8. Challenges. a new trial, there being no suggestion that the omission by the sher was the effect of collusion or an improper practice, or to have been pre judicial to the defendant, the Court, who considered it as a matte entirely in their discretion, refused the rule. (R. v. Hunt, 4 B. & A 430).

What defects in summoning &c.

jurors shall not be sufficient to stay or

reverse judgment after the verdict.

The 7 Geo. IV. c. 64, s. 21, enacts, "That no judgment after veri upon any indictment or information for any felony or misdemean shall be stayed or reversed for want of a similiter, nor by reason the jury process has been awarded to a wrong officer upon an insuff suggestion, nor for any misnomer or misdescription of the office: turning such process, or of any of the jurors, nor because any pe has served upon the jury who has not been returned as a juror ly sheriff or other officer; and that, where the offence charged has created by any statute, or subjected to a greater degree of punishes or excluded from the benefit of clergy by any statute, the indictm information shall, after verdict, be held sufficient to warrant the p nishment prescribed by the statute, if it describe the offence in t words of the statute,"

Challenge of jurors.

Two kinds of challenge.

To the array.

Principal chal

VIII. Challenge of Jurors.

When the jurors are called, either party is at liberty to ch them; either the whole panel, or any individual of the panel. And herein,

1. Of the several Kinds of Challenge, 962.

2. How Challenge is to be taken, 967.

3. How the Challenge shall be tried, 969.

1. SEVERAL KINDS OF CHALLENge.

There are two kinds of challenge; either to the array, by h meant the whole jury as it stands arrayed in the panel, or lit pane of parchment on which the jurors' names are written; polls, by which are meant the several particular persons or let array. (1 Inst. 156, 158).

To the Array.]—Challenge to the array is in respect of the patie or default of the sheriff, coroner, or other officer that made the And this is two-fold

1. Principal challenge to the array; which, if it be made 4 lenge to the array. sufficient cause of exemption, without leaving any thing to the of the triers.

Causes of challenge of this sort are such as these: if the sher other officer, be of kindred or affinity to the plaintiff or defend affinity continue. (See post, p. 965). If any one or more of the returned at the nomination of the party, plaintiff or defenda whole array shall be quashed. If the plaintiff or defendant ha action of battery against the sheriff, or the sheriff against either this is a good cause of challenge. So, if the plaintiff or defenda an action of debt against the sheriff; but otherwise it is, if the s have an action of debt against either party; or, if the sheriff hav cel of the land depending upon the same title; or, if the sherif, bailiff which returned the jury, be under the distress of either or, if the sheriff or his bailiff be either of counsel, attorney, offe servant of either party, gossip, or arbitrator in the same mater treated thereof. (1 Inst. 156).

By 6 Geo. IV. c. 50, s. 28, "No challenge shall be taken to any panel 8. Challenges. of jurors for want of a knight's being returned in such panel, nor any array quashed by reason of any such challenge; any law, custom, or usage to the contrary notwithstanding."

By the same act, (sect. 13), the want of hundredors shall be no cause of challenge. (See the section, ante, 955; and the former law on this subject. (Co. Litt. 125, &c.)).

There can be no challenge to the array on the ground of unindifferency in the Master of the Crown Office, he being the officer of the Court expressly appointed to nominate the jury. The only remedy in such a case is to apply to the Court by motion to appoint some other officer to nominate the jury. (R. v. Edmonds, 4 B. & Ald. 471);

The Master of the Crown Office, in nominating the jury, selected the names of the jurors, and did not take them by chance from the free-. holders' book. He also took those only whose names had the addition of "Esquire," or of some higher degree; and included some persons who were in the commission of the peace: the Court of King's Bench held, hat, in so doing, he was perfectly right. He also included in his nonination some persons who, as grand jurymen, had found the indictnent, and persisted in his opinion as to their sufficiency, unless the Crown would consent to abandon them; which was done, and others were then substituted in their places. The Court of King's Bench held that he was wrong in his opinion, but that there was no ground for presuming partiality. (Ib.)

The sheriff's officer had neglected to summon one of the twenty-four pecial jurymen returned on the panel. The Court of King's Bench eld, that this was no ground of challenge to the array for unindifferency n the part of the sheriff. (Ib.)

