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Challenging Jurors.

principal challenge, but if a party wishes to make the objection, he must challenge the juror for favor; and then it must be submitted to the decision of triers, and if, under all circumstances, they find him indifferent, or in other words impartial, he will be admitted as a juror. The question, therefore, resolved into simples is, whether the court or triers must decide the question. If the court, then, upon the fact being established, the juror must be set aside. If the triers, then, after the establishment of the fact, they can look further and decide whether, under the peculiar circumstances of the case, the expression of an opinien to the contrary, notwithstanding, the juror is or is not indifferent or perfectly impartial; and as they find this fact, pro or con, they will admit him as a juror or set him aside.

The first of the elementary writers, who touches upon this subject, as far as I can discover, is Fitzherbert. He wrote in 1514, and his works, as is well remarked by Chancellor Kent, in his very able commentaries, "was for that period one of singular learning and utility." He lays down the law to be, that "If a juror says that he will pass for the plaintiff, this is not a cause for challenge, unless it should be found that he said this more for favor than for the truth of the matter." Fitzherbert, Ab. p. 202, fol. 37.

That the subject of challenges had been often and thoroughly considered and was well understood at this early day, is apparent from this work, which contains thirteen folio pages briefly put upon the subject.

Brooke, who wrote in 1573, says, "that if a juror has said twenty times that he would pass for one party from the knowledge he has of the matter and of the truth, he is indifferent; but if he said so from affection he has to the party, he is favorable." Brooke, Abr. p. 123, fol. 55.

Rolle, who was chief justice under the protectorate of Cromwell, the preface to whose work Sir Matthew Hale wrote, and who there speaks of him in the highest terms of commendation, winds up his eulogium with these words. "In short, he was a person of great learning and experience in the common law, profound judgment, singular prudence, great moderation, justice and integrity."

This great man has gone very extensively into this subject, and appears to have considered and collated every thing which the books then furnished. He lays down the law to be, "If a juror say that he will pass for the one party, this is good challenge for favor, if he said this in favor of him." 2 Roll. Abr. 7 H.b. 24. But if he did not say so in favor, but for the knowledge which he had of the thing in issue, this is not a good challenge for favor. Ib.

It is not a cause of challenge in a juror, that he said that he would pass for the one party, if it should not be found by the triers or the court, that he said this more from favor than from the truth of the matter. 2 Roll. Abr. 657. 20 H. b. 40. And in this all the court concurred.

If a juror promise one party to pass for him, this is not principal challenge, but for favor. 2 Roll. 655. 3 H. b. 38 b. So, if a juror

Challenging Jurors.

declare the right of one party, or say his verdict before hand, this is a principal challenge. 49 E. 3 Ib. 49. 1. But it seems this is to be intended that he said that he would pass for him. without regarding right. 1 Roll. 655.

If a juror said twenty times that he would pass for the one party, this is not principal challenge, for it may be that he thus spoke from the knowledge which he had of the thing in issue, and not from affection. 2 Roll. 655. 7 H. b. 25. 20 H. b. 40 Curia.

In Trials per Pais, p. 133, an ancient work, exclusively upon trials by jury, but one of so much learning and ability as to be a standard authority even at this day; it is laid down that, "If a juror says that he will pass for one party, because he knows the verity of the matter, this is no challenge: but if he says this for favor, it is a good challenge, if the triers find he spoke from favor and not from truth."

Sir Matthew Hale says, "That challenges to the poll for cause, are many as in other causes, which I shall not mention at large, because they are all gathered up by the Lord Coke, supra, Lit. p. 234; but shall mention such as more specially belong to capital causes.' 2 Hale's P. C. 272.

