Practice as to

B., to recognize the truth of the issue between the said parties," and such writ is accordingly issued to the sheriff (c). The sheriff's venire is made returnable on the last return of

in liberties, cities, and boroughs, remains as before. By s. 52, the qualification of jurors summoned to serve upon any inquest or inquiry, before any sheriff or coroner, by virtue of any writ of inquiry, is the same as that required for common jurors in s. 1. But the act does not extend to any inquest before any coroner by virtue of his office, or before any sheriff or coroner of any liberty, city, borough, or town corporate, whether counties of themselves, or not when acting otherwise than under a writ of inquiry. By ss. 60 and 61, the writ of attaint is abolished; and embracers and corrupt jurors are punishable by fine and imprisonment. By s. 63, the act does not affect the acts relating to Quakers and Moravians.

By 1 & 2 Vict. c. 5, juries may be summoned by the justices at adjourned quarter sessions the same as at the general quarter sessions.

(c) By 3 & 4 Wm. 4, c. 42, s. 17, in any action depending in any of the superior courts for any debt or demand in which the sum sought to be recovered and indorsed on the writ of summons, shall not exceed 201., it shall be lawful for the court, in which such suit shall be depending, or any judge of any of the said courts, if such court or judge shall be satisfied that the trial will not involve any difficult question of fact or law, to order that the issue or issues joined, shall be tried before the sheriff of the county where the action is brought, or any judge of any court of record for the recovery of debt in such county, and for that purpose a writ shall issue directed to such sheriff, directing him to try such issue or issues by a jury to be summoned by him, and to return such writ with the finding of the jury indorsed, at a day certain in term or in vacation to be named in such writ; and thereupon such sheriff or judge shall summon a jury and shall proceed to try such issue or issues. By s. 16, writs of inquiry under 8 & 9 Wm. 3, c. 11, are to be executed before the sheriff, and such proceedings had, after the return of such writ, as are mentioned in that statute, in like manner as if such writ had been executed before a justice of assize or nisi prius. By s. 18, at the return of such writ of inquiry or writ for the trial of such issue or issues, costs shall be taxed, judgment signed, and execution issued forthwith, unless the sheriff or his deputy, before whom such writ of inquiry may be executed, or such sheriff, deputy, or judge, before whom such trial shall be had, shall certify upon such writ that judgment ought not to be signed until the defendant shall have had an opportunity to apply to the court for a new inquiry or trial, or a judge of any of the said courts shall think fit to order that judgment or execution shall be stayed till a day to be named in such order, and the verdict of such jury on the trial of such issue or issues shall be as valid, and of the like force as a verdict of the jury at nisi prius; and the sheriff, or his deputy, or judge presiding at the trial of such issue or issues, shall have the like powers with respect to amendment on such trial as are thereinafter given to judges at nisi prius. By s. 19, the provisions of 1 Wm. 4, c. 7, empowering the judge, before whom any action shall be tried, to certify before the end of the sittings or assizes, that execution ought to issue forthwith, are extended to such writs of inquiry and issues. An action for unliquidated damages, e. g. in running down plaintiff's boat, cannot be tried before the sheriff under a writ of trial; Watson v. Abbott, 4 Tyr. 64. The writ of trial must be directed to the judge of the court of record where there is such a court, and in other cases to the sheriff; Clarke v. Marner, 4 M. & Scott, 171. The court, on motion. at the instance of the plaintiff, will amend the indorsement on the writ of summons, by substituting a less sum than 20%. so as to obtain a writ of

trial.

habeas corpora juratorum, and

the same term wherein issue is joined, viz. Hilary or Trinity the venire, and terms, which, from the making up of the issues therein, are called issuable terms, and he returns the names of the jurors distringas. in a panel (a little pane or oblong piece of parchment) annexed to the writ. This jury is not summoned, and therefore not appearing at the day, must unavoidably make default, for which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum; and in the king's bench a distringas, commanding the sheriff to have their bodies, or to distrain them by their lands and goods, that they may appear upon the day appointed. The entry therefore upon the roll or record is, "that the jury is respited through defect of the jurors till the first day of next term, then to appear at Westminster, unless before that time, viz. on Wednesday, the 4th of March, the justices appointed to take the assizes in that county shall come to Oxford, that is, to the place assigned for holding the assizes.” And thereupon the writ commands the sheriff to have their Return of the bodies at Westminster on the said first day of next term, or jury, who must before the said justices of assize, if before that time they come to Oxford, viz. on the 4th of March aforesaid; and as the judges are sure to come and open the circuit commissions on the day mentioned in the writ, the sheriff returns and summons this jury to appear at the assizes, and there the trial is had before the justices of assize and nisi prius.

appear before

justices of assize.

are interested, the jury process directed to

coroners or

elisors.

