soner after he has pleaded, requires only that twelve should come, and twenty-four are returned on that panel (m). If the panel should be exhausted, by reason of parties returned being challenged or excused, the court retains the power which it possessed before the act, of requiring a sheriff to return a jury immediately (see post, Chap. VII. sect. 4,) which shows the propriety of the sheriff attending by a competent representative on the sessions, as it is not fitting that so important a duty should be left to a bailiff or other subordinate officer.

Individuals who are to be summoned on Grand and Petty Juries, and Certificates of Service.]-In order to provide for a fair distribution of labour among parties qualified and liable to serve on grand and petty juries at the session, it is provided, that at every session, the clerk of the peace shall make out a list of such persons as shall attend to serve on any grand or petty jury at such sessions, together with their respective places of abode and additions, and the date of their services; and shall, within twenty days after the close of every such sessions, transmit such list to the sheriff or under-sheriff of the county, who is required forthwith to register the names of the men included in such list in the proper columns of the jurors' book for that purpose, together with the date of their services; and every man so summoned, and having duly attended or served until discharged by the court of sessions, shall, upon application by him made to such clerk of the peace before he shall depart from the place where the sessions are holden, receive a certificate testifying such his service, which certificate the said clerk of the peace is required to give on payment of one shilling (n).

Service within a certain Time an Exemption from what further Sertice.]-No man may be returned to serve on any grand jury or petty jury at any session of the peace, for any county, riding, or division, who has served as a juror at such session, within one year before in Wales, or in the counties of Hereford, Cambridge, Huntingdon, or Rutland, or two years before in any other county, and has the certificate of the clerk of the peace of having so served; and if any sheriff or other minister shall wilfully transgress in such respect, the court may and are required, on examination and proof, in a summary way to set such fine on the offender as they shall think meet (o).

Misconduct in summoning or excusing Jurors.]-And no sheriff,

(m) 2 Hale, 263. See ante, p. 68. ) 6 G. IV. c. 50, s. 41.

(0) Id. s. 42.

under-sheriff, or other officer, shall, directly or indirectly, receive any money or other reward, or promise of money or reward, to excuse any man from serving, or from being summoned to serve on juries, or under any such colour or pretence; and no officer appointed to summon juries, shall summon any man to serve thereon other than those whose names are specified in the warrant to him directed: but if any party shall wilfully transgress in such respect, summoning parties as jurors who are not named in the warrant, he shall be liable to be fined, on summary complaint, by the court within whose jurisdiction the offence shall be committed (p).

Time and Mode of Summoning Jurors.]—The summons to serve on juries at the sessions must be made by the proper officer ten days at least before the day on which the juror is summoned to attend, by showing to the person to be summoned, or, in case he shall be absent from the usual place of his abode, by leaving with some person there inhabiting, a note in writing under the hand of the sheriff or other proper officer, containing the substance of the summons (q). If any officer shall summon a juror less than ten days before the day when he is required to attend, such officer is liable to be fined for his neglect in the discretion of the court (r), and he should himself serve the summons (s).

Fining Jurors for non-attendance.]-And if any man having been duly summoned to attend on any kind of jury at a quarter sessions, shall not attend in pursuance of such summons, or being thrice called shall not answer to his name, or being called shall be present but not appear, or after his appearance shall wilfully withdraw himself from the presence of the court, the court shall set such fine on every such man so making default (unless some reasonable excuse shall be proved by oath or affidavit), as the court shall think meet (1).

Exemption from serving on Juries, how claimed, if Names remain on Jurors' Lists.]-Persons exempted by law from serving on juries, but whose names, however, from any neglect, are not struck out of

(p) 6 G. IV. c. 50, s. 43.

(q) Id. s. 25.

(r) 6 G. IV. c. 50, s. 43.

(8) See 3 B. & Ald. 489, per Abbott, C. J.

(t) 6 G. IV. c. 50, s. 38. This was so at common law. "Courts inferior to the courts of Westminster may clearly

fine and imprison for a contempt, if they are courts of record, as the court of quarter sessions, and the court of oyer and terminer. Indeed it is the constant practice for those courts to fine jurors who do not attend." Per Holroyd, J. 4 B. & Ald. 223, in R. v. Clement Hilary Term, 1821.

the lists made out by the parish officers at the petty session, and who are duly summoned by the sheriff, must attend and claim their privilege from the court, for the sheriff cannot return it so as to exonerate them (u).

Penalties on Officers for Neglect of Duty in providing Juries.]—To ensure the due performance of the duty imposed on the various officers, in respect of the selection and summoning of juries, they are made answerable for their neglect in penalties. Thus the clerk of the peace neglecting to cause the proper forms to be printed, or to issue his warrant with such number of the prescribed forms as he shall, bonâ fide, think sufficient; or neglecting, within three days after application by a high constable, to deliver an additional number of forms; or to provide the jurors' book, and deliver it to the sheriff or under-sheriff; or to give notice to the sheriff or under-sheriff of any error certified by a justice; or to deliver to any man who has served on the grand and petty jury at sessions, a certificate of his service on application and payment of ls.; or to transmit to the sheriff or under-sheriff a list of the men who have attended and served, will forfeit 501., half to the queen, and the other half, with full costs, to any one who will sue in either of the courts at Westminster (v). The like penalty is imposed on the clerk of the petty sessions holden for allowing the lists, omitting to give notice of the holding of such session to the parish officers; and on the sheriff or under-sheriff making an undue alteration in the jurors' book, or refusing to deliver over that book to the succeeding sheriff within ten days after he shall be sworn into office (x). High constables neglecting within fourteen days after their receipt of the warrant of the clerk of the peace to issue their precepts to the parish officers, with such number of proper forms of returns as they shall, bona fide, deem sufficient, or to deliver such additional number as may be required within three days of a demand, if they have them, or forthwith to apply to the clerk of the peace if they have them not; or omitting, after due notice, to attend at the petty sessions, to receive lists tendered to them by the justices, or to attend and deliver them at the ensuing quarter sessions, or altering any list after receiving it,-are subjected to a penalty not exceeding 107, nor less than 40s., at the discretion of the justice before whom