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As according to Hale, ALL the challenges to the poll for cause, (or principal challenges,) are gathered up by Lord Coke, it becomes necessary in order to ascertain the opinions of both of these great men upon this subject, to recur to the passages in Lord Coke thus referred


Upon recurring to Lord Coke, I find that the utmost length he goes in enumerating causes for principal challenges is to say, "That if a juror has given a verdict before in the same matter, or upon the same title or matter, though between other persons; or if he was the indictor of the plaintiff or defendant in the same cause; or if a juror hath been an arbitrator, chosen by the plaintiff or defendant in the same cause, and have been informed of or treated of the matters, this is a principal challenge, otherwise if he were never informed or treated thereof; and otherwise if he were indifferently chosen by either of the parties though he treated thereof." Co. Litt. p. 157 b, § 234. And even as it respects giving a verdict upon the same cause, (the most solemn way of giving an opinion,) he says, "But it is to be observed that I may speak once for all, he that maketh the challenge must show the record if he will have it take place as a principal challenge, otherwise he must conclude to favor." Ib.

Lord Coke, no where says, that the expression of an opinion is a cause for principal challenge. He goes fully into the examination of causes of principal challenge, and Sir Mathew Hale says, he has given all the causes for principal challenge. The conclusion then is a necessary one, that in Hale's opinion, the expression of an opinion was not a cause for principal challenge. If Lord Coke had been of opinion that a case of such frequent occurrence as the expression of an opinion was a cause for principal challenge, would he not have mentioned it; would he have gone on to say that giving an opinion as a grand or petit juror or arbitrator, would be a cause for principal

U. S. District Court.-Odell v. The Steamboat Washington Irving.

challenge; provided he was of opinion that giving an opinion in any case was?

To the authorities before quoted, I think may now be fairly superadded that of those two great oracles of the law.

Thus, then, as far as my researches have extended, and I have no doubt that I have quoted all of any authority who have touched upon the subject, all the standard authors upon the subject of the common law, hold one uniform language upon the subject; and certainly afford some ground for questioning the correctness of the position, that "All the elementary writers, with the exception of Chitty, lay down the proposition broadly, that if a juror has declared his opinion beforehand, it is a good cause of challenge."

That the venerable sages of the law whom I have quoted, three of whom were Chief Justices of England, did not know what the law was upon a point which must frequently have happened, is not to be presumed.

In the next article, I will proceed to the consideration of the more modern authorities.

U. S. District Court.

(Southern District of New-York.)

Before the Honorable SAMUEL R. BETTS, District Judge.




Where a collision occurs during the day-time, between a vessel close hauled and a steamboat whose course lay across that of the close hauled, which had been in full view from the steamboat, at a sufficient distance to have enabled the steamboat to have avoided her :Held, that the steamboat was prima facie in fault.

The steamboat is bound to show some improper act or omission in the close hauled, causing the collision, or that presumption will exist against herself.

Such defence must be set forth clearly and must be proved as laid.

Where the proofs are essentially different from the allegations the defence fails.

A steamboat justified a particular course in reference to a vessel close hauled, on the ground that the close hauled would not pursue a course hazardous and disadvantageous, if not impracticable to herself, which was sustained.

But such a navigation will not be inferred against the close hauled vessel, but must be proved when set up, and if not proved, the presumption is, that the close hauled would take care of herself and navigate to the best advantage.

When the course of a vessel close hauled was towards the shore: Held, that she had prima facie the right to hold on to her tack as close to the shore as is deemed judicious by those navigating her, and a steamboat having her in full view, and with time to stop and back or room to steer out of the way, is bound to use her facilities so as to prevent a collision, and has no right to proceed on the supposition that she will have room to pass between the close hauled and the shore.

Where a steamboat misjudged the navigation of a vessel close hauled, and was herself navigated on the supposition that the other would go about before reaching the point where they would

U. S. District Court.-Odell v. The Steamboat Washington Irving.

meet, and the close hauled held on and a collision took place; the steamboat was held bound to prove that the close hauled was misnavigated and should have gone about before; failing which proof, she was adjudged liable for the damages.

THE circumstances appear in in the opinion of the court.

W. J. Haskett and W. Q. Morton, for libellant.

Leveridge, for steamboat.