If the sheriff be a party in the suit, or be related by either When sheriffs blood or affinity to either of the parties, the venire must be directed to the coroners, who are the substitutes of the sheriff, to execute process when he is deemed an improper person. If any exception lies to the coroners, the venire must be directed to two clerks of the court, or two persons of the county, named Laud. L. L. c. by the court, and sworn; and these two, who are called elisors, Co. Litt. 158. or electors, shall impartially name the jury, and their return is final, no challenge being allowed to their array.

When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assizes, and enter it with the proper officer, in order to its being called on in course (d). If the plaintiff means to try the cause in the

Fortesc. de

25.

Practice when general day of

trials fixed.

(d) In all cases where the plaintiff, after issue joined, does not proceed to trial, where by the course and practice of the court, he ought to have done so, the defendant may, if he wish, have the action tried by proviso; that is, he may give the plaintiff notice of trial, make up the nisi prius record, carry it down and enter it with the marshal, and proceed

Proceedings

on cause being

called on in

country, before a judge at nisi prius, he is bound to give the defendant fourteen days' notice of trial, as he is if he tries the cause in London or Westminster, if the defendant does not live within forty miles; and if the plaintiff then changes his mind, and does not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by 14 Geo. 2, c. 17 (e). The defendant, how. ever, or plaintiff may, upon good cause shown to the court above, as upon absence or sickness of a material witness, obtain leave, upon motion, to defer the trial of the cause till the next assizes.

When the cause is called on in court the record is handed to the judge to peruse, and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is Jury called and called and sworn (ƒ). To this end the sheriff returns his

court.

sworn.

to the trial, as in ordinary cases. This however can be done only in cases where the plaintiff has been guilty of some laches or default after issue joined, except in replevin, prohibition, quare impedit, and error in fact, in which cases both parties being actors, the defendant may make up the nisi prius record, and thereupon proceed to trial, although no laches or default be imputable to the plaintiff; Archbold's Prac. Q. B. by Chitty, 7th ed. 1065. And see 6 Geo. 4, c. 50, s. 16, in the next note.

(e) Within forty miles of London eight days' notice of trial, and two days' notice of countermand are sufficient. By 6 Geo. 4, c. 50, s. 16, if any plaintiff in any cause at issue, in any of the courts at Westminster, or any defendant in any action of quare impedit or replevin, so at issue shall sue out any writ of venire facias, upon which any writ of habeas corpora or distringas with a nisi prius, shall issue in order to the trial of the said issue, and shall not proceed to trial at the first assizes or sessions after the teste of such habeas corpora or distringas, then, except when a view by jurors shall be directed as therein mentioned, such plaintiff or defendant may try the said issue at any other assizes or sessions, issuing new writs of venire facias, and habeas corpora or distringas, as if no former writ of venire had issued, and so toties quoties. Provided that any defendant or tenant in any action may bring to trial any issue against him (where by the practice of the court he may do the same by proviso) at the next assizes or sessions, suing out a new venire facias by proviso, and prosecuting the same by writ of habeas corpora or distringas, with a nisi prius, as if no former venire had issued, and so toties quoties. By s. 23, where jurors are to view lands, &c., the court may order special writs of venire facias, distringas, or habeas corpora. (f) By 3 & 4 Wm. 4, c. 42, s. 23, it shall be lawful for any court of record holding plea in civil actions, or any judge at nisi prius, to cause the record, writ, or document, on which any trial may be pending before any such court or judge in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital, or setting forth on the record, writ, or document, on which the trial is proceeding, of any contract, prescription, custom, name, or other matter, in any particular in the judgment of such court or judge not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, to be forthwith amended by some officer of the court or otherwise, both in the part of the

compulsive process, the writ of habeas corpora or distringas, with the panel of jurors annexed, to the judge's officer in court. The jurors contained in the panel are either special or common jurors. In the case of a special jury, the sheriff is, of special upon motion in court, and a rule granted thereupon, to attend juries. the prothonotary, or other propor officer, with the freeholders' book, and the officer is to take indifferently forty-eight of the principal freeholders, in the presence of the attorneys on both sides, who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel (g). By 3 Geo. 2, c. 25, either party is entitled, upon motion, to have a special jury struck upon the trial of any issue, as well at the assizes as at bar; he paying the extraordinary expense, unless the judge will certify (in pursuance of 24 Geo. 2, c. 18), that the cause required such special jury (h).