(u) 2 Inst. 448. Trials per Pais, 87; 13 Ed. I. (West. Sec.) c. 38. Judges of all courts had jurisdiction to hear com plaints of improperly summoning aged,

&c. jurors. This power still exists un
repealed by 6 G. IV. c. 50, s. 62.
(v) 6 G. IV. c. 50, s. 46.
(x) Id. s. 51.

they may be convicted (y). Every churchwarden or overseer neglecting (unless prevented by sickness) to assist in making out his list, so that it may not be ready; or wilfully omitting any proper, or inserting any improper name, or taking any money or reward for omitting or inserting any name whatsoever, or wilfully omitting or inserting a wrong description; or omitting, in case the forms of returns supplied be insufficient, to apply for more, to the delay of the list; or neglecting to fix a copy of the list, duly signed, and with the subjoined notice, on the principal door of each place of worship; or refusing to allow to an inhabitant inspection of the list, or a true copy, at any reasonable time within the prescribed three weeks; or refusing to produce the list at the petty sessions, or to answer questions respecting it there on oath; or to attend such sessions or an adjournment; or refusing to allow the petty sessions, or any justice of the peace, on due request, to inspect or make extracts from any poor rate in his custody, for the purpose of correcting the lists,—is made liable to a like penalty, not more than 107., nor less than 40s., at the discretion of the convicting justice (z). And the justice before whom any parish officer shall be convicted of a wrongful insertion or omission in the list, is required to certify the error to the clerk of the peace, who is to correct his own list accordingly, and give notice to the sheriff or under-sheriff, who is to make a similar correction in the jurors' book (a).

Juries in Cities and Boroughs having separate Jurisdiction, Civil or Criminal.]-The rule for qualification, fixed by the 6 G. IV. c. 50, and the regulation respecting the providing lists, is not extended to liberties, franchises, cities and boroughs, whether counties of themselves or not, which possess separate jurisdiction, civil or criminal; but in such places the panels are to be prepared, as directed by 5 & 6 W. IV. c. 76 (b); except that no man is to be returned to serve at the London sessions who is not a householder or the occupier of a shop, warehouse, counting-house, chambers or office, for the purpose of trade and commerce within the city, having lands, tenements or personal estate of the value of 100l. (c).

(y) 6 G. IV. c. 50, s. 44.

(z) Id. s. 45.

(a) 6 G. IV. c. 50, s. 45.
(b) Sect. 121, 122, 123, post.

(c) 6 G. IV. c. 50, s. 50. This seems still in force, notwithstanding 5 & 6 W. IV. c. 76, s. 123. See the authorities collected, ante, p. 128.

SECTION IX.

OF PROSECUTORS, DEFENDANTS AND WITNESSES: THEIR ATTENDANCE, AND APPEARANCE AT SESSIONS.

Of Prosecutors, and Mode of Prosecution.]—It is said generally that all offences shall be prosecuted at the sessions by presentment, information, or indictment (d). But when jurisdiction is given to the session to hear and determine, and it is not expressly said "by information," the offence must be prosecuted by indictment only (e). As all prosecutions are conducted in the name of the crown, and for the public security and benefit, any person may lawfully prefer an indictment for a misdemeanour or felony; but it is not usual for parties thus to interfere unless they are individually aggrieved by the offence, or sustain some office which renders it peculiarly incumbent on them to bring the offender to justice. A criminal prosecution being instituted in the name of the crown for the furtherance of public justice, and to punish violations of the peace, does not abate with the death of the prosecutor, like a civil action, even though the injury be chiefly of a personal kind, as an assault or a libel (f); and any engagement made, or security given, by a defendant to a prosecutor by way of compromise, without leave of the court, is invalid (g).

Recognizance to prosecute or give Evidence.]-When a charge is made before a magistrate or coroner, he may bind over the party making the charge to appear at the sessions to prosecute and give evidence, and also all who can give material evidence: and, on their obstinate refusal, may commit them for their contempt therein. This power is virtually included in his commission, and by necessary consequence from 7 G. IV. c. 64, passed in lieu of the acts of P. & M. (h). If a material witness for the prosecution refuses to appear pursuant to

(d) Com. Dig. Justices of Peace (D. 9). See the commission, ante, p. 79, This clause does not make them justices of "oyer and terminer," within those general words in statutes, for that is a distinct commission of another nature, 2 Hale, 44, and see post, Index, tit. Middlesex.

(e) Shipman v. Herbert, 4 T. R. 109. See R. v. Proby, 1 Ld. Ken. 250.

(ƒ) R. v. Ellers, 1 Wils. 222, indictment for insulting a justice in the

execution of his duty.

(g) Edgcombe v. Rodd, 5 East's R. 294. See post, Chap. VII.

(h) 2 Hale, 52, 282; 1 Hale, 586; Dalt. chap. 164, 111; 2 Hawk. chap. 8, s. 58; chap. 16, s. 2.-Semble, this power exists only as to persons refusing to give evidence as to charges against persons then under examination, R. v. Cropper, 8 D. & R. 166; 4 D. & R. Mag. Cas. 42.