shewed: so if the particular conside­ration be love and affection, yet payment of mo­ney may be shewed: so a precedent intent of uses, and Uses. to levy a fine, may be shewed to guide the use of the fine. Rolls tit. uses 790.

As if I covenant by Deed to purchase Land, and then to levy a fine, or make a Feoffment thereof to the use of another, and afterwards purchase and levy a fine, or make a Feoffment, this use shall rise: For the Deed is an evidence of the precedent in­tent, and the uses of a fine or Feoffment may be directed by the precedent intent, and yet such intent is countermandable. But a covenant to pur­chase and stand seised of Lands to uses, shall not raise the use after the purchase, because the use is to rise by the Deed, and at the time when the Deed was made, there was no Estate in the Land. ibidem.

So if one joyntenant covenant to stand seised of his Companions part, if he survive, yet no use shall rise if he did survive, because at the time of the Covenant he could not grant nor charge the Land. ibid.

'Tis true that a fine sur grant and render, unless it Fine sur grant and render use. be in special cases, cannot be averred by parol to be to any other use or intent than what is expressed in the fine, Feoffment or other conveyance: But there is a diversity betwixt a use and consideration; for when a fine, Feoffment or other conveyance im­port an express consideration a man may aver, by word, another consideration, which may stand with the consideration expressed; but the parties cannot by pa­rol aver any other use than is contained in the same coveyance. Also no averment shall be against [Page 507] the consideration expressed: But yet in some cases a fine Sur grant and render, may be ruled and directed in part by averment per parol; and this is when the original Bargain and Contract betwixt the parties, is by Indenture or other Deed: As where it is agreed by Indenture, that a Fine shall be levyed of certain Lands by the name of a certain number of Acres to di­vers persons, and that they shall grant and render the Land again in fee simple, which shall be to certain uses, the Fine is levyed of the Land, but there is some va­riance betwixt the number of Acres comprised in the Fine; or the Fine is levyed to one of the parties only, who grants and renders the Land, so that there is a variance betwixt the Covenant and the Fine, either in the number, time, or person, &c. Yet this Fine shall be averred to be to the uses in the Indentures. For the intent of the parties and the substance and effect of their original bargain and agreement, is chiefly to be regarded in all conveyances; and therefore the Law allows an averment by parol to reconcile the Fine and Indentures, although this sort of Fine im­ports a consideration in it self, and regularly by a na­ked averment by paroll, cannot be averred to be to any other use or intent than is comprised in the Fine it self; but by Deed it may be. lib. 2. 77.

And although a Fine be of so high a nature, that it will not permit naked averments against the pur­port and Conusance of the Fine; yet when the Law requires one of necessity, and for conformity to joyn with another in a Fine, the Law permits, to shew the verity of the matter, to avoid prejudice, and confusion, As where Baron and Feme an Insant levy a Fine, which is reversed for the non­age of the Wife, The Baron and feme▪ shall have restitution presently, and the Conusee shall not de­tain this during the Coverture; for all the Estate passes from the Feme, and the Baron joyns for ne­cessity, and conformity, and therefore the Law per­mits, that the verity of this shall be shewed, and that the whole Estate shall be restored to the Wife [Page 508] during the life of the Husband. Worsely and his Wife against Charnock. 30 and 31 Eliz. lib. 2. 77.

What may be averred contra & praeter Records, Fines, Recoveries, Deeds, Wills, &c. is very re­quisite for a good Evidenc [...]r to be ready in, and therefore I have here given this taste, referring him to the Books at large, where he may see, what aver­ments he in remainder, the Heir in Tayl, the Wife, her Heirs, Estrangers, Privies, Parties, &c. may have to Fines, Recoveries, &c. lib. 1. 76. lib. 2. 77. lib. 4. 71. lib. 9. 140, 141. lib. 2. 55. lib. 88. lib. 10. 50, 96. lib. 3. 51, 88. lib. 72, 74. &c.

In Assault and Battery, if the Plaintiff prove on­ly Assault. the Assault, he shall recover, for an action of Trespass lyes for an Assault, of an Assault and Bat­tery, Battery. Assault and menace, &c. see Rolls tit. Tres­pass. 545. F. N. B. 91. a. &c.

To lay hands gently upon the shoulders of a man, and say that is He, against whom the Justice's War­rant is: Or to serve him with a subpoena, proves Lunacy will not excuse in Battery, al­though it will of Felony. Note a man may justifie an Assault and Battery, but not wounding or maiming of life or mem­ber, or may­hem in de­fence of the possessi­on of his Lands or Goods. 2. Inst. 316. no Battery.

These things following are good justifications, but cannot be given in evidence upon the general Issue.

