
    Elijah Davis versus Ichabod Allen.
    It is a good cause of challenge to a juror, that the same state of facts which will warrant a verdict for the plaintiff in the suit, will support an action upon the trustee statute, against the defendant, upon a judgment against the plaintiff which has been assigned to the juror.
    A writ of review was granted on account of such interest of a juror, where it did not come to the knowledge of the defendant until after the verdict had been returned in favor of the plaintiff and after the final adjournment of the court.
    Petition for a review of an action tried at April term 1830 of this Court, in which Allen was the plaintiff and Davis the defendant. The petition contains the following allegations. The action was brought to recover a part of the consideration for a farm sold by Allen to Davis in 1823 ; and the question in controversy was, whether Davis had paid the whole consideration at or near the time of the purchase, or whether a part of it remained due. A verdict was rendered by the jury for $861-50 damages. One Asa Hamilton was the foreman of the jury, and was interested in the question then on trial, and therefore disqualified for deciding impartially, as appears by the following facts. Soon after the purchase of the farm, Allen was insolvent and continued to be so until he obtained the judgment above mentioned. After the convey anee, T. Goddard and J. Bemis brought an action against Allen and against Davis as his trustee, and recovered judgment against Allen for $118-86 debt and $12-37 costs of suit, but Davis was discharged upon his answers to interrogatories propounded to him as such supposed trustee. Goddard and Bemis assigned the judgment to Hamilton and one Eaton a long time before the trial of the action of Allen against Davis, and the assignees became entitled to receive the amount due thereon, whenever Allen should be able to pay the same. On the same day on which the verdict was rendered in favor of Allen against Davis, Hamilton and Eaton caused an action to be commenced in the names of Goddard and Bemis against Davis, for having falsely answered as trustee in their suit against Allen, which action is now pending.
    The petitioner likewise prays for a review, on the ground of newly discovered evidence.
    
      
      Oct. 13th
    
    
      Oct. 11th
    
    
      J Davis and C. Mien,
    in support of the petition, cited, with respect to the juror, Hesketh v. Braddock, 3 Burr. 1856.
    
      Merrick and W. S. Hastings, for the respondent.
   Shaw C. J.

delivered the opinion of the Court. This petition is founded upon two grounds, 1. newly discovered and material evidence ; and 2. that the foreman of the jury who tried the cause, had an interest that the plaintiff should recover, or rather a claim against the petitioner depending upon the same state of facts as the issue then on trial, and had such a bias or prejudice, as to render it unfit and improper for him to sit as a juror.

[Upon the first point, the Court, upon the evidence, decided against granting a review.]

Upon the second point, it appears to the Court upon the evidence, that the foreman of the jury, as assignee of a judgment against Allen, who was insolvent, had an interest and claim, the success of which would depend upon the same state of facts controverted on the trial; and that the same state of facts which would warrant a verdict for the plaintiff in that suit, would support an action upon the trustee statute, against the petitioner, upon the judgment in which the juror was interested. It also appears that other persons similarly situated, and their attorneys, were looking to the verdict of the jury, to determine them whether they should prosecute their respective claims or not. But it does not appear that the juror, who was so interested jointly with others, had taken any active part in the prosecution of his claim, or that in fact he was at all influenced by it.

Upon this evidence the Court are of opinion, that the circumstances disclosed would have constituted a good ground of challenge to the juror, had the exception been seasonably taken. Many causes which would not render a witness incompetent, such as kindred, prejudice, interest in the question though not in the event of the suit, are sufficient to disqualify a juror. Testimony can only be obtained from the particular individual who knows the facts ; but great numbers may sit as jurors. And where there is abundant latitude for selection, none should sit who are not entirely impartial. This is equally demanded by the general principles of the common law, (Hesketh v. Braddock, 3 Burr. 1856,) and by those of our own constitution, requiring all judges to be as free, impar tial and independent as the lot of humanity will admit. Declaration of Rights, art. 29.

The species of influence which may be supposed unfavorably to affect the impartiality of a juror, is indicated by the provision of the statute in regard to the return and service of jurors. St. 1807, c. 140, § 9. It provides, that inquiry may be made of a juror, whether he is any way related to either party, or hath formed or given any opinion, or is sensible of any particular interest or prejudice in the cause.

We are of opinion therefore as the evidence now stands, that if the exception had been seasonably taken, it ought to have been sustained and the juror withdrawn from the panel. But a party knowing of ground of exception, who does not seasonably take it, must be deemed to have waived it. It would be inconsistent with the plain rules of fair dealing, to permit a party to take his chance for a verdict in his favor, knowing of a defect in the proceedings and meaning to avail himself of it to invalidate the verdict if against him. Jeffries v. Randall, 14 Mass. R. 206. So of a supposed interest in a county commissioner. . Ipswich v. County Commissioners of Essex, 10 Pick. 519. So of an objection to the partiality of a referee. Fox v. Hazelton, 10 Pick. 275.

But the petitioner cannot be deemed to have waived the objection, if he did not know of the facts on which it rests, when the jury was empannelled. The petitioner therefore will be at liberty to file his own affidavit as to this fact, and both parties be at liberty to furnish further evidence upon this point, and to examine the foreman, without exception to his competency.

Note. —Afterwards, the petitioner filed his affidavit, stating that he had no knowledge that the foreman of the jury was the assignee of the judgment against Allen, or otherwise interested, until after the verdict was returned and after the. final adjournment of the Court.

Writ of review granted. 
      
       See Wilbraham v. County Commissioners of Hampden, ante, 327.
     
      
       See Hallock v. County of Franklin, 2 Metc. 560.
     