A grand juror, who found the bill, ought not, it seems, to be on the ary. (Ib.; Cook's case, 13 How. St. Tr. 339; R. v. Sullivan, ante, .945).

There can be no challenge to the array, when the process has been irected to elisors. (Co. Litt. 158. a.)

As to challenges on the trials of aliens, on account of jury not being artly constituted of aliens, see ante, 947.

The subject may challenge the array against the Queen; as, in tra-
erse of an office, he that traverseth may challenge the array; and so it
in case of life. (1 Inst. 156).

And where a subject may challenge the array for unindifferency,
here the Queen, being a party, may also challenge for the same cause.
1 Inst. 156).
A challenge to the array must be formally tendered
efore the jury are sworn. (Brunskill v. Giles, 2 M. & Scott, 41; 9 Bing.
3, S. C.)

The person challenging the array must be prepared strictly to prove he cause; R. v. Savage, R. & M. C. C. 51); and he cannot, if he omit hallenging, take any advantage afterwards. (R. v. Sheppard, 1 Leach, 01; R. v. Sutton, 8 B. & C. 417; S. C. nom. R. v. Despard, 2 M. & R. (06).

The array challenged on both sides shall be quashed. (1 Inst. 156).

2. Challenge to the array for favour.-He that taketh this must shew in certain the name of him that made it, and in whose time, and all in certainty. This kind of challenge, being no principal challenge, must be left to the discretion and conscience of the triers. As, if the plaintiff or defendant be tenant to the sheriff, this is no principal challenge, but he may challenge for favour, and leave it to trial. So affinity between the son of the sheriff and the daughter of the party, and the like, is no principal challenge, but to the favour; but if the sheriff marry the daughter of either party, or the like, this (as hath been said) is a principal challenge. (1 Inst. 156).

But where the Queen is party, one shall not challenge the array for

Challenge to the array for favour.

8. Challenges. favour; because, in respect of his allegiance, he ought to favour the Queen more. But if the sheriff be a menial servant of the Queen, there the challenge is good. (1 Inst. 156). By which it seems to be meant, that such challenge is not good without shewing some actual partiality in the sheriff. (2 Hawk. c. 43, s. 32).

To the polls. Peremptory challenge.

Not allowed to the
Queen.

But the Queen may challenge the array for favour. (1 Inst. 156).

To the Polls.]-Challenge to the polls is threefold:

1. Peremptory.-This is so called, because a person may challeng peremptorily, upon his own dislike, without shewing any cause.

This peremptory challenge shall not be allowed to the Queen. The Geo. IV. c. 50, s. 29, which is a re-enactment of the previous law on the subject, (R. v. Frost, 9 C. & P. 136), provides, "That in all inquest to be taken before any of the Courts herein before mentioned, wherein the King is a party, howsoever it be, notwithstanding it be alleged by the that sue for the King, that the jurors of those inquests, or some of the be not indifferent for the King, yet such inquests shall not remain taken for that cause; but if they that sue for the King will challen any of those jurors, they shall assign of their challenge a cause certai and the truth of the same challenge shall be inquired of according to th custom of the Court; and it shall be proceeded to the taking of the inquisitions, as it shall be found, if the challenges be true or not, Number allowed. the discretion of the Court; and that no person arraigned for murder felony shall be admitted to any peremptory challenge above the number of twenty."

When allowed

And this peremptory challenge is not allowable to the party against the Queen. the Queen, but only in cases of treason or felony, in favour of life. ! Inst. 156).

Not allowed in col

lateral issues,

Nor is a peremptory challenge allowed in the trial of collateral iss (Fost. 42; 3 MS. Sum. 158); nor in any trial for a misdemea or misdemeanours. Reading's case, 7 Howell's St. Tr. 265; Titus Oates's case, 10 Ho St. Tr. 1079. See also Christian's Note to 4 Bl. Com. 353).

Every challenge beyond the legal number shall be void.

Principal challenge.

In any treason the prisoner has his common-law right of perempta challenging thirty-five. (See 1 & 2 P. & M. c. 10).

If several prisoners are jointly indicted, and join in their challe they can only challenge the limited number in the whole; but y are tried separately, then each of them may challenge the whak ber. (R. v. Charwick, 3 Salk. 81).

