Jurisdictions, Part 104 – Part 105
Enqueſt.
FOR that, that you try your Copy-holders and other Iſſues by conſent by Jury, let us ſee how many ſhall be ſworn of a Jury.
The Statute of Weſtm. 2. chap. 13. is, that the Sheriff ſhall inquire by twelve and not by leſſe, and the ſame Law ſhall be in Leet, and for that, that this Statute doth not extend to Court-Baron, Preſentment of Articles there by leſſe then twelve may be, for one may hold Court-Baron, though there be but two Suitors, and then they may inquire by two, of Articles for the Lord, but hard it is, when every one is inheritable to the Lawes of the Realme, and the triall of the Law is by twelve of Iſſue joyned between party and party, that by your not power, that is to ſay, that there ſhould not be twelve Tenants of every Jury, to take from me my Triall, which the Law gives to me, and if you will try Iſſue by leſſe then twelve, you may impannell three or foure of the Freinds to the parties, and to have no number certain under twelve, but to have ſuch a number as the Steward pleaſeth, and to be at his choiſe, how many ſhall be ſworn of a Jury, and how many ſhall be impannelled, is inconvenient where there are more within the Mannor to be impannelled, and 40 Ed. 3. f. 1. Where conuſance is granted to one Court, to have conuſance, if this Court faile, that it cannot make Law and Right, conuſance ſhall not be in this caſe allowed, and for that that at the Exigent Bailiffs demand conuſance, and ſhall not have it, for they cannot pronounce Out-lawrie upon that and in, Quare impedit, they ſhall not have conuſance, for they cannot award a Writ to the Biſhop, 42 Ed. 3. f. 3. Where one was out-Lawed conuſance was demanded, and could not have it, for that he could not award, Capias utlegatum there, and ſo it ſeems if there be not twelve to try the Iſſue they faile of power to miniſter Law and to do Juſtice, and Copy-holder may ſue by Bill in Chancery, where there are not twelve homagers within the Mannor, or in action of of treſpaſſe at the common Law, and the party ought to be admitted in the Lords Court, to the intent to bring treſpaſſe at the common Law, and there Law is more truly adminiſtred then in Court-Barons, and alſo if any ſue in Court-Baron for Copy-hold, he ſhall make his proteſtation to ſue in nature of his Writ at common Law, and the proceſſe and proceedings ſhall be according to the courſe of the common Law, and they ſhall joyne Iſſue according to the courſe of the common Law; and there (Venire facias) is, that they ſhall cauſe to come twelve free and lawfull men according to the courſe of the common Law, and for that it ſeems that triall of Iſſues there between parties ſhall be by twelve and not by leſſe.
And by Forteſcue, fol. 54. & 57. (ſworn together in the form aforeſaid twelve good and lawfull men) ſo it appeares by him that every Iſſue in every Court ſhall be tryed by twelve and not by leſſe.
Enqueſt ſhall be by cuſtome of the Realme between party and party, in a Court of Record, by twelve at the common Law, Doctor and Student, f. 14.
Verdict of 11 ſhall not be taken, 41 Aſs. 11.41. Ed. 3. f. 31. & 29. Ed. 3. f. 33. accordingly.
Every Inquiſition taken in the Sheriffs Turn ſhall be by twelve, and the ſame Law is ſaid there in a Leet by the Equity of the Statute of 6 H. 4. fol. 3. Notwithſtanding (ſeek) if leſs then twelve may try Iſſue between parties in the Court of a Lord of copy-hold or not, where there are not twelve within the Mannor, for it is held by ſome, that it ſhall be tryed by leſſe, and I have ſeen a triall by three or foure. But I intend it is hard, and ſpecially where there are twelve and more copy-holders within the Mannor, and alſo it appeares in the Regiſter, that an Action was removed out of the Court-Baron (becauſe there were but foure Suitors) and ſo I conclude, Iſſue for Copy-holders ſhall not be tryed by leſſe then by twelve, 6 H. 4. f. 1.
18 H. 4. fol. 2 Charter of exemption that he ſhall not be Impannelled ſhall not be allowed unleſſe a full Jury appeare.
39 Ed. 3. Tit. 23 A Writ of not putting in Aſſiſes ſhall not be allowed in an Attaint, nor in a Writ of right.
21 Ed. 4. f. 53. If a man have a Charter of Exemption and that ſhewed to the Sheriff, and he notwithſtanding, impannells him, treſpaſſe upon the caſe lies againſt him.
