case the king against Burridge Wednesday June if party in a cause enter into a  rule of court that the master shall name fortyeight special juror and that  each party shall strike out twelve and the sheriff return the remain  twentyfour to try the issue and the defendant strike out hundredors and  challenge the array for want of hundredors it be a contempt of court  punishable by attachment although the judge at the trial allow the challenge S  c ld ray S c stram a rule of court be make by consent that the sheriff of the  county of Devon shall bring the freeholder book before the master of the  office and that he shall return fortyeight man and that each of the party  shall be at liberty to strike out twelve and that the master shall appoint the  twentyfour remain to be return by the sheriff to try the issue join between  the party this rule be make by consent afterward when the party attend the  master the defendant strike out some hundredors and at the trial he challenge  the array for want of hundredors and the judge of assize allow the challenge  and direct that the plaintiff in the action may take what remedy he can by law  it be now move for a attachment against the defendant for that this challenge  to the array be a breach of the rule of court and a contempt thereof it be  argue for he that his enter into this rule do not take from he the liberty of  challenge the jury if it do it must be by implication which can never be a  good foundation for a attachment for the cause to issue out a attachment shall  be as certain as the cause to warrant a judgement and there be never yet a  attachment grant in such a case there be rule where there be a express  injunction not to challenge as in Dunsters case in the ten year of queen  Elizabeth in which rule it be order quod no one sit trickery de a bag of hide  part panello and there be other rule where it be insist on but deny as in the  case of the king v kiffin easter term car keb a where a rule be make as in  this case for strike a special jury and Jones attorneygeneral move that it may  be insert in the rule that neither of the party shall be at liberty to  challenge the array but it be deny per totan curian for it can not be grant  but by consent and it be not at that time pretend that modern report this be  imply in the rule for if it have he need not have move the court that it may  be express in the case of the king v sherard in the first modern report er p  year of George the first these word be add to the like rule by consent of both  party quod no one advantagium to take in hand pro diminution hundredor roll  Rep c but admit this be imply by the rule yet the defendant can be say to be  guilty of a contempt for challenge the array for it be no more than a  inadvertency or a mistake of the sense and meaning of the rule now the  different way of draw up these rule show that there must be a express consent  of the party not to challenge otherwise no attachment will lie for challenge  neither will such consent take away any legal objection the party have to  challenge and if such a rule as in the principal case will serve what reason  can be give why a express consent shall be put in so many rule for strike  special jury beside this matter have receive judgement already for the rule be  produce at the assize and plead in bar to this challenge and the defendant  demurrer to it and the plaintiff join in demurrer and when the judge come to  town he give judgement for the defendant at which the chief justice seem to be  surprise that a judge shall give judgement after he come to town but the  counsel for the defendant say he may when it be by the consent of the party as  where a verdict be find and the judge take time to consider what judgement to  pronounce or what fine to set and for these reason it be insist that no  attachment shall go it be insist for the attachment that this challenge be a  contempt to the court and a breach of their rule for that be that the master  shall appoint twentyfour to be return by the sheriff to try the issue now this  challenge to the array destroy this rule for it be a supersedeas of the whole  return like a rule of court or bind to stand to a award yet if the party  retract the submission it be a breach of such rule and a forfeiture of the  bind both which be imply in the submission for who adinit medium to tear down  that which divides the defendant may have take a challenge to the poll but he  know that will be supply by talesmen therefore to make all sure and to prevent  the trial he take a challenge to the array for want of hundredors and this  with a air modern report of insolence after he have be summon to appear before  the chief justice of this court and have his opinion that be the defendant can  not strike out all the hundredors for which reason it be insist that the  attachment may issue the court be of opinion that the defendant be guilty of a  premeditate contempt because his challenge draw up in form and arraign at the  assize show his design be to put off the trial as to the rule make in this  case it may be without the consent of the party as well where the trial be by  nisi prius as at bar and that likewise in criminal case as well as civil and  without any infringement of the liberty of the subject but rather for the sake  of justice and to preserve their liberty and if such challenge be good these  rule will be avoid and make useless which be a contempt of this court and the  case cite of the king v kiffin to show that the party may challenge if it be  not express prohibit in the rule be they do not say that that case be wrong  resolve but that it do not prove what it be cite for they agree that if it be  not express it be imply Pratt chief justice say that but two precedent have be  quote which have such clause be say that upon search they find the rule of b r  to have be so note to former edition a wrong for though it be not express yet  if it be necessary imply the power of challenge be take away for otherwise  these rule will be to little purpose now this rule be that the issue shall be  try per residuum a swearer but challenge the array be as much as to say it  shall not be try by that jury and that the sheriff ought not to return they  when he be bind by the rule to return those and no other now as the court have  a power to enforce obedience to their own rule it be but reasonable they shall  punish those who break they so the rule be make absolute for a attachment  afterward the defendant Burridge give bail on the attachment and Mr crew who  be his attorney and undersheriff be one of the bail modern report er p the  prosecutor then move that the highsheriff may return the jury to try this  cause because the undersheriff who have to turn in a lathe narrow places be  attorney in the cause and bail on the attachment and a motion be make for a  special jury and a question be put whether that can be grant without the  consent of the party the master of the office be order to search for precedent  and he report that above thirty year ago there be several precedent for  special jury upon trial for nisi prius without the consent of modern report  the party but that in the last thirty year there be several motion make for  that purpose but always deny the chief justice answer that if the court can  once grant motion for special jury without the consent of the party to try  cause at the assize as it appear by the precedent they may it be discretionary  in the court whether to grant such motion or not for though it be often deny  it can be infer from thence but that the court may still do it where it seem  reasonable for they so to do but the other three judge be of another opinion  because the sheriff be the proper officer to return jury and if there be no  legal exception against he the court can slip he and order another to strike a  special jury without the consent of the party to try a issue at the assize but  if there be any lawful objection against he and it appear to be so upon  affidavit make then a special jury may be strike by the master of the office  without the consent of the party now all that be show in this case why there  shall be a special jury be that the defendant make affidavit that he fear he  can not have a fair trial without such a jury but now by Geo c either party be  entitle upon motion to have a special jury strike upon the trial of any issue  as well at the assize as at bar and as well in indictment and information for  misdemeanour as in civil action but the party apply for such special jury must  pay the extraordinary expense unless the judge in pursuance of Geo c certify  that such special jury be necessary a then it be offer as a reason why there  shall be a special jury to try this cause at the next assize because such a  jury be think requisite to try it at the last assize but three of the judge be  of opinion that a special jury may be grant to try a cause at bar without the  consent of the party but never at the nisi prius unless very good cause be  show and that the cause now show be not sufficient therefore since the  highsheriff be the proper officer to return jury and there be no imputation  against he as there be not in this case the court will not vary from he  without the consent of the party so he be order to return this jury and in the  same term there be another motion for a special jury in the case of Goodright  v mistress and the like rule be make easter term the ten of George the first  at the old Bailey before sir Jeffere Gilbert Knt chief baron of the court of  exchequer