Challenge [fr. Challenger, O. F., to accuse of], an exception taken either against things or jurors.
In civil actions, when a full jury appear, either party may challenge them for cause, as well the talesmen as the jurors originally returned. Challenges are of two kinds: (1) to the array; (2) to the polls; and each of these is again subdivided into principal challenges, and challenges to the favour.
(1) A challenge to the array is an exception to all the jurors returned by the sheriff collectively, not for any defect in them, but for some partiality or default in the sheriff or his under-officer who arrayed the panel; this is either (a) a principal challenge, as that the sheriff or other returning officer is of kindred or affinity to the plaintiff of defendant, if the affinity continue; that one or more of the jury are returned at the nomination of the plaintiff or defendant; that an action of battery is pending at the suit of the plaintiff or defendant against the sheriff, or at the suit of the sheriff against the plaintiff or defendant; that the sheriff or returning officer holds land depending upon the same title with that in litigation between the parties; that the sheriff, etc., is under the distress of the plaintiff or defendant; that the sheriff, etc., is employed by or is the special friend of either party or is an arbitrator in the same matter, and has treated thereof. (b) A challenge for favour, being such as implies at least a probability of bias or partiality in the sheriff, but does not amount o a principal challenge, as that the plaintiff or defendant is tenant to the sheriff or that the parties are connected by marriage, etc. It seems very doubtful if the array in special jury cases can be challenged. Challenges to the array are, however, seldom restored to, since, for the causes above named, the jury-processes maybe directed to the coroner, or they would be grounds for a new trial.
(2) A challenge to the polls, which is an exception to one or more of the jurors who have appeared individually: Either (a) a principal challenge, which may be subdivided into (a) challenge propter honoris respectum, as, if a lord of Parliament be called, he may challenge himself or he mayhave his writ of privilege, but it is doubtful if either party can challenge him; (b) challenge propter defectum, that the juror is not qualified; (c) challenge propter affectum, by reason of some supposed bias or partiality: (d) challenge propter delictum, when for some act of the juror he has ceased to be, in consideration of the law, probus et legalis homo. (b) A challenge to the polls for favour is of the same nature with the principal challenge propter affectum, but of an inferior degree.
No challenge canbe made before a full jury have appeared; a challenge to the polls is made ore tenus, that to the array in writing. The trial of challenges to the array is entirely in the discretion of the court; sometimes they are tried by two of the coroners, sometimes by two of the jury, sometimes by the Court itself. Challenges to the polls, if to the favour, are tried by two jurors, who have been sworn; if two have not been sworn, the court appoints two indifferent persons to try the, thence called triers, who are superseded as soon as two jurors are sworn; a principal challenge to the polls is tried by the court itself, 1 Chit. Arch. Prac.
In criminal cases, challenges may be made, either on the part of the Crown, or on that of the prisoner, and either to the whole array, or to the separate polls for the very same reasons that they maybe made in civil causes. In capital cases the prisoner, in favorem vit', is allowed an arbitrary and capricious species of challenges, without showing any cause at all, limited, in cases of treason, to thirty-five, and in felonies to twenty, County Juries Act, 1825 (6 Geo. 4, c. 50), s. 29. (English) Criminal Law Act, 1827 (7 & 8 Geo. 5, c. 28), s. 3. See Archbold's Criminal Pleading.
An act or instance of formally questioning the legality or legal qualifications of a person, action or thing, Black's Law Dictionary, 7th Edn.