conscience wage law of another man's contract ; that is, swear that he never entered into it, or at least that he privately discharged it. The king also has his prerogative; for, as all wager of law imports a reflection on the plaintiff for dishonesty, therefore there shall be no such wager on actions brought by him. And this prerogative extends and is communicated to his debtor and accomptant: for, on a writ of quo minus in the exchequer for a debt on simple contract, the defendant is not allowed to wage his law.

Thus the wager of law was never permitted, but where the defendant bore a fair and unreproachable character; and it also was confined to such cases where a debt might be supposed to be discharged, or satisfaction made in private, without any witnesses to attest it: and many other prudential restrictions accompanied this indulgence. But at length it was considered, that (even under all its restrictions) it threw too great a temptation in the way of indigent or profligate men: and therefore by degrees new remedies were devised, and new forms of action were introduced, wherein no defendant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardiness of his debtor's conscience, unless he voluntarily chooses to rely on his adversary's veracity, by bringing an obsolete, instead of a modern, action.

CHAPTER XXIII.

OF THE TRIAL BY JURY.

THE subject of our next inquiries will be the nature and method of the trial by jury; called also the trial per pais, or by the country: a trial that hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. And it was ever esteemed, in all countries, a privilege of the highest and most beneficial nature.

Trials by jury, in civil causes, are of two kinds; extraordinary, and ordinary.

Jurors returned by the sheriff are either special or common jurors. Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court, and a rule granted thereupon, to attend the prothonotary or other proper officer with his 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.

A common jury is one returned by the sheriff according to the directions of the statute 3 Geo. II.

c. 25. which appoints, that the sheriff or officer shall not return a separate panel for every separate cause as formerly; but one and the same panel for every cause to be tried at the same assizes, containing not less than forty-eight, nor more than seventy-two, jurors: and that their names being written on tickets, shall be put into a box or glass; and when each cause is called, twelve of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, 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 matter in question shewn 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.

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

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; and they may be made upon account of partiality or some default in the sheriff, or his under officer who arrayed the panel. Also, though there be no

personal objection against the sheriff, yet if he arrays the panel at the nomination, or under the direction of either party, this is good cause of challenge to the array. The array by the ancient law may also be challenged, 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, pursuant to the statute 28 Edward III. c. 13. enforced by 8 Hen. VI. c. 29. which enact, that where either party is an alien born, the jury shall be one half denizens, and the other aliens (if so many be forthcoming in the place) for the more impartial trial. But where both parties are aliens, no partiality is to be presumed to one more than another; and therefore it was resolved, soon after the statute 8 Hen. VI. that where the issue is joined between two aliens (unless the plea be had before the mayor of the staple, and thereby subject to the restrictions of statute 27 Edw. III. st. 2. c. 8.) the jury shall all be denizens.

Challenges to the polls, in capita, are exceptions to particular jurors. Challenges to the polls of the jury (who are judges of fact) are reduced to four heads by sir Edward Coke: propter honoris respectum; propter defectum; propter affectum; and propter delictum.

1. Propter honoris respectum; as if a lord of parliament be empanelled on a jury, he may be challenged by either party, or he may challenge himself.

2. Propter defectum; as if a juryman be an

alien born, this is defect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be liber et legalis homo. But the principal deficiency is defect of estate, sufficient to qualify him to be a juror. This depends upon a variety of statutes. By the statute 4 & 5 W. and M. c. 24. it was raised to L. 10. per annum in England, and L.6. in Wales, of freehold lands or copyhold ; which is the first time that copyholders (as such) were admitted to serve upon juries in any of the king's courts, though they had before been admitted to serve in some of the sheriff's courts, by statutes Ric. III. c. 4. and 9 Hen. VII. c. 13. And, lastly, by statute 3 Geo. II. c. 25. any leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of L. 20. per annum over and above the rent reserved, is qualified to serve upon juries. When the jury is de medietate linguæ, that is, one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall be cause of challenge to the alien; for, as he is incapable to hold any, this would totally defeat the privilege.

3. Jurors may be challenged propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side;