903 OF WITHDRAWING THE RECORD, &c. When a plea puis darrein-continuance is put in at the assizes, the plaintiff is not to reply to it there; for the judge has no power to accept of a replication, nor to try it, but ought to return the plea as parcel of the record of nisi prius, and if the plaintiff demur, it cannot be argued there." When a plea is certified on the back of the postea, and the plaintiff demurs, if the defendant, on the expiration of a rule given for him to join in demurrer, refuse to do so, the plaintiff may sign judgment: And, in order to prevent vexatious delay, the court of King's Bench will order a demurrer to such a plea, to stand for the first paper day in term.'t [*904] Previously to swearing the jury, or afterwards by consent of the defendant's counsel, the plaintiff may withdraw the record, and by that means prevent the cause from being tried: But this cannot be done by the plaintiff's counsel, until a brief has been delivered to him; a retainer in a cause, without a brief, not being sufficient. If the record be not withdrawn, the trial proceeds; and as the jury are called, they may be challenged. Challenges are of two kinds; first, to the array; and secondly, 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 on account of partiality, or some default in the sheriff, or his under-officer who arrayed the panel. And generally speaking, the same reasons that before awarding the venire, were sufficient to have directed it to the coroner or elisors, will be also sufficient to quash the array, when made by an officer of whose partiality there is any good ground of suspicion. Also, though there be no personal objection against the sheriff, yet if he array the panel at the nomination or under the direction of either party, this is good cause of challenge to the array. Where, upon a challenge to the array for unindifferency in the sheriff, on the trial of an indictment for a misdemeanor, the jury panel was quashed; the court held, that the proper course for obtaining a trial of the cause, was to direct new jury process to the coroners of the county, at the instance of the prosecutor, but not without applying to the court specially for that purpose. And the venire facias in such case was held to be properly awarded to the coroner, although two of the special jurymen appeared, and were sworn on the former occasion.d с Challenges to the polls, in capita, are exceptions to particular jurors; and, according to Sir Edward Coke, they are of four kinds; As to costs on pleas puis darrein continuance, vide post, p. 1019. (note.) g first, propter honoris respectum, as if a lord of parliament be impanelled on a jury, in which case he may challenge himself, or be challenged by either party. Secondly, propter defectum, as if a juror be an alien born, or a slave or bondman; or have not the necessary qualification of estate. All incapable persons, as infants, ideots, and persons of non-sane memory, are likewise excluded upon this ground. Thirdly, propter affectum, as that a juror is of kin to either party, within the ninth degree, that he has been arbitrator, or declared his opinion on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict, or even eat and drank at *either party's expense; that he has formerly been a juror in [*905] the same cause; that he is the party's master, servant, tenant, counsellor, steward, or attorney, or of the same society or corporation with him. All these are principal causes of challenge: Besides which there are challenges to the favour, where the party objects only on account of some probable grounds of suspicion, as acquaintance, and the like; the validity of which must be left to the determination of triers, who, in case the first man called be challenged, are two indifferent persons named by the court; and if they try one man and find him indifferent, he shall be sworn; and then he and the two triers shall try the next; and when another is found indifferent and sworn, the two triers shall be superseded, and the two first sworn on the jury shall try the rest. Fourthly, a juror may be challenged propter delictum, as for a conviction of treason, felony, perjury, or conspiracy; or if, for some infamous offence, he has received judgment of the pillory, tumbrel, or the like, or to be branded, whipped, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, præmunire, or forgery. A juror may himself be examined on his voire dire, with regard to such causes of challenge as are not to his dishonour or discredit; but not with regard to any crime, or any thing which tends to his disgrace or disadvantage.' m In a late case, the following points, respecting challenges of jurors, were determined, after special argument, by the court of King's Bench: first, that no challenge can be taken, either to the array or to the polls, until a full jury have appeared; and therefore, where the challenges are previously taken, they are irregular: secondly, that when a challenge is made, the adverse party may either demur, which brings into consideration the legal validity of the matter of challenge; or counterplead, by setting up some new matter consistent with the matter of challenge, to vacate and annul it as a ground of challenge; or he may deny what is alleged for matter of challenge, and it is then, and then only, that triers are to be appointed: and therefore, where the grounds of challenge were not put on the record, the defendants were holden not to be in a condi Gilb. C. P. 95. i Gilb. C. P. 95. 