
    GENERAL COURT,
    MAY TERM, 1792.
    
    John Shane against John Clarke and others.
    THIS was an action for an assault and battery and false imprisonment. Pleas, non cul and son assault demesne. Verdict for the plaintiff; damages, 100/. 7s. 6d. current money.
    Motion by the defendant for a new trial, and the following reason was filed, viz.
    That Cornelius Howard, one of the jurors empannelled and sworn to try the issues in this cause joined, was a free male person, within this state, above 18 years of age, and not a quaker, menonist or dunker, on the 31st of October, 1777, and hath so continued ever since, until .this time, and that the said Cornelius Howard hath not taken the oath of fidelity to this state, directed by the act entitled “ An act for the better security of the government,” and that this fact did not come to the knowledge of the said defendants, or their counsel, until since the rendering of the verdict in this cause.
    
      
      Mason, in support of the motion.
    It is a general principle, that wherever a verdict has been given by persons disqualified to pass one, it is no verdict, and the court M . . will set it aside. A distinction is to be made where the cause of challenge comes to the knowledge of the party before or after the jury are sworn; for if there was good cause of challenge to one of the jurors, but was not known, and consequently could not be taken advantage of at the trial, the court will grant a new trial. 5 Bac. Abr. 245. 7 Mod. 54. 11 Mod. 119. 21 Vin. 274, 275.
    
    The juror being a non juror is a cause of challenge,, and, therefore, a good reason for a new trial; for if one of the jurors be disqualified, it is the same as if there had been no juror, and the verdict would only be by eleven jurors. Hob. 75. pl. 97. 3 Bac. Abr. 273. A distinction is made between statute and common law disabilities. The statute of Anne requires a jury to be summoned de corpore comitatus. Our act of assembly says, that no person shall serve as a juror if he have a cause at issue. Why should the statute say this was good, cause of challenge unless it was absolute ? Where one of the jurors returned on the panel did not appear, but when called his son answered and was sworn on the jury, the court granted a new trial. 2 Barnes, 362. 366. 5 Bac. Abr. 245.
    
    
      Key, contra.
    On this subject there are no decided cases in our courts; we must, then, examine the laws of England, and argue by analogy. The law is clear that aliens, infants, outlaws, and persons convict, are disqualified from serving as jurors. But none of these disqualifications will vitiate a verdict; they are only good cause of challenge. Anciently the array might be challenged for want of hundredors, but if the challenge was not made before the jury was sworn, he was concluded; so that the verdict would be good unless the challenge was made intime. 21 Vin. 219. 222, 223. It is objected in this case that the cause of challenge was unknown at the time the juror was sworn. But in answer to this, the party had an opportunity to examine the panel and object, and if he had any cause to suspect the juror was disqualified, he might have examined him on the voire dire. 3 Bl. Comm. 361. & Bac. Abr. 267. It is a rule of law that no juror can be challenged without consent, after he has been sworn. 3 Bac. Abr. 266. The king cannot challenge after the juror has been sworn. 21 Vin. Abr. 274. The court will not grant a new trial because one of the jurors was related to one of the parties, because the other party who might have challenged ought to suffer for his neglect. 5 Bac. Abr. 245. 1 Vent. 30. Sty. 100.
    
   The Court.

(Chase, Ch. J. absent.)

Let there be a new trial. A non juror is totally incapacitated to serve on a jury.  