Page:American Archives, Series 4, Volume 1.djvu/117

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BILL FOR GOVERNMENT OF MASSACHUSETTS BAY.

the Sheriff, requiring him to summon a sufficient number of other persons qualified to serve on Juries, immediately to appear at such Court, to fill up and complete the number of Jurors to serve at such Court; and such persons are hereby required to appear and serve as Jurors at the said Courts accordingly.

And be it further enacted by the authority aforesaid, That no person who shall serve as a Juror, at any of the said Courts, shall be liable to serve again as a Juror at the same Court, or any other of the Courts aforesaid, for the space of three years then next following, except upon special Juries.

And, in order that the Sheriffs may be informed of the persons who have served as Jurors, It is hereby further enacted by the authority aforesaid, That every Sheriff shall prepare and keep a book, or register, wherein the names of all such persons who have served as Jurors, with their additions and places of abode, and the times when, and the Courts in which they served, shall be alphabetically entered and registered; which books or registers shall, from time to time, be delivered over to the succeeding Sheriff of the said county, within ten days after he shall enter upon his office; and every Juror, who shall attend and serve at any of the Courts aforesaid, may, at the expiration of the time of holding every such Court, upon application to the Sheriff, or his Deputy, have a certificate immediately, gratis, from the Sheriff, or his Deputy, testifying such his attendance and service; which said certificate the said Sheriff, or his Deputy, is required to give to every such Juror.

And be it further enacted by the authority aforesaid, That if, by reason of challenges, or otherwise, their shall not be a sufficient number of Jurors for the trial of any prosecution for any misdemeanor, or any action depending in any of the said Courts, then, and in such case, the Jury shall be filled up de talibus circumstantibus, to be returned bv the Sheriff, unless he be a party, or interested or related to any party or person interested in such prosecution or action; and, in any of which cases, to be returned by the Coroner, unless he be a party, or interested or related to any party or person interested in such prosecution or action; and, in any of these cases, to be returned by a proper and indifferent person, to be appointed by the Court for that purpose.

And be it further enacted by the authority aforesaid, That in case any person summoned to serve upon the Grand or Petit Jury, at any of the Courts aforesaid, or upon the Jury, in any prosecution, action, or suit, depending in any of the said Courts, shall not appear and serve at the said Courts, according to the said summons, (not having any reasonable excuse to be allowed by the Judges or Justices at such Court,) he shall be fined by the Judges or Justices of such Court in any sum not exceeding the sum of ten pounds, nor less than twenty shillings sterling.

And be it further enacted by the authority aforesaid, That every Sheriff, or other officer, to whom the Venire Facias, or other process or warrant, for the trial of causes, or summoning of Juries, shall be directed, shall, upon his return of every such writ, or other process or warrant, (unless in cases where a special Jury shall be stuck by order or rule of Court, pursuant to this Act,) annex a pannel to the said writ, or process, or warrant, containing the christian and surnames, additions, and places of abode, of a competent number of Jurors, named in such lists, which number of Jurors shall not be less than twenty-four, nor more than forty-eight, without direction of the Judges or Justices of such Court of Session, or one of them, who are hereby respectively empowered and required, if he or they see cause, by order, under his or their respective hand or hands, to direct a greater number; and then such number as shall be so directed shall be the number to be returned to serve on such Jury.

And be it further enacted by the authority aforesaid, That for the trials of all actions or suits depending in any of the said Courts, the name of each and every person who shall be summoned and returned as aforesaid, with his addition, and the place of his abode, shall be written in several and distinct pieces of parchment, or paper, being all as near as may be of equal size and bigness, and shall be delivered unto the officer to be appointed by the Court for that purpose, by the Sheriff, Under Sheriff, or some Agent[110] of his; and shall, by direction and care of such officer, be rolled up all as near as may be, in the same manner, and put together in a box or glass, to be provided for that purpose; and when any cause shall be brought on to be tried, some indifferent person, by direction of the Court, may and shall, in open Court, draw out twelve of the said parchments or papers, one after another; and if any of the persons, whose names shall he so drawn, shall not appear, or shall be challenged, and such challenge allowed, then such person shall proceed to draw other parchments or papers from the said box, till twelve indifferent persons shall be drawn; which twelve indifferent persons being sworn shall be the Jury to try the said cause: and the names of the persons so drawn and sworn shall be kept apart by themselves in some other box or glass, to be kept for that purpose, till such Jury shall have given in their verdict, and the same is recorded, or until such Jury shall, by consent of the parties, or leave of the Court, be discharged; and then the same names shall be rolled up again, and returned to the former box or glass, there to be kept, with the other names remaining at that time undrawn, and so toties quoties, as long as any cause remains then to be tried.

And be it farther enacted by the authority aforesaid, That it shall and may be lawful to and for the Superior Court of Assize, and Court of Common Pleas, upon motion made on behalf of his Majesty, his heirs or successors, or on the motion of any prosecutor or defendant, in any indictment or information for any misdemeanor depending, or to be brought or prosecuted in the said Court, or on the motion of any plaintiff or plaintiffs, defendant, or defendants, in any action, cause, or suit whatsoever, depending, or to be brought and carried on in the said Court, and the said Court is hereby authorized and required, upon motion as aforesaid, in any of the cases before mentioned, to order and appoint a Jury to be struck for the trial of any issue joined in any of the said cases, and triable by a Jury of twelve men, by such officer of the said Court as the Court shall appoint; and for that purpose the Sheriff, or his Deputy, shall attend such officer with the duplicate of the lists of persons qualified to serve on Juries; and such officer shall thereupon take down, in writing, from the said duplicate, the names of forty-eight persons qualified to serve on Juries, with their additions, and places of abode, a copy whereof shall forthwith be delivered to the prosecutors or plaintiffs, their attorneys or agents, and another copy thereof to the defendants, their attorneys or agents, in such prosecutions and causes; and the said officer of the Court aforesaid shall, at a time to be fixed by him for that purpose, strike out the names of twelve of the said persons at the nomination of the prosecutors or plaintiffs, their attorneys or agents, and also the names of twelve others of the said persons, at the nomination of the said defendants in such prosecutions and suits, and the twenty-four remaining persons shall be struck and summoned, and returned to the said Court as Jurors, for the trial of such issues.

Provided always, That in case the prosecutors or plaintiffs, or defendants, their attorneys or agents, shall neglect or refuse to attend the officer at the time fixed for striking the names of twenty-four persons as aforesaid, or nominate the persons to be struck out, then, and in such case, the said officer shall, and he is hereby required to strike out the names of such number of the said persons as such prosecutors or plaintiffs, or defendants, might have nominated to be struck out.

And be it further enacted, That the person or party who shall apply for such special Jury as aforesaid, shall not only bear and pay the fees for striking such Jury, but shall also pay and discharge all the expenses occasioned by the trial of the cause by such Special Jury, and shall not have any further or other allowance for the same, upon taxation of costs, than such person or party would be entitled unto in case the cause had been tried by a Common Jury, unless the Judge, before whom the cause is tried, shall, immediately after the trial, certify, in open Court, under his hand, upon the back of the record, that the same was a cause proper to be tried by a Special Jury.

And be it further enacted by the authority aforesaid, That, in all actions brought in any of the said Courts, where it shall appear to the Court in which such actions are depending, that it will be proper and necessary that