L A W. 



651 



jw few collateral circumstances, as whether a juror, or 



Utod. tenant to a real action, was duly summoned. 



Trial by wager of battel, in civil cases, is only had 



** of on a writ of right ; but in lieu thereof the tenant may 

 have, at his option, the trial by the grand assize. 



f of Trial by wager of Ian, is only had where the matter 

 in issue may be supposed to have been privately trans- 

 acted between the parties themselves, without the in- 

 tervention of witnesses, and may happen upon ac- 

 tion of debt, detinue, account, and the like. He that 

 has waged or given security to make his law, brings 

 with him into court eleven of his neighbours as com- 

 purgatort ; he is there admonished of the consequence 

 and iniquity of perjury: he then swears to the fact, 

 upon which his compurgators swear to his veracity. 



Trial by jury, in civil causes, is either extraordinary 

 or ordinary. The former mode is now seldom used. 

 We confine ourselves therefore to the latter. A jury is 

 1 of twelve men, being equals or peers to tnepar- 



ties litigant. The cause being in court, the jury is sworn 

 b*ft* ; in, unless) challenged by the party. Challenges are of 

 two sorts : challenges to the array, and challenges to 

 tcr. the polls. Challenges to the array are at once an ex- 

 ception to the whole pannel, which may be quashed from 

 any appearance of the impannelling. If either party be 

 an alien he may challenge the array, and have one half 

 denizens, and the other foreigners, for more impar- 

 i the poll*. **! trial. Challenges to the polls in capita are ex- 

 ceptions to particular jurors, the principal of which are, 

 for suspicion of bias or partiality, and for some crimes 

 or misdemeanors that affect the juror's credit, as con- 

 viction of perjury, treason, felony, conspiracy, hav- 

 ing been pilloried, or in any other manner rendered 

 infamous. 



The jury being impannelled, the pleadings are opened 

 by the party who holds the affirmative; the counsel 

 briefly states what has been transacted in the court 

 above, the parties, and the nature of the action, and 

 upon what point the issue is joined : he next states the 

 nature of the case and the evidence intended to be pro- 

 duced. When this evidencf is gone through, the ad- 

 vocate on the other side opons the adverse case, add 

 supports it by evidence ; and then the party which be- 

 gan is heard in reply. 



Evidence to a jury, in written proofs, are records or 

 writings, and deeds of sufficient antiquity ; modern 

 deeds and other writings must be attested and verified 

 by parole evidence; no hearsay evidence will ever be 

 admitted. One witness, if credible, is sufficient evi- 

 dence; and in some cases the party himself takes what 

 is called the tuppietory oath, and is then allowed to give 

 evidence, and if that evidence does not implicate him- 

 .elf, it is accounted good. 



When tiit- evidence is gone through, the judge sums 

 up the whole to the jury, and gives them Lis opinion 

 in matters of law arising upon that evidence. When 

 the jury are agreed, the foreman delivers their verdict. 

 In some difficult cases the jury give a special verdict ; 

 that is, they state the fact, but leave it to the court to 

 judge of the law. 



28. (6.) Next follows tlicjiulgmenl of the court upon 

 what has previously passed. Judgment may be here 

 suspended or finally arrested, for it cannot be entered 

 till the next term, and that upon notice to the other 

 party. So that in case of any defect in point of fact, or 

 law, or excessive damages, the party may have relief in 

 the court above, or by obtaining a new trial ; which is 

 the rehearing of the cause before another jury, but with 

 as little prejudice to either party, as if it had never 



Mi : 



f writing 



< r . : . 



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been heard. Judgments are either interlocutory or Law 

 final ; interlocutory, when given in the middle of a rf England, 

 cause, upon some .plea, proceeding, or default ; which < """Y"'' 

 is only intermediate, and does not finally determine the 

 suit. Costs, or expences, follow judgment, and shall 

 be paid, after taxation, by the vanquished party. 



29. (7-) Proceedings in nature of n/ipeals are, 1. Writs Proceed- 

 of deceit which may be brought in the court of Com- '"gstyap. 

 mon Pleas to reverse a judgment there had by fraud or P ea ' 

 collusion in a real action. 2. Writ of audita querela, 



to discharge a defendant upon some matter having 

 arisen since judgment: where the party would be en- 

 titled to an audita querela, the court, upon motion, will 

 give a summary relief. 3. Writ of error, which lies 

 from the inferior courts of record in England, into the 

 King's Bench, to correct judgments erroneous in point 

 of law, and not helped by the statutes of amendments 

 and jeofails. The parties bringing a writ of error must, 

 except in some peculiar cases, find substantial pledges 

 for prosecution. 



30. (8.) Execution. If judgment be not superseded Execution. 

 or reversed, the nest and last step is the execution, or 

 putting in force that judgment. 



31. Proceedings in ttie courts of equity. The pro- Proceed- 

 ceedings in the coifrt of Chancery correspond nearly to in g in the 

 the practice in the court of Exchequer, the two great com } s of 

 courts of equity. In describing, therefore, the proce- equit y' 

 dure of the former, we sufficiently describe that of the 



latter. The business of equity is almost infinite, but is which are 

 chiefly to give relief in matters of fraud, accident, and by bill; 

 trust ; sccundum contcientiam el arbitrium boni viri. 

 Proceedings are by bill, setting forth the circumstances 

 of the case at length, " and that orator is wholly with- 

 out remedy at common law,'' praying therefore relief, 

 and also process of subpoena against defendant, to com- 

 pel him to answer upon oath all the matter charged in 

 the bill ; if it be to stay, waste, or to stop proceedings 

 at law, an injunction is also prayed. The bill must 

 call all necessary parties, however remotely interested, 

 before the court, otherwise no decree can be made to 

 bind them, and must be signed by counsel. 



32. When the bill is filed in the office of the six injunction 

 clerks, an injunction may be prayed, which may stay ma; be 

 execution on excessive judgment; and if the defendant prayed j 

 does not put in his answer within the stated tirce al- 

 lowed, an injunction issues of course. If for waste or 



other urgent injuries, then upon filing the bill, and a 

 proper case supported by affidavit, the court will grant 

 an injunction immediately, to continue until defendant 

 has put in his answer. It is then determined upon ar- 

 gument, whether the injunction shall be taken off or 

 not. 



33. If the defendant upon service fails to appear irdcfen- 

 within the time limited, and plead, demur, or answer dant fails 

 to the bill, he is then said to be in contempt ; and the to appear, 

 court will attach him by writ, commanding the sheriff 



to take up the defendant, and bring him into court. If 

 no/i est inventus is returned, then an attachment .with 

 proclamations issue, summoning the defendant upon 

 his allegiance persanally to appear and answer. Upon 

 non est inventus being returned, a commission of rebel- 

 lion is awarded against him ; upon nun at inventus be- 

 ing again returned, the court sends a serjeant at arms 

 in quest of him ; and if the defendant eludes him, then 

 a sequestration issues to seize all his personal estate, and 

 the profits of his real estates, and to detain them, sub- 

 ject to the decision of the court. After an order for se- 

 questration has issued, the plaintiff's bill is to be taken 

 pro confetto, and decree to be made accordingly. If 



