No. 3040.

Book 4, tit. 8, chap. 11, sec. 3, § 1, art. 1, 2.

The principal qualifications of jurors are, 1, That they be sui juris;

2, Of full age;

No. 3041.

3, Good and lawful men; that is, not of an infamous character, for a man whose oath could not be received as a witness, cannot be a juror;

4, Citizens of the United States;

5, Residents of the district, county, or other territory, over which the court has jurisdiction.

Art. 1.-Of the selection of the jury.

3040. The jurors for the trial of civil cases, are selected by officers designated by the statutes of each state; they are generally taken from among the electors for public officers, in such numbers as the laws require.

A writ called a venire facias, directed to the sheriff, commanding him to summon a certain number of jurors, is delivered to that officer in sufficient time to cause to be drawn the names of jurors, which are put into a box. By virtue of this writ he draws, with such officers as are authorized to act with him in this matter, the requisite number of jurors, summons them to attend court, at the time appointed for holding a term, and returns the venire to the court whence it issued, together with a list of the jurors summoned, which list is called the array, because the jurors summoned to attend court are arrayed or arranged on the panel; this latter word, signifying a schedule or roll, contains the names of the jurors summoned by virtue of the writ of venire facias, and annexed to that writ.(a)

Art. 2.-Of the challenge of the jurors.

3041. At this stage of the cause, after the venire has been returned, and before any juror has been

(a) See Co. Litt. 158, b.

No. 3042.

Book 4, tit. 8, chap. 11, sec. 3, § 1, art. 2.

No. 3043.

selected to try the particular case, either party may object to the whole panel or array of jurors; this objection or exception thus made to the jurors is called a challenge to the array. The principal causes for making this challenge are, that there has been some fraud, or some illegal act, in drawing or returning the panel, for which the whole is vitiated. When the causes of the challenge are established by evidence to the satisfaction of the court, the whole array is set aside, and no trial can be had until another panel has been returned.

But when no motion has been made to set aside the array, and the party has not done some act by which he waived his right to insist upon such a course, as by objecting to a particular juror who may be called to try his case; then the clerk of the court draws from a box, where all the names of the jurors have been put in separate slips of paper, the names of twelve of them. Each party has a right to challenge two or such other number as may be authorized by the local statutes, without assigning any reason whatever, and as many of the others as he has a lawful reason for objecting to; this is called a challenge to the polls. Those challenges which may be made without assigning any reason, are called peremptory challenges; those made for some legal reason, are challenges for cause.

3042. A challenge to the polls is an objection made separately to each juryman, as he is about to be sworn. Challenges to the polls, like those to the array, are either principal or to the favor.

3043.-1. Principal challenges are made on various grounds:

1. Propter defectum, that is, on account of some personal objection, as alienage, infancy, old age, or the want of those qualifications required by the constitution or legislative enactments.

2. Propter affectum, because of some personal, or

No. 3044.

Book 4, tit. 8, chap. 11, sec. 3, § 1, art. 3.

No. 3045.

actual partiality, in the juryman who is made the subject of the objection; on this ground a juror may be objected to, if he is related to the opposite party within the ninth degree, or is so connected by affinity; this is supposed to bias the juror's mind, and is a presumption of partiality.(a) One who has expressed a wish as to the result of the trial, (b) or who has the smallest interest in the matter to be tried, may be challenged for this cause.

3. The third ground for challenging to the polls, is propter delictum, or the incompetency of the juror on the ground of infamy.

3044.-2. Challenges to the polls for favor may be made when, although the juror is not so evidently partial that his supposed bias will be sufficient to authorize a principal challenge, yet there are reasonable grounds to suppose that he will act under some undue influence and prejudice. The causes for such challenges are manifestly very numerous, and depend on a variety of circumstances. The fact to be ascertained is whether the juryman is altogether indifferent as he stands unsworn, because, even unconsciously to himself, he may be swayed to one side. The line which separates the causes for principal challenges, and for challenges to the favor, is not distinctly marked.(c)

Art. 3.-Of the swearing of the jury.

