3io HAR VARD LA W RE VIE W. dower ; it must be only an " authentic " paper that could testify there. And so in 1352 (Lib. Ass. 120, 4) we find that on a ques- tion as to the prescriptive title to tithes of the Master of St. Cross at Winchester, an ancient register of tithes, of a hundred years back, was put forward in evidence, and because it was not sealed the jury only inspected it and gave it back before they went out. 1 One or two more cases may be cited in order to bring down the showing of documents to the jury to the modern form. As the practice of submitting writings to them was far older than that of admitting ordinary witnesses, so the conditions and qualifications of it were earlier fixed. In 1340 (Y. B. 14 Edw. III. 25-34), the assise, in novel disseisin, had found in a special verdict that the tenant had previously brought an action for the same land and had recovered; the tenant had pleaded this, but had not produced the record. The judges asked the jury how they knew this, "since" (to quote the record) "pleas and judgments of the king's court are of record and outside the notice and cognizance of a jury of the country. They said that they had not any certain knowledge (of it) . . . and would not positively say that there was such a plea, . . . but by reason of the summons and resummons . . . and the view . . . and its being commonly said in the country that there was such a plea and such a judgment rendered in the said form, and because the viscount had a writ ... to put the said John ... in seisin, as he said, and did put him in seisin, they understood that there was such a plea and such a judgment rendered between the said parties." The report adds : " Scharshulle, J. The as- sise has expressly said (&c.) . . . and what they say about a recovery does not lie within their cognizance," etc. It turned out that the jury were substantially right ; there was such a record, but owing to a slight variance between the form of it and the pleading, judgment was finally given for the plaintiffs. 2 It was, then, as it would seem, improper for a jury to find spe- 1 Gawdy, J., in Vicary v. Farthing, Cro. El. 411 (1595) said, "It is also clear that writings or books which are not under seal cannot be delivered to the jurors without the assent of both parties." This was law in New Jersey down to 1797. State v. Raymond, 21 Atl. Rep. 328 (Feb., 1891). We find it laid down still in Lofft's Gilbert (ed. 1795), i. 21, accompanied by that sort of baffling and inadequate reasoning which Gilbert often sets forth regarding matters not understood. 2 See Mr. Pike's careful statement of the case (Introd. xxxvii-xl).
