[every juror requiring to be between twenty-one and sixty years of age. But the principal deficiency is defect of estate, the qualification of an ordinary or "common" juror in respect of estate, which now depends on the Juries Act, 1825 (6 Geo. IV. c. 50), being, that he must have, within the county in which he resides and in which the action is to be tried, in his own name, or in trust for him, 107. by the year, above reprises, in lands or tenements of freehold, copyhold, or customary tenure, in fee simple, fee tail, or for the life of himself or some other person, or else 201. by the year, above reprises, in lands or tenements, held by lease for twenty-one years or longer, or for a term of years determinable on any life or lives, or else he must be a householder, rated or assessed to the poor rate, or to the inhabited house duty, in Middlesex, on a value of not less than 301., or (in any other county) on a value of not less than 201. And if he does not possess one or other of these qualifications, it is a ground of challenge (g). As regards towns corporate and counties corporate having a jurisdiction of their own, and also as regards London, the Act provides a somewhat different qualification (h). (c) Propter affectum,-i.e., for suspicion of bias or partiality; and the challenge on this ground may be either a principal challenge or a challenge to the favour. A principal challenge alleges that the juror is of kin, to either party, within the ninth degree (i), or that he has been arbitrator on either side, or that he has an interest in the cause (k), or that there is an action depending between him and the party, or that he has taken money for his verdict, or that he has formerly been a juror in the same cause, or that he is the master, servant, counsellor, steward. [or solicitor of the opposite party, or belongs to the same society or corporation (1). But a challenge to the favour merely suggests an objection or probable suspicion founded on (e.g.) acquaintance with the parties (m); and these challenges are determined, like challenges to the array, by triors (n). (d) Propter delictum,-that is to say, for conviction of some crime or misdemeanor, as for treason, felony, or any infamous crime, unless the juror shall have obtained a free pardon (o). If a sufficient number of jurors do not appear, or if, by means of challenges or exemptions, a sufficient number of unexceptionable ones do not remain, either party may pray a tales (i.e., so many more as were wanted, tales quales); and for this purpose, a writ of decem tales, octo tales, and the like, used, by the common law, to issue to the sheriff (p).] But, by the Juries Act, 1825, section 37, the judge, trying the cause, is empowered, at the request of either party, to award a tales de circumstantibus (q). However, in the case of common jurors, of whom seventy-two are usually returned on the same common jury panel, it happens, of course, but rarely, that the whole are exhausted so as to make a tales necessary; and, in the case of special jurors, the deficiency is to be made up in the first place from the common jury panel, if a sufficient number can be found, and if not, then by a tales de circumstantibus (r). The necessary number of twelve qualified persons being obtained, they are then sworn. Christians are sworn on (1) Williams v. Great Western Rail. Co. (1858), 3 H. & N. 869. (m) Finch, L. 401. (n) Co. Litt. 158. It is said, that a principal challenge to the polls may, like a principal challenge to the array, be tried by the court, without the intervention of triors (Arch. Practice, 14th ed. p. 621). (0) Act of 1825, s. 3; Act of 1870, s. 10. (p) 3 Bl. Com. 365. (r) Gatliff v. Bourne (1838), 2 Moo. & R. 100; British Museum v. White (1828), 3 Car. & P. 289. the New Testament, Jews on the Pentateuch, and others according to their religious belief,-" well and truly to try "the issue between the parties, and a true verdict to give "according to the evidence." They may affirm instead of being sworn (s). The jury being now ready to hear the cause, the pleadings are opened (i.e., their effect is briefly stated) by the plaintiff's counsel—the junior counsel if there are two. The counsel for the plaintiff (t), or (in certain cases) counsel for the defendant, when the burden of proving the issue is on the defendant (u), makes his opening statement; in which he briefly informs the jury, who are the parties, what the kind of action, the claim which has been made by the plaintiff, the defence which has been set up, showing upon what point or points issues of fact have been joined, which are to be by them determined. He then proceeds to explain to the jury the nature of the case he proposes to establish, and the evidence intended to be produced in its support. After the opening statement is finished, the evidence is produced. And when this has been done, the counsel on the other side opens the adverse case; and supports it, if its nature so require, by evidence, which he is also entitled to sum