sixty.101 All incapable persons, as infants, ideots, and persons of non-sane memory, are likewise excluded upon this ground.67 But matter which merely exempts a man from serving on a jury, and does not incapacitate him, can never be a cause of challenge.68 fectum. ship. Thirdly: propter affectum; on account of some bias, or sup- Propter afposed bias or partiality. Thus, that, the juror is of kin to either party within the ninth degree;69 or that there is an affinity, or relationship by marriage, between the juror and one Relationof the parties, if it be a subsisting affinity at the time of the challenge, or there be issue of the marriage alive, otherwise it is only a challenge to the favour.70 It is likewise a princi- Arbitrator. pal cause of challenge, that the juror has been chosen by one of the parties as an arbitrator, in the same cause, and acted as such." So, if he has declared his opinion on the question in Expression controversy,72 if such opinion be not merely hypothetical ;75 nion. but it is not necessary that the expression of the opinion should have been accompanied with any favour or ill will.74 Under Interest. this rule, interest is a disqualification; and the slightest inte .73 of an opi 101 Co. Litt. 156. b. Boote's Suit at Law. 157. The ninth section of the statute regulating trials of issues, &c. 1 R. L. 327. after prescribing the qualifications of age and of property, expressly provided that the want of these qualifications should be a good cause of challenge. The present act, R. St. P. 3. Ch. 7. T. 4. s. 32. contains no similar provision, but merely provides that in the cases enumerated the court shall discharge the person from serving on In some of the cases the jury. 67 Gilb. C. P. 95. 2 Tidd. Pract. 904. R. St. P. 3. Ch. 7. T. 4. s. 13. Vol. 2. p. 411. 6 Hawk. C. 43. s. 26. 1 Cowen. 69 Finch. L. 401. 3 Black. Com. 71 Co. Litt. 157. b. 72 1 Johns. Rep. 316. 1 Cowen. Rep. 435. 6 Cowen. Rep. 555. 7 Cowen. Rep. 108. 738 Johns. Rep. 445. 1 C. H. Recorder. 24. 6 C. H. Recorder, 71. 74 6 Cowen, Rep. 555. 7 Cowen. Rep. 108. Penal actions. Action pending, and other cases. Propter delictum. rest will, in general, be a sufficient ground to set aside the ju ror.75 To remedy the strictness of this rule in a particular instance,76 it is provided by statute, that "in penal actions for the recovery of any sum, it shall not be a good cause of challenge to the jurors summoned, or to any officer summoning them, that such juror or officer, is liable to pay taxes in any town or county which may be benefited by such recovery."" That there is an action implying malice or displeasure depending between the juror and the party; that he has taken money for his verdict; that he has eaten or drunk, since he has been returned, at the expense of one of the parties; that he has formerly been a juror in the same cause; and that he is the master, counsellor, servant, tenant, steward or attorney, of either party, or of the same society or corporation with him, are all principal causes of challenge.78 But that the juror is a fellow-servant of either party;79 that he has lately entertained one of the parties at his house,80 or that there is an action between them, not implying malice or displeasure, are only matters of challenge to the favour. 81 The fourth ground of principal challenge, is propter delictum; where, for some act of the juror, he has ceased to be, in Thus, he is dis consideration of law, probus et legalis homo. 82 A challenge of a juror for principal cause becomes part the record, and may be reviewed on error.8 of Challenges to the favour.] Challenges to the favour, are, where the party objects only, on account of some probable 75 Co. Litt. 6. b. 76 See 2 Johns. Rep. 194. 77 R. St. P. 3. Ch. 7. T. 4. s. 58. Vol. 2. p. 420. 78 Co. Litt. 157. Gilb. C. P. 95. 3 Black. Com. 363. Boote. 158. 1 Cowen. Rep. 438. n. 1. 79 Co. Litt. 157. 80 3 Salk. 81. 81 Co. Litt. 157. 82 Co Litt. 158. 33 6 Cowen. Rep. 555. 