Abbildungen der Seite

Jurisdiction Clause. —This is the name given to the sixth part of a bill in equity.'

JUROR.--One of a jury.2



the jurisdiction of the court. This The following form is given in Van has been interpreied to mean within Heythewsen's Equity Draftsman (4th the State. Stevens v'. Irwin, 12 Cal. Am, ed.), p. 5: 306.

"All which actings, doings, pretences The English Judicature act of 1875, and refusals are contrary to equity and ch. 1, order 11, rule 1. provides inter good conscience and tend to the manifest alia that “Service out of the jurisdiction wrong and injury of your orators in of a writ of summons or notice of a writ the premises. In consideration whert. of summons may be allowed by the of, and forasmuch as your orators can court or a judge whenever any only have adequate relief in the pren.

for which damages are ises in a court of equity where matters sought to be recovered was

of this nature are properly cognizabie done within the jurisdiction. » and relievable. To the end, therefore," It has been decided that this act did not The 21st rule of the Equity Rules contemplate any alteration of the law, of the Supreme Court of the United and that as under the law prior to the States provides that “The plaintiff, in passage of that act courts had no juris- his bill, shall be at liberty to omit, at diction in actions in personam to re- his option,

the jurisdiction cover damages for injuries inflicted on clause of the bill.'' the high seas, unless the defendants But it is necessary that the bill should could have been served with a citation state a clause within the appropriate within the territorial jurisdiction of the jurisdiction of the court as a court of court, therefore the above words in the equity. Bateman 7'. Willoe, i Sch. & act" within the jurisdiction" must Lef. 201, 204; Chase v. Palmer, 25 Me. mean within the territorial jurisdiction, 341. and leave to issue such a summons of 2. On a trial for murder the court, in which notice would be given out of commenting on the evidence necessary the jurisdiction was refused. In re to produce conviction, said: “He who Smith et al., L. R., i Prob. Div. 390. is to pass on the question (of guilt or

1. Jurisdiction Clause.—"The sixth innocence) is not at liberty to disbelieve part of the bill is what is called the as a juror while he disbelieves as a jurisdiction clause, and is intended to


This was assigned as error, but give jurisdiction of the suit to the court was affirmed, the court, Kxox, J., sayby a general averment that the acts ing: "It is made matter of complaint complained of are contrary to equity, that the judge in his charge, among and tend to the injury of the plaintiff, other remarks, said that he who is to and that he has no remedy, or not a pass on the question,' ctc. complete remedy, without the assist. Notwithstanding the high authority ance of a court of equity. But this which sanctions the use of its language, clause is wholly unnecessary, for it will it is possible that some jurors may ocnot of itself give jurisdiction to the casionally be misied by it. Men, in

If the case made by the bill is their social conduct and business transotherwise clearly of equitable jurisdic actions, often act on bare suspicion, tion, the court will sustain it, although without evidence, and this some jurors the clause is omitted. If, on the con- might possibly suppose is what is trary, the case so made is not of equit meant by their belief as men, contradisable jurisdiction, the bill will be dis- tinguished from their belief as jurors. missed notwithstanding such an aver- But it is impossible for us to supply ment is made in it. For the court jurors with intelligence and judgment, cannot assume any jurisdiction, except and equally out of our power to preupon cases and principles which clearly scribe to the courts below the language justify its interposition. At best, there. which the judges are to use in commufore, the clause is a mere superfluity." nicating instructions. The judge who Story on Equitable Pieadings (9th ed.), endeavors to express his thoughts in a $34; Mitford on Pleadings in Chancery stvla so plain and simple that he will be 5th ed.). 43, 44, Barton's Suit in Equity readily understood by the most Ingersoll's ed.), p. 31.

learned men on the jury best performs




(c) Examination on the II. Rights of Juries, 319.

Voir Dire, 358. 1. Grand Fury, 319.

6. Discretion of the Court Gen2. Petit Fury, 319.

erally, 359 3. Coroner's Fury, 320.

a. Excluding Furors, 360. 4. Sheriff's Fury, 320.

b. Excusing Furors, 361. 5. Common ury, 320.

7. Swearing, 362. 6. Special Jury, 320. (321.

a. Method, 362. 7. Jury de Medietate Linguæ,

b. Time, 362. 8. Jury of Women, 321.

c. Form, 362. III. Right to Trial by Jury, 321.

d. Record, 363 IV. Qualifications, 321.

e. k'eswearing, 363. V. Exemptions, 326.

8. Discharge of Fury Before VI. Organization, 327.

VerdictFeopardy, 364. 1. Selection of the List. 328.

a. Discharge of the whole 2. Drawing of the Panel, 331.

Bodv, 364. a. Time of Drawing, 331.

b. Discharging Individual b. Officers, 331.

