Court of King's Bench for the last fifteen years, bear ample and unequivocal testimony to his unremitting diligence; and the discriminating knowlege and nice precision, with which they are executed, justly entitle him to a distinguished place among this description of authors: incontestably proving, also, that he has liberally discharged the debt which every man, according to Lord Coke, oaves to his profession. As an editor, Mr. Durnford now appears before the public; and to his discretion is entrusted the reputation of that distinguished lawyer, whose name is prefixed to the present work. On the subject of this volume, and of the sources from which it is derived, the editor shall speak for himself: The only hope I can indulge in becoming the Editor of this work is that the late season in which it is published may have enabled me to render it more valuable by references, in the notes, to the latest decisions in our courts. But this collection now appears in a more imperfect state than probably it would if either Mr. Justice Willes or the late Mr. E. Willes had published it; as many of the determinations of the Court of Common Pleas during the latter part of the time when the Chief Justice presided there are not now to be found, though it is evident from certain marks on the paper books of those cases, that he had written out the judgments of the court which he publicly delivered. This loss is however in some instances supplied by the manuscripts of the late Mr. Justice Wm. Fortescue, and by a copy of some notes taken by the late Mr. J. Abney, in the hand writing of his clerk, which I have added in the notes, the former of which were in the collection of the Lord Chief Justice Willes, and the latter were obligingly sent to me by Mr. Justice Lawrence. ance. In examining the collection of Lord Chief Justice Willes's manuscripts, it is not (I trust) expected that I should publish the whole : I have selected such cases as appeared to me of the greatest importAll those respecting the practice of the Court (except in very few instances) I have rejected altogether, not only because they were not of sufficient consequence to be printed in a work of this kind, but also because the decisions in many of them are already in print. The body of this work will be found to consist of four classes of cases: 1st, Those which are taken verbatim from the Lord Chief Justice's manuscripts; and they are either the judgments of the court which he publicly delivered, containing as well his own abridgment of the record or special case as the reasons on which the opinion of the court was founded, or cases of which he wrote an account in his own note books after the cases had been determined. 2dly, The judgments of the court which he gave, without his own abridgment of the records; the records in which cases I have abstracted either from the original records or from the paper books. 3dly, Cases taken from,short notes of the Lord Chief Justice'smanuscripts, the records being abridged by myself. 4thly, Those where nothing more appeared on the Lord Chief Justice's paper books than simply "judgment for the plaintiff" or "for the defendant" &c. the records of which cases I have abridged, and the opinions of the court I have taken from other quarters and added in the notes. Throughout the whole it may be observed that the language of the Lord Chief Justice is printed between inverted commas. The notes to this work (except where they consist of references to cases already in print and to some very modern decisions) may also be arranged in four classes: 1st, Those of the Lord Chief Justice, distinguished by "MS. Lord Chief Justice Willes." 2dly, Manuscript cases collected from various quarters, in the possession of the Lord Chief Justice, to many of which he referred himself; and they are distinguished thus "MS. Coll. Lord Chief Justice Willes." 3dly, Manuscript notes of Mr. Baron (afterwards Mr. Justice) Wm. Fortescue, in his own hand writing; thus marked " MS. Mr. Justice Wm. Fortescue." 4thly, Notes taken by the late Mr. Justice Abney, afterwards copied by his clerk; thus distinguished "MS. Abney J." The correctness and authenticity of these Reports cannot be questioned, when it is known that most of them were written by the venerable author for the purpose of making them public, and may be said to have been published by himself to the profession from the Bench. They are, in many instances, the judgments which he delivered; and they are therefore more worthy of dependance than the notes which could have been taken by any uninterested writer, however great might be his accuracy and his talents. To several of the cases, allusions have been made in other works, particularly in Buller's Nisi Prius: but they are now given with more minuteness, and carry conviction more immediately to the mind of the reader, than in any other report of them which has appeared. To enable the public to judge of the manner in which the work is executed, and to shew how careful and vigilant the system of English jurisprudence is in every particular