coke b alfrid DENBAWDS case mich James in b r see Levinger v b lr PC in  trespass the defendant plead not guilty and at the assize a verdict be find  for the plaintiff and thereupon judgement be give for he upon which the  defendant bring a writ of error and assign for error that one of the juror of  the principal panel appear only at the assize upon which at the prayer of the  plaintiff a panel of tale de A standing round be return by the sheriff the  title of which panel be Womina ten such c and under it the sheriff return  eleven juror g Cr Elizabeth h roll Rep Noy bendl Het Bulstr Yelv godb Cr  Elizabeth Leon Owen Leon roll I Inst a   light b b Inst c hut   light b d  winch Cr car palm dyer more hob Leon Bulstr coke report a er p resolve by h  cap if one of the juror only appear the court may award tale de the title be  the misprision of the sheriff and it can be take that the justice grant tale  only of ten and the misprision of the sheriff shall be amend and ten put out  of the title note what five thing be to be consider in grant a tale note in  assize the justice of assize can by virtue of the h c award a tale de  circumslanlibus SC cro James jenk cent alfrid Denbawd alias Burnard bring a  writ of error in the exchequerchamber against Peter Woodley hill James Reg rot  in the king bench and the case be that Peter Woodley bring trespass against  the say alfrid and one Thomas d q u aqeclausy m fiegit at Aishbarton in the  county of Devon the defendant plead not guilty and at the assize in the  country alfrid be find guilty and the plaintiff have judgement against the say  alfrid whereupon the say alfrid bring a writ of error and the error which be  assign be because one of the juror of the principal panel appear only at the  assize upon which at the prayer of the plaintiff a panel of tale de A standing  round be return by the sheriff in this form the title be nomina ten laliztm c  and under it be return juror and it be argue that this judgement be erroneous  for two reason because but one of the principal panel appear only and two at  least ought to appear that inasmuch as he entitle the panel of the tale nomina  ten such he can not return eleven as to the first the award of the say tale  ought to be warrant by the statute of h cap for at the commonlaw the justice  of nisi prius can not grant any tale and it be object that the award of the  tale in the case at bar be not warrant by the say Act for the word of the Act  be and that the justice shall and may proceed to the trial of every such issue  with those person that be before impanel and return and with those new add c  so that these word those person be in the plural number can be satisfy coke a  with one a singular person as upon the stat of b west c cum dom c to hand over  the dawn andilores compoli c if one account before c one auditor in debt for  the arrearage upon such account he shall wage his law as it be hold in h b and  the reason there give be because the stat speak of account before auditor vide  d h c h b h b h a h b h b h a tlide e b e b notam reader there be not any Act  of parliament which by express word take away the wager of law in a action of  debt upon arrearage of account but at the commonlaw the defendant shall have  his law in a action of debt bring upon arrearage of account whether the  account he before one auditor or many as appear in h a but the reason why the  defendant shall not wage his law when the account be make before auditor be  upon the stat of west c for now this stat have make the auditor judge of  record because they have power thereby to commit the defendant to prison which  none can do unless they be judge of e record and with this reason know that  they be judge of record agree f h h b a and for this reason he be oust of the  law by all the justice in such case but if the account he before one auditor  only it be out of the stat for he can commit the defendant to prison and  therefore remain at commonlaw so the lord who be find in surplusage the stat  be make against the accountant only and the lord can be commit to prison and  therefore he also remain at the commonlaw as it be adjudge in h b vide h a h a  h b and it a dyer pl before a Plowd b b Inst c Inst   light a h b a  Fitzherbert lie roll h b d h c f n b h e Inst   a h b coke report b er p  appear by the judgement of the whole parliament in g h c that in a action of  debt upon arrearage of account before h auditor that the defendant shall not  wage his law but there remedy be give by examination to discern if the matter  lie in account and if not then to allow the defendant this law and therefore  the book in a e and e be in report and moreover the counsel with the plaintiff  in the writ of error cite the case of h b where the custom of foreign  attachment be allege against person in the plural number shall not be satisfy  with one and the case of redisseizin where the stat of Merton cap say  assumpsit b lecum jailer placitor cmonce dom king this plural number shall not  be satisfy with one if there be more than one and with that agree ass p e a b  h a so in grant make by corporation the plural number shall not be satisfy  with one as appear in the case of the cook of London in blow Com so in writ if  the writ be that the defendant falsofabricavit c to visit falsafacto he can  declare upon one only h b vide e a h c but it be resolve that in case when but  one d of the principal coke b panel appear the statute give authority to  justice of nisi prius to award tale de A standing round for it be enact by the  say statute for the more speedy trial of issue to be try by twelve man  hereafter to he have that in every writ of habeas cor pora or distringa with a  look prius where a full jury shall not appear before the justice of assize or  nisi prius or else after a appearance of a full jury by challenge of either of  the party the jury be like to remain untaken for default of juror that then  the same justice upon request make by the party plaintiff or demandant shall  have authority by force of this Act to command the sheriff or other minister  or minister to who the make of the say return shall appertain to name