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a special jury, so called, because chosen specially for the trial
of a particular cause, and not for a number of causes, as other
juries, which are therefore denominated common juries: from
the manner in which they are selected, they are also called
struck jurors.
Of the cases in which the court will grant
leave to try a cause by a struck jury, we will speak here-
after;40 at present we shall confine ourselves to the mode of
striking special juries.

party.

The party who has obtained the order for trial by a struck Notice by jury, must give eight days notice of the time when he will attend before the clerk of the county in which the venue in such action is laid, for the purpose of having such jury struck.41 The statute there provides, that "at the time appointed, the clerk of the county shall attend at his office, with the original Duty of lists of the jurors returned to him by the officers of the several towns, who are then liable to serve, and in the presence of the parties or their counsel, shall proceed to strike a jury, as follows:

clerk.

names se

1. "The clerk shall select from such lists the names of forty- Forty-eight eight persons, whom he shall deem most indifferent between lected. the parties, and best qualified to try such cause:

striking jury.

2. "The party on whose application such struck jury was Mode of ordered, or his attorney, shall then first strike out one of the said names, and the opposite party or his agent shall strike out another of such names, and so alternately, until each party shall have stricken out twelve names :

3. "If either party shall fail to attend at the time and place of striking such jurors, or shall neglect to strike out any names according to the foregoing provisions, the clerk shall strike for such party:

made.

4. "The clerk shall thereupon make out a list of the names List to be of the twenty-four persons not stricken out, and certify the same to be the persons drawn to serve as jurors, pursuant to the

4o See post, Vol. 2.

41 R. St. P. 3. Ch. 7. T. 4. s. 47, Vol. 2. p. 418.

different.

order of the court, and shall deliver such list so certified to the sheriff of the county." 9742

Clerk not in- If it appear to the court to which the application for a struck jury is made, that the clerk of the county is interested in the cause, related to either of the parties, or not indifferent between them, the court will appoint two proper persons to strike such jury. The persons so appointed possess the same powers and must conduct the striking in the same manner as the clerk. With respect to the summoning, the mode of forming the jury and the power of the court to discharge or excuse any juror, there is no difference between struck and common juries.4 The expense of striking a jury must be paid by the party applying for the same, and not taxed in the costs of the suit.44

Expense

paid by par

ty.

SECTION IV.

OF THE EVIDENCE, THE WITNESSES, AND THE MODE

OF COMPELLING THEIR APPEARANCE.

Subject.

What evidence is requisite or admissible, under the various issues and pleadings, and who are competent witnesses, are extensive inquiries, which, in a work of this nature, would be entirely misplaced. It is only proposed here, to notice, with great brevity, some general rules and statutory regulations on this subject, in connection with such matters relative to the mode of obtaining proof, as well by order of court, &c., as by compelling the appearance of witnesses by process, as seem properly to fall under the head of Practice.

42 Ib. s. 48.

43

3 Ib. s. 51. 49. 50. p. 418. 419.

44 Ib. s. 52. p. 419.

OF THE EVIDENCE.

General rules.] The evidence, in all cases, is governed by Governed by the pleadings it being necessary to prove every thing that is pleadings. put at issue, and nothing more. On the general issue, the plaintiff must prove the whole of his case; but on a special issue, it is only necessary to prove the particular point referred to the jury for whatever is not expressly denied, is admitted by the pleadings.45 The evidence must be the best of which the nature of the case is susceptible. Secondary evidence Secondary cannot be given, as long as proof of a better kind can be had: thus a copy of an instrument, or parol proof of its contents, cannot be given, if the original be in existence, and capable of being produced by the party who relies on it.46

evidence.

parol.

Evidence is either written or parol; and written evidence written and is either public or private.47 Some public writings are of record, and others not of record. Records are memorials of Records. courts of justice and of the legislature; as judgments, recognizances, &c., and acts of the legislature; and are of such high authority, that nothing is allowed to contradict them.48 Of writings not of record, are deeds, agreements, bonds, bills, notes and the like, whether sealed or unsealed. Parol evidence consists of the testimony of competent witnesses; which is either delivered openly in court, or is taken previous to the trial, upon a commission, or on an order for the examination of the witnesses, de bene esse.

It is a general rule, that if any fact is to be substantiated against a person, it must be proved by the testimony of a person sworn to speak the truth: therefore, hearsay evidence

43 2 Tidd. Pract. 849.

46

Phillips on Evidence 167.

47 Gilb. Evid. 7. Bul. Ni. Pri.

48 Co. Litt. 117. b. 260. a. Gilb. Evid. 7.

Hearsay.

lic; original

protest.

is in general inadmissible; and the same principle is applicable to statements in writing, no less than to words spoken.49 Notary pub- Among other exceptions to this rule, it is provided by statute, that "in case of the death or insanity of any notary public, or of his absence or removal, so that his personal attendance or his testimony cannot be procured, in any mode provided by law, the original protest of such notary, under his official seal, upon such seal and his signature being duly proved, shall be presumptive evidence of the fact of any demand, of acceptance or of payment, therein stated;"'50 and further, that "any note or memorandum, made by a notary public, in his own handwriting or signed by him, at the foot of any protest, or in a regular register of official acts kept by him, shall, in the cases specified in the last section, be presumptive evidence of the fact of any notice of non-acceptance or non-payment, having been sent or delivered, at the time and in the manner stated in such note or memorandum."51 Except in the cases specified in these sections, it is declared, that "neither such protest, nor any note thereof, made by any notary in this state, shall be evidence in any court of this state, of any facts therein contained.''52

Memorandum.

Proof of records, &c.] By the constitution of the United States, "full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state ;" and congress, in an act prescribing the manner in which the public acts, &c. shall be authenticated, have Acts of legis-enacted, "that the acts of the legislatures of the several states, shall be authenticated, by having the seal of their respective Records and states affixed thereto : that the records and judicial proceedings of the courts of any state, shall be proved or admitted, in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal,

latures.

judicial pro

ceedings.

49 Phillips on Evidence 173.

50 R. St. P. 3. Ch. 3. T. 2. s. 46. Vol. 2. p. 283.

51 Ib. s. 47. p. 284.
52 Ib.
s. 45. p. 283.

53 Const. U. S. Art. 4. sect.1.

and credit to

together with a certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, Full faith authenticated as aforesaid, shall have such faith and credit be given. given to them, in every court within the United States, as they have, by law or usage, in the courts of the state from whence the said records are, or shall be, taken.5

54

foreign

With respect to affidavits taken, and other judicial proceed- Affidavit, ings had in foreign countries, the third article of the title countries. "Of Evidence," in the revised statutes, contains the following provisions:

"In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows:

Judge.

1. "It must be certified by some judge of a court having a certificate of seal, to have been subscribed and taken before him, specifying the time and place where taken :

2. "The genuinenesss of the signature of such judge, the of Clerk. existence of the court, and the fact that such judge is a mem

ber thereof, must be certified by the clerk of the court, under the seal thereof.55

"The records and judicial proceedings of any court in a Records, & foreign country, shall be admitted in evidence in the courts of this state, upon being authenticated as follows:

of clerk.

1. "By the attestation of the clerk of such court, with the Attestation seal of such court annexed, or of the officer in whose custody such records are legally kept, with the seal of his office annexed :

chief justice.

2. By a certificate of the chief justice, or presiding ma- Certificate of gistrate of such court, that the person attesting such record is the clerk of the court, or that he is the officer in whose custo

54 Laws U. S. Story's edition,

Vol. 1. p. 93.
VOL. I.

55 R. St. P. 3. Ch. 7. T. 3. s. 25. Vol. 2. p. 396.

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