
    PECK, ET AL. v. THE FREEHOLDERS OF ESSEX.
    1. In Error to a Circuit Court from the Supreme Court, the Justice of the Supreme Court, who tried the cause below, is not disqualified from sitting, on the hearing of the cause in Error.
    2. In a suit brought by the Board of Chosen Freeholders of a County in this State, against a late county collector and his sureties on his official bond, it is not a good gro.und of challenge to the Justice of the Supreme Court, presiding at the trial, that he is an inhabitant of the county, owner of land and other taxable property therein, and liable to be assessed and taxed within the same.
    3. The interest, which will disqualify a Judge, under the act of Feb. 24th, 1820, Elm. Dig. 263, must be direct and immediate; and not remote and contingent, such as a mere liability to, or possibility of, future taxation.
    4. So, in such action, it is not a good ground of principal challenge to the array or to the polls, that the sheriff and jurors are inhabitants of the county, and owners of land and other taxable property therein.
    5. In a suit brought by the Board of Chosen Freeholders of a County, the collector of such county is a competent witness in the cause.
    6. Parol evidence is competent and sufficient to prove that a person acted as Director of the Board at a particular time, and was, in consequence, authorized to sign an order on the county collector.
    In Error to the Circuit Court of the county of Essex.
    This was an action of debt, originally brought in the Circuit court of the county of Essex, by the Board of Chosen Freeholders of that county, against Aaron Peck and his sureties, on the official bond given by him as county collector.
    The cause was tried before the Chief Justice in October, 1841; and a verdict and judgment having been rendered for the plaintiffs below, the judgment was removed into this court by writ of error.
    The defendants below challenged severally, in writing, the judge holding the court, the array, and one of the jurors. . Demurrers to the challenges and joinders therein were respectively filed. After argument the demurrers were sustained and the challenges overruled.
    Objections .were made to the sufficiency of the proof given of the execution of the bond; and to the competency of several of the witnesses offered; which objections were overruled, and the testimony admitted. To the opinion of the court, upon these questions, bills of exceptions were taken by the. defendants below.
    The causes of error, in overruling the challenges; in admitting the controverted testimony; as well as the nature of the challenges, and bills of exceptions, appear in the following:
    
      ASSIGNMENT OE ERRORS.
    Afterwards, to wit, in the term of November, 1841, of the Supreme Court of Judicature of the State of New Jersey, come the aforesaid plaintiffs in error, by their attorney, and say, that in the record and proceedings aforesaid; and also in all the matters referred to, recited and contained in certain bills of exceptions; and also in giving the verdict and judgment aforesaid, there is manifest error in this, to wit:
    1st. Because it appears by the record aforesaid, and the bill of exceptions first taken in said cause, that when the said cause was called on for trial, at the October term, in the year aforesaid of the circuit court, in and for the county of Essex, before his honor Joseph C. Hornblower, a judge of said court, the said plaintiffs in error, who were defendants in said circuit court, challenged in writing the said Joseph C. Hornblower, because he is an inhabitant of the county of Essex, and owner of lands, tenements and hereditaments, and other taxable property within said county ; and liable to be assessed and taxed for, and bound by law, to contribute towards the expenses of suit, if costs be awarded, and adjudged to the defendants therein ; and that the debt demanded by the plantiffs in their declaration in this cause, of and from the defendants, if recovered and received by the plaintiffs, will be recovered and received to and for the use and benefit of Joseph C. Hornblower, in common with the other owners of taxable property and estate, inhabitants in said county; and that the said Joseph C. Hornblower, was interested in the event of the said cause; to which challenge the said The Board of Chosen Freeholders of the county of Essex by their attorney demurred ; and the said plaintiffs in error joined in demurrer; and the said judge sustained the said demurrer, whereas he ought to have overruled the same, and sustained the said challenge.
    2ndly. That the challenge to the array should have been sustained because the sheriff by whom the jury had been returned, had the same interest as the judge, in the event of the suit.
    3rdly. Because the challenge to one of the jurors should have been sustained, he having the same interest, in the event of the suit, as the sheriff and the judge.
    
