a report of a judgement give in the common bench upon argument in Michaelmas  term in the three and four year of the reign of queen Elizabeth upon a verdict  find in a quid law proclaim bring by William sander against george freeman and  joan his wife and the record appear among the record of Michaelmas term pound  Elizabeth rot and it be as follow mich term Elizabeth rot north same precedent  raze Entr b pl the sheriff be command that he distrain George freeman and Joan  his wife by all their land and chattle so that he may have their body here at  this day videlicet on the octave of saint Michael to acknowledge what right  they claim in two message two cottage two garden acre of land acre of meadow  acre of pasture one acre of wood eight acre of furze and heath and one penny  rend with the appurtenance in Arthingworth in the county aforesaid which Henry  edling in the court here grant to William sander esquire by fine thereof  between they make c and now here at this day come as well the aforesaid  William by Richard Perwich his attorney as the aforesaid George and Joan in  their proper person and thereupon the same William pray that the aforesaid  George and Joan may attorn to he thereof c and the aforesaid George and Joan  pray oyer of the writ aforesaid and it be read to they c they also pray oyer  of the note from whence the same writ issue and it be read to they in these  word between William sander esquire complainant and Henry edling deforceant of  two message two cottage acre of land acre of meadow acre of pasture one acre  of wood eight acre of furze and heath and one penny rend with the appurtenance  in Arthingworth whereof a plea of covenant be summon between they videlicet  that the aforesaid Henry have acknowledge the tenement and rend aforesaid with  the appurtenance to be the right of the say William and have grant for himself  and his heir that the aforesaid tenement and rend with the appurtenance which  the aforesaid George and Joan hold for term of life of the say Joan of the  inheritance of the aforesaid Henry the day when this agreement be make and  which after the death of the say Joan ought to revert to the aforesaid Henry  and his heir after the death of the say Jo n shall whole remain to the  aforesaid William and his heir for ever to hold of the chief lord of the fee  by the service which to the aforesaid tenement and rend belong and for this  acknowledgement grant fine and agreement the same William have give to the  aforesaid Henry mark sterling which be read and hear the same George and Joan  say that they by virtue of the note aforesaid ought not to attorn themselves  to the aforesaid William sander for the tenement and rend aforesaid because  they Plowden er p say that before the aforesaid Henry edling bad any thing in  the tenement and rend aforesaid with the appurtenance one John edling be seize  of the tenement and rend aforesaid with the appurtenance in his demesne as of  fee and Plowden that the same tenement and rend be and at the time of the  death of the aforesaid John edling be hold of the aforesaid William in socage  by fealty and rend of two penny to be pay yearly at the Feast of saint Michael  the Archangel and the same John be so seize thereof the nine day of march in  the year of our Lord at Arthingworth aforesaid make his last will and  testament in write and thereby devise to the aforesaid Joan the tenement and  rend aforesaid with the appurtenance by the name of his house with the  appurtenance to the same belong for ever in the town and field of Arthingworth  to have to her and to the heir of her body lawful beget and afterward he there  die after who death the same Joan enter into the tenement and rend aforesaid  with the appurtenance and be thereof seize in her demesne as of fee tail by  form of the last will and testament aforesaid and afterward videlicet the  second day of may in the year of the reign of the lord and lady Philip and  mary late king and queen of England at Arthingworth aforesaid in the county  aforesaid the same Joan take to husband the aforesaid George whereby the same  George and Joan in right of the say Joan be thereof seize in their demesne as  of fee tail videlicet to the same Joan and to the heir of her body lawful  beget and this they be ready to verify wherefore they pray judgement if they  by virtue of the say note ought to attorn themselves to the aforesaid William  thereof c replication and the aforesaid William sander say that by any thing  before allege be ought not to be preclude from have the attornment of the  aforesaid George and Joan of the tenement and rend aforesaid by virtue of the  note aforesaid because by protest that the same tenement and rend with the  appurtenance be and at the time of the death of the aforesaid John edling be  hold of the same William by knight service and not in socage as the aforesaid  George and Joan in their bar aforesaid have above allege nevertheless for plea  say that well and true it be that the aforesaid John edling be seize of the  tenement and rend aforesaid with the appurtenance in his demesne as of fee and  the same John be so seize thereof the aforesaid nine day of march in the  abovesaid year of our Lord at Arthingworth aforesaid make his last will and  testament in write as in the bar aforesaid be above allege but the same  William sander say that the aforesaid John edling by his same last will and  testament among other thing will and devise the aforesaid tenement with the  appurtenance by the name aforesaid to the aforesaid Joan to have to her for  term of her life and afterward the same John there die after who death the  same Joan enter into the say tenement with the appurtenance and be thereof  seize in her demesne as of freehold by form of the last will and testament  aforesaid and be so seize thereof the aforesaid second day of may in the  abovesaid year of the reign of the aforesaid late king