Correction by the Parents, Master, Schoolmistirs. Apprehension of a common Cheater at Dice. Mol­liter manus imposuit, upon one setting a Dog upon him. Beating one by the Husband in defence of his Wife. By the Master in defence of his Servant; or by the Servant in defence of his Master. Holding a man that cometh to stop the River to his Mill: or to throw down his Booth. Inevitably discharging his Musquet in the Plaintiffs face, at a Muster. Beat­ing one in defence of his Poss [...]ssion of his Goods, House, Lands, Goods distr [...]yned, &c. By a Fo­rester of one who resisted in the Forest. That he imprisoned another to prevent mischief. As the killing of another, with whom he was fighting, (not wrang [...]ing with words) until the fury be over.

An erroneous Process to an Officer out of a Court, Tenant in common, cannot justifie to en­ter into his Companions ground to take the horse they have in Common, al­though he may take him elsewhere. having Jurisdiction, In aid of the Bayliffs: That the Executor entred the Plaintiffs ground, to take the Testators Timber there. That he had a Piscary, and put Stakes in the soil. Taking his Goods stollen, in the Plaintiffs house, upon fresh pursuit. Entring his soil to throw down a Nusance. Or to take my Cattle, which the Plaintiff put in his ground. To throw down the Plaintiffs house on fire, next mine. Breaking his Windows or house, to get out, where he imprisoned me. To take a handful of Grain out of his heap, who took one out of mine, and threw it into his. To carry away his Grain, or money which he threw into my heap To chase his Cattle with a Dog out of my ground, Damage seasant. To throw that into the Plaintiffs ground which he threw into mine. That my Cattle took a mouth [...]ul, &c. of his Grass, passing in the way I had over his ground, against my will. Throwing Goods into the Thames, out of a Barge to save the lives of the Passenger [...]. To fetch out of the Plaintiffs ground, the trees he granted me. To Dig his ground, to amend my Pipe there. That I hunted Cattle out of my ground with a Dog, which against my will run into his ground, I [...]ateing and recalling him. A prescription to cut Grass in the Plaintiffs ground, lying nigh the Church, to estrow the Church, being but an easment.

Distress by a stranger, as Bayliff, and the assent of the party. By the command of the Chief Justice, Or­der of Chancery, &c. Rolls tit. Trespass. 559. That the Plaintiff ought to Impale against a Forest, and for default of Pales, the Beasts went in, and the Fo­rester fetched them out.

These are justifications and excuses that must be pleaded, and cannot be given in evidence upon Not Guilty, unless it be in mitigation of Damages.

Trespass lies for goods stollen, although the Thief be convicted of Felony. Latch 144. [...]arkhams Case Trespass. and so I knew my Lord Hales held, although in Rolls tit. Trespass 557. 'tis said, if it appears on the [Page 510] evidence that it was Felony, Trespass lies not. Felony. Which I think is not Law.

A man who sows the Land to halves with the Ow­ner, Sow to halves. or three agree to sow the Land, where two of them have no interest, and a stranger take the Corn, they cannot joyn in Trespass, having no interest but an agreement, but the owner only must bring the Trespass Cro. 3. part 143. Goldsb. 77.

Upon reversing an Outlawry, the party is restored, Outlawry re­versed. & may have Trespass, but upon reversal of a Judgment the party shall only be restored to the money for which the Sheriff sold his Term, upon a fieri fac. Cro. 3. part 270.

Upon Not Guilty in Trespass, Qu [...]re clausum f [...]egit, at the Tryal the Defend. shall not say that the Plaintiff is Tenancy in Common. Tenant in Common; he should have pleaded this, and hath now lost this advantage: and if the Jury find it, their finding is not material. Cro. 3. part 554.

A man fells all his Woods standing, growing, &c. upon the pr [...]misses, to hold during the life of the Ven­dor, rendring Rent; The Vendee cuts down all Where Te­nants in Com­mon shall joyn in an action and where not, & what actions the one shall have against the other. See 1. Inst. 107, 200. &c. Woods. Trover a­gainst a Car­riers. Copyholder. Estray. Continu [...]ndo. the Trees: if he cutts wood afterwards growing in the same place, the Vendor may have Trespass. Leon. 3. part 7.

If a Carrier lose goods, a special action of the Case lies against him, but not Trover, Roll. Abridg. 6. so of a common Carrier by Boat. Noy. 114.

Trespass lies for a Copy-holder against the Lord for cu [...]ting down Trees, that he the Tenant ought to have for repairs, Godb [...]lt 173.

By seisure of an Estray the Lord hath but the Custody, and not the property, and therefore if he works the Horse, Trespass lies. Yelverton 96, 97.