which concerns the important duties of a juryman, we shall transcribe the Report of Norman against Beamont, C. P. M. 18 Geo. 2. in which case a verdict was set aside, because one of the jurymen was not returned on the Nisi Prius panel, but answered to the name of a person who was. NORMAN against BEAMONT. The cause was tried at the last Suffolk assizes, and one Richard Shepherd was sworn upon the jury who gave a verdict for the plaintiff, damages Is. It was an action of trespass quare clausum fregit; and the Judge certified that the trespass was voluntary and malicious, which which shewed plainly that he was not dissatisfied with the verdict. But upon an affidavit of Shepherd himself that he was not returned upon the nisi prius panel, and that he answered to the name of Richard Geater a person returned on the panel, we had made a rule nisit for a new trial, and a rule against Shepherd to shew cause why an attachment ‡ should not go against him, as he knew that he was not returned and yet suffered himself to be sworn on the jury, and as it looked like a trick in him in order to set aside the verdict if it should be given agaiaet his friend. And now Prime Serjt. shewed cause against the rule; and Prime Serjt. insisted that the Court could take no notice of any thing but what appeared on the record; and that as all appeared to be right on the record, the Court could not take notice of any thing that appeared in the affidavits. And he cited a case of Bolman v. Crowle in B. R. where the defendant paid 241. 1os. in court, upon which a rule was obtained according to the course of that count that it should be struck out of the declaration, but it seems it is never struck out: but the rule is produced at the trial, and then if the jury do not give more damages for the plaintiff than the money which is paid in, the verdict is always given for the defendant: but if the jury are of opinion to find more, they only give a verdict for the overplus. But in that case though the plaintiff had taken the money out of court, yet the rule not being produced at the trial the jury gave a verdict for the plaintiff for 241. 178. 63. in which the 241. 10s. was agreed to be included: but Prime said that upon a motion in B. R. for the de. fendant either that the plaintiff should refund the 241. 10s. or that the verdict might be amended, the Court said they could not go out of the record, and therefore gave the defendant no relief. He insisted likewise that this objection was only matter of challenge and could not be taken advantage of after the verdict; and also that this was cured by the statute 32 Hen. 8. c. 30. s 1. And as it appeared that this was not a verdict against evidence, but plainly to the satisfaction of the Judge, he hoped that the Court would not strain a point to set aside this verdict. Leeds Serjt. read a second affidavit of Shepherd's, in which he swore that he was a young man and was never on a jury before; that *But it has since been holden that if it appear on the trial that the trespass was committed after notice, and the jury give less than 40s. damages, the Judge is bound under the statute 8 & 9 W. 3. c. 11. s. 4. to certify that the trespass was wilful and malicious, in order to entitle the plaintiff to his full costs. Swinnerton v. Jarvis, E. 22 Ceo. 3. C. B; and Reynold v. Edwards, 6 D. & E. 11.' On Wednesday, October 24th, in the same term.' In the case of Wats v. Brains, Cro. Eliz. 779. several of the jury were fined and imprisoned for misconduct.' Which enacts that "if any issue be tried by the oath of twelve of more indifferent men, in any of the King's courts of record, then the justice or justices by whom judgment thereof ought to be given shall proceed and give judgment in the same," notwithstanding any mispleading &c." he he was returned as a juryman at that assizes on the crown side, and not knowing the difference was sworn in this nisi prius cause; and that by reason of a great noise in the court he thought he was the person who was called; and being called again in another cause the mistake was discovered; and he cleared himself from any imputation of having done what he did by design; so the rule was discharged as against him. Bootle Serjt. for the rule insisted that the statute 32 Hen. 8. did not at all affect this case; and relied very much on the statute 3 Geo. 2. c. 25*, which says that twelve of those who are returned shall be sworn, and that they shall try the cause. And he cited the case of Fines v. North, Sir Wan. Jon. 302. Mich. 8 Car. I. where upon error from a judgment in B. C., the error assigned was that but 23 were returned on the venire, and the babeas corpora was awarded against those 23 and one Lambert, and eleven and Lambert were sworn and found for the plaintiff, and the whole Court held that this was ill and not helped by any statute, because one was sworn who was not returned by the sheriff, and they reversed the judgment. We were all of opinion that the statute 32 Hen. 8. did not extend to the present case, nor to any mistakes in the jury process; for if it