3045. After the jurors have been selected, to the number of twelve, they are then to be sworn or affirmed. This is done by the clerk or prothonotary of the court, or one of his deputies, administering an oath or affirmation to each juror. The form of this oath or affirmation varies in different states, according

(a) Denn d. Hinchman v. Clark, Coxe, 446; McLellan v. Crofton, 6 Greenl. 307; 3 Day, 491.

(6) 4 Hargr. St. Tr. 748; Bac. Ab. Juries, E 5.

(c) Co. Litt. 147, 157, a; Bac. Ab. Juries, E 5; Bouv. L. D. Challenge.

No. 3046.

Book 4, tit. 8, chap. 11, sec. 3, § 2, art. 1.

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to the provisions contained in the statute, but it is generally "to try the issue joined between the parties, and a true verdict give according to the evidence." This oath or affirmation, it must be observed, is one of those promissory obligations which is binding only on the conscience, the violation of which cannot be punished as perjury.

§ 2. Of opening the case.

3046. The right of a party in opening the case, and the manner of making the opening, will be the subject of two articles.

Art. 1.-Of the right of opening.

3047. By opening a case is meant the act of beginning, or first addressing the jury, and stating the facts of the case. The right of opening is of great importance, because the party who begins will, if his opponent give any evidence, have the general reply, or last word to the jury, a privilege which powerful counsel can usually exercise with great advantage. The general rule is, that the party who alleges the affirmative of any proposition or issue in fact, should prove it, because a negative does not in general admit of the simple and direct proof, of which an affirmative is capable; and, therefore, the party who has to maintain or prove the only affirmative, or all the affirmatives, must begin to give the evidence, for, until that is done, the opposite party is not bound to answer; yet, cases may arise, where it is more easy to prove the negative; as if a defendant plead in abatement that another party contracted jointly with him, and that he ought to have been joined, and the plaintiff reply that the contract was not so jointly made, he might be able to prove the negative by producing and proving the defendant's separate undertaking to pay. It is an established rule that when the onus probandi, or burden of the proof of

No. 3048.

Book 4, tit. 8, chap. 11, sec. 3, § 2, art. 2.

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all the issues, is on the defendant, he is entitled to begin.(a)

But when there is one affirmative issue for the plaintiff to prove, and several other affirmative issues for the defendant to prove, then the plaintiff has the preference.(b)

Art. 2.-Of the manner of opening the case.

3048. In order to open his case to the court and jury understandingly, the counsel should, 1, be fully acquainted with the full extent of the plaintiff's claim, and the circumstances under which it is made, and of its justice and reasonableness; 2, know at least the outline of the evidence by which the case is to be supported; 3, be well acquainted with the legal grounds and authority in favor of the claim, or of the proposed evidence; and, 4, anticipate the expected defence, when that can be done, and be able to state the grounds on which it is futile, either in law or justice, and the reason why it ought to fail.

1. Of the statement of the plaintiff's claim.

3049. In making the statement of the plaintiff's claim, the counsel should state all the facts which the form of the declaration has embraced, because, if he omit some of them, besides the charge of unfairness to which such course might subject the counsel, it might mislead the judge, whose attention would not be par

(a) In England there are some exceptions to this general rule, in actions for libel, slander, malicious prosecutions, and other actions for injuries to the person, in which cases the plaintiff has a right to begin and conclude, although there may be affirmative pleas. It is deemed but fair and reasonable that in such cases the plaintiff who brings an action, should be heard first to state his complaint. Carter v. Jones, 6 Car. & Payne, 64; S. C. 1 Moo. & Rob. 281. And in Arkansas, in an action on a penal bond, the plaintiff has a right to open and close, although affirmative pleas have been filed. Sullivan v. Rearden, 5 Pike, 140.

(b) Jackson v. Hesketh, 2 Stark, 521; Cotton v. James, 1 Moo. & Malk.