Trespass with a continuando cannot be for ta­king a Horse, nor 10. Trees, &c. nor without a re­entry of the dis [...]eis [...]d, unless his re-entry be taken a­way by the act of God, or the Estate be determined, so that he cann [...] enter, as if Tenant per auter vie be disseised, and cestuivie que d [...], for there his en­try is taken away by the act of God; otherwise if it [Page 511] be taken away by his own act, as if he release to the Disseisor, &c. 19 H. 6. 28.

General Trespass for breaking his Park, and ta­king Park. Warren. his Deer, &c. doth not ly at Common Law, but a Writ is given by the Statute Westm. 1. cap. 20. so if A. have a free Warren in the soil of B. A. shall not have Trespass, but case for entring the Warren and stopping the holes &c.

A Commoner cannot have Trespass for the Grass. Commoner. False Impri­sonment. After a supersedeas shewed to the Bayliffs, false im­prisonment lies against them, not against the Sheriff; so against the Bayliff of a Franchise, if he takes o­ther mens goods in execution upon the Sheriffs war­rant, not against the Sheriff, nor against the party, unless he procure the Bayliff to take the wrong.

He that hath the Freehold in Law unless he hath Possession. Entry. Relation. actual possession cannot have Trespass. Therefore the Heir cannot have Trespass against the abater, nor against Tenant at sufferance, before he hath entred, and only from that time: but an Executor, or Admi­nistrator shall, by relation, have Trespass from the death of the Intestate, &c. But a disseissee after en­try, shall have an action for all mean Trespasses from the disseism, even against strangers, for he is resto­red to the possession ab initio.

Trespasses cannot be maintained against him who comes to the goods lawfully, as by the Plaintiffs deli­very, Trespass. or under that, or by act in Law, &c. but detinue. But Trespass lies against Tenant at will, or him that I lend my goods to, who destroys them; for thereby the privity is determined. It lies against a Miller for taking Toll where none is due: For taking my Servant out of my service, for rescuing one taken at my suit out of the Bayliffs hands, for the Bayliff is my servant. For beating my Wife or Servant per quod, &c. Not against him that J. S. sells my Horse to, or has my goods from the Sheriff, although the Sheriff took them wrongfully. It lies for hunting a [...]ox, &c. in my ground. Against Church-Wardens, who act by the Justices of the Peace's Warrant, if the Warrant be not good.

For digging so near my ground, that it fell into the Defendants pi [...]t: But not that my house fell into the pitt, for 'twas my f [...]ult to build so near another mans ground: for entring my ground, to take out his Falcon, which flew thither after Game. For kil­ling my Tumbler in his Warren.

Although I sell the goods, it lies for a Trespass done Time. before. Tender of sufficient amends before the acti­on brought, is a good Bar, for a negligent Trespass, Bar. not for a voluntary one.

If a man enter into a place by authority of Law, Ab initio. and abuse this authority, he is a Trespasser ab initio, for his first [...] shall be intended for this purpose. As if the L [...]ssor e [...]ter to view Wast, and stays there all night. If the Kings [...]urveyor sells my goods. If the searcher abus [...] m [...] stuffs. If a man will stay in a Ta­vern all night. [...] he detains a distress after amends tendred befor [...] [...] [...]ounding If a Bayliff refuse Bail, Trespass doth [...] against him ab initio; but case, for the Sheriff or Undersheriff, not he, ought to take Bail; not against [...]he party, nor Bayliff, or person in aid, if the Sheriff doth not return his Writ of Latitat, or makes a false return; but it doth against the Sheriff: So of an Officer of an inferior Court.

If the Lord work an Estray, Distress, &c. Or Exe­cutors find a Bond and cancel it, thinking it was discharged, and it was not; They are Trespassers ab initio, although they came lawfully to the possession at first. Rolls tit. Trespass 563.

The Lunatick (and not the person to whon he is Lunatick. committed) must bring the action in his name for a Trespass done in the Land. Brownl. 1. part 197.

The knowledge, of evidence is so beneficial, and Note, the Chapter of Verdicts gives much light to know what evidence is good and what not. necessary, for all Practicers in the Law; That none can know too much, be too well versed, or too often conversant in it. Therefore to compleat this Trea­tise, especially in this particular, I have drained the Law-books, o [...] all, or the most principal Cases, re­lating to it; and have added some observations, very fit for the unlearned, to know, and I hope not fit for the learned to reject.

FINIS.

A Table to the Precedents, &c.

