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scrolls drawn as aforesaid, shall be put into the partition marked No. 2;' and the clerk shall furnish he sheriff with a list of the jurors so drawn, who shall be bound to summon the same at least ten days before court, to attend at the court for which they are appointed, and the said jurors shall be bound to attend said court. Provided further, that it before the expiration of two years, the names of the jurors in the partition No. 1,' shall be drawn out, then the whole names shall be put into the said partition marked No. 1,' and drawn out again as first directed. And there shall also be put into the said partition marked No. 1, at the court following every first day of January in each year, the names of such persons as shall appear, by the tax lists immediately preceding, to have become qualified to serve as jurors since the making out the general biennial list; subject however to the exceptions aforesaid.

It is the duty of the justices, in the appointment of jurors as aforesaid, to select and choose such only as are well qualified to discharge the important trust and duty of jurors.

The jurors of the courts of pleas and quarter sessions shall be appointed in the same manner, and drawn out of the same box, as jurors to the superior courts of law and equity. Provided, that should the name of any justice of the peace. be drawn for the county court, the same shall be returned into the box from which it was taken, and another ticket drawn out in his place..

A list of the jurors so drawn shall be delivered by the clerk to the sheriff, who must summon them five days before

court.

The jurors of the superior and county courts, as well talesmen as those of the original panels must be freeholders. .. The penalties imposed on jurors of the original panel for non-attendance, are ten pounds in the superior court, and a sum not exceeding five pounds, nor under forty shillings, in the county court. And on a talesman, in either court, a sum not exceeding twenty shillings at the discretion of the court. In the latter case, the court shall order the clerk forthwith to issue an execution against the body or goods of the delinquent for the amercement and costs. But a delinquent juror of the original panel in either court shall have till the next succeeding term to make his excuse to said court; and if he shall then render, to the satisfaction of the court, sufficient excuse, he shall be discharged without costs. And if he be a delinquent juror of the superior court, it shall be lawful for him to send forward his excuse to such court on oath, setting fortf

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the reason why he cannot attend; which, if adjudged suffi cient, shall exonerate him from the fine and all costs.

The sheriff shall, during the sitting of any court, by order of court, summon as many as shall be necessary of talesmen, or by-standers, to serve as jurors from day to day. And service of summons will be good as to a juror of the origninal panel, if the sheriff leave a note or summons in writing at the dwelling house of such person.

No sheriff or other officer shall serve or execute any writ or other process on the body of any juror, during his attendance on, going to, or returning from any of the said superior or county courts. Any such service shall be void, and the defendant may on motion be discharged.

It shall be the duty of the clerks of the several superior and county courts, before a jury shall be impannelled to try the issue or issues in any civil cause depending therein; or in any suit or prosecution wherein the state is a party (except in case of capital offences) to read over the names of the jury upon the panel in the presence and hearing of the parties or their counsel. And it shall be competent for either plaintiff or defendant, or their counsel, in civil cases between individuals, and for the defendants, or their counsel, in suits or prosecutions wherein the state shall be a party, to challenge peremptorily four jurors upon the said panel, without show ing any cause therefor; which challenge shall be allowed by the court, and the panel shall then be made up as in other

cases.

All regularly bred physicians, or practitioners of physic and surgery, are exempt from serving as jurors, either in the county or superior courts.

The several county courts have power to lay a tax for the purpose of paying their jurors, both in the superior and county courts, a sum adequate to their services, which shall not exceed one dollar and fifty cents, nor be less than fifty cents per day; and a sum equal to the daily allowance for every thirty miles travelling to and from said courts: provided, that a majority of the justices of said county be present when the said tax shall be laid, and that said tax shall not exceed ten cents on each poll and the like sum on every $ 300 value of town property and of land, for the purpose abovementioned; which taxes shall be collected and accounted for as other county taxes are now or may hereafter be accounted for.

The sheriff shall account to the county court for fines levied on delinquent jurors.

Petit jurors are sworn well and truly to try all civil causes that shall come before them, &c. Talesmen, to try such causes as come before them during that day.

When eighteen or more jurors appear in the superior court, their names are written on scrolls of paper, which are put into a box, and drawn out by a child under ten years of age; and the first eighteen drawn, shall be the grand jury. A similar practice is pursued in the county court.

The jurors when called, both in criminal and civil cases, be challenged by either party.

may

Challenges are of two sorts, to the array and to the polls. Challenges to the array, are at once an exception to the whole panel in which the jury are arrayed and set in order by the sheriff in his return; and may be made for partiality, or some default in the sheriff, or his under officer who arrayed the panel. If he be a party to the suit, or be related by either blood or affinity to either of the parties, the array shall be quashed or if he arrays the panel at the nomination, or under the direction of either party.

