Gardner v. Turner

9 Johns. 260

Opinion

Per Curiam.

The defendant moves for judgment as in case 0f a J)0ns!1it for plaintiff’s default, in not proceeding to trial at the last circuit court, in Jxensselear county, and he is entitled to the effect of his motion, if the plaintiff has been in default. The motion is resisted on the ground that, at the circuit, the plaintiff challenged the array, for a supposed misconduct in the clerk, in drawing out seventy-two names, and designating thirty-six of them £o be summoned as jurors to that circuit. This challenge was overruled by the judge, but the plaintiff declined to proceed to trial.

Either party has a right to challenge the array; and partiality, or some default in the sheriff or his under officer who arrayed the panel, are good causes of challenge.

* If the facts alleged in the challenge are denied to be true, two triors are appointed by the court, out of the panel,† or, perhaps, any two individual persons named by the court. If the triors pronounce the causes challenge unfounded, the trial proceeds. If the facts are admitted, hut are deemed insufficient, the court adjudges on them, and either quashes the array, or overrules the challenge. Since our statute authorizing the clerk to array the jury, a challenge lies to it, for partiality, or default in the clerk, who, for many purposes, is substituted for the sheriff in selecting and arraying the jury. The facts set forth in the challenge amounted, if true, to a default in the clerk, in forming the array, and the defendant ought to have joined issue on the challenge; and if the triors had found, that the jury was not thus arrayed, then the cause must have proceeded, or the plaintiff would have been in default. The challenge should not have been overruled, and as it is, the plaintiff is not chargeable with a default in not proceeding to trial, for he had a right to the challenge, and, if well founded, it would be a sufficient cause for not going to trial.

It is now admitted that the facts stated in the challenge are unfounded; and could we believe that it was interposed merely to delay and interrupt the defendant, we ought, notv, perhaps, to consider it as no excuse for not proceeding; this we are not authorized to do, but are bound to consider it interposed on info ¡y. mation. then received.

Motion denied.

2 Tidd, 779.

Co. Litt. 158.