A 
AGreemen [...].482
Attaint.480
Abattement of the writ for the residue.383.
Asserts.192
Attornment.484
Avowry.484
Account.485. 494
Administrator.491. 504
Arrest.495
Action of the Case.495
Assumpsit.498
Acceptance.498
Averments of upon or against wha [...].500, &c.
Award.505
Assault.518
B 
B [...]rron and Feme.175. 191, 483, 505, 507
Bail-bond.487
C. 
Common.406. 403, 385, 487
Cessav [...]t.485
Circumstance.489
Copyhold.490 510
Consimili casu.495
Condition Collateral.499
Consideration.500. 506, 507
Certificate.503
Carrier.510
Commoner.511
Continuando.510
D. 
Demurrer see Evidence. 
Deed.482. 487, 490, 496, 497
Damages.223. 487
Disseisin.483
Dower.488
Discontinuance.501
Date.505
Devise.505
E. 
Evidence, Demurrer upon evidence.476. 477, 478, 479, 480,, 481, 482, 49 [...], 495, 496
The Evidencer needs shew no more of a Will, &c. than what makes for him.479. 481
The fact is admitted by a Demu [...]rer.480
probable though not certain ma [...]ter is good evidence.481. 483.
Rules concerning evidence.482. 483, 485, 487
Non est factum.482. 487
What evidence the Jury may carry with them.427. 479
Debt.194. 483, 492, 497
Payment.404. 498
Plene administravit.483. 491
What upon the general issue.483. 484, 485, 486, 508, 509
Evidence contrary to the issue.487
Which proves the substance, good.487, 489, 495
Not against what is admitted on Record.492
Hors de son fee.492
Entry.511
Estray.510. 512.
Extinguishment.497
Emb [...]ements.489
Executor. 491. de son tortibid.
Estoppel.494
F. 
Fine.479. 501, 503, &c. 506, 507.
Feoffment.484
Felony.510
False Imprisonment.511
G. 
Grant.501
H. 
Hostler.498
I. 
Jury what they may find, and upon what evidence.480
General Issue.483. 485, &c. 490
Ju [...]ifications in Trespass.486. 508
Forwords.490
Imprisonment.488. 511
Indictments.489
Impropriation.492
Juror a Witness.495
Infancy.497
Issue imperfect.498
L. 
Lunacy.508. 512
M. 
Maintenance.487
Master and Servant.488
Murther.490
O. 
Outlawry.510
P. 
Pleading.479. 483
Justifications.486. 490
Payment.404. 232, 494, 498, 499
Proviso in Statutes.229
Prescription.488
Plea puis darrein Continuance.499
Presumption.505
Partioin.505
Park.511
R. 
Recovery. Record. Rol [...]s.480. 496, 504
Release.483
Rescous.484
Replevin.485
Rent, Reparations.492. 497, 498
Robbery.495
Retorn of Writs.504
Relation.511
S. 
Slander.490
Surplusage.494
Servants wages.497
Seisure and condemnation.498
T. 
Trespass.193. 195, 196, 484, 485, 487, 488, 489, 499, 508, 509, 510
Trover.200. 194, 485, 498, 499
Tenancy at sufferance, at Will.485
Totum & pars.490
Tenant in Common.509. 510
Trespass with a continuando.510
Ab initio.511. 512
Tender of amends.512
V. 
View.171
Villain.484
Viccaridge.492
Ʋse.500. 506
W. 
Witnesses.87. 495
Warranty.483. 495, 501
Wast.483
Will.494. 504.
Warrant.511

ERRATA.

IN the Preface. Pag. 1. l. 9. r. piece. p. 3. l. 14. r. Joachimus Fortius Ringel­bergius. l. 20. r. leaves. p. 4. l. 1. Demosthenes. p. 191. l. 20. for Agree­ment. r. a Grant. p. 193. l. 12. r. Inst. 282. to maintain the action. p. 72. r. Amercement. p. 491. in the Margin. r. for, to give evidence, to have evidence.

THE TABLE.

