Beach & Beach v. President, Directors & Co. of the Fulton Bank

7 Cow. 509

• Court: New York Supreme Court
• Decided: October 15, 1827
• Status: Published

Opinion

Curia.

There is nothing in the objections raised to these proceedings. The jury are not summoned by virtue of the venire in the cause. • They are drawn by the *clerk, 14 days previous to the circuit; and are to be summoned by the sheriff 8 days before that time. They are drawn, and the panel made out without any kind of reference to the v jury process. This process is a necessary form in the proceedings; but in this state it is the merest form; and has no effect in the cause. It may be modified by this court in any way, so as to be made conformable to the actual proceedings; where such modification becomes necessary. Supposing the proceedings to be incongruous; the,,venire is such mere form, that we will amend; or where it is necessary, allow a new one to be made out and filed nunc pro tunc.

But there is no need of any amendment. We entertain no doubt that the circuit might be continued into the term,

(a) The venire, as awarded and issued, was, therefore, regular and congruous. The jury for the circuit generally, having been regularly summoned, the panel was properly attached to this venire. The proceedings were regular in fact; and the venire is precisely what we should have made it by amendment, had there been any incongruity by its being made returnable on the first day of term. The motion must be denied with costs.

Motion denied.

Such, too, is the English practice. “ Once in every week during term, and for several days after term, one of the judges of this court (the K. B., usually the chief justice, but sometimes one of the puisne judges,) sits at nisi prim, at Westminster, and at the Guildhall, London, to try causes, in which the jury process has been directed to the sheriff, or other returning officers of Middlesex and London respectively.” (1 Arch. Pr. 6.)