358 HAR VARD LA W RE VIE W. dence to the jurors [i.e., those jurors who were trying the chal- lenges] ; and so it may be where the challenge sounds not in their reproach or dishonor. But where the challenge was for taking money of the party, it was determined by the triors, without having evidence, by their oath." In 1401 (Y. B. 3 H. IV. 4, 18), a juror was challenged as not having enough freehold, and at the request of the triors he was sworn to tell the value of his freehold, and he said five shillings ; " and then the triors were charged on the question whether he told the truth, and they said that he was sufficient." While this sort of thing was going on it seems proba- ble that a similar examination of witnesses may have been allowed, sometimes, at the trial of the case. We have already noticed in the case of 1353 (ante, p. 318) that a witness was sworn to inform the jury of accusation. The same thing is seen again in 1406, 1 where, in conspiracy, against the bailiff of Savoy and an accusing jury, the former sets up that he was instructed by the Marshal's Court to attend the jurors and tell them what he knew, and was compelled to swear and inform them. Such a proceeding as this, however, might well be allowed, in an ex parte inquisition, by special order of a court, without its being recognized as the right of a party in a civil suit. But in 1433 (Y. B. 11 H. VI. 41, 36), we find something more distinct and instructive, something which indicates that it was by this time a well-known thing to testify publicly to the jury, and which shows, also, the grave perils that attended this act, and helps us to understand the slow development of the practice and the slight indications of it that we find thus far. A writ of maintenance was brought in the King's Bench against one B, charging that in an assise of rent between the plaintiff and C the defendant had " maintained " C. B answered that long before C had anything in the said rent he himself owned it, and he had granted it to C. When the said assise was brought against C the latter came to B, the present defendant, and asked him to come to the assises with him and bring his evidences relating to the rent ; and accordingly B came with these and delivered to C cer- tain ancient evidences to plead in bar against the plaintiff in dis- charge of his warranty of the rent ; this was all the maintenance. In discussing whether this really constituted maintenance, and if so whether it was justifiable, it was insisted that the defendant should 1 Y. B. 9 H. IV. 9, 24; s. c. 8 ib. 6, 9.