A.
  • APpeal, 17.
  • Account, 227.
  • Ancient Demesne, 18.
  • Administrations 18. where in Trover the Admini­stration must be shewn, and where not, 225.
  • Admission, 24, 25.
  • Ability, 25.
  • Attorny, 27, 76, 434. Let­ter of Attorny, 214, 213.
  • Almanack, 27.
  • Assisa, 352.
  • Appearance, 24.
  • Amercements, 436.
  • Ambidexter, 434.
  • Attaint, 439, 442.
  • Action of the Case for words, 203, 205. 501, 503.
    • Quare defendens crimen fe­loniae ei imposuit, 202.
    • for stopping up Lights, 204. for stopping a Water­course, 204, 205.
    • for feeding on his Fold­course, 206.
    • for not re­storing a Horse hired, 207.
    • Indebitatus Assumpsit, 206, 207, 200, 209.
    • Award, 211.
B.
  • BAstardy, 19, 25, 104.
  • Battail, 21, 28, 22.
  • Baron & Feme, 25, 382▪ 211. 213.
  • Bishop. 25.
  • Bayley, 27. 47. 208.
  • Bill of Exception to Evi­dence, 470.
  • [Page]Bankrupt, 229.
  • Bail, 246.
C.
  • CRiminal Causes, 9, 19, 22. 107. 247,
  • Civil Causes, 8.
  • Certificate, 10, 11. 27. 89.
  • Customs, 14. 20. of Courts, 14. 18. of London, 20.
  • Courts, 18. Inferior Courts, 111. 177.
  • Coverture, 25.
  • Confession, 30.
  • Coroners, 38, &c.
  • Challenges, 46. 71. 77.
    • Cap. 9. per tot. To the Array, to the Poll, 131. 140.
    • Principal, and to the favour, 132. 139.
    • how and when to be made, 136. 167. 166. 149. 156. 157. 160. 163. 171.
    • where the King is Party, 137, 139. 140. 142. 157. 165. (3) (4)
    • Perempto­ry Challenge 141. 151. 155. (4)
    • No Challenge of Peers, 142. 144.
    • Prin­cipal Challenge to the Poll, 142, 143. 152.
    • Prop­ter honoris respectum, 143.
    • Propter defectum, 144. (3)
    • Propter defectum Hundre­dorum, 147.
    • (1) for want of Freehold, 144. 172.
    • Propter affectum, 150. 154, 155. 164.
    • Deins distress, 153. 160.
    • Principal for Consanguinity, 153.
    • In what Inquest a Challenge may be, 158.
    • Tryal and Triors of Challenges, 258, 159. 169, 170.
    • (2) where for one shall serve for others, &c. 159, 160. 168.
    • Witness. Infant. Godfather, 161.
    • Chal­lenges arising from the Jurors own act, 161, 162.
    • Propter delictum, 165.
    • De­murrer to a Challenge, 168.
    • (1) Arbitrator. Co­missioner. Counsel. Eat and Drink. Actions of Malice, 162.
    • Parson Pa­rish. Fellow Servant, 163.
    • Rules concerning Chal­lenges, 170. (1) (3) (4)
    • A wrong Name, 172.
    • Challenge lost, 171.
    • Pre­cedents and forms of Challenges, 449, &c. 476.
    • The King must shew the cause of Challenge, (2)
    • [Page]The King or Party may release their Challenge, (3) How proved, (4)
  • Circumstances, 381.
  • Condition, 179.
  • Counsellors, 435. 245. 247.
  • Copyholder, 198. 215, 216.
  • Corporation, 223. (1) (4)
  • Constable 224.
D.
  • DIvorce, 25.
  • Dowres, 26. 110. 239.
  • Demurrer, 32.
  • Distringas, 37.
  • Detinue, 55.
  • Disceit, Writ of Dis­ceit, 23.
  • Deed Pleaded to be deli­vered after the date, not before, 366.
    • Of a Deed, 194. 176. 221. 240, 234. 230.
  • Damages by the first In­quest, 369. 370. 372.
    • veral Damages, 370.
    • Se▪ 371.
    • Writ of Inquiry, 372, 373. 375. 230.
    • Damages released, 375, 374. 376.
    • Damages and Costs, 376, 377. 402.
    • Damages in real and personal Actions, 377. 230.
  • Decree, 179..
  • Default, Inquest by Default, 505. 415. 217.
  • Demurrer to Evidence, 469. 467.
  • Day of Nisi prius and day in Bank all one to some purposes, 466.
  • Debt, 210, 211, 212, 213.
  • Demand, 210.
  • Deprivation disables to make a Lease, 217.
  • Date, 218.
  • Dower, 226, 227.
E.
  • ENtry, 214. 221.
  • Escheator, 23. 27.
  • Elifors, 38, &c. 168. (3)
  • Error, by death of one De­fendant, 59. what 501. (3)
  • Extortion, 233.
  • Exemption from serving on Juries, 91.
