Jurisdictions, Part 86 – Part 88
Challenge.
For that, that you try Iſſues joyned in Court-Baron by aſſent by inqueſt of the Homage, as you may, and not by wager of Law as it is, and alſo in triall of Copy-holds, ſhall be by Oath of the Jury, and alſo for that ſome Challenges are principals, and ſome are but for favour, firſt let us ſee what is a principal Challenge.
PRincipall Challenge is ſaid, where it is evident favour, as kindred, 21 Ed. 4. fol. 11. and 63.
Juror is of aliance, ſervant, or beares mallice, that is to ſay, hath treſpaſſe againſt him, or a Juror is cozen to the Executor which brings the action, and yet he ſhall not recover to his own uſe, and this is a principal challenge &c. 20 Aſs. 11.
Where a Juror is Goſſip of the Plaintiff, it is a principall challenge, and he ſhall be drawn off by the challenge, 2 H. 4. fol. 16.4 Ed. 4. fol. 1. the ſame, 19 H. 6 fol. 66. Contr. 6 H. 6. fol. 40.40. Aſs. 20.
That the Plaintif was retained with a Juror, that is, that the Juror was maſter of the party, is a principal challenge, 2 H. 4. fol. 14.
That the Jury hath paſt before for parcell of the ſame gift in Formedon, is a principal challenge if he ſhew record of that, otherwiſe it is but favour, 8 H. 5. fol. 11. and 7 H. 4. fol. 11. the ſame.
If a Juror (after he is impannelled) eate at the Plaintifs coſts, or take Money for his charges, it is a principal challenge, 13 H. 4. fol. 14. 22. R. 2. Chal. 177. 8. Ed. 3. fol. 69.
Where Land is demanded and the Juror is cozen within the ninth degree, it is a principal challenge, 41 Ed. 3. fol. 9.14. & 15 Eliz. Plowd. 426.
It is a principal challenge that the Juror held of J. S. that holds over of the Plaintiff, 13 H. 6. Statham.
Where a Juror hath a Leaſe of one party, and though he hath granted his Intereſt to another, yet he is within the Diſtreſs of his Leſſor, to the uſing an Action of Debt for the Arrearages, and for that is a principal challenge, 44 Ed. 3. fol. 5.44. Aſſ. 23.
Treſpaſs, the Defendant ſaith, it was the Free-hold of J.S. and juſtifies as Servant of J. S. it a principal challonge that the Juror was within the diſtreſſe of J. S. to E. 4. fol. 11. B.
Treſpaſſe, where the Defendant juſtifies as Servant to the Lord Dacres, it was a principal challenge, that the Juror was within the diſtreſſe of one which held of the Lord Dacres, 15 Ed. 4. fol. 18.
It is a principal challenge that the Juror is cozen to the Wife of the Defendant, for that, that the Iſſue of the Wife may be Heire to the Juror, 8 H. 6. fol. 15.
That the juror at another time had paſt againſt him in the ſame Iſſue, if he ſhew the Record it is a principal challenge, and otherwiſe but for favour, 11 R. 2. Tit. 106.21. Ed. 4. fol. 74. before 7 H. 4.
Juror was challenged for that, that at another time he paſt againſt the Plaintiff for the ſame Debt, which was reverſed by Errour, and for that, that he did not ſhew the Record, it is no principal challenge, 33 H. 6. f. 1.
It is a principal challenge that the Juror was choſen arbitrator for one party, but otherwiſe it is where he was choſen indifferent for them, 3 H. 6 fol. 24.
That the juror held of a Mannour, whereof the reverſion is in the Plaintiff, is a principal challenge, 10 H. 7. fol. 20.49 Aſs. 1. That the juror was of Councel with the Plaintiff and hath taken his fee, this was the challenge, and 7 H. 7. f. 10. that it is no principal challenge.
It is a principal challenge, the Sherif or Bailif which makes the Pannell is ſon in Law to the Defendant, 9 Ed. 4 f. 49.
Thoſe which have been attaint of ſalſe Oath, or were ſeen in the Pillory or Tumbrill, or againſt whom there was Judgement of life and member, ſhall be outed by challenge, and theſe are principal challenges, Britton fol. 134.