and  appoint as often as need shall require so many of such able person of the say  county then present c as shall make up a full jury by which word without  question although one only appear the court may award tale de then come the  clause which have be mention before which do not restrain the generality of  the first word and the case put before which give authority in the nature of a  commission as in the case of auditor of the account e redisseizin c be not to  be resemble to this case upon the say Act of h which be make for more speedy  trial which always and all other statute of like nature shall be take benign  and favourable in furtherance and advancement of expedition in justice and it  be as great mischief and delay of justice when one only as when two or more  appear and therefore if the body of the Act have be in the plural number yet  it shall be construe to extend to the case when one only of the principal  panel appear and therewith agree the opinion of the court of common plea in  mich Elizabeth f die in the same point know that the justice of assize and  nisi prius have power to award tale when one juror only appear for there it be  say so be the intention of the maker of the statute and there brown hold if  two of the principal panel appear and at the prayer of the plaintiff de A  standing round be return and then the two principal be draw forth by challenge  now the trial shall be all by the twelve de A standing round but the Lord dyer  make a qumre of that but at the commonlaw the juror of tale pass in trial  without any juror of the principal panel and this Act have be always expound  favourable and therefore in mich a Elizabeth no hundredor appear and all the  hundredors be return upon the tale a and Elizabeth dyer b they have power to  grant g dyer pl h   light a Inst roll a e b e b die pl b blow a ass pl  Fitzherbert rediss Br rediss rastal rediss c Fitzherbert Forge de faux faits  Br amendm Br count Br faits blow b d Cr James roll Rep jenk cent f n b h dyer  pl a dyer pl a hundred be now not necessary either in civil or criminal case  Geo c b dyer pl coke report a er p a tale de A standing round direct  coronatoribus for favour or affection of the sheriff coke a by the say general  word of the say Act of h mich Elizabeth Julius c Cesar master of the court of  request bring a action in the king bench for slanderous word against Philip  Corsini the defendant plead not guilty and say that he be a alien bear c and  pray trial per center point linguce d and it be grant and at the nisi prius in  London but six englishmen and five alien appear and the plaintiff pray a tale  de A standing round per medietal linguce and it be grant so that there want  one alien and the record be therefore the stranger de circumstantib per vie  London ad requisition infranominati Julii Ccesaris per mandatum justice de to  make new place near pron  interrog  nomen panel prd affilatur second form to  cause to stand in hujusmcasu nupediti provision who indeed jurator such de to  make new application videlicet the most Christian dethick stranger exact  similit go for sale ac in jurat ill simul cum other juraloribprdprius  impanellatis to swear falsely to swear falsely to be and the jury find for the  plaintiff and assess the damage to and it be move in arrest of judgement that  no tale be to be grant de circumstantib when the trial be per medietae linguoe  by the justice of nisi prius by the say Act of h for three reason the tale  ought to ensue the nature of the principal panel and that always be ad  requisition to ward off and in this case the plaintiff pray the tale that the  word of the say Act be in the plural number the jury be like to remain untaken  for default of juror and here it be but for the default of one juror the Act  give no authority in this case to the justice to grant a tale for in the  former part of the Act it speak of e that freehold of the juror and of issue  to be return upon the juror and a alien have no freehold neither shall issue  be return upon he also the statute say if there be any default of juror other  of the same county shall be return c and a f alien be not proper say of any  county haec non a standing before because the statute be make for the speedy  execution of justice it shall be expound favourable to effect the intent and  purpose of the maker of the Act and judgement be give for the plaintiff as to  the second objection which have be make it be resolve that the title be the  misprision of the sheriff and it can be take that the justice grant tale only  of g ten but of as many as in all will make a jury and that appear because  eleven be return and eleven swear with he of the principal panel and therefore  it be resolve that this misprision of the sheriff shall be amend and ten put  out of the title and then the title will be good and formal nomina such c or  it may be nomina a swearer de to make new place near secundum form to cause to  stand coke b note reader at the commonlaw in the grant of a tale five thing be  to be consider the time of the grant c of it the number of the tale the order  of they the manner of trial see either by they with other or by they only the  quality of they be to be consider b c Cr Elizabeth d dyer pl c dalt pl Inst  jenk cent Cr Elizabeth Stamf cor a b e Poph die pl Cr Elizabeth f   light b  pophl   b calvin case g Cr James b by stat Geo cap when a full jury shall not  appear before any court of assize or nisi prius or before any of the superior  civil court of the three county palatine or before any court of great session  or where after appearance of a full jury by challenge of any of the party the  jury be likely to remain untaken for default of juror every such court upon  request make for the king by any one thereto authorize or assign by the court  or on request make by the party plaintiff or demandant defendant or tenant or  their respective atorneys in any action or suit whether popular or private  shall command the sheriff or other minister to who the make of the return  shall belong to name and appoint as often as need shall require so many of  such other able man of the county then