Pleadings. Failure of the complaint to state a cause of action is available on mo tion for a new trial; Consol. Carnal Co. v. Peters, 5 Ariz. 80, 46 Pac. 74 ; so.of one which shows the alleged cause of action to be bar red; Lambert v. Mfg. Co., 42 W. Va. 813, 26 S. E. 431.
Misconduct of parties, counsel, or witness es. The use of crutches by plaintiff in going to and from the witness stand, when just before and after the trial he walked readily without them, is ground for a new trial ; .Corley v. R. Co., 12 App. Div. 409, 42 N. Y. Supp. 941; but plaintiff's hysteria while on the witness stand is not ; Chicago & E. R. Co. v. Meech, 163 Ill. 305, 45 N. E. 290; nor is a controversy, between court and counsel, during the trial, not prejudicial to the de feated party ; Herdler v. Range Co., 136 Mo. 3, 37 S. W. 115 ; nor improper remarks made by counsel in,his argument ; Gulf, C. & S. F. Ry. Co. v. Curb, 66 Fed. 519, 13 C. C. A. 587, 21 U. S. App. 663.
A new trial will be granted where jurors were treated by a party to the cause; Phil lipsburgli Bk. v. Fulmer, 31 N. J. L. 52, 86 Am. Dec. 193; Harrington v. Probate Judge, 153 Mich. 660, 117 iv. W. 62 ; Scott v. Tubbs, 43 Colo. 221, 95 Pac. 540, 19 L. R. A. (N. S.) 733, and note ; or by counsel; People v. Mon tague, 71 Mich. 447, 39 N. W. 585 ; Rainy v. State, 100 Ga. 82, 27 S. E. 709; Steenburgh v. McRorie, 60 Misc. 510, 113 N. Y. Supp. 1118; Stewart v. WoolMan, 26 Ont. Rep. 714 ; or by persons interested; McGill Bros. V. Ry., 75 S. C. 177, 55 S. E. 216; 6 U. C. Q. B.
0. S. 352* though in some cases, where the treating was satisfactorily explained and considered innocent of evil effect, the verdict was not disturbed, though generally disap proval of the practice was expressed; Pat ton v. Mfg. Co., 11 R. I. 188; Doe v. Roe, 3 Pennewill (Del.) 128, 50 Atl. 217. Giving the jury a dinner in a public place after the verdict is rendered is not ground for a new trial; Beach Front Hotel Co. v. Sooy, 197 Fed. 881, 118 C. C. A, 579.
Mistakes or omissions of officers in sum moning and drawing jurors, when the irreg ularity deprives the party complaining of a substantial right, will entitle him to a new trial ; Straughan v. State, 16 Ark. 37; Com. v. Roby, 12 Pick. (Mass.) 496. Likewise, where the officer summoning the jury is nearly related to one of the parties; Mun shower v. Patton, 10 S. & R. (Pa.) 334, 13 Am. Dec. 678; Rector v. Hudson, 20 Tex. 234; or is interested in the event ; Woods v. Rowan, 5 Johns. (N. Y.) 133; unless the ob jection to the officer was waived by the party ; Walker v. Green, 3 Greenl. (Me.) 215 ; Orrok v. Ins. Co., 21 Pick. (Mass.) 457, 32 Am. Dec. 271; or the authority of the officer be so circumscribed as to put it out of his power to select an improper jury ; Wakeman v. Sprague, 7 Cow. (N. Y.) 720. A verdict will be set aside for the following causes: The unauthorized interference of a party, or his attorney, or the court, in selecting or returning jurors, unless the interference can be satisfactorily explained; Park v. Harri son, 8 Humphr. (Tenn.) 412; that a juror not regularly summoned and returned per sonated another ; Stripling v. State, 77 Ga. 108, 3 S. E. 277; 7 Dowl. & R. 684; but not if the juror personated another through mis take, was qualified in other respects, and no injustice has been done; 12 East 229; To ledo Consol. St. R. Co. v. R. Co., 12 Ohio Cir. Ct. R. 367. That a juror sat on the trial after being challenged and stood aside, unless the party complaining knew of it, and did not object ; Jordan v. Meredith, 3 Yeates (Pa.) 318, 2 Am. Dec. 373; that a ju ror was discharged without any sufficient reason, after being sworn; Stewart v. State, 1 Ohio St. 66; but not if the juror was dis
charged by mistake and with the knowledge and acquiescence of the party; Com. v. Stow ell, 9 Mete. (Mass.) 572 ; State v. Lytle, 27 N. C. 58 ; that the jury were not sworn, or that the oath was not administered in the form prescribed by law ; Irwin v. Jones, 1 How. (Miss.) 497.
