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Of Triall by Iurie.
THis being of a matter en fait, that is to say, done in the Countrey. For * 1.1 a Iurie shall not be charged with a matter in Law, nor it shall not bee giuen in euidence vnto them. But if they will take knowledge of the Law, they may giue their verdict generally, viz. * 1.2 where a verdict may be giuen at large. As vpon an issue of Nul tort nul disseisin. So the Iurie may finde of themselues matters of
record if they will, and although it be not giuen in euidence. And therefore a fine or common recouerie may bee giuen in eui∣dence without shewing it vnder the great seale, or seale of the Court, or vouching the Roll of the recouerie, for the Iurie may find them if they will. But peraduenture they are not bound to find it vpon paine of at∣taint, vnlesse it be shewed vnder the seale is triable by the oath of twelue free and * 1.3 lawfull men of the same Countie, indiff••∣rently chosen, whom we call a Iurie, and the making of the Iurie is called a panell or array. And these must be xij. for the verdict of more or lesse, as of (a) 1.4 xj. or xiij. (b) is void: free, not (c) 1.5 villeins, nor (d) 1.6 aliens: lawfull, for one outlawed may not be a Iu∣ror, because he is not Legalis homo, (e) 1.7 and of the same Countie, for vpon (f) 1.8 a trespasse locall, as grasse cut downe in the Countie of D. where the trespasse was in the Coun∣tie of S. if the defendant plead not guiltie, (as he may) and the Iurie find him guiltie in the Countie of S. the verdict is void. But * 1.9 if they find them guiltie generally, an at∣taint lyeth. But vpon an issue whether the Executors haue assets in their hands, the Iu∣rie may find the assets in any Countie, for it is but a transitorie thing. Lastly, the Iu∣rie must be indifferently chosen, so as nei∣ther the Sherife that maketh it (for that is good cause of challenge to the panell or ar∣ray) nor the Iurors that are to passe vpon it (for that is good cause of challenge to the
pols) beare either fauour or malice to any partie. As for the Sherife to put in any Iu∣ror at the parties denomination. And either * 1.10 the Sherife or Iuror to be of his (a) 1.11 fee, or his (b) 1.12 seruant, or within (c) 1.13 his distresse, whether his tenant (imediate or not imedi∣ate, as (d) 1.14 holding of I. S. who holdeth of the partie) or not his tenant, as where he is * 1.15 to come to the parties hundred, or the party * 1.16 hath a rent charge going out of his land. To be of kin to the partie, for Cosinage in the Sherife is a good principall challenge to * 1.17 the array, and in a Iuror to the Poll: al∣though it be in the ninth degree, and that one cannot be heire to the other of the land in variance. As if husband and wife be vou∣ched (which is entendible for the warran∣tie and land of the wife) and the Sherife or Iuror be cosin in the ninth degree vnto the husband; the reason whereof is, for the affe∣ction which the law entendeth that the one doth carrie to the other. And because one may be heire vnto the other of other land. And therefore it is a good challenge in per∣sonall suits also: To haue beene (a) 1.18 arbitra∣tors on his part in that matter. To (b) 1.19 haue an action of batterie depending against the partie, or an action of debt by the partie a∣gainst him, &c. The Iuror to haue (c) 1.20 ta∣ken money for his verdict to haue (d) 1.21 giuen it before hand, or to haue (e) 1.22 passed formerly in the same matter: & such other things as of themselues carrie fauour or malice in them, & are called principal challenges. So
of those which onely do induce it: as to be the parties (f) 1.23 master, (g) 1.24 councellor, Attur∣ny, (h) 1.25 Steward of his mannor, to (i) 1.26 sue him in an action of debt, &c. to be (k) 1.27 of the same societie with him, as if both be of Graies-Inne, or the (l) 1.28 partie to be within his distresse, or (m) 1.29 he to haue passed before vpon such another matter.
Westm̄ 2. cap. 38. In an assise no more shall be sommoned but xiiij.
