be cause of challenge to the alien; for as he is incapable to hold any, this would totally defeat the privilege.

Jurors may be challenged propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is such where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favour; as, that a juror is of kin to either party within. the ninth degree; that he has been arbitrator 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; that he has formerly been a juror in the same cause; 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, which, if true, cannot be overruled. Challenges to the favour are where the party hath no principal challenges, but objects only some probable circumstances of suspicion, as acquaintance, and the like, the validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favourable or unfavourable. The triors, 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he and the two triors, shall try the next; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest.

Challenges propter delictum are for some crime or misdemeanor, that affects the juror's credit, and renders him infamous; as for a conviction of treason, felony, perjury, or conspiracy; or if for some infamous offence he hath received judgment of the pillory, tumbrel, or the like, or to be branded, whipped, or stigmatized; or if he be outlawed or excommunicated, or have been attainted of false verdict, præmunire, or forgery.

A juror may himself be examined on oath, with regard to such causes of challenge as are not to his dishonour or discerdit; but not with regard to any crime, or any thing which tends to his disgrace or disadvantage.

Besides these challenges, there are other causes to be made use of by the jurors themselves, which are matter of exemption whereby their service is excused or excluded; as sick and decrepit persons, persons not commorant in the county, and men above seventy years old, and infants under twenty-one.

This exemption is also extended by divers statutes, customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impannelled, must shew their special exemption. Clergymen are also usually excused, out of favour and respect of their function; but if they are seised of lands and tenements, they are in strictness liable to be impannelled in respect to their lay fees, unless they be in the service of the king or some bishop.

If, by means of challenges, or other cause, a sufficient number of unexceptionable jurors do not appear at the trial, either party may pray a tales. A tales is a supply of such men as are summoned upon the first pannel, in order to make up the deficiency. Tales, and the like, was used to be issued to the sheriff at common law, and must be still so done at a trial at bar, if the jurors make default. But at the assizes, or nisi prius, the judge is empowered, at the prayer of either party, to award a tales de circumstantibus, of persons present in court, to be joined to the other jurors to try the cause; who are liable, however, to the same challenges as the principal jurors.

When a sufficient number of persons impannelled or talesmen appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence.

The jury being sworn, the pleadings are opened to them by the counsel for the plaintiff, who briefly informs them what has been transacted in the court above, the parties, the nature of the action, the declaration, the plea, replication, and other proceedings, and lastly, upon what point the issue is joined. The nature of the case, and the evidence intended to be produced, are next laid before them; and when the evidence is gone through, the counsel for the defendant states his case, and supports it by evidence: and then the party which began is heard by way of reply.

EVIDENCE.

Evidence, in the trial by jury, is of two kinds; either that which is given in proof, or that which the jury may receive by their own private knowledge. The former, or proofs (to which in common speech the name of evidence is usually confined), are either written or parole, that is, by word of mouth.

Written proofs, or evidence, are records, and ancient deeds of thirty years standing, which prove themselves; but modern deeds, and other writings, must be attested and verified by parole evidence of witnesses. And the one general rule that runs through all the doctrine of trials is this, that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but if not possible, then the best evidence that can be had shall be allowed. For if it, be found that there is any better evidence existing than is produced, the very not producing it is a presumption that it would have detected some falsehood that at 'present is concealed.

Thus, in order to prove a lease for years, nothing else shall be admitted but the very deed of lease itself, if in being; but if that be positively proved to be burnt or destroyed (not relying on any loose negative, as that it cannot be found, or the like,) then an attested copy may be produced, or parole evidence given of its

contents.

So, no evidence of a discourse with another will be admitted

but the man himself must be produced; yet in some cases (as in proof of any general custom, or matter of common tradition or repute) the court admits of hearsay evidence, or an account of what persons deceased have declared in their life-time: but such evidence will not be received of any particular facts.

Books of account, or shop books, are not allowed of themselves to be given in evidence for the owner; but a servant who made the entry, may have recourse to them to refresh his

memory: and if such servant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence; for as tradesmen are often under the necessity of giving credit without any note or writing, this is therefore, when accompanied with such other collateral proof of fairness and regularity, the best evidence that can then be produced. But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long distance of time, the 7 Jac. I. c. 12. confines this species of proof to such transactions as have happened within one year before the action brought; unless between merchant and merchant, in the usual intercourse of trade. For accounts of so recent a date, if erroneous, may more easily be unravelled and adjusted.

WITNESSES.

With regard to parole evidence, or witnesses; there is a process to bring them in by a writ of subpoena, which commands them, laying aside all pretences and excuses, to appear at the trial, on pain of 1007. to be forfeited to the king; to which the 5-Eliz. e. 9. has added a penalty of 10l. to the party aggrieved, and damages equivalent to the loss sustained by want of their evidence. But no witness, unless his reasonable expences be tendered him, is bound to appear at all; nor, if he appear, is he bound to give evidence till such charges are actually paid him; except he reside within the bills of mortality, and is summoned to give evidence within the same.

All witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause. All others are competent witnesses; though the jury, from other circumstances, will judge of their credibility.

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A Mahometan may be sworn upon the Alcoran, and a Gentoo according to the custom of India, and their evidence may ceived even in criminal cases. But an Atheist, or a person who has no belief or notion of a God, or a future state of rewards or punishment, cannot be admitted as a witness.

Quakers, who refuse to take an oath under any form, by the 7 & 8 W. III. c. 34. are permitted, in judicial proceedings, to make a solemn affirmation; and if such affirmation, like an oath, be proved to be false, they are subject to the penalties of perjury.

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But this does not extend to criminal causes; though their affirmations are received in penal actions, as for bribery. See Atcheson v. Everitt, Cowp. 312. where this subject is largely discussed.

Infamous persons are such as may be challenged as jurors propter delictum; and therefore cannot be admitted to give evidence.

Interested witnesses may be examined upon a voir dire, if suspected to be secretly concerned in the event; or their interest may be proved in court. Which last is the only method of supporting an objection to the former class: for no man is to be examined to prove his own infamy. But a witness may be examined with regard to his own infamy, if the confession of it do not subject him to any future punishment; as a witness may be asked, if he has not stood in the pillory for perjury.

And no counsel, attorney, or other person, entrusted with the secrets of the cause by the party himself, can be compelled to give evidence of such conversation or matters of privacy as came to his knowledge by virtue of such trust and confidence: but he may be examined as to mere matters of fact, as the execution of a deed, or the like, which might have come to his knowledge without being interested in the cause.

By the 46 Geo. III. c. 37. a witness cannot refuse to answer a question relevant to the matter in dispute, the answering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture, by reason only that the answer to such question may establish or tend to establish that he owes a debt, or is subject to a civil suit.

One witness (if credible) is sufficient evidence to a jury of any single facts; though the concurrence of two or more corroborates the proof. Yet the law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two.

Positive proof is always required, where from the nature of the case it appears it might possibly have been had. But, next to positive proof, circumstantial evidence, or the doctrine of presumptions, must take place for when the fact itself cannot be demonstratively evinced, that which comes nearest to the proof of the fact is the proof of such circumstances which either necessarily or usually attend such facts; and these are called presumptions, which are only to be relied upon till the contrary be actually proved. Violent presumption is many times equal to full proof, for there those circumstances appear, which necessarily attend the fact. As if a landlord sue for rent due at Michaelmas 1754, and the tenant cannot prove the payment, but produces an acquittance for rent due at a cubsequent time, in full of all demands, this is a violent presumption of his having paid the former rent, and is equivalent to full proof; for though the actual payment is not proved, yet the acquittance in full of all demands is proved,

which could not be without such payment; and it therefore induces so forcible a presumption, that no proof shall be admitted to the contrary.

Probable presumption, arising from such circumstances as usually attend the fact, hath also its due weight: as if, in a suit for rent due in 1754, the tenant prove the payment of the rent due in 1755, this will prevail to exonerate the tenant, unless it be clearly shewn that the rent of 1754 was retained for some special reason, or that there was some fraud or mistake: for otherwise it will be presumed to have been paid before that in 1755, as it is most usual to receive first the rents of longest standing.

The oath administered to the witness is not only that what he deposes shall be true, but that he shall also depose the whole truth; so that he is not to conceal any part of what he knows, whether interrogated particularly to that point, or not. And the evidence is to be given in open court, each party having liberty to except to its competency; which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed.

And if, either in his directions or decisions, the judge mis-state the law, the counsel on either side may require him publicly to seal a bill of exceptions, stating the point wherein he is supposed to err: and this he is obliged to seal, or, on refusal, the party may have a compulsory writ against him, commanding him to seal it, if the fact alleged be truly stated. And if he return that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return.

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This bill of exceptions is in the nature of an appeal; examinable, not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below. demurrer to evidence is determined by the court out of which the record is sent. This happens, where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law; in which case the adverse party may, if he please, demur to the whole evidence; which admits the truth of every fact that has been alleged, but denies the sufficiency of them all, in point of law, to maintain or overthrow the issue; which draws the question of law from the cognizance of the jury, to be decided by the court.

Such evidence as the jury may have in their own consciences, by their private knowledge of facts, has as much right to sway their judgment as the written or parole evidence which is delivered in court; and therefore if a juror know any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court.

When the evidence is gone through on both sides, the judge sums up the whole to the jury; who then withdraw from the bar to consider of their verdict, and they are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. And if they eat or drink at all, or