The disqualification of jurors, if it has not been waived, will be ground for a new trial ; but a principal cause of challenge to a juror. not discovered during the trial, will not re quire a new trial in a criminal case, unless injustice resulted to the prisoner from the fact that such juror served; State v. Harri son, 36 W. Va. 729, 15 S. E. 982, 18 L. R. A. 224; that a juror was also a member of the grand jury finding the bill Will not sustain a: motion in arrest of judgment, where no jection was made to the juror on the trial; State v. Cooler, 30 S. C. 105, 8 S. E. 692, 3 L. R. A. 181; People v. Lewis, 4 Utah, 42, 5 Pac. 543. The want of a necessary erty qualification is ground for a new trial; 4 Term 473; Briggs v. Georgia, 15 Vt. 61; irregularity in 'selection, which results in injury to the defeated party ; State v. Breen, 59 Mo. 417; but after a plea of not guilty and conviction, defendant may not object to the venire or to jurors summoned under it ; State v. Cole, 9 Humphr. (Tenn.) 626; or to a juror whose name was not in the box, on the list, or on the books of the tax Osgood v. State, 63 Ga. 791; but not if it ap pears that injustice was not done; Beck v. Thompson, 31 W. Va. 459, 7 S. E. 447, 13 Am. St. Rep. 870 ; and there was a fair trial, and the verdict was fully warranted by the evi dence ; Fisher v. Yoder, 53 Fed. 565. Rela tionship to one of the parties ; Hardy v. Sprowle, 32 Me. 310 ; or to one of the coun sel; Brown v. Reed, 81 Me. 158, 16 Atl. 504; Swift v. Mott, 92 Ga. 448, 17 S. E. 631; or business relations with the counsel ; Fealy v. Bull, 11 App. Div. 468, 42 N. Y. Supp. 569; is ground; but knowledge of such relation must not have been obtained before trial, else the disqualification is waived; Jewell v. Jewell, 84 Me. 304, 24 Atl. 858, 18 L. R. A. 473; unless the relationship be so remote as to render it highly improbable that it could have had any influence; Churchill v.,Church ill, 12 Vt. 661. So is interest in the event ; Wood v. Stoddard, 2 Johns. (N. Y.) 194; Page v. R. R., 21 N. H. 438; concealment of his interest by juror; Pearcy v. Ins. Co., 111 Ind. 59, 12 N. E. 98, 60 Am. Rep. 673; bias or prejudice ; U. S. v. Fries, 3 Dall. (U. S.) 515, 1 L. Ed. 701; where a juror was deputy prosecuting attorney ; Block v. State, 100 Ind. 357; scruples against find ing a verdict of guilty ; Pierce v. State, 13 N. H. 536 ; Martin v. State, 16 Ohio 364; People v. Damon, 13 Wend. (N. Y.) 351; an opinion held by juror which would have ex cluded him if discovered before he was sworn; State v. Harrison, 36 W. Va. 729, 15 S. E. 982, 18 L. R. A. 224 ; and mental or bodily disease unfitting jurors for the intel ligent performance of their duties; Hogs head v. State, 6 Humphr. (Tenn.) 59; Bax ter v. People, 3 Gilman (Ill.) 368; alienage; Richards v. Moore, 60 Vt. 449, 15 Atl. 119; (but not criminality of juror ; State v. Pow ers, 10 Or. 145, 45 Am. Rep. 138; Hill v. Cor coran, 15 Colo. 270, 25 Pac. 171; but see Greenup v. Stoker, 3 Gilman [Ill.] 202; Hol lingsworth v. Duane, 4 Dall. [U. S.] 353, 1 L. Ed. 864). The want of purely statutory qualifications, such as citizenship, age, prop erty, etc., which are not essential to an in telligent and impartial discharge of duty by a juror, are not treated with the same strict ness as bias and like causes; Brewer v. Ja cobs, 22 Fed. 234.