Furors After Swear. c. Number Drawn, 332.

ing: 365. d. Drawing Proper, 333. (334:

VII. Review of Objections, 365. e. Right to Service of Panel, 1. Objections Known and With3. Venire and Other Process,335

held, 365. a. Summoning, 335.

2. Injury to the Challenger the b. Form of the Process. 337.

Test, 266.

( 366. c. Special Venire, 338.

VIII. Continuance and Adjournment, 4. Talesmen, 340.

IX. Trial of the Issue, 366. 5. Challenges, 343.

(343. 1. Right to Open and Close, 366 a. Challenges to the Array, 2. Witnesses, 366. b. Challen ges to the Polls, 344. 3. Evidence, 366. (a) Peremptory Challenges, 4. View, 367.

(371. 344


5. Questions of Law and Fact, (1) Nature of the Right,

6. Argument, 371. (2) Number: 346.

7. Exceptions, 371. (3) Stunding Aside.348. X. Custody and Conduct-Deliber(b) Challenges for Cause,

ations, 371. 349.


1. Custod y, 371. (1) On General Grounds 2. Intoxicating Liquors, 372. (2) On Particular 3. Improperly Procured' ReGrounds, 350.

freshments, 372. A. Implied bias, 350. 4. Sleeping During Trial, 373. I. Consanguinity 5. Reading Newspapers, 373.

and Affinity. 350. 6. Communicating with Third II. Interest, 351.

Parties, 373.
III. Voluntary Asso-

7. Separation, 374. [Court, 376. ciations, 351.

8. Receiving Evidence Out of IV. Business Con

9. Books and Papers, 376. nection, 352.

16. Illegal Methods of Arrizing V. Prior Service

at a Verdict, 378. in a Similar Case 11. Misconduct, How Shoru'n. 378. 352.

12. Effect of Misconduct, Waiver, B. Actual Bias, 352. XI. Verdict, 38o.

(379. I. Prejudice, 353.

1. General Verdicts, 380. II. Opinion, 354.

2. Special Verdicts, 380. (c) Trial of Challenges,356. 3. Delivery of the verdict, 3So. (a) Time, 356.

4. Setting Aside the Verdict, 3So (h) Order, 356.

XII. Fees, 38o. (c) Form, 357.

XIII. Judgment, 3So. (d) Trial Proper, 357.

XIV. Error and Appeal, 380.

I. DEFINITION.--A jury is a body of men selected in the manner prescribed by law and sworn to declare the facts in a case as they appear from the evidence presented.1


2. Petit Jury.-In contradistinction to the grand jury, which presents indictments for trial, is the petit or traverse jury, a body of twelve 3 men sworn to try and determine by a unanimous verthis part of the duties of his high office. a “jury," but public commissioners, and The question for us to decide, however, that the decision of the majority was is not whether the court made use of binding. the language best understood by the In the construction of the United jury, but whether instructions have States, and generally elsewhere, the been given which are erroneous in term "jury” means the petit jury. State point of law. It must be remembered v. McClear, 11 Nev. 39. See CONSTIthat jurors are men, and that it is be- TUTIONAL LAW, vol. 3, p. 731, et seq. cause they have human hearts and 2. See GRAND JURY, vol. 9, p. 1. sympathies and judgments that they 3. Co. Litt. (Butler & Hargraves) are selected to determine upon the 1556, n. 3; 2 Hale P. C. 161; Bac. Abr., rights of their fellow men. If they Juries, A; 1 Chit. Cr. L. 505; 2 Trials were more or less than men they would per Pais (1725) 79. not be the constitutional peers of the Any less than this number of twelve prisoner, and would be disqualified to de- would not be a common law jury, and cide his cause. The term “jurors" not such a jury as the constitution means nothing more than twelve men guarantees to accused parties. Cooley qualified and sworn to try a cause ac- Const. Lim., p. 319. cording to the evidence. Their oaths The number of persons to compose a as jurors rest on their consciences as jury in the federal courts is subject to men, and as men they are accountable the rules of the common law. U. S. v. to God and their country for their ver- Dow, Taney 34. dict. Nothing more is demanded of By the constitutions of Michigan (ch. them as jurors than an honest exercise 446), Colorado (chs. 2, 23), Florida of their judgment as men. The evi- chs. 6, 12), and Louisiana (ch. 116), dence which produces conviction on the legislature may in civil cases autheir minds in one capacity works the thorize a trial by a jury of less than same result in another. Their belief is twelve men; and in inferior courts by the same in both. There was, there- ine constitutions of Minois, lowa, fore, no error in law in adopting the Georgia, North Carolina, Missouri, language used by Chief JUSTICE GIB- Nebraska, Texas and West Virginia. son in Com. v. Harman, 4 Barr. 273." See, however, Vaugh v. Slade, 30 Mo. Fife, Jones & Stewart v. Com., 29 Pa. 600. St. 429, 438.

