book. plead it in what is called a plea puis darrein continuance (ƒ), or since the last adjournment; but it is dangerous to rely on such a plea, for it confesses the matter which was before in dispute between the parties. This plea, when brought to a demurrer in law, or issue of fact, is determined as other pleas. A demurrer-book is made up, containing all the proceedings The demurrerat length, which are afterwards entered on record, and copies thereof, called paper books, are delivered to the judges to peruse (g). The record is a history of the most material proceedings in the cause, entered on a parchment roll, and continued down to the present time, in which must be stated the writ and summons, and all the pleadings entered verbatim on the roll, and also the issue or demurrer and joinder thereon (h). When the substance of the record is completed, and copies are Demurrer how delivered to the judges, the matter of law upon which the determined. demurrer is grounded, is upon solemn argument determined by the court, and not by any trial by jury, and judgment is thereon accordingly given. An issue of fact takes up more form and preparation to settle it, for here the truth of the matters alleged must be solemnly examined and established by proper evidence in the channel prescribed by law. CHAPTER XXII OF THE SEVERAL SPECIES OF TRIAL. TRIAL is the examination of the matter of fact in issue, in Of trial. which one invariable principle is pursued, that as well the best (f) By a rule of court H. T. 4 Wm. 4, it is provided that no entry of continuances (with a single exception there mentioned,) shall in future be made; but there is a proviso, that in all cases in which a plea puis darrein continuance was then by law pleadable," the same defence may still be pleaded, with an allegation that the matter arose after the last pleading, or the issuing of the jury process as the case may be."-Principles of Pleading, by Serjt. Stephen, 4th ed. p. 71. A plea of this kind is always pleaded by way of substitution for the former plea, on which no proceeding is afterwards had. It may be either in bar or abatement; and is followed, like other pleas, by a replication and other pleadings till issue is attained upon it.—Ibid. (g) See ante, note (b) p. 435. (h) The nisi prius record is in the nature of a commission to the judges at nisi prius for the trial of the cause. The judge may refuse to try the cause if the record is grossly imperfect. And if at the trial it appears on the record that on any one of the issues tendered, issue has not been joined, the jury must be discharged, unless both parties will consent to an amendment.-Archbold's Prac. Q. B. by Chitty, 7th ed. 246. Trial by record. Trial by certificate. Co. Litt. 74. 1 Burn. 248. Customs of Hob. 85. If a citizen of Co. Litt. 74. Privilege of university. Ecclesiastical matters. Co. Litt. 74. 2 Lev. 250. Of trial by witnesses with out jury. OF THE SEVERAL SPECIES OF TRIAL. method of trial as the best evidence which the nature of the case affords, and no other, shall be admitted in the English courts of justice. The species of trial in civil cases are,-by record; by inspection or examination (a); by certificate; by witnesses; and by jury. Trial by record is only used where a matter of record is pleaded in any action, as a fine, a judgment, or the like; and the opposite party pleads nul tiel record, "that there is no such matter of record existing;" upon this issue is tendered, and the trial of this issue is merely upon the record, without witness or jury. The trial by certificate is allowed in such cases where the evidence of the person certifying, is the only proper criterion of the point in dispute, and when the fact in question lies out of the cognizance of the court. For matters within the realm, the customs of the city of London must be tried by the certificate of the mayor and aldermen, certified by the judgment of their recorder. But where the corporation of London is party, or interested in the suit, as in an action brought for a penalty inflicted by the custom, this custom shall be determined by a jury, and not by the mayor and aldermen certifying by the mouth of their recorder. In some cases the sheriff of London's certificate shall be the final trial, as if the issue be whether the defendant be a citizen of London or a foreigner, in case of privilege pleaded, to be sued only in the city courts. Of a nature somewhat similar to which is the trial of the privilege of the university, when the chancellor claims cognizance of the cause, because one of the parties is a privileged person. In matters of ecclesiastical jurisdiction, as marriage and orders, these are tried by the bishop's certificate. If on a writ of dower, the heir pleads no marriage, or if the issue in a quare impedit be, whether or no the church be full by institution, these being matters of ecclesiastical cognizance, are tried by certificate from the ordinary. The trial of all customs and practices of the courts are by certificate from the proper officers; and what return was made on a writ by a sheriff or under sheriff, is tried by his own certificate only. The trial by witnesses, per testes, without a jury, is never used, except when a widow brings a writ of dower, and the (a) The trial by inspection was in effect abolished by the abolition of real actions. tenant pleads that the husband is not dead; this being looked