that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
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
matter and treated thereof And where a subject may challenge the Array for unindifferency there the King being a party may also challenge for the same cause as for Kindred or that he hath part of the Land or the like and where the Array shall be challenged against the King you shall read in our Books In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter whose Interest was concerned and prayed the Venire facias to Elisors and had it being confessed by the Defendant and the Court took it a principal challenge v. Hut 24. More 470. Roll. rep 328. Duncomb and Ingleby Trin. 15 Car. 2. B. R. A prayer to Elisors in Tryals at Bar may be at the suit of the Defendant or Plaintiff but in Nisi prius at the prayer of the Plaintiff only and per Cur. it is a principal challenge that the Plaintiffs Lessor is Sheriff or kindred and if the Plaintiff doth not pray c. the Defendant may challenge the Array at the Assises Lord Brookes Case Trin. 1657. B. R. 'T is a good challenge to the Array that the Array is made and returned by 2 Coroners only when there are four in the County and that the Writ is returned by one of the Sheriffs of London only So if a Bayliff return them that are out of his Franchise or if an Array be to be of persons out of a Franchise Guildable and the Bayliff return them for the Sheriff ought to make it and that some of the Pannel were returned by the Bayliff of a Franchise where the whole Pannel is returned as Array by the Sheriff this is a good challenge to the Array for otherwise the parties would lose their challenge to the Array made by the Bayliff Rolls tit Tryal 636. If the Defendant sue the Writ of Hab. By what person Corpus by Proviso at the return the Plaintiff may challenge the Array for Kindred between the Defendant and the Sheriff D. 15 El. 319. 13. D. 15 El. 319. The Array was quashed although the Sheriff was the Naufe in What Consangunity is sufficient descent and the Tenant in the 7. descent from the Ancestor of whom both descended Cousin to the parties Wife although herself no party So if the Wife be dead if issue be alive These are good challenges to the Array Alliance to one party is a good challenge For affinity If the Sheriff be allied at the making At what time of the Pannel and be dead at the challenge yet this is a good challenge 'T is no challenge that the Sheriff became of kin after making the Pannel 'T is no challenge to the Array if all the Jurors be of affinity It may be after a Tales prayed for no challenge can be until the Jury is full If the suggestion of Cousinage to have the Venire facias to the Coroners be denyed and the Venire facias is awarded to the Sheriff the same challenge shall not be allowed to the Array but any other cause may be alledged than what was before denyed Favourably made by the Sheriff or his For favour Bayliff or the Bayliff of a Franchise is a good challenge That the Sheriff is within the Distress of a party or servant to the Plaintiff Of the Robes of the Plaintiff was Arbitrator for a party is procurator and maintainer of a party That the Sheriff purchased part of the Land in question That the Pannel was made by the Bayliff of the Franchise of the other party These are good challenges to the Array 'T is no principal challenge that one party is Tenant or servant to the Sheriff but it is a good challenge for favour It is a good challenge to the Array That Denomination the Sheriff made the Array or put a Juror into the Pannel at the denomination of any of the parties in favour to them or of their servants or of one interessed or of a maintainer or of the Counsel or of a procurator Not if strangers by the Sheriffs leave make the Pannel or it be made at the request of both parties 'T is a good challenge to the Array that For malice one of the parties has brought an action of Debt against the Officer that returns the Pannel or that there is a difference betwixt the Officer and the party that the Officer killed his servant But not that the Officer has Debt against the party for he may demand his Debt without malice The Challenge ought to be quod tempore How and in what manner the Challenge is to be made Pannelli praedict Arraiati the Sheriff was Cousin to the Wife of the Defendant c. not afterwards nor before unless you aver that she was alive or had issue at the making the Pannel If the Challenge be taken for Cousinage it ought to be shewn coment Cousin but in such a challenge to be a Juror 't is not necessary to shew coment Cousin What Counterplea of a Challenge is good and how to be pleaded The mannor and conveiance of the Cousinage alledged in a challenge is not traversable You may traverse the Cousinage prout without modo forma If the Challenge be that the Sheriff was Cousin to the Plaintiff or within his distress 't is no Counterplea to say he is likewise of kin to the Defendant or within his distress also Where the King is party to the issue no Where the King is party challenge shall be to the array for favour 38 Ass 19. Otherwise if the Sheriff be Vadelect of the Kings Crown or such menial servant If it be presented that I. S. hath made a nusance to London and le gents 't is no challenge to the array to say the Sheriff of Middlesex is deputed and removable by the Commonalty of London because this is the suit of the King The King may make his challenge that the Sheriff is within the parties distress although every subject owes greater favour and obedienue to the King by reason of his Allegiance than to any Lord by reason of Tenure In a writ of Right or any other writ a What persons may be impannelled Baron of the Realm may excuse himself In a writ of Right the Inquest ought to be all Knights A Banneret may be impannelled in this writ so may a Serjeant if there be not Chivalers covenable In an attaint upon a recovery by false verdict in an Assise some Knights ought to be returned and if there be not any in the Hundred where the Land lies they shall be returned out of the County By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a