PART VII.

CONTAINING ONE BOOK OF

GENERAL MATTERS RELATIVE TO TRIAL.

INTRODUCTION.

HAVING, in the several foregoing parts of this work, taken notice of

the various actions which may be brought, the several issues that may be joined thereon, and the evidence which is proper to be admitted on such issues, as also of the nature of evidence in general, and of sucht rules relating thereto as are universal and equally applicable to all cases, I shall conclude by treating of some other general matters relative to trials at Nisi Prius under the following heads :

Chap. 1. Of Juries.

2. Of Pleas puis darraign continuance.

3. Of Abatement by the death of parties.

4. Of Demurrer to evidence.

5. Of Bills of exception.

6. Of Defects amendable after verdict, or aided by it.
7. Of New Trials.

$. Of Costs.

CHAPTER I.

OF JURIES.

AT common law the issue was tried in the court where the suit was depending; but this being attended with great inconvenience and expence, the statute of Westminster 2. c. 30. ordained, that all pleas in either bench,

[ 304 ]

bench, which require only an easy examination, shall be determined in the country before the judges of assize. (a)

This was the origin of trials at nisi prius, the 42 E. III. c. 11. afterwards regulated the process of the venire, &c. and put them upon the footing they now are.

N. B. The statute of Westminster 2. extending only to the courts of K. B. and C. B. whenever an issue is joined in the exchequer, and to be tried in the county, there is a particular commission authorizing the judges of assize to try it.

Before the statute of 3 Geo. II. c. 25. the sheriff used to return a separate jury in every cause; but that act ordains that he shall return only one panel for the trial of all causes, such panel not to consist of less than forty-eight, nor more than seventy-two, (without the particular order of the judges who go the circuit) and their names are to be put into a bos, and drawn in the manner we daily see.

However, as there is a clause in that act empowering the court upon motion to grant Special Juries, it will be proper to take some notice of what is particularly relative to them, before I enter into such matters as are equally relative to Juries in general.

From the penning of the act it appears to extend only to trial of any issue joined, therefore the court will not grant a special jury upon a writ of enquiry.-Symonds v. Parminter, M. 21 Geo. II. (b)

Special Juries.-The method of striking them is, for the sheriff to attend the secondary or master with his book of freeholders at the time appointed by the master for that purpose, who is to give notice to their attornies on both sides to be present, the master then takes forty-eight, out of which each party strikes twelve, and the remaining twenty-four are re[*905] turned. If the attorney on one side only attends, the master is to strike out the twelve for him who is absent. (c)

(a) At common law, the jurors who made default were excused their issues, if a full jury appeared.

Juries try issue on facts, either at Nisi Prius, or in cases of great value and difficulty at bar, under the sta tute of Westminster 2. In this case there is a special jury struck, of the most considerable freeholders.

(b) This case is reported in 2 Stra. 1269. 1 Wils. 78. 86. 1 Bla. 20, but not to this point. The most important case on the subject of special juries, seems to be that of Rex v.

Perry, 5 T. Rep. 453. 460. Though the court will not grant a special jury on a writ of enquiry, yet when it is to be executed before the C. J. or a judge of assize, it is usual to move the court for the sheriff to return a good jury. Tidd's Prac. 510. 712, (4th ed.)

(c) So if the defendant neglects to attend the striking a special jury, the master may strike out the twen ty-four ex parte. R. v. Hart, Cowp,

412.

And if it be not expressed in the rule

In order to prevent improper applications for special juries, the 3 Geo. II. enacted, that the party applying for such special jury to be struck should pay the fees for striking, and not be allowed the same upon taxation of costs. However, that being the smallest part of the expence was found insufficient, therefore the 24 Geo. II. c. 18. enacts, that he shall pay all the expences of the special jury, and shall not be allowed it in costs, unless the judge certify in open court on the back of the record, that it was a cause proper to be tried by a special jury. And in order to lessen the expence of special juries, the same act directs that no special juryman shall have more than one guinea for his attend

ance.

The party at whose request the special jury was struck, may notwithi standing that, challenge the array. (Rex v. Johnson, quæ. tamen.) So he may challenge the polls. (a) And if from such challenges, or from nonattendance, there are not sufficient to make a jury, either party may pray a tales. (b) The usual method now-a-days is to draw such tales out of the box; though, where it is desired by the gentlemen of the panel who appear, and consented to by the parties, the sheriff may return such other gentlemen as can be procured to attend, to whom the parties have no objection, though by the 7 & 8 W. III. c. 23. s. 3. the sheriff is directed to return such as are returned upon some other panel. (c) And note; that in indictments and informations neither the prosecutor nor the defendant can pray a tales without a warrant from the attorney-general.-Verni q. t. v. T. 19 Car. II. 1 Lev. 223. R. v. Banks,

M. 3 Ann. 6 Mod. 246. (d)

rule for the master to strike a special jury, that he shall strike fortyeight, and each of the parties shall strike out twelve, the master is to strike out twenty-four, and the parties have no liberty to strike out any. Anon. Salk. 405.

So, if the sheriff be changed after the jury is nominated, and before it is struck, yet the parties may proceed. R. v. Hart, sup.

And where, after the jury has been struck, the cause goes off for want of jurors, no new jury can be struck, but the cause must be tried by the jury first nominated. R. v. Perry, 5 T. R. 453.

