Wilcox v. School District No. 1 in Lempster

Woods, J.

In the case of Amherst v. Hadley, 1 Pick. Rep. 38 , it appeared upon the face of the venire and the officer’s return, that a juror was drawn more than twenty days before the court, contrary to the stat. 1807 chap. 140 § 4, but the fact did not come to the knowledge of the party *305 until after the verdict was rendered against him. The court held that this was no cause for setting aside the verdict upon motion, and that it would not sustain error.

A similar exception was taken in the case of State v. Haskell, 6 N. H. Rep. 352 , in which the court say, “ This would have been a sufficient exception against that particular juror, if it had been taken before the trial. But it is now too late. The venires are uniformly returned into court, and any party can have access to them, and examine the returns, before his case comes on for trial. If he omits to do this, he must be considered as waiving an exception of this character. If the exception was of a nature that he could not have availed himself of it at an earlier stage, by the exercise of due diligence, it might be otherwise; but that is not the case here; and the party cannot be suffered to lie by, take the chance of a verdict, and then avail himself of an objection to a juror, the evidence of which was on file with the clerk prior to the trial.”

Alienage is a ground of challenge to a juror; and if a party has an opportunity of making his challenge and neglects it, he cannot afterwards make the objection. King v. Sutton & a., 8 Barn. & Cres. 417.

In Rollins v. Ames, 2 N. H. Rep. 349 , one of the jurors had acted as a magistrate to take the plaintiff’s depositions, and one of the defendant’s counsel was ignorant of the fact until after the verdict was rendered. It was held to have been an undoubted cause of exception to the jury if seasonably taken, but that it could not vitiate the verdict. It did not appear but that the other counsel and the defendant himself knew the fact.

We think the doctrine applicable to this case and governing it, is stated in State v. Haskell . The fact constituting the objection appeared on the public records of the town, open at all times to the inspection of the defendant. He did not see fit to examine them to ascertain the legal qualifications of the jurors, and must therefore be taken to have *306 waived the exception which such examination would have enabled him to take at a time when the defect of the panel could have been cured.

Judgment on the verdict.