      4th. The fourth error assigned, was not argued before the Court, and is omitted.
    5th. Because it appears by said record and proceedings and the bill of exceptions fifthly taken in said cause, that the said defendants in error called as a witness, on the trial of said cause, James W. Wade, then and still being the county collector of the county of Essex, and who was one of the Board of Chosen Freeholders for said county for the year eighteen hundred and thirty-seven, and eighteen hundred and thirty-eight, ending-in May of the last named year; and thereupon the said plaintiffs in error objected to his admission as a witness, on the ground that he was interested in the event of this suit, but the said circuit court overruled the objection, and ordered the witness sworn : whereas the said court ought to have sustained the said objection and excluded the testimony of the said James W. Wade.
    6th. Because it appears by the said record and proceedings and the bill of exceptions lastly taken in said cause, that the said James W. Wade being sworn, the defendants in error by their counsel proposed to him the following questions: “Who acted as director of the Board of Chosen Freeholders of the county of Essex, on the twenty-fifth day of March, A. D, 1839?” To which question the said plaintiffs in error by their counsel objected, on the ground that the minutes of the said Board ought to be produced,'and given in evidence to prove that fact; and thereupon the said circuit court overruled the said objection and allowed the said question to be put and answered : whereas the said court ought to have sustained the said objection and disallowed the said question.
    7th. The common error.
    When the cause was moved at the present term of this court, the counsel for the plaintiffs in error interposed a challenge to the competency of the Chief Justice to sit and hear the argument, on the ground that he had already expressed an opinion upon the matters in question, while presiding in the circuit, on the trial below. After argument the court unanimously overruled the challenge.
    
      It. Van Arsdale, and A. Whitehead, for the plaintiffs in error.
    
