
    Elisha Flagg vs. The City of Worcester.
    It is no ground of objection to the acceptance of the verdict of a jury, assessing damages occasioned to adjoining land by the raising or lowering of a highway, that there was no such determination of damages by the selectmen or mayor and aldermen, as to authorize the county commissioners to issue a warrant for a jury But such objection, if relied upon, must be taken before the county commissioners.
    In a proceeding against a city or town to assess damages occasioned to adjoining land by the raising or lowering of a highway, a person, who, though not residing in the city or town, has a claim against the respondents of like character to that in controversy, and feels himself aggrieved and injured by the alteration in question, is not competent to sit on the jury.
    This was a proceeding before a sheriff’s jury, for the recovery of damages sustained by the petitioner, in consequence of the lowering, by the respondents, of the grade of a highway, adjoining the petitioner’s land in the city of Worcester.
    The petitioner, in his application to the county commissioners for a jury, set forth, that the respondents having failed to make any provision for the payment of his damages, and having never caused any adjudication thereof to be made, the petitioner, on the 19th of June, 1850, presented a petition to the mayor and aldermen, praying that his damages might be legally assessed; that this petition was referred, by both Dranches of the city government, to a committee, who reported thereon, that the respondents should pay the petitioner, in full compensation for his said damages, the sum of seven hundred and fifty dollars; that this report, being made to the board of aldermen, was there read and laid on the table, on the 5th of August, 1850; and that no further action had been taken or had thereon. The petitioner, therefore, alleging himself to be “ aggrieved by the said determination of said board of mayor and aldermen, and by the amount reported by the said committee as the amount that ought to be paid to him in full for his damages,” prayed that a jury might be summoned and impanelled, according to law, to ascertain and determine his damages, for and by reason of the lowering of the grade of the highway as aforesaid.
    The commissioners ordered the prayer of the petition to be granted; and issued a warrant, pursuant to which the sheriff summoned and impannelled a jury, one of whom, Harvey Bancroft, of Auburn, was the owner of real estate for which he paid taxes in Worcester. The respondents objected to his being sworn, when the following proceedings took place, as appeared by the sheriff’s certificate: “ The sheriff put to the said Harvey Bancroft the several questions stated in Rev. Sts. c. 95, § 27, all of which he answered in the negative. The counsel for the inhabitants of Worcester requested the sheriff to inquire of the juror, Harvey Bancroft, whether he is not the owner of real estate in the city of Worcester, and whether the city have not made repairs or alterations upon the highway where his estate abuts on the same, and if so, whether he does not feel himself aggrieved and injured by such repairs and alterations, and whether he does not claim damages of the city in consequence of such repairs or alterations, and also, whether he does not consider himself entitled to damages therefor. The sheriff declined to put the inquiries, stating that if all the questions were answered in the affirmative, he should not consider that Mr. Bancroft was disqualified to serve as a juror; that he considered the question of interest arising from the possession of real estate without inhabitancy as settled in the case of. Rutland v. Worcester, 20 Pick. 71, 84; and that as regarded any repairs or alterations of highway in the vicinity of land of Mr. Bancroft, it was in a different street, more than a quarter of a mile distant, and had no connection whatever with the alteration complained of by the petitioner.”
    Bancroft and the other jurors were then sworn by the sheriff ; and after they had chosen a foreman, proceeded, against the objection of' the respondents’ counsel, to view the premises ; and, after both parties had been heard, agreed upon a verdict in favor of the petitioner, which was returned into the court of common pleas, and accepted by that court; whereupon the respondents appealed. The objections taken by the respondents to the acceptance of the verdict are stated in the opinion.
    P. C. Bacon and D. Foster, for the respondents.
    
      B. F. Thomas, for the petitioner.
   Bigelow, J.

The first objection taken to the acceptance of the verdict in this case, that there was no such determination by the mayor and aldermen of the city upon the question of damages, under Rev. Sts. c. 25, § 6, as to authorize the county commissioners to issue a warrant for a jury, cannot avail the respondents, because the objection was not seasonably taken. Such a determination is the basis of all subsequent proceedings, and without it the county commissioners had no authority to act in the premises. If, therefore, the respondents intended to avail themselves of such an objection, it was their duty to have taken it at the outset. They cannot be permitted to come in and submit in silence to the jurisdiction of the commissioners, and after having taken their chance of a favorable verdict, defeat the proceedings by objections, which must have been within their knowledge during the preliminary proceedings. We think, therefore, that the respondents have waived all right of exception on this ground. Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58, 77; Field v. Verm. & Mass. Railroad, 4 Cush. 150; Meacham v. Fitchburg Railroad, 4 Cush. 291,296. Besides, it may well be taken for granted in ulterior proceedings in cases of this kind, when the contrary is not shown by the record, that it was made to appear satisfactorily to the commissioners, that such determination by the mayor and aldermen had taken place. There is nothing in the present case from which we can infer that all the proceedings on the subject by the mayor and aldermen are spread out on the record: and, therefore, the maxim omnia rite acta premmwntwr is applicable.

The objection to the verdict, on the ground of bias or prejudice on the part of one of the jurors, empanelled to try the cause, is of graver importance. Upon the facts stated in the officer’s return, we are bound to presume that the juror, if the inquiries had been put to him by the sheriff as requested by the respondents, would have answered them in the affirmative. The ruling of the sheriff was, that if so answered, he should not consider the juror as disqualified. This was equivalent to a decision by the sheriff, that the objection to the juror embodied in the questions proposed by the respondents was untenable; because he refused to put the inquiries on that ground alone. It was not, therefore, the mere exercise of a discretion on the part of the sheriff in refusing to put the questions, to which, perhaps, no exception could have been taken. Commonwealth v. Gee, 6 Cush. 174. But it was an opinion upon a question of law, which is subject to revision here. Taken in this light, then, the case stands thus: Is a person having a claim against the respondents, similar in its character to that of the petitioner, upon which the jury is to pass, and who feels himself aggrieved and injured by the acts and conduct of the respondents respecting it, a fit and impartial juror to try a like question pending against the city.

The well settled principles of the common law, and the express provision contained in the declaration of rights, Art. 29, alike require that jurors in all cases should be as free, impartial, and independent as the lot of humanity will permit. It is not, therefore, a pecuniary interest only or chiefly, that disqualifies a juror; but any thing, which may operate to create a prejudice or bias in the mind, either against a party or his cause, is deemed an adequate cause of challenge. Nor is the degree of influence, which may be supposed to exist, at all material. It is sufficient if it exist at all, because any amount, however slight, may be the source of an improper bias. The law cannot undertake to measure the extent to which the mind may be swayed in each particular case. That which would influence materially the judgment of one, may have but little or no effect on the mind of another. Therefore it is, that the fact that there exists a cause of bias, such as kindred, prejudice, interest in the question, though not in the event of the suit, are held sufficient to disqualify a juror, without any inquiry as to its effect on his impartiality. The provisions contained in Rev. Sts. c. 95, §§ 27 - 31, show how carefully the legislature has guarded .the jury box against all such improper and disturbing influences. See Hesketh v. Braddock, 3 Bur. 1856; Commonwealth v. Worcester, 3 Pick. 462 ; Davis v. Allen, 11 Pick. 466.

Upon these familiar and well settled principles, it seems to us that a juror, having a claim against the respondents similar in its character to that of the petitioner, and who felt himself injured and aggrieved by the conduct of the respondents in relation to it, was not so entirely free from all prejudice and bias, as to “ stand indifferent as he stood unsworn.” On this ground we think that the verdict must be set aside.  