
    Pringle against Huse.
    On the trial of a juror, upon a challenge by the plaintiff, for having expressed an opinion in favour of the defendant, the juror challenged may be called as a witness by the. defendant.
    Where it . appears prob*ble, that the plaintiff cannot have a trial by an impartial jury, he may refuse going to trial, and will not, for that cause, be nonsuited.
    Thus, if in the course of drawing a jury at the circuit, he discovers that the box, having been left open by the clerk, the ballots therein have been arranged with
    apparent design to procure the drawing of a favourable jury, with other suspicious circumstances, he may withdraw his record, and on motion for judgment, as in case of nonsuit, will be excused from paying costs.
    A challenge of a juror, for having given an opinion, is a principal one, and should be tried by the court.
    It is, in genera], highly improper for jurors, after they -are summoned, to express opinions in causes which may -come before them.
    It is improper for the clerk of the circuit to leave the ballots unrolled, in an open box, or to draw them in this situation.
    This cause was noticed for trial at the last Otsego Circuit and on the 18th day of September last, was called in its place on the calendar and was moved for trial on the morning of the 19th. The plaintiff challenged the first juror drawn, to the favour, on the ground that he had expressed an opinion in the cause against the plaintiff, after he had been summoned as a juror. Two other jurors, were then drawn, and not being challenged, they sat without objection as triors of the challenge to the first. Two witnesses were sworn and examined before them on the issue upon the challenge. One of these witnesses was the juror challenged, who was offered by the defendant and objected to by the plaintiff as incompetent, but the objection was overruled by the Judge. The plaintiff’s witness proved the declaration imputed to the juror, which the latter denied, and the triors found him free from all bias, and he took his seat in the box with the other two jurors. When the clerk began to draw the jury, he did it out of an open box, and drew the first juror and the triors out of the box thus open. Just before the decision of the triors, one of the plaintiff’s counsel looked into the box, and stated to the Court, as was the fact, that the ballots in the bottom of the box lay in one direction—that 8 or 9 ballots, not folded, nor rolled up, but open with the writing uppermost, and the ballots perfectly smooth, lay transversely, at right angles, across the ballots,at the bottom of the box. The Clerk admitted this to be the state of the box, but denied that he had any agency in so arranging the ballots. The plaintiff’s counsel then objected to the drawing as irregular ; insisted that the box should be closed, and the ballots rolled, or folded up, according to the statute, and he proposed that this should be done now, and the drawing commence anew. This was objected to, by the plaintiff’s counsel, and overruled by the Judge. The plaintiff’s counsel then declared, that they would not try the cause. To this the defendant’s counsel objected, stating that the two jurors, who had been drawn and sworn as triors, were to set as jurors on the trial of the cause, and therefore, two jurors were approved of, besides the one who had been tried and pronounced impartial. This was denied by the plaintiff’s counsel, who contended, that taking the triors from the jury box, did not make them jurors for the trial of the cause.- But without this question being decided by the Judge, the plaintiff’s counsel finally declared, that they should withdraw the record, and not try the cause. The counsel for the defendant objected, that it was then too late to withdraw the record, and that they must submit to a non-suit. The Judge said this was not a question for him to decide ; if the plaintiff’s counsel chose not to try his cause, he could not compel him. The plaintiff’s counsel then declared, that they should not try the cause and abandoned it ; and thus the cause went off. It appeared by the Clerk’s Certificate, that these jurors had been drawn, in the same manner as the other jurors, during the Circuit.
    
      H. R. Storrs,
    upon these facts, moved for judgment as in case of non-suit.
    
      E. Williams, contra.
    As this is our first default, the question is merely one of stipulation and costs. These are resisted on two grounds ; irregularity in drawing the jurors, and a mistake of the Judge. The cause would have been tried, had we not been prevented going on, by a partial jury being fixed upon us. This was owing to the misconduct of the Clerk, which the Judge did not correct. The Statut'e pr0YjjeS) that the ballots shall be rolled up as near of one size as may be, by direction and care of the Clerk, and they should be secured in a box, not open and accessible to the parties or their friends6 We are entitled to a fair selection I . , by lot.
    Again: To try the challenge, triors were drawn. By one witness we proved to these triors the declaration of an opinion by the juror challenged, after he had been summoned and knew that he might be drawn as a juror. When we had done this, the Judge suffered the defendant to call the juror challenged to prove his own competency, by contradicting our witness. In this the Judge erred. Why did we challenge the juror? On account of, his being biased against us ; and though we might have called him as a witness, the bpposite party could not do it. It is said in Co. Litt. 158 b. “ If the cause of challenge touch the dishonor or discredit of the jilfor, he shall not be examined upon his oath, to inform the triors.n
    
