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 then any others For vicinus facta vicini presumitur scire But least this presumption should fail the Law allowes other Evidence to be given to them by which they may more certainly and confidently give their Verdict of the Issue which is meant by this word Rei And here it will not be amiss to give you a brief description de quibus rebus what the Enquest may inquire of and finde Of the Law Wherefore though it be true that a Iury shall not be charged nor meddle with a matter of Law and if they do and finde it their Verdict as to this shall be void yet daily experience as well as Littleton Sect. 368 tells us that they may take upon them the knowledge of the Law and give a generall Verdict though to finde the speciall matter is the safest way for them because if they mistake the Law they run into the danger of an Attaint In many cases the Jury are to inquire of the knowledge and intent of a man Of a mans intent as where the Nar. is that the Defendant kept a Dog which killed the Plaintiffâ— Shéep Sciens canem suum ad mordendas oves consuetum there though Sciens be not traversable yet the Jury upon Evidence must inquire of it lib. 4. 18. In some Cases Of spiritual things a Jury may try and finde a spiritual thing as a Divorce Matrimony c. and must take notice thereof upon pain of Attaint lib. 4. 29. lib. 9. lib. 7 43. In Trespass Quare Clausum fregit in the County of D. upon not guilty If the Jury finde the Defendant guilty in the County of S. their Verdict is void But if they finde him guilty generally an Attaint lyeth Finch 400. The Jurors of one County may finde any transitory things done in another County Nay sometimes they must finde locall things in another County as if the Heir pleads â—iens per discent and the Plaintiff replies Assets in a Parish and Ward within London the Juâ—y may finde Assets in any County In the same câ—se against an Executor who pleads pleâ—e administravit the Jury may likewise finde Assets in any part of the World Of things done in another County or Country And the Reason is because the place is onely named for necessity of tryall But where the place is part of the Issue it is otherwise And therefore if I promise in one place to do a thing in another and Issue is upon the bâ—each the Jury ought to come from the place of the breach But if I promise in London to do a thing at Budeaux in France and Issue upon the breach yet this shall be tryed in London for necessity because otherwise it would want tryall and the Jury must inquire of the breach at Burdeaux But if I promise in France to do a thing in France so that both Contract and performance is beyond Sea this wants tryall in our Law lib. 6.47 li. 7. 23. 26. 27. The Jury may finde Estoppels Estoppels as the taking of a Lease of a man 's own Land by Déed indented or the deliâ—ery of a Déed before the date as in Debt by an Administrator upon a Land dated 4 Aprilis 24 Eliz. The Defendant pleaded that the Intestate dyed before the date of the Obligation and isint nient son fait upon which they were at Issue and adjudged that the Jury might finde that the Bond was delivered the 3d of April because they are sworn ad veritatem dicendum though the parties are estopped to plead a Déed was delivered before the date but they may plead a delivery after the date because it shall never be intended that a Déed was delivered before the date but after it may But if the Estoppel Estoppels or admittance be within the same Record in which Issue is joyned then the Jurors cannot finde any thing contrary to this which the parties have affirmed and admitted of Record though it be not true For the Court may give Iudgement upon matters confessed by the parties and the Jurors are not to be charged with any such thing but onely with such in which the parties vary li. 2. 4. li. 4. 53. Co. Lit. 227. The Jury may finde Déeds or matter of Record Records not shewed if they will though not shewed in Evidence Finch 400. They may inquire of things done before the memory of man lib. 9. 34. The Jury may finde a Warranty Warranty being given in Evidence though it be not pleaded Nay the Jury may finde that which cannot be pleaded as in Trespass upon not guilty The Jury may finde that the Defendant leased Lands for life upon Condition and entred for the Condition broken Though this cannot be pleaded without Deed yet the Jury may finde it Lit. Sect. 366. But this matter comes more properly under the title Evidence wherefore we will procéed to that CAP. XI Evidence EVidence Evidence Evidentia This word in legall understanding saith Coke 1. Inst 283. doth not onely contain matters of Record as Letters Patents Fines Recoveries Inrollments and the like and writings under Seal as Charters and Déeds and other Writings without Seal as Court-Rolls Accounts and the like which are called Evidences Instrumenta But in a larger sense it containeth also Testimonia The Testimony of Witnesses and other proofs to be produced and given to a Jury for the finding of any Issue joyned betwéen the parties And it is called Evidence because thereby the point in Issue is to be made evident to the Iury Probationes debent esse evidentes id est perspicuae facile intelligitur And this Evidence with Bracton