Tryals per pais, or, The law concerning juries by nisi-prius &c. by G.D. of the Inner Temple, Esquire.

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 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 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. 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 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 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 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, 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.

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, 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.

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 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 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, 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.

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 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.

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, 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 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 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 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.

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

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

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

The Venue ſhall ever be of the moſt certain place.

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

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

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

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

The Venue ſhall follow the iſſue. vide hic poſtea.

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

If a Treſpaſs be alledged in D. and nul De Corpore Comitatus. tiel ville is pleaded, the Jury ſhall come de Corpore Comitatus. But if it be alledged in S. & D. and nul tiel ville de D. is pleaded, The Jury ſhall come out de vicineto de S. For that is the more certain. So if a matter be alledged within a Mannor, the Mannor. Jury ſhall come de vicineto Manerii. But if the Mannor be alledged within a Town, it ſhall come out of the Town, becauſe that is moſt certain, for the Mannor may extend into divers Towns. 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, 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 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 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 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, 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. 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. 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 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 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 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 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, &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 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. 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, 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. 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 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 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 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 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. 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 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 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 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. 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. 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 parium ſuorum, aut per legem terrae. Now A Peer may challenge himſelf. the Common Law hath divided all the ſubjects into Lords of Parliament, and into the Commons of the Realm. The Peers Peers and Commons. of the Realm are divided into Barons, Viſcounts, Earls, Marqueſſes and Dukes; The Commons are divided into Knights, Eſquires, Gentlemen, Citizens, Yeomen, and Burgeſſes: And in Iudgement of Law, any of the ſaid degrees of Nobility are Peers to another: As if an Earl, Marqueſs, or Duke, be to be tryed for Treaſon or Felony; a Baron, or any other degree of Nobility is his Peer. In like manner, a Knight, Eſquire, &c. ſhall be tryed per Pares, and that is by any of the Commons, as Gentlemen, Citizens, Yeomen, or Burgeſſes; ſo as when any of the Commons is to have a Tryal, either at the Kings Suit, or between party and party, a Peer of the Realm ſhall not be impannelled in any Caſe.

Secondly, Propter Defectum, Challenge Propter defectum.

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

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

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

In an accompt upon the Receipt of 100. s. if he count to his damage, 200. s. if the Juror hath but 20. s. or under 40. s. '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, for his fear to offend, and to have Lands waſted, &c. which is one of the Reaſons of Law, is taken away. Seventhly, he that challengeth for the Hundred, muſt ſhew in what Hundred it is, and not drive the other party to ſhew it. Eighthly, his Challenge for the Hundred is not ſimpliciter, but ſecundum quid; for though it be found that he hath nothing in the Hundred, yet ſhall not he be drawn, butremain praeter H. that is, beſides, for the Hundred, and albeit he dwelleth, or have Land in the Hundred, yet muſt he have ſufficient Freehold.

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

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

If the King be made party by aid prayer, and ſufficient Hundredors do not appear nor are returned, yet the Pannel ſhall not be quaſhed, but a Tales of Hundredors ſhall be returned. But 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 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 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 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 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. 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 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, 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 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 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 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 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.

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 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 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. 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 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 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, 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 '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 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 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 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 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 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; 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 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) 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 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, 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 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 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 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 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, 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. 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 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 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 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 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 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 good evidence, Contr. in a ſpecial Action of the caſe on Aſſumpſit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Debt.

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

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

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

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

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

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

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

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

Againſt Executor de ſon tort, who pleaded fully adminiſtred, the evidence was, the Inteſtate made a Bill of Sale of his goods to the Defendant, who was bound with him in a Bond as ſurety, for his 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, 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 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 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 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.

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, 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 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 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 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 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 [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 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 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 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. 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. 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 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 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 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 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 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 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 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,

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 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, 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 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 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 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 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, &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, 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 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. 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 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 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 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, 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 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 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 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 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 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, 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, 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 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. 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 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 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 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, 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 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 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 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 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 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. 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 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 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 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 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, 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 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 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. 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 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 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. 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, 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 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 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 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 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. 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 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 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 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 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, 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 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 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 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 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 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.

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 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 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 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 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 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. 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 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.