No affidavit now re quired. The rule of Trin. Term, 7 Geo. 4, required an affidavit and leave of the Court or a judge in order to obtain a view; but the subsequent rule Hil. Term, 2 Will. 4, r. 63, orders, that "the rule for a view may, in all cases, be drawn up by the officer of the Court on the application of the party, without affiPractical in- davit or motion for that purpose." Make out a præcipe of the structions. rule for a view, also a memorandum of the name and place of abode of your own showers also of your opponent's showers, which may be obtained from the opposite attorney, also of time and place of meeting, on the production of them the master or his clerk of the Court will draw up the rule. If the opposite party will not name a shower, the master will, on an appointment obtained for that purpose, name one exparte. A copy of the rule must then be served on the opposite attorney, and the original left at the Sheriff's office together with a list of the jury if special, and he will summon them, if common he will summon such as he may think fit. Duties and The duties and conduct of the showers will be best explained conduct of by the following case of Goodtitle d. Symons v. Clark (0). showers. "After the merits of the cause had been determined at the assizes by a special jury after a trial of twenty hours, defendant moved to set aside the verdict upon affidavit that plaintiff's shower at a view pursuant to a rule of Court previous to the trial, had misbehaved himself by telling the viewers this place is called Abehalls Yal, and this Conygree Hill, (which were not the places in question,) and saying, these cottages pay Mr. Symons fivepence or sixpence a year rent; defendant insisting that nothing more than the place in question, which was one single cottage, should have been shown to the viewers: upon hearing counsel on both sides the Court discharged the rule, being of opinion that on a view the showers may show marks, boundaries, &c. to enlighten the viewers; and may say to them, these are the places which on the trial we shall adapt our evidence to; the jury could have no light from looking at the cottage only." The question to be tried was, whether it stood within Mr. Symon's when inquiry is to be executed, as had where issues are subsequently to be tried by the viewers; both sections seem necessarily to imply a subsequent trial. (0) Barnes' Notes, 457. manor or not. Had an ancient man been produced to the viewers and he had acquainted them that he had known the place many years, and given account of the boundary, &c. this would have been improper, because it is giving evidence before the trial. Belfield for defendant; Booth and Eyre for plaintiff.” A view is not limited to locality, for Abbott, C. J. held that the mode or process of a manufactory might be shown (p). Not limited to mere locality. view. The Under-sheriff's duties on a view seem no where to be Sheriff's defined by text or any decided case; they seem to be simply duties on those of an ordinary officer of the Court in charge of a jury, to prevent any improper interference of strangers, and to enable him to certify to the justices of assize that a view has been had. TALES. By the 35 Hen. 8. c. 6, s. 5, the tales de circumstantibus in civil suits was given, and extended by the 4 & 5 P. & M. c. 7, to prosecutions tried at Nisi Prius; the 7 & 8 Will. 3, c. 32, s. 3, and 3 Geo. 2, c. 25, pointed out the persons who were to be the tales, and by the 6 Geo. 4, c. 50, s. 37, "talesmen are to be such only as have been impannelled upon the common jury panel to serve at the same court, if a sufficient number of such men can be found;" sect. 37 enacts, Default of jurors, a tales. "Where a full jury shall not appear before any court of assize or nisi Proceedings prius, or before any of the superior civil courts of the three counties pala- in respect of tine, or before any court of great sessions, or where, after appearance of tales de cira full jury, by challenge of any of the parties, the jury is likely to remain cumstanuntaken for default of jurors, every such Court, upon request made for tibus. the King by any one thereto authorized or assigned by the Court, or on request made by the parties, plaintiff or demandant, defendant or tenant, or their respective attornies, in any action or suit, whether popular or private, shall command the Sheriff or other minister, to whom the making of the return shall belong, to name and appoint, as often as need shall require, so many of such other able men 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 men duly qualified as shall be present or can be found to serve on such jury, and shall add and annex their names to the former panel, provided that where a special jury shall have been struck for the trial of any issue, the talesmen shall be such as shall be impannelled upon the common jury panel to serve at the same Court, if a sufficient number of such men can be found; and the King, by any one so authorized or assigned as aforesaid, and all and every the parties aforesaid, shall and may, in each of the cases aforesaid, (p) The King v. Hudson, cited in Lee's Prac. Dict. 1371. Alien tales. Sheriff, &c. to register names of jurors who have served; (see 3 G. 2, c. 25, s. 5.) and give certificates. Fee. Clerk of peace to make out a list of services at sessions on grand or petty juries, and transmit to sheriff. Certificate of service. Fee. to be sum have their respective challenges to the jurors so added and annexed, and the Court shall proceed to the trial of every such issue with those jurors who were before impannelled, together with the talesmen so newly added and annexed, as if all the said jurors had been returned upon the writ or precept awarded to try the issue." If an alien make default his place must be supplied by an alien tales, for there must be a medietas of aliens or none; if none, that is by Englishmen only, the judgment is not erroneous (q). It is not necessary that the tales be selected out of persons accidentally present, but may be out of those whose presence the Sheriff or coroner has previously taken means to obtain (r). "40. And be it further enacted, that the Sheriff or his Under-sheriff, shall from time to time register, alphabetically, in proper columns, to be prepared in the jurors' book for that purpose, the services of such men as shall be summoned and shall attend to serve as jurors on trials, before any Court of assize or nisi prius, oyer and terminer, or gaol delivery, or in the said Courts of the said counties palatine or great sessions, and also the times of their services; and every man so summoned, and having duly attended or served until discharged by the Court shall (upon application