return the whole. The commission, when duly prepared, is delivered by the clerk, to the party who applied for it, by whom it is forwarded to the commissioners. When executed, it is returned by them under seal, to the clerk's office, and when there, it is opened, filed, and must be kept in the same manner as dépositions taken in the other mode. The commission generally specifies the names of the commissioners, and also the names of the witnesses, whose depositions are to be taken, and it should always specify the latter, when they are known.1 A commission, however, may be issued, directed to any magistrate, to take the deposition of any witness that may be produced; but where either party applies for such a general commission, the opposite party, on application to a judge of the court, at his chambers, may procure an order to the clerk, to insert a direction, that he, or his agent at the place where the deposition is taken, shall have notice of the time and place of the taking thereof. And if such direction be not inserted in the commission, and such notice be not given, the deposition will be rejected.2 1 1830. Bryant et al. v. Commonwealth Insurance Company, Suffolk, Nov. 2 Ibid. CHAPTER JURY. How selected. Soon after the settlement of this country, the practice was adopted, of electing the jurors for every court, from among the people; and this was continued for many years. But now, jurors are drawn, the mode of doing which, as also the qualifications of jurors, is regulated by statute. The selectmen of each town or district, must provide, and cause to be kept, in their respective towns, a jury box; and must, once in three years, at least, prepare a list of such persons, as are legally qualified to serve as jurors, and having written their names upon tickets, cause them to be placed in the jury box.' And there must be provided and constantly kept in the box, to be drawn when required, a number of jurors equal at least, to one for every sixty persons which the town shall contain, computing by the last census.2 Qualifications of jurors. The list which the selectmen are directed to prepare, must contain the names of "such persons, under the age of seventy years, as they shall judge well qualified to serve as jurors, being persons of good moral character, and qualified, as the constitution directs, to vote in the choice of representatives.3 1 Stat. 1812. ch. 141. s. 2. 2 Ibid. s. 3. 3 Ibid. s. 2. Note. By the constitution, as it stood when the statute last cited, was passed, and before the amendments made in 1820, the Term of service of jurors. No person is liable to be drawn, or to serve, on any jury, at any court, oftener than one term in three years.1 - The the Persons exempted from serving as jurors. persons exempted from serving upon juries are, Governor, Lieutenant Governor, counsellors, judges, clerks of the common law courts, secretary and treasurer of the Commonwealth, loan and revenue officers, judges and registers of probate, registers of deeds, settled ministers of the gospel, officers of any college, preceptors of incorporated academies, physicians and surgeons regularly authorized, cashiers of incorporated banks, sheriffs and their deputies, marshals and their deputies, counsellors and attornies at law, justices of the court of sessions, criers of the judicial courts, constables and constant ferrymen. 2 All engine men are excused from being chosen or drawn, to serve as jurors in any court, in all cases, where the town, to which they belong, shall, at a legal meeting of its inhabitants, by vote, declare the expediency of excusing such persons, from serving as jurors.3 If any person, whose name shall be in the jury box, shall be convicted of any scandalous crime, or guilty of any gross immorality, his name shall be withdrawn from the jury box, by the selectmen.* persons, qualified to vote in the choice of representatives, were, "every male person being twenty one years of age, and resident in any particular town in this Commonwealth, for the space of one year next preceding, having a freehold estate, within the same town, of the annual income of three pounds, or any estate, of the value of sixty pounds." 1 Stat. 1812. ch. 141. s. 2. 2 Ibid. 3 Stat. 1808. ch. 25. 4 Stat. 1807. ch. 140. s. 2. How summoned. The several counties, excepting Suffolk, Dukes, and Nantucket, are divided into jury districts, -the number of which cannot be less than four, nor more than twelve, in each county, — from which the jurors are drawn, so as to make the burden fall on the several towns, as nearly as may be, equally and in rotation.1 Jurors are summoned by the writ of venire facias, which, at common law, is directed to the sheriff, commanding him to cause to come, the required number of good and true men, and leaving the selection to him. In this state, the writs of venire facias are directed to the constables of the various towns, by the clerks of the several courts, who then deliver them to the sheriffs of the counties, to be by them, forwarded to the respective constables. The constables are then required to notify, in usual form, the selectmen, townclerk, and freeholders of their towns, to meet, at least six days, and not more than twenty days, before the sitting of the court, to which the venire is returnable, and, at such meeting, to draw from the jury box, the required number of jurors. The jurors having been drawn, at such meeting, in the manner prescribed by statute, the constable must summon them, at least, four days, before the sitting of the court, and make seasonable return, of his venire, with his doings thereon, to the court, whence it issued." 5 1 Stat. 1807. ch. 140. s. 3. 2 Ibid. 3 lbid. s. 4. 4 Ibid. 5 Ibid. s. 5. • Ibid. s. 6. If necessary, at any court, the venire may direct the drawing of two sets of jurors, the latter to be called provisional jurors. The proceedings, however, are precisely the same.1 Return of the venire facias. By a rule of the Supreme Judicial Court,2 every venire facias, must be made returnable into the clerk's office, by ten of the clock in the forenoon, of the first day of the term, and the jurors shall be required to attend at that time; excepting only, when in case of a deficiency of jurors, the court shall order an additional venire facias in term time, in which case, the same shall be made returnable forthwith, or at such time, as the court shall order.3 The constables, therefore, must make return of their writs of venire, at the time and place specified therein. And their returns, as in all other cases, should state their doings, so that it may appear, whether or not, they have complied with the statute; though in some cases, the court have allowed deficiencies in this respect, to be supplied. Thus where a constable had omitted to insert the name of a juror, in his return of the venire, the juror was, nevertheless, put upon the panel, on his making oath, that he had been summoned.1 So, where it did not appear by the constable's return on the venire, at what time, he summoned the jurors, they were put upon the panel, on his making oath, that he had duly summoned them.5 |