upon as a dilatory plea, is in favour of the widow, tried by witnesses examined before the judges. But all these species of trials are only had in special cases, and where the trial by jury, considered in the next chapter, would not be effectual. CHAPTER XXIII. OF THE TRIAL BY JURY. THE trial by jury, called also the trial per pais, or by the Of trial by country, has been immemorially used in this country, and jury. seems to have been coeval with the first civil government of the nation. In Magna Charta it is more than once insisted on as the principal bulwark of our liberties, but especially by chap. 29, that no freeman shall be hurt in either his person or property,―nisi per legale judicium parium suorum vel per legem terræ (a). (a) This tribunal was universally established among all the northern nations, and so interwoven in their constitutions, that the earliest account of the one gives us also some traces of the other. There seem to be some traces of it in the institutions of Odin, the first great leader of the Asiatic Goths, or Getæ, into Europe. Upon his expedition he ordained a council of twelve, to decide all matters which might come in question. At first they were both jurors and judges; their decisions were highly respected; but in process of time the business increased; matters of fact only were submitted to twelve men; and one or more of the learned were to give sentence according to the ancient customs, records, and traditions. So, from the Gothic laws of Spain, it is manifest the institution was known and practised there (see Hist. des Cortes D'Espagne, par M. Sampere). The Spanish jury, however, was of dubious utility; and no efforts were made to produce the improvements, of which it was susceptible. They cast away the unpolished gem, contemning its worth, and disdaining the labour of bringing out its lustre. Far different was the cheering progress of the laws of England. Never wholly or suddenly departing from their pristine character, it has been the peculiar happiness and blessing of this country, that the institutions of the early ages have lost their rudeness, but retained their vigour. The erring tests of truth have been allowed to sink into oblivion; and the cumbersome array of compurgators, which often averted the righteous vengeance of the law, has been gradually matured into that great tribune of our peers, which will ever remain the best safeguard of life and freedom; Temp. Hist. 155; Hale Hist. C. L. 336, note (a.) The venire facias. When an issue is joined the court awards a writ of venire facias upon the roll, or record, commanding the sheriff "that he cause to come here on such a day twelve free and lawful men, liberos et legales homines, of the body of his county (b), (b) By 6 Geo. 4, c. 50, after stating, that it was expedient to consolidate and simplify the laws relative to the qualification and summoning of jurors, and the formation of juries, and to increase the number of persons qualified to serve on juries, and to alter the mode of striking special juries, it is enacted, that every man, except as therei excepted, between twenty-one and sixty, residing in any county in England, who shal have in his own name, or in trust for him within such county, 10l. a-year from frehold, or 207. a-year from leasehold, above reprizes, or who, being a householder, shll be assessed to the poor rate, or the inhabited house duty, in Middlesex, on a value of not less than 30l., or in any other county, 207., or who shall occupy a house ontaining fifteen windows, shall be qualified, and liable to serve on juries, for the tria of all issues joined in any of the courts at Westminster, and in the superior courts, both civil and criminal, in the counties palatine, and in all courts of assize, nisi prius, yer and terminer, and gaol delivery, such issues being respectively triable in the county in which every man so qualified respectively shall reside; and shall also be qualifiedand liable to serve on grand juries in courts of session of the peace, and on petty juries, in the same manner; but in Wales three-fifths of the above qualification shall be suffi cient. By s. 2, the following persons are exempted from serving on juries: peers and judges of the courts at Westminster; clergymen in holy orders; and catholic priests taking the oaths, and subscribing the declarations required by law; dissenting ministers, whose places of meeting are duly registered, and who shall follow no secular occupation but that of a schoolmaster, and shall take the oaths and subscribe the declaration required by law; all serjeants and barristers actually practising; all members of the society of doctors of law and advocates of the civil law actually practising; all attornies, solicitors, and proctors duly admitted, taking out their annual certificates, and actually practising; all officers of the courts of law; all coroners, gaolers, and keepers of houses of correction; all members and licentiates of the Royal College of Physicians in London actually practising; all apothecaries certificated by the court of examiners of the Apothecaries' Company, and actually practising; all officers in the navy or army in full pay; all pilots licensed by the Trinity House of Deptford Strond, Kingston-upon-Hull, or Newcastle-upon-Tyne; all masters of vessels in the buoy and light service employed by either of those corporations, and all pilots licensed by the