done. And they examined concerning their summoning those who made default, and the issues of those who were recorded as defaulters were ordered to be estreated.]

Then the Court not being able to proceed for want of a Jury, they ordered another pannel to be ready against Wednesday next, to which time, at seven in the morning, the court was by proclamation adjourned.

WEDNESDAY, May 13, 1696.

The Court being met according to the ad. journment, the pannel was called over, and the defaulters recorded, and several excused for absence upon sickness, and being out of town before the summons. Then Mr. Serjeant Darnall desired, before the Jury was called, to move something against the pannel; and made his motion thus:

Serj. Darnall. If your lordship pleases, I have somewhat to offer to you before you go upon this new pannel, and I confess I think it is my duty to the court, as well as to the prisoner, to state the case as it is, and submit it upon the reason of law, and the authorities that I shall offer, whether the proceedings upon this new pannel will not be erroneous? My lord, the question is, Whether, as this case is, the prisoner has had a copy of the pannel of his jury by which he is to be tried, according as the late law requires? He had a copy of the former pannel, and upon that pannel nine were sworn, and their names all entered upon record, and made parcel of the record. Therefore now the question is, Whether he can be tried upon a new pannel? We are in a case that rarely happens; and in a case of life and death, I know your lordship will be careful not to vary from the ancient practice, or to make a new precedent, because of the consequences. It must be agreed in this case, that the old pannel upon which the prisoner took his challenges, and of which nine were sworn, is parcel of the record. Now, my lord, to add a new pannel, upon which twelve more shall be sworn, and all this appear upon record, and the prisoner tried upon the last pannel, will not this be error? I offer this before the jury be called and sworn, because we desire to be fairly tried; and we design to rest upon the fact in this case. If it should appear, That he is tried upon a pannel that is unduly made and returned, that will be of evil consequence one way or other. And can this be duly made, if another appear upon record before it? And can any body say it is quashed or abated? Or can it be so? My lord, in Stamford's Pleas of the Crown, p. 155, it is said, "If any of the pannel die after the return, and before their appearance, so that there are not enough left to make the jury, yet the pannel shall not be quashed, nor is it abated, but it is cause to grant a tales." And certainly, my lord, it is a stronger case, when by reason of challenges, which the law gives the prisoner liberty to make, there are not enough

left, that there shall not be a new pannel, but that a Tales shall be granted; for if a new pannel might be made, it cannot appear who were challenged, or who were admitted. And if your lordship pleases to consider, the intention of the law in giving the prisoner power to challenge, is, that he may have an indifferent jury; but that would be prevented by such a practice as this; for when it has been discovered upon the old pannel whom the prisoner chose, and whom he challenged upon the new pannel, the persons challenged may be set first, and those that were chosen may be omitted, or so postponed, that none of them whom he thought equal to try him, can serve upon the jury.* And truly, my lord, if I am rightly informed, that is the case upon this new pannel; some of those that were admitted and sworn are left out, and most of them, I think, are put last in the pannel whom he thought equal men to try him, and all those whom he challenged peremptorily are the first men in the pannel. This, my lord, is the case before you; and if this be admitted, the use and end of challenges, which are in benefit and favour of life, would be defeated. And for authorities in this case, besides the reason and ground of the law, many cannot be expected, because it is a fact that rarely happens. I find none of the ancient practisers ever knew it, but I find that a Tales ought to be granted; so it is said in several books, as in Stamford, 155, 156. whenever upon the principal pannel all the jury does not appear, or so many of them do not, that there are not enough left to make a jury, which is our very case; then in such case the pannel shall not be quashed or abated, but a Tales granted; so is 14.H. 7, 7. there the question was, Whether there should be a greater number returned upon the Tales than were in the principal pannel? And there the difference was insisted upon, and agreed, That where it is between party and party, where life is not concerned, it shall not; but where life is concerned, and the prisoner has power to challenge 35 peremptorily, there the judge may award as many upon the Tales as he pleases, that there may be enough to remain after the challenges; so that if this old pannel be not abated, and could not be quashed, and a Tales might be granted to consist of any number, I conceive the prisoner cannot be tried upon this new pannel, but it will be erro. neous: and I humbly submit to your lordship whether you will proceed upon it.