and queen at  Arthingworth aforesaid she take to husband the aforesaid George whereby the  same George and Joan be seize of the same tenement and rend with the  appurtenance in their demesne as of freehold in right of the say Joan without  that that the aforesaid John edling by his last will and testament aforesaid  devise to the aforesaid Joan the aforesaid tenement and rend which the  appurtenance to have to her and to the heir of her body lawful beget as the  aforesaid George and Joan have above allege and this he be ready to verify  wherefore he pray judgement and that the aforesaid George and Joan may attorn  to he thereof c rejoinder maintain the devise in tail and the aforesaid George  and Joan as before say that the aforesaid John edling by his last will and  testament aforesaid do devise to the same Joan the tenement and rend aforesaid  with the appurtenance by the name aforesaid to have to her and to the heir of  her body lawful beget as they have above allege and of this they put  themselves upon the country and the aforesaid William sander likewise  therefore the sheriff be command that be cause to come here on the octave of  saint Martin twelve c by who c and who neither c to recognize c because as  well c alias venire facias returnable the octave of saint Hillary Plowden er p  the case mich term pound Elizabeth where a jury give a privy verdict and on  the morrow give a open verdict in court contrary to their privy verdict the  open verdict shall be good and the first void S c dyer pl more S p   Litt b  roll Abr pl heath Max Tri per pais it appear by the record that the fine upon  which the say writ of quid law proclaim be find be levy between the say  William sander complainant and one Henry edling deforceant of the tenement in  Arthingworth in the county of Northampton as be as follow videlicet that the  aforesaid Henry bath acknowledge the tenement and rend aforesaid with the  appurtenance to be the right of the say William and have grant for himself and  his heir that the aforesaid tenement and rend with the appurtenance which the  aforesaid George and Joan the day when this agreement be make hold for term of  life of the say Joan of the inheritance of the aforesaid Henry and which after  the death of the say Joan ought to revert to the aforesaid Henry and his heir  shall after the death of the say Joan whole remain to the aforesaid William  and his heir for ever to bold c and the say George freeman and his wife plead  in bar of attornment that before the say Henry edling the conusor have any  thing in the say tenement one John edling be seize thereof in fee and hold  they in socage of the plaintiff and by his testament in write make in the year  of our Lord at Arthingworth aforesaid he devise to the say Joan the same  tenement by the name c to have to her and to her heir of her body beget and  afterward die after who death she enter and take to husband the say George  whereby they in right of the say Joan be seize in tail and therefore they  demand judgement if they ought to attorn and the say William sander say that  well and true it be the say John edling be seize of the say tenement in fee  but he say that he by his say testament devise they to the say Joan for term  of her life and afterward die after who death Joan enter and be seize thereof  in her demesne as of freehold and she be so seize take to husband the say  George freeman without Plowden that that the aforesaid John edling by his last  will and testament aforesaid devise to the aforesaid Joan the aforesaid  tenement and rend with the appurtenance to have to her and the heir of her  body lawful beget as the aforesaid George and Joan have above allege and the  say George freeman and Joan by their rejoinder maintain the devise in tail and  there upon they be at issue which be try by nisi prius at Northampton and the  postea come in as follow videlicet afterward at the day and place within  contain before James dyer knight chief justice of the lady the queen of the  common bench and William Bendloe sergeant at law justice of the say lady the  queen assign to take assize in the county of Northampton by form of the  statute c come as well the within name William sander by his attorney within  contain as the within write George freeman and Joan his wife by John farewell  their attorney and the juror of the jury whereof mention be make be call  likewise come who to say the truth of the within contain be close try swear  and charge retire from the bar there to communicate with one another under the  custody of one of the bailiff of Thomas Lovet esquire then sheriff of the  county aforesaid and after the rise of the court aforesaid and adjournment of  the same court until eight of the clock on the morrow of the same day  videlicet Wednesday the nine day of July within write the same juror under the  custody of the aforesaid bailiff in the absence of the party aforesaid on the  within write Tuesday in the evening about eight of the clock in the afternoon  of the same day come before the aforesaid justice at the inn of the say  justice in the town of Northampton in the county aforesaid and the same juror  be then and there ask by the same justice whether or no they be agree of give  their verdict touch the matter within contain say that they be full agree  thereof between they and thereupon the same juror secret say upon their oath  that the within name John edling by his last will and testament in write  within write devise to the aforesaid Joan the tenement and rend within specify  with the appurtenance by the name of his house with the appurtenance to the  same belong for ever in the town and field of Arthingworth Plowden er p to  have to her and to the heir of her body lawful beget as the aforesaid George  and Joan within have allege and then the same juror for their ease as be the  custom to that after a privy verdict and at their own expense the jury may