challenges of thirty-five or twenty." If this means that the prisoner must first exhaust all his peremptory challenges, before being allowed to challenge for cause, it is an error, and was so held by the full Court of Queen's Bench, in Ontario, in Reg. vs. Whelan, 28 U. C. Q. B., 2, confirmed by the Court of Appeal, 28 U. C. Q. B., 108; in which case, it was unanimously held that the prisoner is entitled to challenge for cause before exhausting his peremptory challenges, Richards, C. J., concurring, though he had at first at the trial, on Archbold's passage above cited, ruled that the prisoner, before being allowed to challenge for cause, must first have exhausted his peremptory challenges.

If the prosecutor or the defendant have several causes of challenge against a juror, he must take them all at the same time: Bacon's Abr. Verb. juries, 11; 1 Chitty, 545.

If a juror be challenged for cause and found to be indifferent he may afterwards be challenged peremptomarily, if, the number of his peremptory challenges is not exhausted, 1 Chitty, 545; R. vs. Geach, 9 C. & P. 499.

The most important causes of a principal challenge to the polls are: 1. Propter defectum, on account of some personal objection, as alienage, minority, old age, insanity, present state of drunkenness, deafness, ora want of the property qualifications required by law: See, as to Province of Quebec, sec. 4, par. 1 of 32 Vic. ch. 22, 2. Propter affectum, on the ground of some pre

Q.

sumed or actual partiality in the juror, who is objected to; as if he be of affinity to either party, or in his employment, or is interested in the event, or if he has eaten or drank at the expense of one of the parties, if the juror has expressed his wishes as to the result of the trial, or his opinion of the guilt or innocence of the defendant, also if he was one of the grand jurors who found the indictment upon which the prisoner is then arraigned, or any other indictment against him on the same facts. 3. Propter delictum, on the ground of infamy as where the juror has been convicted of treason, felony, perjury, conspiracy, or any other famous offence. In the Province of Quebec, by sec. 4, par. 4, 32 Vic. ch. 22, persons are disqualified who are arrested or under bail upon a charge of treason or felony, or who have been convicted thereof.

A challenge to the polls for favour is founded on the allegation of facts not sufficient in themselves to warrant the Court in inferring undue influence or prejudice, but sufficient to raise suspicion thereof, and to warrant inquiry whether such influence or prejudice in fact exists. The cases of such a challenge are manifestly numerous, and dependant on a variety of circumstances, for the question to be tried is whether the juryman is altogether indifferent as he stands unsworn. If a juror has been entertained in the party's house, or if they are fellow-servants, are cited as instances of facts upon which a challenge for favour may be taken : 1 Chitty, 544.

In the case of a principal challenge to the polls, the

Court, without triers, examines either the juror challenged, or any witness or evidence then offered, to ascertain the truth of the fact alleged as a ground of challenge, if this fact is not admitted by the adverse party; and if the ground is made out to the satisfaction of the Court, the challenge is at once allowed, and the juror set aside: 5th Cr. Law Comm. Report, 1849, p. 122. In these cases, the necessary conclusion in law of the fact alleged against the juror is that he is not indifferent, and this, as a matter of law, must be decided by the Court.

But in the case of a challenge for favour, the matter of challenge is left to the discretion of triers. In this case, the grounds of such challenge are not such that the law necessarily infers partiality therefrom, as, for instance, relationship; but are reasonable grounds to suspect that the juror will act under some undue influence or prejudice.

The oath taken by the triers is as follows: "You shall well and truly try whether A,B., one of the jurors, stands indifferently to try the prisoner at the bar, and a true verdict give according to the evidence. So help you God."

No challenge of triers is admissible: 1 Chitty, 549.

The oath to be administered to the witnesses brought before the triers is as follows:

"The evidence which you shall give to the court and triers upon this inquest shall be the truth, the whole truth and nothing but the truth. So help you God."

If this challenge is made to the first juror, and, of course, before any one has been sworn, then the Court will direct two indifferent persons, not returned of the jury, to act as triers; if they find against the challenge, the juror will be sworn, and be joined with the triers. in determining the next challenges.

But as soon as two jurors have been found indifferent and have been sworn, then the office of the first two triers ceases, and every subsequent challenge is referred to the decision of the two first jurors sworn: 3 Blackstone, 363. If the first challenge is made after more than two of the jurors are sworn, then the Court may assign any two of the jurors sworn to try the challenges. If the challenge is made when there is yet only one juror sworn, one trier is chosen by each party, and added to the juryman sworn, and the three, together, try the challenges, till a second juror is sworn: 1 Chitty, 549; Bacon's Abr. Verb. juries, E. 12 2 Hale, 274.

The trial then proceeds by witnesses before the triers, in open Court: the juror objected to may also be examined, having first been sworn as follows:

"You shall true answer make to all such questions as the Court shall demand of you. So help you God."

The challenging party first addresses the triers, and calls his witnesses; then the opposite party addresses them, and calls witnesses if he sees fit, in which case. the challenger has a reply; or, perhaps, with us the addresses would be in the order provided by sec. 45

But in prac

of the Procedure Act of 1869, see post. tice there are no addresses in such cases. The Judge sums up to the triers, who then say if the juror challenged stands indifferent or not: this verdict is final : Roscoe, 197, 198. But a juror challenged on one side and found to be indifferent, may still be challenged by the other 1 Chitty, 545.

Bishop truly says, 1 Cr. Proced. 905: "It is plain that the line which separates the challenge for principal cause, and the challenge to the favour must be either very artificial, or very uncertain."

And Wharton, 3 Cr. L. 3125, says: "The distinction, however, between challenges for favour and those for principal cause is so fine, that it is practically disregarded."

The following case was brought before the Court of Criminal Appeal, in England, in 1858:-Reg. vs. Mellor, Dears. & B. 468-On a trial for murder, the panel of petit jurors returned by the Sheriff contained the names of two persons-Joseph Henry Thorne and William Thorniley. The name of Joseph Henry Thorne was called from the panel as one of the jury to try the case of Aaron Mellor; and Joseph Henry Thorne, as was supposed, went into the box and was duly sworn as Joseph Henry Thorne without challenge or objection. It was, however, discovered the next day, and after the prisoner had been convicted, that William Thorniley had, by mistake, answered to the name of Joseph Henry Thorne, when this one was called, and had gone