      The errors will be argued in the order in which they have been assigned.
    FirsL, The challenges to the judge, the array, and the jurors should have been sustained. The judge who held the court; the sheriff who returned the jury, and the jurors themselves, were all interested in the event of the suit. The same ground of objection lies to each. The degree of interest is immaterial— though minute, still it is certain ; according to the event of the suit, taxation in the county of Essex is to be increased or diminished. The facts are confessed by the demurrer, to wit: that if the debt demanded be recovered and received, it will be for the • benefit of the judge, sheriff and jurors, as well as for the benefit ff the Board; and that the judge, sheriff and jurors, were interested in the event of the cause.
    In a suit against the inhabitants of a county, it has been held ¿hat the action must abate because the writ was sued o.ut of the Common Pleas of that county, and tested in the name of a judge, an inhabitant of the county, who was a party. Hawks v. Inhabitants of Kennebeck. 7 Mass. 461.
    When a statute gave one moiety of a penalty for violating the Lord’s day to the inhabitants of a township ; it was held that a justice of the peace, who was one of the inhabitants of that township, was interested in the prosecution, and could not, therefore, receive the complaint, and sit as a judge, in an action for such penalty. Pearce v. Atwood, 13 Mass. 324.
    Ho man shall be a judge in his own cause; and the same rule equally applies to a juror. In the case of Hesketh v. Braddock, 3 Burr. 1847, challenges to the array and to the polls were held good, because the sheriff and the jurors were members of a corporation, and the corporation was entitled to one-third of the penalty, for which the action was brought.
    The Board of Chosen Freeholders is a body corporate, and represents the county ; it holds all the property of the county for the use and benefit of the county. Elm. Dig. 66, pl. 1. Ib. 71, pl. 35. These officers are mere trustees and the inhabitants are the real parties. This case cannot be distinguished, by the supposed nature of the corporation, that it does not include all the inhabitants. The substance of the objection does not lie to the form of the incorporation, but the cases all apply to the question of interest. '
    “ The Board of Chosen Freeholders,” &c. is really the name by which the inhabitants of the county are incorporated.
    Thus in the case of a witness; if he be substantially, though not nominally, interested in the event of the suit, he will be excluded. This was a case of an action on a policy of insurance, in the name of the brokers, but for the benefit among others, of the person offered as a witness; he was held incompetent; and that a release did not render him competent, being still liable for the costs. Bell v. Smith, 5 B. & C. 188. 11 E. C. L. Rep. 198.
    The inhabitants of a town or parish are not admissible, as witnesses, in a suit in which such corporation or quasi corporation is a party. Rex. v. Woburn, 10 East. 395. Rex v. Hardwick, 11 East 578.
    To the jurors the objections apply with still greater force. See as to grounds for applying for foreign jury, Stryker v. Turnbull, 3 Caines R. 103. Bell v. Van Riper, 2 Pen. R. 510.
    A cause for a foreign jury is a good ground of challenge.
    In a qui-tam action where one moiety went to the poor of the town, it was held a good ground of challenge that a juror was an inhabitant. The relaxation of the rule, as to questions of interest, has never been extended to jurors. Wood v. Stoddart, 2 John 194.
    See also Phelps v. Hall, 2 Tyler 401. Mechanics and Farmers Bank v. Smith, 19 John. 122. Regina v. County of Wilts, 6 Mod. 307. 1 Yeates 480. The Inhabitants of Boston v. Tileson, 11 Mass. 468. Brown v. Corp. of London, 11 Mod. 285. Bac. Abridg. “Juries,” (E. 1 & 4.) Co. Lit. 156, 157. 2 Esp. 568.
    Our statute, Elm. Dig. 604, § 5, has removed the objection to the competency of witnesses, but does not extend to jurors, and therefore the common law rule still prevails as to them. That the interest be remote or contingent has never been applied to jurors; the question of interest, as applied to them, has never been relaxed.
    At common law, the judge could not be challenged. The challenge, as to him, is founded upon our statute; on which, as yet, no decision has been had. The words of the statute are, “ who shall be interested in the event of the cause,” Act 24th of Feb. 1820, § 1. Elm. Dig. 263. Any interest shown, however minute, disqualifies by force of these words ; and the question of necessity, even if valid and true as to the jurors, will not relieve the ease of the judge from the effect of the statute.
    But it is not a case of necessity. This suit may be brought, and a trial had in the Supreme Court; the cause may be sent down to another county; or, at any rate, may be tried in the county by a foreign jury in case of any difficulty under the statute regulating the venue.
    The case of a suit on a Treasurer’s bond is not analogous. The act 28th of Feb. 1820, Elm. Dig. 433, directs suits to be brought in the Supreme Court; and by implication, grants power to carry the suit into effect.
    The 5th assignment of error, relates to the admissibility of James W. Wade as a witness. The objection is not that he was an inhabitant of the county — that is taken away by the statute— but that he was interested, as Collector of the county of Essex, in the receipt and disbursement of the money, for which this action was brought. The Collector by law is allowed two per cent, on all moneys, which he shall receive and pay out to the order of the Board, Elm. Dig. p. 70, § 28. Such an interest incapacitates a witness. Austin v. Bradley, 2 Day 466. 1 Caine’s R. 379.
    The 6th assignment. The Court permitted this question to be put to a witness. “ Who acted as Director of the Board, &c., on the 25th March 1839?” The breach assigned on the Collector’s bond was, that the Collector did not pay over money according to an order signed by the Director. It became necessary to prove James W. Wade to have been director at the time laid. The best evidence must be produced that the nature of the case admits ; and the proceedings of a corporation must be proved by its minutes. Owings v. Speed, 5 Wheat. 420. Denning v. Roome, 6 Wend. 651.
    
