Page:Harvard Law Review Volume 5.djvu/387

371 THE JURY AND ITS DEVELOPMENT. 37! statute, in the great assise, or where the party is a witness to a deed, ant in attinctis, etc. In 1275 (St. West. I. 3 Edw. I. c. 38) it is recited that people lose their estates because some " doubt not to make a false oath ; " and it is enacted that, on inquests in pleas of land or freehold or what touches freehold, the king, de son office, when it shall seem needful shall hereafter give attaints. 1 This statute is supposed to have extended the remedy beyond the case where the assise jury answered merely on the point of the assise, to that where it answered on incidental or newly developed questions, in modum jnratae, and to all juries in real actions. In 1302 (Y. B. 30 and 31 Edw. I. 124) Berewik, J. calls on the assise in novel disseisin to tell him the damages, and warns them that there may be an attaint for damages as well as the principal matter, " and out of this Court, without the need of seeking it in the Chancery." This seems to rest on the statute of 1275 ; at com- mon law, the rule is given by Bracton (290^), de damnis nulla erit convictio sed. . . locum habet certificatio. The Mirror, early in the fourteenth century, wished attaints ex- tended and made easier: "It is an abuse that attaints are not granted without difficulty in the Chancery to attaint all false jurors, as well in all other actions real, personal and mixed, as in assises" (c. 5, s. 1, 77). Before Home's death 2 there came an instalment of this desired reform. In 1326-7 (St. 1 Edw. III. c. 6) after a recital of " great mischiefs, damages and destruc- tions of divers persons, as well as of the men of holy church by the false oath of jurors in writs of trespass," the writ of attaint is allowed for the principal matter and also for damages in trespass, and the chancellor is to grant such writs sans parler an Roi. In this fast-breeding action of trespass, the writ of attaint was fur- ther extended in 1331 (St. 5 Edw. III. c. 7), to cases where the 1 " Not that the king shall grant these writs whenever applied for, ex merito justitiae [Coke's view, 2 Inst. 237], (a sense which the words ex officio surely never bore in any writer of Latin, whether good or bad), but that the king shall ex officio, without being sued and applied for, grant," &c. Reeves, Finl. ed. ii. 34. And so in 1292 (Y. B. 20 & 21, Edw. I. no) Spigornel (counsel) says: "We understand, sir, that no attaint shall pass upon an inquest without the special order of the king; " and in 1294 (Y. B. 21 & 22, Edw. I. 330) the reporter has a note " that justices itinerant may grant at- taints upon assises which pass before them, but not on inquests." Coke (2 Inst. 130) thinks that the attaint lay at common law in pleas both real and personal — a view which Reeves justly discredits (ii. 23) • 2 Which was in 1328. Black Book of the Adm. i. Introd. lix., note.