Bracton: Thorne Edition: English. Volume 3, Page 72

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Volume 3, Page 72

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[001] which I do not now recall but let those already enumerated suffice by way of example.
[002] It is clear that if jurors are once chosen by consent of the parties they cannot
[003] later be refused, unless in the light of some new and supervening cause.

Of the form of the oath in the assise of novel disseisin.

[005] When the parties have agreed upon the jurors, the assise will then proceed, and they
[006] ought at once to take an oath in this form, the first by these words, ‘Hear this, O
[007] justices, that I will speak the truth as to this assise and as to the tenement of which
[008] I have made the view by order of the lord king,’ or thus, ‘as to the tenement whence
[009] such rent issues,’ [or] if it is common of pasture, then thus, ‘as to the pasture and the
[010] tenement of which I have made the view.’ If something is done by way of nuisance
[011] on the estate of one person to the damage of the estate of another, as where a wall
[012] is raised, then let mention first be made of that which does the injury and afterwards
[013] of the tenement to which the injury is done, thus ‘as to the wall and the tenement
[014] (or the like) of which I have made the view etc.’ And so generally of everything
[015] because of which assises are taken principally, and then, ‘and I will in no way fail to
[016] speak the truth, so help me God and these sacred relics.’ All the other jurors shall
[017] then swear in order, each individually, in this way, ‘Such an oath as he, the first, has
[018] sworn I will keep on my part, so help me God etc.’ And note that several assises
[019] may be taken under one and the same oath, as several novel disseisins of tenements;
[020] the oath then is this, ‘that I will speak the truth concerning these assises and of the
[021] tenements of which I have made the view.’ Also ‘as to these assises and tenements
[022] and also of the tenement whence such rent issues.’ If common of pasture is joined,
[023] then, ‘as to such tenements and common of pasture and of the tenements of which I
[024] have made the view etc.’ If a nuisance is joined, then repeating the whole, as above,
[025] let him say, ‘as to the bank (‘wall’ or ‘hedge’ or the like) and of the tenements of
[026] which I have made the view etc.’ And let the same be done in all other assises, as
[027] darrein presentment, mortdancestor and others. [Just as several disseisins may be
[028] decided by one jury, so several disseisins may arise out of one act and be decided by one
[029] assise, or by several, as below.]¹ After the oath has been taken, as above, let the
[030] protonotary read the substance of the writ for the instruction² of the jurors, in this
[031] way: ‘You shall declare by the oath you have taken whether N. Wrongfully and
[032] without judgment disseised such a one of his free tenement in such a vill since the
[033] last return of king Henry etc. or did not.’ [The justices will here say nothing to instruct
[034] the jurors,² because nothing is said or excepted against the assise at the beginning.]
[035] The oath having been taken, let the jurors retire to some private place and
[036] discuss among themselves the matter which they have been enjoined to consider, and
[037] let no one

Notes

1. Infra 198

2. ‘ad instruendum’