Men aboue lxx. yeares of age continual∣ly sicke, or sicke at the time of sommons, shall not be returned in Iuries or assises: nor any that dwell out of the Countie, vnlesse it be in grand assises.
Artit̄ super chart̄ cap. 9. 34. E 3. cap. 4. Iuries shall bee made of the next people of the Countie.
11. H. 6. cap 1. None dwelling in stewes shall be of a Iurie.
9 E. 3 cap. 4. A deed pleaded in a fran∣chise shall bee tried in the Countie where the action is brought.
2. E. 6. cap. 24. Vpon stroke or poyson in one Countie, the partie dying in another, an enditement and triall may bee in the Countie where hee dieth. And an appeale
sued there and tried by xij. men of the same Countie.
Likewise the accessaries in one Countie to a murder or felonie in another Countie, shall be indited, arraigned, &c in the coun∣tie where the offence of accessarie is done.
33. H. 8. cap. 20. Enditement of a person lunaticke, being at the time of confession of treason before the Councell, of perfect memorie, and so certified by them, shall be tried by freeholders of any Shire to bee ap∣pointed by commission. And the triall whe∣ther he be culpable or not, shall be there in his absence.
33. H. 8. cap. 23. Confession of Treason, Misprision of Treason, or murder beeing made before the Councell, or three of them, or they vehemently suspecting one of such an offence, it shall be enquired, heard, and determined by Commission out of the Chancerie, in the shire or place limited in that Commission, by such lawfull persons as shall be returned; wherein no challenge for the shire or hundred shall be allowed.
28. H. 8. cap. 13. & 27. H 8. cap. 4. All trea∣sons, felonies, robberies, murders, and con∣federacies within the Admiralls iurisdicti∣on shall bee enquired and determined in such forme of Law as if it were done vp∣on, the land by commission directed to the Admirall and three or foure other assigned
by the Lord Chancellor in the shire limited in their commission, where no challenge shall be for the hundred.
32. H, 8 cap. 4. The enditement and ar∣raignment of treasons and misprision of treasons in Wales, or else where the writs out of the Chancerie of England run not, shal be in such shires, and before such com∣missioners as the King shall appoint.
35. H. 8. cap. 2. All treasons, misprisions, or concealments of Treason done out of England, shall be enquired, heard, and de∣termined in the Kings Bench by men of that shire where the Bench sitteth, or else before Commissioners, and in such shire as shall be limited by commission.
1. & 2. Ph & Mar. cap. Trials for treason shall be according to the course of the com∣mon Law.
23. E. 3. cap. 3. No enditor be put in en∣quests vpon the deliuerance of enditees of felonies or trespasse.
Westm̄. 2. cap. 38. None shall bee put in assises or Iuries triable in their owne shire, but such as haue xx. s. a yeare freehold, nor in assises triable out of their owne shire, vn∣lesse they haue xl. s.
21. E. 1. De ponend' in Assisa. None shal be put in assises triable out of their owne shire but such as haue lands to the yearely value of C. s. nor in assises triable in their owne shire, vnlesse they haue xl. s.
2. H. 5. cap. 3. None shall passe in an en∣quest vpon the triall of the death of a man, nor betweene partie and partie in plea reall or personall, whereof the debt and damages amount to xl marks, vnlesse he haue lands of the yearely value of xl. s.
33. H. 8. cap. 13. In Cities, Boroughes, or corporate Townes, an inhabitant beeing worth xl. l. in goods, shall be admitted in triall of murders and felonies in euery Ses∣sion and gaole deliuerie for that Towne, though he haue no freehold.
35. H. 8. cap. 6. made perpetuall.
2. E. 6. cap. 32. The cause of hauing xl. s. value, must be inserted in the venire facias: and bee of lands out of antient demesne. Where that clause needs not, the Iurors must dispend some land of freehold out of antient demesne within the Countie where the issue is to be tried.
27. Eliz. cap. 6. Where the Iurors retur∣ned in the Kings Bench, Common place, Exchequer, or before Iustices of assise, ought to haue xl. s. freehold, there they shall from hencefoorth haue xl. l. yearely freehold out of antient demesne, in the Countie where the issue is to be tried. And the clause thereof inserted in the venire fa∣cias. These two Statutes extend not to cor∣porations.
