Law, Book 4 · Chapter 36
CHAP. 36.
Of Triall by Iurie.
THis being of a matter en fait, that is to ſay, done in the Countrey. For 9. H. …. 38.a Iurie ſhall not be charged with a matter in Law, nor it ſhall not bee giuen in euidence vntounto them. But if they will take knowledge of the Law, they may giuegive their verdict generally, viz. 14. El. Pl. 410.where a verdict may be giuen at large. As vponupon 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 euidence without ſhewing it vnderunder 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 vponupon paine of attaint, vnleſſe it be ſhewed vnderunder the ſeale is triable by the oath of twelue free and Old N. B. 171. The forme of the writ of venire facias.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)41. aſſ Plxj. or xiij. (b) is void: free, not (c)26 aſſ. Pl. 28.villeins, nor (d)14. H▪ 4. 19.aliens: lawfull, for one outlawed may not be a Iuror, becauſe he is not Legalis homo, (e)21. H. 6. 30.and of the ſame Countie, for vponupon (f)9. H. 6. 63.a treſpaſſe locall, as graſſe cut downe in the Countie of D. where the treſpaſſe was in the Countie 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 28. H. 8. Dy. 30.if they find them guiltie generally, an attaint lyeth. But vponupon an iſſue whether the Executors hauehave aſſets in their hands, the Iurie may find the aſſets in any Countie, for it is but a tranſitorie thing. Laſtly, the Iurie muſt be indifferently choſen, ſo as neither the Sherife that maketh it (for that is good cauſe of challenge to the panell or array) nor the Iurors that are to paſſe vponupon 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 Iuror at the parties denomination. And either 7. H. 4. 10.the Sherife or Iuror to be of his (a)8. aſs. Pl. 23.fee, or his (b)21. E. 4. 67.ſeruant, or within (c)20. H. 6. 39. for the Sherife.his diſtreſſe, whether his tenant (imediate or not imediate, as (d)38 E. 3. 25.holding of I. S. who holdeth of the partie) or not his tenant, as where he is (e) 38. E. 3. ibid.to come to the parties hundred, or the party (f) 15. E. 4. 18. Br. chall. 68. 38. E. 3 ibid. maketh a quaere of thi…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 (g) 15. Eliz. Pl. 425. for the ſherife. 21. E. 4. 63. for a Iuror.the array, and in a Iuror to the Poll: although 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 vouched (which is entendible for the warrantie and land of the wife) and the Sherife or Iuror be coſin in the ninth degree vntounto the husband; the reaſon whereof is, for the affection which the law entendeth that the one doth carrie to the other. And becauſe one may be heire vntounto the other of other land. And therefore it is a good challenge in perſonall ſuits alſo: To hauehave beene (a)21. H. 6. 39. for the Sherife. 3. H. 6. 24. for the Iuror.arbitrators on his part in that matter. To (b)11. H. 4, 26.hauehave an action of batterie depending againſt the partie, or an action of debt by the partie againſt him, &c. The Iuror to hauehave (c)49. E. 3. 2.taken money for his verdict to hauehave (d)49. E. 3. 1.giuen it before hand, or to hauehave (e)7. H. 4. 11.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 onelyonly do induce it: as to be the parties (f)21. E. 4. 67. for the ſherife. 14. H. 7. … for a Iuror.maſter, (g)49. E. 3. 1.councellor, Atturny, (h)14. H. 7. 2.Steward of his mannor, to (i)11. H. 4. 26.ſue him in an action of debt, &c. to be (k)20. H. 7. 2.of the ſame ſocietie with him, as if both be of Graies-Inne, or the (l)14. H. 7. 2.partie to be within his diſtreſſe, or (m)18. E. 4. 13.he to hauehave paſſed before vponupon ſuch another matter.
Statutes.
Weſtm̄ 2. cap. 38. In an aſſiſe no more ſhall be ſommoned but xiiij.
Men aboue lxx. yeares of age continually 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 franchiſe ſhall bee tried in the Countie where the action is brought.
2. E. 6. cap. 24. VponUpon 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 countie 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 appointed by commiſſion. And the triall whether 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 treaſons, felonies, robberies, murders, and confederacies within the Admiralls iuriſdiction ſhall bee enquired and determined in ſuch forme of Law as if it were done vponupon, 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 arraignment 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 commiſſioners 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 determined 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 common Law.
