may be a witness, but not the defendant; and if the latter obtains judgment, he is not entitled to costs. (a) The object of a challenge is to have an indifferent trial. (b) The right of peremptory challenge, at common law, was a principal incident of the trial of felony. This right cannot be taken away by implication from the terms of a Statute, unless such implication is absolutely necessary for the interpretation of the Statute. (c) In felonies, as well as misdemeanors, the Crown had the right of challenging any number of jurors peremptorily, without assigning any cause, until the panel was exhausted. (d) The 32 & 33 Vic., c. 29, s. 38, enacts that, in all criminal trials, whether for treason, felony or misdemeanor, four jurors may be peremptorily challenged, on the part of the Crown. The right of the Crown to cause any juror to stand aside until the panel has been gone through, or to challenge any number of jurors for cause, is not affected by this Statute. Even before the Statute, on a trial for misdemeanor, the Crown might, without shewing cause, direct jurors, on their names being called by the Clerk of the Court, to "stand aside" until the panel was gone through. (e) This was the well-understood practice on indictments for felony, as well as misdemeanor, and it is said that, before the Statute 33 Edw. 1, s. 1, st. 4, (ƒ) the King might challenge peremptorily, without shewing cause, but that Act was construed to restrain the privilege, and to require (a) Reg. v. Pattee, 5 U. C. P. R. 295; 7 C. L. J. N. S. 124. (b) Levinger v. Reg. L. R. 3 P. C. App. 287, per Sir J. Napier. (c) Ib. 289, per Sir J. Napier. (d) Reg. v. Fellowes, 19 U. C. Q. B. 48. (e) Reg. v. Fraser, 14 L. C. J. 245; Reg. v. Benjamin, 4 U. C. C. P. 179. (f) See Con. Stats. U. C. c. 31, s. 101. the Crown to shew cause if the panel was otherwise exhausted. (a) The restriction in practice thus imposed on the Crown is, that it shall not exercise its prerogative so as to make it necessary to put off the trial for want of a jury, such as the party arraigned is entitled to have on his trial. (b) On a trial for felony, the Crown may, without shewing cause, direct a juror, on his name being called by the Clerk of the Court, to "stand aside," and, on the panel being read over a second time, may, without shewing cause for challenge, direct the same juror to stand aside a second time, and so on until the panel is exhausted, i.e. till it appears that a jury cannot be got without such juror. (c) Calling the list over once is not exhausting the panel. (d) The direction to stand aside is not, in fact, a challenge. (e) But it is, in effect, equivalent to a peremptory challenge if, without having to resort to such of the jurors as have been "set by" for the time, on the part of the Crown, there can be procured from those returned on the panel enough of jurors, not objected to, to make a jury. (f) It seems there is no authority for any challenge in misdemeanor, except for cause. (g) But the practice of ordering jurors to "stand by" enables the prosecutor to exercise, practically, the right of peremptory challenge. Any number of jurors may be challenged for cause. (h) (a) Reg. v. Benjamin, 4 U. C. C. P. 185, per Macaulay, C. J. (c) Reg v. Lacombe, 13 L. C. J. 259. (d) Ib. 261, per Monk, J.; and see Mansell v. Reg., 8 E. & B. 54; Dears. & B. 375. See 32 & 33 Vic. c. 29, s. 41, as to supplying defect of jurors, if the panel is exhausted. (e) Reg. v. Lacombe, supra, 261, per Badgley, J. (f) Levinger v. Reg. supra, 288, per Sir J. Napier. (g) Reg. v. Fraser, 14 L. C. J. 245. (h) Whelan v. Reg. 28 U. C. Q. B. 38, per A. Wilson, J. Where, on a trial for felony, the jury-panel contained the names of J. T. and W. T., and, when the name of J. T. was called, a person, supposed to be J. T., went into the box, and was sworn without objection, and, the prisoner having been convicted, it was discovered the next day that W. T. had, by mistake, answered to the name of J. T., and was really the person who had served on the jury, it was held, by a majority of the Judges, that this was only ground of challenge. (a) sworn. After the prisoner was arraigned, on his trial for murder, and had pleaded not guilty, and received the usual notice of his right to challenge, two jurors were called who were not challenged by him, and were thereupon The name of John Hill was then called, and a person answering to that name came forward, and was sworn without challenge or objection. Some others were afterwards called, and, on being challenged peremptorily by the prisoner, they