Miles v. Pulver

3 Denio 84

• Court: New York Supreme Court
• Decided: May 15, 1846
• Status: Published

Opinion

Jewett, J.

The challenge to the array was for, principal; cause, and the question presented for our determination is whether it was properly overruled. It is highly, important to the due administration of justice, that every trial should be fair and impartial: and to attain this end; it is obvious that jurors must be indifferent between the parties litigant. This cannot well be expected, unless the officer whose duty it is to select them is free from bias or partiality. The law presumes that the attorney or counsellor of a party is not thus free from bias, and therefore holds it a good ground of challenge to the array, that the attorney of one of the parties happens to be the man who returns the jury. (Baylis v. Lucas, Cowper, 112.) Formerly it was provided by statute, (1 R. L. 399, § 27, and Laws of 1804, 291, § 26,) that no constable serving the original or jury process in any cause, should be permitted to appear and advocate for either party.

The case of Watkins v. Weaver, (10 John. 107,) was this— Weaver sued Watkins before a justice. Aaron Burnett appeared as the attorney for the plaintiff and put in his declaration. Issue was joined and trial by jury demanded by Burnett as the attorney for the plaintiff, and being a constable, he asked permission ‘ of the defendant, who knew it was contrary to the statute, to summon the jury. The defendant consented, and the justice entered such consent in his minutes. Burnett summoned the jury. At the trial the defendant challenged the array because Burnett, who acted as attorney for the plaintiff, had summoned the jury. The justice overruled the challenge on the ground of the previous consent. This court, on certiorari, held that when a constable appears as the attorney of the plaintiff, he cannot serve the venire for a jury, and that it is a cause of challenge to the array, when a jury has been summoned by a constable who acts as the advocate of the party: but as the party in that case had previously consented that the constable might serve the venire, they held that he could not afterwards challenge the array on that ground. It is supposed by the counsel for the defendant in error, that this case proves that the challenge in the case before the court was well taken. I am inclined to think otherwise. It seems to me that the legislature has virtually permitted a constable who serves the original or jury process, to act strictly in the character of an attorney for either party in any stage or proceeding in a cause before a justice, except upon the, trial of the cause.

(a) If this be so, the service of the jury process by such constable would not be a good ground of principal challenge to the array. It is enacted (2 R. S. 233, § 44,) that “ a party authorized to appear by attorney may appoint any person to act as such attorney; but the constable who served either the original or jury process in the cause, shall not appear and advocate for either party at the trial, but may act as attorney in any other stage or proceeding in the cause."

This construction is, I think, strengthened by the case of Wakeman v. Sprague, (7 Cowen, 720.) There this court held that it was not a good ground of principal challenge at thé circuit, that the clerk of the circuit was attorney for a party, and was so at the time of drawing, making, and arranging the pannel, on the ground that the legislature had provided that the clerks of the circuit might practise as attorney in this court. So in the case of a constable, the law allows the officer who serves either the original or jury process in the case, to act as the attorney for either party in any other stage or proceeding in the cause except to appear and advocate for either party at the trial. The mere fact then, that the constable appeared for the defendant and put in the plea of the general issue, did not, as I think, disqualify him from serving the jury process, or furnish good cause of principal challenge to the array. The right of challenge to' the array still remains for any abuse by the constable in selecting the jury; and with this guard there is good reason to think that the legislature supposed there would be no danger in allowing a constable to serve the venire, he being prohibited from acting for either party on the trial. There is no ground for belief that the constable who summoned the jury was guilty of any abuse in the discharge of that duty, or that he had any partiality or preference for either party over the other.

The constable, at the request of the defendant, called on and engaged an attorney to assist her on the trial. This he did as her agent, not from motives of friendship or partial feeling in her behalf, but merely as a matter of business upon being compensated for his time, and it did not, in my opinion, render him incompetent to serve the venire.

The judgment of the common pleas must be reversed, and that of the justice affirmed.

Bronson, Ch. J. concurred

Beardsley, J. dissented holding that the challenge to the array was well taken, and should not have been overruled.

Judgment reversed.(b)

See Phinney v. Earle, (9 John. 352 ;) and Kittle v. Baker, (id. 354.) The former statute seems to have received the same construction as that which the court give to the present one.

Affirmed in the court for the correction of errors, Dec. 1846.