A common jury is returned by the sheriff, according to the Common jury. directions of 6 Geo. 4, c. 50. When each cause is called

pleadings where such variance occurs, and in every other part of the pleadings which it may become necessary to amend on such terms, at to payment of costs to the other party, or postponing the trial, to be had before the same or another jury, or both payment of costs and postponement, as such court or judge shall think reasonable; and in case such variance shall be in some particular or particulars in the judgment of such court or judge not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby in the conduct of his action, prosecution, or defence, then such court or judge shall have power to cause the same to be amended upon payment of costs to the other party, and withdrawing the record, or postponing the trial, as such court or judge shall think reasonable; and after any such amendment, the trial shall proceed in the same manner in all respects as if no such variance had happened. Any party dissatisfied with such amendment may apply for a new trial. By s. 24, the said court or judge may in such cases of variance, instead of causing the record or document to be amended, direct the jury to find the fact or facts according to the evidence; and such finding shall be stated on such record or document; and notwithstanding the finding on the issue joined, the said court, or the court from which the record has issued, shall, if they shall think the said variance not material to the merits, and the misstatement such as could not have prejudiced the opposite party in the conduct of the action or defence, give judgment according to the justice of the case. By s. 25, the parties in any action or information after issue joined, by consent, and by order of the judges of the said superior courts, may state the facts, in the form of a special case, for the opinion of the court, and agree, that a judgment shall be entered for the plaintiff or defendant by confession, or of nolle prosequi, immediately after decision of the case, or otherwise, as the court may think fit, and judgment shall be entered accordingly.

(g) By 6 Geo. 4, c. 50, s. 32, the manner of nominating the special jury is prescribed. (h) By 6 Geo. 4, c. 50, s. 34, the party applying for a special jury must pay the costs thereof, unless the judge shall certify that the cause was proper to be tried by a special jury. And by 3 & 4 Wm. 4, c. 42, s. 35, the said provision is to apply also to cases in which the plaintiff shall be nonsuited.

Where view necessary.

twelve of these persons shall be sworn, unless absent, challenged, or excused; or unless a previous view of the messuages, lands, or place in question shall have been thought necessary by the court, in which case six 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 distringas, to have the matters in question shown to them by two persons named in the writ; and then such of the jury as have had the view, or so many of them as appear, shall be sworn on the inquest, previous to any other jurors (i). As the jurors appear when called they shall Of challenges. be sworn unless challenged by either party. Challenges are of two sorts, challenges to the array and challenges to the Challenges to polls (j). Challenges to the array are at once an exception to the whole panel, in which the jury are arrayed, or set in order by the sheriff, in his return: the array is quashed when made by an officer of whose partiality there is good ground of suspicion; or if an alien be party to the suit, and upon a rule obtained, by his motion to the court, for a jury de medietate linguæ, such a one be not returned by the sheriff (k). But this is not so where both parties are aliens, when the jury shall all be denizens.

the array.

Challenges to the polls.

respectum.

Challenges to the polls in capita, are exceptions to particular jurors, and are reduced to four heads by Sir Edward Coke: propter honoris respectum; propter defectum; propter affectum; Propter honoris and propter delictum. Propter honoris respectum; as if a lord of parliament be impannelled on a jury, he may be challenged by either party or he may challenge himself. Propter defec- Propter defectum; as if a juryman be an alien born. Under the word homo also, though a name common to both sexes, the female is excluded propter defectum sexus; but the principal deficiency is defect of estate sufficient to qualify him to be a juror.

tum.

Propter affec

tum.

Jurors may be bias or partiality. or to the favour.

challenged propter affectum, for suspicion of This may be either a principal challenge A principal challenge is such, where the

(i) See now ss. 22, 23, and 24, 6 Geo. 4, c. 50, p. 441. (j) See now 6 Geo. 4, c. 50, ss. 27 and 29, p. 441.

(k) By 6 Geo. 4, c. 50, s. 47, aliens indicted or impeached of any felony or misdemeanor shall, on the prayer of any alien so indicted be tried by a jury de medietate linguæ, one-half of the jury being aliens, or foreigners, who are not liable to be challenged.