
    
      State vs. Gainer.
    TTE was indicted at Halifax at the last term, for horse-stealing, and challenged thirty-five jurors ; and when, the 56th was. drawn, h,e also challenged him ;- — and the question arose and was referred to this court, to. determine whether the said, challenge should be over-ruled. ,
    The counsel for Gainer argued in substance. — Challenging 36 jurors, and persisting therein, was punished at the comnion law by the píeme ferte et dure, or pressing to death. This pun-, ishment cannot now be inflicted', our constitution having provided in the Bill of Rights, sec. 10, that cruel and unusual punishments should not be inflicted.. — [Taylor, Judge- — You need not argue that; it is clear it cannot.] — .The common law-in this respect was altered by the 22 Henry 8, Chapter 14 $. it directed in cases of felony, ‘‘ that he be not admitted to challenge more than 20.”' The a.ct of 1777, ch. 2, sec. 94, that any person on trial for his life, may make a peremptory challenge ®.f 35 jurors. In my judgment this being directly against the act of H. 8, is a repeal thereof; the one says he shall not be. admitted to challenge mote than 20 — the other that he may challenge 3,5.; and if it be a repeal, then is the common law restored, except as. t;o the punishment of pressing to death. As this is a construction, in. favor of life, it ought rather to be adopted, than the other, which is against life : more especially, if any circumstance can be laid hold of to shew that the legislature intended it as a repeal. There is such a circumstance, and it is. a vsvv strong aba j not only the Assembly which passed the act of 17771 but divers Assemblies afterwards have provided in certaui cases, the punishment of death without benefit of clergy, for challenging peremptorily more than 35 jurors ; see 1777> ch« Q, sec 1. 177% ch. 1J. 1783, ch, 1, sec. 8. 178$, eh, S j each of them inflicting punishment, and all but one of them the punishment of death for challenging peremptorily more than 8$ jurors. And were the legislators of 1777 so uninformed as to inflict the punishment of death for doing that which they themselves in the same session had rendered impossible ? Were they so absurd as to say you shall not be allowed to challeng-e the 36th juror, and if you attempt it the challenge shall be overruled ; and in the same session to say if you challenge the 3,6ih juror and will not retract the challenge, you shall he punished with death ? If we will but remember who were members of this Assembly, it will be impossible far us to harbour the idea that they did not know what they Were about nor what they intended, The act against horse-stealing, 1790, ch, 12, under which the prisoner is indicted, provides no punishment for challenging mere than 35 ; and therefore the prisoner should be discharged.
    A contra,
    It was argued that 22 H. 8, ch, 14, was altered by the act oje 1777, only as to the number of jurors which the prisoner might challenge ; $5 is substituted into the place of 20» The expression used in 1777, may challenge 35, implies most strongly that he may not challenge more.
    
      Haywood for the prisoner, by the s ppointmeat of the courts
   Per curiam,

It was decided that his challenge of more than 3S shall be disallowed, and that he shall not be at liberty to refuse his trial by such means.  