case Hewett against bainard if a juror be withdraw from the panel by consent  of both party in order that the trial may go off pro diminution a swearer he  may be of the jury when the cause come on again a writ of error be bring on a  judgement in the court of common plea the single question be whether a juror  who be withdraw from the panel by the consent of both party to the intent that  the trial may for that time go off pro diminution a swearer may not be of the  jury when the cause come to be try at a subsequent time and if he be whether  that will be error it be insist that it will be error and that a juror  withdraw from the panel be for ever after incapable to try the cause and a  case in cro be much rely upon which be that if a juror who have be once  challenge and the challenge allow by the court shall afterward try the cause  it will be error to this it be answer that the case cite be vast different  from the case at bar for the case in croak be the case of a person challenge  by one of the party as not stand indifferent to both side and modern report  this challenge allow of by the court which amount to a kind of judgement and  therefore as long as it stand though the cause upon which that challenge be  find cease the person be incapable to try the cause whereas here the juror be  withdraw from the panel by consent of both side for no other reason but that  the cause may be put off pro diminution a swearer and therefore a person so  withdraw be to be consider as if he have never be return and consequent no  more unfit to try the cause than any other a case in Fitzherbert a Fitzherbert  Abr challenge a be quote where after a challenge to the array for the  partiality of the sheriff the very same jury be return by the coroner and  allow to be well which case in the reason of it be say to be strong than this  because though a challenge to the array be upon account of partiality in the  return officer yet it be upon the consideration the law have that partiality  in the return officer will produce a partial jury whereas here upon the whole  record there be nothing that cast the least reflection or imputation of  partiality upon the juror nothing that hinder he from be ankle c if this be  error it will certain be a good cause of challenge and yet it be neither a  principal challenge nor to the favour a   light a as to the objection that it  shall now be presume that there be a good reason for his be withdraw from the  jury and agree so by both side though the same do not at present appear it be  answer that the reason why he be withdraw do appear upon record and such a  reason as do not at all impeach he of partiality videlicet the reason be that  it be necessary for the jury to have a view this man happen to be the last  upon the panel be withdraw that so the cause may be put off pro diminution a  swearer the court be clear in their opinion that this man try the cause be no  error the judgement be affirm