    To the satiie effect is the anonymous casé in 1 Salk. 153 ¡ and Bac. Abr. Juries, E. 12. It is the same of a juror as á witness ; if yoii prove his favor aliunde, he cannot be called to do it away. So of a witness, as to interest. Both cases stand upon the same ground. If the Judge erred, we are excused; and if either error prevented a fair trial, we were not bound to go on.
    
      Slorrs, in reply.
    The objections to the motion, rest the tights of the parties on the decision of the Judge, which cannot be questioned in this way. If he was wrong, the question should have been raised on motion for a new trial upoti a case made. But by giving effect to these objections, the Order of proceeding is inverted. The plaintiff cannot elect not to try his cause at all, merely because the Judge errs at the Circuit! He fell into the peril of this motion the moment he withdrew his record. He might just as well have done this, because a witness was improperly admitted to testify on the trial ; and by listening to such objections, every motion for a judgment as in case of non-suit, will lead into the merits of the cause. Withdrawing the record is a voluntary determination not to go to trial. He is prevented by his own act—not by that of the Court.
    
      
      
         1 R. L. 331,s.20.
    
   Curia, per Savage, Ch. J.

The statute directs, that the names of jurors shall be rolled up on slips of paper or parchment, as nearly of one size as may be, and drawn by the Clerk; and his conduct was certainly very reprehensible in keeping the ballot box in the situation described. The challenge, being a principal one, ought regularly to have been tried by the Court; but there was no impropriety in swearing the challenged juror, as a witness. The cause of the challenge was not such an one as went to his dishonor ; for nothing appears~ but that his opinion may have been given as an arbitrator, or on some other innocent and proper occasion. Though it is, in general, highly improper for jurors, after being summoned, to express opinions upon causes which may come before them. The plaintiff was entitled to a jury free from partiality and bias. A challenge to the array lies for default, or partiality in the Clerk ; and it is, undoubtedly, good cause, if the Clerk select the jury, instead of drawing by lot. It is said, in Gardner v. Turner, that if the triors had found against the challenge, the plaintiff, must have proceeded in the cause, or he would have been in default. The remark was obiter, and the principle of that case seems to be, that where the plaintiff refuses to try his cause, where he has good reason to believe that he cannot have a fair trial, by an impartial jury, he shall not be non-suited for that cause. In this case, though the triors decided against the challenge, they did so on the oath of the challenged juror, contradicted by an indifferent witness. There is no reason, under the circumstances, to suppose the challenge was made for the purpose of delay ; but, on the contrary, that it was made in good faith, and under an honest jjppression that a fair trial could not be had. by that jury,, The motion must be denied; but, as both parties have come here, without any circumstances of unfairness being imputable to either, it must be without costs on either side.

Rule accordingly. 
      
       1 R. L. 331.
     
      
       1 Archb. 185.
     
      
       Co. Litt. 158, b.
     
      
       1 Salk. 153.
     
      
       Garden v. Turner, 9 John. 260.
     
      
       When a full jury appear, either party may challenge them for cause, as well the talesmen (1 R. L. 330, s. 14) as the jurors originally returned.
      Challenges are of two kinds—to the array, or to the polls ; and each of these are again subdivided into principal challenges, and challenges to the favour.
      