By the constitution of New Jersey, 1. See Bouv. Law Dict.; Cal. Code in civil suits involving less than $50, Proced., $$ 193, 194; Proffatt on Jury the trial may be by a jury of six men. Trial, $76. The term is often used in a In California, the parties may agree loose sense to cover a variety of bodies. on a jury of less than twelve. See, See, Co. Litt. (Butler & Hargraves) generally, State v. McClear, 11 Nev. 1556, n. 3; Matter of Pennsylvania 39; Kreuchi v. Dehler, 50 Ill. 176; Hall

, 5 Pa. St. 204; Bennett v. Čom., 2 People v. Lane, 55 Barb. (N. Y.) Wash. (Va.) 154; Tredyffrin School 168. Lands, 17 Pa. Co. Ct. Rep. 15.

But in criminal cases there is no In Soeno v. Racine, 10 Wis. 271, the doubt that a legal verdict cannot be city charter authorized certain improve- rendered by a jury of more or less than ments (breakwaters and sea walls) and twelve men. Brazier v. State, 44 Ala. directed the cost to be assessed upon 387; State v. Cox, 8 Ark. 436; Gibson the neighboring lots, as a jury of six v. State, 16 Fla. 291; Byrd v. State, i freeholders, chosen to appraise the How. (Miss.) 163; Carpenter v. State, damages for opening streets, etc., might 4 How. (Miss.), 163; Smith v. Atlantic determine, and that they should return R. Co., 25 Ohio St. 91; Wynehame v. their determination to the city coun- People, 13 N. Y. 378; Cancemio v. cil. It was held that these six were not People, 18 N. Y. 128; Bullard v. State,

[ocr errors]

Ala. 393.

dict the facts of a case in dispute as they are proven from the evidence presented.

3. Coroner's Jury 2—4. Sheriff's Jury.3

5. Common Jury.-A common jury is a petit jury returned in the regular manner 4 for the trial of all the cases at issue.5

6. Special Jury.—A special or struck jury is one returned for the trial of a particular case. In many of the States, statutes regulate the mode of selection and provide when a special jury shall be granted.8 In some States it is allowed as of course; in others, only in cases of exceptional difficulty or importance.9 38 Tex. 504. See also‘Bell v. State, 44 mons them as other jurors are sum

moned. Proffatt on Jury Trial, $ 73; 2 See ConstITUTIONAL Law, Right N. Y. Rev. Stat. 418; Bright Purd. to Trial by Jury, vol. 3, p. 731, et seq. Dig. (Pa.), tit. Juries, pl. 66. See also

1. Bouvier's definition is a jury who act June 23rd, 1885 (Pa.), as to the try the question in issue and pass finally effect of which on the right to have a upon the truth of the facts in dispute." special jury there appears to be some

Under the California Code of Pro- doubt. See Powel v. Whitaker, 20 W. cedure, $ 193, 194, a trial jury is held N. C. (Pa.) 58. to be “a body of men returned from the 8. Ark. Dig. Stat. 1874, $ 3703; Code citizens of a particular district before a Ala. 1876, p. 527, § 18; R. S. Del. 1974, court or officer of competent jurisdic. 3703; Code Ga. 1873. 9 3932; Miller's tion and sworn to try and determine, R. C. Iowa 1880, § 2778; 2 Ind. Rev. by a unanimous verdict, a question of 1876, p. 159, § 1, note; R. S. La. 1876, fact. It consists of Ive men, unless $ 2153; L. Mich. 1871, § 6005; R. S. the parties to the action agree upon a Mo. 1879, 2802; Rev. N. J. 1877, P. less number.” Proffatt on Jury Trial, 527, 18, N. Y. Code, $ 1063; R. S. $ 76. See 3 Bl. Com. 352.

Ohio 1880, $ 5185. 2. See CORONER, vol. 4, p. 176.

9. In Arkansas, Delaware, Georgia, 3. See SHERIFF.

Iowa and Ohio, the special jury is 4. See infra, ORGANIZATION. granted as of course. In New řork, 5. Bouvier Law Dict.; 3 Bl. Com. it is granted only in extreme cases.

