540 J U 
jury Is challenged, See. but the whole panel, if the chal¬ 
lenge be made good, is to be quadied, and a new jury re¬ 
turned ; for a tales confifts but of fome perfons to fupply 
the places of fuch of the jurors as were wanting of the 
number of twelve, and is not to make a new jury, 2 Lil. 
Abr. 252. If but one juror appears on the principal pa¬ 
nel, the court may order a tales under flat. 35 Hen. VIII. 
c. 6. 10 Rep. 102. And if upon -a. habeas corpora, or a dif- 
tringas jur. none of the jury appear, it is faid a decern tales 
Avail be awarded ; but it (hall not be had upon a venire fa¬ 
cias. Cro. Eliz. 502. Moor 528. See Dyer 245. 2 Roll. Rep. 75. 
At the afTdes, one of the principal panel appeared, and no 
more, and a tales was awarded, the title whereof was no- 
mina decern talium, and under it eleven were returned ; this 
was, notwithhanding, held good ; for it is only a mifpri- 
fion of the clerk, and decern was ftruck out, and then the 
title was nomina talium, See. And it was adjudged, that 
if, after a tales granted, the principal panel fliould be 
qualhed, the tales Ihould (land good, and more be added, 
See. 4 Rep. 103. 2 Cro. 316. Before the flat. 3 Geo. II. 
c. 25. twenty-four different jurors were returned for the 
trial of each feparate caufe in the manner of twenty-four 
fpecial jurymen at prefent; hence the neceffity of praying 
a tales, from the non-attendance of twelve unexception¬ 
able perfons in each panel, would frequently occur. And 
by Hat. 7 & 8 Will. III. c. 32. it w r as enafled, that the 
tales-men Ihould be feleded from thofe who had been 
fummoned on other panels. But, fince the practice was 
introduced by the faid ftat. 3 Geo. II. c. 25, of impanel¬ 
ling not lefs than forty-eight, nor more than feventy-two, 
for the trial of all common caufes, the provilions of tluj 
ftatutes refpeding a tales are now confined, in a great 
meafure, to fpecial juries. If a tales in default of fpecial 
jurymen is prayed, it is fupplied, agreeably to ftat. 7 & 8 
Will. III. c. 32, from the panel of common jurymen. 
But no tales can be prayed where all the fpecial jurymen 
are abfent. , 
When a fufficient number of perfons impanelled, or 
tales-men, appear, they are then feparately fworn, “ well 
and truly to try the iffue joined between the parties, and a 
true verdid to give according to the evidence ;” and hence 
they are denominated the jury, jurata ; and jurors, juratores. 
The number of the jury thus fworn muft in general be 
twelve ; to this there are, however, a very few exceptions 
which admit of a fmaller number. Inftances, in which 
the law allows or requires more than twelve, are, attaint, 
in which there muft be twenty-four; the grand affife, in 
which there muft be fixteen ; the grand jury, for indict¬ 
ments, which ufually conlift of fome number between 
twelve and twenty-three ; a writ of inquiry of wafte, in 
which thirteen have been allowed. Finch L. 484. Spelm. 
Glojf. voc. Jurata. 
As the jurors appear, when called, they (hall be fworn, 
Unlefs challenged by either party. Challenges are of two 
forts; challenges to the array, and challenges to the polls. 
Challenges to the array are at once an exception to the 
whole panel in which the jury are arrayed or fet in order 
by the (heriff in his return ; and they may be made on ac¬ 
count of partiality, or fome default in the fheriff', or his 
under-officer who arrayed the panel. Though there be 
no perfonal objection againft the fheriff, yet, if he arrays 
the panel at the nomination or under the diredion of ei- 
tlieir party, this is good caufe of challenge to the array. 
By the policy of the ancient law, the jury was to come 
de vicineto, from the neighbourhood of the vill or place 
where the caufe of adion was laid in the declaration ; and 
therefore fome of the jury w>ere obliged to be returned 
from the hundred in which fuch vill lay; and, if none 
were returned, the array might be challenged for defed 
of hundredors. For, living in the neighbourhood, they 
were properly the very country, or pais, to which both par¬ 
ties had appealed; and were fuppofed to know before¬ 
hand the characters of the parties and witneffes, and there¬ 
fore the better knew what credit to give to the fads al¬ 
leged in the evidence. But this convenience was over* 
R Y. 
balanced by another very natural and almoft unavoidable 
inconvenience; that jurors coming out of the immediate 
neighbourhood would be apt to intermix their prejudices 
and partialities in the trial of right. And this our law 
was fo fenfible of, that it has for a long time been gra¬ 
dually relinquifliing this pradlice ; the number of necefi- 
fary hundredors in the whole panel, which, in the reign 
of Edward III. were conftantly fix, being in the time of 
Fortelcue reduced to four. Gilb. Hijl. C. P. c. 8. Fortefc. c. 