        To the array. A challenge to the array, is an objection to all the jurors returned by the Sheriff, collectively ; (Co, Litt. 156, 153;) not for any defect in them, but for some partiality or default in the Sheriff, or his under officer, who arrayed the panel. (3 Bl. Com. 359. 2 Tidd, 779. 9 John. 361.) This is the English definition, where the panel is arrayed by the Sheriff. Since our statute, authorizing the Clerk to array the jury, a challenge to the array also lies, for partiality or default in the Clerk; who, for many purposes, is substituted for the Sheriff, in selecting and arraying the jury. (9 John 261.) This is either a principal challenge, or challenge to the favour.
      The causes of principal challenge to the array are such as the following, viz : that the officer who makes the array is of kindred or affinity to either party, within the ninth degree, (1 South. Rep. 364)--that one or more of the jury are returned at the nomination pf either party—that an action of battery, or other action implying malice, is pending at the suit of either party, against the officer, or at the suit of the officer, against either, party—that an action pf debt is pending, at the suit of the party, against the officer, but not, if by the offiper, against the party—that the officer holds land depending upon the same title with that in litigation between the parties—that the officer is under the distress of either party— that the officer is counsel, attorney, (Cowp. 112) officer, servant, or gossip, of either party, or is an arbitrator, in the same matter, and has treated thereof, (Co. Litt. 156)—that the Clerk, instead of drawing 36, drew 72 names, put them in a list, and selected 36 from them. (9 John. 260.)
      The causes of challenge, to the array for favour, are such as imply, at least, a probability of bias or partiality in the officer, but do not amount to a principal challenge. Thus, that the plaintiff or defendant is the tenant of the officer ; or that the son pf the officer has married the daughter of the plaintiff or defendant, or the like. (Co. Litt. 156.)
      What is said above, as to challenges to the array, must, perhaps, be understood as having reference only to common, and not to special juries ; (vid. 1 R. L. 333, s. 22) for it seems very doubtful if the array, in special jury cases, can be challenged. (2 Str. 1000, 1 Str. 593. 2 L. Raym. 1364.)
      
        
        To the polls. A challenge to the polls is an exception to one or more of the jurors who have appeared individually; and this is either a principal challenge, or a challenge to the favour. The causes of a principal challenge to the polls may be classed under the following heads.
      1 Challenge, propter honoris respeclum, (Co. Litt. 156. 2 Hawk. c. 43, s. 11. 3 Bl. Com. 361.) is inapplicable, as depending on a title of nobility. (Con. U. S. art. 1, s. 9, pl. 7.)
      2. Propter defectum, that the juror is not qualified to serve upon a jury. Thus, that he has not sufficient freehold, or other property, (1 R. L. 327, s. 9; Co. Litt. 156) excepting, of course, where the jury are de medida.! e lingua, (1 R. L 327, s. 9)—that he is within the age of 21, (Co. Litt. 157 1 R. L. 327,) or above the age of 60, (1 R.L. 327) or that he is an ideot or lunatick. (Gilb. C. B. 95.) So, if a woman be impanelled, she may be challenged propter defectum sexus, (3 Bl. Com. 362) unless empanelled on the writ de ventre inspiciendo. (See Cro. Eliz. 566.) That the juror is an alien, (6 John. 332, 4 Dall. 353,) or that he is a slave, or not a resident of the county, (Co. Litt. 156, b. Boote, 157.)
      But a matter which merely exempts a man from serving on a jury, and does not incapacitate him, can never be a cause of challenge. An instance of these exempts is in 1 R. L. 335, s. 28. And it is said in Hawk. c. 43, s. 26, that if a person thus exempted, be summoned, and appear, he cannot excuse himself from serving on a jury, if there be not a sufficient number of jurors without him. He instances old age, &c. under the statute of Westm. 2, ch. 38.
      If a juror be erroneously named in the distringas, panel, &c. and sworn by such wrong name, if the error be in the Christian name it amounts only to a matter of challenge, and cannot be objected after verdict. (Willes, 488. 12 East, 230, a. 2 Burn. J. 856.) If the surname, (particularly where the person serving is not the same that was intended to be summoned) the Court have, in such a case, set the verdict aside. (Willes, 484. Barnes, 453. 6 Taunt. 460 Barnes, 455.) But see 12 East, 229, where the Court held it was discretionary with them to grant a new trial, in such a case, or not; and that they would not do so, unless the mistake, as to the juror, had been productive of some injustice.
      