Thoſe which pretend to have ſome right in the thing demanded ſhall be outed by challenge, and this is a principal challenge, the ſame Law that the juror is a Villaine 9 Ed. 4. fol. 17. Villaine is principal challenge 26 Book of Aſs. 28.
That a juror was outlawed is a principal challenge, if he ſhew the Record, 11 H. 4. fol. 40. Abridg. Book of Aſs. 6. and 21 H. 6. fol. 30.
The ſame Law that a juror was attaint of conſpiracy, 33 H. 6. fol. 55. 18. H. 8. f. 2. Writ of entry, they are at iſſue, and the Plaintif ſaith, that the Sherif and two of the Coroners are his cozens, and the other two cozens of the Defendant, and praies a Venire facias, to others, and ſhall not unleſſe all were his cozens, for if it were made by the cozen of the Plaintif, the array ſhal be quaſht, but the Defendant cannot quaſh the array by that that it is made by his cozens.
15 H. 7. fol. 9. Plaintif cannot quaſh the array, for that that it is made by his cozen, but may ſhew that, and pray a (Venire facias) to the Coroners, but becauſe it doth not lye in his knowledge, the Plaintif may quaſh the array though the Sherif is of conſanguinity or affinity of the Defendant, but otherwiſe it is of his own part.
19 H. 8. fol. 7. Defendant challenge the array, for that it was made by J.S. cozen of the Plaintif, and this found and the Array quaſht.
10 H. 7. fol. 7. The Array was quaſht for that, that the Plaintif was Goſſip to the Son of the Sherif, or for any other cauſe of the Plaintif.
15 Edw. 4. fol. 23. Treſpaſſe by the Arch-Biſhop of Canterbury, and they were at Iſſue, and the Plaintiff ſaith, that the Sheriffe is his Steward, and ſome of the Coroners are of his Robes, and the reſt within his diſtreſſe, and the Defendant confeſt it, and for that Proceſſe iſſued out to chooſers, and the array by chooſers ſhall not be quaſht, but (the heads.)
18 Edw. 4. fol. 8. Where the Array is made by chooſers, this ſhall not be challenged, but the (heads) ſhall be challenged.
8 H. 6. fol. 60. The Array in Aſſiſe was quaſht, for that it was made by the Sheriffe himſelfe, being Plaintiffe, and it was alſo quaſht, for that it was made by the Coroners at the denomination of the Plaintiffe, for that the Court of Office, awarded Venire facias to Electors.
The challenge is principall
Cozen of one party.
Servant of one.
Maſter of one Party.
At other times,
Brings treſpaſſe againſt one.
Eats at the coſts of one.
Is Lord to one.
Challenges,
Is within the diſtreſſe of one.
Arbitrater of one.
Convict of horrible crime.
Hath right in the thing demanded.
Now let us ſee what is challenge for favour.
WHere one challenges for diverſe cauſes, and concludes for favour, it is not double, otherwiſe it is of principall challenge, 7 H. 6. fol. 44.
That the Defendant is Steward of a Mannor of the Juror, or that he is within the diſtreſſe of the Juror, it is a challenge for favour, and not a principall challenge, but that the Juror is within the diſtreſſe of the Defendant, is a principall challenge; but that the Juror hath marryed the Mother of the Defendant; if ſhe be dead, and he had no Iſſue by her, it is no principall challenge, 14 H. 7. Tit. Brook, 71.
The ſame Law where a Juror hath marryed a Cozen of the Defendant, which might be heire to him, during their lives it is a principall, but contrary, if the Wife be dead without Iſſue, 14 H. 7. fol. 1. & 15 H. 7. fol. 9.
It is no principall challenge, that a Son of a Juror, hath marryed a Daughter of the Plaintiffe, 3 Edw. 4. fol. 12.
Juror is, a Keeper of the Forreſt by the Kings Grant, and the Plaintiffe is Maſter of the Game, is no principall challenge, 16 Ed. 4. fol. 1.
It ſeemes it is no principall challenge, if the Juror ſay he will paſſe with the Plaintiffe before he be ſworne, or that hee was laboured, 21 H. 7. fol. 32. 7 H. 6. fol. 25. the ſame.