up. And then the party who began is heard by way of reply; but no reply is allowed, save only by the Crown, unless evidence has been given in answer to the case first stated (a). (s) Oaths Acts, 1838 and 1888. (t) In all actions for unliquidated damages, the plaintiff begins -though the affirmative of the issue be on the defendant (Mercer v. Whall (1845), 5 Q. B. 447 ; Cooper v. Wakley (1828), Moo. & M. 248). (u) Calder v. Rutherford (1822), 3 Brod. & Bing. 302; Evans v. Birch (1811), 3 Camp. 10; Williams v. East India Co. (1802), 3 East, 192. Pro (x) The Common Law cedure Act, 1854, s. 18, has provided, that the party who begins, or his counsel, shall be allowed (in the event of his opponent not announcing at the close of the plaintiff's case his intention to adduce evidence) to address the jury a second time at the close of The evidence at the trial is, in general, oral evidence ; but there may, of course, according to the nature of the action, be written evidence as well, such as deeds, records, and the like. And with respect to witnesses, there is a process to compel their attendance, by writ of subpœna ad testificandum (y); which commands them (laying aside all excuses, and on pain of forfeiting 1007.) to appear at the trial, and give their evidence. Such writ may contain also a clause of duces tecum, requiring them to bring, at the same time, all such deeds or writings, in their possession or power, as the party who issues the subpoena may think material for this purpose. In the event of the nonattendance of the witness so subpoenaed, and his inability to show any lawful ground of excuse, (such as that of dangerous illness,) he is considered as having committed a contempt of court, and is liable to an attachment (a); and an action will also lie against him, at the suit of the party damnified by his absence (b). But no witness is bound to appear in court, unless his reasonable expenses for the whole period of his attendance, eundo, morando, et redeundo, are tendered him; nor if he there appears, is he bound to give evidence, till such charges are actually paid him. If it be ascertained beforehand that a witness required at the trial will be unable to attend, by reason of sickness. or infirmity, or through his absence in parts beyond the jurisdiction, the court is empowered to make an order that his evidence be taken on commission, or before one of the barristers appointed as examiners, or before a person such case, for the purpose of summing up the evidence he has adduced; and the party on the other side, or his counsel, shall be allowed to open his case, and also to sum up his evidence (if any). (y) O'Flanagan v. Geoghehan (1864), 16 C. B. (N.s.) 636. (a) Chapman v. Daris (1841), 1 Dowl. (N.S.) 239; Ord. XXXVII. r. 8; Connell v. Baker (1885), 29 Ch. D. 711. (b) Davis V. Lovell (1839), 1 H. & H. 451; Couling v. Coxe (1848), 6 D. & L. 399. specially appointed for the purpose (c) ; and the evidence so taken may be afterwards used at the trial, if the witness be then dead, or if he continues ill and infirm, or absent beyond the jurisdiction (d). But otherwise, the deposition cannot in general be used, without the consent of the party against whom it is offered. Also, any particular fact or facts may, for sufficient reasons, be ordered to be proved by affidavit; and, in such a case, the affidavit will be read at the trial on such conditions as may then appear reasonable (e). Also, any witness whose attendance in court ought, for any sufficient cause, to be dispensed with, may be examined before a commissioner or examiner; unless the court or judge shall be satisfied that the other party bonâ fide desires the witness to be produced in court, for the purpose of cross-examining him, and also that he can be produced (e). And, where necessary for the purposes of justice, any person may be ordered to be examined upon oath, and his deposition filed and given in evidence, on such terms (if any) as shall be directed (ƒ). All witnesses, that have the use of their reason, are to be received and examined; but not, of course, children too young to understand the nature of an oath, or adults who, through disease or from any other cause, are incapable (). At one time, no party to the action was allowed to give evidence; and persons interested in the testimony they were to give, however slight that interest might be (h), (c) If the place where the examination is to be had is in any of the colonies or foreign dominions of the Crown, the commission is addressed to a court or judge there (Evidence by Commission Act, 1859; Campbell v. Att. Gen (1867), L. R. 2 Ch. App. 571). In the case of a witness in Germany and some other foreign countries, he is now examined on "letters of request," i.e., a request that the foreign court may take the examination. (Ord. XXXVII. r. 6a, App. K., Nos. 37A and 37B.) (d) Ord. XXXVII. r. 5; Duke of Beaufort v. Crawshay (1866), L. R. 1 C. P. 699. (e) Ord. XXXVII. r. l. (g) Stark. Er. 81. (h) Doe v. Bramwell (1842), 3 Q. B. 307. |