538 
J u 
to thefe juftices of affife to try common iffues in trefpafs, 
and other lei's important fuits, with directions to return 
them (when tried) into the court above; where alone the 
judgment Ihould be given. And as only the trial, and 
not the determination of the caufe, was now intended to 
be had in the court below, therefore the claufe of nifi 
pnus was left out of the conditional continuances before- 
mentioned, and was directed by the ftatute to be inferted 
in the writs of venire facias ; that is, “ that the iheriff Ihould 
caufe the jurors to come to Weftminfter, (or wherever the 
king’s courts ihould beheld,) on fuch a day inEafterand Mi¬ 
chaelmas terms; nifi prius, unlefs before that day the juftices 
affigned to take affifes (hall come into his faid county.” 
By virtue of which the (heritf returned his jurors to the 
court of the juftices of affife, which was fure to be held in 
the vacation before Eafter and Michaelmas terms; and 
there the trial was had. 
An inconvenience attended this provifion : principally 
becaufe, as the fheriff made no return of the jury to the 
court at Weftininfter, the parties were ignorant who they 
were till they came upon the trial, and therefore were 
not ready with their challenges or exceptions. For this 
reafon, by ftat. 42 Edw. III. c. ix, the method of trials 
by nifi prius was altered ; and it was enafted that no in- 
quefts (except of affile and gaol-delivery) fhould be taken 
by writ of nifi prius, till after the fheriff had returned the 
names of the jurors to the court above. So that now 
in almoft every civil caufe the claufe of nifi prius is left 
out of the writ of venire facias, which is the fheriff’s war¬ 
rant to warn the jury ; and is inlerted in another part of 
the proceedings ; for now the courfe is, to make the fhe- 
riff’s venire returnable on the laft return of the fame term 
wherein iffue is joined, viz. Hilary orTrinity terms; which, 
from the making up of the iffues therein, are ufually 
called ijfuable terms. And he returns the names of the 
jurors in a panel (a little pane, or oblong piece of parch¬ 
ment) annexed to the writ. This jury is not fummoned, 
and therefore, not appearing at the day, mud unavoida¬ 
bly make default; for which reafon, a compulfive procefs 
is now awarded againft the jurors, called in the common 
pleas a writ of habeas corpora juratorum, and in the king’s 
bench a di/lringas, commanding the fheriff to have their 
bodies, or to diftrain them by their lands and goods, that 
th-y may appear upon the day appointed. The entry, 
therefore, on the roll or record is, “that the jury is re- 
i’pited, through the defeft of the jurors, till the firft day 
of the next term, then to appear at Weftminfter ; unlefs 
before that time, viz. on Wednefday the fourth of March, 
the juftices of our lord the king, appointed to take affifes 
in that county, ffiall have come to Oxford ;” [that is, to 
the place affigned for holding the affifes ;] and thereupon 
the writ commands the fheriff to have their bodies at 
Weftminfter on the faid firft day of next term, or before 
the faid juftices of affife, if before that time they come to 
Oxford ; viz. on the fourth of March aforefaid. And, as 
the judges are fure to come and open the circuit commif- 
fions on the day'mentioned in the writ, the fheriff returns 
and fummons this jury to appear at the affifes, and there 
the trial is had before the juftices of affife and nifi prius ; 
among whom are ufually two of the judges of the courts 
at Weftminfter, the whole kingdom being divided into 
fix circuits for this purpofe. Thus it may be obferved, 
that the trial of common iffues, at nifi prius, which was 
in its origin only a collateral incident to the original 
buiinefs of the juftices of affife, is now, by the various re¬ 
volutions of practice, become their principal civil em¬ 
ployment ; hardly any thing remaining in ufe of the real 
affifes but the name. 
If the fheriff be not an indifferent perfon, as if he be a 
party in the fuit, or be related by blood or affinity 
to either of the parties, he is not then trufted to return 
the jury ; but the venire fhall be directed to the coroners, 
who, in this as in many other inftances, are the fubfti- 
tutes of the fheriff, to execute procefs when he is deemed 
an improper perfon. If any exception lies to the coro- 
R Y. 
ners, the venire fix all be dire fled to two clerks of the court, 
or two perfons of the county named by the court, and 
fworn. And thefe two, who are called elifors, or eleflors, 
fhall indifferently name the jury; and their return is final, 
no challenge being allowed to .their array. Fortefc. de Laud. 
