Majority
p. 11In the matter of Wager. 1836. February 1.
Headnote
Upon the execution of a commission in the nature of a writ de lunático itiquirendo, it is the duty of the sheriff to select and summon the jurors; and it is improper and irregular for the commissioners to dictate to him what persons are to be summoned.A commission having been issued in this case to enquire whether Wager was incapable of managing his property and affairs by reason of habitual drunkenness, the commissioners selected and made out a list of the jurors, whom they directed the sheriff to summon •, and, for this reason, a motion was made to set aside the injunction.
G. R. Davis, for Wager.
R. Hayner, for the petitioners.
decided that it was the duty of the sheriff, in such cases, to select and summon such jurors as he thought proper, and who were indifferent in relation to the matter; that the commissioners were only authorized to decide upon the validity of challenges to jurors so selected; and that it was irregular and improper for them to dictate to the sheriff what jurors should be summoned in the first instance. For this irregularity, the proceedings were ordered to be set aside ; and a new commission was directed to be issued.