lord warden of the cinque ports, or under any act of parliament or charter for the regulation of pilots in any other port; all the queen's household servants; all officers of customs and excise, and all sheriffs' officers, high constables, and parish clerks. By s. 3, aliens are disqualified, except on juries de medietate; also convicts, outlaws, &c. By ss. 4 and 6, the clerk of the peace is to issue warrants to the high constables in July every year, who are to issue precepts to churchwardens and overseers within their constablewick, commanding them to make out the jury lists. By s. 9, the lists are to be affixed on the church doors, and copies kept by the churchwardens for inspection. By ss. 9 and 10, the lists are to be reformed and allowed at the petty sessions, to be held in the last week in September; but no alteration is to be made without notice to the party affected thereby. By s. 11, after allowance, the lists are to be delivered to the high constable, and by him to the next quarter sessions. By s. 12, the lists are to be kept by the clerk of the peace, and copied into a book, to be delivered to the sheriff, called the jurors' book," which the sheriff is to deliver to his successor. By s. 13, the form by whom the truth of the matter may be better known, and who are neither of kin to the aforesaid A., nor the aforesaid By s. 15, on is prescribed for the venire facias, and precept for jurors at gaol deliveries and sessions of the peace. By s. 14, juries are to be returned from the jurors' book by the sheriff, and where process shall be directed to coroners and elisors, by them. return of writs of venire facias, the sheriff is to annex a panel of jurors. By s. 16, if the plaintiff sues out a venire, and does not proceed to trial, he may afterwards sue out another, and try at any subsequent assizes; but if he does not do so, the defendant may. By ss. 17 and 18, returns of juries in Wales and counties palatine are provided for. By s. 19, a copy of the panel is to be kept in the sheriff's office for the inspection of the parties and their attornies. By s. 22, the judges of assize may direct the same panel for the criminal and the civil sides, and may direct two sets of jurors to be summoned, one to attend at the beginning of each assizes, and the other to attend the residue thereof, to serve indiscriminately on the criminal and civil side. But the sheriff must specify in the summons whether the juror be named in the first or the second set. By s. 22, in case of views, the judge is to appoint trial during the attendance of viewers. By s. 23, where jurors are to view lands, the court may order special writs of venire facias, distringas, or habeas corpora. By s. 24, viewers in case of appearance are to be sworn upon the jury first. By s. 25, jurors are to be summoned ten days before the day of attendance, and special jurors, three days. But the time for summoning jurors for London and Middlesex is as before the act. By s. 26, the names of jurors are to be delivered to the associate, and balloted for in courts of assize, and nisi prius and civil courts. By s. 27, where the jury have not delivered their verdict before another issue is brought on to be tried, twelve others are to be drawn to try such issue. By s. 26, the same jury, if not objected to, may try several issues in succession, without being redrawn. By s. 27, want of qualification in common jurors is cause of challenge, but does not extend to special jurors. By s. 29, in all inquests wherein the king is a party, challenge shall only be allowed for actual cause certain, and the truth of the same must then be inquired of according to the custom of the court; but no person arraigned for murder or felony shall be admitted to any peremptory challenge above the number of twenty. By s. 30, the court may order special juries to be struck before the proper officer. By s. 31, every man described in the jury books as an esquire, or of higher degree, or as banker or merchant, shall be qualified, and liable to serve on special juries; and the under-sheriff is to prepare from the jury book a list, called “the special jurors' list." By s. 32, the manner of nominating the special jury is prescribed. By s. 33, the parties may by consent have a special jury struck according to the ancient mode. By ss. 34 and 35, the costs of special juries and fees of special jurors are provided for; the party applying for special jury must pay the costs, unless the judge shall certify that the cause was proper to be tried by a special jury. By s 36, the mode of striking special juries in any county of a city or town (except London) is to be as heretofore. By s. 37, where a full jury shall not appear, the court may make up the necessary number, by impannelling a tales de circumstantibus, who, with the jurors before impannelled, shall try the issue. By ss. 40 and 41, the clerk of the peace is to make out a list of all who serve at sessions on grand or petty juries, and transmit the same to the sheriff to be registered. Jurors who have served within one year before in Wales, or in the counties of Hereford, Cambridge, Huntingdon, in Rutland, or four years before in York, or two years before in any other county, and who have a certificate of having so served, cannot be returned to serve again within those periods. By s. 47, provision is made for juries de medietate. By s. 50, the qualification of jurors |