Challenges to the polls, are exceptious to particular jurors. These are of three sorts, for insufficiency, for affection, and for some crime or misdemeanor.

1st. For insufficiency.-As it he be an alien not naturalized, a slave, or bondman; or if the person offered as juror, be a woman; or if he be not a freeholder.

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2d. For affection.-And there the challenge is of two kinds -a principal challenge, or to the favour. A principal challenge is such, when the cause assigned carries with it, on its first appearance, evident marks of suspicion, cither of malice or favour, as that the juror is of kin to either party within the ninth degree; that he has been an arbitrator on either side ; that he has an interest in the cause; that there is an action dedending between him and the party; that he has taken money for his verdict; that he is the party's master, servant, counsellor, steward, or attorney; or of the same society or corporation with him. All these are principal causes of challenge, and if true, cannot be overruled.

Challenges to the favour are, where the party hath no principal challenge, but objects. only to some probable circumstances of suspicion,-as acquaintance and the like,-the validity of which must be left to triers, who are to decide whether the juror be favourable or unfavourable The triers, in case the first men 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 sworu, the two triers shall be be superseded, and the two first sworn on the jury shall try the next. In civil cases however, the jurors being sworn to try all causes, the exception may made before they are charged with the cause, and if found true, they shall be removed from the jury, although sworn to try all causes

be

To this head may be referred the peremptory challenge of four jurors as aforesaid.

3d. For some crime or misdemeanor affecting the juror's credit and rendering him infamous. As for a conviction of reason, felony, perjury, or conspiracy; or if the hath received judgment of the pillory or the like; or to be branded, whipped, or stigmatized; or hath been attainted of forgery. A juror may himself be examined with respect to causes of challenge which are not to his dishonour: but not with regard to this head of challenge, for a crime or misdemeanor which would be to make him either forswear or accuse himself if guilty.

The foregoing challenges are common to both civil and criminal cases: but in criminal cases which are capital, the prisoner is allowed an arbitrary or capricious species of challenge, to a certain number of jurors, without assigning any reason at all; which is called a peremptory challenge, and is by our law to the number of thirty-five.

The state shall not challenge any jurors without assigning a cause certain; but the state need not assign its cause of challenge till the pannel is gone through, and unless there cannot be a full jury without the persons so challenged, and then, and not sooner, the state's counsel must show the cause, or the jury shall be sworn.

No challenge can be taken till a full jury have appeared, and then the challenger must make all his challenges at once. After a challenge to the array, and trial duly returned, if the same party challenge the polls, he must show cause presently.

When the state is party, the defendant that challenges for cause, must show his cause presently.

After the evidence given upon the issue the jury ought to be kept together in some convenient place, without meat or drink, fire or candle, otherwise than with the leave of the They ought not to be allowed to speak with any stranger, unless with the constable that attends them, and with him only after they are agreed upon their verdict. And

court.

before they retire, a constable shall be sworn thus to keep them.

When all the twelve jurors agree together, they may make up a verdict, which must be delivered by their foreman.

The verdict is then said to be delivered, when it is openly pronounced in court; and when they come into court to give their verdict, the plaintiff shall be demanded, and then may be nonsuited by not answering.

Verdicts are of two kinds,-general and special.

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General, which is positive either in the affirmative or negative, as guilty, or not guilty.

Special, where they find the special matter, leaving it to the judges to determine what is the law. It may be either upon a general or special issue. It may b be also in either civil or criminal cases, and the court cannot refuse a special verdict appurtenant to the matter in issue.

A verdict may also be public or privy.--Public, which is given in open court.-Privy, which is given out of court, before any of the judges or justices of the court. But they may vary from this in open court when their public verdict is given. After it is recorded they cannot vary from it, but before they

may.

In criminal matters they cannot give a privy verdict, nor can they be discharged till they have given their verdict. If they separate in a capital case without giving a verdict that acquits the prisoner.

Jurors cannot be fined, imprisoned, or punished for finding a verdict contrary to the direction of the judge. Yet, in many instances, where, contrary to evidence, they have found the prisoner guilty, their verdict, hath been mercifully set aside, and a new trial granted. But no new trial hath been granted where the prisoner was acquitted upon the first.

A privy verdict can only be delivered by consent of the judge or justice. But it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged.--Blac. Com. 377..

By act of assembly, the judges of the superior courts of law are authorised, upon application of the defendant, to grant new trials in criminal cases, where the defendant is found guilty, in the same manner, and under the same rules, regu lations, and restrictions as in civil cases.

It is not lawful for any judge, in delivering a charge to a pettit jury, to give an opinion whether a fact is fully or suf ficiently proved, such matter being the true office and province of the jury. But it is the duty of the judge in such cases, to