      B. Williamson and J. Ohetwood for defendants in error.
    This is a-suit against a Collector and his sureties on his bond, and the first question is as to the right of the judge, who was an inhabitant of the county to sit on the trial of the cause. It is said that we have, by the demurrer, admitted his interest. Not so— this is a-mere inference from the facts, stated in the demurrer. The admission is merely, that the judge is an inhabitant of the county, and the owner of property liable to be taxed.
    It is admitted that the judge is not liable to a challenge at common law — only under the act of the Legislature. The challenge is not on account of partiality, Elm. Dig. 263, but because he was interested in the event of the suit. How interested ? He was not a corporator, nor a member of the Board. Not because he was an inhabitant, but because he was the owner of property liable to taxation, and if suit should be lost then might be called upon to contribute to a tax, to be levied to pay the costs consequent on such loss. But this was a remote probability. He may sell before the termination of the suit. If a liability to pay a tax constitutes a disability, how can a suit be brought on a Treasurer’s bond? How can any suit be brought in the courts, for the benefit of the state ? The law means a more certain, tangible interest.
    So with regard to jurors. It must be a certain, tangible interest that will absolutely disqualify and be the ground of a principal challenge. Many of the cases cited do not apply, because they refer to challenges to the favor, for some partiality.
    In the cases cited as to the incompetency of witnesses, they were all persons, inhabitants of townships, &c., and parties to the suit. Here the corporation is confined to the board. The inhabitants are not members of the corporation.
    The case in 3d Burrows is not law at the present day; it has been over-ruled by our own courts. It is not now an interest in the question, but an interest in the event of the suit, that disqualifies a witness or forms a principal ground of challenge to a juror.
    The case in 7th Mass, is founded on a plain constitutional provision of that state and is inapplicable. So the ease cited from 13th Mass.
    
    As to the cases that cestuis que trust cannot be jurors 'or witnesses, it is admitted when they have a direct interest.
    But the court will even over-rule a principle of common law, if necessary, rather than there should be a failure of justice. These jurors must have tried the cause from the necessity of the case. The suit was properly brought in that county, and in that court; and when issue was joined and the suit brought on to trial, must such a principle stop the cause, and absolutely prevent a trial ? The same argument applies to the challenge to the sheriff, for no one could have been substituted by the court, who would not have stood in the same position.
    In our own state it has been ruled that the interest arising from taxation is remote and contingent; and that an inhabitant of a township was a good witness in a suit against the township; and this before the statute. Overseers of Orange v. Overseers of Springfield. South 186. See also Chivers v. Brand, 1 Esp. 175. Rex v. Prosser, 4 T. R. 17. Commonw. v. Ryan, 5 Mass. 90.
    Next as to the alleged incompetency of Wade. The objection depends upon the mere contingency not only of receiving, but of paying out money, which might never happen. Thus the case cited shows it is a vested interest, and not a mere contingency that excludes a witness. Austin v. Bradley, 2 Day 466.
    The last error alleged concerns the proof that Wade acted as Director on the 25th March, 1839. It was not who was appointed Director, but who acted as director on that day that was to be proved; and parol evidence was clearly sufficient for that purpose.
   The opinion of the court, Nevitts J. dissenting, was delivered by

Carpenter, J.

I am clearly of opinion that the challenge to the judge, on the ground of interest, was properly overruled on the trial below. In an early case in this state, in a suit brought by the Board of justices of the county of Burlington, for the benefit of the county, against a late county collector, the then Chief Justice expressed his doubts as to the propriety of his sitting on the trial, being an inhabitant of the county whose interests were involved in the suit. The other two judges however declared their opinion, that the interest was too remote and indefinite to constitute an objection ; and the Chief Justice accordingly presided. Coxe’s Rep. 190. This case occurred before the act of 10th March, 1787, Pat. 254, by which the challenge to a judge was allowed and regulated ; and perhaps, before any act existed on the subject; but the principle appears to be sound and satisfactory in its application to the present case. In giving a construction to our present act, 24th of February, 1820, Rev. Laws, 688, Elm. Dig. 264, I am of opinion, that the interest which will disqualify a judge, must be direct and immediate, and not remote and contingent; such as a mere liability to, or possibility of, future taxation. Any other construction would be harsh, constrained and technical; and would, without any just reason, merely throw impediments in the way of suits, and unnecessarily embarrass the administration of justice.