Fitzh. 205. A. A Writ not to be put in Aſſiſes and Juries is founded upon the Statute of Weſtm. 2. chap. 39 and upon (Articuli ſuper Chartas) which Statutes declare that perſons ſhall not be impannelled, that is, who is ſick, lame, and above 60. yeares old.
Fitzh. 266. Clerkes which have Lands by diſcent, or by purchaſe, ſhall be impannelled.
5 Ed. 3. f. 26. Preſentment in Leet by foure and not by twelve, that one had dewelt within the Leet a yeare and a day not ſworn, was traverſed, but it ſeems if he were preſented by twelve, it ſhall not be traverſed, but if it were falſe, he ſhall have recovery by Writ of falſe preſentment ſeek of this Writ.
45 Ed. 3. f. 26. Preſentment in Leet that one hath dwelt there by a yeare and day and not ſworn, ſhall be by twelve otherwiſe it is traverſable.
3 H. 7.4. If there be not twelve to be ſworn the Steward may ſweare a ſtranger which comes within the view to be ſworn in Leet.
The Lord may hold Court-Baron though there are but two Tenants, 23 H. 8. and 33 H. 8. and then two may preſent Articles for the Lord, but where Iſſue is between party and party it ſhall be by twelve, for the (Venire facias) is twelve free and lawfull men, which is triall by common Law, and that ſeems, ſhall be the triall of Copy-hold Land, yet Fitzh. 41. in right ſhall be great Aſſiſe, that is, 24 of a Jury, and attaint ſhall be 24. but if in Court-Baron the (Miſe) be ioyned to be tryed by great Aſſiſe, there ſhall go a Prohibition, &c.
Fitzherbart 107. C. Enqueſt of office, as in a Writ to inquire of waſte, it may be inquired by ſix or eight, 2 H. 4. f. 7. & 3 H. 6. f. 29. the ſame.
13 H. 8. f. 13. Where a Lord of Parliament is arraigned, there ſhall be eighteen or twenty Lords of the Enqueſt, and they ſhall not be ſworn.
20 H. 7. fol. 3. Jurors may drink after their Charge, and before their agreement at their own proper charges, it ſeems their Verdict is good, for there doth not appear any corruption in them, nor that they drank for any corruption, for all drank together, and every one was in as good plight to reſiſt as others are, &c.
19 Ed. 4. f. 6. After the Jury ſworn, and before they enter into a Houſe and before their departure from the Barr they drink by licenſe of the Juſtices, and by the conſent of the parties, and their Verdict good.
10 H. 4. f. 10 After the Jury was ſworn the Plaintiff delivered a writing to a Juror without the Court, and he ſhewed that to his companions in the Houſe, and the Jury gave Verdict, and he ſhall not have Judgment, 11 H. 4. fol. 17. the ſame Plowd. Com. fol. 519. the Jury gave a ſpeciall Verdict and a Box of Barbaryes conſerved, Sugar Candy, and Licoriſh was found with one J.M. one of the Jury after that he was departed from the Barr, J. M. was committed to the Fleet till he had paid a Fine, and the Verdict good, ſee, 8 Aſs. 35. and 20 H. 6. f. 26.
Tryall.
IN Court-Baron the triall is there by waging Law, but by the conſent of the parties it may be by the Country, 33 H. 8. B. Tit. Triall 143. 3. Ed. 6. Tit. Pannell. 2. Where the Jury is of two tongues, for that, that the one is an Alien and the other an Engliſh man, there ſhall be ſix Denizens ſworn, and ſix Engliſh men, otherwiſe the Jury ſhall not be taken, and ſo ſhall be (Tales) of that.
4 Mar. b. Tit. Jurors 8. Jury tooke a Writing of the Plaintiff which was not delivered to them in Court, and paſſed for the Plaintiff, and for that, that this matter appeared to the Court by examination, therefore the Plaintiff ſhall have no Judgment.
35 H. 8. B. Tit. Replead 54. It was in uſe in the Kings bench, though that the Jury was ready to paſſe, there if there be a (Jeofaile) apparent in the Record, the Jury ſhall be diſcharged.
26 H. 8. f. 6. Jurors after they are in the Houſe return to heare evidence again upon matter which they were in doubt of, and may.
14 H. 7. f. 1. The Jury eate and drink before the Evidence finiſhed, or after they are agreed depart and drink before Verdict they ſhall be Fined, and the Verdict is good, but if he eat and drink after evidence given, and before they agree, the Verdict is void.
And it ſeems that this matter ſhall be ſhewed when the Jury comes in to give their Verdict, and ſhall be examined, and not after. And it ſeems that the Jurors may depart aſunder by cauſe of great tempeſt of a Houſe falling or fire where they are.