that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him: all these are principal causes of challenge; which, if true, cannot be over-ruled, for jurors must be omni exceptione majores. Challenges to the favour, are where the party hath no principal challenge; but objects only some probable circumstances of suspicion, as acquaintance, and the like: the validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favourable or unfavourable. The triors, in case the first man called be challenged, are two indifferent persons named by the court; and, if they try one man and find him indifferent, he shall be sworn; and then he and two triors shall try the next; and, when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest.

4. Challenges propter delictum are for some crime or misdemeanor, that affects the juror's credit and renders him infamous. As for a conviction of treason, felony, perjury, or conspiracy; or if for some infamous offence he hath received judgment of the pillory, tumbrel, or the like; or to be branded, whipt, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, præminire, or forgery.

Besides these challenges which are exceptions against the fitness of jurors, and whereby they may be excluded from serving, there are also other causes to be made use of by the jurors themselves, which are matter of exemption; whereby their service is excused, and not excluded. As by statute Westm. 2. 13 Edw. I. c. 38. sick and decrepit persons, persons not commorant in the county, and men above seventy years old; and by the statute of 7 & 8 W. III. c. 32. infants under twentyone. This exemption is also extended by divers statutes, customs, and charters, to physicians, and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if empanelled, must shew their special exemption. Clergymen are also usually excused, out of favour and respect to their function: but if they are seized of lands and tenements, they are in strictness liable to be empanelled in respect of their layfees, unless they be in the service of the king or some bishop.

If by means of challenges, or other cause, a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A tales is a supply of such men as are summoned upon the first panel, in order to make up the deficiency. For this purpose a writ of decem tales, octo tales, and the like, was used to be issued to the sheriff at common law, and must be still so done at a trial at bar, if the jurors make default. But at the assizes or nisi prius, by virtue of the statute 35 Hen. VIII. c. 6. and other

subsequent statutes, the judge is empowered at the prayer of either party to award a tales de circumstantibus, of persons present in court, to be joined to the other jurors to try the cause; who are liable however to the same challenges as the principal jurors.

When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores.

The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are empanelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue. The opening counsel briefly informs them what has been transacted in the court above; the parties, the nature of the action, the declaration, the plea, replication, and other proceedings, and lastly, upon what point the issue is joined, which is there sent down to be determined. The nature of the case, and the evidence intended to be produced, are next laid before them by counsel also on the same side: and, when their evidence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence; and then the party which began is heard by way of reply.

Evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very

fact or point in issue, either on the one side or on the other; and no evidence ought to be admitted to any other point.

Again; evidence in the trial by jury is of two kinds, either that which is given in proof, or that which the jury may receive by their own private knowledge. The former, or proofs, (to which in common speech the name of evidence is usually confined) are either written, or parol, that is, by word of mouth. Written proofs, or evidence, are, 1. Records, and 2. Ancient deeds of thirty years standing, which prove themselves; but 3. Modern deeds, and 4. Other writings, must be attested and verified by parol evidence of witnesses. And the one general rule that runs through all the doctrine of trials is this, that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but, if not possible, then the best evidence that can be had shall be allowed. For if it be found that there is any better evidence existing than is produced, the very not producing it is a presumption that it would have detected some falsehood that at present is concealed.

With regard to parol evidence, or witnesses, it must first be remembered, that there is a process to bring them in by writ of subpœna ad testificandum which commands them, laying aside all pretences and excuses, to appear at the trial on pain of L. 100. to be forfeited to the king; to which the statute 5 Eliz. c. 9. has added a penalty of L. 10. to the party aggrieved, and damages equi

valent to the loss sustained by want of his evidence. But no witness, unless his reasonable expenses be tendered him, is bound to appear at all; nor, if he appears, is he bound to give evidence till such charges are actually paid him; except he resides within the bills of mortality, and is summoned to give evidence within the same.

All witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause. All others are competent witnesses: though the jury from other circumstances will judge of their credibility. Infamous persons are such as may be challenged as jurors, propter delictum; and therefore never shall be admitted to give evidence to inform that jury, with whom they were too scandalous to associate. Interested witnesses may be examined upon a voir dire, if suspected to be secretly concerned in the may be proved in court.

event; or their interest Which last is the only objection to the former

method of supporting an class; for no man is to be examined to prove his own infamy. And no counsel, attorney, or other person, intrusted with the secrets of the cause by the party himself, shall be compelled, or perhaps allowed, to give evidence of such conversation or matters of privacy, as came to his knowledge by virtue of such trust and confidence: but he may be examined as to mere matters of fact, as the execution of a deed or the like, which might have