The construction of a statute depends upon the apparent intention of the Legislators, to be collected either from the particular provision or the general context; from the mischiefs intended to be remedied, and the provision of the act for remedying them, “ Verba ita sunt irftelligenda ut res magis valeat quam per eat“ Ea est aeaipienda mterpretatio, quae vitio careat id est, which does not intend a wrong. And these benignant rules of construction seem to admit an extended application. Dwarris, 688, et seq., 9 Law Lib. A more particular exposition of, or reference to, these rules, seems unnecessary to show their applicability to this case. The court will not, without strong necessity from imperative words, adopt a construction, which might shut up the courts of law and cause the failure of justice. The necessity does not exist in the present case. It is a reasonable intendment upon the words of this statute, that the interest to disqualify a judge should, if minute, at any rate be direct and immediate. The necessity of the case will warrant such construction ; in order that, after a suit has heen properly brought in a competent court, an issue found, and the cause stands ready for trial, the suit may not at this stage be stopped, and all further progress in the recovery of rights be prevented.

The challenges to the array and to the polls, although depending upon common law principles and not upon the construction of a statute, seem to stand upon much the same ground. The reasoning already expressed will in a great measure apply to them. Challenges to the favour, as respects either the array of the sheriff, or the individual jurors, stand upon a different footing, and most depend upon the particular circumstances of each case. The effect of the circumstances, as creating a bias or partiality in the officer or the jurors, will be considered by the triors ; and such weight given to these circumstances, as the particular case will warrant. The general rule is, that jurors must be omni exeeptione majores; but the application of this rule to each particular case, where the partiality is not apparent, must be left to the sound discretion of the triors. Very slight grounds have been held sufficient to raise a challenge to the favor, and to go before the triors. Thus, in an action against a banking company, that the juror was a drawer or endorser of a note, and dependent upon the bank, for favor, triors found that he was not indifferent. It has been held that this was no ground of error. The Mechanics and Farmers Bank, &c., v. Smith, 19 John R. 115.

But in regard to principal challenges, it must be some interest, not in the question but in the event of the cause, that will be a good ground to set aside the array or disqualify the juror — an interest certain, tangible, direct; not remote or contingent. Every fine to the use of the State may affect the. interest of its citizens, as it may lessen the public taxes; bnt it is not the mere possibility of slighter taxation with no direct, immediate, legal, corporate or individual interest, that can be the ground of a principal challenge. These challenges are not based on the ground, that the persons challenged are members of the corporation, by whom the suit is brought, — as parties to the record. It is, that they, being liable to taxation, are therefore interested. These public corporations; such as counties, townships, &c., are hut quasi corporations, dependent upon public will; the inhabitants, in general, not deriving any personal or private rights under the act of incorporation ; their object being, not to grant private rights, but to regulate the manner of performing public duties. Independent therefore of statute, the inhabitants when not personally and individually interested, are held competent witnesses in all cases, in which the rights and liabilities of the corporation only are in controversy. Falls v. Belknap, 1 John R. 486. Bloodgood v. Jamaica, 12 John R. 285. Schenck v. Corshen, Coxe 189. Rex v. Prosser, 4 T. R. 17. Orange v. Springfield, 1 South 186. The remarks of Kirkpatrick, C. J., in delivering the opinion of the court in the last mentioned case, in regard to the interest of a witness, are directly applicable to the case of a juror. “ All the interest, which an inhabitant of a township can have in a question like this, arises from his liability to taxation. Now it is clear that this interest is not immediate and certain, but remote and contingent only. The pauper may die or find other means of support, or the inhabitant may remove himself from the township and never become responsible. It is not a liability arising ex delicto, as in the cases of hue and cry and the not repairing highways; nor is it a direct, personal liability, as in actions of debt on amercements, imposed by way of punishment, as well as satisfaction: indeed, it is not even a liability, depending immediately upon this judgment: but it arises upon sundry contingencies to take place after the judgment, and which may or may not take place, the judgment notwithstanding. And whatever may be gleaned from the ancient books, to the contrary, it is very certain, that ever since the case of The King against Bray, the Mayor of Tentagin, decided in 1736, and repeated in Hardwick’s cases, 350, the course of decision has taken another direction ; and remote, uncertain and contingent interests have been made to go to the credit only, and not to the competency, of witnesses.” So here, the supposed interest is but the remote probability or rather possibility of being called upon to pay a tax. It is clear that this interest, if it can be so called, is not immediate and certain, but remote and contingent; and which, if it can form'the ground of challenge at all, can go only to the favor — as in the case of a witness, it can go only to his credit and not to his competency. I am of opinion that the demurrers to these challenges are also properly sustained and the challenges overruled.

