- If the fheriff be not an indifferent perfon; as if he be a party in the fuit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury; but the venire fhall be directed to the coroners, who in this, as in many other inftances, are the fubftitutes of the sheriff, to execute procefs when he is deemed an improper perfon. If any exception lies to the coroners, the venire fhall be directed to two clerks of the court or two perfons of the county named by the court, and fworn". And these two, who are [ 355 3 called elifors, or electors, fhall indifferently name the jury, and their return is final; no challenge being allowed to their array.

LET us now paufe a while, and obferve (with fir Matthew Hale) in these first preparatory ftages of the trial, how admirably this constitution is adapted and framed for the investigation of truth, beyond any other method of trial in the world. For, firft, the perfon returning the jurors is a man of fome fortune and confequence; that fo he may be not only the lefs tempted to commit wilful errors, but likewife be refponfible for the faults of either himself or his officers: and he is also bound by the obligation of an oath faithfully to execute his duty. Next, as to the time of their return: the pannel is returned to the court upon the original venire, and the jurors are to be fummoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their fufficiency or infufficiency, characters, connections, and relations, that fo they may be challenged upon just caufe; while at the fame time by means of the compulfory procefs (of diftringas, or habeas corpora) the cause is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance: which in caufes of weight and confequence is at the bar of the court; but in ordinary cafes at the affifes, held in the county where the cause of action arifes, and the witneffes and jurors live: a provision most excellently calculated for the faving of expense to the parties.

a Fortefc. de Laud. LL. c. 25. Co. Litt. 158. Cc 2

• Hift. C. L. c. 12.

For

For though the preparation of the caufes in point of pleading is transacted at Westminster, whereby the order and uniformity of proceeding is preferved throughout the king. dom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one attorney being able to tranfact the business of forty clients. But the troublesome and most expenfive attendance is that of jurors and witneffes at the trial; which therefore is brought home to them, in the coun try where most of them inhabit. Fourthly, the perfons before [356] whom they are to appear, and before whom the trial is to be held, are the judges of the fuperior court, if it be a trial at bar; or the judges of affife, delegated from the courts at Westminster by the king, if the trial be held in the country: perfons, whofe learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no fmall influence upon the multitude. The ' very point of their being strangers in the county is of infinite fervice, in preventing thofe factions and parties, which would intrude in every cause of moment, were it tried only before perfons refident on the spot, as juftices of the peace, and the like. And, the better to remove all fufpicion of partiality, it was wifely provided by the ftatutes 4 Edw. III. c. 2. 8 Ric. II. c. 2. and 33 Hen. VIII. c. 24. that no judge of affife fhould hold pleas in any county wherein he was born or inhabits (2). And, as this constitution prevents party and faction from intermingling in the trial of right, fo it keeps both the rule and the adminiftration of the laws uniform. Thefe juftices, though thus varied and fhifted at every affises, are all fworn to the fame laws, have had the fame education, have purfued the fame ftudies, converfe and confult together, communicate their decifions and refolutions, and prefide in thofe courts which are mutually connected and their judgments blended together, as they are interchangeably courts of appeal or advice to each other. And hence their adminiftration of justice, and conduct of trials, are confonant and

(2) See page 6, note 8, ante.

uniform

uniform; whereby that confufion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment. But let us now return to the affifes.

WHEN the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the affifes, and enter it with the proper officer, in order to it's being called on in course. If it be not fo entered, it cannot be tried; therefore it is in the plaintiff's breaft to delay any trial by not carrying down the record: unless the defendant, being fearful of fuch neglect in the plaintiff, and willing to discharge himself from the action, will himself undertake to bring on the trial, giving proper notice to the plaintiff. Which pro- [ 357 3 ceeding is called the trial by provifo; by reafon of the claufe then inferted in the fheriff's venire, viz. "provifo, provided "that if two writs come to your hands, (that is, one from

the plaintiff and another from the defendant) you fhall "execute only one of them." But this practice hath begun to be difufed, fince the ftatute 14 Geo. II. c. 17. which enacts, that if, after iffue joined, the caufe is not carried down to be tried according to the course of the court, the plaintiff shall be esteemed to be nonfuited, and judgment shall be given for the defendant as in cafe of a nonfuit. In cafe the plaintiff intends to try the cause, he is bound to give the defendant (if he lives within forty miles of London) eight days notice of trial; and, if he lives at a greater distance, then fourteen days notice, in order to prevent furprize: and if the plaintiff then changes his mind, and does not countermand the notice fix days before the trial, he fhall be liable to pay cofts to the defendant for not proceeding to trial, by the same last mentioned ftatute (3). The defendant however, or plaintiff, may,

