Trials per Pais; OR, THE LAW, CONCERNING JURIES BY Nisi-Prius, etc.  
Methodically Composed for the Public Good, in the 16th Year of the Reign of our Sovereign Lord CHARLES the Second, King of England, Scotland, France and Ireland, etc.  
By S. E. of the Inner-Temple, Esquire.  Per testes solum, lex ipsa nunquam litem dirimit, qua per Juratam xij. hominum decidi poterit. Cum s● modus iste ad veritatem eliciendam multo potior, & efficatior, quàm est forma aliquarum aliarum legum orbis. Fortescue, cap. 31. 
London, Printed by John Streater, James Flesher, and Henry Twyford; The Assigns of Richard Atkyns, and Edward Atkyns, Esquires, 1665.   

The PREFACE.  
THE Philosopher could not see a man unless he hear him speak. Loquere ut videam; Speech is the Index of the Mind, and the Mind only discriminates the Man: For, although an Idiot who hath but the shape of a man, may with silence so hid his folly, that strangers to his Manners cannot discern him from a Sophister; Yet, doubtless, Silence is the greatest Enemy to Learning, the Grave wherein oblivion buries the Parts and Knowledge of the bravest spirits.  
Wherefore Learned Sallust, from this takes his Exordium; Omnes homines qui sese student praestare caeteris animalibus, summa ope niti decet, ne vitam silentia transeant, veluti pecora, Those men who would excel Beasts, should labour that their lives might not pass in such silence, as Beasts do. It seems he deemed, that man little inferior to a Beast, who acted nothing to prolong his Memory; For this he held to be the duty of every man, saying, Quo mihi rectius esse videtur, ingenii quàm virium opibus gloriam quaerere; & quoniam vita ipsa, qua fruimur, brevis est, memoriam nostri quàm maxime longam effiiere. In my opinion, 'tis far better, to acquire Glory by the Riches of Wit, than strength; and because our lives are short of themselves, we should endeavour by Ingenuity, to eternize their memory.  
And to effect this, 
Nulla dies sine linea.  Nulla dies abeat, quin linea ducta supersit; No day should pass over our heads, wherein we should not act some memorable exploit: Men should not live like Snails, never stirring out of their Houses; but be active (I mean not busybodies in other men's matters, but) in their own Callings, of which the wise Cato tells us, Every man should give a reasonable account; And if we believe the famous Seneca, Nihil est turpius quàm grandis natu senex, qui nullum habet vitae suae argumentum, quo diu se vixisse dicat, praeter aetatem. Nothing is more unworthy, than an old man, who hath nothing to show for his Antiquity, but a Graybeard; who is no sooner dead, than forgotten, long before he is half rotten; yet who is so apt to deride the Endeavours of other men, as this ancient Ignoramus, whose wrinkles in his face, worn-out looks, and many years sway more with the vulgar people, than all the Arguments of Law or Reason: Had Seneca been such a silent Momus, the World would never have been blest, with his so learned Works. And doubtless, writing Books is needful in no Science more, than in the Law; For without Books, how would the Lawyers do for Arguments at the Bar, or Resolutions at their Chambers: Whence the Oracle Sir Edward Coke pronounces this, Omnes debere Juris-prudentiae libris componendis animum adjicere; That all men ought to addict themselves to the Composing Books of Law; some to the Reporting of the Judgements and Resolutions of the Judges, who are Lex loquens; and some to the collecting of these Cases and Resolutions, methodizing, and fitting them for some particular purpose, as Littleton, Standford, Fitzherbert, Crumpton, Perkins, Finch, etc. and indeed, most of the Law-Books extant, if not all, (setting aside the Reports) are nothing else, but Collections out of others. This I speak, not in derogation of them, in the least; for as 'tis equally, if not more laborious; so 'tis full as glorious, Judiciously to cull out authentic Cases, out of the Volumes of the Law (where so many are no Law), and rightfully place them in a particular Treatise, as 'tis to report the Judgements and Resolutions from the mouth of the Court; for the Reporter is but the Court's Secretary, and Cook's Institutes merit as much as his Reports; And Ash's Tables, Fitzherbert, and Brooks' Abridgement, are as useful as the Year Books themselves, of which kind of Collections, one Elegantly thus breaks out, Quo quidem beneficio, haud scio, aut aliud aut legum Candidatis magis gratum, aut Reipublicae magis commodum, aut divini honoris illustrationis magis idoneum, vel cogitando quidem consequi, quisquam poterit. Then which benefit I know not, whether any man can even imagine another, either to Lawyers more grateful, or to the Commonwealth more profitable, or for the illustration of divine honour more fit. For with the least labour, a small price, and little time, they present you with those Resolutions, and Judgements which lie scattered in the voluminous Books of the Law; which would otherwise cost much time, pains and charges, to find out. The thoughts of which public good, first gave life to these Endeavours of mine: Not that any one should in the least imagine, that I am so guilty of vain ostentation, as to believe, that my Parts or Abilities can perform any thing in this kind, like other men: No, Ipse mihi nunquam Judice me placui.  
I could never yet please myself with my own labours, much less are they worthy to please others, haud equidem tali me dignor honore. However, when I consider, that no man hath yet written particularly concerning this Subject, and of what general use it is, I doubt not, but that this Treatise will receive a favourable construction from most men, and a plausible acceptation from others.  

The Use of the Book.  The use of it, is, in a manner, Epidemical; since men's Lives and Estates are subject to that Trial per Pais, here demonstrated; but in particular, the Practisers at Law, (especially Attorneys, Solicitors, Clerks, etc.) and all Jurors, (for whose directions it is of singular use) are chief concerned herein. But I will not hang a Bush out, to invite, and prepossess your Judgements, Vincat Utilitas. The profit which every ingenious Reader shall gather out of it, will speak more for it, than the best Eulogical Preface.  
And for my own part, I profess myself to be Philomathes; but can plead no other Plea, than Not guilty, to Polymathes. I must confess, never any man took a Law-Book in hand, with greater affection to it, than I; and notwithstanding, the hard-favoured objections, which some men cast upon it, I really think the study of the Law, to be the most pleasant Study in the World. And he which delighteth in the study of any other Art or Science, must consequently be delighted with this. For the knowledge of the Law, as Doderidge saith, is most truly styled Rerum Divinarum humanarumque scientia, and worthily imputed to be the Science of Sciences; for therein lies hid, the knowledge of every other Learned Science.  
So that he which gives himself to the study of Divinity, may here fill himself with holy and pious Principles of Divine Laws: For, 
Fortesove, cap. 3.  Lex est sanctio sancta, jubens honesta, & prohibens contraria; sanctum etenim oportet, quod esse sanctum definitum. The Law is a holy Sanction, or Decree, commanding things that be honest, and forbidding the contraries: Now the thing must needs be holy, which by definition, is determined to be holy. So that in this respect, saith Fortescue, men may well call Lawyers, Sacerdotes, that is, givers, or teachers of holy things. For the Laws being holy, it followeth, that the Ministers, and setters forth of them, must be givers of holy things; and so by interpretation, doth Sacerdos signify; and doubtless, he which duly considers those Rules of Theology, which lie scattered throughout the whole body of the Law, must needs conclude our Laws to be Commentaries upon the Old and New Testament; and do so much bear the Image Legis Divinae, that they may well be attributed to the Most High.  
The Rules of Grammar, Philosophy natural, Political, Oeconomick, and Moral; as also the Grounds of Logic, both from the Predicable, and Predicament, etc. and of other Arts, and Sciences, so much abound in our Books, that the very reading of the Law, will make a man Master of any of those Sciences.  
And since Rhetoric is Ars ornate dicendi, and consisteth of those two parts, Elocution, and Pronunciation.  
How can we read in our Law-Books, those Learned Arguments, Elegant Speeches, and Judgements pronounced with such Eloquence of words and matter, and not conclude, that Rhetoric is the Glory and Grace of a Lawyer. Though some (not gifted that way) would persuade us, that the Law hath little relation to it.  
If any man be delighted in History, let him read the Books of Law, which are nothing else but Annals and Chronicles of things done and acted from year to year; in which every Case, presents you with a petite History; and if variety of matter doth most delight the Reader, doubtless, the reading of those Cases, (which differ like men's faces) though like the Stars in number, is the most pleasant reading in the World.  
I thought to have expatiated myself in this Eulogicall Commendation of the Study of the Law; But when I consider the Glory of the thing itself, I think it but in vain to light the Sun with Candles; and as no Arguments will persuade one to love against Nature, so he whom the rarity of the Law itself cannot invite to study it, will never be forced to it with the fist of Logic, or other persuasion: Wherefore 'tis now time to expose myself to the Censure of the Reader, who always judges according to his capacity, or affection; for which cause, if I was to choose my Reader, I could wish with Caius Lucilius, Quod ea quae scribo, neque ab indoctissimis, neque à doctissimis legi, quod alteri nihil intelligerent, alteri plus fortasse, quàm ipse de se. That this Treatise might not be read, of the most Learned, nor of those who are not learned at all, because these understand nothing, and the others more perhaps than myself.  
However, I put this Request to all, Ut si quid superfluum, 
Bracton. li. 1. fo. 1.  vel perperam positum, in hoc opere intervenerit, illud corrigant, & emendent, vel Conniventibus oculis pertranseant; Cum omnia habere in memoria, & in nullo peccare, divinum sit potius quàm humanum: That if any thing be superfluous, and placed amiss in this Work, That they will either correct and amend it, or without carping connivea● it; since to remember to do all things right, and nothing amiss, is rather the part of a God, than Man: wherefore let him which never offended, cast the first stone.  
S. E.   

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

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

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

Trials per pais.  

CAP. I. The Derivation of the Word (Jury.) The Definition, Antiquity and Excellency of Juries, by way of Preface.  
Jury (Jurata) cometh of the French word (Jurer. i e. Jurare. 
Vid. Cap. 1●. Jury. ) And metonymically signifieth in Law, those 12 men who are sworn Judges in matters of fact, evidenced and debated, by Witnesses, before them: I call them Judges, because, as the Plead, of Sergeants and Counsellors at Law, do serve only Ad illustrandum; ('tis the property of the Court, Jus dicere.) So the testimony of Witnesses, only illuminateth the Question, 'Tis in the power of the Jury to determine the fact, upon an Evidence Pro, and Co●; According to those common Adages, Ad questionem Juris respondent Judices; Ad questionem facti respondent Juratores: Though, as the Judgement of the Court ought to be guided by the Law; So, is the Verdict of the Jury, by the Evidence.  

The Antiquity and excellency of Juries.  I will but only dip my pen into that fathomless depth of praises, which belong to t●e right use of Juries; Those silver drops which flow from their Eulogies, would soon drown, (and so make barren) the most fruitful Author, even with redundancy of matter: Such showers must fall into the Ocean; they cannot be received, in such small rivulets, as I have contracted myself to. Their Antiquity proclaims them venerable, For (as 
(1) Com. upon Littleton, fol. 155. vid. l b. 3. 8. Preface.  Cook desires you) hear what the Law was before the Conquest. In singulis Centuriis Comitia sunto, atque liberae conditionis vici cuodeni aetate superiores, una cum praeposito sacra tenentes juranto. etc. 
Lamb. verb. Centuria.  And Cambden (in his Britannia page 153.) Correcteth Polidor Virgil, saying, Whereas Palidor Virgil writeth, that William the Conqueror first brought in the Trial 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. etc.  
Their general use (being the only tryers of Chooses in fait, 
The use of ●ries.  almost in all Courts throughout England) speak them a public good; And what answer shall I make to the Princes, vehementer Admiror. 
(3) Fortescue, cap. 28.  Videlicet, Wherefore are not Juries used in other Countries, if they are so good? But that of Fortescue, the Learned, who best could tell, Scil. That other Countries can scarce produce one Jury, so well accomplished with Wealth and Ingeny, as one County, nay one Hundred, can in England.  
But not to dwell in the Porch of Flourishes, I will address myself to the Gravity of the Law, where you must not so much expect the flash of Rhetoric, as the light of Reason; No, the Law knows best how to express her self, in her own terms, wherefore all other Sciences must learn, with reverence, to keep their distance, And (as the Golden Finch 
(4) Finch. ca 3.  sings) be glad to have their sparks, raked up in her Ashes.  
●nd since an Issue is praevious, and the matter of a trial, I shall first give you the description thereof, and then touch upon the several Trials allowed by the Law, for discussion of the truth.   

CAP. II. Of an Issue, and the divers sorts of Trials thereof: and when a Trial shall be by a Jury, and when not; when by Certificate, when by Battle, and when by an Almanac; what Issue shall be first tried, Per Pais; what shall be tried by the Court; and what by Examination of the Attorney, Sheriff, etc.  
ISsue, exitus, saith Cook 
(5) 1. Com. fo. 126. Omnia unum aliquem sortiuntur exitum, vel per patriam, vel per Judices terminandum. Finch. Epistle.  is a single 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 tried by 12 men; and it is twofold, Scil. either special, as where the special matter is pleaded, or general; as in Trespass, not guilty: in Assize, nul tort, nul disseisin, etc. 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 Trial, 
Trial.  It is to find out, by due examination, the truth of the point in Issue or question between the parties, whereupon judgement may be given; And as the question between the parties is twofold, so is the Trial thereof; For either it is questio Juris, (and that shall be tried by the Judges, either upon a demurrer, special Verdict or Exception, 
Note, that upon a demurrer to part, and Issue to part, though it is the best way to give Judgement upon the quaestio juris first, yet the Court may try the quaestio facti first, at their discretion. 1 Inst. 72 125. Lach. 4.  For Cuilibet in sua arte perito est Credendum, et quod quisque noverit in hoc se exerceat. Or it is quaestio facti, And the trial of the fact is in divers sorts; First, chief, and most commonly, by a Jury of 12 men, (of which kind of Trial, my intention is principally to treat in this Book.) 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, 
(6) 1. Com. fol. 74.  that he read of six kinds of Certificates, allowed for Trials, by the Common-Law.  
1. 
Trials by Certificate.  The doing of service by him that holdeth by Escuage in Scotland, was to be tried by the King's Marshal of his Army, Person Certificate en escript south son seal q̄ serra mis a les Justices, saith Littleton.  
2. If it be alleged in avoidance of an Outlawry, that the Defendant was in prison, at Bordeaux, in the Service of the Mayor of Bordeaux, It shall be tr●ed by the Certificate of the Mayor of Bordeaux.  
3. For matters within the Realm, The Custom 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 Privilege, if one be a Citizen or foreigner.  
5. Trial of Records, by Certificate of the Judges, in whose Custody they are by Law. All these be in temporal Causes.  
6. In Causes Ecclesiastical, as loyalty of Marriage, general Bastardy, Excommengement, Profession: These and the like are regularly to be tried by the Certificate of the Ordinary. apres vide 16.  

Records.  7. Matters of Record shall be tried by the Record itself, and not per Pais. And for this Reason, 
Why there needs no visne, where Letters Patents were made; otherwise in pleading Deeds.  in pleading of Letters Patents, the place need not be alleged, where the Letters Patents were made, because the Defendant cannot plead nul tiel Record, but must plead, non concessit, and then the Jury shall come from the place where the Lands lie. Vide, li. 6. fo. 15. 1 Com. 117.260. Plo. Com. 231. But upon a Non est factum pleaded to a Deed, there must be a place alleged 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, and other matter of fact, must be tried by the jury; so that in this case of a Deed, there is a Trial per Pais, and by the Court. 1 Com. foe 35. vide apres. 18.  
8. A Peer of the Realm. i e. a Lord of the Parliament, 
Peers.  shall upon an Indictment of Treason, or Felony, misprision of Treason, and misprision of Felony, be tried by his Peers without Oath, 1 H. 4. 2. But in an Appeal at the Suit of the party, he shall be tried per probos & legales homines Juratores. 10 E. 4. 6. etc. because that is not the King's Suit, but the parties. Vide, li. 9 31. Le case del abbot de Strata Mercella. And in a Praemunire, his Trial shall be per Pais. Bolstr. 1. part 198. Duchess', Countesses, or Barronesses, although married, shall be tried, as Péers of the Realm are, but so shall not Bishops and Abbots. Stam. 153. 20 H. 6. 9  
9 
Customs of Courts, etc. tried by the Judges.  The Customs and usages of every Court shall be tried by the judges of the same Cout, if they are pleaded in the same Court, ib. and many other things are tried by the Judges, as the reasonableness of a fine of an offender or upon surrender of a Copyhold Estate; and so it is of Customs, 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 tried by the Judges; Vide 1 Com. fo. 56. And in some Cases matter of fact shall he tried 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 tried by the judges, li. 9 30. So the nonage of an Infant, generally, and Maihme, by inspection of the Court. But in many Cases, Infancy shall be tried per Pais, as if an Infant appear by Attorney, in Error, this shall be tried per Pais, 
Bulstr. 1 part 131.  li. 9 31. and so it is in an Aetate probanda.  
10. 
Trials by Witnesses.  There are many Trials allowed by 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 tried by Witnesses; and regularly, the proof ought to be by two or three Witnesses, 1 Inst. 6. and divers other things must be tried by examination of the parties and Witnesses, as the Trial by Wager of Law, etc. Finch 423.  
11. Duke or no Duke, 
Dukes, etc.  Earl or no Earl, Baron or no Baron, shall be tried by the King's Writ. lib. 5. 35. lib. 6. 53. But Duchess or no Duchess, etc. by marriage, shall be ●ryed per Pais, because the marriage is matter of fact.  
12. In a Plea deal alien nee, the League 
League.  between the King, and the Sovereign of the Alien, shall be tried by the Record of the Chancery, for every League is of Record. lib. 9 32.  
13. If a Manor be ancient demene, or not? 
Manor.  It shall be tried by the Book of Doomsday, which is in the Exchequer. But whether certain Acres be parcel of such a Manor, or no, it shall be tried by the Country. ib.  

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

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

Plo. Com. 267. Special Bastardy.  16. In an Action upon the Case for calling one Bastard, the Defendant justified that the Plaintiff was a Bastard: And it was awarded that this should be tried per Pais, and not by t●e Ordinary, Hob. 179. Devant. 6. And so a Plea that the Plaintiff was born at such a place before marriage, this is special Bastardy, and shall be tried per Pais. Plo. 14. Dyer 89.  
17. When an Issue is taken, whether a Custom or no Custom in London, 
Customs of London.  If the Mayor, Commonalty, and Citizens be parties or interessed in the Action, This Custom shall be tried 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.  
18. 
Matter of Record, mixed with matter of Fact.  A matter of Record bring mixed with a matter of fact, shall be tried per Pais, and not by the Record. Hob. 244. Peter and Staffords Case. Devant. 7.  
19 In Writs of Right, 
Trials by Battle.  and Appeals that touch life, Trial may be by Battle, or by Jury, at the Defendants choice; The Battle, in a Writ of Right, must be by Champions, (who must be Fréemen.) But in an Appeal, it must be in proper person. The Champions, in a Writ of Right are not bound to fight longer than 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 Battle, in a Writ of Right; and the judges of the King's Bench in an Appeal of Felony; It seems they seldom or never killed one another in this trial of Battle, for their Weapons were but Batoones, and he that was vanquished, was presently upon Proclamation made, to acknowledge his fault, in the Audience of the People, or else to cry Cravent in the name of Recreantise, etc. and upon this, judgement was to be given, and after this the Recreant should amittere liberam legem, that is, should become infamous, etc. 2 Institutes 247. Finch. 421. lib. 9 31. Mirror of Justice 161. 162, etc. 1 Inst. 294.  
20. In a Writ of Deceit, 
Recovery by default.  upon a Recovery by default, The Trial shall be, If the judgement was given upon the Petit Cape, by the Summoners, If upon the Grand Cape, by the Summoners, per nors, or velors, and not per Pais; So if a Recovery by default in a real Action be pleaded, to which the other saith, Nient Comprise, 
Nient Comprise.  this shall not be tried per Pais, but by the Summoners and Veiers, lib. 9 32.  
21. 
Wager of Law.  In debt upon a simple Contract, Detinue, etc. The Trial 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 Trial.  
22. If Profession 
Profession.  be denied, it shall be tried by the Court Christian; But if the time of the Profession be in Issue, this shall be tried by the Country. lib. 4. 71. So though an enrolment, 
enrolment.  or other matter of Record, cannot be tried per Pais, yet the time when the enrolment was made, may be tried per Pais. 
Appearance.  So whether the party appeared in such a Court, 
Sheriff.  or on such a day, etc. shall be tried per Pais. Cro. 3. part. 131. So whether one was Sheriff such a day or not. Cro. 1. part. 421. Admission, 
Admission. etc.  Institution, Plenarty, and Ability of the Parson, shall be tried by the Bishop. But Induction shall be tried by the Country, 
Plenarty.  and so shall Avoidance by resignation. Dyer 229. Moor 61. and void, or not void shall be tried per Pais, 1 Inst. 344. And Plenarty, if the Clerk be dead, Mirror of Justice 324. li. 6. 49. The Cause of refusal of a Clerk by the Bishop, 
Lib. 6. 49.  shall be tried by the Metropolitan, if the Clerk be living; but per Pais, if he be dead. l. 5. 58.  