present as shall make up a full jury  and the sheriff or other minister aforesaid shall at such command of the court  return such man duly qualify as shall be present or can be find to serve on  such jury and shall add and annex their name to the former pannel coke report  a er p as to the first four thing be to be consider that the time of the grant  of they be upon a default of so many of those of the principal panel that  there can be a full jury that at the time of the grant of they the principal  array stand for tale be word similitudinary and have reference to the  resemblance which at that time ought to be in be and therefore if the array be  quash or all the poll challenge and try out no tale shall be award for at that  time non are qMales but in such a case a new venfac shall be award but if at  the time of the grant of the tale the principal panel stand and afterward be b  quash as be aforesaid yet the tale shall stand for it be sufficient if there  be wicker basket at the time of the grant they and that appear in h inquest it  be to be observe that he who be mere defendant can pray a tale till the c  plaintiff have make default in some case a tale shall be grant after a full  jury appear and be swear as if a jury be charge and afterward before the  verdict give in court one of they die a tale shall be award and no new when  fac and therewith agree d h a so if any of the juror impanel die before they  appear and that appear by the return of the sheriff the panel shall not abate  but if need be a tale shall be award vide e e b and the time of the challenge  and trial of the tale be after the principal panel be try and if the principal  panel be affirm the f same triers shall try the tale but if it be quash then  the two triers of the principal panel shall not try they g e b h b h vide h a  b as to the second know the number two thing be to be observe in all case the  tale ought to be a under the number of the principal in the venire fac unless  it be in case of a appeal as in b attaint under and in other action where the  venire fac be of under and the reason why more may be grant in a appeal on the  part of the plaintiff be because the plaintiff may challenge peremptory and if  default be in the plaintiff then the defendant may pray a tale and the reason  be in favorerA vilm and that he may dispatch and free himself of trouble and  the question of his life for fear that his witness shall die c and therewith  agree h a h a e b e b and therefore coke a the book in e seem to be misprint  vide e b e the second that the number ought always to be certain as or or or c  vide Octo tale Br but now upon the say Act of h a tale de A standing round may  be grant as well of a c uncertain as of a certain number and that by force of  the word of the say Act Sc so many c as shall make up a fall jury provide that  where a special jury shall have be strike for the trial of any issue the  talesman shall be such as shall be impanel upon the common jury pannel to  serve at the same court if a sufficient number of such man can be find and the  king by any one so authorize or assign as aforesaid and all and every the  party aforesaid shall and may in each of the case aforesaid have their  respective challenge to the juror so add and annex and the court shall proceed  to the trial of every such issue with those juror who be before impanel  together with the talesman so new add and annex as if all the say juror have  be return upon the writ or precept award to try the issue after a juror have  be challenge in the principal pannel he ought not to be swear as a talesman  Parker v Thornton l raym SC strange a tale be can be pray if all the special  juryman be absent where a common jury pannel be return together with a special  jury pannel and no special juryman appear the cause be try by a common jury  the trial be set aside holt v Medowcroft m S a roll Rep   light a b die pl c  Cr car d Stamf cor b e Stamf cor b   light a   light a a Stamf con a b roll c  Cr James coke report b er p as to the three know the order it be to be know  that always in every new tale the number shall be diminish as if the first be  the second shall be and so always less and therewith agree h b title tale Br  vide ass p but if a tale be award and it be afterward quash by challenge he  may have a new one of the same number as before and therewith agree h a as to  the four know to the manner of trial know by they with other it be common  every day and by they only when after the grant of tale and odo tale the  principal panel be quash there the trial may be only of the tale or if the  tale do not amount to a jury a tale to supply the former tale may be grant and  therewith agree d h title inquest as to the five know to the quality of the  tale they ought to be of the e same quality as the principal be and therefore  if the per medielatem linguce of English and alien the tale ought to be so so  if the principal be out of a liberty and all those thing which be require by  the law in the principal be require in the tale vide e h a ass p and afterward  by the advice of all the justice of the common plea and baron of tile  exchequer the judgement be affirm and so the principal case at bar have be  adjudge by all the justice of England and all the baron of the exchequer notam  reader in assize if so many of the recognitors make default that there be not  the justice of f assize can award a tale de A standing round for although  justice of assize be name in the say Act of h as well as justice of nisi prius  yet forasmuch as the say Act do not give power to justice of assize or nisi  prius but where the trial shall be by twelve man in every writ of habeas  co?to?a or distringa with nisi prius and that can be in assize for assisce can  in r I p v tu it to appropriate come and never can be take by nisi prius in to  appropriate come and no exposition can be make against express coke b word for  that will be g viperina exhibition queen to gnaw stomach textA and of such  opinion be Catlin chief justice in his time and Gerard attorneygeneral and  after they Wray and Anderson chief justice justice of assize in Norfolk  circuit