was intended for damages and how much for costs so that there may be more damages than the Plaintiff declared for or less and so the Court knows not how to increase the cost wherefore he shall have Iudgment but for 20 marks by reason of the incertainty Where a special Verdict is not entred according Verdict amended by the Notes to the Notes the Record may be amended and made agrée with the Notes at any time though it be 3 or 4 c. Terms after it is entred lib. 4. 52. lib. 8. 162. Cro. 1 part 145. In the Case of Turnor and Thalgate Mich. 1658. B. R. It was said per Cur ' That special Verdicts may be amended by the Notes but the Notes cannot be amended or inlarged by any Averment or Affidavit for that were to fâ—â—d a Verdict by the Court. Yet in that Case where the Notes were that the Iudgment c. was vacated pro ut per Rule the Verdict was amended vacated per Cur ' pro ut per Rule for so is implied in the Notes See a Verdict amended by the Notes after Iudgment and Error brought Rolls 1 part Reports 82. If the matter and substance of the Issue Form Hob. 54. be found it is sufficient for precise forms are not required by Law in special Verdicts which are the finding of Lay-men as in Pleadings which are made by men learned in the Law and therefore intendment in many Cases shall help a special Verdict as much as a Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury find generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they find that he was made Deputy by Déed because it doth tantamount lib. 9. 51. And in the 5th Report Goodale's Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. In all Cases where the Iury find the matter Ill conclusion committed to their charge at large and over more conclude against Law the Verdict is good and the conclusion ill li. 4 42. and More 105. 269. the Iudges of the Law will give â—udgment upon the special matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Vide Devant Where the Declaration in Trespass is As general as the Narr Cum aliquibus averiis of a number uncertain and the Verdict is as general as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione firme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per nomina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton That this Verdict was imperfect in all For when the Quoad Residuum incertain Iury find that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 Acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they find quoad residuum tne special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that Opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2 part 1â—3 Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10 Acres and Quoad Residuum not guilty Quoad Resisiduum and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten Acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances upon Circumstances an Evidence given to incite them to find fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury may find Circumstances and presumptions upon which the Court ought to judge As to find that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that More 192. the Husband assented to the devise at first Where a Verdict is certainly given at the Postea amended how Tryal and uncertainly returned by the Clerk of the Assizes c. The Postea may be amended upon the Iudges certifying the truth how the Verdict was given Cro. 1. pâ—rt 338. In many Cases a Verdict may make an ill Ill Plea made good by Verdict Plea or Issue good As in an Action for words Thou wast perjured and hast much to answer for it before God Exception after Verdict for the Plaintiff in arrest of Iudgment For that it is not laid in the Declaration that he spake the words in auditu complurimorum or of any one according to the usual form sed non allocatur for being found by the Verdict that he spake them it is not material although he doth not say in auditu plurimorum whereupon it was adjudged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place of payment was alledged yet the payment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in Trespass Baron Feme de clauso fracto of the Barons which ought not to be But for the Battery of the feme they may joyn whereto all the Court agréed But it was moved That in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespass by Baron and Feme for the Battery of both The Defendant pleaded Not guilty and found guilty and damages assessed