Ideocy.  23. An Idiot, found so from his Nativity by Office, may come in person in the Chancery, before the Chancellor, and pray that before him, and such justices 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 Idiot, or no; or by his friends he may sue a Writ out of Chancery, retornable there, to bring him into the Chancery, Ibidem Coram nobis, & concilio nostro examinand. lib. 9 31.  
24. If it be in question, wh●ther the Sheriff made such a return or not, 
Sheriff.  It shall be tried by the Sheriff if whether the Undersheriff made such a return or not, it shall be tried by the Undersheriff; If the question be, whether such a one be Sheriff or not, It shall be tried by the Examination of the Sheriff, yet he is made by Letters Patents of Record, and therefore it may be ●ryed by the Record. ib. Cro. 2. part. 421.  
25. If an Approver say, 
Durer.  that he Commenced his Appeal before the Coroner per dures, this shall be tried 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 Trial, whether a Statute 
Statute.  shown 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 tried per pais, Leon. 1 part. 228, 229.  
27. In Assize the Tenant said, that the Lands were taken into the King's hands, this shall be tried by the Examination of the Escheator. 
Escheator.   

Certificate.  28. If one in avoidance of an Outlawry, allege that he was in Prison at Bordeaux, ultra mare in servitio Majoris de Bordeaux, this shall be tried by the Maior's Certificate; and in such like Cases, other Trials shall be by the Certificate of the Marshal of the Host, and by the Captain of Calais, and also by Messenger, 
Messenger.  of a thing done beyond Sea. Ib.  
29. At the Petit Cape, 
Petit Cape.  the Tenant said that he was imprisoned 3. days before the default, and 3. days after, this shall be tried by the Examination of the Attorney; Nient Attach. per. 15. jours in Assize shall not be tried per pais, but by examination of the Bayley. 
Bayley.  Ib.  
30. It seems an Almanac 
Almanac.  is so infallible, that it hath countervailed the Verdict of a Jury, For in Error of a judgement given in Lynne, The Error assigned was, that the judgement 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 Almanacs of that year, upon which it was ruled, that this Examination was a sufficient Trial, and that a Trial per pais, was not necessary, although it were an Error in Fact; and so the judgement was reversed. Cro. 1 part. last pub. fo. 227.  
31. 
Ordeale.  In ancient times there was a Trial in criminal Causes called Ordalium, for upon Not guilty pleaded, the Defendant might put himself upon God and the Country (as is the ●●e at this day) or else upon God only, and then if he was a Freeman, he was to be tried per ignem, that is, he was to pass over Noven vomeres ignitos nudis pedibus, and if he was not hurt by this, than he was to be acquitted, otherwise condemned: and this was call d Ju icium Dei; But if he was a slave, than his Trial was to be per aquam, and that divers ways, which all appear in Lambard, verbo Ordalium. From which kind of Trial, I presume we still retain this expression of an innocent person, That he need not fear fire or water: This manner of Trial was first prohibited by the Cannons, then by Parliament: The Trial by Battle 
Battle.  is likewise prohibited by the Cannons, but not by Parliament, as you may read in the ninth Report, fo. 32. and in the Authorities there cited, which I therefore omit to recite here, (th' ugh I have the Books by me) and ●o in this whole Treatise, where I refer you to a Book, I shall not s●t down the Authorities cited in that Book, which will avoid prolixity.  
32. When the matter alleged, extendeth to a place at t e Common Law, and a place within a franchise, 
Which Trial shall be first.  it shall be tried at the Common Law. 1 Inst. 125.  
33. All matters done out of the Realm of England, concerning War, 
Martial Affairs.  Combat or Deeds of Arms, shall be tried and termined b●fore the Constable and Marshal of England, before whom the Trial is by Witnesses, 
Witnesses or Combat.  or by Combat, and their proceeding is according to the Civil Law, and not by the Oath of 12. men, 1 Just. 74. 261. Wherefore if the King's Subject be killed by another of his Subjects in any foreign Country, The Wife or Heir of the De●d, may have an Appeal before the Constable and Martial, who sentence upon the testimony of Witness or Combat. ib. So if a man be wounded in France, and die thereof in England. ib.  
It is worthy our observation, 
What Issue shall be first tried.  to take notice w●en there are several Issues, which of them shall be first tried; And for this you have already heard, that where Issue is joined for part, and a Demurrer for the Residue, the Court may direct the Trial of the Issue, or judge the demurrer first, at their pleasure, though by the opinion of Doderidge. 
Latch. 4.  It is the best way to give judgement upon the Demurrer first, because when the Issue comes afterwards to be tried, 
Damages.  the jury may assess damages for the whole.  

Plea to the Writ.  In an Action against two, the one pleads in abatement of the Writ, the other to the Action; the Plea to the Writ shall be first tried, 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 tried.  the one Defendant pleads in bar 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 tried, 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 in Trespass, pleads a Release 
Release.  to himself (which in Law extends to both) and the other pleads not guilty, (which extends but to himself) or if one pleads a Plea which excuseth himself only, and the other pleads another Plea which goeth to the whole, the Plea which goeth to the whole shall be first tried; for if that be found, it maketh an end of all: And the other Defendant shall take advantage hereof, 
Discharge of one dischargeth both.  because the discharge of one, is the discharge of both. But in a Plea 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 tried; for he shall not take advantage of the Plea of the other, because one joint-tenant may lose his part by his misplea. ib.   

CAP. III. Of a Venire facias; To whom it shall be directed; when to the Sheriff, when to the Coroners, when to Esliors, and when to Bailiffs.  
H●ving given you the Epitome of what Trials are allowed by t●e Common Law, and what shall be tried per pais, and what not; we shall now a●ply ourselves more particularly to the Trial 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 Goal Delivery, give a general Command to the Sheriff, to cause the Country to come against their coming; and take the Panels of the Sheriff without any process directed to him, yet process may be made against the jury, though it is not much used. Stamford, Pleas deal Corone, 155.) I will first recite the Writ, in terminis, the rather, because I intent to order my Discourse, according to the method of the Writ.  
Rex etc. Vic. B. Salutem. Precipimus tibi quod venire facias 
Venire facias.  Coram Justiciariis nostris de Banco apud Westm. tali die, duodecem liberos & legales homines de vicenet. de C. Quorum quilibet habeat quatuor libras terre, tenement. velreddit. per annum ad minus, per quos rei veritas melius sciri poterit; Et qui nec D. E. nec F. G. aliqua affinitate attingunt; Ad faciend. quandam Jur. patrie inter parts predict. de placito, etc. quia ●am Idem D. quam predict. F. inter quos inde contentio est posuer. se in Jur. illam. Et habeas Ibi nomina Jur. illorum & hoc breve T. etc.  
This is one of those Latin Letters, (as Finch terms them, fo 237.) which the King sends with Salutation, to the Sheriff. But withal 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 judicial Writ, issuing out of the Record, for Plaintiff or Defendant, after they have put themselves upon the Country: for upon the words Et de hoc ponit se super patriam, by the Defendant, Or, Et hoc petit quod Inquiratur per patriam, by the Plaintiff, and Issue joined thereupon, the Court awardeth the Venire facias, vid. Ideo fiat inde Jurat.  

Sheriff.  And first, you see it is directed Vice Comiti, i. e. to one who is Vice Comitis, and hath the Regiment of the County, instead of the Earl of that County, to whom once it did belong: As we are taught in the Mirror, Chap. 1. Sect. ●. Scil. That it appeareth by the Ordinance of ancient Kings before the Conquest, That the Earls of the Counties had the Custody or Guard of the Counties; and when the Earls left their Custody or Guards, than was the Custody of Counties committed to Viscounts, who therefore are called Vice Comites.  
What great Repose and Trust both the King and Laws put in this great Officer, The Oracle tells you, 
What Trust in the Sheriff.  1 Inst. 168. That he is Shireve, that is, p●aefectus Comitatus, Governor of the County; For the words of his Patent be, Commissimus vobis Custodiam Comitatus nostride, etc. And he hath a threefold Custody, triplicem Custodiam, viz. first, Vitae Justiciae, for no Suit gins, and no Process is served but by the Sheriff, And he is to return indifferent Juries for the trial of men's lives, Liberties, Lands, Goods, etc. 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.  

To whom the Venire facias ought to be directed.  Yet notwithstanding the height and Latitude of this great Officers power and trust, The Law adjudges him in many Cases not capable, to do so much as return a Jury; For if he be of kindred by nature, or of affinity by Marriage to any of the parties, or (that I may say all, in a little,) if he be not as indifferent almost in all respects he is, whom the Law allows to be a Juror, he ought not to meddle with the returning of the Jury. But the Venire facias shall be directed to the Coroners, 
Coroners.  (or to some of them, if the residue are not indifferent) who in that Case are vice, Vice Com. And if the Coroners are not indifferent, 
Forrescue, cap. 2. 5.  than the Venire shall be directed Add 2 Electores, that is, to two whom the Court shall choose and deem fit to return the Jury; And to the return of these Elisors or Esliors, 
Esliors.  ab Eligendo, no Challenge 
Challenge.  will be admitted. Bro. tit. Venire facias 14. as to the Array; But to the Poles, 1 Inst. 158. If one of the Sheriffs of London 
Sheriff of London.  be a party, than the Venire may be directed to the other Sheriff, If the Under Sheriff be a party, yet the Venire may be directed to the Sheriff, with this Proviso. Quod sub Vic. tuus in in nullo se intromittat cum executione istius brevis. 18 E. 4. 3.  
judicial Writs (say Cook and Sanders, Plo. 74.) may be directed to the Coroners; As the Venire facias, where the parties are at Issue; there, upon the surmise of the Plaintiff, that the Sheriff is his Cousin, and upon prayer that the Venire be directed to the Coroners, 
Coroners.  for avoidance of his own delay that might happen by the Challenge of the Array, The Defendant shall be examined whether it be true, or not, and if he confess it, than the Venire shall be awarded to the Coroners; for than it appears to the Court by the Defendants confession that the Sheriff is not indifferent; 
Examination.  But if the Defendant denies it, than the process shall be awarded to the Sheriff, because the Sheriff's Authority and profit shall not be taken away, without cause apparent to the Court; But if the Defendants will allege 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 for the Defendants advantage, 
The Defendant may not have a Venire facias to the Coroners.  and the Defendant may challenge the jury for this cause, and so is at no prejudice.  
And see in term. H. 3. H. 7. fo. 5. placit. ult. In a quare Impedit, where the Defendant shown how the Sheriff was Cousin to the Plaintiff, and prayed a Writ to the Coroners, but it was denied him upon the same Reason. Fitz. tit. suggestion placit. 8. br. Challenge. 153.  

Venire facias once directed to the Coroners, shall not be to the Sheriff afterwards.  When the Process is once awarded to the Coroners, for a default in the Sheriff, if there be a new Sheriff made afterwards, who is indifferent, yet the Process shall not revert, but continue to the Coroners pendant le plea. 14 H. 7. 31. bro. tit. Venire facias. 17. So the Entry is, Ita quod Vice comes se non intromittat. 18 E. 4. 3.  
And therefore where the Sheriff ought not to return the Venire, 
Sheriff shall not return the Tales, where he cannot the Venire faciar.  he cannot return the Tales; For in Error in the Exchequer Chamber of a judgement 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 returned by the Coroner, And afterwards a Tales was awarded, and it was returned by the Sheriff, and it was tried, and a Verdict given, and judgement. And for this c●use held to be Erroneous, and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the judgement was reversed. Cro. 1 part. ult. pub. 574. bro. tit. octo. tales 9  
I will instance one Case more in the same Reports, fo. 586. because it is very full in the point. After Issue in Trespass, the Plaintiff for his expedition surmised, that he was Servant to the Sheriff, which being confessed by the Defendant, the process was awarded to the Coroners, and after Verdi●, 
Where the Coroner returns the V●nire facias, he ought to return the Tales.  it was moved in Arrest of judgement, that the Tales de Circumst●ntibus was awarded, and returned by the Sheriff; which was held by the whole Court to be good cause for Staying the judgement: For it is a mis-ryall, not aided by any of the Statutes; for process being once award 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 returne● by him, who is an Officer by Law to return it, otherwise it is merely void; But afterwards upon view of the Record, it appeared that the Tales was returned by the Coroners, 
No name to the Return.  and their names annexed thereto, wherefore it was without further question. But the Court said, if their names had not been annexed to the Tales, yet it had been well enough; for they be annexed to the first Panel, And it shall be intended, that the right Officer returned it, and the usual course is, That to such Tales there is not any Officers names 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 judgement.  
But if the Venire be awarded to the Coroners, for default in the Sheriff, and they do nothing upon the Writ, than I suppose, 
Venire facias to the Sheriff, after one awarded to the Coroners.  upon a default discovered in the Coroners, de puisne temps, the party may show this to the Court, and have a Venire awarded to the Sheriff, (if there be an indifferent one made in the mean time) ere else to Essiors, & sic e converso.  
In Error of a judgement in Chester, the parties being at Issue, 
Venire facias to the Coroners, after one to the Sheriff.  a Venire was awarded to the Sheriff. And at the day of the Return, it was entered Quod Vice comes non misit breve. And then the Plaintiff prayed a Venire facias, to the Coroners, for Cousinage betwixt him and the Sheriff; which was awarded accordingly, and at the day of Trial, the Defendant made default, and thereupon, judgement, 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. 1 part. ult. pub. 853.  
But the Defendant might have demurred to this Prayer; 
No Venire facias to the Coroners, after one to the Sheriff.  For if the Plaintiff pray a Venire facias, to the Sheriff, he shall not challenge the array, nor have a Venir● afterwards to the Coroners, because the Sheriff is his Cousin, or fo● any other principal Challenge whereof he might by common intendment have Conusance, when h● so prayed the Venire facias; for upon showing this Cause at first, h● 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 Sh●riff, etc. he may afterwards challenge the array, when th●y appear, or if the Sheriff doth nothing upon the Writ, he may pray a new Venire to the Coroners. 15 H. 7. 9  
If the Plaintiff prays a Venire facias to the Coroners, 
If the Defendant denies the Plaintiffs suggestion, he shall have no b nefit of it by Challenge.  because he is of kindred to the Sheriff, if the Defendant will not confess this, but denies it, this shall be entered, 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 entered of Record, it shall stand, for omnis consensus tollit errorem. 1 Inst. 126. li. 5. 
Mistryall without such consent.  36. But if it be directed to the Coroners, where it ought to be to the Sheriff, without such consent of parties: This is an insufficient Trial, not remedied by any Statute, except it be upon an insufficient suggestion, and then the Stat. of 21 Jac. 13. helps it.  
Upon suggestion that the Plaintiff and the Sheriff, 
Venire facias to some of the Coroners.  and one of the Coroners are of kindred to the Plaintiff, or Defendant, or upon any other suggestion which contains a Principal Challenge, the Venire facias may be directed to the other Coroners. Dier. 367.  
Error of a judgement in Northhampton, because in Northampton the Court being held before the Mayor, and two Bailiffs, 
Bailiffs.  the Venire facias upon the Issue was awarded to the two Bailiffs, to return a Jury, before the Mayor and Bailiffs, Secundum Consuetudinem: which being returned, and judgement given, the Error assigned was, because the Bailiffs being judges of the Court, could not also be Officers, to whom Process should be directed, there being no Custom that can maintain any to be both Officer and judge. But all the Court (absent Hide) conceived it might be good by Custom. And that it is not any Error, for the judges be not the Bailiffs only, but the Mayor and Bailiffs; and it is a common course, in many of the Ancient Corporations, where the Bailiffs are Judges, 
Judge and Officer to return Writs.  or the Mayor and they be Judges; yet in respect of executing Process, they be the Officers also. And one may be judge, and Officer dive●sis respectibus, as in Redisseisin, the Sheriff is Judge and Officer: Whereupon judgement was affirmed. Cro. 1 part. 138.  
In Trespass and Assault laid in the Court, 
Venire facias to the Garden of the Palace of Westminster.  to be at the Palace of Westm. It was adjudged, that the Venire facias shall issue all Garden del palace, and not to the Sheriff of Middlesex. Bro. tit. Ven. fac. 31.   

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

Ve●ire facias, why the Writ so called.  WE have now shown you to what Officer the Venire facias shall be directed; The next step in the Writ is Precipimus tibi quod Venire facias, Which words, Venire facias, are the most 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, judgements stayed, and reversed, for want of sufficient 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 may so say) these enormities; As, 
Statute of Jeof isles. 21 Jac. 13.  the awarding this Writ, hab. Corpora, or distringas to a wrong Officer, upon any insufficient suggestion, or by reason the Visne is in some part misawarded or sued out of more places, or of fewer places than it ought to be, so as some place be right named, The misnaming of any of the Jury, either in Surname, or addition of any of the said Writs, or in any Return thereupon, so that upon examination, it be proved to be the same man that was meant to be returned; or if no Return be upon any of the said Writs, so as a Panel of the names of the Jurors be returned, or annexed to the said Writ; or if the Sheriff or Officers name, having the Return thereof, is not set to the Return of any such Writ, so as upon Examination, it be proved that the said Writ was returned by the Sheriff, or Under-Sheriff, or such other Officer. In all these Cases, the judgement 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 Murder, nor to any Indictment, or Presentment of Felony or Murder, or Treason; nor to any Process upon any of them; nor to any Writ, Bill, Action, 
Popular Actions, etc.  or Information upon any popular, or penal Statute: Wherefore since Informations, and popular Actions are grown so frequent, the Attorneys, etc. 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 Surname, or addition, 
Christian name mistaken in the Venire facias, incurable.  and saith nothing of his Christian name: wherefore I conceive the Law in Codwells Case, in the fifth Report, remains as it was then; which is, that if a Juror be misnamed 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 agrees, Goddards Case, Cro. 2. part. 458.  
And since the Court (Cro. 1 part. fo. 203.) doubted thereof, 
Christian name right in the Venire facias, and wrong in the Distringas.  I may well put the Question, if a Juror be right named upon the Venire, and misnamed in his Christian Name, in the Distringas, etc. whether this is amendable, or not; without dispute, it is not by the Statute 21 Jacob, for that only helps the Surname. But with Reverence to the Courts doubt, I conceive clearly, it is helped by the Statutes of 32 H. 8. and 18 Eliz. as a discontinuance of Process; and I may with the more confidence believe it, because in Codwells Case aforesaid, where in the Pannell of the Venire, a Juror was named Palus Cheale, and in the Distringas, etc. he was right named Paulus Cheale, and so because he was misnamed in his Christian Name, in the Venire, judgement was arrested. But it is there adjudged, that if he had been well named on the Venire, and misnamed upon the Distringas or Postea, then upon Examination, it should be amended. But the Countess of Rutland's Case, lib. 5. 42. is express in the point, and so is Cro. 3. part. 860.  
And it is to be known, that in most Cases, where the Venire facias, Hab: Corpora, or Distringas be defective, they are to be amended; but if the Malady be so fatal in the Venire, that it causes a Mistriall, (as in the mistake of a Jurors Christian Name, or where a Juror not returned is sworn, etc.) then the Verdict is to be set aside, and a Venire facias de novo, 
Venire facias de novo.  to be awarded; and so was it to be upon those mistakes, (now amendable by the Statutes,) before the making thereof. And where a Jury giveth a Verdict which is accepted, and recorded by the Court, 
One Jury shall not try a cause twice.  be the Verdict perfect or imperfect, the Jurors are discharged, and shall never try the same Issue again upon a new Nisi prius. But if the Verdict be so imperfect, that judgement cannot be given upon it, than the Court shall award a Venire facias, de novo, to try the Issue by other Jurors. li. 8. 65. Bulstr. 2 part. 32.  
In yelverton's Reports, fo. 64. 
Album breve, the County left out in a Veni●e facias.  the Case is, That a Venire facias was made Vicecomiti, (leaving out) Salop, for which there was a blank le●t in the Writ. But re vera, it was returned by the Sheriff of Salop. In Arrest of judgement it was alleged, 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 Stat. of Jeofailes, For it might rather be called a blank, than a Writ, because it was directed to no Officer.  

Several Venire facias.  In Cases where there are several Defendants, who plead several Pleas, the Plaintiff may choose 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 joint 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, etc. li. 8. 66. li. 11. 5. 6. Stamf. 155. bro. tit. Venire facias 2. 35.  
But now it is the usual course to have but one Venire facias, 
One Venire facias in several Issues.  upon several Issues, though against several Defendants, Cro. 3. 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 jury will serve his turn; Et frustra fit per plura quod fieri potest per pauciora. But other wise, if it be in two Counties. Cro. 3. part. 866.  
After Issue joined by two Defendants, if one of them die, 
Venire facias between the Plaintiff and 2. Defendants where one is dead.  and then a Venire facias is awarded betwixt the Plaintiff, and both the Defendants, and so in the Hab: Corpora and Distringas, yet this shall not vitiate the Venire facias, etc. 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 judicial Writs, 
No surmise in Judicial Writs of death in one of the parties.  that one of the Defendants is dead; It is time enough to show 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.  

