
    WOMELDORF v. STEINBERGEN.
    Struck jury — peremptory challenge — division of the court.
    Qttere — Whether, when a-j my has been struck,the right of peremptory challenge to a juror is not thereby taken away.
    Where the judges are equally divided in opinion, the motion before the court fails.
    Assumpsit. In this case, a jury was struck, under the statute, and sixteen persons were returned upon the panel. Twelve of these were called into the box.
    Brazee, for the defendant,
    challenged one of the twelve peremptorily, and eited 29 O. L. 78.
    
      Allen and Murphy, contra,
    insisted that in cases of struck jury, the right of peremptory challenge was taken away. The first twelve must be sworn.
    
      Brazee
    
    moved for a new trial. A case was made and reserved for the Court in Bank.
   Collett, J.

was of opinion that the challenge could not be received.

Wright, J.

was in favor of admitting it.

Owing to this division of opinion, the challenge was not received, and the juror was sworn.

A verdict was taken for the plaintiff for $227 36.

In the Court in Bank, at December Term, 1832, the case was argued.

Judges Hitchcock and Wright were of opinion the challenge was admissible.

Judges Collett and Lane were of opinion it was inadmissible.

Owing to this division, the motion for a new trial failed, and judgment was rendered for the plaintiff on the verdict.  