        3. Challenge propter affectum, by reason of some supposed bias or partiality.. Thus, that the juror is of kin to .either party, within the 9th degree, (Finch, L. 401. 3 Bl. Com. 363) or, according to Ld. Coke, however remote the kindred, (Co. Litt. 157)—that there is an affinity or alliance, by marriage, between the juror and one of the parties, if such affinity continue, or there be issue of the marriage alive ; for otherwise it would be but a challenge to the favour, (Co. Litt. 157)—that the juror is . god-father to the party’s child, or the party god-father to the juror’s child— that the juror has land which depends upon the same title as the land in question; or, in a cause where the parson of the parish is a party, and the right to the church comes in debate, that the juror is a parishioner is a good cause of challenge; and so in all other cases where the juror has an interest in the action, direct or collateral—(See Burr. 1847 ; 2 John. 194 ; St. sees. 43, ch. 37, s. 3; 5 Mass. Rep. 90 ; 2 South. Rep. 686)—that the juror has before given a verdict in the same cause, or upon the same title on matter, though between other parties—that he was phosen arbitrator in the same cause, by one of the parties, and has entered upon an examination of it; but otherwise if he were chosen indifferently by both parties—that he is counsellor, servant, or of fee of either party, (Co. Litt. 157)—that he is tenant of either party, (Gilb. C.B.95)—that he is of the same society or corporation with either party, (3 Bl. Com. 363)—but that he is liis fellow servant is but a challenge to the favor, (Co. Litt. 157)—that he has taken information of the case before he is sworn, (2 Hale, 306)—that he has declared his opinion of the case beforehand, (2 Hawk. ch. 43, s. 28; 1 John. Rep. 316,) but not where he merely expresses a conditional opinion, thus : “ If tire reports of the neighbours be correct, the defendant is wrong, and the’plaintiff is right(8 John. 445 ; 1 C. H. Recorder, 24, S. P.; 6 G. H. Recorder, 71, S. P.)—that since ’ he has been returned, he has eaten or drunk at the expense of one of tire parties ; (Co. Litt. 157) but that one of the parties has been lately entertained at the juror’s house, is only matter of challenge to the favour-, (3 Salk. 81)—that one of the parties has laboured the juror, and given him money or other thing for giving his verdict; but if the party only labour the jury to appear, and act conscientiously, it is no matter of challenge whatever—that an aption, implying malice or displeasure, is pending between the juror and one of the parties ; but if not implying malice or displeasure, it is but matter of challenge to the favour. (Co. Litt. 157.)
      4. Challenge propter delictum ; when for some act of the juror, he has ceased to be, in consideration of law, probus et legalis homo. Thus, that he has been convicted of treason, felony, perjury, conspiracy, forgery, &c.— . that he has received judgment of the pillory or other infamous corporal punishment, for any infamous crime—that he is outlawed upon criminal process ; (Co. Lit. 158,) but it is doubted whether outlawry in a personal action disqualifies a man from Being a juror. (See Cro. Car. 135. W. Jon. 198. Ley. 81.)
      
        The challenge to the polls for favour, is of the same nature with the pria■eipal challenge propter affectum, but of an inferior degree. The general rule of law is, that the juror shall be indifferent; and if it appear probable that he is not so, this may be made the subject of challenge, either principal ■or to the favour, according to the degree of probability of his being biased. The cause of principal challenge to the polls, we have seen, is such matter as carries with it, prima facie, evident marks of suspicion, either of malie'e or fevour. But when, from circumstances, it appears probable that a juror may be biased in favour of, or against either party, and yet such, circumstances do not amount to matter for a principal challenge, it may then be mide a challenge to the favour. The effect of these two species of challenge is the same; the only difference between them, is in the mode of trying them. (1 Archbold, 183. Co. Litt. 158, a. 2 Caines’ Rep. 138.) If a juror declare on oath to the triors, that the testimony being equal, he should find a verdict for the plaintiff, he should he rejected. (7 Cranch, 291.) And in an action by a hank, the juror stating that he was the indorser of anote tó the bank, was found by the triors not indifferent; and this was Holden well. (19 John. 115.) That he was a stockholder in the bank» would of course, be a good objection. (6 C. H. Recorder, 69.) If the triors are in doubt whether the juror is indifferent, they should find him not indifferent. (4 C. H. Recorder, 81.)
      