punishment is to this end Ut poena ad paucos metus ad omnes perveniat for there is Misericordia puniens and there is Crudelitaâ—parcens And séeing all Tryals of real personal and mixt actions depend upon the Oath of 12 men prudent Antiquity inflicted this severe punishment upon them if they were attainted of Perjury 1 Inst 294. But now by the Stat. of 23 H. 8. cap. 3. The severity of this punishment is moderated if the Writ of Attaint be grounded upon that Statute But the party grieved may at his Election either bring his Writ of Attaint at the Common-Law or upon that Statute Wherefore let the Juror expect the greatest punishment when he offends 3 Inst 163. 222. And so I conclude as to the Iuror only with the words of Fortescue Quis tunc etsi immemor salutis animae suae fuerit non formidine tantae poenae verecundia tantae infamiae veritatem non diceret sic Juratus Who then though he regard not his Souls health yet for fear of so great punishment and for shame of so great infamy would not upon his Oath declare the truth But as to our Practicer I would give this one further Advertisement which relates also to Iurors When a Verdict has been given by a former Iury in the same Cause and on the same Evidence it is allowed to give the former Verdict in Evidence and I have known this Introduced by the Counsel as obliging to the latter Iury to find accordingly intimating that otherwise they do in effect perjure the former 12 men which may amuse render minds and draw them from the strict Inquiry into the Merits of the Cause in favour of their Predecessors which is a palpable mistake and misinformation for these Reasons 1. The same Evidence in the former Cause and Tryal perhaps was not so perspicuously delivered as in this 2. This latter Iury may be of more sagacicus and Comprehensive Iudgment than the former 3. The Directions of the Court which the Iury most héed may be more clearly delivered to this Iury. 4. The Matter in Contest perhaps was not in the former Tryal so clearly manag'd by the Counsel being not so well instructed as afterwards 5. And laâ—â—ly supposing the Evidence equally deliuered by the Witnesses apprehended by the Iury directed by the Court manag'd by the Counsel yet it 's no perjury or fault to differ in Iudgment for if 24 Iurymen were to try a Matter of Fact and 12 were of one Opinion and 12 of another who is in fault while they Iudge according to the best of their Knowledge and Skill to which only they are sworn And it 's a reasonable kindness to Iury-men to make good Construction of differing Iudgments among them while we sée how oft Iudges themselves differ in their Opinions on a matter stated equally to them all and that not only as to matter of Law but as to matter of Fact as attending Practicers may observe in Tryals at Earr in the several Iudges several Directions And this I thought good to advertise for that I have known Verdicts gained on this unwarrantable Suggestion against clear and express Evidence and could instance some Cases Sed verbum sat c. As to the difference betwixt the Judge and the Jury and that Question which has made such a noise viz. Whether a Jury is fineable for going against their Evidence in Court or the Direction of the Judge I look upon that Question as dead and buried since Bushel's Case in my Lord Vaughan's Reports yet some of the Ashes thereof I may sprinkle here without offence It doth appear there to have béen resolveâ— by all the Iudges upon a full Conference at Serjeants-Inn That a Jury is not fineable for going against their Evidence where an Attaint lyes And that it is Evident by several Resolutions of all the Iudges That where an Attaint lyes the Iudge cannot fine the Iury for going against their Evidence or Direction of the Court without other Misdemeanour And where an Attaint doth not lye as in Criminal Causes upon Indictments c. My Lord Vaughan says these words That the Court could not Fine a Jury at the Common Law where Attaint did not lye I think to be the clearest Position that ever I considered either for Authority or Reason of Law And one reason for this which can never be answered is The Iudge cannot fully know upon what Evidence the Iury give their Verdict for they may have other Evidence than what is shew'd in Court They are of the Vicinage the Judge is a Stranger they may have Evidence from their own personal knowledge that the Witnesses speak false which the Iudge knows not of they may know the Witnesses to be stigmatised and infamous which may be unknown to the Parties or Court And if the Iury knew no more than what they heard in Court