Page:Harvard Law Review Volume 5.djvu/327

THE JUR T AND ITS DE VEL OPMENT. 3 x r cifically matter of record without evidence. 1 And in 1419-20, 2 in a case much debated, it was held, with some difference of opinion among the judges, that a jury cannot in a special verdict find a deed which has not been pleaded or given in evidence : " Hull [J.], This deed is only the private intent of a man, which can be known only by writing ; and if the writing be shown, it may lawfully be avoided in several ways, as for non sane memory, being within age, imprisonment, or because it was made before the ancestor's death, and the like — things which the party cannot plead unless he have oyer of the deed, and it be shown." An important step in the use of writings to the jury is recorded in a case of 1409 (Y. B. 11 H. IV. 17, pi. 41), "The plaintiff in an assise gave a writing {escrowment) to a juror who had been empanelled, as evidence of his matter. 3 After the juror with the others was sworn and put in a house to agree on the verdict, he showed the writing to his companions; and the officer in charge of the inquest stated the matter to the court. Whereupon the justices took the writing from the jurors, took their verdict, ques- tioned the jurors as to the time of giving the writing, and found as stated above. The plaintiff had a verdict, and now prayed his judgment. Gascoigne, C. J., and Huls, J., said that the jury, after they were sworn, ought not to see or take with them any other evi- dence than that delivered to them by the court and put forward by the party in court on the showing of his evidence. And since he did the contrary . . . he should not have judgment. The plaintiff said that the writing proved merely what he had given the jury at the bar, and so it was not bad, as he did not speak to them en evidence. Et non allocatur!' It has been justly remarked by Starkie 4 that "the exercise of this kind of control was in truth the foundation of that system of rules concerning evidence before juries which has since constituted so large and important a branch of the law of England." 5 1 Br. Ab. Assise, 258. But it was competent for a jury, at the peril of the attaint, to find a general verdict which might cover such a matter, and might rest merely upon their general knowledge of it. In this case, for instance, if they had chosen, they could have answered definitely (precish), no disseisin. See Vin. Ab. Trial, Q. f. 2 Y. B. 7 H. V. 5, pi. 3. 8 See ante, p. 298. 4 " Trial by Jury," Little & Brown's ed. 39; reprinted from (English) Law Review, ii. 6 For a good illustration of this sort of control, see Y. B. 21 Edw. IV. 38, I.