27. Eliz. cap. 7. No Bailife of libertie shal returne to the Sherife, or deliuer vnto him
the name of any person to be returned in a Iurie without some addition whereby the partie may be knowne. Neither shall the Iurie, &c. returne any Iuror out of a liber∣tie without some addition whereby he may be knowne, nor within a libertie with other addition than that is deliuered vnto him by the Baylife, &c.
8. H. 4. cap. 3. Euerie Iuror returned with∣in the Countie of Middlesex shall be called the fourth day of the returne, and appea∣ring at the same day, their appearance shall be recorded, and they shall not be amerced nor lose their issues.
5 E. 3▪ cap. 10. A Iuror taking of the one part or of the other, shall neuer be of Iurie more. And besides imprisoned.
34. E. 3. cap. 8. The partie or any stranger may sue him for it.
38. E. 3. cap. 12. And both the Iurors, and the embraceors to procure it, being thereof attainted, shall pay ten times so much as he hath taken.
Westm. 2. cap 30. Assises of nouell dis∣seisin, mortdancester, and attaints, shall be taken thrice a yeare by two Iustices assig∣ned, associated with one or two discreet Knights in the Shire where they come.
In euerie shire before their departure they shall appoint the day of their returne: And adiourne the assises if the taking be by
any meanes deferred.
Also in assises of mortdancester beeing respited, they may adiourne into the Bench if need be. And when it commeth to the ta∣king of the assise, the Iustices of the Bench shall send it backe againe to them.
All pleas in either of the Benches that re∣quire small examination, shall be determi∣ned before them.
27. E. 1. cap. 4. Statutum de finibus leuatis. Such enquests being taken, shall be retur∣ned into the Bench, and there iudgement shall be giuen.
Enquests and Recognisances determina∣ble before Iustices of either Bench, shall be taken in vacation time, before any of the Iustices before whom the plea is brought, being associate to one Knight of the same shire, where such enquests shall passe, vn∣lesse it require great examination.
12. E 2. cap. 3. Stat̄ Eborat̄. Enquests in pleas of land (that require no great exa∣mination) shall be taken in the Countie before a Iustice of the place where the plea is accompanied, with a substantiall man is the countrey, Knight or other, so that a cer∣taine day be giuen in the Bench, and a cer∣taine day and place in the countrey, i•• pre∣sence of the parties demanding of the same.
Enquests in pleas of land that require no great examination, shall bee taken in the Countrey (in manner abouesaid) before
two Iustices of the Bench.
2. E. 3. cap. 17. All such enquests in plea of land shall hereafter be taken as well of the request of the tenant, as demaundant.
42. E. 3. cap. 11. Nisi prius shall not bee granted before the name of the Iurors re∣turned.
7. R. 2. ca. 7. In all manner of pleas where an Nisi prius is grantable of office after the great distresse returned, and thrice serued before the Iustices against the Iurors, and thereupon the parties demanded if any of the said parties will pursue, or if the parties refuse to haue Nisi prius in the case, then at the suite of any of the Iurors that is present a nisi prius shal be granted for ending of the quarrell.
14. E. 3. cap. 16. The Nisi prius in the Kings Bench shall be granted before a Iu∣stice of that place, if any Iustice of that place may well go into those parts. Else be∣fore a Iustice of the Common place, &c. otherwise the chiefe Baron being a man of the Law, if, &c. or else before the Iustices assigned to take assises in those parts. So that one of them be a Iustice of one Bench or other, or the Kings Serieant sworne.
18. Eliz. cap. 12. The chiefe Iustice of England vpon issue ioyned in the Kings Bench or Chancerie, and the chiefe Iustice
of the Common pleas, and chiefe Baron of the Exchequer, vpon issues ioyned in their seuerall Courts (or in their absence two o∣ther Iustices or Barons) or made Iustices of nisi prius for the Countie of Middlesex, in all issues ioyned to set in Westm̄ Hall with∣in the Terme, or foure dayes after.
