THE JURT AND ITS DEVELOPMENT. 305 i.e., what they see and hear. If a witness is returned on the jury, he shall be ousted. A challenge good as against a juryman is not good against a witness. If the witnesses and the jury cannot agree upon one verdict, that of the jury shall be taken, and the defeated party may have the attaint against the jury ; had they followed the information of the witnesses the attaint would not lie, unless they found against the deed." In that case it might, for it was conceived that a negative could not be cer- tainly known to the witnesses. This method proved incon- venient. Among other reasons, the number of the witnesses was often large. So long as the trial could not proceed with- out them, there was great inconvenience endlessly ; and the twelve jurymen made quite enough of that. Accordingly by the statute of York (12 Edw. II. c. 2), in 1318, it was provided that while process should still issue to the witnesses as before, yet the taking of the inquest should not be delayed by their absence. In this shape the matter ran on for a century or two. By 1472 (Y. B. 12 Edw. IV. 4, 9), we find a change. It is said, with the assent of all the judges, that process for the witnesses will not issue unless asked for. As late, certainly, as 1489 (Y. B. 5 H. VII. 8) we find witnesses to deeds still summoned with the jury. I know of no later case. In 1549-50 Brooke, afterwards Chief Justice of the Common Bench, argues as if this practice was still known : 2 " When the witnesses . . . are joined to the inquest," etc.; and I do not observe anything in his Abridgment, published in 1568, ten years after his death, to indicate that it was not a recognized part of the law during all his time. It may, however, well have been long obsolescent. Coke (Inst. 6 b) says of it, early in the seventeenth century, " and such process against witnesses is vanished ; " but when or how he does not say. We may reasonably surmise, if it did not become infrequent as the practice grew, in the fifteenth cen- tury, of calling witnesses to testify to the jury in open court, that, at any rate, it must have soon disappeared when that practice came to be attended with the right, recognized, if not first granted, in the statute of 1562-3 (5 Eliz. c. 9, s. 6), to have legal process against all sorts of witnesses. (e) But in the earlier times there were other combinations of 1 See also Lib. Ass. 243, 23(1366). 3 Remger v. Fogossa, Plow. 1, 12