we may terme probatio duplex viz. viva as Witnesses viva voce and Mortua as by Déeds Writings and Instruments and violenta presumptio in many cases is plena probatio and therefore if all the Witnesses to a Déed be dead then the Déed shall receive Credit Presumption per collationem sigillorum Scripturae c. but especially if there hath béen a continuall and quiet possession which is a violent presumption 1 Inst 6. for no man can kéep his Witnesses alive Men that are so branded with Infamy that they cannot be Jurors for which sée before who may be Jurors cannot be Witnesses The Wife cannot be a Witness for or against her Husband Who may be Witnesses neither can the party to the usurious Contract be a Witness against the Usurer in an Information upon the Statute of Usury But Kinsmen never so near Tenants Servants Masters Counsellors and Atturneys c. â—ay be Witnesses A Counsellor may be a Witness to the Agréement c. but not to validity of an assurance nor to the Counsel he gave March Rep. 43. If a Witness being served with Process and having money sufficient to bear his
Tryals per Pais OR THE LAW CONCERNING JURIES BY Nisi-Prius c. Methodically Composed for the Publick Good in the 16th Year of the Reign of our Soveraign Lord CHARLS the Second King of England Scotland France and Ireland c. By S. E. of the Inner-Temple Esquire Per testes solum lex ipsa nunquam litem dirimit qua per Juratam xij hominum decidi poterit Cum s◠modus iste ad veritatem eliciendam multo potior efficatior quà m est forma aliquarum aliarum legum orbis Fortescue cap. 31. London Printed by John Streater James Flesher and Henry Twyford The Assigns of Richard Atkyns and Edward Atkyns Esquires 1665. The PREFACE THE Philosopher could not see a man unless he hear him speak Loquere ut videam Speech is the Index of the Mind and the Mind only discriminates the Man For although an Ideot who hath but the shape of a man may with silence so hide his folly that strangers to his Manners cannot discern him from a Sophister Yet doubtless Silence is the greatest Enemy to Learning the Grave wherein oblivion buries the Parts and Knowledg of the bravest spirits Wherefore Learned Salust from this takes his Exordium Omnes homines qui sese student praestare caeteris animalibus summa ope niti decet ne vitam silentia transeant veluti pecora Those men who would excel Beasts should labour that their lives might not passe in such silence as Beasts do It seems he deemed that man little inferior to a Beast who acted nothing to prolong his Memory For this he held to be the duty of every man saying Quo mihi rectius esse videtur ingenii quà m virium opibus gloriam quaerere quoniam vita ipsa qua fruimur brevis est memoriam nostri quà m maxime longam effiiere In my opinion 't is far better to acquire Glory by the Riches of Wit then strength and because our lives are short of themselves we should indeavour by Ingenuity to eternize their memory And to effect this Nulla dies sine linea Nulla dies abeat quin linea ducta supersit No day should passe over our heads wherein we should not act some memorable exploit Men should not live like Snails never stirring out of their Houses but be active I mean not busie-bodies in other mens matters but in their own Callings of which the wise Cato tells us Every man should give a reasonable account And if we believe the famous Seneca Nihil est turpius quà m grandis natu senex qui nullum habet vitae suae argumentum quo diu se vixisse dicat praeter aetatem Nothing is more unworthy than an old man who hath nothing to shew for his Antiquity but a Gray-Beard who is no sooner dead than forgotten long before he is half rotten yet who is so apt to deride the Endeavors of other men as this antient Ignoramus whose wrinckles in his face worn-out looks and many years sway more with the vulgar people than all the Arguments of Law or Reason Had Seneca been such a silent Momus the World would never have been blest with his so learned Works And doubtless writing Books is needfull in no Science more than in the Law For without Books how would the Lawyers do for Arguments at the Barr or Resolutions at their Chambers Whence the Oracle Sir Edward Coke pronounces this Omnes debere Juris-prudentiae libris componendis animum adjicere That all men ought to addict themselves to the Composing Books of Law some to the Reporting of the Judgments and Resolutions of the Judges who are Lex loquens and some to the collecting of these Cases and Resolutions methodizing and fitting them for some particular purpose as Littleton Standford Fitzherbert Crumpton Perkins Finch c. and indeed most of the Law-Books extant if not all setting aside the Reports are nothing else but Collections out of others This I speak not in derogation of them in the least for as 't is equally if not more laborious so 't is full as glorious Judiciously to cull out authentick Cases out of the Volumes of the Law where so many are no Law and rightfully place them in a particular Treatise as 't is to report the Judgements and Resolutions from the mouth of the Court for the Reporter is but the Courts Secretary and Cook 's Institutes merit as much as his Reports And Ash's Tables Fitzherbert and Brooks's Abridgment are as useful as the Year Books themselves of which