That the Defendant hath Treſpaſſe againſt the Juror, depending, if it were after the action brought, it was ſuſpicious, and is no principall challenge, 20 Booke of Aſſiſe, 11.
If a Juror be challenged for that, that one party hath an action hanging againſt him, if he doe not ſhew Record of that, it is no principall, Statham, 25 Ed. 3.
That the Wife of the Sheriffe, or of him which makes the Pannell, is Siſter of the Plaintiffe, ought to conclude of favour, 20 Aſs. 21.26 Aſs. 21. & 22.
Where a Juror is returned by name, Chamberlaine, and Chambers appears, it is a challenge for favour, and ſhall be inquired if he be knowne by both names or not, 32 H. 6. fol. 23.
It is no challenge, that the Juror is Pariſhoner with the Defendant, 22 Aſs. 25.
Attaint, It is no principall challenge, that one of the Grand Jury, and one of the Petty Jury, have marryed two Siſters, 43 Aſs. 46.
In Attaint, It is no principall challenge, that one of the Grand Jury, and one of the Petty Jury are at debate, 50 Book of Aſs. 4.
Juror was challenged for malice, which he had to the Plaintiffe, and tryed, and found indifferent, 27 H. 8. fol. 25.
It is no challenge, that a Iuror appeared where he was not ſummoned, if he were impannelled, 8 Ed. 3. 69 Fitzh. Challenge 4.
It is no principall challenge to ſay, that the Defendant is Tenant to the Sheriffe or Bailiffe, which makes the Array, unleſſe it be for favour, 26 Ed. 3. Statham.
Common is the ſeventh Article which is inquirable.
ANd for that I intend, that when the Statutes enſuing were made for Improvements, immediately the Lords have improved their Wafts as much as they could, or otherwiſe they were ſo moved with charity and pitty to the Poore, that more they would not improve for Charity, I pray God that that may continue.
Becauſe many great ones which infeoffed Freeholders of ſmall Tenements in great Mannours of extent, &c. may improve, when they that are infeoffed have ſufficient Paſture belonging to their Tenements, &c. Merton, chap. 4.
Weſtmin. 2. chap. 46. Recites Merton, and gives rate between Neighbour and Neighbour; and it is, Where it is belonging to their Tenements: But if one claime Common for a certaine number, by Grant, the Lord cannot improve.
16 Ed. 3. tit. 9. If the Lord improve, not leaving ſufficient Common, the Commonner may break way to uſe his Common, See 17 H. 7. fol. 11. for breaking way, 22 H. 7. fol. ult.
Fitzherbart 179. L. Where one hath a Common belonging or appertaining, and is diſtrained, hee ſhall have an Aſſiſe of Common of paſture: Seventh Book of Aſſiſe 16.
8 Book of Aſs. 18. Aſſiſe, Tenant ſaith he hath improved, leaving ſufficient for the Plaintiffe.
If a man grant Land and Common, the Grantor cannot improve againſt his Deed, 12 H. 3. fol. 25. That hee cannot improve againſt a Deed, 3 Ed. 2. tit. 21.
If the Tenant have Common for all manner of Beaſts, the Lord cannot improve, notwithſtanding I have heard the opinion of the Learned to the contrary, 34. Aſſiſe 11.
It was held, that no man might improve in Feilds ſowed, where they have Common, when the Corne is reaped and carryed, and in time of Wreck; for the Statute is in Waſts and not in Feilds: And alſo it is held there, that Cottager ſhall have Common, but not a Cottager newly erected, for he cannot preſcribe, 5 Book of Aſſiſe 2. Jurney to Leceſter.
The Tenant ſhall not have Common to Land newly improved, but to ancient Land, hide, and gaine, 10 Ed. 2. tit. 22. 5 Book of Aſs. 2. the ſame.
The Statute is (as much as belongs to Tenements) that ſeemes to extend as well to Common appurtenant, as appendant: But Maſter Stamford ſayd in Grayes-Inne, That improvement is onelyonly againſt him that hath Common appendant, and not againſt him which hath Common appurtenant without number.