  • Escape, 239.
  • Estoppel. 365, 366. 178.
  • Estray, 218, 219. 225.
  • Evidence Quid? 181 cap. 11. pro tot.
    • What is good Evidence in many parti­cular [Page] Cases see there, 188, 189. 197. 211. 233, 234, 235. us (que) 248.
    • What is Evidence upon the ge­neral Issue, 192, 193, 194, 195. 198, 199, 200. 238, 240.
    • Upon a special Is­sue, 236, &c.
    • What Evi­dence the Jury may carry with them, 423. 202. 242.
    • What Misdemea­nour in taking Evidence, spoils their Verdict, 423, 424, 425, 426, 427, 428, 418.
    • Juror gives Evi­dence in open Court, 428: 245.
    • Shop Book, 195.
    • Presumption, 196. 182.
    • In Trespess, 195, 196. 200. 193. 218.
    • us (que) 224. 234. 242. 237.
    • Church Book, 202.
    • In Trover, 200. 194. 224.
    • Deed lost, 196. 189, 190. 216. 228. 230, 231, 232. 234. 239. 244.
    • Evidence can­not be pleaded, 197.
    • Covin, 198. 211, 212. 241.
    • Ac [...]ompt, 195, 192.
    • Action upon the Case, 202.
    • us (que) 206.
    • Doomes­day book, 198.
    • Attaint, 198.
    • Debt, 210, 211, 212. 213. 234. 236.
    • Ri­ens per Discent, 211. 241.
    • Ne unques Execu­tor, 211, 112. 197.
    • Eje­ctment, 213.
    • us (que) 218. 220.
    • Evidence after de­fault in Ejectment, 217.
    • Will, 215, 216. 235.
    • Payment, 198. 221. 231.
    • Recital. Acquittance, 231. 235.
    • Will, 216. 215. 240.
    • Court Rolls, and Copyholders, 198. 215.
    • Statutes. Pardons, 199. 229.
    • Plene admini­stravit, 194. 188. 190. 192. 211. 212. 235. 242.
    • Wast, 193. 240.
    • Non est factum, 193.
    • Proofs, 187. 182.
    • Pedegree, 188. 242.
    • Agreement, 180. 191.
    • Recognisance, 188.
    • Te­nure in Capite, 188.
    • Ec­clesiastical Proceedings, 189, 190. 236. 244.
    • Copy of Records, 189, 190. 229. 230. 231. 245.
    • Fine, 190, 191. 222. 228. 231.
    • Outlaury, 189. 246.
    • Fe­offment, 189. 191. 211. 217. 231. 232. 239. 241.
    • Proviso, 189. 229. 240, 241.
    • Non decimando, 189. [Page] 201.
    • Depositions. An­swers, 190. 230. 235.
    • Lease, 191. 213. 216, 217, 218. 230.
    • Assumpsit. 191. 202, 203. 206.
    • us (que) 210. 238.
    • Challenge, 192.
    • Detinue, 192.
    • Inroll­ment, 216.
    • Fines certain or incertain, 216.
    • Dower ne un (que) seisin, 226, 227.
    • Account, 227. 241.
    • Of­fice, 228.
    • Verdict, 228.
    • Jointenancy, 229.
    • Bank­rupt, 229.
    • Sign Manual, 229.
    • Marriage, 229.
    • Grant and Prescription, 230.
    • Confession, 231.
    • Surmise in a Prohibition, 235.
    • Jurors of a for­mer Tryal, 236.
    • Com­mon, 236.
    • Parcel. 242. 245.
  • Property need not be proved in a Writ of In­quiry of Damages, &c. 230. 'Tis sufficient to prove the effect of the issue, 239. Matter in Law, 244.
F.
  • FIne on Jurors, 435. 437. 420. 424. 443. 445.
  • Foldcourse, 206.
  • Fine certain or incertain, 216.
  • Fine levied, 223.
G.
  • GRammar and Gram­marians, 34.
  • Gleaning justifiable by Spe­cial Pleading, 224.
  • Grant, 230.
H.
  • HAbeas Corpora, 37. Heir, 104.
J.
  • JUry, its Definition, An­tiquity, and Excellen­cy, 1, 2, 3, 4, 5. 352.
    • Are Judges of Fact, 1. 367.
    • When to appear at Westminster, when not, [...]7. 69.
    • Their Punish­ment, 72. 431. 429.
    • Their [Page] Number, 83. cap. 6. per tot.
    • How sworn, 86. 351, 352.
  • Juror goes away, and ano­ther sworn, 87. 79. 429. per primer.
  • Jurors, 88.
    • Their Quali­ty, cap. 7. per tot. 95. 144.
    • A Jury of Women, 91.
    • Of Attornments, 92.
    • Exemptions, 91, 92, 93.
    • The same Jurors shall not try the same Issue twice, 54. 391.
    • What Persons, 137, 138.
    • Of what things a Jury may inquire, cap. 10. per tot. 393, 394.
    • Of the Law, 174. 446. 367. 446.
    • Of a man's intent, 176.