See statutes cited in the preceding note. 6. According to Bouvier it is a jury Thompson on Trials, Ô 7. See, for a "selected by the assistance of the par- general discussion, Merriam & Thompties."

son on Juries, $ 12; Patchin v. Sands, 7. The difference between the Eng. 10 Wend. (N. Y.) 570; Murphy V. lish method and that used in most of the Repp, i Duer (N. Y.) 659; Livingston States is that in the foriner the officer v. Smith, i Johns. (N. Y.) 141. charged with the duty of making up In Louisiana, special juries are comthe list from which the special jury is posed of persons, otherwise qualified struck is not obliged to take the names for jury duty, who are possessed of cerin any order in which they stand on the tain special qualifications demanded by regular list: he may make a special the peculiarities of the case on trial. selection. Thompson and Merriam on Golding v. Petit, 27 La. An. 86. Juries, § 13; citing King v. Wooler, i Qualifications. In the last Barn. & Ald. 193. See M. & E. R. Co. tioned case it was held that a statute v. Thompson, 77 Ala. 448.

prescribing the qualifications of special Striking Juries. The method of jurors is construed as prescribing qualistriking is substantially the same in all fications additional to the ordinary of the States. A rule or order having qualifications, not exclusive of them. been obtained, the county clerk, at the In Pennsylvania, special jurors are time appointed, in the presence of the not required to be freeholders. Mcparties or their counsel, draws from the Dermoit v. Hoffman, 70 Pa. St. 55. list of jurors forty-eight indifferent Challenges.—Under some statutes, persons. From this list twelve names challenges for cause are allowed before are struck by each of the parties and the striking begins. R. S. Del. 1874, ch. the remaining twenty-four are certified 109, 9 18; 2 Ind. Rev. Stat. 1376, p. 159, by the clerk to the sheriff, who sum- § 1, note; R. S. Mo. 1879, Ø 2802.



7. Jury de Medietate Linguæ.—Until lately, a jury de medietate lingua, consisting half of aliens and half of inhabitants, was a privilege accorded in England, where either party was an alien born. This has now been abolished in England and in all of the States except Kentucky.2

8. Jury of Women.—By the common law, a jury of women may be empanelled in certain cases upon a writ de ventre inspiciendo to try the question whether with child or not.3


IV. QUALIFICATIONS.5_-According to the ancient writ of venire facias, the sheriff was commanded to select for jury duty twelve * free and lawful 6 men of the body of his council,” who were not of kin to either party. A freehold qualification existed at one time; but the property requirement was a continuous subject of legislation.8

In the United States, the qualifications are generally fixed by


In Dothard v. Denson, 72 Ala. 541, a mixed jury. Mitchell's Case, 33 it was decided that although a struck Gratt. (Va.) 845; Lawrence v. Com., 81 jury must not be challenged for any Va. 484. cause (Code Ala., § 3018), yet either 3

BI. Com. 362. party may challenge a juror for cause While the cases are very rare, there on account of bias or interest in the is no evidence that a jury of women is particular case.

not a part of the machinery of the law In Pennslyvania a struck jury may in those States in which the common even be challenged peremptorily. law prevails. See Alb. Law Journal, McDermott v. Hoffman, 70 Pa. 55. vol. 39, No. 17, p. 326. In Anne

See, as to various objections and de- Wycherley's case in England 8 C. & fects in the proceedirgs considered upon P. 262, the jury of women asked for challenge to the array and motion to and got the assistance of a surgeon. amend. People v. Tweed, 50 How. (N. In the famous Massachusetts case of Y.) Pr. 262, 273, 280.

Mrs. Bath-heba Spooner, 1778, on a 1. 3 BI. Com. 360; Thompson & Mer- petition to the governor and council, riam, Juries, Ø 16. By the act 6 Geo. the council issued to the sheriff a writ IV, ch. 50, $ 47, this privilege of an alien de ventre inspiciendo, ordering him to was confirmed.

summon a jury of “two men midwives 2. In the United States, generally, and twelve discreet and lawful alienage is a ground for excluding a matrons." juror, whatever the citizenship of the

For a revival of this case see the parties to the suit. Cooley Bl. Com. Harvard Law Review for April, 1889. 3, 36i, note; Bright Purd. Dig. (Pa.) 4. See CONSTITUTIONAL LAW, vol. tit. Juries, pl. 62; State v. Antonio, 4 3, p. 731, et seq. Hawks (N. Car.) 200.

5. Under this head will be treated But where, as in Michigan, an elector requirements of general qualification, may be a foreigner not yet naturalized, which, as prescribed by statute, must but intending to be, the simple fact of be observed in making up the list of alienage does not disqualify a juror and jurors by the officer appointed. (For nothing will be presumed against his their violation in some cases penalties right to act. People v. Scott, 56 Mich. are inflicted. See Bright Purd. Dig. 154, 158.

(Pa.) tit. Juries, pl. 62.) In England, the act 33 Vict., ch. 14, The competency of individual jurors ş, has done away with this species of in particular cases will be considered juries.

below under CHALLENGES FOR CAUSE. In Kentucky, the court may still di- 6. For the meaning of legalis homo, rect a return of this jury. G. L. Ky. see Co. Litt. 155 b. 1879, p. 571, 96.

7. 3 Bl. Com. 352. A man of color, indicted for a felony, 8. Co. Litt., $ 155 b; 156 b; Ch. Bl. is not entitled to demand to be tried by Com. 3, 362. 12 C. of L.-21


« ZurückWeiter »