Venire facias dated before the Action brought.  If the Venire facias bears date before the Action brought, or varies from the Roll, yet it is aided by the Statutes of Jeofailes. Cro. 1. part. 38. 90, 91. 203, 204. Miscontinuance or discontinuance, or misconveying of Process, is aided by 32 H. 8. 30. The want of any Writ Original or Judicial, 
Jeofailes.  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, 
Parties names mistaken in a Venire facias.  or the Issue, as if the Issue be ne unques Executor, and the Venire facias be in placito debiti, etc. this is a Mistryall. 
Mistryall.  Cro. 2. part. 528. So it is, if the Venire facias be in placito transgressionis, where the Action is in placito transgressionis, & ejectionis firm. This in sawarding of Process is not aided by any of the Statutes, and better it was, that there had been no Venire facias at all in such a Case; 
No Venire facias helped.  for then the Statutes would have helped it. Cro. 3. part. 622.  
In some Cases a Venire facias shall be awarded to make an Enquest betwixt a stranger to the Writ and Issue and the party. 
Venire facias between a party and a stranger.  I will instance but in one, and that is upon the Statute of Westm. 2. cap. 6. If a Tenant being impleaded vouch to warranty and the Vouchée denieth the Deed, or other cause of the Warranty, etc. That the Demandant may not hereby be delayed, he may sue out a Venire facias to try the Issue between the Tenant and Vouchée.  

Inquest at whose request.  Inquests in Pleas of Land, shall be as well taken at the Request of the Tenant, as of the Demandant. 2 E. 3. cap. 16. If the Plaintiff, or Demandant, defisteth in prosecuting his Action, 
Venire facias by Proviso.  and bringeth it not to Trial, than the Defendant, or Tenant may sue forth a Veni. facias with a Proviso, which is to no other end, but that the Sheriff should summon but one jury, 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, etc. with a Proviso, depends much upon the discretion of the Court, yet for the greater part, it is not grantable for the Defendant, unless when he is actor as well as the Plaintiff, or unless there be a default, and Laches in the Plaintiff; therefore there can be no Trial by Proviso against the King (unless with the Attorney general's consent,) because no dedefault, or Laches can be imputed to the King: But an avowant in Replevin, 
Proof presently after Issue joined.  may have a Venire facias with a Proviso, immediately after Issue joined, because he is actor, and in nature of the Plaintiff.  
But note the Nota (in Stamford's Pleas, del. Coron. fol. 155. 
How the Plaintiff may stop the Defendants Proviso. ) That if by negligence of the Plaintiff, the Defendant sues a Venire Facias with a Proviso, yet the Plaintiff may at his pleasure stay the Defendant, that he shall not 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 nevet 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 
Tales men.  offer themselves to us, we will tell them upon what account t ay 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 Trial be in the Country. Of the Writ of Nisi prius, when first given, when grantable, when not, and in what Writs. Of the Tales at Common Law, and by Statute. When the Transscript of the Record of the Nisi prius differs from the Roll, whereby the Plaintiff is nonsuited, 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 commanded to cause the jury to come to Westminster, when they are to try the Cause in the Country, and in truth are not to come to Westminster. I must confess the resolution of this question is not unnecessary: wherefore we must know, that originally, before the Writ of Nisi prius was given, the purpose for which the 12. 
Why the Venire facias is to have the Jury appear at Westminster.  men were to be summoned upon the Writ of Venire facias to come to Westminster, was, that contained in the Writ, videl. Ad faciend. quandam Juratam; for than was the Trial intended to be there, if a full jury appeared; if not, than a Hab. Corpora, (with a Tales sometimes 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. 
Hab. Corpus.  This I speak of the Common Pleas: 
Distringas.  But the course of the King's Bench, and Exchequer, is, after the Venire facias, to have a Distringas, leaving out the Hab. Corpora. Trials than were all at the Barr. (I speak not of Assizes.) But now, because jurors did not use to appear upon the Venire facias, it being without penalty; Trials at the Bar, 
Trials at Bar.  are appointed upon the Hab. Corpora, and Distringas, because the jury will more certainly appear at the day in the Distringas, through fear of forfeiting Issues: which the Sheriff returns on the Distringas, not on the Venire facias. By the Statute of 18 Eliz. cap. 5. No jury shall be compelled to appear at Westminster, for the Trial of an offence (upon any penal Law) committed above 30. 
Where a Jury is no● compellable to appear at Westminster.  miles from Westminster, except the Attorney General can show reasonable cause for a Trial at Barr.  
Thus it was at Common Law, before the giving of the Writ of Nisi prius, when all jurors, together with the parties, came u● to the King's higher Courts of justice, where the Cause depended; which (when Suits multiplied) was to the intolerable burden of the Country, 27 E. 1. cap. 4. wherefore by the Statute of Westminst. 2 cap. 30. A Writ of Nisi prius, 
Nisi prius, when first given, and wherefore.  w●s first given; And that, in the Venire facias, as we may see in the form of the Writ there mentioned, Scil. Praecipimus tibi quod Venire facias coram Justiciariis nostris apud Westmon. in octabis, Sancti Michaelis, nisi talis & talis tali die & loco ad partes illas vene●int 12. etc. By which Writ it appears, that the Venire facias was not returnable, till after the day of the Nisi prius. 
N●si prius in the Venire facias.  But the mischief thereof was so great, partly in respect that the parties not knowing the jurors names, could not tell how to make their Challenges, and so were surprised; and partly, in respect of the jury, who were greatly delayed by the Essoyns of the parties, that by the Statute of 42 E. 3. cap. 11. It is Ordained, That no Enquest, but Assizes and deliverances of Goals, be taken 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. 
The names of the Jurors must be returned into the Court before any Trial, and why.  And their names must be returned upon a Panel annexed to the Venire facias, so that either party may have a Copy of the jury, that he may know whom to challenge; And the jury not coming upon the Venire facias, make a feigned default, which warrants the Distringas, etc. unless they appear at the day of the Nisiprius.  
So that by what hath been said, you may perceive to what purpose, 
It is in the Court's discretion, whether to grant a Nisi prius, or not.  the Sheriff is commanded to cause the 12. men to come to Westminster, though the Trial 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 Trial at the Bar; And for t●is, the Duke of Exeter being Plaintiff in Trespass, a Nisi prius was prayed for the Duke, and it was denied, for that the Duke was of great power in that County. And if the Trial should be had in the Country, inconvenience might thereupon follow, as you may read, 2 Inst. 424. and 4 Inst. 161. Nay in some Cases, (as if the Cause require long examination, 
When the Court cannot grant a Nisi prius.  etc.) it is not in the power of the Court to grant a Nisi prius; if the King please: For in such Cases, as it appears by the Writ in the Register, 186.) the King by his Writ may restrain, and command the 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, 
Where the K●ng is concerned.  without especial Warrant from the King, or the Attorney General's consent. Stamf. 156. F.N.B. 241. 4 Inst. 161.  
And now since the Nisi prius (for so it is called, 
Nisi prtus, why so called.  because the word prius is before venerint, in the Distringas, etc. 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 jurors are to be returned to the Covet, before the granting of the Nisi prius; therefore the Nisi prius is now in the Hab. Cor. and Distringas. And if the Sheriff return not a Panel of the jurors, 
No Nisi prius before the Venire facias is returned.  upon the venire facias, there shall be no Nisi prius upon the Tales, until a Panel be returned. 27 H. 6. fol. 10. 1 H. 5. fol. 11. which brings me again to speak of the Tales.  

The Tales at Common Law.  A Tales is a supply of such men, as were impanalled upon the Return of the venire facias, grantable, when enough of the principal Pannell 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, than a Tales may be granted. And this at Common Law was by Writs of Decem tales, Octo tales, etc. (out of the King's Courts) one of them after another, as there was need, until there was a full Iury. But now by the Statutes of 35 H. 8. 6. 4. 5. P.M. 7. 5 Eliz. 25. and 14 Eliz. 9  
The justices of Assize, 
Tales by Statute.  and Nisi prius, at the Request of Plaintiff, or Demandant, Defendant or Tenant, or of the prosecutor tam quam, (if two, more, or but one of the principal Panel 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.  
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, etc. thereof.  
2. The number of the Tales.  
3. The order of them.  
4. The manner of Trial, 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 Panel, 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 f●cias shall b● awarded. But if at the time of granting the Tales, the principal Panel stand, and afterwards is quashed as aforesaid, yet the Tales sh●ll stand; For it sufficeth if there were Quales, at the time of granting the Tales.  
3. It is to be observed, that he which is méerly Defendant, cannot pray a Tales, till the Plaintiff hath made default.  
4. In some Cases, a Tales shall be granted after a full Ju●y appear & is sworn, as if a Jury be charged, and afterwards before a Verdict given in Court, one of them die, a Tales shall be awarded, and no new venire facias, and so if any of the jurors impanelled die before they appear; and this appears by the Sheriffs return, the Pannell shall not abate, but if there be need, a Tales shall be awarded. And the time for Challenge, and trial of the Tales, is after the principal Panel be tried; and if the principal Panel be affirmed, the same tryors shall try the Tales; But if it be quashed, than the two tryers of the principal, shall not try the Tales.  
As to th● second, to wit, the number, two things are to be observed.  
1. That in all Cases, the Tales ought to be under the number of the 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, than 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. etc. 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, etc. 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 Trial, that is commonly by them with others; but by them only, when after the granting the Tales, the principal Panel is quashed, than the Trial shall be only by the Tales; or if the Tales do not amount to a full Enquest, another Tales to supply the former, may be granted.  
As to the fifth, to wit, 
Therefore if ●he Venire facias be not de medietat. linguae, the Tales cannot. 3 E. 4.12.  the Quality of the Tales, they ought to be of the same quality as the Quales be; 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 Quale● are required in the Tales: as yo● may read in the aforesaid Statutes. vide, Stamf. Pleas deal Coron● fol. 155.  
Where a juror is withdrawn, when the Plaintiff intends to bring the Cause to Trial again, he may have a Distringas, etc. with a Deces Tales.  
By the Statute of 23 H. 8. ca 3. If there be not enough sufficient Fréeholders as are required in an Attaint, 
Attaint.  in the County where such Attaint is taken; a Tales may be awarded into the Shire next adjoining.  
If the Transcript of the Record of the Nisi prius be mistaken, and not warranted by the Rolls, for which cause the Plaintiff becomes nonsuit, he may have a Distringas de novo, 
Nisi prius amendable.  upon motion to the Court, and the Postea shall not be recorded, Cro. 1 part. 204. For there is but a Transcript of the Record sent to the justices of Nisi prius. 
Justices of Nisi prius, and Justices of Assize.  First they were Justices of Assize, and therefore they retain that name still, though Assizes are very rarely brought: For this common Action of Ejectment hath Ejected most real Actions; and so the Assize 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.  
NOw for the Quales: and these you see for number, must be 12. by the Common Law, D. and St. foe 14. for quality, liberos & legales homines. And first of their number 12. And this number is no less esteemed of by our Law then by Holy Writ; 
Of the number 12.  If the 12 Apostles on their 12. Thrones, must try us in our eternal State, good Reason hath the Law to appoint the number of 12. to try our temporal. The Tribes of Israel were 12. the Patriarches were 12. and Solomon; Officers were 12. 1 King. 4.7. Therefore not only matters of fact were tried by 12. But of ancient time, 12. 
Blow. Com. in proaemio. 12 Judges.  judges were to try matters in Law, in the Exchequer Chamber, and t●ere were 12. Counsellors of State, for matters of State; And he that wageth his Law, must have 11. others with him, which think he says true. 
Less than 12. in Inquests of Office.  And the Law is so precise in this number of 12. that if the Trial be by more or less, it is a Mys-triall; But in Inquests of Office, as a Writ of Waste, 
Finch 400. 484.  there less than 12. may serve. F.N.B. 107. c. and in Writs to inquire of Damages, the just number of 12. is not requisite, for they may be over or under; And although there can be no Verdict, but by 12. yet by ancient course and usage, (which as my Lord Cook tells you, makes the Law in this Case, 1 Inst. 155. 
Why the Sheriff returns 24. ) the Sheriff is to return 24. And this is for expedition of justice; 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 Trials; And for this cause at common Law, 'twas Error if the Sheriff returned less than 24. But now it is remedied by the Statute of 18 Eliz. as a mis-return, 
If the Sheriff return less than 24. it is no Error.  see Cro. 1 part. 223. li. 5. 36, 37. By which Books it appears, that if the Sheriff return but 23. etc. it shall not vitiate the Verdict of 12. No, though a full jury do not appear, so that the Trial is by ten of the principal Panel, and two of the Tales, notwithstanding Maynards' Opinion to the contrary, and Cro. 3. part. 587. The Sheriffs used to summon above 24. 
Must not return above 24.  Scil. effrenatam multitudinem, but now they are prohibited by Statute, to summon above 24. Westm. 2. cap. 38.  

Where there must be 16. and 24. in a Jury.  To make a jury in a Writ of Right, which is called the Grand Assize, there must be 16. Scil. four Knights, and 12. others; the jury in an Attaint, called the Grand jury, must be 24. Firch 412. & 485.  
When Process used to be made out against the Witnesses in Carta nominat. to join with the jury in Trial of the Deed, 
Where Witness join with the Jury; the number is incertain.  than 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. joined in the Verdict. But otherwise, if the Deed was not found, 
Cannot prove a Negative.  because Witnesses cannot prove a Negative. F. N. Br. 106. h. 1 Inst. 6. 2 Inst. 130. etc.  
If 12. are sworn, and one of them departed by consent, another of the Panel may be sworn, 
Juror departs; and another sworn by consent.  and join with the other 11. in the Verdict. 11 H. 6. 13.  
In Error upon a judgement in Cornwall, 
A Jury of 6.  because the Trial was but by 6. adjudged that it was erroneous, though it was returned secundum consuetudinem ibidem ante, etc. for such Customs are against Law, unless in Wales, which are permitted by Act of Parliament. Cro. 1. part. 259.   

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

Jurors must be Liber.  SO much for their number, next their Quality is to be considered; And for this, the Writ informs you who they ought to be, 1. Liberos, that is, Fréemen, not Villains, or Aliens, and that not only Fréemen, and not bond; but also those as have such 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, 
Fortescue. cap. 25.  instead of Liberos, is attributed to them; they are both good Epithets for a Juror, but I estéem the first most significant.  
2. They ought to be Legales, 
Legales.  not outlawed, not such as have lost Liberam legem, or become infamous, as Recreants, persons attainted of Felony, false Verdict, Conspiracy, Perjury, Praemunire, or Forgery upon the Stat. of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. Not such as have had judgement to lose their Ears, stand on the Pillory or Tumbril, or have been stigmatised or branded, nor Infidels, neither can any such be Witnesses, 1 Inst. 6.  
3. Homines; 
A Jury of Women.  they ought to be men, (yet there shall be a jury of Women to try if a Woman be Enseint, upon the Writ de venire inspiciendo,) But what kind of men these aught 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; 
Exemption of Juries.  Many are exempted by the Writ de non ponendis in Assisis. F. N. B. 166. as aged persons 70. years old, and many others are exempted, as Clerks, 
Who are to be exempted from Juries.  Tenants in ancient Demesne, Ministers of the Forest, (out of the Forest): Coroners, Enfants under the age of 14. years, Officers of the Sheriff, sick dencrepion men, and such as are exempted by the King's Charter: yet in a Grand Assize, preambulation, Attaint, and in some other special Cases, such men as are not exempted by reason of their Dignity, shall be forced to serve, notwithstanding their exemption in other Cases. See Daltons' Office of Sheriffs, fo. 121. 52 H. 3. cap. 14. 2 Inst. 127. 130. 378. 447. and 561. Counsellors, Attorneys, Clerks, and other Ministers of the King's 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, justice against Luce C. for calling of him Traitor in the presence of the Treasurer and Barons of the Exchequer. 
A Jury of Attorneys.  And this jury of Attorneys gave the Justice one hundred marks damages. 30 Assize 19  
4. De vicenet. de C. It is not sufficient that they dwell in the County, but they are to be of the Neighbourhood, Nay, le plus prochenies, 
Visne.  to the place of the fact, as by Artic. super, cap. 9 it is appointed They must be most near, most sufficient, and least suspicious, ib. as I shall show hereafter.  
5. 
Sufficiency of Jurors.  Quorum quilibet habeat quatuor libras terre, tenement. vel reddit. per annum ad minus; This is their sufficiency, where the debt or damages (or both together, 1 Inst. 272.) amount to 40 Marks or above; The sufficiency of Jurors in other Cases of lesser moment, is still left to the discretion of the justices, 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 privileged 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 sufficiency in Attaints, see the Statutes, 15 H. 6. 5. 18 H. 6. 2. and 13 H. 8. 3.  
It is the general course of the World, to estéem men according to their Estate; For Quantum quisque sua nummorum servat in arca, Tantum habet et fidei; And sure I am, the makers of this Law, had cause enough to do so, in this Case; for if men of less Estates should serve in Juries, such Fellows would only be shifted into Inquests, as had more need to be relieved by the 8 d. then discretion to sift out the truth of the fact: 'Tis hard to act an  jury now; But surely, less rewards would sooner bribe and bias meaner men, than these. Therefore lest poverty or necessity should tempt: Every Juror must have 4 li. per annum, as aforesaid, of Fréehold, out of Ancient Demesne. And the Court may in matters of great consequence, 
Jurors of above 4 l. per annum.  direct a Venire facias, for a Jury of above 4 l. per annum, a piece, but not under Cro. 2. part. 672. But in such Cases (every one knows) the Court most commonly order the Prothonotary to choose 48. out of the Sheriff's Book of Freeholders, of the most substantial men in the County, and the parties strike out 12. a piece, than the Sheriff returns the rest.  
Et qui nec D.E. nec F.G. aliqua affinitate attingunt, the Law is very cautelous, 
Jurors must not be of affinity to the parties.  in not leading men into temptation: Therefore lest kindred and Affinity, should wrong the Conscience to help a friend, 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 Assize, or Goal-delivery in his own Country. 8 R. 2. 2. 33 H. 8. cap. 24. 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, etc.  
VIcinetum is derived of this word Vicinus, 
Visne.  and signifieth Neighbourhood, 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 Trial shall be, out of that Town, Parish, or Hamlet, or place known out of the Town, etc. within the Record, within which the matter of fact issuable is alleged, which is most certain and nearest thereunto, the Inhabitants whereof, may have the better, and more certain knowledge of the fact.  
And if the fact be alleged in quadam platea vocat. Kingstreet in parochia sanctae Margaretae in Com. Midd. In this Case the Visne cannot come out of Platea, 
Parish.  because it is neither Town, Parish, Hamlet, nor place out of the Neighbourhood, 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 alleged in Kingstreet, in the Parish of St. Margaret, in the County of Middlesex, then should it have came out of Kingstreet; for than should Kingstreet have been esteemed in Law a Town: For whensoever a place is alleged generally, in pleading (without some addition to declare the contrary, (as in this Case it is) it shall be taken for a Town. 
Town.   
And albeit parochia 
Parochia.  generally alledge● is a place incertain, and and may (as we see by experience) include divers Towns; yet if a matter be alleged in parochia, it shall be intended in Law, that it containeth no more Towns than one, unless the party do show the contrary. 
More. 55●.  But when a Parish is alleged within a City, there without question the Visne shall come out of the Parish, for that is more certain than the City.  
If a Trespass be alleged in D. and nul tiel ville is pleaded, the Jury shall come de Corpore Comitatus. 
De Corpora Comitatus.  But if it be alleged 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 alleged within a Manor, 
Manner.  the Jury shall come de vicineto Manerii. But if the Manor be alleged within a Town, it shall come out of the Town, because that is most certain, for the Manor 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.  