(a) Note, The late act makes no difference in challenges, whether a special jury or not. Either plaintiff or defendant may challenge propter

defectum or delictum, where no knight is returned, &c. But the challenge, propter affectionem can only be made by the person to whom he is not related. The oath of the trier is as follows: "You shall well and truly say whether A. B. (the juror) stands indifferent between the parties to this issue." Anon. Salk. 152. If the sheriff be related to both parties, either may challenge him.

(b) Vide 14 Eliz. c. 9. 35 Hen. VIII. c. 6. s. 6.

(c) If a man be challenged as a juryman, he cannot afterwards be sworn as a talesman. Parker v. Thornton, 2 Raym. 1410. Stra. 640.

(d) So a warrant for a tales in 'a county palatine must come from the Attorney-General, R. v. Lamb, 4 Burr. 2171. To

To come now to such matters as are relative to Juries in general. And first, as to their having a view, (a) the 4 & 5 of Ann. c. 16. s. 8. enacts, that where it shall appear to the court to be proper the jury should have a view, the court may order special writs of distringas or habeas corpus to issue, by which the sheriff shall be commanded to have six out of the first twelve of the jurors named in such writs, or some greater number of them, at the place in question, some convenient time before the trial, who shall there have the matters in question shewed to them by persons appointed by the court. (b)

And by the 3 Geo. II. c. 25. where a view shall be allowed, six of the jurors who shall be named in such panel, or more who shall be [*306] *mutually assented to by the parties, or in case of their disagreement, by

the proper officer of the court, shall have the view, and shall be first sworn to try the cause before any drawing out of the box, pursuant to that act. (c)

N. B. The usual way of granting views now is on the parties entering into a rule by consent, that in case no view be had, (as if no jurors attend) or if a view be had by any of the jurors whomsoever, (though not being six of the first twelve) yet the trial shall proceed, and no objection be made on account thereof, or for want of a proper return. Ordo curia, for granting rules for views by which the practice is now fully settled.-H. 30 Geo. II. 1 Burr. 252 to 259.

Having now brought the jury to the bar, the next thing to be looked iuto is the doctrine of challenges.

Challenges may be either to the array, or to the polls. (d)

Challenges to the array are on account of the partiality or insufficiency of the sheriff, or other officer returning the jury. (e)

(a) View is grantable only where the title is in question, and before any order is made, the view should be returned, that so many of them may view the premises. But if they should hear evidence upon the view, it is a good cause of challenge, for at common law, wherever the plaintiff is to recover per visum juratorum, the six of the jury who have had that view must appear. Co. Litt. 158. Et vide Dalston v. Nicholls, Palm. 363.

(b) As this statute does not extend to criminal cases, there can be no rule for a view in them, without mutual consent. 1 Burr. 253.

(c) A juror withdrawn for a view may be sworn on the second panel. Blewitt v. Barnard, 1 Stra. 71.

(d) That is, either to the whole panel, or to any particular juror.

(e) And a challenge may be to the array, if the names of the jurors in the distringas differ from those in the venire.

If

If the sheriff be liable to the distress of either party, or in his service, or related, or contributory to the expences of the cause, the array may be well challenged. (a)

Before the 4 & 5 Ann. the want of hundredors used to be a frequent cause of challenge. But by that act and the 23 Geo. II. the venire is always to be de corp. comitatus. (b)

So before the 23 Geo. II. it was a good cause of challenge that there was no knight returned in a cause wherein a lord of parliament was party.

If either party be apprehensive that the other side will challenge the array on account of relationship or interest in the sheriff, the right way in order to save time is for him to suggest such matter to the court, and pray a venire to the coroners, and if all of them be interested, then to two elizors to be appointed by the court. (c) If upon shewing cause the other party admit the fact, the process shall be directed accordingly. (Co. Litt. 137. b. Anon. Dy. 367.) If the other party deny the fact, the process shall be directed to the sheriff, and the other party shall not afterwards be admitted to challenge the array on that account.— Baynham's Ca. T. 1588. 5 Co. 37. Playter's Ca. M. 25 & 26 Eliz. 5 Co. 36. Tr. per Pais, 15.(d)

(a) The defendant may challenge the array, if the sheriff or undersheriff who arrayed them be a party, or interested in the event of the suit; if he be either of blood or affinity to either party; if the sheriff return the jury at the nomination of either party, it is sufficient ground to suspect his partiality, and good cause for challenging the array; so likewise if the sheriff be liable to the distress of either party, or contributes to the expence of either party; likewise, if an alien be party to the suit, if one half of the jury be not foreigners. Quære tamen, if the alien has not demanded it, and applied to the court for that purpose. This challenge to the array must be tried, and proved, if issue is joined by the plaintiff, and the facts controverted, and for this purpose the court appoints two triers, who are sworn, and if the issue is proved, they find," that the

66

jury is not indiferently impan"nelled," and this is entered of record, and puts an end to the trial; but if they find otherwise, the trial

goes on, and there is no entry made of the finding. Newman v. Edmunds, 1 Bulst. 114.

The polls may be challenged upon four principal grounds : 1st. If a peer; 2d. For defect of birth, as an alien, or sex, as a woman (except in a writ of ventre inspiciendo, or a woman after conviction); next, For defect of qualification; 4th. For consanguinity, being an interested party in the cause, an arbitrator on either side, that he was formerly a juror in the same cause. And these may be considered principal challenges, because, if true, the law rejects them without farther inquiry.

(b) But this extends only to civil causes, and not to appeals of felony, indictment, &c.

(c) Elizors are appointed when the sheriff and coroner are both partics; but this matter must be suggested on the note, otherwise it would be error. 1 Barn. 58.

(d) For causes of challenge to the array and polls, see Burn's Just. tit. Jurors.