And it is further enacted, That the Sheriffs, or other Officers, to whom the returning of Juries doth or fhall belong, for any County, City, or Place refpectively, fhall not impanel

Cafes.

or return any Perfon or Perfons to ferve on Return of Juany Jury for the Trial of any Capital Offence, ries in Capital who, at the Time of fuch Return, would not be qualified in fuch refpective County, City, or Place, to serve as Jurors in Civil Caufes for that Purpose; and the fame Matter and Cause alledged by Way of Challenge, and fo found, fhall be admitted and taken as a principal Challenge, and the Perfon or Perfons fo challenged fhall and may be examined on Oath of the Truth of the faid Matter."

This Act was made perpetual by Stat. 6 Gea.

2. C. 37.

Act not to ex

And by Stat. 4 Geo. 2. c. 7. It is enacted, After 1 May That from and after the first Day of May in 1731. Claufe the Year of our Lord one thousand feven hun- in the Jury dred and thirty-one, the fourth Section of the faid Act, or any Part thereof, fhall not extend C or be conftrued to extend to the County of Middlefex?

tend to Middiefex.

has been re

'Provided always, and it is enacted by the Authority aforefaid, That no Perfon fhall be re- None to be turned to serve as a Juror at any Seffion of returned, who Nifi prius in the County of Middlefex, who turned in the has been returned to ferve as a Juror at any two Terms fuch Seffion of Nifi prius in the faid County, preceding. in the two Terms or Vacations next immediately preceding, under fuch Penalty upon the Sheriff, Under-Sheriff, Bailiff or other Offi'cer employed or concerned in the fummoning or returning of Jurors in the faid County of 'Middlefex, as might have been inflicted upon them, or any of them, for any Offence against the faid recited Claufe.'

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And whereas by the very frequent Occafions there are for Juries in the County of Middlefex, and by the fmall Number of Freeholders, that are in the faid County, the Sheriffs of the faid County may be under Difficulties in procuring Juries to anfwer the Purposes of this Act; for Remedy whereof it is enacted by the Authority aforefaid, That all • Leafeholders upon Leafes, where the improved Rents or Value fhall amount to fifty Pounds, or upwards, per Annum, over and above all Ground-Rents, or other Referva⚫tions, payable by Virtue of the faid Leafes, fhall be liable and obliged to ferve upon Juries, when they shall be legally fummoned for that Purpose; any Thing in this or any former Act to the contrary notwithstanding.'

6

CHA P. IX.

Of Challenges (a) to the Array, &c.

1 Inft. 155.6. Jury ought to be: The next Thing to

YOU have already feen of what Vifne the

156. Challenges.

confidered is concerning Challenges.

be

Challenge is a Word common, as well to the English as to the French, and fometimes fignifieth to claim, and the Latin Word is Vindicare; fometimes in Refpect of Revenge, to challenge into the Field, and then it is called in Latin, Vindicare or provocare; fometimes in Refpect of Partiality or Infufficiency, to chal

(a) One challenged fworn as a Tales-Man, ill. Str. 640.

lenge

2

lenge in Court Perfons returned on a Jury. And seeing there is no proper Latin Word to fignify this particular Kind of Challenge, they have framed a Word anciently written Chalumniare, and Columpniare, and Calumpniare, and now written Calumniare, and hath no Affinity with the Verb Calumnior, or Calumnia, which is derived of that, for that is of a quite other Senfe, fignifying a falfe Accufer; and in that Senfe Bratton ufeth Calumniator, to be a falfe Calumniator. Accufer: But it is derived of the old Word Caloir or Chaloir, which in one Signification is to care for, or forefee. And for that to challenge Jurors, is the Mean to care for, or forefee, that an indifferent Trial be had, it is called Calumniare, to challenge, that is, to except against them that are returned to be Jurors, and this is its proper Signification. But fometimes a Summons, Summonitio, is faid to be Calumniata, and a Count to be challenged, but this is improperly. And forafmuch as Mens Lives, Fames, Lands and Goods, are to be tried by Jurors, it is moft neceffary that they be Omni exceptione majores; and therefore I will handle this Matter more largely.