4. E. 3. cap. 11. confirmed 7 Ric. 2. cap. 15. Iustices of nisi prius shall enquire, heare, and determine, as well at the Kings suite as the parties, all mainteyners, conspirators, ma∣kers of confederacie, and committors of Champertie, and all other things contey∣ned in the sayd Article, as wel as Iustices of Eyer should doe, if they were in the same Countie.
14. H. 6. cap. 1. Iustices of nisi prius haue power in cases of felony and treason as wel vpon acquittaile as attainder, and thereup∣on to award execution.
Stat̄ Eborat̄. 12. E. 2. cap. 2. Vpon a deed denied where witnesses are named, processe shall be awarded against the wit∣nesses if they come not at the grand di∣stresse, or vpon a nihil non inuentus returned, yet the taking of the enquest shall not bee deferred. If he come at the grand, and the enquest remaineth vntaken for some cause, the witnesses shall haue idem dies, and not appearing, then the first issues returned vp∣on them shall be forfeit, and the enquest taken, notwithstanding their absence.
An enquest shall be taken notwithstan∣ding the absence of witnesses dwelling in a franchise where the Kings Writ runneth not. Foure of the Iurie must also be of the * 1.30 same hundred, and so many are enough though it be in an attaint where the Iurie is xxiiij. In an information vpon the Statute of pluralitie of farmes, for hauing 7. Farmes in 7. Townes in foure seuerall hundreds: If foure of the Iurie haue any thing, or dwell within any of the foure seuerall hundreds it is sufficient.
15. H. 8. cap 6. made perpetuall. 2. E. 6. cap. 32. Sixe sufficient Hundreds shall bee returned in euerie Iurie.
27. Eliz. cap. 6. If two sufficient hundreds appeare in any personal action, it is enough.
If the thing in issue lye in the notice of two seuerall Counties, and not of one on∣ly, for (a) 1.31 onely two Counties may ioyne, and no more. And two may though they be not the next, as Kent & Deuonshire, the Iurie shall be made (b) 1.32 equally out of both: That is, sixe out of the one, and sixe out of the other. And this wee call a Ioynder of Counties, as in (c) 1.33 an action of trespasse, if the defendant iustifie for common appen∣dant to land in another Countie: or in a writ of anuitie and Count of a seisin in a∣nother Countie then where the Church is, out of which the annuitie goeth.
7. Rit̄. 2. cap. 10. An assise of nouell dis∣seisin of rent out of the Tenements in di∣uerse Counties, shall be in the confine of the said Counties.
But vpon an enditement of an offence against the Crowne, the triall shall neuer * 1.34 be by ioynder of Counties. Therefore an enditement that one stroke I S. in one coun∣tie, of which stroke hee died in another Countie, is no good enditement, because it cannot be tried, for that the Counties can∣not ioyne in an enditement. And therefore before the Statute 2. and 3. E. 6. (which al∣tereth the law in this case) they were wont to carrie the corps into the Countie where the stroke was. But otherwise it is in an ap∣peale.
But if the Defendant plead in any acti∣on, as in a homine replegiando, or though it * 1.35 be but in a writ of trespasse or debt, that the Plaintife is a villein regardant to a mannor of his in another Countie, yet the same shall bee tried in the Countie where the writ is brought. And this is in Fauorem libertatis.
28. E. 3. cap. 3. confirmed. 8. H. 6. cap. 28. In euery suit betweene an Alien and a De∣mesne (though the King bee a partie) the one halfe of the Iurie shall be the Aliens. If so many be in that visne, and if there be
not to that number, then so many as bee there not parties, nor with the partie to the suite.
Where a Peere of the Realme is 〈◊〉〈◊〉 to the action, a Knight must be returned to * 1.36 the Iurie.
Magn̄ chart̄ cap. 29. A Peere of the Realme vpon an enditement of felonie or treason shall be tried by his Peeres.
20. H 6. cap. 9. Duchisses, Baronesses, Countesses, sole or married, shall be tried (in such cases) as Peeres of the Realme. In a Court of Pipowders the triall is by * 1.37 the Merchants.