23. E. 3. cap. 3. No enditor be put in enqueſts vponupon 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 hauehave xx. s. a yeare freehold, nor in aſſiſes triable out of their owne ſhire, vnleſſe they hauehave xl. s.
21. E. 1. De ponend' in Aſſiſa. None ſhal be put in aſſiſes triable out of their owne ſhire but ſuch as hauehave lands to the yearely value of C. s. nor in aſſiſes triable in their owne ſhire, vnleſſe they hauehave xl. s.
2. H. 5. cap. 3. None ſhall paſſe in an enqueſt vponupon 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 hauehave 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 eueryevery Seſſion and gaole deliuerie for that Towne, though he hauehave 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 returned in the Kings Bench, Common place, Exchequer, or before Iuſtices of aſſiſe, ought to hauehave xl. s. freehold, there they ſhall from hencefoorth hauehave 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 facias. Theſe two Statutes extend not to corporations.
27. Eliz. cap. 7. No Bailife of libertie ſhal returne to the Sherife, or deliuer vntounto 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 libertie without ſome addition whereby he may be knowne, nor within a libertie with other addition than that is deliuered vntounto him by the Baylife, &c.
8. H. 4. cap. 3. Euerie Iuror returned within the Countie of Middleſex ſhall be called the fourth day of the returne, and appearing 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 diſſeiſin, mortdanceſter, and attaints, ſhall be taken thrice a yeare by two Iuſtices aſſigned, 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 taking of the aſſiſe, the Iuſtices of the Bench ſhall ſend it backe againe to them.
All pleas in either of the Benches that require ſmall examination, ſhall be determined before them.
27. E. 1. cap. 4. Statutum de finibus leuatis. Such enqueſts being taken, ſhall be returned into the Bench, and there iudgement ſhall be giuen.
Enqueſts and Recogniſances determinable 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, vnleſſe it require great examination.
12. E 2. cap. 3. Stat̄ Eborat̄. Enqueſts in pleas of land (that require no great examination) 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 certaine day be giuen in the Bench, and a certaine day and place in the countrey, i… preſence 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 returned.
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 hauehave 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 Iuſtice of that place, if any Iuſtice of that place may well go into thoſe parts. Elſe before 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 vponupon iſſue ioyned in the Kings Bench or Chancerie, and the chiefe Iuſtice of the Common pleas, and chiefe Baron of the Exchequer, vponupon iſſues ioyned in their ſeuerall Courts (or in their abſence two other Iuſtices or Barons) or made Iuſtices of niſi prius for the Countie of Middleſex, in all iſſues ioyned to ſet in Weſtm̄ Hall within 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, makers of confederacie, and committors of Champertie, and all other things conteyned 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 hauehave power in caſes of felony and treaſon as wel vponupon acquittaile as attainder, and thereupon to award execution.
Stat̄ Eborat̄. 12. E. 2. cap. 2. VponUpon a deed denied where witneſſes are named, proceſſe ſhall be awarded againſt the witneſſes if they come not at the grand diſtreſſe, or vponupon 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 hauehave idem dies, and not appearing, then the firſt iſſues returned vponupon them ſhall be forfeit, and the enqueſt taken, notwithſtanding their abſence.
An enqueſt ſhall be taken notwithſtanding the abſence of witneſſes dwelling in a franchiſe where the Kings Writ runneth not. Foure of the Iurie muſt alſo be of the 7. H. 4. 17. 36. H. 8. Dy. 61.ſame hundred, and ſo many are enough though it be in an attaint where the Iurie is xxiiij. In an information vponupon the Statute of pluralitie of farmes, for hauing 7. Farmes in 7. Townes in foure ſeuerall hundreds: If foure of the Iurie hauehave any thing, or dwell within any of the foure ſeuerall hundreds it is ſufficient.
Statutes.
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 only, for (a)15 Eliz.onelyonly 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)49. aſſ. Pl. 1. 1.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)49. E. 3. 19. 21. H. 6. 3.an action of treſpaſſe, if the defendant iuſtifie for common appendant to land in another Countie: or in a writ of anuitie and Count of a ſeiſin in another Countie then where the Church is, out of which the annuitie goeth.
Statutes.
7. Rit̄. 2. cap. 10. An aſſiſe of nouell diſſeiſin of rent out of the Tenements in diuerſe Counties, ſhall be in the confine of the ſaid Counties.