BY THE COURT.-The collision upon which this action is founded, occurred in Hell-Gate, in the day-time. The libellant's schooner was sailing eastward on the flood tide into the Sound, and the steamboat was running to New-York, crowding close in by the shore of Ward's Island, in what was regarded an eddy of the tide. The wind was N. E., and the schooner on her starboard tack from the Pot Rock, across towards Negro Point, and in plain view of the steamboat. The starboard side of the schooner and bow of the steamer came in collision.

Under these circumstances it is manifestly incumbent on the steamer to show some improper act or omission on the part of the schooner causing the collision, or it must be presumed that the steamer neglected to use in due time the means at her command, and which the law requires her to exercise to avoid it.

The excuse must be set forth clearly in the answer, and must be proved as laid, in order to protect the claimants.

In comparing the pleadings and proofs on this point, they are not found to be in harmony, and the difference is essential in its character. The answer imputes the fault of the schooner to her holding the starboard tack into the eddy tide across the bows of the steamer, and insists it was her duty to have gone about, as there was not room for her to go between the steamer and the land, and by running into the eddy tide, command of her would be lost. The argument upon this assumption of the facts is cogent, that the steamer had no reason to expect the schooner would attempt a navigation hazardous to herself, if not impracticable, and was accordingly rightfully continued on the course which would be proper, in case the schooner was managed according to the usual and safe method of navigating under those cir


There are two important particulars in this line of defence, not clearly made out by the proofs. First, that the steamer was actually in an eddy or slack tide at the time of the collision, and where for that cause, the schooner could not have been readily brought about on the other tack; and second, that there was not space sufficient between the steamboat and the shore for the schooner to pass, if she chose to take that course.

The officers of the steamboat had a right to act upon the presumption that the schooner would not be intentionally run in dangerous proximity to the shore, or where she would disable or embarrass her

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U. S. District Court.-Odell v. the Steamboat Washington Irving.

self in coming about, from the loss or the change of the current in the track the steamboat was pursuing. But if these impediments were not palpable, the schooner must be left to her course, and the steamboat must regulate her proceedings accordingly, leaving it to the judgment of those managing the schooner to determine the advantage or prudence of continuing her tack out of the true tide, and even to very close proximity to the land.

The law would, under circumstances of uncertainty or doubt in respect to those particulars, impose on the steamboat the duty of taking timely precaution so as to leave it safe for the sailing vessel to exercise her own volition in the choice of the expedient to be adopted. The schooner being close hauled was entitled to run out her tack and to hold it so long as she judged it advantageous or prudent, and if there was any uncertainty on board the steamer as to its direction or continuance, there was ample time, by stopping and backing her engine, or changing her course into the river, to have left space to the schooner to work out the manoeuvre as she might elect.

Upon the line of defence set up by the answer, there is clearly an inadequacy of evidence to establish a justification. The testimony produced on the defence has borne a tendency, if it is not in fact limited to that, to show that the accident was produced by the improper attempt of the schooner to come about on reaching the eddy tide. She is represented to have luffed up into the wind, so as to shake her sails, giving the steamboat to understand she was changing her tack, and which would naturally induce the steamboat to continue under way and on her course, when suddenly the schooner filled away and run in shore across the bows of the steamer, which had then approached so near as to be unable, by stopping and backing with all practicable despatch, to prevent the schooner being blown or drifted against her stern.

This line of defence is not within the answer: it is a most important deviation from it. The fault on this version of the case was in misleading the steamer by a false manoeuvre of the schooner, and allowing her to advance on her tack until it was no longer in her power to go astern of the schooner or lie back out of her way, whilst she continued out her starboard tack, and come round with the wind on the other quarter. This defence supposes such would have been the duty and course of the steamer in the exercise of a nautical judgment upon the course of the schooner manifesting an intention to continue on her starboard tack.

The court is not at liberty to pass upon the sufficiency of the proofs to sustain this line of defence. It is out of the pleadings, and accordingly not available to the claimants, nor brought within the legal cog

nizance of the court.

Upon the pleadings and proofs pertinent to them, it was manifestly the duty of the steamer to leave a free track to the schooner to run out her starboard tack; and she fails to prove herself at a point up to which it would be unsafe or improper for the schooner to continue the course she was seen to be running.

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