The Iurie in a writ of right is called the Grand Assise. Being foure Knights, •••• other in default of Knights, chusing a Iu∣rie of 12. vnto them. So note xvj in all, for the grand Iurie is alwayes aboue xij. and therefore no attaint lyeth for him that lo∣seth in a writ of right, because it passeth by the grand assise which is more then xij.
Challenges are here allowed for th•• parties (if they will) both to the array 〈◊〉〈◊〉 to the pols. And whether to the pannell or the pols, are to be tried by some of the Iu∣rors, if it be (a) 1.38 before any Iurors swor••, the Court shall chuse the Triors, when a∣ny Iurors are sworne they must trie it.
Challenge to the array is when the Iu∣rie is not sufficiently empanelled vpon 〈◊〉〈◊〉
cause of challenge to the Sherife, and af∣terwards to the Coroners, who by reason * 1.39 of iust exception against the Sherife made or should make the array, the (d) 1.40 Court must chuse certaine named Esloirs, (e) 1.41 where the parties shall neuer haue chal∣lenge to the whole array. Challenge to the poll is when any of the Iurors are insuf∣ficient to passe vpon the triall. This chal∣lenge must be taken before the pannell be * 1.42 perused: For if the plaintife challenge one, and when the pannell is perused, the defen∣dant challenge the same person, yet the plaintife may release his challenge, & then the Iuror shall not be drawne, because the defendants challenge is nothing worth, in that it was not made till the pannell was perused, and shal be tried by two of the Iu∣tors chosen by the Court, against whom * 1.43 no challenge shall be admitted, but chal∣lenges that sound not in reproch of the iu∣ror, as to be (a) 1.44 of counsell with the party, or (b) 1.45 within his distresse, to haue (c) 1.46 no∣thing within the hundred, or (d) 1.47 not suffi∣cient freehold, shall be examined vpon his oath, which we call an examination vpon a voyri dire. He that challenged the array if it passe against him, or (which is as strong) if he release it, shall neuer challenge the pols without shewing cause presently, which shall de tried out of hand. Before the Clark * 1.48 passe thorough the pannell. So shall not a∣ny other challenge. And after challenge to a Iuror for one cause, as fauour, &c. which
passeth against the challenger, he shall 〈◊〉〈◊〉 challenge him for another, as for hauing nothing in the hundred▪ &c.
In enditements and appeales of 〈◊〉〈◊〉 the defendant may challenge xxxv. I〈…〉〈…〉 * 1.49 without shewing cause which is called a peremptorie challenge.
22. H. 8. cap. 14. No person arraigned for any petie treason, murder, or felonie, shall be admitted to any peremptorie challenge, aboue the number of twentie.
When there lacketh some to fill the I••••••, as the greater part being returned dead, •••• * 1.50 not appearing. But if all the pols be chal∣lenged and drawne, there no tales shall be, but a new venire facias for tales referred •••• (quales) some like thing, other of the s〈…〉〈…〉 sort shall be taken, for there may bee ma•••• tales one after another, (a) 1.51 till it bee 〈◊〉〈◊〉 which we call a Tales, which must be•• •••• (b) 1.52 euen number (c) 1.53 lesse then the pr〈…〉〈…〉¦pall pannell, As a decem tales, octo tales, & •• or in an attaint where the Iurie is xxiiij. •• tales, &c. And (d) 1.54 euerie tales must be 〈…〉〈…〉 lesse number then other. As after an O〈…〉〈…〉 tales, a Sex tales, but not a decem tales, not •••• Octo tales againe.
35. H 8. cap. 6. made perpetuall. 2. ••. ••
cap. 32. A Tales may be made vp before Iu∣stices of Assise or Nisi prius of able persons of the same Countie, then present at the prayer of the plaintife or demandant.
4. & 5. Ph. & Ma. cap 7. So for the King vpon request by any authorised thereunto, or assigned of the Court, or by the partie that followeth vpon a penal statute as wel for the King as for himselfe.
