Hall v. Perott

The opinion of the court was delivered by

By the twenty-ninth section of the judiciary act, jurors in all cases to serve in the courts of the United States, shall be designated and formed according to the laws of the states, so far as is practicable. Special juries were accordingly selected by the clerk till the act of 1802 transferred this power to the marshal, who was directed thereby, “to return special juries in the same manner and form as by the laws of the respective states the said clerks were required to return the same.” 2 Story, Laws, 862 [1 Stat 156]. By this act the whole duties of the clerk in relation to special jurors, were devolved on the marshal, including the return. By the seventeenth section of the jury law of this state, passed in 1785, either party in a civil suit might enter a rule for trial by special jury, to be struck before the clerk of the court, “in such manner as special juries have heretofore been struck, which jury so struck shall be summoned in manner aforesaid, and shall attend and serve under such penalties,” &c. By a proviso in the eighteenth section it was required that the jury should be struck thirty days before the return day of the process for summoning them; the service'of a copy of the rule for a special jury, and a copy of the list of jurors, and notice to attend the striking, was also directed. 2 Dall. Laws, 267, 268. This section was repealed by the act of March, 1789; Id. 691. By the same law the right of a defendant to a special jury in the supreme court or at nisi prius, was confined. to cases where the' title to real estate was in question, or an affidavit of defence filed. The seventeenth section of the act of 1785 is therefore no longer controlled by the proviso, and furnishes the rule by which special juries were to be designated and formed at the passage of the judiciary act; It also remains the rule under the act of 1802, as no state law intervened. The state law of 1805,- relating to juries, is a process act, not binding on the federal courts, unless it has been adopted by a rule of court. [Wayman v. Southard] 10 Wheat. [23 U. S.] 20, 51, etc. The rule of this court is silent on this subject; we must therefore be governed by the law of 1785. They are to be struck as they have “heretofore been struck,” that Is, according to the English practice and the statutes (3. Geo. II.; 6 Ruffh. St. 25, etc.; 24 Geo. II.; 7 Ruffh. St 327), except so far as it is altered by the repealing act of 1789. In the common pleas, a rule for trial by special jury was of course. Barnes, Notes Cas. 449, 61, 88; 5 Durn. & E. [5 Term R.] 464. Now it is discretionary. 4 Taunt 471. In the king’s bench, it was discretionary, on cause shown. Style, 477; 8 Mod. 248; 2 Ld. Raym. 1364; And. 52; 2 Lil. Reg. 154, 155; Complete Juryman, 66. It could be entered at the term at which a cause was for trial at the sittings, if entered before the return of the venire facias. Barnes, Notes Cas. 488; Tidd. Prac. 844-846. The facility of attaining the rule, and the delay attending it led to a rule of the king’s bench in 1808, and the common pleas in 1812, limiting the time within which it should be applied for. 10 East, 1; 4 Taunt. 600. In this state the right was restricted by the act of 1789. iá the eighth section of St. 3 Geo. n., prescribing the mode of summoning juries, special juries are excepted. 6 Ruffh. St. 27. So that the method of proceeding by special juries is in no respect altered. 5 Durn. & E. [5 Term R.] 463, cited. The same exception is made in the act of 1785, §§ 4-6; 2 Dall. Laws, 263. The seventeenth section merely directs that the jury “shall be summoned as aforesaid;” which, by the eighth section, is directed to be ten days before the return of the writ or process. The twentieth section authorizes the imposition of a fine for non attendance.

A venire is but as a summons to the jury. *248Dalt. Sher. 160. Where for a special jury It Is a special writ (2 Lil. Reg. 779), returnable at the discretion of the court (2 Tidd, Prac. 844). No time is fixed for the service of the summons; in Sayer, 31, Foster, J., thought it ought to be six days; it must be a sufficient time to allow them to appear at the trial. Id. The court may direct a trial in term time. 4 Taunt. 471. The repeal of the eighteenth section of the act of 1785 has removed the restriction as to the time of striking a special jury. By the twenty-ninth section of the judiciary act, juries may be “returned as there may be occasion for them, from time to time;” and the court may award tales to supply the defect of jurors. This act has been held to apply to special jurors in this court. Anonymous [Case No. 443], The same construction has been put on the act of 1785 by the courts of the state. 2 Yeates, 133; 4 Yeates, 236. There is nothing therefore to control the discretion of this court; the mode and time of striking, and the return of the venire, are matters of practice regulated by rules; the rule of this court directs that no venire shall issue unless the jury is struck ten days before the return, and the handing the jury list to the clerk at the proper time, entitles either party to have a venire for the names not expunged.

In this case the jury was regularly struck. It was the duty of the marshal by the act of 1802 to summon and return the jurors not expunged; a venire was a matter of course by the common law, and of right by our rule; the defendants had a right of trial at this term under their rule to try, or non pros. They will be deprived of it by an accident, for which they are not responsible, if we refuse to make the rule absolute. We cannot doubt our power or the justice of its exercise; a copy of the general list is found and proved to contain the same names as in the list which was struck. No injustice is done the plaintiff by directing a new striking, on reasonable notice; and our rules are complied with by directing a venire to issue returnable ten days thereafter. Rule made absolute.