25. Afterwards, indeed, 35 Hen. VIII. c. 6. reftored the 
ancient number of fix; but that claufe was foon virtu¬ 
ally repealed by ftat. 27 Eliz. c. 6. which required only 
two. And fir Edward Coke alfo gives us fuch a variety 
of circumftances, whereby the courts permitted this ne- 
ceffary number to be evaded, that it appears they were 
heartily tired of it. 1 In ft. 157. At length, by ftat. 4 & 5 
Ann. c. 16, it was entirely abolifhed upon civil actions,, 
except upon penal ftatutes ; and upon thofe alfo by ftat. 
24 Geo. II. c. 18. the jury being now only to come de 
corpore comitalus, from the body of the county at large, and 
not de vicineto, or from the particular neighbourhood. 
The array, by the ancient law, may be challenged, if an 
alien be party to the fuit; and, upon a rule obtained by his 
motion to the court, fora jury de medietate lingua, if luch 
a one be not returned by the ffieriff, purfuant to the ftat. 
28 Edvv. III. c. 13. enforced by ftat. 8 Hen. VI. c. 29. 
which enads, that where either party is an alien born, the 
jury fhall be one half denizens, and the other aliens, (if 
fo many be forth-coming in the place,) for the more im¬ 
partial trial; a privilege indulged to ftrangers in no 
other country in the world, but which is as ancient with 
us as the time of king Ethelred. But, when both parties 
are aliens, no partiality is to be prefumed to one more 
than another; and therefore it was refolved foon after the 
ftat. 8 Hen. VI. that, where the iffue is joined between 
two aliens, (unlefs the plea be had before the mayor of the 
ftaple, and thereby fubjed to the reftridions of 27 Edw. 
III. ft. 2. c. 8.) the jury fhall all be denizens. And it now 
might be a queftion, how far the llat. 3 Geo. II. c. 25, 
hath in civil caufes undefignedly abridged this privilege 
of foreigners, by the pofitive diredions therein given con¬ 
cerning the manner of impanelling jurors, and the per¬ 
fons to be returned in fuch panel. So that (unlefs this 
ftatute is to be conftrued by the fame equity, which ftat. S. 
Hen. VI. c. 29, declared to be the rule of interpreting 
ftat. 2 Hen. V. ft. 2. c. 3, concerning the landed qualifi¬ 
cations of jurors in 1‘uits to which aliens were parties) a 
court might perhaps hefitate, whether it has now a power 
to dired a panel to be returned de medietate lingua 5 and 
thereby alter the method preferibed for ftriking a fpecial 
jury, or balloting for common jurors. 
Challenges to the polls, in capita, are exceptions to parti¬ 
cular jurors. By the laws of England, in the time of 
Bradon and Fleta, a judge might be refufed for good 
caufe ; but now.the law is otherwife, and it is held, that 
judges and juftices cannot be challenged. See Brail. 1 . 5. 
c. 15. Fleta, l. 6. c. 37. Co. Lit. 294. 
Challenges to the polls of the jury (who are judges of 
fad) are reduced to four heads by fir Edward Coke.* 
1. Propter honoris refpcElum, as if a lord of parliament be 
impanelled on a jury, he may be challenged by either 
party, or he may challenge himfelf. 
2. Propter defectum ; .as, if a juryman be an alien born’, 
this is defed of birth; if he be a Have or bondman, this 
is defed of liberty, and he cannot be liber et legalis homo. 
Under the word homo alfo, though a name common to both 
fexes, the female is however excluded, propter defettumfex- 
us: except when a widow feigns herfelf with child, in or¬ 
der to exclude the next heir, and a fuppofititious birth is 
fufpeded to be intended ; then, upon the writ de ventre in- 
fpicicndo, a jury of women is to be impanelled to try the 
queftion, whether with child or not. Cro. Eliz. 566. But 
the principal deficiency is defed of eftate fufficient to 
qualify him to be a juror. This depends upon a variety 
of ftatutes. Firft, by ftat, Weftm. z. 13 Edw, I. c. 38. 
none 