    • Of Spiritual things, 176.
    • Of things in another Coun­ty, 176. 392, 393. 177.
    • Estopels, 178.
    • Decree, Records, Warranty, Con­dition, 179.
    • The Office of the Jury, 233.
    • Their Oath, 351, 352.
    • Assiza for Jurata, 352.
    • An­ciently 12 Knights, 352.
    • Jury per medietatem lin­guae, 353.
    • The Jury ar [...] Chancellors of the Da­mages, 402.
    • may be cart­ed, if they do not agree, 409, 419. 422.
    • The Pe­nalty of Jurors taking Rewards, 431.
    • Fined, 435, 436, 437. 421, 422, 420.
    • Demanded upon Pein, 436.
    • Punishment for striking a Juror, 437. F
    • orfeit, Issues, 438. 435.
  • Jury adjourned 428.
  • Juror departs, 429.
    • May give a Verdict without Evidence, when they know the Fact, 415. 233.
    • How the Jury ought to demean themselves whilst they consider of their Verdict, 416. 233. cap. 14. per tot.
    • Of their Eating and Drinking, 422. 420.
    • Whether the Judge may Fine them for going against their Ver­dict, 443, 444. 446.
    • 'Tis Error if a Juror challen­ged, be of the Tales, (3)
  • Issue, 7. 32. What Issue first tryed, 8.
  • Infancy, 15, 16, 17.
  • Inspection, 15, 16.
  • Ideocy, 26.
  • Institution. Inductiō, 24, [...]5.
  • [Page]Imprisonment, 27.
  • Jeofails, 32. 51, 52, 53. 60, 61.
  • Justices of Nisi prius, their Power, &c. 70, 71. 82.
  • Judges, 15.
  • Inquests of Office, 84. 230. by Default, 504. 415.
  • Joinder of Counties, 86. 116, 117. 107.
  • Inrollment, 24.
  • Incidents, 384. 392.
  • Judgment, Arrest of Judg­ment, 500, 501.
  • Issues forfeited by Jurors, 438. 435.
  • Justice of Peace, 204. 223.
  • Inkeepers Guests, 205.
  • Indenture, 216.
  • Inspection of a Deed, 228.
  • Jointenancy, 229.
K.
  • KIng cannot be Non­suited, 419.
L.
  • LEague, 17.
  • LOndon. Trades and Cu­stoms there, 20, 21.
  • Law. Things, not words, most regarded in Law, 5. Statute of Limitations Pleaded, 203. 210.
  • Lease, 213, 214. 216, 217, 218. 230.
  • Livery of Seisin, 222, 232.
M.
  • MAyhim, 15.
  • Mannor, 18.
  • Marriage, 25. 209. 229.
  • Marshal Affairs, 31.
  • Master and Servant, 204. 219. 240. 244.
N.
  • NIsi prius, 55. 66. 72. 82, &c. Justices of Nisi prius, 70, 71. 82.
  • Nobility how tryed, 17.
O.
  • ORdeal, 28.
  • Outlaw, 384. 246.
  • Officer, 223.
  • Office, 228. 246.
P.
  • PEers, 14. 17.
  • Proof, 17. 16. 182. 187.
  • Parson, 24, 25. 212. 234. 241.
  • Plenarty, 24.
  • Possession, 234.
  • Profession, 25.
  • Prior, 25.
  • Proces, 42. Proceedings in Civil Causes, 8. In Cri­minal Causes, 9.
  • Patents, 12.
  • Probate of a Will, 19.
  • Posteae amended, 381.
  • Plea, vide Deed. Ill Plea made good by Verdict, 381, 382, 383.
    • What permitted in Pleading for the Juries sake, 392.
    • Of the general Issue, 223.
  • Plea Puisne darrein Continu­ance at the Assizes, 475. 465. 467. 71. 222.
  • Prescription in non deciman­do, 201.
    • To sit in a Pew, 203.
    • Trespass for pul­ling down a Pew, 220.
  • Prescription to dig Clay in a Common, 221.
    • To fother Equos & Boves, good for Mares & Cows, 223.
  • Prescription and Grant Pi­powder, 230.
  • Perjury, 205. 243.
  • Partner, 210.
  • Pound, 220.
  • Proviso in Statutes, 241. 240.
Q.
  • QƲare Impedit, 55.
  • Quo Warranto, 100.
R.
  • REcord, 11, 12, 13. 21. 23, 24. 179.
  • Recovery by Default, 23.
  • Retorns, 26. 43, 44. 60.
  • Resignation, 25.
  • Rectory, 214, 215.
  • Remitter, 226.
  • Recital. See Evidence, &c. 235.
S.
  • SHeriff, 26. 37.
  • Spiritual Matters, 25.
  • Statute Staple, &c, 26, 27.
  • Surplusage, 397.
  • [Page]Schoolmasters, 219, 220.
  • Seisure, 226.
  • Surrender, 238.
T.
  • TRial Quid 8. The se­veral sorts, 8. & cap. 2. per tot. of Fact, and Law, 8.
    • What to be tryed per Pais, and what not, ibid.
