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Jurisdiction Clause.-This is the name given to the sixth part of a bill in equity.1 JUROR.--One of a jury.2

the jurisdiction of the court. This has been interpreted to mean within the State. Stevens v. Irwin, 12 Cal. 306.

The English Judicature act of 1875, ch. 1, order 11, rule 1, provides inter alia that "Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the court or a judge whenever




for which damages are sought to be recovered done within the jurisdiction. It has been decided that this act did not contemplate any alteration of the law, and that as under the law prior to the passage of that act courts had no jurisdiction in actions in personam to recover damages for injuries inflicted on the high seas, unless the defendants could have been served with a citation within the territorial jurisdiction of the court, therefore the above words in the act within the jurisdiction" must mean within the territorial jurisdiction, and leave to issue such a summons of which notice would be given out of the jurisdiction was refused. In re Smith et al., L. R., 1 Prob. Div. 390.


1. Jurisdiction Clause.-"The sixth part of the bill is what is called the jurisdiction clause, and is intended to give jurisdiction of the suit to the court by a general averment that the acts complained of are contrary to equity, and tend to the injury of the plaintiff, and that he has no remedy, or not a complete remedy, without the assistance of a court of equity. But this clause is wholly unnecessary, for it will not of itself give jurisdiction to the court. If the case made by the bil! is otherwise clearly of equitable jurisdic tion, the court will sustain it, although the clause is omitted. If, on the contrary, the case so made is not of equitable jurisdiction, the bill will be dismissed notwithstanding such an averment is made in it. For the court cannot assume any jurisdiction, except upon cases and principles which clearly justify its interposition. At best, there fore, the clause is a mere superfluity." Story on Equitable Pleadings (9th ed.), $34; Mitford on Pleadings in Chancery (5th ed.). 43, 44, Barton's Suit in Equity (Ingersoll's ed.), p. 31.

The following form is given in Van Heythewsen's Equity Draftsman (4th Am. ed.), p. 5:

"All which actings, doings, pretences and refusals are contrary to equity and good conscience and tend to the manifest wrong and injury of your orators in the premises. In consideration where of, and forasmuch as your orators can only have adequate relief in the pren.ises in a court of equity where matters of this nature are properly cognizable and relievable. To the end, therefore,” etc. The 21st rule of the Equity Rules of the Supreme Court of the United States provides that "The plaintiff, in his bill, shall be at liberty to omit, at his option, the jurisdiction clause of the bill."

But it is necessary that the bill should state a clause within the appropriate jurisdiction of the court as a court of equity. Bateman v. Willoe, 1 Sch. & Lef. 201, 204; Chase v. Palmer, 25 Me. 341.

2. On a trial for murder the court, in commenting on the evidence necessary to produce conviction, said: "He who is to pass on the question (of guilt or innocence) is not at liberty to disbelieve as a juror while he disbelieves as a man." This was assigned as error, but was affirmed, the court, KNOX, J., saying: "It is made matter of complaint that the judge in his charge, among other remarks, said that he who is to pass on the question,' etc. Notwithstanding the high authority which sanctions the use of its language, it is possible that some jurors may occasionally be misled by it. Men, in their social conduct and business transactions, often act on bare suspicion, without evidence, and this some jurors might possibly suppose is what is meant by their belief as men, contradistinguished from their belief as jurors. But it is impossible for us to supply jurors with intelligence and judgment, and equally out of our power to prescribe to the courts below the language which the judges are to use in communicating instructions. The judge who endeavors to express his thoughts in a style so plain and simple that he will be readily understood by the most learned men on the jury best performs



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nection, 352. V. Prior Service in a Similar Case 352.

B. Actual Bias, 352. I. Prejudice, 353. II. Opinion, 354. (c) Trial of Challenges,356. (a) Time, 356.

(b) Order, 356.
(c) Form, 357.

(d) Trial Proper, 357

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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

II. KINDS OF JURIES 1. Grand Jury.

2. Petit Jury. In contradistinction to the grand jury,2 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 ver

this part of the duties of his high office. The question for us to decide, however, is not whether the court made use of the language best understood by the jury, but whether instructions have been given which are erroneous in point of law. It must be remembered that jurors are men, and that it is because they have human hearts and sympathies and judgments that they are selected to determine upon the rights of their fellow men. If they were more or less than men they would not be the constitutional peers of the prisoner, and would be disqualified to decide his cause. The term "jurors" means nothing more than twelve men qualified and sworn to try a cause according to the evidence. Their oaths as jurors rest on their consciences as men, and as men they are accountable to God and their country for their verdict. Nothing more is demanded of them as jurors than an honest exercise of their judgment as men. The evidence which produces conviction on their minds in one capacity works the same result in another. Their belief is the same in both. There was, therefore, no error in law in adopting the language used by CHIEF JUSTICE GIBSON in Com. v. Harman, 4 Barr. 273." Fife, Jones & Stewart v. Com., 29 Pa. St. 429, 438.