De Corpore Com.  Where there may be a special Visne, the Trial shall never be de Corpore Comitatus. Leon. 1 part. 109.  
In a real Action where the Demandant demands Land in one County, 
Heir tried where the Land lies, where not.  as Heir to his Father, and alleges his Birth in another County, if it be denied that he is Heir, it shall not be tried where the Birth is alleged, but where the Land lieth; 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 tried where the Birth is alleged, 
Cro. 3. part. 818. Cro. 2. part. 303.  because they have more certain Conusance, then where the Land lieth.  
And so it is where Bastardy 
Bastardy.  is alleged, the Trial shall be in like Case, Mutatis Mutandis.  
If the man plead the King's Letters Patents, 
Non concessit where the Land lies.  and the other party plead non concessit, it shall not be tried where the Letters bear date, for they cannot be denied, but where the Land lieth.  
Every Trial must come out of the Neighbourhood of a Castle, Manor, Town, or Hamlet, 
Visne.  or place known out of a Castle, Manor, Town or Hamlet, as some Forests, and the like, as before.  
Every Plea concerning the person, Plaintiff, 
Where the Writ is brought at Common-Law.  etc. shall be tried where the Writ is brought.  
When the matter alleged extendeth into a place at the Common Law, and a place within a Franchise, it shall be tried at the Common-Law.  
Matters done beyond Sea, may be tried in England, and therefore a Bond made beyond Sea, 
Matters done beyond Sea, how tryable in England.  may be alleged to be made in any place in England, if it beat date in no place; But if there be a place, as at Bordeaux in France, than it shall be alleged to be made in quodam loco vocat. Bordeaux 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 
Alien.  born, under the Obedience of the French King, and out of the Legiance of the King of England; the Demandant may reply, that he was born at such a place in England, within the King's 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 King's Allegiance. And if they have sufficient Evidence that he was born in England, or Ireland, or Jernsey, or Jersey, or elsewhere within the King's Obedience, they shall find that he was born within the King's Legiance: And this hath ever been the pleading, and manner of Trial, in that Case. So of other things done beyond Sea, 
Things done beyond Sea.  the adverse party may allege them to be done at such a place in England, from whence the jury shall come, and in a Special Verdict, 
Lib. 7.26.  they may find the things done beyond Sea. Ib. lib. 7.26.  
So when part of the act is done in England, and part out of the Realm, 
Part without the Realm, and part within.  that part that is to be performed out of the Realm, if Issue be taken thereupon, shall be tried here by 12. men, and they shall come out of the place where the Writ or Action is brought. Ib. lib. 6.48.  
Error, 
Full age tried where the Land lies.  for that judgement was given by default against the Defendant, being an Infant, Issue was taken that he was of full age. And Godfrey moved, whether the Trial should be in Norfolk, where the Land was, or in Middlesex, where the Action was brought. And the Court held, that it should be tried in the County where the Land lay; and Tanfield said, It was so adjudged in the King's Bench, between Throgmotton and Burfind. Cro. 3. part. 818.  
If the Venue arise in two Counties, the jury upon 2. Venire facias, shall come from both, 
This is called a joinder of Counties. Finch. 410.  6. out of one County, and 6. from the other. Cro 3. part. 646. but by consent of parties, entered upon Record, it may be by 5. out of one, and 7. from the other, 
Jury out of two Counties.  as appears, Cro. 3. part. 471. where in Replevin, the Defendant avows for damage pheasant; The Plaintiff by his Replication, claims common by prescription in loco quo, etc. being Broadway in the County of Worcester, appurtenant to his Manor 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 the parties, those 12. who appeared, by advice of all the justices, were sworn, and tried the Issue. And it was commanded, that this Assent should be entered upon Record; for otherwise it would be a strange Precedent.  
In an Action of Trover, apud Paxton in Com. Hunt. the Defendant pleads a Bargain and Sale, apud Royston in Com. Hertford, 
Covenant in P. to sell at ●. tried at P.  in the Market there, whereby he after converted them, apud P. in Com. Hunt, The Plaintiff saith, that he was possessed of those Goods, apud. P. in Com. Hunt. and that J. S. there stole them from him, and by Covenant betwixt him and the Defendant, at P. in Com. H. he sold them to the Defendant, as he hath pleaded: The Issue was upon the sale made by Covenant. etc. And it was tried in the County of Hunt. and found for the Plaintiff. And it was moved to be a mis-tryal; for it ought to have been by a jury of the County of H●rtford, or at leastwise by a jury, of both Counties; But it was adjudged to be well tried, because the sale is confessed, and the Issue is upon the Covenant alleged in Hertford, Cro. 3. part. 511.  

Usurous Contract in another County.  In Debt upon a Bond in London, the Defendant pleaded an usurious Contract in the County of Warwick; the Plaintiff replied, that the Bond was made upon good consideration, Absque hoc, that it was made for such usurious Contract: the Trial shall be in the County of Warwick; 
A Dures shall be tried there, not where the Action is brought.  for the Bond is confessed, and the usury in Warwick is only in question; so if the Issue be, whether the Deed were made by Dures, the Trial 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, 
Surrender.  it shall be tried where it was alleged to be done, and not where the Manor is, of which the Copyhold is holden, Ib. foe 260. Br. tit. Visne. 114.  
In an Assumpsit laid at London in Warda de Cheap, 
Ward or Hundred, no good Visue.  the Venire was De parochia. de Arcubus in Warda de Cheap, whereas no Parish was mentioned before in the Count, and adjudgad that the Venire was ill laid in the Count, for a Venire facias may be of a Town, Parish, Manor, or other place known, but not of a Hundred or Ward, ib. and so it is adjudged, ib. Cro. 1. part. 165. for the Ward in a City, is but as the Hundred in a County.  
Where the Visne is laid to be at a City, 
City.  in an Action brought in a superior Court, or within the City, though it be both a City and County, the Venire facias may be the 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. 129. say, that all Venire fac: are awarded the vicinet. Civitatis, which is intended as well de Civitate itself, as the vicinet. infra Jurisdictionem of the City. And so it is, 
Styles 2. March 125.  the vicinet. Civitatis, or the vicinet. or de Civitate Coventry, Eborum, Norwich, Sarum, Bristol, Exon, and all other Cities which are Counties in themselves; In all places besides London, 
London.  no mention is made of the Parish or Ward; Ib. 493. But in London, the Parish and Ward is mentioned. And therefore it was adjudged, Cro. 2. part. 150. That it was not good to allege any thing done in London generally; But it must be, in what Parish, from which a Venire may be; But where a thing is laid in a City, in alta Warda there, and the Venire facias is from the City 
City.  only, it is well, because it shall be intended there be no more Wards in the same City. Cro. 3. part. 282.  
A Venire facias was awarded from T. and not the vicinet. de T. and for this cause resolved to be ill, 
De vicinet. out, ill.  and not amendable. Cro. 2. part. 399. Bro. tit. Ven. fa. 8.  
If the Issue be Si rex Concessit per literas patentes, 
Where the Land lies.  The Trial 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, it shall be tried 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 Trial shall be where the Grant or Demise is alleged: But of a Feoffment, or Lease for life pleaded, the Issue being non Feoffavit, or non di●isit, Livery ought to be made, and therefore the Trial shall be where the Land lies. Cro. 2. part. 376. 3. part. 259.  
Where the offence is laid in the Count to be in one County, and the justification in another County, and the Plaintiff replies, 
Where the Action is laid in one County, and the Justification in another, the Trial shall be where the Justification is.  the injuri● sua propria, etc. The Visne shall be where the justification is alleged; As, one Example for all, to illustrate. In an Action upon the Case, for words supposed to be spoken at Bridg-North, in the County of Salop, th● Defendant pleads, that he spoke them as a Witness upon his Oath, upon an Issue tried at Chard, in the County of Somerset. The Plaintiff replies the son tort demesne, etc. And thereupon it was tried by a Venire facias of Bridg-north, And Error thereof assigned, because it ought to have been by a Visne of Chard, where the justification arose, and it was held clearly to be a mistryall; and not aided by the Stat. of Jeofailes, wherefore the judgement was reversed. Cro. 3. part. 468. 261. 870. More 410.  
In an Action of the Case against a Sheriff, upon an escape in London, and the Arrest laid to be in South-hampton; adjudged, 
Where the escape was, and not where the Arrest was.  that the Visne shall be where the escape was, because that is the ground of the Action, and not where the Arrest was. Cro. 3. part. 271.  
In Debt upon an Obligation, payment was pleaded, apud domum mansionalem Rectoriae de Much-Hadam, and the Venire facias was de vicineto de Much-Hadham, where it ought to have been the 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 alleged 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. but where it is at the Castle of Hartford, etc. 
Castell.  There the Venire facias shall not be de vicineto de Hartford; but de Castro de Hartford, for Castrum Hartford. is intended a distinct place by itself, and so of all Castles. Cro. 2. part. 239. More 862.  
Where the Issue is not parcel of the Manor 
Manor.  of D. or the Custom of a Manor is in question, the Venire ought to be of the Manor. Hob. 284. Cro. 2. part. 327. If the Manor be laid to be in a Vill. the Venire facias may be of the Manor in the Vill. as de vicineto manerii de Stansted Hall in Windham. Cro. 2. part. 405. More 851. Arundels' Case. li. 6. 14.  
In the Common Bench, in 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 Custom of London, which the Plaintiff refused to pay. The Plaintiff replied, that the Custom did not extend to him, 
London.  because he was a Freeman of the City, and ought not to pay Wharfage, to which the Defendant re-joined, that the Custom extended to him, as well as to strangers; upon which, Issue was joined.  
Resolved, 1. That the Issue should be tried per Pais, not by the mouth of the Recorder, 
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 Trials there, are by Fréemen. 
Where the trial shall be by the County next adjoining.  But it shall be to the County next adjoining, 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 adjoining. Hob. 85. Styles 137. More 871.  
Where a Man lends a Horse to another to till his Land, 
Where a man lends his horse in one place, and he is spoiled in another, Visne where he is spoiled.  and the Horse dies with excessive Labour, the Visne shall be from the place where the excessive labour was, and not where the delivery was. More 887. vide Hob. 188.  

Promise in one place, and breach in another. Visne guided by the Issue.  Where a promise is laid in o●● place, and the breach in another, t 〈◊〉 Visne must be according to the ev●● of the Issue, whether it be take● upon the promise, or breach. B●● if no place be alleged for th● breach, & Issue be taken upon it, t●● Visne must be from the place of the promise, which shall be intende● right, where the contrary appears not, see Godbolt 274.  
Easter 39 Eliz. In the King's Bench, Trespass, Assault and Battery, 〈◊〉 Wilts, continuing the Assault i● Middlesex, and adjudged that the Jurors shall come out of both Counties. More 538.  

Misnomer.  The name of a Manor, or Land, or other local thing, shall be tried where it lies, because it is local; but the name or a●dition of a person, shall be tried where the Action is brought, because this is transitory. Bro. ut. Visne 7. lib. 6. 65.  
In Covenant upon an Indenture of Demise of the Rectory of Stoken Church, in the County of Oxford. That the Defendant had good Power and Authority to demise: 
Where the Land lies.  The Indenture was alleged to be made at London, and the Venire facias was awarded to the Sheriff of Oxon, and this being assigned for Error, judgement was affirmed, and this adjudged to be good. More 710. because the Rectory was in Com. Oxon. Vide, pag. 45.  
Where the Parish 
Parish.  is named by way of denotation, or explanation of the place, where the Fact is alleged to be done, as at the Parish-Church of Hauk-hucknol, there the Venire facias shall be of the Town, not of the Parish. Bulstr. 1 part. 60. 61.  
If the Fact be alleged in King-street, 
Town.  in the Parish of St. Margar●●, in Com. Mid. You have already heard that the Visne shall be from Kingstreet, because it is intended to be a Town; but where it is alleged to be done at the Grays-Inn Hall, or Lincolns-Inn-Hall, etc. Holborn, the Visne shall be fro● Holborn, which is the Town; i● as Yeluerton said, 
Inns of Court.  it was never hea●● of any Venire facias to be had of 〈◊〉 of the Inns of Court, Bulstr. 2. p●●. 120. 
Not from house or hall.  especially of the Hall, beca●●● it cannot be of a House, much le●● of a Hall.  
In Ejectment upon a Demised made at Denham of Lands in par●chia de Denham predîct. The Visne may be of Denham, or of the Pari●● of Denham, because Denham & Parochia de Denham predict. are all 〈◊〉 by intendment of Law. Bulstr. 2. part. 209. More 709. Hob. 6. B●● when it appears by the Record, o● is intended that the Parish 
Parish.  is mo●● spacious than the Town, as the Case in More 837. where in Ejectment the Lease was alleged to be made at Bredon, of Tithes in W. and W. Hamlets within the Parish of Bredon, there the Venire facias un●● not be of Bredon, but of the Parish, because it appears, that the Parish extends further than the Town. Hob. 326.  
Where an Action of Debt for Rent, 
For Rent where the Land lies, and when not.  is brought upon the privity of the Contract, by the Lessor, as against the Lessee, or his Executors, for Arrearages due in the life-time of the Testator, the Visne may be laid in any place; but where the Action is brought upon the privity in Estate, as against the Assignee of the Lessee, or his Executors, for Rent due after the Testators death, the Visne must be, where the Lands lie. Lach misprinted, 197. li. 3. 24.  
Walkers Case, 
Debt for rent of Land in another County.  in Debt upon a Lease of Land in another County, Nihil debet, shall be tried 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 Bailiff, because that jocus in quo, etc. was holden of W. H. as of his Manor of Baildon, and upon Issue, horse de son fee, the Venire facias, was the vicineto de Baildon; and upon motion that the Venire facias ought to have been, as well from the Manor, as the Town. The Court adjudged it to be well enough, for that the Court shall not intent the Manor 
Manor.  was larger than the Town, because it doth not appear so to be, though possibly it might, as like the Case of Town and Parish. Hob. 305. 326.  
If the Sheriff return that there are no Fréeholders of that Visne, 
Visne next adjoining in what Cases.  or if the Visne be where the King's Writ runs not, as in the Cinque Ports, etc. or in a place where the men are privileged, from serving on Juries out of that place, as the Isle of Ely, etc. the Plaintiff may pray a Venire facias of the Visne next adjoining, and if the Visne be in Wales, 
Wales.  (ou b●iefe le Royne Court) the Venire facias shall be directed to the Sheriff of the next English County, to cause the Jury to come De propinquiori Visne of his County, to the Visne in Wales adjoining. Fitz. Abridg. tit. Visne 8. Jurisdict. 24.  
If the Visne is in some part misawarded, 
Visne misawarded in part.  or sued out of more places, or fewer places than it ought to be, so as some place be right named, this is aided by the Statute of Jeofailes, which hath ended the differences, in many Cases reported in our Books, concerning this point, wherefore I purposely omit them.  
Error, 
Infamy, where the Land lies.  for that the judgement was given by default against the Defendant, being an Infant, upon Issue that he was of full age, adjudged, that the Trial 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 entered of Record, it shall stand for Omnis Consensus tollit errorem. 1 Inst. 125.   

CAP. IX. Challenges.  
YOu have already seen of what Visne the Jury ought to be: The next thing to be considered, is concerning Challenges. And f●r this, I shall present you with my Lord Cooks Collection. 1 Inst. 156. The rather because he hath taken more pains in the gathering and methodizing this Learning, than any other one point whatsoever; And I know no Reason, wherefore I may not as well use his method, for the perfection of this Treatise, as he hath used other men's method and matter, (especially Perkins, whom he seldom citys) for the perfection of hi●: judgement hath the pre-eminence of Invention, and the Law hates nothing more than Innovation; wherefore I shall follow his method in the description of a Challenge, omitting the Book Cases, and Authorities cited by him.  
Challenge 
Challenge.  is a word common as well to the English as to the French, and sometimes signifieth to claim, and the Latin word is vindicate; sometime in respect of revenge to challenge into the field, and then it is called in Latin, 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 Latin word to signify 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 Calumnior, or Calumnia, which is derived of that, for that is of a quite other sense, signifying a false accuser, and in that sense, Bracton useth Calumniator 
Calumniator.  to be a false accuser: but it is derived of the old word Caloir, or Chaloir, which in one signification is to care for, or foresee. And for that to challenge Jurors, is the mean to care for or foresee, that an indifferent trial 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 men's lives, Fames, Lands, and Goods, are to be tried by Jurors, it is most necessary that they be Omni exceptione majo es, and therefore I will handle this matter the more largely.  

Challenge is twofold.  A Challenge to Jurors is twofold, either to the Array, or to the Polls: to the array of the principal Pannell, 
To the Array.  and to the array of the Tales. And herein you shall understand, that the Jurors names are ranked in the Panel 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, Battle array, 
Array.  for the order of the battle. And this array we call Arraiamentum, and to make the array, Arrairare, derived of the French word Arroier; so as to challenge the array of the Panel, is at once to challenge or except against all the persons so arrayed or impanelled, in respect of the partiality or default of the Sheriff, Coroner, or other Officer that made the Return.  
And it is to be known, 
Principal Challenges.  that there is a principal cause of challenge to the Array, and 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 Bailiff which returned the Jury, be under the distress of either party; or if the Sheriff or his Bailiff 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 fame cause, as for Kindred, or that he hath part of the Land, or the like; and where the array shall be challenged against the King, you shall read in our Books.  
By default of the Sheriff, as when the array of a Panel is returned by a Bailiff 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 jury within a Liberty, this is good, and the Lord of the Franchise is driven to his remedy against him.  
If a Péer of the Realm, 
Where there must be a Knight returned of the Jury.  or Lord of Parliament be demandant or Plaintiff, Tenant or Defendant, there must a Knight be returned of his jury, be he Lord Spiritual, or Temporal, or else the array may be quashed: but if he be returned, although he appear not, yet the jury may be taken of the residue. And if others be joined with the Lord of Parliament, yet if there be no Knight returned, the array shall be quashed against all. So in an attaint, there ought to be a Knight returned to the Iury.  
And when the King is party, 
Where the King is party.  as in travers of an Office, he that traverseth 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 tried by Tryors according to the usual course. The array challenged on both sides shall be quashed.  
And if two estrangers make a Panel, 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 Bailiff of a Liberty return any out of his Franchise, the array shall be quashed, as an array returned by one that hath no Franchise shall be quashed.  

Challenge to the favour.  Challenge to the array for favour: He that taketh this, must show 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 trial. 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 e converso, this (as hath been said) is a principal Challenge, 
For the King.  or the like. But where the King is party, one shall not challenge the array for favour, etc. 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, 
To me Array.  that the challenge to the array, is in respect of the cause of unind●fferency, or default of the Sheriff or other Officer that made the Return, and not in respect of the persons returned, where there is no unindifference or default in the Sheriff, etc. 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 endure favour, and for default of Hundredors'.  
Peremptory, this is so called, because he may challenge peremptorily upon his own dislike, 
Peremptory Challenge.  without showing of any cause, and this only is in case of Treason or Felony, in farem vitae; and by the common ●aw, the prisoner upon an Endict●nt or Appeal, might challenge ●hirty five, which was under the ●●her of the three juries; but now the Statute of 22 H. 8. the number 〈◊〉 reduced to 20. in petite Treason, ●urder and Felony; and in Case of ●●gh Treason, and Misprision of high Treason, it was taken away by the Stat. of 33 H. 8. but now by the Stat. of 1 & 2 Phil. & Mary, the Common Law is revived for any Treason, the prisoner shall have his Challenge to the number of 35. and so it hath been resolved by the justices, upon conference between them in the Case of Sir Walter Releigh and George Brooks: But all this is to be understood when any subject that is not a Péer of the Realm, is arraigned for Treason or Felony. But if he be a Lord of Parliament, and a Péer of the Realm, and is to be tried by his Péers, 
No Challenge of Peers.  he shall not challenge any of his Péers at all, for they are not sworn as other jurors be, but find the party guilty or not guilty, upo● their Faith or Allegiance to th● King, and they are judges of th● fact, and every of them doth separately give his judgement, 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 joint 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 showing 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 caetero licet pro Domino Rege dicatur quod ju●ores, etc. non sunt boni pro Re●● non propter hoc remaneant in●●sitiones, etc. sed ass●gnent certam ●●sam calumniae suae, etc. whereby 〈◊〉 King is now restrained.  
Principal, so called, 
Principal Challenge to the Polls.  because if it is found true, it standeth sufficient 〈◊〉 itself, without leaving any thing 〈◊〉 the Conscience or discretion of the Triors. Of a principal cause of challenge to the Array, we have hi● somewhat already; now it followeth with like brevity, to speak of principal Challenges to the Polls, (that is) severally to the persons returned.  
Principal Challenges to the Poll may be reduced to four heads. 
To the Polls.  first, Propter honoris respectum, for respect of Honour: Secondly Propter Defectum, for want or default: Thirdly, Propter Affectum, for affection or partiality; Fourthly, Propter Delictum, for Crime or Delict.  
First, Propter Honoris respectum As any Péer of the Realm, 
Principal Challenges to the Polls.  or Lo●● of Parliament, as a Baron, Viscount, Earl, Marquess, and Duke, for these in respect of Honour and Nobility, are not to be sworn 〈◊〉 Juries; and if neither party will challenge him, 
Propter honoris respectum.  he may challenge himself; for by Magna Charta it is provided, Quod nec super eum ibimus, nec super eum mittemus nisi per legale judicium parium suorum, aut per legem terrae. 
A Peer may challenge himself.  Now the Common Law hath divided all the subjects into Lords of Parliament, and into the Commons of the Realm. 
Peers and Commons.  The Péers of the Realm are divided into Barons, Viscounts, Earls, Marquesses and Dukes; The Commons are divided into Knights, Esquires, Gentlemen, Citizens, Yeomen, and Burgesses: And in judgement of Law, any of the said degrees of Nobility are Péers to another: As if an Earl, Marquess, or Duke, be to be tried for Treason or Felony, a Baron, or any other degree of Nobility is his Péer. In like manner, a Knight, Esq; etc. shall be tried per Pares, and that is by any of the Commons, as Gentlemen, Citizens, Yeomen, or Burgesses; so as when any of the Commonsis to have a Trial, either at the King's Suit, or between party and party, a Péer of the Realm shall not be impanelled 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. liberi tenementi. First, 
See before, Quorum quilibet habeat, 4 l. etc.  what yearly Fréehold a Inter aught to have, that passeth upon Trial of the life 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 Fréehold must be in his own right, in Fée-simple, Fee tail, for term of his own life, or for another man's life, although it be upon condition, or in the right of his Wife, out of ancient Demesne; for Fréehold within ancient Demesne will not serve, but the debt or damage amounteth not to 40. Marks, any Fréehold sufficeth. Thirdly, he must have Fréehold in that County where the cause of the Action ariseth, and though he hath in another, it sufficeth not. Fourthly, if after his return he selleth away his land, or if Cesty que vie, or his Wife dyeth, or an entry be made for the condition broken, so as his Fréehold be determined, he may be challenged for insufficiency of Fréehold.  
4. Hundredorum: First, by the common Law in a Plea real, mixed, and personal, 
Challenges propter defectum hundredocum.  there ought to be four of the Hundred (where the cause of Action ariseth) returned for their better notice of the cause; for Vicini vicinorum facta praesumuntur scire. And now since Littleton wrote, in a Plea personal, if two Hundredors' appear, it sufficeth; and in an Attaint, although the jury is double, yet the Hundredors' are not double. Secondly, If he hath either Fréehold in the Hundred, though it be to the value but of half an Acre, or if he dwell there, though he hath no Fréehold in it, it sufficeth. Thirdly, if the cause of the Action riseth in divers Hundreds, yet the number shall suffice, as if it had come out of one, and not several Hundredors' 
Hundredors'.  out of each Hundred. Fourthly, if there be divers hundreds within one Léet or Rape, if he hath any Fréehold, or dwell in any of those Hundreds, though not in the proper hundred, it sufficeth. Fifthly, if the Jury come de corpore Comitatus, or de proximo hundredo, 
No Hundredors'.  wh●re the one party is Lord of the Hundred, or the like, there need be no Hundredors' be returned at all. Sixthly, if a Hundredor after he be returned, sell away his Land within that Hundred, yet shall he not be challenged for the Hundred, for that this notice remains; otherwise as hath bée● said for his insufficiency of Fréehold, for his fear to offend, and to have Lands wasted, etc. which is one of the Reasons of Law, is taken away. Seventhly, he that challengeth for the Hundred, must show in what Hundred it is, and not drive the other party to show it. Eightly, his Challenge for the Hundred is not simpliciter, but secundum quid; for though it be found that he hath nothing in the Hundred, yet shall not he be drawn, but remain praeter H. that is, besides for the Hundred, and albeit he dwelleth, or have Land in the Hundred, yet must he have sufficient Fréehold.  