Sir B. Shower. If your lordship pleases to spare me a word of the same side, with submission, We think there ought to have been an Habeas Corpora, with a Tales, such as had been before sworn being to be part of the jury now, and that is the proper way to bring

In the Case of Perry and another, A. D. 1793, in this Collection, it was decided, that where a special jury is ordered, the first special jury struck and reduced according to law, must try the issue joined between parties,

7

the prisoner to his trial in this case; the king's counsel cannot expect we should produce many precedents, for I believe this is the second of the kind that ever happened, at least within memory, that a trial in treason was put off *pro defectu Juratorum,' though I have a precedent that I think is express in the case; but we insist, in the first place, That a Tales does lie at common-law in the case of life; and so the book that Mr. Serjeant cited in Stamford is express; and then we say, that the answer which we expect, that we are now before justices of gaol delivery, is not sufficient, because the justices of gaol-delivery, though they do not usually award process by way of writ, but before their coming, they command the sheriff to have his county ready there, and so in fact it is a parol precept; yet when it is returned, then it is entered upon record, either Præceptum est Vice Comiti 'quod venire faceret ;' or, Ideo veniat Jurata;' and the jury are entered upon record: so that take it to be before justices of gaoldelivery, yet the sheriff having returned a panuel, and that being upon the file, as appears before your eyes, in obedience to your command, and that copy of the pannel being delivered to us two days before Saturday last, we bumbly submit it to your lordship, whether by force of the common-law, and of the late act of parliament, we ought not to be tried by that pannel: we insist upon it, that the act intends, and expressly designed, that not only the prisoner should have a copy of the pannel that the sheriff returned at any time after, but that be should be tried by the pannel that we had a copy of at first; for it is not said a copy toties quoties the court shall think fit to award a precept for a new paunel, but the words of the act are, a copy of the jury duly returned by the sheriff; now this we had, and your lordship knows it is not a returned pannel till it be in court, and then it becomes part of the re cord: my lord, I do agree, the justices in some cases have quashed and set aside pannels and juries, and ordered new ones; and I confess there was an extraordinary case in the time of king Charles the second, which was upon the indictment against Whitebread, where, after the jury charged, and evidence given, the jury was discharged, and a new pannel made the next sessions, upon which Mr. Whitebread was tried and convicted; how just or regular that was, I will not insist upon now, but I am sure there were great complaints of that practice, and few precedents can be shewn of the like: but besides, the parties themselves waved it there, no objection being taken against it; but we insist upon it in this case, that this being upon record, is part of the record, and so appears to the court: if the record indeed were to be made up upon a Writ of Error, perhaps it would be no Error, because it may

* See in this Collection, the Cases of Whitebread, vol. 7, pp. 79. 120. 311. And the Note to vol. 7, p. 497.

VOL. XIII.

be they would leave it out; but here it appears there was a pannel of record before you, and this must either be quashed, or altered, or continued on by process; you have power to quash it, if it be unduly returned by the sheriff. If there be any evil practices for procuring the pannel, either by the prosecutor or the prisoner; if there be no freeholders returned, or the same happen in any other respect not to be legally done according to the command or precept of the court; but because there is a default of appearance of jurors, no pannel was ever quashed upon that account. Then say we, if it be not quashed, this pannel must continue; for, what shall become of it? Why should it not continue? It is not within the act of parliament that gives the justices power to make a new pannel, as in the case of a grand jury when they are guilty of concealments, or refuse to find bills upon great evidence, but we have no such case before you, nor do I know any such rule as can reach this; so that, we take it, there is no difference between this case, as before justices of gaoldelivery, and other justices; that process does lie against the jury that does not appear even in treason and felony, there is no dispute; and it is very properly so, if it be before commissioners of Oyer and Terminer; first, a Venire Facias, and then upon default, a Habeas Corpora, that is the proper way; then take it before justices of gaol-delivery, there it is entered upon record, Præceptum est Vice Comiti,' &c. and here is a pannel returned by virtue of this precept, and some of the jury do not appear, and so there are not enough to try the prisoner after a great many sworn and challenged, and this entered upon record What shall become of that pannel, it canno be quashed nor abated? My lord, there is case that does warrant that opinion of a Tales in a case of felony; and if there may be a Tales, then there may be a Habeas Corpora, and there are directions how the jurors shall be sworn again, upon their appearance on the Habeas Corpora, and that is Wharton's case in Yelverton 23.

Just. Powell, jun. Do not dispute that; it is plain, that a Tales does lie in felony, upon a commission of Oyer and Terminer; but can you shew me, sir Bartholomew, any where that upon a commission of gaol-delivery a Tales does lie?

Sir B. Shower. Sir, I can only shew the reason of the law, and I cannot find that does contradict what we now contend for.

Just. Powell. I tell you, sir Bartholomew, there is no Tales but with a Habeas Corpora to bring in the first jurors, and that cannot be upon a parol precept on a commission of Oyer and Terminer, there goes a Venire Facias, which is a writ upon which the Habeas Corpora may be grounded, but there is no Venire Facias upon a commission of gaol-delivery.

Sir B. Shower. Why should there not be a precept in nature of an Habeas Corpora for a jury returned, on a precept as well as on a writ?