did, there had been no gecasion for making the statute 21 Jac. I. c 3; the words of which statute likewise shew that the present mistake was such an one as was not proper to be remedied. We were of opinion likewise that this could be no cause of chal. lenge. It could not be a challenge to the array, for there was no objection to the array; nor to the poll, for there was no objection to Richard Geater the person returned. But this was an extrinsic objection, not appearing on the face of the poll. A challenge to a *The eighth section directs sheriffs &c. to annex to the venire facias a panel of not less than 48 or more than 72 jurors, containing their christian and surnames, additions and places of abode, &c. Then the 11th section enacts that the name of each of those persons shall be written on a distinct piece of paper and put into a box, and shall be drawn &c." until 12 persons be drawn who shall appear, and after all causes of challenge shall be allowed as fair and indifferent: and the said 12 persons so first drawn and appearing, and approved as indif ferent, their names being marked in the paud, and they being sworn, shall be the jury to try the said cause" "&c.' The second section of that statute enacts that no judgment shall be stayed or reversed" by reason that the venire facias, habeas corpora, or distringas, is awarded to a wrong officer upon any insufficient suggestion; or by reason the visne is in some part misawarded or sued out of more places or of fewer places than it ought to be, so as some one place be right named; or by reason that any of the jury which tried the said issue is misnamed, either in the surname or addition, in any of the said writs, or in any return upon any of the said writs, so as upon examination it be proved to be the same man that was meant to be returned; or by reason that there is no return upon any of the said wits, so as a panel of the names of jurors be turned and annexed to the said writ," &c.' 5 juryman juryman supposes him capable of serving on the jury if the objection be answered: but Richard Shepherd was no juryman at all. And as to the matter not appearing on the record, we said that in cases of this sort where the objection could not appear on the record we always admitted of affidavits; as in respect to a misbehaviour of any of the jury, or any declaration made by any of them* either before or after the verdict to shew that a juryman was partial. And we thought that the statute 21 Jac. I. c. 13. and 3 Geo. 2. c. 25. very much strengthened the plaintiff's objection. My Brother Abney said that Blackmore's case, 8 Co. 156. plainly shewed that this was a mistake not amendable even after verdict. And I cited the case of Hassett v. Payne, Cro. Eliz. 256. M. 33 &34 Eliz. B. R. where on an attaint it appeared that one George Ellinger was returned on the venire, but one Gregory Ellinger was named in the habeas corpora and returned by that name and sworn on the jury; and it was holden by the whole Court that no attaint would lie, because there was no verdict, the trial being but by eleven. We were therefore all of opinion that the rule ought to be made absolute for setting aside the verdict, but we had a doubt about the costs. We thought it hard that either the plaintiff or the defendant should pay the costs, because neither of them was in any fault. We proposed that the costs should abide the event of the next trial; but the defendant would not consent to it, and we thought that we could not make such a rule unless both the parties consented. We desired that the case of Phillips v. Fowler †, E. 9 Geo. 2. in this court might be looked into to see what the Court did in that case in respect to costs, where they set aside the verdict for a very great misbehaviour in the jury, and we found upon inquiry that the Court at first made a rule for setting aside the verdict upon the defendant's paying the costs, but that afterwards the Court made a rule that the jury, who had grossly misbehaved themselves, should pay the costs on both sides. At last upon mature consideration we made the rule absolute for a new trial without costs on either side ‡. -N. My Brother Burnett said he thought that in this case even at common law there ought to have been a venire facias de novo, according to the old method of proceeding before these motions for new trials, and that in that case there would have been no costs; which was a further reason for our not directing any costs to be paid in the present case .' * But the Court will not now receive the affidavit of a juror respecting the misconduct of the jurymen, Vasie v. Delaval, 1 D. & E. 11; though formerly such affidavits were received, Parr v. Seames, Barnes 438; and Phillips v. Fowler, ib. 441. the case above alluded to. + Com. Rep. 525; and Barnes 441. where a verdict was set aside because the jury had cast lots.' In Hale v. Cove, I Str. 642, where the Court set aside the verdict on account of the misconduct of the jurymen, they ordered the costs to abide the event of the new trial.' See the next case Wray v. Thorn,' As |