A prisoner, in a case of felony, having challenged twenty jure remptorily, cannot withdraw one of those challenges to challenges juror, instead of one that he had previously challenged. (R. v. Pers. 7 C. & P. 836).

If the party challenge above the proper number, he shall not judgment of death, but his challenge shall be over-ruled, and be sibe put upon his trial. (Hale's Sum. 259; 2 Hale, 270).

And by the 7 & 8 Geo. IV. c. 28, s. 3, it is enacted, "That if say son, indicted for any treason, felony, or piracy, shall challenge pe torily a greater number of the men returned to be of the jury than person is entitled by law so to challenge in any of the said cases, e peremptory challenge beyond the number allowed by law in any said cases shall be entirely void, and the trial of such person shall ceed as if no such challenge had been made."

In case of felony after a prisoner has challenged twenty of the peremptorily, he may still examine any other of the jurors who are«' sequently called as to the qualification. (R. v. Leach, 9 C. & P. *'1

2. Principal challenge to the polls is where cause is shewn, which, if found true, stands sufficient of itself, without leavin thing to the triers.

Causes of principal challenge to the polls are such as these:

A peer is not to be sworn on juries, and he may be challenged by 8. Challenges. either party, or may bring a writ of privilege for his discharge. (1 Inst. Peer sworn. 156; 2 Hawk. c. 43, s. 11. See ante, 940, and Ld. Headley's case, R. &

R. 117).

Want of freehold has been held a good cause of challenge. (1 Inst. Estate. 156). But this is now otherwise by the 6 Geo. IV. c. 50, s. 27, post, 967.

Also, if a person be an alien. (R. v. Sutton, 8 B. & C. 417; 2 M. & Alienage. R. 406; S. C. nom. R. v. Despard, 1 Inst. 156. And see 6 Geo. IV. c. 50, s. 3, ante, 941). And by the 27th section of that act, it seems alienage is not a ground even of challenge to a special juror. (R. v. Sutton, 3 B. & C. 417; 2 M. & R. 406, S. C.)

If the juror be within the age of twenty-one, it is a good cause of chal- Age. lenge. (1 Inst. 157). So, if a female; (ante, 940).

If a juror be above the age of sixty, (the age limited by 6 Geo. IV. c. 50, s. 1, ante, 940), or be sick, or be non-resident in the county, he may sue out a writ of privilege for his discharge; but if he be returned and appear, he can neither be challenged by the party, nor excuse himself from serving, if there be not enough without him. (2 Hawk. c. 43, s. 26).

Female.

If the juror be of blood or kindred to either party, this is a principal Kindred. challenge; for that the law presumeth that one kinsman doth favour another, before a stranger; and how far remote soever he is of kindred, yet the challenge is good. (1 Inst. 157).

If during the trial of a case of felony, it be discovered that the prisoner has a relation on the jury, this is no ground for discharging the ury, and the case must proceed. (Reg. v. Wardle, 1 C. & M. 647).

Affinity, or alliance by marriage, is a principal challenge, if the same Affinity. ontinue, or issue be bad; otherwise it is but to the favour. (1 Inst.

57).

If the juror be godfather to the child of the plaintiff or defendant, Godfathers. r they to his child, this is allowed to be a good challenge, in our books.

Ib.)

If a juror hath part of the land that dependeth upon the same title, it Interest in title. sa principal challenge. (Ib.)

It hath been allowed a good cause of challenge, on the part of the pri- Prejudice.
oner, that the juror hath declared his opinion beforehand, that the party
guilty, or will be hanged, or the like. (2 Hawk. c. 43, s. 28).

But expressions used by a juryman previous to the trial are not a cause

f challenge, unless they can be referred to something of personal ill-will owards the party challenging. (R. v. Edmonds, 4 B. & Ald. 492; 2 Tawk. c. 43, s. 28).

Actions brought by the juror against either of the parties, or by either Malice. of the parties against him, which imply malice or displeasure, are causes

of principal challenge; other actions, which do not imply malice or dis

leasure, are but to the favour. (1 Inst. 157).

the juror.

Likewise, if a juror gave a verdict before for the same cause or upon Prior verdict by the same title or matter, though between other persons. (1 Inst. 157). But it is not a ground of challenge that a juror on other trials has not

found a verdict for the Crown. (R. v. Sawdon, 2 Lewin, 117).

