
    JOHN BAKER, EX’R., vs. RICHARD HARRIS.
    An aetion .on the ease brought by A against B for fraudulently removing a debtor is tried, and a verdict found for defendant. The same jury’ are tendered in a cause of C against R for the same act of removing, and are challenged by the plaintiff. This is a challenge to the polls and cot to the array.
    It is a principal cause of challenge, involving matter of law, and.therefore the judgment of the Court below upon it, may be reviewed in this Court.
    The jurors challenged, were under a legal bias by reason of having decided the case of Goodman vs. Harris, and the challenge ought to have been allowed.
    Jurors ought not to be asked either on oath or otherwise, whether their minds are in such a state that they can try a case fairly and impartially. Their answers can have no influence on the question of their competency, . but it is an improper practice to ask them.
    The case of Sehorn vs. Williams, 6 Jones, 515, cited and approved.
    This was. an action on the case against the defendant for fraudulently removing a debtor to the plaiñtiff, from the county, tried before Bailey, Judge, at'Fall Term of Bowan Superior Court, 1863.
    The counsel for the plaintiff challenged the jury, (being the original pannel,) and assigned for cause of challenge, that the jury had tried the case of Groodman vs. Harris, the same defendant as in this case, for the same act of - removing the debtor, and had given a verdict for the defendant. The Court enquired of the plaintiff’s counsel, whether they expected to offer any evidence in addition to that offered in the case of Goodman vs. Harris y they answered that fthey should offer the same witnesses they had examined in the case of ..Groodman vs. Harris, with additional evidence- by other witnesses.
    The Judge then proceeded to try the cause of challenge, no objection being made thereto by the plaintiff. Each juror was sworn, and each severally asked, whether, if additional testimony was offered, he believed he could give the plaintiff a fair and impartial trial. Each juror ■ answered, that in case no additional testimony was offered in the cause, that he would And in the same way he found in the case of Gfoodman, but if additional testimony was offered, he'believed he could give the plaintiff a fair and impartial trial.
    The Court thereupon ordered the jury to be impanneled.
    In the course of the trial, several exceptions were taken by the plaintiff, to the decision of the Judge on questions of evidence, but it is unnecessary to state them, as this Court gives no opinion on them.
    There was a verdict for defendant and the plaintiff appealed. . . '
    
      fVilso7i for the plaintiff.
    
      Boyden and Winston, Sr., for the defendant.
   Manly, J.

There is no cause assigned upon the record for a challenge to the array, and we "consider the case, therefore, as a challenge to the polls. It was so treated in the Court belqw.

Challenges of this sort lie under three principal divisions, 1. propter honor cm; 2. propter defectum; 3.. propter af-fectum. Of the last, under which lies our case, there are two sorts : the one working a principal challenge, the other, to the favor. And the first question that presents itself for our, consideration is, whether the cause assigned bo one for principal challenge, or cause lor challenge, to the favor only. For if it bo of the latter class, whether it be tried through consent of,parties by the Judge, or decided by triors appointed for the purpose, it is a subject of discretion and cannot be reviewed in this Court.

Many cases of the one class approach those of the other so nearly as to bo hardly distinguishable.

The one before us, however, does not seem to be incum.bered with much of this difficulty, and we are of opinion that it falls under the class of principal, challenges. According to the explanation in Joy’s treatise on the subject a principal challenge under the head propter effectum is where there is express malice or express favour, and is a judgment of law, either without act on the' part of the proffered juror, or a judgment of law upon his act. Upon . the cause assigned in the record before us viz: the act of trying'as a juror the former case, (the facts being conceded) the law draws a conclusion as to his fitness or unfitness. Hence the cause is one for principal challenge, which, in the Court below, involves questions of‘law, and is subject; to be reviewed in this. Court. The case of Schorn vs. Williams, 6 Jones, 575, presents questions of challenge to a juror. It was a plain case of principal challenge, and is an authority on the point here stated, if any were needed.

The action is against the defendant for fraudulently removing a debtor from the County. (Rev. Code, ch. 50, sec. 14.) It seems that divers creditors had commenced' actions against the defendant upon the same allegation, one of which had been tried before, and the jurors tendered on the trial of this case, had set on that trial and rendered a verdict for. the defendant. This, was assigned as cause for, principal challenge, and we think well assigned.

It is a well established and ancient usage not to allow a juror to set a second time on the same cause, and it matters not whether the same only or other additional or different witnesses are to bo examined. The juror is alike unfit. This does not differ substantially from the case now before us. Then the corpus to be proved is precisely the same that it'was on the trial af the suit of the other creditor. It is in the nature of a criminal information in- which the allegation is that defendant removed or assisted to remove the debtor from the County with intent to defraud creditors-. If he did so in respect to one creditor, he did so in respect to all. The juror has decided the case under oath as to one, and if the conclusion to which he came in that case be true, it is equally true of all the others, however they may happen to appear on divers trials. It is not in the nature of man, even in the most conscientious of the race, to divest himself altogether of prepossession or’ bias in favor of a judgment so solemnly' formed; and it is difficult to perceive how the bias can.be less in the special case before us than in the case of a juror called to try the same eause a second time. ' It is indeed substantially a requirement of the latter class, and is a strain which the law does not allow to be put upon the conscience of a juror. It is important in order to preserve the trial by jury as a safeguard for rights, that the juror should not only be intelligent and of sound moral sense, but free from all prejudice.

We take no account of the information elicited by the Judge from the plaintiff’s counsel that some additional testimony' was to be examined ; for, as in the case of a juror offered a second time in the same cause, it would make no .difference, so in this case we think it would not affect the juror’s competency.- ■ ■ '

We have passed over also, as matters of no weight in the cause, the answers given by the jurors, to the enquiry •whether, if additional testimony was offered, they could give the plaintiff a fair and impartial trial. The law .upon the supposed state of facts pronounces a judgment of incompetency, and no answer of the jurors could obviate the rule of law. In Cooke upon Littleton, 158, b., it is said, “if the cause of challenge touch the dishonor or discredit of the juror, he shall not be examined on his oath, but in other cases he shall fee examined on his oath to inform the triors.” And-since the trial of Cooke for treason in the reign, of William III, 13 State Trials, Howell’s Edit., p. 312, 334 and seg., it has been,' I think, uniformly held, when the question has been made, that if the question disparage the juror ' he ought not to be asked it either upon oath or otherwise. While, therefore, we hold that the answers could not have affected the result, we take occasion to disapprove of such a course of enquiry. Answers to such questions, in the great majority of cases, will not be likely to afford reliable information as to the true state of the juror’s feelings.

The Court is of opinion, therefore, 1st. that the cause of challenge assigned is cause of principal challenge, and "that the Court can take cognizance of and review the same.

2nd. That the jurors challenged were under a legal bias by reason of having decided the case of Goodman vs. Harris, and that the challenges ought, therefore, to have been sustained and the-jurors withdrawn. . ' ¡

This will entitle the plaintiff to a venire de novo and we abstain from going into an examination of the questions of evidence raised upon the record.

Judgment reversed and a venire de novo awarded.  