Y

Just. Powell. No, it never was done; the commission of gaol-delivery is a general com mission that does authorize the sheriff to impannel, and have a jury ready at the day ap. pointed for the delivery of the gaol to try the prisoners; it doth import in itself a general precept for that purpose, before issue joined, which the sheriff cannot do in the case of a commission of Oyer and Terminer, but must have a writ of Venire Facias, after issue joined. Sol. Gen. (Sir John Hawles.) In all cases that they cite, there is a writ of Venire Facias, upon which the after-process, by writ, may be grounded; but here is no foundation for any future process by writ, because it is only by parol precept.

Att. Gen. Sure these gentlemen don't think what they say; the pannel is not part of the record, and there is no record of it; nothing but the clerk's entry in a paper, or note, for his own memorandum.

Just. Rokeby. Brother Darnall, have you any book that says, justices of gaol-delivery must award a tales upon default of the jurors? Serj. Darnall. No, my lord, I cannot say so. L. C. J. Treby. Suppose all the jury had been challenged, or died.

Just. Powell. There could be no quashing of it, but it would fall of itself, for want of a jury. Just. Rokeby. If, according to your doctrine, we must keep to the first pannel, the consequence would be, there would be no trial at all. Sir B. Shower. Stamford makes no difference that I can see.

Att. Gen. But these gentlemen have been told the difference upon which this matter is grounded; a Tales cannot be without a Habeas Corpora, and a Habeas Corpora cannot be without a Venire Facias; but a commission of gaol-delivery cannot award a Venire Facias, because that is not to be awarded till issue joined.

Baron Powis. The return of this pannel before justices of gaol-delivery, is an act of the sheriff, by virtue of the commission, and nothing appears of record till the jury are sworn. Just. Rokeby. They object that it is upon

record.

L. C. J. Treby. By the record, they mean the clerk's note.

Att. Gen. If you please to look upon the indictment, there is no entry at all, and that is all the record before you.

Just. Powell. Does it appear upon record, that nine were sworn?

Mr. Baker. No, there is nothing upon the record.

Cl. of Ar. It does not appear till the record is made up, and nothing is entered till 12 are

sworn.

Serj. Darnall. There will be a great inconvenience, if a pannel may be changed at any time.

Just. Powell. This is a case that never happened before, and may be never may again.

Sir B. Shower. The law will hold the same, in case it does appear upon record, as well as

where it does not: but we say, a paunel returned in court is a record.

Just. Powell. No, it will not; because, when a jury does appear, and the twelve are sworn, then it becomes parcel of the record; and therefore Whitebread's case was quite another case, and was indeed held to be an extraordinary case; but that comes not up to us, for there a full jury was sworn, and evidence given.

Serj. Darnall. It may be the same jury will not be returned.

Just. Powell. But if you have a copy of the jury, you are at no mischief.

Serj. Darnall. Some that were in the former pannel are quite left out.

Sher. Buckingham. There are none left out, but what were not freeholders, that I know of. Baron Powis. He says the fact is not true, as you have alledged it.

Sher. Buckingham. And Mr. Serjeant Darnall has been pleased to reflect upon us, as if we had packed this jury, by altering the places of the names, which, my lord, we do utterly deny, and we only left out those that were not freeholders.

Baron Powis. The sheriff says he has not postponed any of them, and only left out those that were not freeholders.

Serj. Darnall. If the law were as plain with us as the fact in that case, we should have a very good case of it.

Sher. Buckingham. Mr. Serjeant, I have both the pannels here; they may be compared. Serj. Darnall. I said no harm, Mr. Sheriff, nor meant any reflection upon you.

Sher. Buckingham. Mr. Serjeant was pleased to say, the excepted men were put in the front, and those that were sworn were put last.

L. C. J. Treby. There is nothing at all in the objection.

Just. Powell, Really because it was opened as a reflection, it will be proper for the sheriff to clear it.

Sher. Buckingham. My lord, the answer I give to it, is, That particularly one that was sworn last time, is now at the very beginning of the pannel; and, in general, they are mixed promiscuously, without any design or study in the least. He says we have left out those that served before: I solemnly protest, I know not one man returned upon the last pannel that is left out, unless it appeared that he is no freeholder; and we had no reason to put in thein, that we knew could not serve.

Serj. Darnall. That cannot appear to us, that they are not freeholders.

Just. Rokeby. But it appears to him, and therefore he did well to leave them out.

Sher. Buckingham. What I say, I am ready to give upon my oath.

Serj. Darnall. I say there is one Henry Beadle left out, and he was one that was

sworn.

Sher. Buckingham. I will not say for a particular man; I protest that I did not know he was left out; if it be so, it was by mistake; for I know Mr. Beadle very well, and I take