eat  and drink until c see t h a m long Edward b   Litt b heath Max Tri per pais  eat and drink together if they please and to lie together until the morrow  aforesaid and then to give their verdict aforesaid open before the aforesaid  justice at Northampton aforesaid by the command of the justice aforesaid  depart together under the custody of the aforesaid bailiff unto the place from  whence they come on which say nine day of July before the aforesaid justice in  the open court aforesaid at the castle aforesaid come the aforesaid William  sander by his attorney aforesaid and the juror of the jury aforesaid under the  custody of the bailiff aforesaid be call to give their verdict aforesaid open  of and upon the premise come whereupon the verdict aforesaid in manner and  form aforesaid give by the jury aforesaid before the aforesaid justice at the  inn aforesaid oh the aforesaid eight day of July in the evening of the same  day be by the court then read and repeat and the say juror be thereupon ask  whether or no they will affirm the say verdict the same juror not deny that  they have give the verdict aforesaid of and upon the premise on the day then  last pass but for certain cause special move they and their conscience hold  the say verdict for nought answer that they now be otherwise agree together  upon the matter and they say upon their oath that the aforesaid John edling by  his last will and testament aforesaid in write do not devise to the aforesaid  Joan the tenement and rend within specify with the appurtenance by the name of  his house with the appurtenance to the same belong for ever in the town and  field of Arthingworth to have to her and to the heir of her body lawful beget  as the aforesaid William sander within have allege and they pray that this  their verdict in form aforesaid give may be record by the justice aforesaid c  and because the justice here will advice of and upon the premise before they  give judgement thereon day be give to the party aforesaid here until c and  upon this matter whether the first verdict be good and the second void or the  second good and the first void be argue this term in the common bench by  sergeant Harper for the defendant and by sergeant Carus for the plaintiff and  the last day of the term the justice show their opinion several but I be not  present at either the one argument or the other and all the justice as I be  credible inform unanimous agree that the last verdict shall stand and that the  first shall not be take as a verdict for the jury be charge open in court and  in court their verdict ought to be receive and that which they pronounce open  in court shall be take to be their verdict and although it be usual to take  the verdict privy when the juror be agree yet the law do not necessary require  this but it be only out of courtesy for the a more Tri per pais a ease of the  juror and in such case what they then say shall not be look upon as their  verdict until it be open pronounce in court and when they come into court the  plaintiff shall be call and may then be nonsuit b ibidem b but when they give  a privy verdict the plaintiff be not demandable nor can he be then nonsuit and  he may be nonsuit when the verdict ought of right to be give ergo it be of  force when give in court and not elsewhere c die pl   Litt b h h p c Mod Tri  per pais c and even in court if they pronounce a verdict they may change it if  they have mistake it or if it be not full in law or for any other reasonable  cause immediate perceive for it be say in the Lord chief justice Montague time  one d Mod d archer be arraign in the king bench for felony of the death of a  man and the jury give their verdict not guilty and present after they say they  bad mistake themselves and they say he be guilty and this last be receive and  Plowden er p enter as their verdict e m two h pl Fitzherbert verdict bro  conspiracy judge juror vin Abr title trial e g pl e and in h in conspiracy  against two the inquest find one guilty Plowden and it be there say that their  verdict be contrary in itself for a conspiracy can be but between two at least  and if the one be not guilty the other be not guilty for which reason they be  send back and afterward they come again and say that both be guilty and this  be receive as their verdict so that upon occasion the that may contradict  their so in die pl to part the jury give a verdict at the bar for the  defendant and be remand to inquire of the rest they come again and change that  verdict of their own accord without be put to it by the judge and with the  rest give for the plaintiff which be receive first say and if they may vary  from or contradict their first say in open court a strong they may do it upon  better advice when their first verdict as give out of court and they not  discharge for they be not out of the custody of the bailiff but always under  his custody as the record show and although the postea contain that they be  send back to the place from whence they come to eat and drink together if they  will yet it be not find by the postea that they do eat and drink indeed and a  shall not be take that they do so inasmuch as it be not show by the record nor  aver by the party wherefore their open verdict in court be take to be their  verdict by the opinion of the whole court and so it be afterward adjudge as  appear by the record here at which day here come as well the aforesaid William  sander as the aforesaid George and Joan by their atorneys aforesaid and  thereupon the premise be see and by the justice full understand it be consider  that the aforesaid William sander if he will may prosecute for have his seize  of the tenement and rend aforesaid with the appurtenance against the aforesaid  George and Joan by occasion of the claim and plea aforesaid forfeit and also  that the fine aforesaid if be will shall be engross and the aforesaid George  and Joan in mercy c