Page:Harvard Law Review Volume 5.djvu/373

HARVARD LAW REVIEW. VOL. V. MARCH 15, 1892. No. 8. THE JURY AND ITS DEVELOPMENT. III. THERE was certainly one sort of trial in which witnesses were publicly examined before the jurors at an early period; and this may well have been a provocation to the same thing in the regular jury trial. I mean the case of challenges to the jurors. The "triors," generally two of the unchallenged jurors, might question the challenged men on oath, and might be sworn and charged to say whether these were telling the truth. We see this in the hard-fought case of Wike v. Gernon, reported as of 1371— 1 375 1 There had been a struggle over empanelling the jurors, involving questions about taking an unequal number from two counties, and about challenges to jurors as being in the service of a party, and as having given their verdict beforehand 2 by telling their opinion, and as otherwise bad. The reporter adds, "And yet the persons who were challenged were sworn to give evi- 1 Lib. Ass. 301, 12; s. c. ib. 304, 5; 315, 1; 315, 5; Y. B. 48 Edw. III. 30, 17. An assise of novel disseisin. The parties were at issue as to whose son the defendant was, Alice G.'s or Alice W.'s; and there was a great debate over the question of what jury should try the question, a jury from Essex, where the defendant said he was born, or from Lincoln, where the land was. It was finally determined to take it from both counties. The jury were out three days before agreeing, and when they came to give their verdict all went for nothing by the plaintiff's becoming nonsuit. In 1382 Belknap, C. J., who had been of counsel with the plaintiffs here, asserted emphatically this power of becoming nonsuit a chesc, temps avant plein verdict dit. Bellewe, 251, 2. 2 Adevant main ! and so often. Had the statute of 1362 (36 Edw. III. c. 15), re- quiring the pleading to be in English, hurt, just a little, the purity of the reporter's French ?