14. El. Cap. 9. Such a Tales de circumci∣bus before the Iustices of Nisi prius shall be granted at the prayer of the defendant or auowant.
But in Enditements and Appeales * 1.55 that touch life, a Tales may be of a greater number than the principall Panell. As a xl Tales, or as many as the Court wil award, and that is in respect of the peremptorie challenge of xxxv.
The Iurie being charged, may neither eat nor drinke (but by leaue of the Iusti∣ces) * 1.56 before their verdict giuen; and doing it before they bee agreed, it maketh their verdict void. After they be agreed, it is but fineable.
The Iurie vpon arraignement either at the (a) 1.57 Kings suit, (b) 1.58 or in an Appeale acquitting one that was found guilty of the (c) 1.59 death of a man vpon an enquirie (d) 1.60 by the Coroners Super visum corporis must find who did the fact. But not vpon an En∣ditement (e) 1.61 before the Sherife or Iustices
of peace, for that is not of Record, a•• th•• finding before the Coroner is, (f) 1.62 neither doth this take place in an acquitaile vpon an Enditement for the felonious taking of goods.
The Iurie in an Assise of Nouel disseis•••• (which are there themselues properly cal∣led * 1.63 an assise) shall inquire of the plea in a∣batement, though the issue be ioyned vp∣on the seisin and disseisin. And therefore no plea in Abatement is there answera∣ble.
34. E. 1. De Coniunctim feoffatis. The de∣fendant in Assise alledging iointenancie of his part with a stranger by Deed, the plain∣tife may auer him to be sole tenant; wher∣upon Processe shall be made against both the defendant and the stranger. And if at the day both of them iustifie the feofment, they shall maintaine the exception, and further answer to the Assise as if the origi∣nall had been purchased against him ioint∣ly. If the exception be prooued false by the Assise, they shall haue a yeares imprison∣ment though the assise passe for them. If the defendant absent himselfe at the day, the Assise shall passe against him by de∣fault, though the stranger appeare and iu∣stifie the Deede. Whither both, or one ap∣peare, if it be found by the Assise that the Exception was truly alledged, the Assise shall passe no further, but the Writ shall abate. Such an Exception shall not bee al∣ledged
by the Bailife of any Tenant. The like processes in assises of Mortdancester and Iuris vtrum.
An Infant bringing an Assise, if a mat∣ter en fait, that is, done in the same Coun∣tie be pleaded against him, whether in A∣batemēt, * 1.64 as in an assise of rent, that he had made his plaint of the same land whence he supposeth this rent to bee issuing; or in bar, (b) 1.65 as the Deed of his Ancestour, with warrantie, the Iurie shall inquire of all the circumstances. Otherwise it is in a Writ (c) 1.66 of Entrie sur disseisin, or other (d) 1.67 Praecipe qd reddat: for there the point put in issue, and no other, shall be tried by the Iurors. Otherwise it is also in an Assise vpon plea∣ding a recouerie (e) 1.68 against him, or other matter of Record: in that case he must an∣swer, and the Iury shall not inquire of the circumstances, fot the Court shal plead and maintaine for him.
The like inquirie of the circumstances * 1.69 shall be, if in an assise brought against him he plead to the assise at large. Otherwise it is if he plead in bar, for there if the plaintif make himself title as by a statute marchant &c. and the infant trauerse the title which is found against him, the plaintif shal haue iudgment without inquiring of the circū∣stances, because the issue is taken out of the point of the assise, and therefore is al one as if the infant were of full age. So that it is better for an infant to plead vnto the assise at large, than otherwise.