1 For more of Challenges, see Co. Lit. 156, &c. Gilb. C. P. Chap. VIII. Bac. Abr. tit. Juries, (E). 3 Blac. Com. 358, &c. m Rex v. Edmonds and others, 4 Barn. & Ald. 471. tion to ask the opinion of the court, as a matter of right, upon their sufficiency: thirdly, that there can be no challenge to the array, on the ground of unindifferency in the master of the Crown office, he being the officer of the court expressly appointed to nominate the jury: [*906] The only remedy in such a case, is to apply to the court by motion, to appoint some other officer to nominate the jury: fourthly, that it is no objection to the conduct of the master of the Crown office, that, in striking the jury, he selected the names of the jurors, and did not take them by chance from the freeholder's book; or that he took those only, whose names had the addition of Esquire, or of some higher degree; or included some persons who were in the commission of the peace: fifthly, that it is no ground of challenge to the array, for unindifferency on the part of the sheriff, that his officer had neglected to summon one of the twenty-four special jurymen, returned on the panel: sixthly, that it is not competent to ask jurymen, whether special jurymen or tales-men, if they have not, previously to the trial, expressed opinions hostile to the defendants and their cause, in order to found a challenge to the polls on that ground; but that such expressions must be proved by extrinsic evidence: and lastly, that the disallowing of a challenge is not a ground for a new trial, but for what is strictly and technically called a venire de novo. By the balloting act, we may remember, the names and additions of the jurors are to be written on pieces of parchment or paper, of equal size, and delivered to the marshal, by the under-sheriff or his agent; and are to be rolled up, by the direction and care of the marshal, all as near as may be in the same manner, and put together in a box or glass to be provided for the purpose." And, by the same act, when any cause shall be brought on to be tried, some indifferent person, by direction of the court, may and shall, in open court, draw out twelve of the said parchments or papers, one after another; and if any of the persons whose names shall be so drawn, shall not appear, or be challenged and set aside, then such further number, until twelve persons be drawn who shall appear, and after all causes of challenge, shall be allowed as fair and indifferent; and the said twelve persons so first drawn and appearing, and approved as indifferent, their names being marked in the panel, and they being sworn, shall be the jury to try the said cause; and the names of the persons so drawn and sworn, shall be kept apart by themselves, in some other box or glass to be kept for that purpose, till such jury shall have given in their verdict, and the same is recorded, or until such jury shall, by consent of the parties, or leave of the court, be discharged; and then the same names shall be rolled up again, and returned to the former box or glass, there to be kept, [*907] with the other names remaining at that time *undrawn; and so toties quoties, as long as any cause remains then to be tried." When a view is allowed in any cause, it is provided by the same statute,P P that the jurors who took the view, or such of them as shall appear, shall be first sworn upon the jury to try the cause, before Ante, 842. 3 Geo. II. c. 25. § 11. P§ 14. any drawing as aforesaid; and so many only shall be drawn, to be added to the viewers who appear, as shall, after all defaulters and challenges allowed, make up the number of twelve, to be sworn for the trial of the cause. At common law, if a sufficient number of jurymen did not appear at the trial, or so many of them were challenged and set aside, as that the remainder would not make up a full jury, there issued a writ to the sheriff, of undecim, decem, or oeto tales, according to the number that was deficient, in order to complete the jury: And this is still necessary, on trials at bar." But now, by the statute 35 Hen. VIII. c. 6. § 6, 7, 8. (extended to qui tam actions, by the 4 & 5 Ph. & M. c. 7.) "the justices of assize or nisi prius, upon request made by the plaintiff or defendant, are authorized to command the sheriff, or other minister to whom the making of the return shall appertain, to name and appoint, as often as need shall require, so many of such other able persons of the said county, then present at the said assizes or nisi prius, as shall make up a full jury; which persons shall be added to the former panel, and their names annexed to the same; and that the parties shall have their challenges to the jurors so named, added and annexed to the said former panel, as if they had been impanelled upon the venire facias; and that the said justices shall and may proceed to the trial of every such issue, with those persons that were before impanelled and returned, and with those newly added and annexed to the said former panel, in such wise as they might or ought to have done, if all the said jurors had been returned upon the writ of venire fucias; and that