A challenge to the polls for cause is either principal or for favour: it is allowed to both the prosecutor and the defendant: Archbold, 152.

It is said in Archbold, 156: "The defendant in treason or felony may, for cause shown, object to all or any of the jurors called, after exhausting his peremptory 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 Court of Queen's Bench, in Ontario, in R. v. 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 Chit. 545.

If a juror be challenged for cause and found to be indifferent he may afterwards be challenged peremptorily, if the number of the peremptory challenges is not exhausted: 1 Chit. 545; R. v. 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, or a want of the property qualifications required by law. 2. Propter affec tum, on the ground of some presumed 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 drunk 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 infamous offence; see s. 668, ante.

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 dependent 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 Chit. 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.

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.

Bishop says, 1 Cr. Proc. 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 oath taken by the triers is as follows: "You shall well and truly try whether A. B., one of the jurors, stands indifferent 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 Chit. 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 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. Such has been the rule heretofore, though, as noted above, it is not enacted in s. 668.

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 Blacks. 363; (now the two last, s. 668). 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 Chit. 549; Bacon's Abr. Verb. Juries, E. 12; 2 Hale, 274; s. 675.

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. But in practice 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 by one side and found to be indifferent may still be challenged by the other: 1 Chit. 545.

See R. v. Mellor, Dears. & B. 468; Morin v. R., 16 Q. L. R. 366, 18 S. C. R. 407; Brisebois v. The Queen, 15 S. C. R. 421; Bowsse v. Cannington, cited in Doe v. Oliver, 2 Şm. Lead. Cas. 780; Mansell v. R., Dears. & B. 375; R. v. Geach, 9 C. & P. 499; 1 Chit. 547; 4 Blacks. 353. In Morin v. R. ubi supra, the result in the Supreme Court was that the court had no jurisdiction to determine the question raised. All that was said upon the merits of that question is obiter.

On a trial for forgery the panel of petit jurors contained the names of Robert Grant and Robert Crane. Robert Grant, as was supposed, was called and went into the box. After conviction, and before the jury left the box, it was discovered that Robert Crane had by mistake answered to the name of Robert Grant, and that Robert Crane was really the person who had served on the jury: held, a mis-trial R. v. Feore, 3 Q. L. R. 219.

The prisoner should challenge before the juror takes the book in his hand, but the judge, in his discretion, may allow the challenge afterwards before the oath is fully administered R. v. Kerr, 3 L. N. 299.

CRIM. LAW-50

CHALLENGE BY THE CROWN IN LIBEL CASES.

669. Special provision as to the right of the Crown to cause any juror to stand aside in a libel case. See ante, under s. 302, p. 305.

On a public prosecution for libel by order of the Attorney-General this section does not apply: R. v. Maguire, 13 Q. L. R. 99. But in all trials for libels upon private individuals this section applies, even when the prosecution is conducted by a counsel appointed by and representing the Attorney-General: R. v. Patteson, 36 U. C. Q. B.129.

But it is restricted to cases of libel: R. v. Brice, 15 Q. L. R. 147.

CHALLENGES IN CASE OF MIXED JURORS.

670. Whenever a person accused of an offence for which he would be entitled to twenty or twelve peremptory challenges as hereinbefore provided elects to be tried by a jury composed one-half of persons skilled in the language of the defence under sections six hundred and sixty-four or six hundred and sixty-five, the number of peremptory challenges to which he is entitled shall be divided, so that he shall only have the right to challenge one half of such number from among the English speaking jurors, and one half from among the French speaking jurors. R. S. C. c. 174, ss. 166 & 167.

This applies to Quebec and Manitoba: ss. 664, 665, ante. When the accused has only four peremptory challenges this s. 670 does not apply. The crown exercises its challenges without regard to the language of the jurors.

JOINT TRIALS.

671. If several accused persons are jointly indicted and it is proposed to try them together, they or any of them may either join in their challenges, in which case the persons who so join shall have only as many challenges as a single person would be entitled to, or each may make his challenges in the same manner as if he were intended to be tried alone.

That has always been the law; see remarks, ante, under s. 668.

ORDERING TALES.

672. Whenever after the proceedings hereinbefore provided the panel has been exhausted, and a complete jury cannot be had by reason thereof, then, upon request made on behalf of the Crown, the court may order the sheriff or other proper officer forthwith to summon such number of persons whether qualified jurors or not as the court deems necessary and directs in order to make a full jury; and such jurors may, if necessary, be summoned by word of mouth.