The forme of an Assise of nouel Disseis•••• i•• * 1.70 this, Rex vic' salutem. Quastus est 〈…〉〈…〉 B. iniuste, & sine iudicio disseisiuit e〈…〉〈…〉 tenemento suo in N. infra triginta ann•••• i•• ••l∣timos clapsos. Et idéo tibi praec' qd si pradi•••• •• fecerit te securū de clam' suo pr' os tunc 〈…〉〈…〉∣nement' illud reseisum de catallis quae i•• i••s•• capt', & ipsum ten' cum catall. esse in p••••••••s∣que ad proximā assisam, cum Iustic' ••••'i i•• p••••∣tes ill' venerint. Et in earim fac' 12 liberos & legales homines de visum illo videre tan' illud, & nomino eorū imbreuidri fac'. Et sum' en p•••• * 1.71 bonos sum' qd sint corā praefat' Iustic' ••r' i•• •••• pr••fatā assisam parati inde facere recogn' •••• pona per vadiū & saluos pleg' praed. B. vel 〈…〉〈…〉 suū, si ipse inuentus non fuerit qd tunc sit ibi •••• illud recogn' anct'. Et habeas ibi summ' 〈◊〉〈◊〉 pleg': & hoc breue. Teste, &c.
If the tenant in a Mortdancester (bee it tenant of the land, or tenant by his waran∣ty) * 1.72 trauerse any point of the writ, as the dy∣ing seised of his Ancestor, &c. which goeth in abatement of the writ, yet the Iury 〈◊〉〈◊〉 inquire of all the points: as whether the d••∣mandant be next heire, & whether his ••••∣cestor died within fiftie yeares, &c. 〈…〉〈…〉 one found against the demandant, 〈◊〉〈◊〉 the writ. But a plea in bar of the assise by matter of record, releas, collateral warr〈…〉〈…〉 or such other matter as is out of the 〈…〉〈…〉 points of the Assise, is peremptorie to the Tenaunt, if it passe against him. And •••• such a plea in Barre bee found agai•••••• the Tenaunt, and yet the Iurie inq〈…〉〈…〉
further, and find one of the points of the writ against the Demaundant, as that his ancestor died not seised, &c. he shall reco∣uer notwithstanding that, for such an en∣quirie should not bee vpon a plea in barre. Dyer thinketh it to be so likewise, where the Tenaunt voucheth, and the Demaundant doth counterplead the voucher, viz. that in that case though the counterplea be found for the Demaundant, yet that all the points must be enquired and found for the De∣maundant, or else he shall not recouer. But Fitzherbert thinketh otherwise in that case, because it is a plea in barre, and not to the Writ.
For the Iuries direction in their verdict greater libertie is permitted in pleading, •• * 1.73 matter doubtfull in Law, for a Trauerse may be omitted. As in debt against an Exe∣cutor, it is a good plea to say, Administra∣tion was committed to him, and therefore he should be named Administrator, and not executor, without trauersing that he is not Executor, for the lay people know no difference betweene one administring as Executor and one administring as Admini∣strator.
The speciall matter may be pleaded to∣gether with the generall issue, &c. As that * 1.74 the Obligation put in suite, was sealed by him and deliuered to A. to keepe till cer∣taine Indentures were made betweene the Plaintife and him, before which Indentures made, the Plaintife tooke the Obligation
out of the possession of A. So is it not his deed. This is good, and yet by this generall conclusion the matter precedent shall not be waiued, for it were perillous to put the speciall matter in the mouth of the Lay people.
The Count may be abridged before ver∣dict, so as the originall remaine true, as in an assise of his freehold, and make his plaint of land and rent, he may abridge it * 1.75 for the rent. In an assise of his freehold in D. and demand two mannors in D. he may abridge his plaint for one. But being of his freehold in D. and S. and demand one man∣nor extending into both, he cannot abridge either of them, for then the writ remaineth not true. In a writ of wast and assigne it a∣mong other things, in racing of a Copper * 1.76 fixed to the soile, he may abridge the wast assigned in that, so as thereby he falsifie not his writ. But if the writ bee Quare vastum fecit in domibus boscis & gardinis, he cannot abridge the wast supposed in domibus. In a writ of ward De custodia terre et heredis, and * 1.77 count of the mannor of D. and xv. acres of land, which in truth are parcell of the man∣nor, and pleaded by the defendant in abate∣ment of the writ: hee may abridge his de∣mand of the xv acres. In trespasse de bonis et catallis captis, and count of money taken a∣way * 1.78 (for which this forme will not serue, the money must needs bee expressed in the writ) hee may abridge the count touching that.