kind of Collections one Elegantly thus breaks out Quo quidem beneficio haud scio aut aliud aut legum Candidatis magis gratum aut Reipublicae magis commodum aut divini honoris illustrationis magis idoneum vel cogitando quidem consequi quisquam poterit Then which benefit I know not whether any man can even imagine another either to Lawyers more grateful or to the Commonwealth more profitable or for the illustration of divine honour more fit For with the least labour a small price and little time they present you with those Resolutions and Judgments which lye scattered in the voluminous Books of the Law which would otherwise cost much time pains and charges to find out The thoughts of which publick good first gave life to these Endeavors of mine Not that any one should in the least imagine that I am so guilty of vain ostentation as to believe that my Parts or Abilities can perform any thing in this kind like other men No Ipse mihi nunquam Judice me placui I could never yet please my self with my own labours much lesse are they worthy to please others haud equidem tali me dignor honore However when I consider that no man hath yet written particularly concerning this Subject and of what generall use it is I doubt not but that this Treatise will receive a favourable construction from most men and a plausible acceptation from others The Use of the Book The use of it is in a manner Epidemicall since mens Lives and Estates are subject to that Tryall per Pais here demonstrated but in particular the Practisers at Law especially Atturneys Solicitors Clerks c. and all Jurors for whose directions it is of singular use are chiefly concerned herein But I will not hang a Bush out to invite and prepossess your Judgments Vincat Utilitas The profit which every ingenious Reader shall gather out of it will speak more for it than the best Eulogical Preface And for my own part I profess my self to be Philomathes but can plead no other Plea than Not guilty to Polymathes I must confess never any man took a Law-Book in hand with greater affection to it than I and notwithstanding the hard-favoured 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
Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court cannot refuse a Special Verdict The Court cannot refuse it if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned A special Verd ct may be found upon any Issue as upon an eisque hoc c. whether the Iury could finde a Special Verdict upon a special point in Issue or no as they might upon the generall Issue But this question hath béen fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Verdict and finde the matter at large en chescun issue en le monde so that the matteâ— found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions reall personall and mixt and upon all Issues joyned generall or speciall the Iury might finde the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not onely in Cases betwéen party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmitive of the Common Law And as this special Verdict is the safest for the Iury A Free-hold upon Condition without Deed may be sound by Verdict though it cannot be pleaded 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366. 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concernes a Fréehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12. men taken at large in an Assize of Novel disseisin or in any other Action where the Iustice will take the Verdict of 12. Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for terme of life without Déed upon Condition to tender to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessée is seised as of Fréehold and after the Rent is behinde by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Disseisin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for terme of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behinde at any such Feast at which it ought to be paid then it should be lawfull for the Lessor to enter c. By force of which Lease the Plaintiff was seized in his Demesne as of Frée-hold and that afterwards the Rent was behinde at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgement that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same mannor it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue Also in such case Generall Verdict where the Enquest may give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise finde Estoppel Estoppels which cannot be pleaded as in the 2d Report fol. 4. it well appeares where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Déed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23 Eliz. and found the Tenor of the Déed in haec verba Noverint univeâ—si c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Déed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Déed And the Reason of the Iudgement was That although the Obligée in pleading cannot alledge the delivery before the date Note that a Deed may be pleaded to be delivered after the date but not before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. â— as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Déed yet the Jurors who are sworn ad veritatem dicend shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admâ—â—teth the Wast c.
battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in trespass de clauso fracto of the Barons Baron Feme which ought not to be But for the Battery of the feme they may joyn whereto all the Court agreed But it was moved that in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespas by Baron and Feme for the battery of both The Defendant pleaded Not guilty and found guilty and damages assessed for the Battery of the Baron by its self and for the Battery of the Feme by its self and Iudgment was given for the damages for the battery of the feme the Writ abated for the residue And of that opinion was Lea Chief Justice Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife Rochel and his Wife against Steel brought an action of trespass and assault in the Exchequer Hill 16. 59. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but â—â—und nothing concerning the Husband Wherefore Iudgment was stayd but the Barons held that if the Iury had found the Defendants not guilty as to the Husband then the Verdict had helped the Declaration and the Plaintiff should have had Iudgment for the damages for the battery of the Wife Of what a Verdict may be The Iury may finde any thing that may be given in Evidence to them as Records either Patent Statute or Iudgment Things done in another County Plo. Com. 411. or Country for which sée Evidence before Hob. 227. And of these things they ought to have Conusance they are to have Conusance also of all Incidents Incidents and dependants thereupon for an Incident is a thing necessarily depending upon another Co. Littleton 227. b. The Verdict may be against the Letter of the Issue so the substance is found If the matter and substance of the Issue be found it is sufficient though it be against the Letter of the Issue As in the first Institutes fo 114. b. A modus decimandi was alledged by prescription time out of minde for Tythes of Lambs And thereupon Issue ioyned And the Iury found that before twenty years then last past there was such a prescription Prescription and that for these twenty years he had payd Tythe Lamb in specie And it was objected first that the Issue was found against the Plaintiff for that the prescription was generall for all the time of the prescription and 20. years fail thereof 2. That the party by payment of Tythes in specie had waved the prescription or custome But it was adjudged for the Plaintiff for albeit the modus decimandi had not béen payd by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assise of Darrein Presentment if the Plaintiff alledge the avoydance of the Church by privation Avoydance and the Jury finde the voydance by death the Plaintiff shall have judgement for the manner of voydance is not the title of the Plaintiff but the voydance is the matter 1 Instit 282. If a Gardein of an Hospitall bring an Assise against the Ordinary Deprivation he pleadeth that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron the Ordinary shall have judgement for the deprivation is the substance of the matter Ib. The Lessée Covenants with the Lessor not to cut down any Trées c. and binds himself in a Bond of 40. pounds for the performance of Covenants The Lessée cut down 10. Breach of 20. Trees cut down for 10. Trées the Lessor bringeth an action of debt upon the Bond and assigneth a breach that the Lessée cut down 20. Trées whereupon Issue is joyned and the Jury finde that the Lessée cut down ten Judgment shall be given for the Plaintiff for sufficient matter of the Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminall Causes For if A. be appealed or indicted of Murder viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo forma Indictment of Murder and Verdict findes Manslaughter yet the Jury may finde the Defendant guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and malice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma Modo forma are not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not finde the precise Issue As if a man bring a Writ of Entry in casu proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the alienation made in Fée and the Tenant saith that he did not alien in Manner as the Demandant hath declared Alienation and upon this they are at Issue and it is found by Verdict that the Tenant aliened in tail or for terme of another mans life The Demandant shall recover yet the alienation was not in manner as the Demandant hath declared Littleton Sect. 483. Also if there be Lord Tenant the Tenant hold of the Lord by fealty onely the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespas against his Lord Trespass by the Tenant against the Lord. for his Cattel so taken and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behinde he came to distrain c. And demand Iudgement of the Writ brought against him Quare vi armis c. And the other saith that he doth not hold of him in manner as he supposed and upon this they are at Issue And it is found by Verdict that he holdeth of him by fealty onely in this case the Writ shall abate and yet he â—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