1. See Bouv. Law Dict.; Cal. Code Proced., § 193, 194; Proffatt on Jury Trial, 76. The term is often used in a loose sense to cover a variety of bodies. See Co. Litt. (Butler & Hargraves) 1556, n. 3; Matter of Pennsylvania Hall, 5 Pa. St. 204; Bennett v. Čom., 2 Wash. (Va.) 154; Tredyffrin School Lands, 17 Pa. Co. Ct. Rep. 15.

In Soeno v. Racine, 10 Wis. 271, the city charter authorized certain improvements (breakwaters and sea walls) and directed the cost to be assessed upon the neighboring lots, as a jury of six freeholders, chosen to appraise the damages for opening streets, etc., might determine, and that they should return their determination to the city council. It was held that these six were not

a "jury," but public commissioners, and that the decision of the majority was binding.

In the construction of the United States, and generally elsewhere, the term "jury" means the petit jury. State v. McClear, 11 Nev. 39. See ČONSTITUTIONAL LAW, vol. 3, p. 731, et seq.

2. See GRAND JURY, vol. 9, p. 1. 3. Co. Litt. (Butler & Hargraves) 1556, n. 3; 2 Hale P. C. 161; Bac. Abr., Juries, A; 1 Chit. Cr. L. 505; 2 Trials per Pais (1725) 79.

Any less than this number of twelve would not be a common law jury, and not such a jury as the constitution guarantees to accused parties. Cooley Const. Lim., p. 319.

The number of persons to compose a jury in the federal courts is subject to the rules of the common law. U. S. v. Dow, Taney 34.

By the constitutions of Michigan (ch. 446), Colorado (chs. 2, 23), Florida (chs. 6, 12), and Louisiana (ch. 116), the legislature may in civil cases authorize a trial by a jury of less than twelve men; and in inferior courts by the constitutions of Illinois, Iowa, Georgia, North Carolina, Missouri, Nebraska, Texas and West Virginia. See, however, Vaugh v. Slade, 30 Mo. 600.

By the constitution of New Jersey, in civil suits involving less than $50, the trial may be by a jury of six men.

In California, the parties may agree on a jury of less than twelve. See, generally, State v. McClear, 11 Nev. 39; Kreuchi v. Dehler, 50 Ill. 176; People v. Lane, 55 Barb. (N. Ý.)


But in criminal cases there is no doubt that a legal verdict cannot be rendered by a jury of more or less than twelve men. Brazier v. State, 44 Ala. 387; State v. Cox, 8 Ark. 436; Gibson v. State, 16 Fla. 291; Byrd v. State, 1 How. (Miss.) 163; Carpenter v. State, 4 How. (Miss.), 163; Smith v. Atlantic R. Co., 25 Ohio St. 91; Wynehame v. People, 13 N. Y. 378; Cancemio v. People, 18 N. Y. 128; Bullard v. State,

dict the facts of a case in dispute as they are proven from the evidence presented.1

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

5. Common Jury.-A common jury is a petit jury returned in the regular manner4 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 Ala. 393.

See CONSTITUTIONAL LAW, Right to Trial by Jury, vol. 3, p. 731, et seq.


1. Bouvier's definition is a jury who try the question in issue and pass finally upon the truth of the facts in dispute."

mons them as other jurors are summoned. Proffatt on Jury Trial, § 73; 2 N. Y. Rev. Stat. 418; Bright Purd. Dig. (Pa.), tit. Juries, pl. 66. See also act June 23rd, 1885 (Pa.), as to the effect of which on the right to have a special jury there appears to be some doubt. See Powel v. Whitaker, 20 W. N. C. (Pa.) 58.

Under the California Code of Procedure, §§ 193, 194, a trial jury is held to be "a body of men returned from the citizens of a particular district before a court or officer of competent jurisdiction and sworn to try and determine, by a unanimous verdict, a question of fact. It consists of twelve men, unless the parties to the action agree upon a less number." Proffatt on Jury Trial, §76. See 3 Bl. Com. 352.

2. See CORONER, vol. 4, p. 176.


4. See infra, ORGANIZATION. 5. Bouvier Law Dict.; 3 Bl. Com. 358.

6. According to Bouvier it is a jury "selected by the assistance of the parties."

7. The difference between the English method and that used in most of the States is that in the former the officer charged with the duty of making up the list from which the special jury is struck is not obliged to take the names in any order in which they stand on the regular list; he may make a special selection. Thompson and Merriam on Juries, 13; citing King v. Wooler, 1 Barn. & Ald. 193. See M. & E. R. Co. v. Thompson, 77 Ala. 448.