withdrew; and, after another was called and sworn without challenge, the prisoner's counsel objected to John Hill, as he was a witness in the case for the prosecution. Upon enquiry it was found that there was a person named John Hill returned on the panel, but that he was a different person from the John Hill sworn on the jury, and that the latter was, not only a witness, but also a resident of another county, and, therefore, not qualified to act as a juryman. Upon consent of both the counsel for the Crown and the prisoner, he was allowed to retire, and other jurymen were called and sworn until the panel was full, the prisoner exercising the right of challenge until the jury was chosen. The juror was withdrawn before the prisoner was given in charge. The prisoner was tried and convicted, and, upon motion for a new trial, the Court held, first, that the John (a) Reg. v. Mellor, 4 U. C. L. J. 192; Dears. & B. 468. Hill, improperly sworn, was legally discharged from the jury; second, that his discharge did not operate upon the jurors previously sworn, so as to render it necessary to re-swear them, and thus re-open the prisoner's right of challenge to them; and, third, that, though thirteen persons were sworn to try the prisoner, the twelve by whom he was tried constituted the jury for his trial; in other words, that he was properly tried by the twelve who constituted the jury. (a) If a jury has been elected, tried and sworn, and charged with a prisoner, and are afterwards discharged without giving a verdict, either because they could not agree, or because they were discharged on motion of the prisoner's counsel, and at his request, and with the assent of the Crown counsel, a new jury would have been called and sworn in the ordinary way, and the prisoner would have the usual right of challenge to them. But if, before the whole jury has been completed, and the prisoner given in charge, as in the above case, an unqualified or disqualified juror is called and sworn, without challenge or objection, the withdrawal of the juror, at the request of the prisoner, and by the consent of the Crown, does not render it necessary to discharge the whole jury. Those already chosen and sworn may be retained, and the full complement of jurors may be made up from the others in Court, for it is not necessary to re-open the prisoner's right of challenge to the jurors already chosen, if the prisoner has not been given in charge. (b) The prisoner desired to challenge S., one of the jurors called, for favour, alleging sufficient cause. The Judge ruled that he must first exhaust his peremptory challenges, and this point was raised by plea and demurrer, (a) Reg. v. Coulter, 13 U. C. C. P. 299. (b) Ib. and formally decided, The prisoner then challenged S. peremptorily, and the entry on the record then was that, in deference to the judgment, the challenge was taken, and treated by the prisoner and by the Attorney-General as a peremptory challenge for, and on behalf of, the prisoner. Afterwards, having exhausted his twenty challenges, including S., he claimed to challenge peremptorily one H,, contending that, by the erroneous ruling, he had been compelled to challenge S. peremptorily, and should not be obliged to count him as one of the twenty. This was also entered of record and decided against him: -Held, on error brought, that the prisoner was entitled to challenge for cause before exhausting his peremptory challenges; that error would lie for the refusal of this right, and that, had S. been sworn, there must have been a venire de novo, but that the prisoner, by peremptorily challenging the juror, S., waived or abandoned his right in respect of the erroneous decision of the Judge, and had not any locus standi to assign error for that decision, or for the rejection of the peremptory challenge to the juror H. (a) If, after the improper disallowance of a challenge for cause, the prisoner withdraw his plea of not guilty, and plead guilty, that would cure the objection, because the whole record must be looked at, and not a merely isolated part of it; for one part of it may be controlled by another; and that which may be a cause of exception in one place, may be no exception when read in connection with the rest of the record. (b) A prisoner, arraigned for uttering forged paper, has a right to challenge peremptorily, on the trial of a preliminary question, to the effect that the prisoner had been (a) Whelan v. Reg., 28 U. C. Q. B. 2; affirmed on appeal, ib. 108. (b) Whelan v. Reg., 28 U. C. Q. B. 164, per A. Wilson, J. |