and so the Iudge knew so much as they yet they might make different Conclusions as oftentimes two Iudges do and therefore as it would be a strange and absurd thing to punish one Iudge for differing with another in Opinion or Iudgment so it would be worse for the Iury who are Judges of the Fact to be punished for finding against the Direction of him who is not Iudge of the Fact But he that would be better satisfyed in this point may read that Case and the Authorities and Reasons given by my Lord Vaughan whom I must honour as a man of great reason It is shewed in that Case That muth of the Office of Jurors in order to their Verdict is Ministerial as not withdrawing from their fellows after they are sworn not receiving from either side Evidence after their Oath not given in Court not eating and drinking before their Verdict refusing to give a Verdict and the like wherein if they transgress they are Fineable But the Verdict it self when given is not an act Ministerial but Judicial and according to the best of their judgment for which they are not fineable nor to be punisht but by Attaint Nor can any man shew That a Jury was ever punisht upon an Information either in Law or in the Star-Chamber where the Charge was only for finding against their Evidence or giving an untrâ—e Verdict unless Imbracery Subornation â—r the like were joyned But the Fining and Imprisoning of Jurors for giving their Verdicts hath several times béen declared in Parliament an Illegal and Arbitrary Innovation and of dangerous Consequence to the Government the Lives and Liberties of the People This celebrated tryal by Iuries having béen confirmed by many Parliaments Littleton Sect. 368. tells us That as the Iury may find the matter at large that is a Special Verdict which the Court cannot refuse if it be pertinent to the matter put in Issue and leave the Law to the Court so if the Iury will they may take upon them the knowledge of the Law upon the matter and may give their Verdict generally as is put in their Charge As
Sheriff for returning the Jury at the Instance request and denomination of the Plaintiff p. 454 A Challenge because that the Town is within a Hundred of which the Plaintiff is Lord and prays a Writ to the next Hundred p. 455 Challenge because the Sheriff and two Coroners are Tenants of the Plaintiff and a Venire facias awarded to the rest of the Corroners p. 456 Challenge where after the last Continuance the Cousin of the Plaintiff is made Sheriff after Issue joyned ibid. Challenge because the Sheriff is of Councel with the Plaintiff and hath received Fees and the Defendant doth deny the Challenge therefore the Venire facias awarded to the Sheriff notwithstanding p. 457 Challenge because the Plaintiff is Brother to the Sheriff p. 458 Challenge where the Plaintiff is Sheriff and one of the Coroners is his Tenant ibid. Another Challenge to the same purpose ibid. Challenge because the Wife of the Plaintiff is Kin to the Sheriffs Wife p. 459 Challenge because the Plaintiff is the Sheriffs Servant ibid. Challenge after the Jury Impannelled returned and called because the Prie in aid is Sheriff and of the Council of the Plaintiff and a Distringas Jur. with a decem Tales Coron awarded ibid. Challenge because the Plaintiff is one of the Sheriffs of London and the Venire facias awarded to the other Sheriff p. 460 Challenge to the Deputy Sheriff because he Impannelled and return'd the Jury at the instance and Denomination of the Plaintiff p. 461 Challenge by the Kings Serjeant upon an Indictment of Felony because the Sheriff returned the Jury of Life and Death at the Instance and request and denomination of the Prisoner ibid. Challenge by the Kings Serjeant for the King to some of the Jury for default of Freehold to the vallue of 40 s. per annum p. 462 A Precedent of Challenge to the Array p. 464 A Precedent of a Plea after the last Continuance p. 465 A Precedent of a Demurrer upon the Evidence p. 469 A Bill of Exception p. 470 A Release pleaded at the Assises after Issue joyned p. 475 The Death of one of the Defendants pleaded after the Last Continuance 475 A Baron Challenges the Pannel because no Knight was returned of the same p. ibid. Tryals per pais CAP. I. The Derivation of the Word Jury The Definition Antiquity and Excellency of Juries JUrie Jurata cometh of the French Vid. Cap. 12 Jurie word Jurer i. e. Jurare And signifieth in Law those 12 men who are sworn Judges in matters of fact evidenced by witnesses debated before them I call them Judges