by him made to such Sheriff or Under-sheriff, before he shall depart from the place of trial,) receive a certificate testifying such his service, which certificate the Sheriff or Under-sheriff is hereby required to give on payment of one shilling: provided always, that nothing herein contained shall extend to any grand jurors or special jurors. "41. And be it further enacted, that the clerk of the peace, at every session of the peace to be holden for any county, riding, or division in England or Wales, shall make out a list of such men as shall be summoned and shall attend to serve on any grand jury or petty jury at such sessions, together with their respective places of abode and additions, and the date of their services, and shall within twenty days after the close of every such sessions, transmit such list to the Sheriff or Under-sheriff of the county, who is hereby required forthwith to register the names of the men included in such list in the proper columns of the jurors' book for that purpose, together with the date of their services; and every man so summoned, and having duly attended or served until discharged by the Court of Sessions, shall, upon application by him made to such clerk of the peace, before he shall depart from the place where the sessions are holden, receive a certificate, testifying such his service, which certificate the said clerk of the peace is hereby required to give, on payment of one shilling. "42. And be it further enacted, that no man shall be returned as a Jurors not juror to serve at any sessions of nisi prius or of gaol delivery, in the county of Middlesex, who has served as a juror at either of such sessions in the said county, in either of the two terms or vacations next immediagain with- ately preceding, and has the Sheriff's certificate of having so served; and no man shall be returned as a juror to serve on trials before any Court of moned in certain (1) See ante, p. 244, and cases cited. (r) Rex v. Dolby, 2 B. & Cr. 104; 3 D. & R. 311. assize, nisi prius, oyer and terminer, or gaol delivery, or any of the said periods to Courts of the three counties palatine, or of the said great sessions, who assizes. has served as a juror at any of such Courts within one year before, in (See 3 G. 2, Wales, or in the counties of Hereford, Cambridge, Huntingdon, or Rut- c. 25, s. 4; land, or four years before in the county of York, or two years before in 4G. 2, c. 7.) any other county, and has the Sheriff's certificate of having so served; and no man shall be returned to serve upon any grand jury or petty jury, Nor to quarat any sessions of the peace to be holden for any county, riding, or divi- ter sessions. sion in England or Wales, who has served as a juror at any such session within one year before, in Wales, or in the counties of Hereford, Cambridge, Huntingdon, or Rutland, or two years before in any other county, and has the certificate of the clerk of the peace of having so served; and Officer if any Sheriff or other minister shall wilfully transgress in any of the offending. cases aforesaid, the Court may and is hereby required on examination and proof of every such offence, in a summary way, to set such fine upon Penalty. every such offender as the Court shall think meet: provided, that nothing herein contained shall extend to grand jurors at the assizes or great ses- Proviso. sions, or to special jurors. but those named in "43. And be it further enacted, that no Sheriff, Under-sheriff, coro- No money ner, elisor, bailiff, or other officer or person whatsoever, shall, directly or taken to exindirectly, take or receive any money or other reward, or promise of cuse permoney or reward, to excuse any man from serving or from being sum- sons from moned to serve on juries, or under any such colour or pretence; and that serving. no bailiff or other officer appointed by any Sheriff, Under-sheriff, coro- (See 3 G. 2, ner, or elisor, to summon juries, shall summon any man to serve thereon, c. 25, s. 6.) other than those whose names are specified in a warrant or mandate, None to be signed by such Sheriff, Under-sheriff, coroner, or elisor, and directed to summoned such bailiff or other officer; and if any Sheriff, Under-sheriff, coroner, elisor, bailiff, or other officer, shall wilfully transgress in any of the cases aforesaid, or shall summon any juror, not being a special juror, less than warrant. ten days before the day on which he is to attend, or shall summon any special juror less than three days before the day on which he is to attend, offending, except in the cases hereinbefore excepted, the Court of assize, nisi prius, oyer and terminer, gaol delivery, great sessions, or superior Court of the said counties palatine, or Court of sessions of the peace, within whose jurisdiction the offence shall have been committed, may and is hereby required, on examination and proof of such offence, in a summary way, to set such a fine upon every person so offending, as the Court shall think Penalty. meet, according to the nature of the offence." Officer CHAPTER III. EXECUTION OF WRITS. Ir is next proposed to consider the Sheriff's duties in and about the execution of writs in real, mixed, and personal actions. Dower, definition of. How many kinds remain. Principle of old and new law. How husband may deprive SECTION I. DOWER. Dower is the portion which a widow hath for the term of her life of the lands of her husband at his decease, for the sustenance of herself and education of her children, “ propter onus matrimonii, et ad sustentationem uxoris et educationem liberorum cum fuerint procreati si vir præmoriatur" (a). Two kinds only now remain (b): 1. Dower by the common law : 2. and dower by the custom the common law dower in quantity is one third, and thence called " a widow's thirds;" the latter is the creature of custom-sometimes one half, as by the custom of gavel kind; sometimes the whole during her life, and then it is called "freebench;" and as custom may enlarge so it may abridge her dower to one fourth (c). With regard to this portion or provision, the law until the recent statute of Will. 4 was inflexible in the widow's favour (unless forfeited by her own misconduct) and allowed of no veto in the husband, or right in him of his own mere motion to deprive her of, or in anywise restrict her right after it had once attached. Now however his marital power quoad this provision is of a very different character-but although based upon different, we must hope and trust, upon the soundest moral and political principles. He may at this day deprive her wholly of it by deed of conveyance in his life time or by his will, or he may fetter her right (a) 1 Inst. 30. (b) 3 & 4 Will. 4, c. 106. (c) Co. Litt. 33. |