Buckley v. Drake

There was no error in the drawing of the jury. The application to open the highway was signed by a great many persons, and the jury was drawn under legal form. The statute directs how the jury is to be formed, and this way was explicitly followed. The town clerk is directed to “ deposit in a box the names of all persons then residents of his town whose names are on the list ” as jurors, who are not interested in the lands,” “ nor of kin to the owner.” The disqualification is of those who are interested in the lands and of persons of kin to the owner. (Chap. 696, Laws of 1881.) Under the phrase “ interested in the land,” the legislature could not have intended to cover those who signed the application for a road through it. An applicant for a highway is no more interested in the land than a freeholder who is in favor of the road and has not signed the application. Such a juror would undoubtedly be proper. If an absolutely impartial jury was designed, the law would have provided some way for a challenge to review those jurors who had formed an opinion. The old way of obtaining a certificate permitted an applicant, by a notice, to call everybody to view his proposed road, and if he could get twelve to sign the certificate, the road went before the commissioners of highways for tlieir action.

*386In 1871 the legislature changed this mode by requiring a certificate from a jury drawn (twelve in number), from the town jury list, except those interested in the land and related to the owner, and it required nine of this number to sign the certificate. Ten signed the certificate in question, but one of them was one of the 159 persons who signed the application.

Under the precise requirement of the law he was a capable juryman. If there was an error, it would have been reviewable by certiorari. The application and the certificate would necessarily have been returned, and it would have appeared by the return that one of the applicants was a drawn juror and one who sat upon the proceedings. When there is a remedy it is by certiorari or appeal. When the case requires no proof of facts outside of the return, the remedy for an error is to be brought by a writ of review of the case itself.

On both grounds, therefore, the judgment should be affirmed, •with costs.

Judgment affirmed, with costs.