because as 't is the property of the Court Jus dicere so t is in the power of the Jury to determine the fact upon an Evidence Pro and Con According to those common Adagies Ad quaestionem Juris respondent Judices Ad quaestionem facti respondent Juratores And as the Judgment of the Court ought to be guided by the Law So Vid. cap. 15. is the Verdict of the Jury by the Evidence They of the Jury are called Juratores Jurors à Jurando as in ancient Laws Sacramentales à Sacramento praestando I need not here divide and shew the differences The Antiquity and excellency of Juries of Juries nor the several sorts they being so well known viz. The Grand Jury or great Inquest and petty Jury or Jury of Life and Death in Criminal causes and in Civil Causes the Assise Jury Inquest of Office By some called Inquest of Jury and Inquest of Office Something concerning each of these will incidently be spoken of in what follows As to the excellency of Juries it appears from their Antiquity Sr. Hen. Spelman verb. Inquestio says Tryal by Juries was used in England Normannis noâ—dâ—m ingressis Leg. Ed. Confess Ca. 38 postea inquisisset Justitia i. e. Justitiarus per Lagamannos i. e. legales homines per meliores homines de Burgo vel de Villa vel de Hundredo ubi mansisset Emptor c. For as to Tryal by 12 men though Mr. Daniel and Poyldor Virgil deny it to be older than the Conquest and the latter says there is no Religion in it but in the number yet he stands fairly Corrected by that Excellent and learned Antiquary Mr. Camden p. 1â—3 who says Whereas Polydor Virgil writeth that William the Conqueror first brought in the Tryal by 12. men there is nothing more untrue For it is most certain and apparent by the Laws of Etheldred that it was in use many years before c. And whereas Lamb. verb. Centuria says In singulis Centuriis Comitia sunto aâ—que liberae Conditionis viri duodeni atate superiores una cum praeposito Sacra tenentes jurento se adeo virum aliquem innocentem haud damnaturos sontemve absoluturos he referrs to the Laws of Etheldred cap. 4. cited by the learned Spelman verb. Jurata And to the same doth my Lord Coke referr Com. super Lit. 155. and Preface to his 3. and 8. Report And as to the Religion in the number of 12. my Lord Coke gives instances ubi suprà and Sir Henry Spelman in verb. Jurata suprà makes addition thereto So that I may truly say Tryals by Juries have been used in this Nation time out of mind and were contemporary and coeval with the first Civil Government thereof and Administration of Iustice for amongst the first Inhabitants the Britains the Free-holders were used in all Tryals And Tryal by Juries was as you see practised by the Saxons continued by the Normans and confirmed by Magna Charta And was ever so esteemed and prised in this Island that no Conquest no change of Government ever prevailed to alter it 'T is true Tryals by Juries before the time of H. 2. were not so frequent be-because Sadae or Purgationes Ordalia Tryals by hot Iron hot Water cold Water Duels and other Superstitious ways were then in use but Tryals by Juries were here in the Saxons time and were found here and not brought in by Williâ—m the Conqueror from Normandy Nay rather setled by Edw. the Confessor in Normandy where he a long time was and taught many Laws as you may see in the book of the Customs of Normandy Glanvil lib. 2. cap. 7. says Ex aequitate autem maxima prodita est legalis ista institâ—tio speaking of these Tryals in opposition to Duels c. Their general use being the only Tryers The use of Juries of Choses in fair almost in all Courts throughout England speaks them a publick good To be tryed by ones Peers is the greatest priviledge a Subject can wish for and so excellent is the constitution of the Government of this Kingdom that no Subâ—ect shall be tryed but by his Peers The Lords by their's The Commons by their s which is the Fortress and Bulwark of their Lives Liberties and Estates and if the good of the Subject be the good of the King as most certainly it is then those are enemies