So, likewise, one may be challenged, that he was indictor of the Indictor. plaintiff or defendant in the same cause; for such a one, it may be thought, will not falsify his former oath. (Lamb. 554. And see R. v. Edmonds, 4 B. & Ald. 471). And if a grand juryman, who was one of the indictors in the same cause, be returned upon the petit jury, and do not challenge himself, he shall be fined. (2 Hale, 309).

If a juror hath been an arbitrator, chosen by the plaintiff or defendant in the same cause, and hath been informed thereof or treated of the inatter, this is a principal challenge; otherwise, if he were chosen indifferently by either of the parties. (1 Inst. 157).

Juror having been an arbitrator in

the cause.

8. Challenges. Counsel, &c.

Eating and drinking at the cost of a party.

Parishioner.

Labouring a juror.

Fellow-servant.

Attainder or conviction.

Outlawry.

Wrongly sworn.

If he be of counsel, servant, or of fee of either party, it is a principa challenge. (1 Inst. 157).

Also, if a juryman, before he be sworn, take information of the cas this is a cause of challenge. (2 Hale, 306).

But it is no cause of challenge by the counsel for the prosecution, case of felony, that the juror is a client of the prisoner, who is an attr ney. (R. v. Leach, 9 C. & P. 499).

Nor that the juror has visited the prisoner as a priest since he has bec in prison. (Ib.)

If any, after he be returned, do eat and drink at the charge of eith party, it is a principal cause of challenge. (1 Inst. 157).

But it is not a principal challenge to a juror, but only to the fav that the prosecutor was lately entertained at his house. (Anon., 3 Sci. 81).

In a cause where the parson of the parish is party, and the right: the church cometh into debate, a parishioner is a principal chalis (Ib. See 2 n.)

On the trial of an indictment for a riot, it is ground for the prosec tor's challenging a juror that he is an inhabitant of the town where riot occurred, and that he has taken an active part in the matter whi led to it. (Reg. v. Swain, 2 M. & Rob. 112).

If either party labour the juror, and give him any thing to give verdict, this is a principal challenge; but if either party labour the to appear and to do his conscience, this is no challenge at all, b for him to do it. (1 Inst. 157).

That the juror is a fellow-servant with either party is no principal challenge, but to the favour. (16.)

If the juror be attainted or convicted of treason or felony, or fr offence to life or member, or in attaint for a false verdict, or for pe as a witness, or in a conspiracy at the suit of the Queen, or in any e (either for the Queen or for any subject) be adjudged to the p tumbril, or the like, or to be branded or stigmatized, or to have other corporal punishment, whereby he becometh infamous; these the like, are principal causes of challenge. (1 Inst. 158; and see. the 6 Geo. IV. c. 50, s. 3, ante, 941).

So it is, if a man be outlawed in trespass, debt, or any other action; fr he is ex lege, and, therefore, not a lawful man. (1 Inst. 158).

But it is of no objection that a juror has been sworn by a wrong Ch ian name, either in a criminal or a civil case. An instance of the for kind occurred at Newcastle in 1783, where, after the business d4 Crown side was over, it was discovered that Robert Curry, wher upon the jury, had answered to the name of Joseph Curry in the riff's panel, and had been sworn by that name. Ôn further inq appeared that there was a person of the name of Joseph Curry, b ing to Newcastle, but not at that time resident within the county: Robert Curry was qualified to serve on juries, and had been sum by the bailiffs to attend on the Crown side as a juryman at thes sizes. All this was mentioned to Mr. Baron Eyre, who, conceiv only to amount to a misnomer in the panel of the juryman intend. be returned, and who did serve, and that it was but cause of challe which, on being stated, would instantly have been rectified by slt" the panel, and that after judgment it could not be assigned as error, not incline to interpose on the ground of a supposed irregularity in proceedings. However, on being pressed by the counsel, the j thought fit to respite the execution of a convict for forgery until the chaelmas Term following, that he might have an opportunity of tioning the case to the rest of the judges. And on the first day of chaelmas Term, 1783, the judges were unanimously of opinion there was no ground for the objection if a writ of error were brough