The next exception urged by counsel, was to the competency of James W. Wade, the county collector, to be a witness in the cause. The interest which was supposed to disqualify him, it is argued, arises from the allowance to him of two cents on every dollar for all tax and other monies, which he shall receive and pay to the order of the corporation. Elm. Dig. 70, pl. 28. It is not on the monies of the corporation, which the collector may receive and account for, or pass over to his successor, tli.it this allowance is made. It is on such as he shall also pay out on the order of the corporation, to be signed by the Director for the time being. It is evident that this is not a direct, certain, vested interest; but a contingent one, depending upon circumstances which may or may not occur; and, in my opinion, goes only to the credit and not to the competency of the witness.

The next exception was to the proof, that James W. Wade acted as Director of the Board, on the 25th of March, 1839. The law requires the collector from time to time to pay the money, by him received, to the order of the corporation, signed by the Director for the time being. Elm. Dig. 69, pl. 26. The nonpayment of money on such order, having been assigned for breach in this action, it became necessary to prove Wade to have been at that time Director. The counsel for the defendants in error proposed to the witness the following question. “ Who acted as Director of the Board on the 25th of March 1839?” The objection is, that the minutes of the Board ought to have been produced, and given in evidence to form that fact; and that parol evidence was not competent and legal. The evidence was not offered to prove the official action of the Board, which would be found recorded on their minutes. It was to prove that James W. Wade, at the time in question, acted as Director; that he was then defacto such public officer, and authorized to sign the order on the collector. I am of opinion that the question was legal and that parol evidence of the said James W. Wade having acted as such Director was sufficient.

Hevitts, J.,

dissenting. It is a clear principle of law, as well as of natural justice, that every party litigant is entitled to have his cause tried by an impartial and disinterested court and jury ; by men, who are omni exceptione ma/jores. So strong and irresistible is this principle, that it was declared in Lord Hobart’s time, “ That an act of Parliament against natural justice, as to make a man a judge in his own cause, is void in itself for Jura naturae sunt immutabilia,; for they are Leges Legum.” Hobart’s R. 87. And Lord Holt refers to a case, where the Mayor of Hertford was laid by the heels, for sitting in a cause wherein he himself was lessor of the plaintiff; though, by the charter, he was the sole judge of the court where the cause could be tried. Salk. 201, 396.

This principle of the common law is so consistent with our sense of right and propriety, that it would seem to require no confirmation by legislative enactment; yet from some cause our own legislature has deemed it proper to enact, “That no justice or judge, who shall be interested in the event of a cause depending in court, shall sit in judgment upon the trial or argument of any point in controversy in any such cause.” Elm. Dig. 263.

This statute would seem to define with sufficient clearness the boundary of judicial competency, so far as the question of interest may be involved; yet a difficulty arises, as to the mode of determining that question. If presented upon the trial, it must be submitted to the decision of the very person against whom the objection is urged. Neither the common law, nor our statute has prescribed any other mode, in which the question of interest in a judge is to be settled. As this case however does not depend wholly upon the challenge made to the judge upon the trial, I do not feel called upon to express any decided opinion either as to the form or substance of the challenge, or the judgment which was pronounced upon it.