        When and how made. No challenge either to the array or to the polls, can be made, before a full jury have appeared, (2 Hawk. c. 43, s. 1.) It is immaterial which party challenges first; but the party who first begins to challenge, must finish all his challenges before the other begins ; otherwise, he is precluded from making any further challenges. Also, the challenges of the party who challenged first, shall be first tried. (Tr. per Pais, 144.)
      The challenge to the array must be in writing. It may be in this form : “ And now at this day, to wit, on-come as well the aforesaid J. S. as the aforesaid J. JV*. by their respective attornies; and the jurors of the jury, impanelled, being summoned, also come ; and hereupon the said J. JV*. challengeth the array of the said panel; because he saith that [here set forth the matter of challenge, with certainty and precision,] and this he is S-eady to verify. Wherefore he prayeth judgment, and that the said panel may be quashed.” See the form of a challenge to the array that the jury were returned at the instance of the party, (2 Burn. J 868)—that the Sheriff is of kin to one of the parties, (id.)—that the Sheriff is an alderman, and interested in the event of the trial, (Cr. Cir. Comp. 105)—that tire Sheriff is a citizen and freeman, and has paid a sum of money towards defraying the expenses of the suit, (and see a counterplea to th"is last challenge, and a demurrer'to the counterplea. Id. See also, Tr. per Pais, 153-134. 10 Wentw. 474. 2 Rich. Pract. C. B. 180. Lill. Ent. 472.) K- ¡'f -oddeson, the late Vincrian professor, has furnished the form of a clwilecgo to the array, a demurrer, and judgment thereupon, and a prin-~ cipal challenge to the polls ore terms, and a judgment thereupon, with some other useful particulars in relation to these challenges, which are mentioned in Hesketh v. Braddock, Burr. 1847. (See 3 Wood. Lec. 347, n. i.)
      Mr. Wooddeson's note is thus: “ As Sir James Burrow has not given the record at length, I have set down the torm of these challenges, (which is not of every day’s experience) from my MS. precedents.-“ And hereupon the said S. B. prayeth judgment of the panel aforesaid, because he says that the said panel was arrayed and made by J. C. and J. D. Sheriffs of the said city of Chester ; and that the said J. C. and J. D. were, at the time of the making of the panel aforesaid, and continually from thenceforth hitherto have been and still are citizens "and freemen of the said city of Chester ; and this the said S. 15. is ready to verify. Wherefore he prays judgment, and that the panel aforesaid may" be quashed. And the said P. E. and H. H. say, that the matter in the aforesaid challenge to the array of the said panel contained, is not sufficient, in law, to quash the array of the said panel; and this they are ready to verify. Wherefore they pray judgment, and that the array of the said panel may be allowed by the Court here. And the said S. saith for that he hath above alleged a sufficient challenge to quash the array of the panel aforesaid, which he ie ready to verify, Which said challenge the said P. and H. do not, nor doth either of them deny, nor to the same in any wise answer, hut do, and each of them doth altogether refuse to admit that averment, he the said S. prays judgment, and that the array of that panel may be quashed. And hereupon it is judicially taken notice of by the said Court here, and is known to the same Court, that by the custom and constitution thereof, and of the city aforesaid, no person or persons can or ought to array the panel of any jury within the j urisdictiou of the said Court, or in any civil suit within the same city, other than the Sheriffs of the same city, for the time being, or one of them, or (by reason of any default in the said Sheriffs) the Coroners of the said city, for the time being, or one of them ; and that, by the custom of the said city, from time immemorial, no person or persons can or ought to be Sheriffs or Coroners, of or within the said city, but citizens and freemen of the same city. And now all and singular the matters aforesaid, whereof the said parties have above pu t themselves upon the judgment of the said Court here, having been seen, and fully understood, by the same Court, it appeareth to the same Court here, that the matter contained in the aforesaid challenge to the array of the said panel, is not sufficient in law to quash the said array of the panel aforesaid.— Therefore it is considered, by the said Court here, that the said challenge of the aforesaid S. to the said array of the said panel be disallowed ; and that the said panel of the aforesaid jury, so arrayed as aforesaid, be allowed and taken. And hereupon the said S. B. ore terms in open Court challenged! the polls, because he says, that the jurors, above named, are citizens and freemen, and each of them is a citizen and freeman of the said city of Chester. Which said challenge by the Court herejs disallowed. And hereupon the said jurors,” &c.
      N B This challenge ore terms was omitted in the first engrossment of this record ; and which the defendant alleged diminution ; and this challenge ore lenus was then inserted, &c. by rule.”
      The challenge to the polls is made ore lenus ; and it is not in general required that the party challenging shall immediately declare his cause of challenge, unless there be not a sufficient number of jurors remaining on the panel, or that the other side challenge touts paravail. (Tr. per Pais, 143. 4 C. C. H. Recorder, 81.) But if the juror were formerly sworn in the same cause, and be now challenged, (in which case the cause of challenge inust have arisen since the juror was before sworn,) or, if after a challenge to the array is tried and overruled, the party challenge the polls, he mast declare his cause of challenge presently. (Co. Litt. 158.) If a juror he challenged, and the challenge tried and overruled, he mqy still be challenged by the opposite party, (Co. Litt. 158.)
      