(3) The ftatute only requires ten days notice; but at the fittings in London and Westminster, the former practice of fourteen days notice was still continued. But in all country causes ten days notice is fufficient; as where the commiffion day is upon the fif teenth of any month, notice of trial must be given on or before the fifth. Impey's Prac. 305. If the defendant refides within forty miles of London, and if the cause is to be tried at the fittings

upon good caufe fhewn to the court above, as upon abfence or fickness of a material witnefs, obtain leave upon motion. to defer the trial of the cause till the next affifes (4).

BUT we will now fuppofe all previous fteps to be regularly fettled, and the cause to be called on in court. The record is then handed to the judge, to perufe and obferve the pleadings, and what iffues the parties are to maintain and prove, while the jury is called and fworn. To this end the fheriff returns his compulfive procefs, the writ of habeas corpora, or diftringas, with the panel or jurors annexed, to the judge's officer in court. The jurors contained in the panel are either special or common jurors. Special juries were orignally introduced in trials at bar, when the caufes were of too great nicety for the difcuffion of ordinary freeholders; or where the fheriff was fufpected of partiality, though not upon fuch apparent cause as to warrant an exception to him. He is in fuch cafes, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer [358] with his freeholder's book; and the officer is to take indifferently forty-eight of the principal freeholders in the presence of the attornies on both fides: who are each of them to ftrike off twelve, and the remaining twenty-four are returned upon. the panel. By the ftatute 3 Geo. II. c. 25. either party is entitled upon motion to have a fpecial jury ftruck upon the

in London or Westminster, then two days notice of countermand,
before it is to be tried, is fufficient.
1 Cromp. Prac. 220.

(4) Where there have been no proceedings within four terms, a full term's notice of trial must be given previous to the affifes or fittings, (1 Cromp. Prac. 217.); unless the caufe has been delayed by the defendant himself by an injunction or other means. 2 Bl Rep. 784. 3 T. R. 530. If the defendant proceeds to trial by provijo, he must give the fame notice as would have been required from the plaintiff. 1 Cromp. Prac. 219. Sometimes the courts impofe it as a condition upon the defendant, that he shall accept short notice of trial, which in country caufes fhall be given at the least four days before the commiffion day, one day being exclusive and the other inclufive. 3 T. R. 660. But in town causes, two days notice seems to be sufficient in fuch a cafe. Tidd, 250.

trial of any iffue (5) as well at the affifes as at bar; he paying the extraordinary expense, unless the judge will certify (in pursuance of the ftatute 24 Geo. II. c. 18.) that the cause required such special jury.

A COMMON jury is one returned by the fheriff according to the directions of the ftatute 3 Geo. II. c. 25. which appoints, that the fheriff or officer fhall not return a separate panel for every separate cause, as formerly; but one and the fame panel for every cause to be tried at the fame affifes, containing not lefs than forty-eight, nor more than seventy-two, jurors and that their names being written on tickets, fhall be put into a box or glass; and when each caufe is called, twelve of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, unless abfent, challenged, or excused; or unless a previous view of the meffuages, lands, or place in question, shall have been thought neceffary by the court: in which cafe fix or more of the jurors, returned, to be agreed on by the parties, or named by a judge or other proper officer of the court, shall be appointed by special writ of habeas corpora or diftringas, to have the matters in question fhewn to them by two perfons named in the writ; and then fuch of the jury as have had the view, or fo many of them as appear, shall be sworn on the inqueft previous to any other jurors. These acts are well calculated to reftrain any fufpicion of partiality in the fheriff, or any tampering with the jurors when returned.

As the jurors appear, when called, they fhall be fworn, unless challenged by either party. Challenges are of two forts; challenges to the array, and challenges to the polls.

P Stat. 4 Ann. c. 16.

(5) As well in indictments and informations for misdemefnors, as in civil actions. But there cannot be a special jury in cafes of treafon or felony, for the party muft have the advantage of making twenty peremptory challenges in a profecution for felony, and thirty-five in the cafe of high treason. 21 Viner. 301.