Butler v. Kelsey — 15 Johns. 177

Majority

p. 177

Butler against Kelsey.

Headnote

A writ of inqutry of dama» ges cannot bo Sunday ¡ nor can the jury who have be<?n impannelcd on Saturday, and heard the allegations and P¡£tíes before nHvf assess01 the damages and deliver their verdict to the sheriff on Sunday.

If the plaintiff has any ob’ections to any of the j’urors, he must make them openly, and if he state them privately to the sheriff, who thereupon discharges a iuror, the inquisition will be set aside»

THIS was an action of slander, in which the defendant 7 suffered iudsrment to be entered by default, and, on a writ of inquiry executed before the sheriff of Dutchess county, 1 v - - the jury assessed the damages to one hundred and forty- ° seven dollars.

Bloom, for the defendant,

now moved to set aside the inquisition, for irregularity. It appeared, from the affidavits

p. 178

which were read, that the execution of the writ of inquiry was commenced before the sheriff and jury, at six o’clock on Saturday evening; that the hearing of the allegations and proofs of the parties, and of the defendant’s counsel, detained the jury until half past eleven o’clock of Saturday evening, when the defendant’s counsel proposed an adjournment until after Sunday, but the plaintiff’s counsel declined an adjournment, not considering the objection to giving a verdict on Sunday morning, sufficient; that the jury retired to consider of their verdict about one o’clock, a. m. of Sunday, and returned their verdict about 4 o’clock, a. m. of that day. Before the jury were summoned, the plaintiff’s attorney requested the sheriff not to summon two men, who were freeholders, but against whom there was some objection as to their sitting in this cause, and the sheriff omitted to summon them; and it appeared that the defendant had consented their being omitted by the sheriff. T. B. another freeholder and inhabitant of Poughkeepsie, who was summoned by the sheriff, appeared, and the plaintiff’s attorney called the sheriff aside, and stated an objection to T. B. as a juror, and the sheriff discharged him, and put another juror on the panel. It did not appear that the defendant knew of the objection made to T. B. Some of the jurors stated that they understood that the defendant’s counsel consented to waive any objection to proceeding with the inquiry on Sunday morning, otherwise they should have refused to proceed.

Bloom contended,

that the inquisition ought to be set aside, on two grounds : 1, Because it was partly executed and taken on Sunday morning. 2. Because the plaintiff’s attorney improperly interfered in the selection of the jurors.

In support of the first point, he cited, 2 N. R. L. 195. Jacob’s Law Dict. 140. ad voc. Sunday. 2 Inst. 264. 1 Ld. Raym. 706. 8 East, 547. 1 Str. 387. 8 Johns. Rep. 290 . To the second point, Trials per Pais, 169. 9 Johns. Rep. 260 . 1 Coxe’s New-Jersey Rep. 6. 169.

P. Ruggles, contra.

The inquisition ought to be set aside. The writ was executed on Sunday, within the meaning of the statute. There was no necessity for taking the inquisition on Sunday, as the cause might have been adjourned over until Monday. It is not like the case of a trial at a circuit, where a verdict is sometimes taken on- Sunday morning, because the jury must, otherwise, be kept together during Sunday.^[1]

On the second ground, also, the inquisition ought to be set aside. Though the plaintiff’s attorney may have acted with good intentions, and from no improper motive, yet if there is any legal or valid objection to a juror, it ought to be openly and publicly stated, and the sheriff may then .set aside the juror against whom the objection is made, and summon another; or if he should refuse to do so, it would be ground for an application to set aside the inquisition. There must be no interference with the jury or the sheriff.

Motion granted.

(a) (a) Vide Hoghtaling v. Osborn, ante. p. 119.