Den v. Evaul & Kaighn

1 N.J.L. 328

• Court: Supreme Court of New Jersey
• Decided: April 15, 1795
• Status: Published

Opinion

Pee Cue.

The facts stated in the affidavits are insufficient. Lee’s affidavit must be laid out of the question ; he states nothing from his own knowledge, but merely that he is “ credibly informed.” Assertions resting upon evidence so loose and indeterminate cannot be regarded by the court. As to Mr. Kempton, though a man of respectability, and one to whom we give entire credit, yet his knowledge is fully as imperfect; it is merely the hearsay of some jurymen at the former trial; their names are unknown.

[285] In local actions there can, we think, be no doubt that the court may, under particular circumstances, change the venue, (see 1 Caines 1, 2d ed., and the notes,) but it is not in every case that this will be done. We require clear proof that an impartial trial cannot otherwise be had.

We think, also, that the notice in this case is extremely defective, in saying that the motion will be to change the venue. A plaintiff must move to amend, and a suggestion should be entered on the record.

The cause came on to trial.

The jury being called, only nine appeared, upon which the counsel for the defendant prayed a decern tales, and cited 3 Bl. Com. 364, 5; Den v. Lord Cadogan, 1 Burr. 273; Compl. Jurym. 91 ; 2 Hawk. 575, b. 2, c. 41.

This was opposed, on the ground that it was a foreign and a special jury; that such a practice was novel and inconsistent with the design of special juries ; that it would be dangerous in practice, &c.

Kinsey, C. J.

I see no objection to this proceeding. The court may order a decern tales in such a case. The other justices concurring, a decern tales was ordered, returnable the following day at ten o’clock A. M.

After the decern tales was ordered, the counsel for the plaintiff challenged the first panel, because arrayed and returned by Edward Vaughn, and not by Elannigan, the sheriff of Gloucester county. The defendants take issue upon the fact, on which defendant’s counsel move for tryors.

They must be taken out of the panel agreeably to the law as laid down in Trials per Pais.

Ab. Ogden cited Complete Juryman 137, to show that the court might appoint others in their discretion; but—

Per Cur.

In the first instance, they must come from the panel ; if there are special objections, other persons may be appointed.

[286] The tryors were affirmed, “ well and truly to try the issue of challenge joined, an'd a true finding make.”

A witness was called to prove that the return on the distringas was in the handwriting of Vaughn. Objected, because Vauglm was himself in court, and should be called. The court ordered Vaughn to be called and sworn.

Being examined, he proved the return of panel and distringan to be in his handwriting. Ho swore also that he was the deputy of Flannagan, the sheriff, but said that his deputation was at his home.

Objected that, being a private deputy, and not a public officer, he should show his written deputation.

The proof is sufficient for the tryors.

(a)

Vaughn then proved that he had never been sworn into office until that morning, but had acted as under-sheriff since his deputation.

In charge to tryors—

Vaughn was not a complete deputy to perform the duties of his office, or to return process, until he had taken the necessary oaths. His swearing in at this period cannot help his imperfect acts by relation. A case has been cited from our own minutes, in April Term, 1788, which is in point, and is good law.

The tryors returned a verdict that the array was not valid, whereupon it was quashed, and the jury discharged.

After the finding of the tryors, and before the court had quashed the array, the counsel for the defendant objected that no challenge lay to the array of a special jury, on the ground that they were not returned by the sheriff, for that they were returned by the judge, and therefore contended that the finding of the tryors was void. But the court overruled the objection, and said that special jurors were summoned and returned by the sheriff.

Cited in Stout v. Hopping, 1 Hal. 125; Murray v. N. J. R. R. & Tr. Co., 3 Zab. 63.

In the case of a public officer, as a sheriff, deputy-sheriff, justice of t.he peace, constable, &e., it is sufficient to prove that he acted as a public officer, without showing his appointment. Berryman v. Wise, 4 T. R. 366; Potter v. Luther, 3 Johns. 431.