if it be alledged in a Ward in the City of Bristol c. the Venue shall be of the Ward not de Civitate A Venire facias was awarded from T. Ward and not de vicinet de T. and for this cause resolved to be ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the issue be Si rex concessit per literas De vicinet left out ill patentes The Tryal shall be as hath been said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed Where the Land lies it shall be tryed by the Record and therefore the issue being upon non concessit the issue is not upon the Patent but where the issue is upon non concessit or non dimisit of a thing which passeth by Deed the Tryal shall be where the Grant or Demise is alledged But of a Feoffment or Lease for life pleaded the issue being non Feoffavit or non dimisit Livery ought to be made and therefore the Tryal shall be where the Land lies Cro. 2. part 376. 3. part 259. Where the offence is laid in the Count Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is to be in one County and the Iustification in another County and the Plaintiff replies de injuria sua propria c. The Visne shall be where the Iustification is alledged As one Example for all to illustrate In an Action upon the Case for words supposed to be spoken at Bridg-North in the County of Salop the Defendant pleads that he spake them as a Witness upon his Oath upon an issue tryed at Chard in the County of Somerset The Plaintiff replies de son tort demesne c And thereupon it was tryed by a Venire facias of Bridg-North And Error thereof assigned because it ought to have been by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryal and not aided by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. Replevin taking 2 Horses at such a place in Denford in Com. Northampton the Defendant makes Conâ—sans as Bayliff to the Lord Mountague of his Mannor of S. which Mannor is holden of the Honour of Gloucester and that the place in which c. is within the said Honour and alledges a Custome within the said Honour on which Custome the parties were at issue and the Venire facias was from Denford the place of taking which was moved after Verdict for that the Venue was not so large as the issue which was the Honour and of this opinion was the whole Court of C. B. Pasch 13 Car. 2. Hull vers Bâ—nning But the great question was whence the Venue should arise in this Case and per Bridgman Ch. Just and Just Hide in no Case can a Venue arise from an Honour and Ch. Just said he had caused the Prothonotaries to search for Precedents and they Honours could not find that ever a Venue did arise from an Honour which is but a bundle of services and an incorporeal thing from which no Venue can come and yet an Honour may have demesns as the Honours of Grafton and Hampton have but Gloucester not Ch. Just and Just Hide seemed that the Venue should be de Corpore Comitat. Hob. 266. 249. But when the Court was after moved for their opinion they bad them take a Venire facias at their peril and would give no opinion An action of Debt was brought on a Bond to perform Covenants in an Indenture wherely the Defendant had granted to the Plaintiff a walk called shrob-walk in the Forest of in Com Northampton and Covenanted for peaceable in joyment c. and he was ousted per Earl of Northampton who had right on which Right issue was joyned and the Venire facias was from Shrob-walk Per Cur. It 's not good for it appears by the Record that Shrob-walk is not a Vill but if the Obligation had been laid to be made at Shrob-walk the Venue should arise from thence as a Vill. Inter. Stirt Bales Pasch 19 Car. 2. B. R. The Venue shall follow and be according Out of what County to the issue As for words in Warwick-shire Thou art a Vide â—ic ante postea Thief and stolest my Iron The Defendant justifies says the Plaintiff stole the Iron in Leicester-shire and brought it into Warwick-shire and therefore he spake the words in Warwick-shire If the Plaintiff replies de injuria sua propria absque tali causa the Jury shall come from Leicestershire to which the absque tali causa refers for the words are acknowledged See Rolls tit Tryal 598. 623. When part of the matter to be inquired of is in one County or place and part in another the Tryal shall be there where the best Conusans of the matter may be As in an action upon the Case the Plaintiff declares that the Defendant took the From the place best known Horse of A. at S. and sold him at D. to the Plaintiff as his proper Horse and afterwards A. retook the Horse If the Defendant plead that the property was in him at the sale upon which issue is ioyned The Venue shall be de S. where the taking is supposed for there the property may be best known which is only in question 42. Ass 8. see several cases in Rolls ib. 603. under this head If the issue be whether L. did ride from London to York and from York to London Where the Counties cannot joyn 5 times in six days this may be tryed by London only Although part of the matter to be inquired