every such trial shall be as good and effectual in the law, to all intents and purposes, as if such trial had been had by twelve of the jurors impanelled and returned upon the writ of venire facias." The qualification of a tales-man, in point of estate, is only five pounds per annum. And, by the 7 & 8 W. III. c. 32. § 3. the sheriff is directed to return such persons to serve upon the tales, as shall be returned upon some other panel, and then attending the court. Hence it is usual to draw their names out of the box; though where it is desired by the gentlemen of the panel who appear, and con*sented to by the parties, the sheriff may return such other [*908] gentlemen as can be procured to attend. And, it is not necessary, upon awarding a tales, that the talesmen should be selected out of persons accidentally present; but they may be selected out of persons, whose presence the sheriff or coroner has taken previous means to obtain." In the King's Bench, the master may allow the sum of one guinea each to tales-men, on the trial of a cause by a special jury in London or Middlesex. The plaintiff may avoid a nonsuit, by refusing to pray a tales: And, after a juror has been challenged on the principal panel, he ought not to be sworn as a tales-man." q Gilb. C. P. 73. X 5 Durnf. & East, 457, 8. 462. • Stat. 4 & 5 W. & M. c. 24. § 18. Bul. Ni. Pri. 305. 2 Barn. & Cres. 104. 3 Dowl. & Ryl. 311. S. C. * 1 Chit. Rep. 544. y 1 Str. 707. 2 Id. 640. 2 Ld. Rayın. 1410. S. C. And see further, as to tales-men, 2 Saund. 349. (1). When the jury are sworn, the junior counsel for the plaintiff opens the pleadings; after which, if the proof of the issue rest on the plaintiff, as where the general issue is pleaded, the senior or leading counsel states his case to the jury; and after calling and examining witnesses in support of it, the counsel for the defendant are heard; and if they call any witnesses, the plaintiff's counsel have the general reply. But when there is a rule to pay money into court, the mere production of the rule by the defendant is not, we have seen,a considered as evidence on his part, so as to give the right of reply to the plaintiff. And where the general issue is not pleaded, but issue is joined on a collateral fact, as the execution of a release in assumpsit or debt, or a right of way in trespass, the proof of which rests on the defendant, his counsel begin, after the pleadings are opened, and have the general reply. The same order is observed in trespass quare clausum fregit, if the defendant plead, as to the coming with force and arms, and whatever else is against the peace, not guilty, and as to the residue of the trespasses a justification, which is denied by the replication; and in ejectment, by the heir at law against a devisee, if the defendant will admit the lessor of the plaintiff to be heir. So, if the lessor of the plaintiff prove his pedigree, and there stop, and the defendant set up a new case in his defence, which is answered by evidence on the part of the lessor of the plaintiff, the defendant is entitled to the general reply: which is also the case, where the lessor of the plaintiff claims under a will, and the defendant under a codicil thereto, the validity of which is the question between them, and the defendant admits the title of the lessor of the plaintiff under the will. In assumpsit for goods sold and delivered, on a plea of coverture, if the plaintiff elect to begin, he must go into his whole case; but if the defendant admit the debt, he is entitled to begin. And in an action of trespass, where the general issue is pleaded, and also special pleas, alleging a clandestine removal of goods to avoid a distress, the plaintiff ought to go into the whole of his case in the first instance. 5 a Ante, 679. b3 Campb. 366. 2 Stark. Ni. Pri. 518. c 2 Stark. Ni. Pri. 519. 4 Durnf. & East, 497. 3 Stark. Ni. Pri. 8. 3 Campb. 368. 2 Stark. Ni. Pri. 520. f 3 Stark. Ni. Pri. 178. 2 Stark. Ni. Pri. 31. and see 3 Esp. Ni. Pri. 105. 1 Stark. Ni. Pri. 72. 2 Stark. Ni. Pri. 519, 20. 555. If the first witness called unexpectedly gives evidence against the party calling him, the former is not thereby concluded, but is at liberty to proceed and call other witnesses, to shew the truth and to have the whole of the testimony in the cause fully presented to the jury. But it is equally a rule of law, that if a party call a witness to prove a fact which he supposes him capable of proving, he cannot, when he finds himself deceived, and that the witness disproves the fact, give general evidence to shew that he is unworthy of credit on his oath; he can only prove, by other evidence, that the witness was mistaken respecting the fact which he was called to prove. 5 Dowl. & Ryl. 634, 633. And in general, after the plaintiff's case has been closed, the court will not allow him to remedy a defect in his evidence, unless it has occurred from inadvertency on the part of his counsel. 1 Stark. N. P. R. 117. He will be allowed, likewise, to adduce fresh evidence in order to obviate objections which are beside the justice of the case, but not to get rid of any difficulties on the merits. 2 Carring. & Payne, N. P. R. 259. If he fails in proving the case stated to the jury, he cannot afterwards go into a new case which has not been stated. 1 Stark. Ñ. P. R. 72. |