majority">Gilchrist, J.

If it could be supposed necessary in any case to refer to written law in support of so plain a proposition as that all judicial tribunals should be impartial, we could find it expressed with all needful precision in the constitution of this state. The thirty-fifth article of the bill of rights declares it to be “ the right of every citizen to be tried by judges as impartial as the lot of humanity will admit and although the judges of the superior court were there particularly alluded to, the spirit of the sentence pervades the constitution throughout. The 9th section of the act of July 4th, 1827, N. H. Laws 467, (Ed. of 1830) provides that a juror may be put to answer upon oath, among other things, “ whether he is sensible of any prejudice in the cause ?” and the same section also enacts that if it shall appear to the court that a juror does not stand indifferent, he shall be set aside and another appointed in his stead.

But even without these provisions, the commonest regard to justice would require that a party should not be compelled to trust even his property — much less, as in this case, his reputation and liberty — to the action of a tribunal by whom the merits of his case had been prejudged. It is immaterial in what manner a juror becomes biassed. The question is, is he impartial, or is he not ? He will be unfitted to do justice t,o the parties, whether he derive his impressions from read*493ing the newspapers, from common report, from casual conversations with his neighbors, or from hearing witnesses testify in a court of justice. His presence in court, in the jury-box, where he had not only a right to be, but where the law required him to appear, is no reason for holding that prejudices acquired in the court-house are any more sacred things than prejudices acquired elsewhere, and that with these prejudices he should be allowed to sit in judgment upon his fellow-men.

We are of opinion that the objection taken by the prisoner’s counsel should have been sustained by the court, and that the prisoner should not have been tried by the second jury. The verdict must be set aside, and there must be a

New trial.

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