Challenges propter affectum.  3. Propter affectum: And this is of two sorts, either working a principal Challenge, or to the favour. And again a principal Challenge is of two sorts, either by judgement of Law, without any Act of his, or by judgement of Law upon his own Act.  
And it is said that a principal Challenge 
Principal Challenge.  is, when there is express favour, or express 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, 
Kindred.  as it were issued from the same blood; and this is a principal challenge, for that the Law presumeth that one Kinsman doth favour another, before a stranger, and how far remote so ever he is of kindred, yet the Challenge is good. And if the Plaintiff challenge a Juror for kindred to the Defendant, it is no Counterplea, to say that he is of kindred also to the Plaintiff, though he be in a nearer degree. For the words of the Venire facias, forbiddeth the Juror to be of kindred to either party.  
If a body politic or incorporate, 
Bodies Politic.  sole or aggregate of many, bring any Action that concerns their body politic or incorporate, if the Juror be of kindred to any that is of that body (although the body politic 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 his proper sense it is taken for that néerness 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 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 Plaintiff or Defendant marry the Daughter, or Cousin of the Juror, or the Juror marry the Daughter or Cousin of the Plaintiff or Defendant, and the same continues, or Issue be had. But if the Son of the Juror hath 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.  
If there be a Challenge for Cozenage, 
Cozenage.  he that taketh the Challenge must show how the Juror is Cousin. But yet if the Cozenage, 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 dependeth upon the same Title. 
Depending on the same Title.   
If a Juror be within the Hundred, Leet, or any way within the Seignory, immediately, or mediately, or any other distress 
Distress.  of either party, this is a principal Challenge. But if either party be within the distress of the Juror, this no principal Challenge, but to the favour.  
If a Witness 
Witness.  named in the Deed be returned of the Jury, it is a good cause of Challenge of him. So it is if one within age of one and twenty be returned, 
Infant.  it is a good cause of Challenge.  

Challenges arising from the Jurors own Act.  Upon his own Act, as if the Juror hath given a Verdict before, for the same cause, albeit it be reversed by Writ of Error, or if after Verdict, judgement were arrested. So if he hath given a former Verdict upon the 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, 
Former Verdict.  he that taketh the Challenge must show 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 show the day and term.  
So likewise one may be challenged, 
Indictment.  that he was Inditor of the Plaintiff or Defendant, either of Treason, Felony, Misprision, Trespass, or the like in the same cause.  
If the Juror be Godfather 
Godfather.  to the Child of the Plaintiff or Defendant, or e converso, this is allowed to be a good Challenge in our Books.  
If a Juror hath been an Arbitrator 
Arbitrators  chosen 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 chosen by one of the parties, for examination of Witnesses in the same cause, is no principal cause of challenge; 
Commissioner.  for he is made by the King under the great Seal, and not by the party as the Arbitrator is, but he may upon cause be challenged for favour.  
If he be of counsel, 
Counsel.  Servant, or of Robes, or Fee, or of either party, it is a principal Challenge.  
If any after he be returned, 
Eat or drink at the party's charge.  do eat and drink at the charge of either party, it is a principal cause of Challenge, otherwise it is of a Trior after he be sworn.  
Action brought either by the Juror against either of the parti s, 
Actions of malice.  or by either of the parties against him, which may imply malice or displeasure, are causes of principal Challenge, unless they be brought by Covyn, either before or after the return; for if Covyn be found, than 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, etc. More 3.  

Parson and Parishes.  In a cause where the Parson of a Parish is party, and the right of the Church cometh in debate, a Parishioner is a principal Challenge. Otherwise it is in debt, or any other Action where the right of the Church cometh not in question.  
If either party labour the Juror, and give him any thing to give his Verdict, 
To labour the Jury.  t●is is a principal Challenge. But if either party labour the Juror to appear, and to do his Conscience, this is no Challenge at all, but lawful for him to do it.  
That the Juror is a Fellow-Servant 
Fellow Servant.  with either party, is no principal Challenge but to the favour.  
Neither of the parties can take that Challenge to the Polls, 
To the Polls.  which he might have had to the Array.  
Note, if the Defendant may have a principal cause of Challenge to the Array, if the Sheriff return the Jury, 
Venire facias to the Cor●ners.  the Plaintiff in that case may for his own expedition, allege 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, than 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 alleged, and Process prayed to the Coroners, because he may challenge the Jury for that cause, and can be at no prejudice.  
Challenge concluding to the favour, 
Challenges to the favour.  when either party cannot take any principal Challenge, but showeth causes of favour, which must be left to the conscience and discretion of the Triors, upon hearing their evidence to find him favourable, or not favourable. But yet some of them come nearer to a principal Challenge then other. As if the Juror be of kindred, or under the distress of him in the reversion or remainder, or in whose right the avowry or justification is made, or the like: These be in principal Challenges, because he in Reversion, remainder, or in whose right the Avowry or justification is, is not party to the Record; otherwise it is, if they were made parties by aid, Rescript, or Vourcher, and yet the cause of favour is apparent; so it is of all principal causes, if they were party to the Record. Now the causes of favour are infinite, and thereof somewhat may be gathered of that which hath been said, 
Favour.  and the rest I purposely leave the Reader to the reading of our Books concerning that matter. For all which the rule of Law is, that he must stand indifferent as he stands ●●sworn.  
The Subject may challenge the Poles, where the King 
King.  is party. And if a man be outlawed of Treason or Felony, at the Suit of the King, and the party for avoiding thereof allegeth imprisonment, or the like, ●t the time of the Outlawry, though the Issue be joined upon a collateral point, yet shall the party have such Challenges, as if he had been arraigned upon the crime itself, for this by a mean concerneth his life also.  
Propter delictum, As if the Juror be attainted or convicted of Treason, or Felony, 
Challenges propter delictun.  or for any offence to life or member, or in attaint for a false Verdict, or for perjury as a Witness, or in a conspiracy at the Suit of the King, or in any Suit (either for the King, or for any subject) be adjudged to the Pillory, Tumbril, or the like, or to be branded, or to be stigmatic, or to h●ve any other corporal punishment whereby he becometh infamous, 
Infamous.  (for it is a maxim in Law, Repellitur a sacramento infamis) 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 Iury.  
See the Statutes of W. 2. and Artic. supra cartas, what persons the Sheriff ought to return on juries. 
Who ought to be on Juries.  And see F.N.B. breve de non ponendis in Assesis & 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. 
At what time Challenges must be taken.  First, he that hath divers challenges, must take t●em all at once, and the Law so requireth indifferent trials, and divers challenges are not accounted double. Secondly, if one be challenged by one party, if after he be tried indifferent, it is time enough for the other party to challenge him. Thirdly, after challenge to the Array, and trial duly returned, if the same party take a challenge to the Polls, he must ●●w cause presently. Fourthly, so if a juror be formerly sworn, if he be challenged, he must show cause presently, and that cause must rise ●●●ce he was sworn. Fifthly, when the King is party, or in an appeal of Felony, the Defendant that challengeth for cause, must show his cause presently. Sixthly, If a man in case of Treason or Felony, challenge for cause, and he be tried indifferent, yet he may challenge him peremptorily. Seventhly, a challenge for the Hundred must be taken before so many be sworn, as will serve for Hundredors', 
Hundredors'.  or else he loseth the advantage thereof.  
In a Writ of Right, 
Writ of Right.  the grand jury must be challenged before the four Knights, before they be returned in Court; for after they be returned in Court, there cannot any challenge be taken unto them.  
Nota. The Array of the Tales shall not be challenged by any one party, 
The Array of the Tales.  until the Array of the principal be tried; but if the Plaintiff challenge the Array of the principal, the Defendant may challenge the Array of the Tales. After one hath taken a challenge to the Poll, he cannot challenge the Array.  
Now it is to be seen how challenge to the Array of the principal Panel, or of the Tales, or of the Polls shall be tried, and who shall be tryors of the same, and to whom process shall be awarded.  
If the Plaintiff allege a cause of challenge against the Sheriff, the process shall be directed to the Coroners, 
Coroners.  if any cause against any of the Coroners, process shall be awarded to the rest, if against all of them, than the Court shall appoint certain Elisors, 
Elisors.  or Esliors (so named ab eligendo) because they are named by t●e Court, against whose return, no challenge shall be taken to the Array, because they were appointed by the Court, but he may have his challenge to the Polls. Note, if process be once awarded for the partiality of the Sheriff, though there be a new Sheriff, yet process shall never be awarded to him: for the entry is, Ita quod vicecomes se non intromittar. But otherwise it is, for that he was Tenant to either party, or the like.  
If the Array 
Array.  be challenged in Court, it shall be tried by two of them that be impanelled to be appointed by the Court: for the tryors in that case shall not exceed the number of two, 
Two Tryors.  unless it be by consent. But when the Court names two for some special cause alleged by either party, the Court may name others; if the Array be quashed, than process shall be awarded, ut supra. If there be a demur to a challenge, 
Demur to a Challenge, how determinable.  the judge before whom the cause is to be tried, may determine it, or adjourn it to be heard another time. Styles 464. Vide Bulstr. 1. part. 114.  

Array of the Principal and Tales.  If a Panel upon a Venire facias be returned, 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 Panel; but if the tryors affirm the Array of the principal, than they shall try the Array of the Tales. If the Plaintiff challenge the Array of the principal, and the Defendant the Array of the Tales, there the one of the principal, and the other of the Tales shall try both Arrays. For other matter concerning the Tales, see in Coke Reports matters worthy of observation. When any challenge is made to the Polls, two tryors shall be appointed by the Court, and if they try one indifferent, 
Two Tryors.  and he be sworn, then be and the two tryors shall try another: an● if another be tried indifferent, and ●e be sworn, t●en the two tryors cease, and the two that be sworn on the jury shall try the rest.  
If the Plaintiff challenge ten, 
Trial of Challenges.  and the Defendant one, and the twelfth is sworn, because one cannot try alone, there shall be added to him one challenged by the Plaintiff, and the other by the Defendant. When the trial is ●o be had by two Counties, the manner of the trial is worthy of observation, and apparent in our Books. If the four Knights in the Writ of Right be challenged, they shall try themselves, and they shall choose the grand Assize, and try the challenges of the parties. If the cause of challenges touch the dishonour, or discredit of the juror, 
Juror examined.  he shall not be examined upon his Oath, but in other cases he shall be examined upon his Oath, to inform the tryors. If an Inquest be awarded by default, the Defendant hath lost his challenge; but the Plaintiff may challenge for just cause, and that shall be examined and tried.  
Wheresoever the Plaintiff is to recover per visum juratorum, 
View.  there ought to be sir of the Jury t●a● have had the view, or known the Land in question so as he be able to put the Plaintiff in possession, if he recover.  

Challenges.  In Proprietate probanda, and a Writ to inquire for waste, the parties have 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.   

CAP. X. Of what things a Jury may inquire; when of espiritual; when of things done in another County, or in another Kingdom; when of Estoppels, and when not; when of a man's intent.  
THe next words in the Writ, which have not yet been taken notice of, are these, perquos rei veritas melius sciri poterit; And this is the chief end of their meeting together: 
Ex facta ja● oritur.  No Court can give a right judgement, unless the truth of the fact be certainly known; and to find out this truth, no way is like to this of juries': f●r 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 presumitur scire; But least 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 Enquest may inquire of, and find;  

Of the Law.  Wherefore, though it be true, that a jury shall not be charged, nor meddle with 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 many cases, the Jury are to inquire of the knowledge and intent of a man, 
Of a man's intent.  as where the Nar. is that the Defendant kept a Dog which killed the Plaintiffs Sheep, Sciens canem suum ad mordendas oves consuetum; there though Sciens be not traversable, yet the Jury upon Evidence must inquire of it. lib. 4. 18.  
In some Cases, 
Of spiritual things.  a Jury may try and find a spiritual thing, as a Divorce, Matrimony, etc. and must take notice thereof, upon pain of Attaint. lib. 4. 29. lib. 9 lib. 7 43. 
In Trespass Quare Clausum fregit, in the County of D. upon not guilty, If the Jury find the Defendant guilty in the County of S. their Verdict is void. But if they find him guilty generally, an Attaint lieth. Finch 400.   
The Jurors of one County, may find any transitory things done in another County: Nay sometimes they must find local things in another County, as if the Heir pleads ●iens per descent, and the Plaintiff replies, Assets in a Parish and Ward within London, the Ju●y may find Assets in any County; In the same c●se against an Executor, who pleads ple●e administravit, the Jury may likewise find Assets in any part of the World; 
Of things done in another County, or Country.  And the Reason is, because the place is only named for necessity of trial. But where the place is part of the Issue, it is otherwise. And therefore if I promise in one place to do a thing in another, and Issue is upon the b●each, the Jury ought to come from the place of the breach: But if I promise in London, to do a thing at Budeaux in France, and Issue upon the breach, yet this shall be tried in London for necessity, because otherwise it would want trial, and the Jury must inquire of the breach at Bordeaux. But if I promise in France, to do a thing in France, so that both Contract and performance is beyond Sea, this wants trial in our Law. lib. 6.47. li. 7. 23. 26. 27.  
The Jury may find Estoppels, 
Estoppels.  as the taking 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 Land dated 4 Aprilis, 24 Eliz. The Defendant pleaded, that the Intestate died 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 dicendum; 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, 
Estoppels.  or admittance be within the same Record, in which Issue is joined, than the Jurors cannot find any thing contrary to this, which the parties have affirmed, and admitted of Record, though it be not true: For the Court may give judgement 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.  
The Jury may find Deeds, or matter of Record, 
Records not showed.  if they will, though not showed in Evidence. Finch 400. They may inquire of things done before the memory of man. lib. 9 34.  
The Jury may find a Warranty, 
Warranty.  being given in Evidence, though it be not pleaded: Nay the Jury 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, and entered for the Condition broken: Though this cannot be pleaded without Deed, yet the Jury may find it. Lit. Sect. 366.  
But this matter comes more properly under the title Evidence; wherefore we will proceed to that.   

CAP. XI. Evidence.  
EVidence, 
Evidence.  Evidentia; This word in legal understanding (saith Coke 1. Inst. 283.) doth not only contain matters of Record, as Letters Patents, Fines, Recoveries, inrolments, 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, joined 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) perspicuae & facile intelligitur.  
And this Evidence (with Bracton) we may term probatio duplex, viz. viva, as Witnesses, viva voce; and Mortua, as by Deeds, Writings, and Instruments; and violenta presumptio, in many cases, is plena probatio, and therefore if all the Witnesses to a Deed be dead, than the Deed shall receive Credit, 
Presumption.  per collationem sigillorum Scripturae, etc. 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.  
Men that are so branded with Infamy, that they cannot be Jurors, (for which see before, who may be Jurors) cannot be Witnesses; The Wife cannot be a Witness for, or against her Husband, 
Who may be Witnesses.  neither can the party to the usurious Contract, be a Witness against the Usurer, in an Information upon the Statute of Usury. But Kinsmen never so near, Tenants, Servants, Masters, Counsellors, and Attorneys, & c. ●ay be Witnesses. A Counsellor, may be a Witness to the Agreement, etc. 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 recompense his damages. 5 Eliz. 9 If a Witness commit wilful perjury, he looseth 20 l. shall be imprisoned 6. months without bail, stand in the Pillory, and be disabled to be a Witness; so shall the suborner, who procures the perjury. 5 Eliz. 9  
Records 
Records.  prove themselves, and cannot be proved by Witnesses; but Copies of them must, and are good Evidence; and so may any thing done in the County-Court, Court-Baron, or Hundred-Court, etc. be proved by Witnesses.  
A Fine, 
Fine.  or common Recovery, may be given in Evidence, though it be not under the great Seal, or Seal of the Court, and without vouching the Roll of the Recovery; and the part indented is the usual Evidence that there is such a Fine, though they which saw the Fine, are also good Evidence. Plow. 410. Styles 22.  
Depositions 
Depositions.  in the Ecclesiastical Court cannot be given in Evidence, though parties be dead. March 120. A Defendants answer in an English Court, is good Evidence against him, but not against others. Godbolt, 326. Where the Evidence proves the effect and substance of the Issue, it is good.  
As upon plene administravit, if it be proved that the Execution hath goods of the Testators in his hands, 
Assets.  he may give in Evidence, that he hath paid of his own money for the Testator, to the value of those goods. Co. Lit. 283.  
So if a Lease 
Lease.  be pleaded, a Lease upon Condition is good Evidence. H. 8. 20. because the Genus com●rehends the Species. So of a Feoffment pleaded, a Feoffment upon Condition, or a Fine which is Feoffment of Record, is good Evidence. 44 E. 3. 39 A special Agreement, is evidence for an agreement. Plo. 8.  
But if a Feoffment 
Feoffment  be pleaded in Fee, upon Issue non feoffavit modo & forma, a Feoffment upon Condition is no Evidence, because it ●oth 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.  
Upon an Assumpsit to the Husband, an Assumpsit 
Assumpsit.  to the Wife, and his agreement, is good Evidence. 27 H. 8. 29.  
In Challenge 
Challenge.  to the Array, because made at the denomination of the Sheriff's Clerk, Evidence at his Bailiffs denomination, is good, because favourably made is the substance. 38 H. 6. 9  
If the Issue be a Suit against an Executor, Administrator, ●r Heir, Assets 
Assets.  in London; to prove Assets in any other place, is sufficient. li. 6. 47. Dyer 271.  
Account 
Account.  pleaded before two; Account before one, is good Evidence. Hob. 55. because the Account is the substance.  
Upon the general Issue, the Defendant may give any thing in Evidence, 
What Evidence upon the general Issue.  which proves the Plaintiff hath no cause of Action, or which doth entitle the Defendant to the thing in question.  
But if he hath cause of justification or excuse, it must be pleaded: wherefore upon non detinet, in detinue, the Defendant may give in Evidence a gift from the Plaintiff; for that proveth that he doth not detain the Plaintiffs goods; 
Detinue.  but he cannot give in Evidence, that the Goods were vawned to him for money, and that it is not paid, but he must plead it. 1 Inst. 283.  
Upon Not guilty, in Battery, 
In Battery.  Son assault demesne, is no Evidence; for thereby the Battery is confessed. Ib. neither is Not guilty, good Evidence ●pon Son assault demesne.  
Upon Not guilty, in Trespass, 
Trespass.  Insufficiency of the Plaintiffs mounds, or to justify for a Rent-Charge, Common, or the like, is no good Evidence. Ib.  
So upon the Plea, Nul wast fait, in 〈◊〉 Action of Waste, 
Wast.  he may give in evidence any thing that proveth it 〈◊〉 Waste, as by Tempest, by Lightning, by Enemies, etc. 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.  
Upon non est factum, 
Non est factum.  'Tis no Evidence, to show that the Bond was made upon an usurious Contract, or that the Sheriff's name is mistaken, etc. in a Bail-Bond, or that the Bond is joint, 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; this is good Evidence. li. 5. 119. 11. 27. If 'twere done before the Action brought; but if the Seal was broke off, etc. by chance, after Issue joined, the jury may find it specially.  
Upon Not guilty, in Trover 
Trover.  and Conversion, a Demand, and denial of the Goods, is good Evidence. Plo. 14. li. 10. 57 Cro. 1 part. ult. pub. 495. Hob. 187.  
Upon plene administravit, 
Plene. Administravit.  the Executor cannot give a judgement in Evidence. Kelw. 59 nor payment of Debts by Contract, in debt brought upon an Obligation, upon nil debet in Debt for Rent, That the Lessor entered into part of the Land, is no good Evidence. Goldf. 81. But, non demisit, is, 9 H. 7. 3.  
Upon Not guilty, in an Action upon the Statute de parco fracto, 
Parco fracto.  That the Plaintiff hath no Park, is good Evidence. 19 H. 8. 9  
So upon Not guilty, in Trespass, in the Plaintiffs Warren, 
Warren.  Evidence that he hath no Warren, is good. 10 H. 6. 17. Kitchen 119.  
A Shop-book 
Shop-books.  no evidence after a year. 7 Jac. cap. 12.  
In debt for Arrearages of an account 
Account.  upon Nil debot modo & for●●: No account is good Evidence. 1 H. 6. 26. Upon Not guilty in trespass, a Lose for years, 12 H. 8. 2. or that locus in quo, 
Trespass.  etc. is the Freehold of another, 4 E. 4. 5. is good evidence; but upon this he cannot ●●●tifie his entry upon the place by a stranger's Licence, or Command, be general Issue 81. because this is a justification by way of excuse: ●either is a Lease at Will, good evidence in this case.  
So upon not guilty, in trespass 
Not guilty in Trespass.  for goods, 'tis good evidence that the goods were a strangers. 9 H. 6. 11. But that they were a strangers, and that he as Servant to the stranger, or by his commandment, took them from the Plaintiff, is not good, br. general Issue 81. because the trespass is confessed. But that the stranger gave them to the Defendant is good. 9 H. 6. 11.  
If the Defendant plead payment to a Bond or Bill, 
Payment by presumption.  and it appears the debt is very old, and it hath not ●éen demanded, nor any use paid for it many years, common presumption is good evidence, that the money is paid, and the Juries use to find for the Defendants, in such cases.  