21. H. 8. cap. 3. The demaund of a thing entire may bee abridged before verdict, though thereby the writ become false. Af∣ter acquitaile vpon an appeale or endite∣ment of felonie or treason, he shall neuer be drawne in question for the same offence a∣gaine. Therefore vpon an enditement of manslaughter or murder, the Iustices (by discretion) were wont not to proceed to ar∣raignment * 1.79 till the yeare and the day were past, for otherwise if he should bee acquit vpon his arraignment, the parties appeale were lost.
9. H. ••. 38.
14. El. Pl. 410.
Old N. B. 171. The forme of the writ of venire fa∣cias.
41. ass Pl
26 ass. Pl. 28.
14. H▪ 4. 19.
21. H. 6. 30.
9. H. 6. 63.
28. H. 8. Dy. 30.
7. H. 4. 10.
8. ass. Pl. 23.
21. E. 4. 67.
20. H. 6. 39. for the Sherife.
38 E. 3. 25.
(e) 38. E. 3. ibid.
(f) 15. E. 4. 18. Br. chall. 68. 38. E. 3 ibid. ma∣keth a quaere of thi••
(g) 15. Eliz. Pl. 425. for the sherife. 21. E. 4. 63. for a Iuror.
21. H. 6. 39. for the Sherife. 3. H. 6. 24. for the Iuror.
11. H. 4, 26.
49. E. 3. 2.
49. E. 3. 1.
7. H. 4. 11.
21. E. 4. 67. for the sherife. 14. H. 7. •• for a Iuror.
49. E. 3. 1.
14. H. 7. 2.
11. H. 4. 26.
20. H. 7. 2.
14. H. 7. 2.
18. E. 4. 13.
7. H. 4. 17. 36. H. 8. Dy. 61.
15 Eliz.
49. ass. Pl. 1. 1.
49. E. 3. 19. 21. H. 6. 3.
4. H. 7. Coro. 60. 6. H. 7. 10.
19. H. 6. 18. by the common law. 40. E. 3. 36.
2. Mar. Pl. 117.
Preamble of the Stat. 7. E. 4. ca. 2. so reciteth it. 39. E. 3. 2. 39. E. 3 2. 1. Mar. Dy. 98. There must be 12. beside the foure Knights. Bra••. 42.
27. H. 8. 26.
(••) 14. H. 7. 31. 4. H. 7. 3.
8. H. 6. 12. 15. E. 4. 24.
15. E. 48.
27. H. 8. 26.
27. H. 8. 26.
49 E. 3. 1.
3. H. 6. 36.
19. H. 6. 9.
21. H. 7. 29. 27. H. 8. 26.
(e) 7. H. 4. 46. 7. E. 4. 17.
Stam. 157. b. Doct. St. {per} Br. chall. 11. in an appeal.
20 E. 4. 11. Stam. 159. ••.
Stam. 155 c.
Bract tales 11
37. H. 6. 12.
14 H. 7. 2.
14. H. ••. 7.
20. H. 7. 3. 6. H. 8. Dy. 3.
14. H. 7. 2.
14 H. 7. ibid.
13. E. 4. 3. 4. E 6. 12.
13 E. 4. ibid. 4. E. 6. ibid.
14 H. 7. ib▪
13. E. 4. ibid. 4 E. 6. ibid.
7. E. 6. Pl. 91. Ibid.
(a) 11. Ass. pl. ••.
48. E. 3. 33.
9 E. 4. 34.
48. E. 3. ibid.
48. E. 3. ibid.
28. Ass pl. 21.
Old N. B. 104.
14. El. D. 310. for all.
40. E. 3. 48. 39. Ass pl. 13.
9. E. 4. 3••.
9. H. 6. 38.
14. ass. Pl. 9. 4. E. 4. 33. 14. H. 6. 4.
10. El. Dy. 172.
39. E. 3. 10.
••9. E. 3. 20. Br. abridgem. 111.
22. E. 4 Coro. 44.