But vponupon an enditement of an offence againſt the Crowne, the triall ſhall neuer 4. H. 7. Coro. 60. 6. H. 7. 10.be by ioynder of Counties. Therefore an enditement that one ſtroke I S. in one countie, of which ſtroke hee died in another Countie, is no good enditement, becauſe it cannot be tried, for that the Counties cannot ioyne in an enditement. And therefore before the Statute 2. and 3. E. 6. (which altereth 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 appeale.
But if the Defendant plead in any action, as in a homine replegiando, or though it 19. H. 6. 18. by the common law. 40. E. 3. 36.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 eueryevery ſuit betweene an Alien and a Demeſne (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 2. Mar. Pl. 117.the Iurie.
Statutes.
Magn̄ chart̄ cap. 29. A Peere of the Realme vponupon 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 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.the Merchants.
The Iurie in a writ of right is called the Grand Aſſiſe. Being foure Knights, … other in default of Knights, chuſing a Iurie of 12. vntounto them. So note xvj in all, for the grand Iurie is alwayes aboue xij. and therefore no attaint lyeth for him that loſeth 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 Iurors, if it be (a)27. H. 8. 26.before any Iurors ſwor…, the Court ſhall chuſe the Triors, when any Iurors are ſworne they muſt trie it.
Challenge to the array is when the Iurie is not ſufficiently empanelled vponupon … cauſe of challenge to the Sherife, and afterwards to the Coroners, who by reaſon (…) 14. H. 7. 31. 4. H. 7. 3.of iuſt exception againſt the Sherife made or ſhould make the array, the (d)8. H. 6. 12. 15. E. 4. 24.Court muſt chuſe certaine named Eſloirs, (e)15. E. 48.where the parties ſhall neuer hauehave challenge to the whole array. Challenge to the poll is when any of the Iurors are inſufficient to paſſe vponupon the triall. This challenge muſt be taken before the pannell be 27. H. 8. 26.peruſed: For if the plaintife challenge one, and when the pannell is peruſed, the defendant 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 Iutors choſen by the Court, againſt whom 27. H. 8. 26.no challenge ſhall be admitted, but challenges that ſound not in reproch of the iuror, as to be (a)49 E. 3. 1.of counſell with the party, or (b)3. H. 6. 36.within his diſtreſſe, to hauehave (c)19. H. 6. 9.nothing within the hundred, or (d)21. H. 7. 29. 27. H. 8. 26.not ſufficient freehold, ſhall be examined vponupon his oath, which we call an examination vponupon 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 (e) 7. H. 4. 46. 7. E. 4. 17.paſſe thorough the pannell. So ſhall not any 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… Stam. 157. b. Doct. St. ꝑ Br. chall. 11. in an appeal.without ſhewing cauſe which is called a peremptorie challenge.
Statutes.
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, … 20 E. 4. 11. Stam. 159. ….not appearing. But if all the pols be challenged 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)Stam. 155 c.till it bee … which we call a Tales, which muſt be… … (b)Bract tales 11euen number (c)37. H. 6. 12.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)14 H. 7. 2.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.
Statutes.
35. H 8. cap. 6. made perpetuall. 2. …. … cap. 32. A Tales may be made vp before Iuſtices 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 vponupon requeſt by any authoriſed thereunto, or aſſigned of the Court, or by the partie that followeth vponupon a penal ſtatute as wel for the King as for himſelfe.
14. El. Cap. 9. Such a Tales de circumcibus before the Iuſtices of Niſi prius ſhall be granted at the prayer of the defendant or auowant.
But in Enditements and Appeales 14. H. …. 7.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 Iuſtices) 20. H. 7. 3. 6. H. 8. Dy. 3.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 vponupon arraignement either at the (a)14. H. 7. 2.Kings ſuit, (b)14 H. 7. ibid.or in an Appeale acquitting one that was found guilty of the (c)13. E. 4. 3. 4. E 6. 12.death of a man vponupon an enquirie (d)13 E. 4. ibid. 4. E. 6. ibid.by the Coroners Super viſum corporis muſt find who did the fact. But not vponupon an Enditement (e)14 H. 7. ib▪before the Sherife or Iuſtices of peace, for that is not of Record, a… th… finding before the Coroner is, (f)13. E. 4. ibid. 4 E. 6. ibid.neither doth this take place in an acquitaile vponupon an Enditement for the felonious taking of goods.