I proceed therefore to consider the demurrers to the challenges to the array, and to the individual jurors. The same reasons, which may be urged against the sheriff who returns, are equally operative against the jurors, who may be returned for the trial of a cause. And very many exceptions may be urged to both, that are in no wise applicable to witnesses. For the faithful and satisfactory administration of justice, the sheriff and jurors are to be not only above all exception, but above all suspicion of bias or prejudice. No man will rest content with a verdict, if he has the slightest ground to suspect, that it is founded in ill will or uudue favor and partiality. It would be impossible to enumerate every cause, which will amount to a principal challenge, either to the sheriff or jurors. Among them however it may b'e proper to mention, that if they or either of them have an interest in the question to be tried, as if they have land depending upon the same title, they are incompetent and it is a ground for a principal challenge. Or, if either of them have an action of debt depending against him by either party to the suit, it is likewise a ground for such challenge; Coke Lit. 156. So, if they be of kin to either of the parties, Id. 57. So, if they are liable to the distress of either party; or interested in the cause; or have declared their opinion; or acted as arbitrator, or served before as a juror in the same matter; or are liable to contribute to the expenses of the suit. In all such cases they are subject to a principal challenge. Bul. 306, 307; Salk. 648. As all these causes carry with them prima facie marks of suspicion, either of malice or favor, they constitute grounds of principal challenge, 3 Blac: Com: 363. And that able commentator remarks, “ we cannot but admire how scrupulously delicate, and impartially just the law of England approves itself, in the constitution and frame of a tribunal thus excellently contrived, for the test and investigation of truth ; in its caution against all partiality and bias, by quashing the whole panel, if the officer returning it, is suspected to be other than indifferent; and in repelling particular jurors, if probable cause be shown of malice or favor to either party.” 3 Blac. 367. In Hesketh v. Braddock, 3 Bur. 1847, Lord Mansfield said, “There was no principle in the law better settled, than that any degree of interest, even the smallest, in the question depending, is a decisive objection to a witness, and much more to a juror and the officer by whom the jury is returned. That the law has so watchful an eye to the pure and unbiased administration of justice, that it will never trust the passions of mankind in the decision of any matter of right. That the minuteness of interest will not relax the objection, for degrees of influence cannot be measured; no line can be drawn, but that of total exclusion of all degrees whatever.”

Whatever may be the present rule, touching the competency of a witness, who may have an interest in the question, the rule laid down, in the case last cited, has never been relaxed in regard to the sheriff or jurors. Any interest in them, whether it be an interest in the question or in the event of the suit, whether it be a direct and certain, or a remote and contingent interest will equally exclude them upon a principal challenge from any participation in the trial or decision of a cause. Such I take to be the general and well established principle of law, and entirely consistent with the principles of natural justice and common sense. It remains then to inquire whether the sheriff and jurors in the case before us, had such an interest; or whether they are within any exception to such rule.

The Board of Freeholders, who are the plaintiffs below, are the trustees of the inhabitants of the county. By law they are erected a body politic and corporate, with power to acquire, purchase, have and hold lands, goods and chattels, in trust to and for the use of their respective counties. They have power to vote, grant, assess, and raise money for the use of the inhabitants under certain specified restrictions and regulations; and when raised, to expend, and disburse them, either in payment of debts due from their county, or in the promotion of such objects and purposes of a public nature, as are designated by law, and in which the taxable inhabitants of the county have, or are presumed to have, a common interest. All the property real or personal, which may be acquired and held by the corporation, is held in trust for the inhabitants, and for their benefit. The plaintiffs in this suit claim from, the defendant a large sum of money; and if recovered, it will be held or appropriated- by them for the benefit of their constituents; and if they fail in such recovery the costs of the suit must be paid out of the common purse. If that is exhausted, new exactions must be made upon the taxable inhabitants, to meet the demand. Can it be said therefore, that the inhabitants of the county of Essex have no interest in this suit ? I think not. They have an interest, in proportion to the amount of money involved in the suit; and it is not merely a remote and uncertain interest, but a direct and certain one. It is no answer to say, that they may sell their estate, and remove from the county, before they may be called upon by law to make their contribution. If the effect of a judgment was only a probability of future taxation, that effect operates in presentí by appreciating or depreciating the value of their estates. The interest may be small, it is true, but it nevertheless exists, and in proportion to the property held by each inhabitant. Suppose the trustees of an incorporated religious society were to bring a suit against their treasurer, to recover the fund held by him, to defray the support of their minister, and repair the church or parsonage ; would it be pretended that a member of the society, whose property was liable to contribute to make up the deficiency in case of a failure to recover, would be legally competent to return the jury, or to serve as a juror in thetrial of thecause? And the case before us does not differ from that in principle.

The books to which I have had access, abundantly support the view, I have taken of this question.