    • By Com­mon Law preferred, 25. 29.
    • Of a thing done be­yond Sea, 27. 31. 105, 106.
    • What in one Issue binds in another, 30.
    • The time, 30, 31, 32, 33.
    • Try­als at Bar, 67.
    • Tryal per Medietatem linguae, 353. ca. 12. per tot.
  • Traverse, 30.
  • Trover, 34. 224. us (que) 226.
  • Tales, 42. 65. cap. 5. per tot.
    • Tales at Common Law, and by Statute, 73. (2)
    • Tales denyed, 75.
    • The time of granting thereof, the Number, Order, and Quality of them, &c. 78.
    • with a Proviso, 75.
  • Triors, 72.
    • Of Challenges, 168, 169. (2)
    • Challenge to the Tales men. (2)
  • Treat what, 171. 158.
  • Trespass Quare vi & armis, lyes not for Tenant a­gainst the Lord, 389.
  • Trespass, 218, us (que) 224, 234. 237.
  • Tithes, 215.
  • Tenant at will and suffe­rance, 217.
  • Tenants in Common, 221.
  • Toll, 224.
V.
  • VErdict is to be guided by the Evidence, 2. The Definition, &c. 359.
    • Of Verdicts, Cap. 13. per tot.
    • The Credit of Ver­dicts, 360.
    • General Ver­dict, 365. 360.
    • Special Verdict, 361. 396.
    • The Court cannot refuse a Special Verdict, 361.
    • That found by Verdict, which cannot be Plead­ed, 362, &c.
    • Estoppel, 365. 178.
    • Warranty, [...]67. Uncertain Verdicts, 367. 396.
    • A Verdict, [Page] finding part, or more than the Issue, 368, 369. 380. 405.
  • Verdict supplied by a Writ of Inquiry, 373. 375.
  • Verdict set aside for what faults, 374. 423, 424. 418.
  • Verdict amended by the Notes, 378, 400.
    • If the substance be found, 'tis no matter for form, 500. 408. 406. 405. 393. 389. 379. 385. 386. 387.
    • Ill conclusion, 379. 392. 400.
    • Circumstances, 381.
    • where the Verdict makes good the Plea or Decla­ration, 381, 382, 383.
    • Of what a Verdict may be, 383. 393, 394.
    • Inci­dents, 384.
    • How con­strued, 384.
    • What good, what not, 384, 385, 386. 388. 389. 391. 395, 396, 397, 398.
    • Guilty at a­nother day, 388.
    • Open Verdict and Privy Ver­dict, 390. 419.
    • The Jury cannot vary from their Verdict after it is Re­corded, 390, 391. 409.
    • Good by Intendment, 398, 399.
    • Surplusage, 397.
    • where a special con­clusion of a Verdict shall aid the Imperfections of it, 400.
    • For whom the Verdict shall be said to be found, 401, 402, 403, 404. 407, 408. 501.
  • Variance betwixt the Ver­dict and the Nar. 501, 502, 503.
  • Verdict by defauit, 504.
  • Venire fac. of this Cap. 3. per tot. and Cap. 4. per tot.
    • To whom to be dire­cted, 38, &c.
    • what faults in it shall vitiat the Tryal, 50, 60, &c. 129.
    • De novo, 54, 55, 56, 57.
    • By Proviso, 62, 63, 64.
    • Visne, Cap. 8. per tot. from what places, ibid.
    • The Venue shall follow the Issue, 101. 113. 115. 120. 109. 121.
    • De Corpore Com. 101, 102. 124.
    • from two Counties, 116, 117. 107.
    • where the Writ is brought, 117. 105.
    • from the next adjoyning Coun­ty, 120. 127, 128.
    • where of Matters done beyond Sea, 105.
    • where the Land lyes, 107. 122. 125, 126. [Page] 128.
    • from two places in one County, 123.
    • out of a wrong place by con­sent, 129.
    • Suburbs of a City, 129.
  • View, 271.
  • Use, 223.
  • Usury, 243.
W.
  • WItnesses Tryals by them, 16. 31.
    • Who may be Witnesses, who not, 183. 185, 186. 188. 243, 2424. 247, 48.
    • One Witness sufficient, 215. 233.
    • Their Priviledges, 186. Detained, 187.
  • Witnesses joyned with the Jury, 233.
    • A Witness is to have his Charges, 246.
  • Witnesses against the King, 247.
  • Wills, 18. 215, 216.
  • Wager of Law, 23.
  • Wales, 127.
  • Warranty, 367. 179.
  • Way, 219.
  • Warren, 220.
FINIS.

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THE History of the World in Five Books.

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