7 Cowen. Rep. 108. nite. cause of suspicion. The causes of challenges to the favour Causes infiare infinite; the rule of law being, in the language of Lord Coke, "that the juror must stand indifferent as he stands Challenges to the polls for favour, are always determined Triers. by triers. If two jurors have been already called and take the box without challenge, the challenge is tried by them; otherwise the court appoints two indifferent persons to try it. If one person has been tried and found indifferent, then he and the two triers try the next.85 One witness is sufficient in support of a challenge.86 And a juror may, himself, be ex- Voire dire. amined on his voire dire, with regard to such causes of challenge as are not to his dishonour or discredit; but not with regard to any crime, or any thing which tends to his disgrace or disadvantage.87 A juror may be asked on his voire dire, whether be has formed or expressed an opinion. 88 89 If a juror, on his examination before the triers, declare that if the testimony were equal, he should certainly find a verdict. for the plaintiff, the court in the exercise of a sound discretion, ought to reject him, although the bias should not be so strong as to render it positively improper to allow him to be sworn. In an action brought against a banking company, the juror on being challenged, was asked on his voire dire, whether he was a drawer or endorser of a note in the bank, and answered, that he was not a drawer or interested in the bank, but that he was the endorser of a note therein; and the court not being called on for that purpose, and expressing no opinion as to the sufficiency of the evidence, the triers found that the juror was not indifferent, it was held that this was no ground of error.9 90 84 Co. Litt. 157. b. 95 Co. Litt. 158. a. 86 Phillips on Evid. 107. 87 Co. Litt. 188. b. 16 Johns. Rep. 180. 19 Johns. Rep. 115. 7 88 7 Cowen. Rep. 125. 89 7 Cranch. 291. 90 19 Johns. Rep. 115. Exception must be at trial. After a challenge to the array has been disallowed, a challenge may be made to the polls. If a juror has been challenged by one party and found indifferent, the other party may then challenge him." 92 An exception not taken at the time, can not afterwards be made; but if the judge improperly overrule a challenge, the party is not concluded by proceeding in the trial from availing himself of the objection to set aside the verdict.93 So where a person, not summoned, was sworn on a jury in the name of a person summoned, and the irregularity was noticed before verdict, the court granted a new trial. But it is not imperative on the plaintiff to proceed to trial; and if a proper challenge be overruled, he will not be nonsuited for refusing to do so.95 94 91 Co. Litt. 156. b. 92 Co. Litt. 158. a. 93 1 Johns. Rep. 316. 946 Taunt. 460. 95 9 Johns. Rep. 260. 1 Cowen. Rep. 432. SECTION III. OF PROCEEDINGS BEFORE THE JURY: SWEARING AND EXAMINING AND NONSUIT. 96 cause; ex witnesses. General routine.] After the jury have been sworn, the counsel of the party who has the affirmative of the issue, (usually the plaintiff,) opens the case, and calls and examines Opening his witnesses, who may be cross-examined by the defendant's amining counsel. After he has gone through his evidence and rested his cause, the defendant's counsel, if he be of opinion that the plaintiff has not produced sufficient evidence to entitle him to go to the jury, may move for a nonsuit; otherwise he calls the witnesses for the defence who may in like manner be crossexamined on the part of the plaintiff. The plaintiff may then produce new evidence. Motion for nonsuit. After the testimony on both sides is closed, the counsel, if Summing up and charging they think it necessary, sum up, commencing on the part of jury. the defendant, and the judge charges the jury. It is ordered by rule of court, that one counsel only on each side shall examine or cross-examine a witness; and that two counsel only on each side shall sum up the evidence to the jury, unless the judge who holds the circuit directs otherwise.97 After the regular examination of witnesses upon a trial is through, and the counsel for either party is engaged in summing up the cause to the jury, it is in the discretion of the judge whether he will hear further evidence; but if the judge err, in refusing to admit the evidence in a case where he 96 2 Tidd. Pract. 908. 66 93 4 Cowen. Rep. 450. 7 Johns. Rep. 306. 2 Johns. Cas. 318. |