Trespass another day.  If the trespass were in truth done the 4th of May, and the Plaintiff allegeth the same to be done the ●th 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 jury by Witnesses, that there was such a Deed, 
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 showing 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.  
In Case against an Executor; 
Executor.  whereas the Testator was indebted to the Plaintiff, the Executor promised to pay the debt, in consideration the Plaintiff would forbear to sue him; the Executor may give in evidence upon Non assumpsit, that there was no debt, or that he had no assets tempore promissionis, for then there would be no Consideration. li. 9 94. William Banes Case.  
Evidence 
Evidence.  shall never be pleaded, but the 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 Manor is, that she shall have the Land during her life, after her Husband's death, because, though durante viduitate, imports an Estate for life, 
Estate for life.  yet an Estate durante vita, is more large & beneficial. li. 4. 30.  

What may be given in Evidence.  Things done before the memory of man, in another County, or in another Kingdom, may be given in Evidence to a jury, as Assets in another County, etc. More 47. See li. 4. 22. 9 27. 28. & 34. li. 6. 46, 47.  
Upon Issue, payment 
Payment.  at the day; payment before or after the day, is no Evidence. More 47. but upon Nil debet, it is good Evidence, because it proves the Issue.  
Upon Issue, Assets or no Assets, or seized, or not seized, if one give a Feoffment, etc. in Evidence, Covin 
Covin.  may be given in Evidence, by the other, but not if the Issue be enfeoffed, or not enfeoffed, for it is a Feoffment ●iel quel, though made by Covin. li. 5. 60. Hob. 72.  

Doomesd●ybook.  The Book of Doomsday brought in Court, is good Evidence to prove the Land, to be ancient Demesne. Hob. 188.  
In Attaint, 
Attaint.  the Plaintiff shall not give more evidence, nor examine more Witnesses; than was before, but the Defendant may. Dyer 212.  
Copies of the Court-Rolls, 
Court-Rolls for Copy-holders'.  are the only 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 Coke explains the Text, and says. This is to be understood of Evidences of Alienation; for a Release of a right by Deed. A Copyholder (that cometh in by way of admittance) may have, and that is sufficient to extinguish the right of the Copyholder which he that maketh the Release had.  
In Actions upon the Case, trespass, battery, or false in risonment against any justice of Peace, Maior, or Bailiff 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 Majesty's 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 aid or assistance, or by their Commandment, etc. They may plead the general Issue, an● give the special matter of their excuse, or justification in Evidence. 7 Jac. cap. 5.  
General Acts of Parliament, may be given in Evidence, 
Statutes.  and need not be pleaded; and so may general Pardons given by Parliament, if t ey be without Exceptions; But commonly advantage of the Act is given by the Act itself to the offender, 
Pardons.  without pleading it, as by the late (most truly so called) general act of Indemnity, every person thereby pardoned, may pled the general Issue, and give the Act in evidence, for his discharge, which are general, and which particular Statutes, see lib. 4. 76.  
Upon not guilty in Trover, 
Trover.  the Defendant may give in Evidence, that the goods were pawned to him for 10 l. That he distrained them for Rent, or damage pheasant, That as Sheriff, he levied them upon Execution, or that he took them, as Tithes severed. Cro. 1 part. 157. 3 part. 435. Hob. 187.  
If there be two Batteries between Plaintiff and Defendant, 
If there be two Trespasses, and the Defendant pleads a Justification; if the Plaintiff replies de injuria sua propria, etc. he cannot give in Evidence a Trespass at another time; But he should have replied, that at another time, in the same day of his Count, the Defendant did the other Trespass, etc. 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, etc.  at divers times, the Plaintiff is bound to prove the battery made the same day in the Declaration, and shall not be admitted to give another day in evidence, as the case may be. As in Battery, the Defendant pleaded, son assault Demesne, and the Plaintiff replied, 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 Tithes in Bocking Pa●k in Essex, and furmised, that the Lands were parcel of the possessions of the priory of Christ's Church in Canterbury, and that the said Pryor & his Predecessors had held it discharged of Tithes tempore dissolutionis, and pleaded the Statute of 31 H. 8. 
A non Decimando.  The Defendant pleads, that the Prior and his Predecessors, did not hold them discharged, and upon Issue joined thereon, the Evidence was, that the Prior, or his Predecessors, time out of mind, etc. never paid Tithes; but no cause was shown, 
In nil debet, upon the Statute for tithes, a Lay person cannot give a Non decimando in evidence, so may the King, and any other spiritual persons. li. 2. B. of Winchester's Case.  either by ●nity of possession, real Composition, or other cause to show it discharged; Coke 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 refert, by what means; for it shall be intended by lawful means, & the jury afterwards found for the Plaintiff. Cro. 3. part. 206.  
Upon non assumpsit, in a general Indebitatus assumpsit, 
Indebitatus ass●mpsit.  the Defendant may give in evidence, payment at any time, before the Action brought, but upon a special promise to pay money, etc. it is otherwise, Causa patet; for in the first Case, if there be no debt, the Law will infer no promise.  
If a Church-Book, or any thing else is given in evidence, which ought not to be allowed, the Court above cannot quash the Verdict, except it be certified and returned with the Postea. 
Postea 26. Assize. pl. 4.  Brownlow. 1 part. 207. But the Court may order a new Trial, upon cause showed, as for excessive damages, etc.   

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

Assize, Enquest, and Proof, are taken fo● the word Jury. vide 28 E. 3. 23.  THe jury having heard their Evidence, 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 ●hould have had it before the Evidence, but that the form and order ●f the Venire facias, (which I have ●ed myself to follow,) Leads me 〈◊〉 it after their Evidence, in these words; Add faciend, quandam Juraam; I have already shown 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, 
1 Inst. 154.  is sometimes taken for a Jury, so as the Learned Commentator doth well paraphrase, That the word Assize, 
Assisa for Jurata.  is Nomen Aequivocum Aequi●ocan●, because sometime it signifieth a Jury, sometime the Writ of Assize, and sometime and Ordinance, ●r Statu●e; But Jurata, is Nomen ●quivocum Aequivocatum, because we always understand that word (according to the aforesaid definition) to be a Iu●y of twelve men, 
The Juri●. Oath.  so called, by reason of the Oath they take, Truly to try the Suit of Nisi prius, between party and party, according to their Evidence.  

Why called Recognitors in an Assize, and Jurors in a Jury.  And as in an Assize, the Jurors are called Recognitors, from these words in the Writ of Assize, facere Recognitionem; so upon a Nisi prius, they are called Juratores, from these words in the Venire facias, Ad faciend. quandam Juratam.  
In ancient time, the Jury, as well in Common Pleas, as in Pleas of the Crown, were 12. Knights, 
12 Knights.  as appears by Glanvill, lib. 2. cap. 14. and Bracton, fol. 116.  
The next words of the Venire facias, are Inter parts predictas. In the fourth Chapter, I have instanced, That in some Cases, a jury shall be awarded betwixt the party, and a stranger to the Writ, and Issue; I will now show what the jury shall be, when one of the parties is an Alien, the other a Denizen; and when both parties to the Issue are Aliens.  
This Trial is called in Latin, Triatio bilinguis, 
Jury per medietatem linguae.  or per medietatem linguae. And this Trial 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 Lum●●rds, or Almains, or to any other Company, that when any of them ●as impleaded, the moiety of the ●nquest should be of their ow●●●ngue. Stan. Plea, Cor. lib. 3. cap. 7.  
And this Trial in some Cases, 
●●s antiquity.  per medietatem linguae, was before the Conquest, ●s appears by Lamb. fol. 91.3. Viri duo●oni Jure consulti, Anglie sex, Walliae totidem, Anglis & Wallis Jus dicanto. And of ancient time, it was called Duodecim virale Judicium. 1 Inst. 155.  
But afterwards, this Law became universal: first by the Statute of 27 Ed. 3. cap. 8. It was Enacted, that in Pleas before the Mayor of the Staple, if both parties were strangers, the Trial should be by strangers. But if one party was a stranger, and the other a Denizen, than the Trial 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 th● Mayor of the Staple. But afterwards, in the 28th Year of the sam● King's Reign, cap. 13. It wa● Enacted,  
That in all manner of Inquests and proofs, which be to be taken or made amongst Aliens, and Denizens, be they Merchants, or other, as well before the Mayor 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 Inquests or proofs ought to be taken: And if there be not so many Aliens, then shall there be put in such Inquests 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 suspicious to the one party, nor to the other.  
So that this is the Statute which makes the Law universal, 
King.  concerning the medietatem linguae; for though the King be party, yet the Ali●n may have this Trial. And it matters not, whether the Moiety of Aliens, be of the same Country as the Alien, party to the Action, is: for he may be a Portugal, and they Spaniards, etc. because the Stat. speaks generally of Aliens. See Dyer 144.  
And the form of the Venire facias, 
Venire facias, pe● medietatem linguae  in this Case is De vicenet. etc. Quorum una medietas sit de Indigenis, & altera medietas sit de alienigenis natis, etc. 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 helped 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 Trial per medietatem linguae, because any Aliens of any tongue may serve. But under his favour, I think it proper enough.  
For people are distinguished by their Language, and Medietas Linguae, is as much as to say, half English, and half of another tongue or Country whatsoever, though it be not material of what sufficiency the Jurors are, yet the form of the Venire facias, shall not be altered, but the Clause of Quo●um quilibet habeat, 4 l. etc. shall be in, Cro. 3. part. 481.  
But suppose that both parties be Aliens, of whom shall the Inquest be then? It is resolved, that the Inquest shall he all English; for though the English may be supposed to favour themselves more than strangers, yet when both parties ●●e Aliens, it will be presumed, they favour both alike, and so indifferent. 21 H. 6. 4.  
Where an Alien is party, 
All English.  yet if ●he Trial be by all English, it is ●●terroneous, because it is at his ●●ill, if he will slip his time, and ●●t make use of the advantage ●hich the Law giveth him when he ●hould. Dyer 28.  
The Alien aught to pray a Venire ●●cias, per medietatem linguae, 
When that Alien should pray a Venire facias per meditatem.  at the ●●me of the awarding the Venire fa●●●: But if he doth it at any time afore a general Venire facias be re●●ned and filled, the Court may ●●●t him a Venire facias, de novo. Dyer 144. 21 H. 7. 32. though it ●●th been questioned.  
But if he hath a general Venire ●●as, he cannot pray a Decem tales, 
Tales.  〈◊〉 per medietatem linguae, upon ●●s; because the Tales ought to ●●rsue the Venire facias. 3 E. 4.11, 2. And so if the Venire facias be 〈◊〉 medietatem linguae, the Tales ought to be per medietatem linguae, 
Tales.  as if 6. Denizens, and 5. Aliens appear of the principal jury, 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 been held good enough; for there being no exception taken by the Defendant, upon the awarding thereof, it shall be intended well awarded. Cro. 3. part. 818. 841.  
If the Plaintiff or Defendant be Executor or Administrator, etc. though he be an Alien, yet the Trial shall be by English, because he sueth in aut droit; 
Where the trial of an Aliens cause shall he by English.  but if it be averred that the Testator, or intestate, was an Alien, than it shall be per medietat. linguae. Cro. 3. part 275.  
Mich. 40. & 41 Eliz. The Queen's Attorney exhibited an Information against Bar, 
Part English, and part Aliens.  and divers other Merchants, some whereof were English, and some Aliens: After Issue, the Aliens prayed a Trial per medietat. linguae. But all the justices of England resolved, that the Trial should be by all English, and likened it to the case of privilege, where one of the Defendants demands privilege, and the Court, us to his Companion cannot hold Plea, there he shall be ousted of his privilege, sic hic. More 557.  
By the Statute of 8 H. 6. cap. 29.19. 
Challenge.  Insufficiency, or want of Fxée●●ld, is no cause of Challenge to Aliens, who are impanneled with the Aliens, (notwithstanding Stamford's Opinion. Pl. Coron. 160) for this Statute saith, that the Stat. 2. H. 5. 3. shall extend only to Enprests betwixt Denizen and Denizen.  
If the Defendant do not inform the Court that he is an Alien, 
When the Alien should pray a Venire facias per medietatem.  upon ●●arding of the Venire facias, and ●o pray a Venire facias, per medieta●●● linguae; he cannot challenge the Array for this cause at the Trial, ●f the jury be all Denizens (notwithstanding Stamfords' Opinion to ●he 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.   

CAP. XIII. The Learning of General Verdicts, Special Verdicts, Privy Verdicts, and Verdicts in open Court; and where the Inquest shall be taken by default.  
VErdict 
Verdict.  or Verdict; In Latin, Vere dictum, quafis 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 judgement of the Court is built, for ex facto jus oritur; the Law ariseth from the fact; Wherefore it is no wonder, that the Law hath ever been so curious, and cautelous, as not to believe the matter of fact, until it is sworn by 12. sufficient men, of the Neighbourhood where the fact was ●●ne, whom the Law supposeth to ●●ve most cognisance of the truth, or falsehood thereof: which being sworn (for the words are, Jurato●es predict. dicunt super sacrum suum, 
The Credit of Verdicts.  etc.) is the Verdict, whereof we now ●eat; And such credit doth the ●aw give to Verdicts, that no proof ●ll be admitted to impeach the verty thereof, so long as the Verdict stands not reversed by Attain; and ●herefore upon an Attaint, no Super●deas is grantable by Law. Plo. Com. 496.  
And it is worth our observation, ●●t the Law seems to take more ●●●e of the fact, then of herself; for the Major part of the judges give ●he judgement of the Law, though ●he other judge's dissent. But ●very one of the 12. jurors must agree together of the fact, before there can be a Verdict, which must be delivered by the first man of the Iury. 29 Assize. pl. 27.  

General or special.  And this Verdict is of two kinds, viz. one general, and the other special, or at large.  
The general Verdict, 
General Verdict.  is positively, either in the Affirmative, or Negative, as in Trespass, upon Not guilty pleaded; The jury fined Guilty, or Not guilty; And so in an Assize of Novel disseisin, brought by A. against B. The Plaintiff makes his plaint, Quod B. disseisivit eum de 20 acris terrae, cum pertinentiis, The Tenant pleads, Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit, etc. The Recognitors of the Assize do find, Quod predict. B. in just & fine judicio disseisivit predict. A. de predict. 20 acris terrae cum pertinentiis, etc. This is a general Verdict. 1 Inst. 228.  
A Special Verdict, 
Special Verdict.  or Verdict at large, is so called, because it findeth the special matter at large, and leaveth the judgement of the Law thereupon, to the Court, 
1 Instit. 226.  of which 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 cannot refuse a Special Verdict, 
The Court cannot refuse it.  if it be pertinent to the matter in Issue. 1 Inst. 228.  
It hath been questioned, 
A special Verd ct may be found upon any Issue, as upon an eisque hoc, etc.  whether the jury 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 jury may give a special Verdict, and find the matter at large, en chescun issue en le monde, so that the matte● found at large, tend only to the Issue joined, 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 been resolved, that in all Actions, real, personal, and mixed, and upon all Issues joined, general or special, the jury might find the special matter of fact, pertinent, and tending only to the Issue joined, and thereupon pray the discretion of the Court for the Law. And this the jurors might do at Common Law, not only in Cases between party and party, but also in Pleas of the Crown, at the King's Suit, which is a proof of the Common Law. And the Statute of Westm. the 2d cap. 30. is but an affirmitive of the Common Law.  
And as this special Verdict is the safest for the jury, 
A  upon Condition, without Deed, may be sound by Verdict, though it cannot be pleaded.  1 Inst. 228. so in many Cases it is most advantageous 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 Fréehold, without showing writing of this; yet a man may be aided, upon such a Condition, by the Verdict of 12. men, taken at large, in an Assize of Novel disseisin, or in any other Action, where the justice will take the Verdict of 12. jurors at large: As put the case, a man seized of certain Land in Fee; letteth the same Land to another, for term of life, without Deed, upon Condition to tender to the Lessor, a certain Rent, and for default of payment, a Reentry, etc. By force whereof the Lessée is seized as of Fréehold; and after, the Rent is behind, by which the Lessor entereth into the Land, and after the Lessée arraign an Assize of Novel disseisin, of the Land against the Lessor, who pleads that he did no wrong, nor Disseisin. And upon this, an Assize is taken. In this case, the Recognitors of the Assize may say, and render to the justices, their Verdict at large, upon the whole matter; as to say, that the Defendant was seized of the Land, in his Demesne as of Fee, and so seized, let the same Land to the Plaintiff, for term of his life, rendering to the Lessor such a yearly Rent payable at such a Feast, etc. Upon such Condition, that if the Rent were behind at any such Feast, at which it ought to be paid, than it should be lawful for the Lessor to enter, etc. By force of which Lease, the Plaintiff was seized in his Demesne, as of Fréehold, and that afterwards, the Rent was behind, at such a Feast, etc. By which the Lessor entered into the Land, upon the possession of the Lessée. And pray the discretion of the justices, if this be a Disseisin done to the Plaintiff, or not. Then, for that it appeareth to the justices, that this was no Disseisin to the Plaintiff, insomuch, as the Entry of the Lessor was congeable on him, The justices ought to give judgement, that the Plaintiff shall not take any thing by his Writ of Assize, and so in such case, the Lessor shall be aided, and yet no Writing was ever made of the Condition: For as well as the jurors 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 manor it is of a Feoffment in Fee, or a gift 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, etc. In the same manner it is of a Writ of Entry, founded upon a Disseisin, and in all other Actions, where the justices will take the Verdict at large, there where such Verdict at large is made, the manner of the whole Entry is put in Issue.  
Also in such case, 
General Verdict.  where the Enquest may give their Verdict at large, if they will take upon them the knowledge of the Law upon the matter, they may give their Verdict generally, as is put in their charge, as in the case aforesaid, they may well say, that the Lessor did not disseise the Lessée, if they will, etc.  
The jury 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 died 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 jury found that the Defendant delivered it as his Deed 30 July, Anno 23 Eliz. and found the Tenor of the Deed in haec verba, Noverint unive●si, etc. Dat. 4. Aprilis, Anno 24 Eliz. And that the Defendant was alive 30 July, Anno 23. Eliz. And that he died 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 judgement was, That although the Obligée, in pleading, cannot allege the delivery before the date, 
Note, that a Deed may be pleaded to be delivered after the date, but not before, because it shall not be intended, written before the date, which may be after the date, 12 H. 6. 1. ●  as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law, because he is estopped to take an averment against any thing expressed in the Deed; yet the Jurors, who are sworn ad veritatem dicend. shall not be estopped. For an Estoppel is to be concluded to speak the truth, and therefore Jurors cannot be estopped, because they are sworn to speak the truth.  
But if the Estoppel or Admittance, 
As in Waste supposed in A. to plead that A is a hamlet in B. and not a Town of itself, adm●●teth the Waste, etc. 9 H. 6. 66. and the Jury cannot find no Waste, for that would be against the Record.  be within the same Record in which the Issue is joined, 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 judgement upon a thing confessed by the parties, a●d 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, 
Estoppel.  which bind the Interest of the Land, as the taking of a Lease of a man's own Land, by Deed intended, and the like, being specially found by the jury, 
Cro. 1. pa●t. 110. Lib. 4 53.  the Court ought to judge, according to the special matter; for albeit, Estoppels regularly must be pleaded and relied upon, by apt conclusion, and the jury is sworn ad veritatem dicend. yet when the find veritatem facti, they pursue well their, Oath, and the Court ought to adjudge according to Law. So may the jury find a Warranty, being given in evidence, though it be not pleaded, because it bindeth the right, 
Warranty not pleaded.  unless it be in a Writ of Right, when the Miso is joined upon the mere right. 1 Inst. 227.  
Verdicts ought to be such, that the Court may go clearly to judgement thereon; 
Uncertain Verdicts.  and therefore Verdicts finding matter incertainly, or ambiguously, are insufficient and void, and no judgement shall be given thereupon: As if an Executor plead Plene Administravit, and Issue is joined thereon, and the Jury find that the Defendant hath Goods within his hands to be administered, 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 show t e verity of the fact, 
The Office of the Jury.  and leave the judgement of the Law to the Court. And therefore upon an Indictment of murder, quod felonice per cussit, etc. If the jury find per cussit tantum, yet the Verdict is good, for the judges of the Court are to resolve upon the special matter, whether it was felonice, and so murder, or not. li. 9 69. And if the Court adjudge it Murder, than the Jurors in the conclusion of their Verdict, find the Felon guilty of the murder contained in the Indictment.  
A Verdict that finds part of the Issue, 
Verdict finding part of the Issue.  and finding nothing for the rest, is insufficient for the whole, because they have not tried the whole Issue, wherewith they are charged; 
More 406.  As if an Information of intrusion, be brought against one, for intruding into a Message, and 100 Acres of Land, upon the general Issue, the jury find against the Defendant for the Land, but say nothing for the House, this is insufficient for the whole.  