LI. c. 25. Co. Litt. 158. 
When a caufe is ready for trial, the jury is called and 
fworn. To this end the fheriff returns his compulfive 
procefs, the writ of habeas corpora, or difiringas, with the 
panel of jurors annexed, to the judge’s officer in court. 
The jurors contained in the panel are either fpecial or 
common jurors. 
Special juries were originally introduced in trials at bar, 
when the caufes were of too great nicety for the difcuffion 
of ordinary freeholders; or where.the fheriff wasfufpecled 
of partiality, though not upon fuch apparent caufe as to 
warrant an exception to him ; he is, in fuch cafes, upon 
motion in court, and a rule granted thereupon, to attend 
the prothonotary or other proper officer with his free¬ 
holders’ book ; and the officer is to take, indifferently, 
forty-eight of the principal freeholders in the prefence of 
the attorneys on both' (ides; who are each of them to 
ftrike off twelve, and the remaining twenty-four are re¬ 
turned upon the panel. By ftat. 3 Geo. II. c. 25, either 
party is entitled upon motion to have a fpecial jury ftruck 
upon the trial of any iffue as well at the affifes as at bar; 
he paying the extraordinary expences, unlefs the judge 
will certify (in purfuance of ftat. 24 Geo. II. c. 11,) that 
the caufe required fuch fpecial jury. 
By ftat. 3 Geo. II. c. 25, when any fpecial jury fhall be 
ordered by rule of the courts in any caufe arifing in 
any city, See. the jury is to be taken out of lifts or books 
of perfons qualified, which fnall be produced and brought 
by the fheriffs, See. before the proper officer, as the free¬ 
holders’ book is for ftrikirig juries in caufes arifing in 
counties. And by ftat. 6 Geo. II. c. 37, (which makes 
perpetual ftat. 3 Geo. II. c. 25,) the juftices of affife for 
the counties palatine of Chefter, Lancafter, &c. upon mo¬ 
tion in behalf of the king, or any profecutor, or defend¬ 
ant, in an indiftment, information, or any fuit, may ap¬ 
point a jury to be ftruck for trial of iffues in like manner 
as fpecial juries in the courts of law at Weftminfter. 
Though this fpecial jury is allowed as well in indiftments 
and informations for mifdemeanors as in civil aftions, 
there cannot be a fpecial jury in cafes of treafon or 
felony, on account of the prifoner’s privilege of peremp¬ 
tory challenge. If, after a fpecial jury has been ftruck, 
the caufe goes off for default of jurors, no new jury can 
be ftruck, but the caufe muff be tried by the jury firft ap¬ 
pointed. 5 Term Rep. 453. 
The nomination of a fpecial jury, is to be in the pre¬ 
fence of the attorneys on each fide; but, if either of them 
refufe to come, then the fecondary, See. may proceed ex 
parte, and he ftir.il ftrike twelve for the attorney who 
makes default. R. Trin. 8. Wil. III. B. R. It has been alfo 
adjudged, that, if a rule is made for a fpecial jury, and 
it is not expreffed that the mafter of the office or fecon¬ 
dary ffiall ftrike forty-eight freeholders, and that each of 
the parties fhall ftrike out twelve; in fuch cafe the mafter 
may ftrike twenty-four, and neither of the parties ftrike 
out any. 1 Salk. 405. A fpecial jury may be granted to 
try a caufe at bar, without the confent of parties. Pafck. 
10 Geo. I. 
The frequent recurrence of late years to the fyftem of 
fpecial juries has not paffed without fevere animadver- 
fion. Lord Erfkine, in a difcuffion in the houfe of lords, 
in which the fubjeft came under confideration on the 4th 
of March, 1811, intimated his opinion that it was ex¬ 
tremely defeftive; and lord Holland infilled on the ne- 
ceflity of an enquiry into the foundation of a notion that 
fpecial juries are lefs favourably difpofed to a defendant 
than common juries. Sir Richard Phillips, in his work 
on the Powers and Duties of Juries, has the following 
pertinent obfervations on this fubjeft: “The laft en¬ 
croachment on the ancient fyftem of convening and ufing 
juries. 