of was done in each County In an action of Battery in London if the Defendant justifies in defence of his possesâ—on in D. in Essex and the Plaintiff says de son tort demesn sâ—ns tiel cause this ought to be tryed by both Counties if they might joyn because he may be found guilty at another day and therefore because they may not joyn this may be tryed in Essex Of Assises in confinio Com. See 1 Inst 154. In case for words in one County if the Defendant justifie in another County and the Plaintiff reply de son tort demesn c. although the Counties ought to joyn if they could and the Iustification is principally put in issue yet the Tryal may be in either County at the Election of the Plaintiff In Ejectment in London upon a Lease Rolls tit Tryal 620. made there of Land in Mid. if the Defendant plead not guilty this may be tryed in London because the Counties cannot joyn although London cannot joyn with another County 49 E. 3. 20. the Jury ought to enquire of the Ejectment in Mid. and judgement affirmed in a Writ of Error See Rolls tit Tryal 602. Two Counties may
evidence In a special promise to pay 20 l. if the Plaintiff would pay 10 l. c. and an averment Non assumpsi◠that he paid the 10 l. upon non assumpsit the Defendant shall not give in evidence that the Plaintiff did not pay the 10 l. neither is the Plaintiff bound to prove it for the issue is upon the assumpsit and not upon the payment of the 10 l. which might have been traversed And although 't was said that in all actions there is a general issue to be taken which shall put all the declaration in issue and that must in this be non assumpsit or nothing yet by the advice of all the Iustices of Serjeants Inn in Fleetstreet it was ruled as abovesaid Mich. 16 Car. B. R. between Holditch and Brodrig I have been the more particular in this because I have known Plaintiffs nonsuited in such cases at the Assisses for want of proving rhe averment although I must confess I never agreed with the Iudge herein that did it For it is a mistake to say The Plaintiff must in all cases prove his whole Declaration if he proves the matter in issue he ought not to be nonsuited Rolls tit Tryal 1681. If an Advowson be pleaded to be granted Grant per fait Where it is sufficient to prove the effect of the Issue Per fait and this issue is taken by a stranger to the fait if it be found granted sans fait or by another fait it is good for the Deed is surplus and the effect of the issue is upon the grant not upon the fait If an Imprisonment by dures at D. Dures be in Issue 't is not material whether he was ever at D. or not for the effect of the Issue is if the Deed was made by dure◠So of a Feoffment pleaded by Deed a Feoffment without Deed or another Feoffment Deed is good for the effect of the Issue is upon the Feoffment not upon the Fait In escape of a Prisoner and the Issue Fresh Suit is if the Gaoler immediately after the escape made fresh suit if the Prisoner hath escaped a day and night before the Goaler knew it and then he makes fresh suit it is sufficient to prove the effect of the issue for convenient pursuit is immediate fresh suit in Law If in pleading an Indenture of demise Non demisit modo forma you mistake the recital and the issue is non demisit modo forma The mistake shall not hurt for the effect of the Issue is upon the demise If a man plead not guilty he cannot give What thing may be given in evidence upon the general Issue Trespass Battery in evidence a matter justifiable which shall be a confession of the act for this is contrary to the issue As son assault demesn in Battery upon Not guilty but upon Not guilty in Trespass for beating ones Servant per quod servitium amisit you may give in evidence that the Plaintiff did not lose his service by the Battery Nor upon nul wast fait can he say suficientment repair devant le brief purchase Wast If my servant without my consent put my Cattle in the Land of another I may Servant plead Not guilty and give this matter in evidence for by puting the Cattle in the servant has gained a property Vpon Not guilty he may give in evidence Information a discharge by a Proviso in the same Stat. for thereby he is Not guilty Contra formam Statuti but not a discharge by another Statute Vpon non habuit seu tenuit ad firmam contr formam Statuti the Parson may say he took the Farm for maintenance of his house according to the Proviso in debt upon the Stat. 21. H. 8. But upon the Stat. 5 E. 6. for ingrossing upon Not guilty 't is said that the Defendant cannot