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

Where the Verdict ought to be of more than is in the Issue.  Yet in many Cases, (nay almost in all) the jury 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 it be not part of the Issue in terminis. li. 10. 119.  
So in Trespass against two, one ●●ines, and pleads Not guilty, 
Damages by the first Inquest.  and ●s found guilty. In this case, the ●rst Inquest shall assess damages ●n the whole Trespass, by both Defendants; and afterwards, the ●ther comes, and pleads Not guilty, ●d is found guilty: The fin●ing ●f Damages by the first Inquest, to which he was not party, shall bind ●im; and therefore if the Damages are outrageous, and excessive, ●he Defendant in the last Enquest, ●hall have an Attaint. 
Attaint.  li. 10.119.  
So in Trespass, Quare clausum ●egit, if Issue be joined upon a Feoffment, and the Jury give outrageous Damages, An Attaint lies; for ●e inquiry of Damages is conse●eat and dependant upon the Is●ae, and parcel of their charge. ib.  
In the 11th Report, fo. 5. It was resolved, 
Damages by the first Inquest.  that in Trespass against too, where one comes and appears, etc. against whom the Plaintiff declares with a simul Cum, etc. 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 joint 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.  

Several damages.  So in Trespass against divers Defendants, 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 joint 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 between the finding of the Jury, and the confession of the party.  
And in trespass, where the Defendants plead several Pleas, all tryable by one Jury, and they find generally for the Plaintiff, the Jurors cannot sever the Damages; if they do, their Verdict is vicious.  
But in trespass against two, 
Judgement de melioribus dampnis.  where one appears, and pleads not guilty to a Declaration against him, with a simul Cum, etc. and afterwards the other appears, and pleads not guilty to a Declaration against him also, with a simul Cum, etc. Whereupon two Venire fac. issue out, and one Issue tried after the other, and several Damages assessed: in judgement of the Law, the several Juries give one Verdict, all at one time, and the Plaintiff hath his Election to have judgement de melioribus dampnis, by any of the Inquests. And this shall bind all, but fiat nisi unica Executio.  
It is a Maxim, that in every case where an Inquest is taken by the Mice of the parties, by the same Inquest shall damages 
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, 
Writ of Inquiry.  which was Recorded, There it is Resolved by all the Court, that for saving of a Discontinuance, a Writ of Enquiry of Damages shall be awarded, but none shall issue out, because he shall be contributory to the damages taxed by the Inquest, at the Mice of the parties, if it be bound for the Plaintiff; and if it be found against the Plaintiff, than the Writ of Enquiry shall issue forth.  
And the Reason wherefore no Writ shall issue out at first, to inquire of damages until, etc. is, because that if a Writ should issue out, and be executed, this is nothing but an Inquest of Office, and not at the Mice of the parties, and yet this Inquiry (if it might be allowed) ought to serve for all the damages; For inquiry of damages, shall not be twice, and the others which have pleaded to Inquest, if the Issue be found against them, shall be chargeable to those damages which are found by the Inquest of Office, and if they be excessive, they shall have no remedy, although there be no default in them; for they cannot have an Attaint, because it is but an Inquest of Office.  
But in trespass against two, 
Damages by the first Inquest.  who plead not guilty, etc. 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.  

Verdict, when to be supplied, by Writ of Inquiry, etc.  Now let us see, when something is lest out of the Verdict which the Jury ought to have inquired of, whether it may be supplied by matter expost facto; and how: And for this, know, that if damages be left out of a 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, aught to inquire of any thing, upon which no Attaint lies, There the omission of this, may be supplied by a Writ of Inquiry of damages; as in a Quare impedit, if the Jury omit to inquire of these 4. things, that is to say, de plenitudine, ex cujus presentatione, si tempus semestre transierit, and the value of the Church per annum, there the Plaintiff may have a Writ to inquire of these points. Dyer 241. 260. because of these no Attaint lies, as it is holden in 11 H. 4. 80. because that as to these, the Inquest is but of Office. But in all cases, where any ●oint is omitted, whereof an Attaint lieth, there this shall not be supplied by Writ of Inqui●y, upon which no Attaint lieth. And therefore in Detinue, if the Jury find Damages and Cost, and no value, as they ought, this shall not be supplied by Writ of Inquiry of damages, for the Reason aforesaid. Ib. Et sic in similibus.  
But how then? What, 
Verdict set aside, because the damages not well assessed.  shall the Plaintiff lose the benefit of his Verdict, because t●e Jury assessed no damages, (or did insufficiently assess them)? Cerres in such Cases where damages only are to be recovered, he must lose the whole benefit of his Verdict; but where any thing else is to be recovered, besides damages, as in Debt, Ejectment, etc. he may release his Damages, and have judgement 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 judgement for those damages well assessed. And oftentimes the insufficiency of the Declaration shall set aside the Verdict; 
Verdict set aside in part.  as if an Action upon the Case be brought upon two promises, and one of them be insufficiently laid, and the Verdict give entire Damages, this is naught for the whole; But if the Damages had been severally assessed upon the several premises, than 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 descended to issue, which was tried for the Plaintiff, and the Arrearages found, etc. But the jurors did not assess any damages, or Cost; which Verdict was insufficient, and could not be supplied by Writ of Inquiry of damages; wherefore the Plaintiff released his damages, and costs, 
Release of damages where none were assessed.  and upon this had judgement: upon which the Defendant brought a Writ of Error, and assigned the Error aforesaid, scil. the insufficiency of the Verdict; sed Judicium affirmatur, because the Plaintiff had released his damages and costs, which is for the benefit of the Defendant.  
In Dyer 22 Eliz. 369. 370. 
Release of damages where they were not well assessed.  In a Writ of Ejectione Custodiae terrae & haeredis, the jurors assessed damages entirely, which was insufficient; for it lay not for the Heir, yet the Plaintiff released his damages, and had judgement for the Land: And Note, that insufficient assessment of damages, and no assessing, is all one.  

Damages and Costs.  The jury ought to assess no more damages pro injuria 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 intoto se attingunt cum. etc.  

More damages than the Plaintiff declares for.  But if the jury do assess more damages than the Plaintiff declares for, the Plaintiff may remit the overplus, and pray judgement for the residue, as in the 1●th Report, fol. 115. in Trespass the Plaintiff declared ad dampnum etc. 40 l. at the trial of the jury assessed damages occasione transgressionis predict. ad 49 l. and for costs of suit 20 s. upon which Verdict, the Plaintiff at the day in Bank, remitted 9 l. parcel of the said 49 l. assessed for damages, and prayed judgement for 4● l. (to which damage he had counted) with increase of Costs of suit, 
Damages remitted.  and had 9 l. de Incremento, added by the Court, which in all amounted to ●0 l. and had his judgement accordingly: upon which, a Writ of Error was brought, and the judgement affirmed.  
For as in real actio●s the Demandant shall not count to Damages, etc. because it is incertain to what sum the damages will amount, by reason he is to recover damages pendant le brief; so in the case of Costs, he shall recover for the expenses depending the suit, which being uncertain, cannot be comprehended in the Count, because the Count extends to damages past, 
Damages in real and personal actions.  and not to expenses of suit. For in personal actions, he counts 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 brief. But in real actions, the Demandant never counts to damages, because he is to recover damages also, pendant le brief, which are incertain.  
The jury may if they will, assess the damages and costs entirely together, 
Damages and Costs entirely assessed.  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 1● H. 7. 16. 17. One Darrel brought a Writ of Trespass, and counted to his damage 20. marks; the Defendant pleaded not guilty, and the jury taxed the damages and costs of suit jointly 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 〈◊〉 to increase the cost; where●●e he shall have judgement but ●20. marks, by reason of the incertainty.  
Where a special Verdict is not ●●tred according to the Notes, 
Verdict amended by the notes.  the ●●cord may be amended, and made agree with the notes at any time, ●●ugh it be 3, or 4, etc. Terms af●●r it is entered. lib. 4. 52. lib. 8. 162. ●●o. 1 part. 145.  
If the matter, 
Form. Hob. 54.  and substance of ●●e Issue be found, it is sufficient; ●●r precise forms are not required ●●y Law in special Verdicts, (which ●●e the finding of Laymen) as in Plead, which are made by men ●urned in the Law; and therefore ●tendment in many cases shall ●●lp a special Verdict, as much as 〈◊〉 Testament, Arbitrament, etc. And therefore he which makes a Deputy, aught to do it by Escript, but when the jury 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 Deed, because it doth tantamount. lib. 9.51. And in the 5th Report, Goodales' Case. It was resolved, That all matters in a special Verdict, shall be intended, and supplied, but only that which the jury refer to the Consideration of the Court.  

III conclusion.  In all Cases where the jury find the matter committed to their charge, at large, and over more conclude against Law, the Verdict is good, 
More 105. 269.  and the conclusion ill. li. 4. 42. and the judges of the Law will give judgement upon the special matter, according to the Law, without having regard to the conclusion of the jury, who ought not to take upon them judgement of the Law. li. 11. 10.  
Where the Declaration in Trespass is Cum aliquibus averiis, 
As general as the Narr.  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 firm, where the Plaintiff declared of a Message, and 300 Acres of Pasture in D. per nomina, of the Manor of Monkhall, and five Closes per non ina, etc. upon Not guilty, the jury 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 Yeluerton, that this Verdict was imperfect in all; 
Quoad Residuum, incertain.  For when the jury 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 the special matter, it is incertain what that Residue is, so there cannot be any judgement given; and of that opinion was all the Court wherefore they awarded a Venire facias de novo, to try that Issue. Cro. 2. part. 113.  
Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10. acres, and Quoad Residuum 
Quod Resid●um.  not guilty; and it was moved in arrest of judgement, That it is uncertain in which of the Vills this Land lay: and therefore no judgement 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 jury find Circumstances 
Circumstances.  upon an Evidence given, to incite them to find fraud, etc. yet the same is not sufficient matter upon which the Court can judge the same to be fraud, etc. Brownlow 2. part. 187. Yet in many Cases, the jury ma● find Circumstances and presumptions, upon which the Court ought to judge: As to find that the Husband delivered Goods devised by the Wife: Upon this, the Court adjudged that the Husband assented to the devise at first. 
More 192.   
Where a Verdict is certainly ●iven at the Trial, 
Postea amended, how.  and uncertainly returned by the Clerk of the Assizes, etc. The Postea may be amended; upon the judges certifying the truth how the Verdict was given. Cro. 1. part. 338.  
In many Cases a Verdict may ●ake an ill Plea or Issue good. 
Ill Plea, made good by Verdict.  As 〈◊〉 an action for words, Thou wast perjured, and hast much to answer for 〈◊〉 before God; Exception after Verdict for the Plaintiff, in arrest ●f judgement: For that it is not ●nd in the Declaration, that he ●pake the words in auditu compluri●orum, or of any one, according to ●he usual form: sed non allocatur; for ●●ing found by the Verdict that he ●pake them, it is not material, although he doth not say, in auditu ●urimorum; whereupon it was adjudged for the Plaintiff. Cro. 1. part. 199.  
See Cro. last part 116. Where the Bar was ill, because no place ●f payment was alleged, yet the ●ayment being found by Verdict, it was adjudged well enough, for a payment in one place, is a payment in all places.  
Trespass by Baron and feme de clauso fracto, of the Barons. And for the 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 judgement, that the Declaration is not good, because the Baron joins the feme with him in trespass de clauso fracto of the Barons, 
Baron & Feme.  which ought not to be; But for the Battery of the feme, they may join, whereto all the Court agreed; But it was moved, that in regard it was found against the Plaintiffs for this Issue, in which they ought not to join, and the Defendant is thereof acquitted, and the Issue is found against the Defendant, for that part wherein they ought to join: 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 judgement was given for the damages for the battery of the feme, & the Writ abated for the residue. (And of that opinion was Lea Chief Justice, & Doderidge al. contra.) And the same Law I conceive, if the jury had found the Defendant Not guilty of the battery to the Husband, but guilty to the Wife. Cro. 2. part. 655.  
Rochel and his Wife, 
Rochel and his Wife against Steel.  brought an action of trespass and assault in the Exchequer, Hill 16. 59 against Steel, and others, who pleaded Not guilty, and the Verdict found Steel guilty of the Battery to the Wife; but ●●und nothing concerning the Husband. Wherefore judgement was stayed; but the Barons held, that if the jury had found the Defendants not guilty, as to the Husband, than the Verdict had helped the Declaration, and the Plaintiff should have had judgement for the damages, for the battery of the Wife.  

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

The Verdict may be against the Letter of the Issue, so the substance is found.  If the matter and substance of the Issue be found, it is sufficient, though it be against the Letter of the Issue. As in the first, Institutes, foe 114. b. A modus decimandi was alleged by prescription, time out of mind, for Tithes of Lambs. And thereupon Issue joined. And the jury found that before twenty years then last passed, there was such a prescription, 
Prescription.  and that for these twenty years, he had paid Tithe 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 Tithes 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 Assize of Darrein Presentment, if the Plaintiff allege the avoidance of the Church by privation, 
Avoidance.  and the Jury find the voidance by death the Plaintiff shall have judgement; for the manner of voidance is not the title of the Plaintiff, but the voidance is the matter. 1 Instit. 282.  
If a Garden of an Hospital bring an Assize against the Ordinary, 
Deprivation.  he pleadeth that in his visitation he deprived him as Ordinary, whereupon Issue is taken, and it is found that he deprived him as Patron, the Ordinary shall have judgement, for the deprivation is the substance of the matter. Ib.  
The Lessée Covenants with the Lessor, not to cut down any Trees, etc. and binds himself in a Bond of 40. pounds, for the performance of Covenants. The Lessée cut down 10. 
Breach of 20. Trees cut down for 10.  Trees, the Lessor bringeth an action of debt upon the Bond, and assigneth a breach, that the Lessée cut down 20. Trees: whereupon Issue is joined; and the Jury find that the Lessée cut down ten: Judgement shall be given for the Plaintiff, for sufficient matter of the Issue is found for the Plaintiff, to forfeit the Bond. Ib.  
And this Rule holds in 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, 
Indictment of Murder, and Verdict finds Manslaughter.  yet the Jury may find the Defendant guilty of Manslaughter without malice prepensed, because the kill of J. is the matter, and malice prepensed is but a Circumstance. Plo. Com. 101.  
And generally where modo & forma, 
Modo & forma.  are not of the substance of the Issue, but words of form; there it sufficeth, though the Verdict doth not find the precise Issue.  
As if a man bring a Writ of Entry in casu proviso, of the Alienation made by the Tenant in Dower to his disinheritance, and counteth of the alienation made in 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 man's 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, & Tenant, & the Tenant hold of the Lord by fealty only, & the Lord distrain the Tenant for Rent, and the Tenant bringeth a Writ of Trespass against his Lord, 
Trespass by the Tenant against the, Lord.  for his  so taken, and the Lord plead that the Tenant holds of him by fealty and certain Rent, and for that Rent behind he came to distrain, etc. And demand judgement of the Writ brought against him Quare vi & armis, etc. And the other saith, that he doth not hold of him, in manner as he supposed; and upon this, they are at Issue. And it is found by Verdict, that he holdeth of him by fealty only, in this case the Writ shall abate, and yet he ●oth not hold of him, in manner as the Lord hath said; For the matter of the Issue is, whether the Tenant holdeth of him or no; for if he holdeth of him, although that the Lord distrain, the Tenant for other services which he ought not to have, yet such Writ of Trespass, Quare vi & armis, etc. doth not lie against the Lord, but shall abate. Littleton, Sect. 485.  
Also in a Writ of Trespass for Battery, or for Goods carried away, 
The Verdi. nay find the Defendant guilty of the Trespass at another day or place.  if the Defendant plead not guilty, in manner as the Plaintiff suppose, and it is found that the Defendant is guilty in another Town, or at another day, than the Plaintiff suppose, yet he shall recover.  
And so in many other cases these words, scil. in manner as the Demandant or the Plaintiff hath supposed, do not make any matter of substance of the Issue. Littleton. Sect. 485.  
And 'tis a Rule, 
Modo & forma. when words of so●●●.  that where the Issue taken, goeth to the point of the Writ or action, there Modo & forma are but words of form, as in the cases aforesaid.  
But when a Collateral point in pleading is traversed, 
When of substance, & must be found by the Verdict.  as if a Feoffment be alleged by two, and this is traversed Modo & forma; 
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.  And it is found the Feoffment of one, there Modo & forma, is material; So if a Feoffment be pleaded by Deed, and it is traversed Absque hoc quod feoff●vit, Modo & forma, upon this Collateral issue, Modo & forma are so essential, as the Jury cannot find a Feoffment without Deed. 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 lieth for the Plaintiff, no more than if the whole had been found, there Modo & forma, are but words of form, as in the aforesaid case of the Lord and Tenant, it plainly appears: for it was all one, 
Trespass Quare vi & armis, lies not against the Lord for distraining his Tenant, without cause.  whether the Tenant held by fealty only, or by fealty and Rent, because if either was true, the Tenant could have no Trespass, Quare vi & armis, against the Lord in that use, by the Statute of Marlbridge. cap. 3.  
After the Verdict recorded, the Jury cannot vary from it; 
Jury cannot vary from their Verdict, when it is recorded.  but before it is recorded, they may vary from the first offer of their Verdict. And that Verdict which is recorded shall stand. 1 Inst. 227. Plo. Com. 212.  
There is also a Verdict given in open Court, 
O●●●cict, and privy Verdict.  and a privy Verdict given out of Court, before any of the judges of the Court, so called, because it ought to be kept secret, and privy from each of the parties, before it be affirmed in Court.  
Because the Jury may vary from their private Verdict, as if that find for the Plaintiff, 
The Jury may vary from a Private Verdict.  the open Verdict may be for the Defendant, and this shall stand, and the private Verdict shall not be 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 courtesy 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 nonsuited: But when they give their Verdict secretly, the Plaintiff is not demandable, nor can be then nonsuited, but he may be nonsuited, when the Verdict of right aught to be rendered. Ergo, the force is in the giving of the Verdict in the Court, and not elsewhere.  