Where a parson of a parish is a party to a suit, and the right of the church cometh in debate, a parishioner is not a good juror. It is cause of principal challenge, Coke Lit. 157. If the issue concern the city or corporation, which makes the panel, and any of their body go on the jury or any of kin to them, it is a good cause of challenge; Hobart’s R. 37. If a body politic or corporate bring an action that concerns their body politic, and a juror be of kindred to any of that body, although the body politic can have no kindred, yet for that those bodies consist of natural persons, it is a good cause of principal challenge. Coke Lit. 157; Woods Inst. 614; 1st. Saun. R. 344. So in Stryker v. Trumbull, et al, 3 Caine’s R. 103, Kent said, “ That a town contributing to the support of a suit is good ground for allowing a foreign jury.” In Wood v. Stoddard, 2 John. R. 195, where half the penalty sued for, which was less than §100, went to the use of the poor of the town, and jurors from that town were summoned to try the cause, and rendered a verdict for the plaintiff, the court said in reviewing the case, “ that the relaxation of the rule as to questions of interest, has never been extended to jurors;” and it reversed the judgment. In Hawkes and others v. Inhabitants of Kennebeck, 7th Mass. R. 461, it was held “ that an action against the inhabitants of that county could not be sued before the common pleas of the county, for every judge and every juror as interested in the event of the suit, might legally refuse to serve.”

I know of no case of authority where a contrary doctrine has been clearly held. The case of The Board of Justices of Burlington v. Fenimore, collector, Coxe R. 190, was decided before the passage of the act to promote the impartial administration of justice, if it can be said to amount to a judicial decision at all. It would seem from the report of that case that the Chief Justice, who was an inhabitant of the county, himself raised the objection ; but his associates inclined to the opinion, that his interest was too remote and contingent to exclude him. It does not appear that the question was seriously raised by the parties, or argued by counsel. I attach but little importance to the case; and I can find no other case, where it was ever held, that even a remote and contingent interest would not disqualify a juror. A witness was formerly held to be incompetent to give testimony in a suit, wherein his own county or parish was a party. Sayer’s R. 179. But, in regard to witnesses, the rule was greatly relaxed before the statute of 1799, which declared them competent; and for the reason, that a jury could judge of the credit, to which they were entitled. But this will not apply, to jurors, as there is no tribunal provided to test their credit and consciences, but the established rules of law, which determine their qualifications.

It was urged in the argument, that if the Freeholders of a county cannot serve in the capacity of sheriff and jurors, in cases where their respective counties are interested, there will often times be a failure of justice. It is true, that the law of necessity is sometimes resorted to, to prevent the failure of justice ; as in criminal cases, where the fine imposed goes into the county or state treasury, or in actions upon recognizances, and perhaps in some other cases : there, notwithstanding the interest, the challenge will not prevail. But I find no such necessity to exist in this case, and it will be quite time enough to yield a safe and just, principle, when a case of clear and absolute necessity shall be presented. And even in such cases, it would perhaps be much better to resort to the legislature for aid, than to break down the principle by judicial discretion. The legislature have, in some instances, directed certain actions for penalties to be brought before the courts of a particular county, although the penalty recovered will go into the county treasury, for the use of the county. In Commonwealth v. Ryan, 5th Mass. R. 90, Chief Justice Parsons said, “there was no good reason, why the legislature might not constitutionally provide, that a remote and small corporate interest should not be a legal objection to a juror trying a cause, in which a fine may be imposed on a defendant, for the use of the commonwealth.”

I am of opinion that the challenges to the array, and to the polls, in this case, were well taken ; and that the court erred in sustaining the demurrers to them, and for that cause the judgment should be reversed.

I deem it unnecessary to consider in detail, the other emus assigned j they are, in my opinion, not well assigned and ought not to be sustained.

Judgment affirmed.

Note. — This case was subsequently removed to the Court of Errors and Appeals, by writ of Error; and the judgment of the Supreme Court reversed, on the ground that the challenges to the judge, the array and the polls were well taken and should have been sustaiüed. Upon the other points, decided by the Supreme Court, no opinion was expressed by the appellate court.

Reversed, 1 Zab. 656.  