give in evidence a licence according to the Proviso of the Stat. sed quaere rationem Vpon ne unque son Receivor c. the Accompt Defendant cannot say that he paid the money according to directions c. In a Scire facias against Terrtenants Seisin Feoffment and a Feoffment pleaded before the judgement absque hoc that he was seised tempore Judicii and issue upon the seisin that the Feoffment was fraudulent to defraud the judgement may be given in evidence but otherwise if the issue had been upon the Feoffment So upon reins per discent by an Heir Riens per discent in debt upon an obligation that the Defendant aliened the Assets by fraud and covin and so void by the Stat. of 13 El. may be given in evidence because these are the general issues In Trespass for taking a stack of Corn Parcel the evidence may be of part and the Verdict as to 4 Combs or Bushels Guilty and as to the rest Not Guilty Vpon this plea the Executor may give in evidence a retainer for a debt due to himself Plenè administravit of as high a nature or paiment of debts with his own mony and that he kept goods of the Testator in lieu for this alters the property They can have nothing but what is delivered to them in Court and given in evidence What evidence the Jury may have with them Exemplifications by the party in Court if an exemplification come out of Chancery of witnesses examined there upon Oath who are dead the Jury shall have this with them but if the exemplification comprehend some Witnesses alive and some dead they shall not have it with them Neither shall they have any Pedegree drawn by a Herauld at Arms for it is no evidence Pedegree but only information for direction What Evidence the Jury may have with them see the 14. Chapter If a man makes a Feoffment and afterwards Who may be witnesses Not persons interested makes another with covenants that he was seised c. and afterwards an issue is taken upon the first Feoffment the Feoffee shall not be a Witness In an information for Vsury the Usury party shall not be a Witness because he would thereby avoid his own Bonds c. and be testis in propria causa Three men swear an Arbitrement in Perjury three several actions against them upon the Statute 5 Eliz. of perjury each of them may be a Witness for the other but in an Indictment of perjury upon 5 Eliz. the party grieved shall not be a Witness for he is to have 20. l. Common experience tells us upon an Indictment for Battery c. the party grieved may be a Witness because 't is only for the King In an action against the Hundred upon Hundred the Statute of Winton c. the Lessor living out of the Hundred may be a Witness for 't is not reason that he and his Lessee being an inhabitant should be both charged If the Servant be robbed of the Masters money the Master may be
assisas in ComÌ„ N. Capiend assignÌ„ ê‘ formam statuti c. venÌ„tam infra nominatÌ„ J. A. quaÌ„ infra scriptÌ„ H. C. ê‘ atturnatÌ„ suos infra ContentÌ„ IurÌ„ Iure unde infra fit mentio ExactÌ„ similitÌ„ venerÌ„ Qui ad veritatem de infra ContentÌ„ dicend electi triati Iurati fuerÌ„ Super quo pÌ„d H. ê‘ quendam J. B. de Consilio ipsius H. C. manutentione exitus interius IunetÌ„ Coram pÌ„fatÌ„ IustÌ„ IurÌ„ pÌ„d in Evidentijs oftend dicÌ„ quod c. Here recite the Evidence truely unde petitÌ„ IudiciuÌ„ qd IurÌ„ pÌ„d veredictÌ„ suum de suê‘ infra ContentÌ„ pro ipso H. reddant c. Et pd J. A. ê‘ quendaÌ„ C. J. de Consilio suo Demurrer dicÌ„ qd materia ê‘d ê‘ pÌ„fatÌ„ H. C. IurÌ„ pred suê‘ius in Evidentiis ostentÌ„ minus in lege existic ad pro band exitum interius IunctÌ„ pro parte ejusdem H. quodque ipse ad materiam illam in forma pÌ„d in EvidentÌ„ ostentÌ„ necesse necesse non habet nec ê‘ legem terrÌ„ tenetÌ„ respondere hoc paratus est verificare unde pro defectu sufficientÌ„ materÌ„ IurÌ„ pÌ„d in hac parte ostens Idem I. petitÌ„ IudicÌ„ quod IurÌ„ de VeridictÌ„ suo suê‘ Exit pÌ„d reddend exoneretur debitum suum infra specÌ„ una cum dampnÌ„ suis occasione de tentÌ„ debiti illius sibi addiundi cari c. Et pÌ„d H. C. Ex quo ipse sufficÌ„ materÌ„ in Joynde lege ad manutenen exitÌ„ infra ContentÌ„ pro parte ipsius H. IurÌ„ pred suê‘ius in EvidentÌ„ ostens qd ipse ê‘atÌ„ est verificare quaÌ„ quidem materiaÌ„ pÌ„d J. non dedicit nec ad eam aliqualiter respond sed verificationem illam admittere omnino recusat petÌ„ IudicÌ„ qd pred J. ab actione sua pred versus Eum habend precludatur ac qd IurÌ„ pred de VeredictÌ„ suo suê‘ exitÌ„ pred reddend onerentur c. A Precedent of a Demurrer upon the Evidence And now at this day the