Bro. tit. Verdict. 12.  And also in the Court itself, if they pronounce their Verdict, they may change it, if they be mistaken, or it be not full in Law, or for some other reasonable cause immediately perceived. Therefore if they may vary, and contradict their first Verdict given in open Court. A fortiore upon better advisement, they may do so when their first Verdict was given out of Court, and they not discharged; for they be in the Custody of the Bailie, till they be discharged in Court. Plo. Com. 211. More 33.  
The Jury having once given their Verdict, although it be imperfect, 
Jury shall give but one Verdict in the same cause.  shall never be sworn again upon the same Issue (unless it be in case of Assize, when the party is to recover by view of the Jurors). But there must be a Venire facias de novo. Cro. 2. part. 210.  
If a Verdict be good in part, 
Verdict good in part.  and naught in another part, it shall stand in part, and a new Inquest shall be for the rest. Bro. tit. Verdict. 89.  
For the Juries direction in their Verdict, 
What permitted in pleading for the Juries direction in their Verdict.  greater liberty is permitted in pleading a matter 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, between 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, etc. As that the Obligation put in suit, was sealed by him, and delivered to A. to keep till certain Indentures were made between the Plaintiff and him; 
A Special non est sactum.  before which Indentures made, the Plaintiff took the Obligation out of the possession of A. so is not his Deed. This is good, and yet by this general conclusion, the matter precedent shall not be weighed for it were perilous to put the special matter in the mouth of Lay-people. 9 H. 6. 38.  
A Jury of Middlesex was demande● in the Common-Pleas, 
Enquest by default.  the first day of the 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 nonsuited, 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 loses by his default.  the Defendant shall lose his Challenges, and by 28 Ass. p. 42. tit. Enquest in Fitz. he shall lose his Evidences also. Bro. Enquest 10.  
Der. the Defendant pleaded a Release, and the Plaintiff replied 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, 
When the Defendant may be condemned by d●fault, and when an Enquest must be taken upon the default.  for which the Plaintiff took nothing by his Bill; And yet if the Plaintiff had prayed it, he might have had the Defendant condemned by his default before the taking of the Verdict, Et sic vide, folly in le Plaintiff. Bro. Ib. 5. But upon suc● Release, and default in Trespass, the Enquest shall be taken by default, and the Defendant shall not be condemned by default, though the Plaintiff pray it, and the reason is, because the debt is certain, and the damages are incertain in Trespass. Bro. Ib. 3.  
And Finch, foe 4●9. hath well collected out of Brook, that always in an Action of Trespass, whatsoever the Issue be, Release, justification, etc. and also in Debt, Detinue, Account, 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 Bar by the Defendant, was made by Dures, etc. The Inquest shall be taken by default, if the Defendant makes default; But in the last recited acti●●● of debt, etc. If the Issue be upon the acquittance itself, Release, or other matter ●●-writing, the Plaintiff may pray judgement upon the Defendants default, if he ●ill, but if he do not pray it, the Jury shall be taken by default, as in 〈◊〉 action of Trespass.  
The Jury may give a Verdict without testimony, 
Verdict without, or against testimony.  or against testimony, when they themselves have Conuzans of the fact. Plo. Com. 16.   

CAP. XIV. How the Jury ought to demean themselves, whilst they consider of their Verdict; when they may eat and drink, when not; What misdemeanour of th●irs, will make the Verdict void; Evidence given them, w●en they are gone from the Bar, 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 Amendment offered by the Jury.  

Jurors ought not to eat or drink.  THere is a Maxim, and an old Custom in the Law, that the Ju y shall not eat, nor drink, after they be sworn, till they have given their Verdict, without the assent and Licence of the Justices; and that is 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 judgement.  
But with the assent of the justices, they may both eat and drink; as if any of the Jurors fall sick, before they be agreed of their Verdict, so soon that he may not commune of the Verdict, then by the assent of the justices, he may have meat or drink, and also such other things as be necessary for him; and his fellows also at their own costs, 
For by assent of the parties they may eat and drink. Br. Jurors 2.  or at the indifferent Costs of the parties, if they so agree, or by the assent of the Justices, may both eat or drink: and if t●e Case so happen, that the Jury can in no wise agree 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 agree with them, in giving a false Verdict, and this appeareth to the justices by Examination, the justices may in such case, suffer the jury to have both meat and drink for a time, to fee whether they will agree. And if they will in no wise agree, the justices may take such order in the matter, as shall seem to the, may their discretion, to stand with reason and conscience, by awarding of a new Inquest, 
New Inquest when the Jury cannot agree.  and by setting fine upon them, that they shall find in default, or otherwise as they shall think best, by their discretion; like as they may do, if one of the jury die before the Verdict, etc. D. and Student. 158.  

W●ere, if the Jury eat or drink, it shall avoid the Verdict, and where only fi●eable.  If the jury after their Evidence given unto them at the Bar, do it their own Charges eat or drink, either before or after they be agreed on their Verdict, it is ●nable, but it shall not avoid the Verdict; But if before they be agreed 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 converse. But if after they be agreed on their 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 jury money, makes their Verdict void by two justices. Leon. 1 part 18.  
If the Plaintiff after Evidence given, 
What delivered to the Jury after Evidence, shall avoid their Verdict.  and the Jury departed from the Bar, or any for him, do deliver any Letter from the Plaintiff, to any of the Jury, concerning the matter in Issue, or any Evidence, or any escrowle touching the matter in Issue, which was not given in Evidence, it shall avoid the Verdict, if it be found for the Plaintiff, but not if it be found for the Defendant, Ec sic è converso. But if the Jury carry away any Writing unsealed, which was given in Evidence in open Court, this shall not avoid their Verdict, albeit they should not have carried it with them. lb.  

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

Where the Jury cannot be discharged before Verdict.  Neither can a Jury sworn and charged in case of life, or member be discharged by the Court, or any other, but they ought to give a Verdict. And the King cannot be nonsuit, 
The King cannot be nonsuit.  for he is in judgement of Law there 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 etc.  
In Hillary Term, Sexto H. 8. Rotulo 358. It was alleged 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 Reed Chief justice in the way, going to see a fray, and they followed him, Et in veniendo viderunt cyplum, & inde biberunt. And for this, every one of them was fined 40 d. 
Jurors fined.  And the Plaintiff had judgement upon the Verdict. Dyer 37.  
And Dyer 218. At the Nisi prius, the jury after their charge given, returned and said, that they were all agreed except one, who had e●t a Pear, and drunk a draught of Ale, for which he would not agree; 
Jurors at the Nisi prius, fined in bank, for eating pears, and drinking Ale.  And at the Request of the Plaintiff, the jury was sent back again, and found the Issue for the Plaintiff. And the matter aforesaid being examined by the Oath of the jurors Seperatim, and the Bailiff who kept them, and found true, the offender was committed, and afterwards found Surety for his Fine. Si, etc. And Fitzherbert, the then justice of Assize, gave him day in banco, etc. at which day a Fine of 20 s. was there assessed. Et quoad Ball: Curia avisare vult.  
In trespass by Mounson against West, the jury was charged, and Evidence given, and the jurors being retired into a House, for to consider of their Evidence, 
Fined for having Figgs and Pippins about them.  they remained there a long time without concluding any thing, and the Officers of the Court who attended them, seeing their delay, searched the jurors, 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 jurors were examined upon Oath: And two of them did confess, that they had eaten Figgs before they had agreed 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 fine of 5 l. upon each of them which had eaten, and upon the others which had not eaten 40 s. But upon great advice and consideration had, and conference with the rest of the judges, the Verdict was held to be good. Notwithstanding the said misdemeanour. Leon. 1. part 133:  
And see the Book of Entries, 251. 
Fined for eating Raisins and Dates.  The jurors after they went from the Bar, ad seipsos, of their Verdict to advise, Comederunt quasdam species, scil. Raisins, Dates, etc. at their own Costs, an well before, as after they were agreed of their Verdict. And the jurors were committed to prison, but their Verdict was good although the Verdict was given against the King.  

Finable for having sweetmeats, etc. about them, though they do not eat them. See Plo. Com. 519. One fined, and imprisoned for having Sugar-Candy and Liquorish about him.  In Ejectione firm, it was found for the Defendant, three 〈◊〉 the jurors had Sweetmeats in their Pockets, and those three were for the Plaintiff, until they were searched, and the Sweetmeats found, an● than did agree with the other nine, and gave Verdict for the Defendant. It was the Opinion of the justices, that whether they eat or not, they were finable for having of the Sweetmeats with them, for that is a very great misdemcanor. Godbolt 353.  

Jurors careed.  40 Assize. Placito 11. The justices said, that if the jurors will not agree in their Verdict, the justices may carry them in a Cart along with them, till they are agreed.  
The jury were gone from the Sarr, to confer of their Verdict, ●nd one of the Witnesses before sworn on the Defendants part, 
The same Evidence given to the Jury, after they were gone from the Bar, spoils the Verdict.  was called by the jurors, and he recited again his Evidence to them, and after they gave their Verdict for the Defendant. And complaint being made to the judge of the Assizes of this misdemeanour, he examined the Enquest, who confessed all the matter, and that the Evidence was the same in effect, that was given before, Et non alia nec diversa. And this matter being returned by the Postea, the Opinion of the Court was, that the Verdict was not good, and a Venire facias de novo was awarded. Cro. last part, 189.  
The Plaintiff delivered an escrowl to a juror impanelled, 
Escrowle delivered to a Juror, before he was sworn Vitiates the Verdict.  before he was sworn, who afterwards being sworn, and gone with the jury from the Bar, to consider of the Verdict, shown the same Escrowle to his Companions, who found for the Plaintiff. The Minister who kept the Enquest, informed the Court hereof, and the jury being examined, confessed the matter aforesaid, upon which judgement was stayed; for after the jury are sworn, they ought not to see, nor carry with them any other Evidence, but what was delivered to them by the Court: Afterwards the Plaintiff said, that the Escrowl proved the same Evidence, which was given to them at Bar by him; wherefore it was not so bad, as if it had been new Evidence not given before: Sed non allocatur. 11 H. 4. 17.  

Church-Book delivered to the Jury, act of Court.  Pasche 38 Eliz. Inter Vicary at Farthing, at the Nisi prius. The Issue was about Nonage, and two Church-Books were given in Evidence, one whereof was delivered to the jury in Court, by the assent of parties, and afterwards, the other was delivered to the jury 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 endorsed on the Postea; The Question was, whether this should make the Verdict 〈◊〉 or no, for the justices differed 〈◊〉 opinion, Popham and Gawdy, that ●t should not; Fenner and Cleach, ●●t it should; the Negative Iu●●●●es gave these Reasons. That ●●e Book was delivered in Evidence in the Court, and so the other p●rty might answer to it, and that the Court had informed the jury of the validity thereof, how far they were to believe it, with many other Reasons: But the Affirmative was urged, because there might be some matter in this Book, to induce them otherwise than was intended before, and because it was delivered on his part, for whom the Verdict passed, without the Courts assent; yet one Book (scil. Cro. last part 411.) tells us, judgement was afterwards given for the Plaintiff; see Mores Reports 452. The Books differ; 
Consider the Reasons in the former cases.  for Cro. makes Clinch give his opinion for the Verdict. But More brings him on the other side, which I conceive is truest; and for my part, I know no reason, why foisting of Evidence to the jury out of Court, should have any favour at all.  
Hill. 40 Eliz. Rot. 847. In arrest of judgement after Verdict, 
Escrowle from one who was no party.  it was alleged, that a juror delivered to his Companions, an Escrowle for Evidence to them, which was not given in Evidence at the Trial, and adjudge● no cause to arrest judgement, unless it had been received from one of the parties, which did not appear. More 546.  
In a Writ of Error, the first Error assigne● was, that Termino Trin. twelve jurors, and no more, did appear: 
Jury adjourned.  This ex assensu partium, was adjourned until Crastino Animar. on which day, two others came in and were sworn, being of the first Panel.  
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 juror departed 
Juror depart.  after he is sworn, he shall be fined and imprisoned, and by assent of parties, another juror may be sworn. Bro. Jurors 46. lib. 5. 40.  
If a man be nonsuited after the Jury is ready to give their Verdict, the Court may cause the Amercement of the Plaintiff to be presently offered by the jurors. li. 8. 39   

CAP. XV. What punishment the Law hath provided for Jurors offending; as taking reward to give their Verdict. Of Embrac●ors. D●cies tantum. Attaint: several fines on Jurors. What Issues they forfeit, and of Judgement for striking a Juror in Westminster.  
YOu have already heard how the Court may fine the jurors for their misdemeanours in giving up their Verdict, I will proceed in showing what punishments they are liable 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 jurors, who too often; being preingaged with favour to the Plaintiff, or malice against the Detendant, Et sic e converso; or with common Interest, (as they call it) where Tithes or Commons are in question, will neither hearken to their Evidence, nor direction of the judge. But subvert the whole drift of the Common Law, which will have them of the Neighbourhood, where the fact was committed, to the end, that they knowing most of the fact, may consequently, give the best Verdict; yet contrariwise, jurors which live nearest, do now a days, most commonly so fetter themselves with favour or animosities to the parties, that those which live further off (as juries from other Counties) for the most part, guide the cleanest Verdicts. And how should the judge's remedy this mischief, but by severely punishing those juries which offend; the Law in this will be their Guide; for without doubt, (excepting life and member) t●e Law hath provided more severe punishments against juries, then against any other offendor whatsoever; as well knowing that corruptio optimi est pessima: And common jurors 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 juror take a reward to give his Verdict, 
The penalty of Jurors taking rewards.  and be thereof attainted, at the suit of other than the party, and maketh fine, he which sueth shall have half the fine, and if any of the parties to the Plea, bring his Action against such Juror, he shall recover his damages. And the Juror so attainted shall have imprisonment for one year, which imprisonment shall not be pardoned for any fine, this is by the Statute of 34 E. 3. cap. 8.  
5 E. 3. ca 10. It is accorded, 
Shall not serve of any other Inquest.  That if any Juror in Assizes, Juries or Inquests, take of the one party, or of the other, and be thereof duly attainted, That hereafter he shall not be put in any Assizes, juries or Inquests; and nevertheless, he shall be commanded to prison, 
Imprisoned and ransomed, (that is) fined.  and further ransomed at the Kings will. And the justices before whom such Assizes, juries and Inquests, shall pass, shall have power to inquire and determine according to this Statute.  
A man would think that these Statutes should have frighted any juror 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 herself must veil 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 juror taking reward to give his Verdict, shall pay ten times so much, as he hath taken; which forfeiture, my thinks, should make even those who love money best, refuse to take 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.  

De●ies tantum.  Item, As to the Article of jurors, in the 24th year, it is assented and joined to the same, that if any jurors in Assizes sworn, and other Inquests to be taken between 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 King, 
Embraceor.  or any other person, every of the said jurors, 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 Inquests in the Country, to take gain or profit, shall be punished in the same manner and form as the jurors. And if the juror or Embraceor so attainted, have not whereof to make 'gree, 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 justice, or other Minister, shall inquire 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.  
Upon 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 see) where any of the jurors, after he is sworn, taketh of one party, or of the other, or of both (and then he is called an Ambidexter 
Ambidexter. ) any reward to give his Verdict, etc. And it may be brought against all the jurors and Embraceors, 
So F. N. Br. saith. But for my part, I think he is mistaken, for the Statute mentioneth nothing of his taking money; and in my opinion, the case of 37 H. 6. 13. is full against hi●.  although they take several sums of money: and although the Jury give no Verdict, or a true Verdict. But it doth not lie against an Embraceor, if he taketh no money, and embraces, or taketh money, and doth not embrace. See Bro. Tit. Decies tantum 13. and F.N. Br. 171.  
An Imbraceor, 
Imbraceor.  is he that procures the Jurors in the Country, to take gain or profit, or comes to the Bar with the party, and speaks in the matter, or stands there to survey the Jury, etc. or to ●ut 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, and to do their Conscience: And thus the attorneys in the Country, often take upon them to do, 
Attorneys ill practice.  and many times put in a word or two for their Clients; which practice deserves the most severe punishment, next to their getting the Sheriff to return such and such in the Jury; which they, having been under-sheriffs themselves, and so agree with one another, are most expert at.  
But Counsellors 
Counsellors.  at Law, may plead for their money at the Bar; But they must not labour the Jury privately, and if they take money for t●is, they are Imbraceors. F. N. 6. 171.  
So much doth the Law hate, 
Fined for taking money after their Verdict.  that Jurors should privately take money for their Verdict. That certain Jurors were fined, for taking money after their Verdict, though there was no preingagement for it. 39 Assize. p. 19  
A Juror was challenged, and six other jurors were ●●orn to try the Challenge, who found him indifferent, 
Jury fined for departing when he was challenged.  and thereupon the 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, etc. although the other party than would have challenged him when he was demanded, so that he might have been treit. But the Court would not admit this, because then the King would have lost his Fine. 36 H. 6. 27.  

Juror adjourned upon pain.  If a juror appear, and is adjoined upon pain, and makes default, in this Case, because he shall be fined to the value of his Land per annum, this shall be inquired by his Companions of the jury, because the Court knows not the value of his Land. li. 8. 41.  
A Verdict was taken from the Foreman of the Jury, 
Fined for giving a Verdi●● before they were agreed.  to which one of them did not assent, and damages assessed to 20 s. in trespass and assault; and afterwards, every one of the 11. were fined, for giving their Verdict, before they were all agreed. 40 Assize 10.  
Where a jury are to be fined, a Fine jointly imposed on them, 
The Fine must not be joint.  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 than it might be said, Rutilius fecit, Aeimilius plectitur. lib. 11. 42.  
A man struck a Juror at Westm. (sitting in the Court) who passed against him, 
Punishment for striking a Juror.  and he was thereof indicted, and arraigned at the King's Suit, and attainted, his judgement 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 cut off, and his Lands seized into the King's hands, 41 Assize. p. 25. and now our Juror sees what punishment it is to strike him, in the face of the Court. Let him hold his hands from others, lest the same judgement 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 impanelled, and upon the second Writ 20 s. and upon the 3 d, 
I●●●.  30 s. And upon every Writ that shall be further awarded to try any Issue, to double the Issues last, afore specified, until a full Jury be sworn.  

Not summoned.  But if the Under Sheriff, etc. return a Juror summoned, who in truth was not legally summoned, & therefore doth not appear, and so looseth Issues, the under-sheriff shall pay him double the value of the Issues lost. See the Statutes of 35 H. 8. 6. and the 2 E. 6. 32.  
And note, the Law hath been so careful to punish all offenders, who would endeavour to bias, and corrupt the jury; 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 degree) upon an Issue joined between the parties in any Court of Record, and judgement thereupon. The party grieved, may bring his Writ of Attaint, 
Attaint.  in the Kings-Bench, or Common-Pleas; upon which, 24. of the best men in the County are to bet●e jurors, who are to hear the same Evidence which was given to the Petite jury, 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 jury) find it a false Verdict; then followeth this terrible and heavy judgement, at Common Law, upon the Petite Iury.  

Judgement in Attaint.  1. That they shall lose liberam legem for ever, that is, they shall be so infamous, as they shall never be received to be a Witness, or of any Iury.  
2. That they shall forfeit all their Goods and Chattels.  
3. That their Lands and Tenements shall be taken into the King's hands.  
4. That their Wives and Children shall be thrown out of doors.  
5. That their Houses shall be razed and thrown down.  
6. That their Trees shall be ●●ted up.  
7. That their Meadow-grounds ●hall be ploughed up.  
8. That their bodies shall be ●ast into the Goal, and the party ●hall be restored to all that he lost, by reason of the unjust Verdict. So odious is perjury in this Case, in the eye of the Common-Law: And the severity of this punishment, is to this end, Ut poena ad paucos, metus ad omnes perveniat; for there is Misericordia puniens, and there is Crudelitas parcens. And seeing all Trials of real, personal, and mixed actions, depend upon the Oath of 12. men, prudent Antiquity inflicted this severe punishment upon them, if they were attainted of perjury. 1 Inst. 294.  
But now by the Stat. of 23 H. 8. cap. 3. The severity of this punishment is moderated, if the Writ of Attaint be grounded upon that Statute.  
But the party grieved, may 〈◊〉 his Election, either bring his Wi● of Attaint, at the Common-Law, 〈◊〉 upon that Statute. Wherefo● let the juror expect the greatest punishment, when he offends. 3 Inst. 16 222.  
And so I conclude with the word● of Fortescue, Quis tunc (etsi imm● mor salutis animae suae fuerit) non fo● midine tantae poenae, & verecundi● tantae infamiae, veritatem non dicere sic Juratus?  
Who then, though he regard not his Soul's health, yet for fear of so great punishment, and for shame of so great infamy, would not, upon his Oath, declare the truth?   
FINIS.