Striking Juries.-The method of striking is substantially the same in all of the States. A rule or order having been obtained, the county clerk, at the time appointed, in the presence of the parties or their counsel, draws from the 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, § 18; 2 Ind. Rev. Stat. 1375, p. 159, by the clerk to the sheriff, who sum- § 1, note; R. S. Mo. 1879, § 2802.

In Pennsylvania, special jurors are not required to be freeholders. McDermott v. Hoffman, 70 Pa. St. 55.

8. Ark. Dig. Stat. 1874, § 3703; Code Ala. 1876, p. 527, § 18; R. S. Del. 1874, 3703; Code Ga. 1873. § 3932; Miller's R. C. Iowa 1880, § 2778; 2 Ind. Rev. 1876, p. 159, § 1, note; R. S. La. 1876, §2153; L. Mich. 1871, § 6005; R. S. Mo. 1879, § 2802; Rev. N. J. 1877, p. 527, § 18, N. Y. Code, § 1063; R. S. Ohio 1880, § 5185.

9. In Arkansas, Delaware, Georgia, Iowa and Ohio, the special jury is granted as of course. In New York, it is granted only in extreme cases. See statutes cited in the preceding note. Thompson on Trials, § 7. See, for a general discussion, Merriam & Thompson on Juries, § 12; Patchin v. Sands, 10 Wend. (N. Y.) 570; Murphy v. Repp, 1 Duer (N. Y.) 659; Livingston v. Smith, 1 Johns. (N. Y.) 141.

In Louisiana, special juries are composed of persons, otherwise qualified for jury duty, who are possessed of certain special qualifications demanded by the peculiarities of the case on trial. Golding v. Petit, 27 La. An. 86.

Qualifications. In the last mentioned case it was held that a statute prescribing the qualifications of special jurors is construed as prescribing qualifications additional to the ordinary qualifications, not exclusive of them.

7. Jury de Medietate Linguæ.-Until lately, a jury de medictate 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 Kentucky2

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 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, it was decided that although a struck jury must not be challenged for any cause (Code Ala., § 3018), yet either party may challenge a juror for cause on account of bias or interest in the particular case.

In Pennslyvania a struck jury may even be challenged peremptorily. McDermott v. Hoffman, 70 Pa. 55.

See, as to various objections and defects in the proceedings considered upon challenge to the array and motion to amend. People v. Tweed, 50 How. (N. Y.) Pr. 262, 273, 280.

1. 3 Bl. Com. 360; Thompson & Merriam, Juries, § 16. By the act 6 Geo. IV, ch. 50, § 47,this privilege of an alien

was confirmed.

2. In the United States, generally, alienage is a ground for excluding a juror, whatever the citizenship of the parties to the suit. Cooley Bl. Com. 3,361, note; Bright Purd. Dig. (Pa.) tit. Juries, pl. 62; State v. Antonio, 4 Hawks (N. Car.) 200.

But where, as in Michigan, an elector may be a foreigner not yet naturalized, but intending to be, the simple fact of alienage does not disqualify a juror and nothing will be presumed against his right to act. People v. Scott, 56 Mich. 154, 158.

In England, the act 33 Vict., ch. 14, § 5 has done away with this species of juries.

a mixed jury. Mitchell's Case, 33 Gratt. (Va.) 845; Lawrence v. Com., 81 Va. 484.

3. 3 Bl. Com. 362.

While the cases are very rare, there is no evidence that a jury of women is not a part of the machinery of the law in those States in which the common law prevails. See Alb. Law Journal, vol. 39, No. 17, p. 326. In Anne Wycherley's case in England 8 C. & P. 262, the jury of women asked for and got the assistance of a surgeon.

In the famous Massachusetts case of Mrs. Bath-heba Spooner, 1778, on a petition to the governor and council, the council issued to the sheriff a writ de ventre inspiciendo, ordering him to summon a jury of "two men midwives and twelve discreet and lawful matrons."

For a revival of this case see the Harvard Law Review for April, 1889. 4. See CONSTITUTIONAL LAW, vol. 3, P. 731, et seq.

5. Under this head will be treated requirements of general qualification, which, as prescribed by statute, must be observed in making up the list of jurors by the officer appointed. (For their violation in some cases penalties are inflicted. See Bright Purd. Dig. (Pa.) tit. Juries, pl. 62.)

The competency of individual jurors in particular cases will be considered

below under CHALLENGEs for Cause.

In Kentucky, the court may still direct a return of this jury. G. L. Ky. 1879. p. 571, § 6.

A man of color, indicted for a felony, is not entitled to demand to be tried by 12 C. of L.-21


6. For the meaning of legalis homo, see Co. Litt. 155 b.

7. 3 Bl. Com. 352.

8. Co. Litt., §§ 155 b; 156 b; Ch. Bl. Com. 3, 362.

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