        Plow tried. As to challenges tó the array, it lies entirely in the discretion of the Court, how they shall be tried. So,metimes they are tried by two of the Coroners; sometimes by two of tliejury. (2 Hale, 275.) But see 1 South. Rep. 364. Perhaps any two individuals may be named by the Court, (9 John 261) If the challenge, however, be a principal challenge, it may be tried by the Court itself, without the aid or intervention of triors (1 Archbold, 184. 1 South. Rep. 364 ) If the facts are admitted, but are deemed insufficient, the Court adjudges on them, and either quashes the array, or overrules the challenge.
      If the array be quashed qs to the Sheriff, a new venire shall be awarded to the Coroner; if quashed as to the Coroner, then the venire is awarded to persons appointed by the Co.urt for that particular purpose, called Elisors^ (See ante, 32,) to whose array no challenge is allowed. (Co Lift 158.) If the array be not quashed, the party may then make his challenges to the polls, (1 Archbold, 184,) as was done in Hesketh v. Braddock, (Burr. 1847,) and in Wooddeson's precedent given in this note.
      A principal challenge to the polls, is tried by the Court witlymt the aid, or intervention of triors.
      
      If the challenge te the polls he to the favour, it is thus tried: If two jurors have been already called, and take the box without challenge, they shall try the challenge ; if not, the Court appoint two indifferent persons to try it, and who are thence named triors. If the triors try one juror, and he is found indifferent, he and the two triors shall try the next. (Co. Litt. 158. 1 South Rep. 712 1 C. H. Recorder, 185 4 id. 81.) The following oath is previously administered to those who try the challenge : “ You shall well and truly try whether J S. (the juror challenged) stands indifferent between the parties to this issue ; so help you God.” See the form in a criminal case, (1 C. H. Recorder, 185. 1 Salk. 152.) More than twe 
        triors or two jurors, cannot be sworn to try a challenge, except in the single case before mentioned. (1 South. Rep. 72.)
      The juror himself may be examined as to the matter of challenge, provided it do not tend to bis dishonour or discredit. (Co. Litt. 158. 1 Salk. 153. 19 John. 115.)
      The causes of favour are infinite, and with regard to all cases of challenges to the favour, in the emphatic language of Lord Coke, “ The rule of law is, that the juror must stand indifferent, as he stands unsworn,”
      One called as a juror on a trial for murder, offered an excuse, that though not a quaker, he had determined never to consent to a verdict of guilty, which involved the life of an individual. He was challenged to the favour, by the Dist. Attorney, tried, and found not indifferent. (1 C. H. Recorder, 185-6.)
     