A Challenge to the Jurors is twofold, either Ibid. to the Array, or to the Polls: To the Array Challenge is of the principal Panel, and to the Array of two fold. the Tales. And herein you fhall understand To the Array. that the Jurors Names are ranked in the Panel one under another, which Order or Ranking the Jury, is called the Array, and the Verb, to array the Jury, and fo we fay in common. Speech Battail Array, for the Order of the Battail. And this Array we call Arraiamentum, to make the Array, Arraiare, derived of the French Word Arroier; fo as to challenge

Array.

Ibid.
Principal
Challenges.

the Array of the Panel, is at once to challenge or except againft all the Perfons fo arrayed or impanelled, in Refpect of the Partiality or Default of the Sheriff, Coroner, or other Officer that made the Return.

And it is to be known, that there is a principal Caufe of Challenge to the Array, and a Challenge to the Favour; principal in Respect of Partiality; as firft, If the Sheriff or other Officers be of Kindred or Affinity to the Plaintiff or Defendant, if the Affinity continue. Secondly, If any one or more of the Jury be returned at the Denomination of the Party, Plaintiff or Defendant, the whole Aray fhall be quafhed. So it is, if the Sheriff return any one, that he be more favourable to the one than to the other, all the Array fhall be quafhed, Thirdly, If the Plaintiff or Defendant have an Action of Battery against the Sheriff, or the Sheriff againft either Party, this is a good Caufe of Challenge. So if the Plaintiff or Defendant have an Action of Debt against the Sheriff; (but otherwise it is, if the Sheriff have an Action of Debt againft either Party); or if the Sheriff have Parcel of the Land depending upon the fame Title, or if the Sheriff, or his Bailiff which returned the Jury, be under the Diftrefs of either Party; or if the Sheriff or his Bailiff be either of Counfel, Attorney, Officer in Fee, or of Robes, or Servant of either Party, Goffip, or Arbitrator in the fame Matter, and treated thereof. And where a Subject may challenge the Array for Unindifferency, there the King being a Party, may also challenge for the fame Caufe, as for Kindred, or that he hath Part of the Land, or the like; and

where

where the Array fhall be challenged against the King, you may read in our Books.

The Challenge to the Array is, in Respect to the Caufe of Indifferency or Default of the Sheriff or other Officer that made the Return, and not in Respect of the Perfons returned. For if the Challenge to the Array be found against the Party that takes it, he fhall yet have his particular Challenge to the Polls; and the Reason why the Array or Panel may be challenged, is, because the Cause doth not appear upon Record, and there is no other Way to take Advantage of it, which is likewife the Reafon of challenge to the Polls. Vin. Trial, 224.

A Challenge was offered to the Array, for that it was made by 7. S. as Sheriff of Bucks, who was made Sheriff in Mich. Term 1687. and had not taken the Oaths required by Stat. 25 Car. 2. and fo his Office was made void; but it was difallowed by the Court, for he is de facto Sheriff. 2 Vent. 58.

The Defendant challenged the Array because it was returned by J. S. as Sheriff, two Days after he had received his Writ of Discharge; and the Court difallowed the Challenge, becaufe contrary to the Record. Cro. Eliz. 369,

In Ejectment, the Plaintiff fuggefteth that his Leffor, the Sheriffs and Coroners were Tenants to a Dean and Chapter, whofe Interest was concerned, and prayed the Venire facias to Elifors, and had it, being confeffed by the Defendant, and the Court took it as a principal Challenge. Vide Hut. 24. Moor 470. Roll. Rep. 328. Duncomb and Ingleby, Trin. 15 Car. 2. B. R.

Challenging the Array of a fpecial Jury for the Sheriff's being interefted, not a Contempt. A Prayer

2 Str. 1000.

M 4