said Plaintiff and Defendant by their Attornies did appear and the Iury likewise did appear and were sworn c. upon which Sir T. W. Serjeant at Law of Councel with the Plaintiff gave in Evidence so and so and repeat it truely and did require the Iurors to find for the Plaintiff upon which J. C. of Councel with the Defendant saith That the Evidence and Allegations aforesaid alledged were not sufficient in Law to maintain the Issue joyned for the Plaintiff to which the Defendant néedeth not nor by the Laws of the Land is not holden to give any Answer wherefore for default of sufficient Evidence in this behalf the Defendant demands Iudgment that the Iurors aforesaid of giving their Verdict be discharged c. and that the Plaintiff be barr'd from having a Verdict c. Then the Plaintiff joyns and says That he hath given sufficient matter in Evidence to which the Defendant hath given no Answer c. and demands Iudgment and that the Iury be discharged and that the Defendant be Convicted then the Iury may give Damages if Iudgment shall happen to be for the Plaintiff c. A Bill of Exception Memorand That the First day of August Ebor. sc An. 1650. before T. P. and W. Iustices of our said Lord the King for taking of Assizes in the said County assigned in a Plea of Trespass and Ejectment which J. S. in the Court of our said Lord the King before himself by Bill doth Prosecute against E. B. supposing by the said Bill that the aforesaid T. B. c. and recite the substance of the Declaration or what it is c. and the Issue and then what the Evidence to prove the Defendant guilty was c. which here was a Surrender of a Copyhold out of Court c. and that he desired the Iury aforesaid to give their Verdict for the said T. B. of and upon the Premisses and that he likewise desired the Iudges aforesaid that they would inform the Iury aforesaid that the Surrender aforesaid out of Court made was good and effectual in Law and the aforesaid Iustices the aforesaid Surrender of the Land aforesaid with the Appurtenances made out of Court of the Mannour aforesaid in form aforesaid did affirm to the said Iurors was not good in Law by which the said Thomas for that the aforesaid matter to the said Iurors in Evidence shewed doth not appear c. did request of the said Iustices according to the form of the Statute in such case provided this present Bill which doth contain in it the matter aforesaid above by him to the Iurors aforesaid shewed by which the said Clayton's Reports Iustices at the request of the said Thomas this Bill have sealed at D. aforesaid 1. Westm 2. 31. 13 E. 1. When the Iustices will not allow a Bill of Exception upon Prayer if the Party impleaded tender the same unto them in Writing and requires their Seals thereunto they or one of them shall do it 2. If the Exception sealed be not put into the Roll upon Complaint thereof to the King the Iustice shall be sent for and if he cannot deny the Seal the Court shall procéed to Iudgment according to the Exception This Bill of Exception is given by the Statute Westm 2. cap. 31. before which Statute a man might have had a Writ of Error for Error in Law either in redditione Judicii in redditione Executionis or in Processu c. which Error in Law must be apparent in the Record or for Error in sait by alledging matter out of the Record as the death of either party c. before Iudgment But the mischief was if either party did offer any exception praying the Iustices to allow it and the Iustices over-ruling it so as it was never entred of Record this the party could not assign for Error because it neither appeared within the Record nor was any Error in fait but in Law and so the party grieved was without remedy until this Statute was made This Act extendeth to all Courts to all Actions and to both parties and to those who come in their places as to the vouchee c. who comes in loco tenentis It extendeth not only to all Pleas Dilatory and Peremptory c. to Prayers to be received Oier of any Record or Déed and the like but also â—o all Challenges of Iurors and any material Evidence given to any Iury which by the Court is Over-ruled 2 Inst fo 427. All the Iustices ought to Seal the Bill of Exceptions yet if one doth it it is sufficient if all refuse it is a contempt in them all And the party grieved may have a Writ grounded upon this Statute commanding them to put their Seals Juxta formam Statuti hoc sub periculo quod incumbit nullatenus omittatis The party must pray the Iustices to put their Seals but if they deny it they may be