Lee v. Peter

Dorsey, J.,

delivered the opinion of the court.

The object of the 9th section of the act of assembly of 1797, ch. 87, was to give to the parties, plaintiff and defendant, each the privilege of striking from the list of twenty jurors, four of the jurors, against whom no cause of challenge could be established. In express terms, it saves to the parties the unimpaired enjoyment of the right of challenge. It is, consequently the duty of the court, when required so to do, to extend to suitors the full benefit of both these privileges. Such is manifestly the policy and intent of the act of 1797. Each party is authorised, without any cause of challenge, for reasons confined to his own bosom, to strike from the list of twenty jurors, the four persons whom he is least willing should sit in judgment upon his rights. To secure the full enjoyment of this valuable franchise, it is manifest that the panel, before it is stricken from, should present twenty names beyond the reach of challenge. Should a suitor be required to strike from twenty, against some of whom he believes he has ground of challenge, and is unwilling that they should sit as judges in his ease, he has not the free and uncontrolled power of striking, which the legislature designed to grant him. If he conceives he has a principal cause of challenge, he cannot, perhaps, safely rely on his ability to prove it to the satisfaction of the court. If a challenge to the favor, it might be unsafe to speculate on what would be the opinion of the triers. To avoid all risks, therefore, he might be induced to strike off those whom he believes he has cause to challenge; or, if relying on the sufficiency of his contemplated challenges, he strikes from those to whom they are inapplicable, upon the challenges being adjudged insufficient he may leave upon the jury, the four individuals whom, of the whole twenty, he would originally most anxiously have desired should be stricken off, And the reason for such desire, perhaps, may be doubled by the increased prejudice resulting from the causes assigned for challenge.

By the denial of the exercise of the right claimed by the appellant, at the time it was insisted on, the party, in effect, may be deprived of all the benefit in striking the jury, which it was the intention of the act of assembly to confer upon him. We think, therefore, that the county court erred in refusing to hear and determine the causes of challenge to the polls, made by the plaintiff below, until he had stricken the jury; and for that reason reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.