The Iurie in an Aſſiſe of Nouel diſſeiſ… (which are there themſelues properly called 7. E. 6. Pl. 91. Ibid.an aſſiſe) ſhall inquire of the plea in abatement, though the iſſue be ioyned vponupon the ſeiſin and diſſeiſin. And therefore no plea in Abatement is there anſwerable.
34. E. 1. De Coniunctim feoffatis. The defendant in Aſſiſe alledging iointenancie of his part with a ſtranger by Deed, the plaintife may auer him to be ſole tenant; wherupon 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 originall had been purchaſed againſt him iointly. If the exception be prooued falſe by the Aſſiſe, they ſhall hauehave a yeares impriſonment though the aſſiſe paſſe for them. If the defendant abſent himſelfe at the day, the Aſſiſe ſhall paſſe againſt him by default, though the ſtranger appeare and iuſtifie the Deede. Whither both, or one appeare, 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 alledged by the Bailife of any Tenant. The like proceſſes in aſſiſes of Mortdanceſter and Iuris vtrum.
An Infant bringing an Aſſiſe, if a matter en fait, that is, done in the ſame Countie be pleaded againſt him, whether in Abatemēt, (a) 11. Aſſ. pl. ….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)48. E. 3. 33.as the Deed of his Anceſtour, with warrantie, the Iurie ſhall inquire of all the circumſtances. Otherwiſe it is in a Writ (c)9 E. 4. 34.of Entrie ſur diſſeiſin, or other (d)48. E. 3. ibid.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 vponupon pleading a recouerie (e)48. E. 3. ibid.againſt him, or other matter of Record: in that caſe he muſt anſwer, and the Iury ſhall not inquire of the circumſtances, fot the Court ſhal plead and maintaine for him.
The like inquirie of the circumſtances 28. Aſſ pl. 21.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 hauehave 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 vntounto the aſſiſe at large, than otherwiſe.
The forme of an Aſſiſe of nouel Diſſeiſ… i… Old N. B. 104.this, Rex vic' ſalutem. Quaſtus eſt … B. iniuſte, & ſine iudicio diſſeiſiuit e… tenemento ſuo in N. infra triginta ann… i… …ltimos 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…ſque 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… 14. El. D. 310. for all.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 waranty) 40. E. 3. 48. 39. Aſſ pl. 13.trauerſe any point of the writ, as the dying 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 recouer notwithſtanding that, for ſuch an enquirie ſhould not bee vponupon 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 Demaundant, 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, … 9. E. 4. 3….matter doubtfull in Law, for a Trauerſe may be omitted. As in debt againſt an Executor, it is a good plea to ſay, Adminiſtration was committed to him, and therefore he ſhould be named Adminiſtrator, and not executor, without trauerſing that he is not Executor, for the lay people know no difference betweene one adminiſtring as Executor and one adminiſtring as Adminiſtrator.
The ſpeciall matter may be pleaded together with the generall iſſue, &c. As that 9. H. 6. 38.the Obligation put in ſuite, was ſealed by him and deliuered to A. to keepe till certaine 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 verdict, 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 14. aſſ. Pl. 9. 4. E. 4. 33. 14. H. 6. 4.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 mannor extending into both, he cannot abridge either of them, for then the writ remaineth not true. In a writ of waſt and aſſigne it among other things, in racing of a Copper 10. El. Dy. 172.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 39. E. 3. 10.count of the mannor of D. and xv. acres of land, which in truth are parcell of the mannor, and pleaded by the defendant in abatement of the writ: hee may abridge his demand of the xv acres. In treſpaſſe de bonis et catallis captis, and count of money taken away …9. E. 3. 20. Br. abridgem. 111.(for which this forme will not ſerue, the money muſt needs bee expreſſed in the writ) hee may abridge the count touching that.
Statutes.
21. H. 8. cap. 3. The demaund of a thing entire may bee abridged before verdict, though thereby the writ become falſe. After acquitaile vponupon an appeale or enditement of felonie or treaſon, he ſhall neuer be drawne in queſtion for the ſame offence againe. Therefore vponupon an enditement of manſlaughter or murder, the Iuſtices (by diſcretion) were wont not to proceed to arraignment 22. E. 4 Coro. 44.till the yeare and the day were paſt, for otherwiſe if he ſhould bee acquit vponupon his arraignment, the parties appeale were loſt.