Shields v. Niagara County Savings Bank

E. Darwin Smith, J. The first exception for our consideration relates to the impaneling of the jury. . Ten of the jurors drawn for the trial of the cause were talesmen, not drawn from the box containing the names of petit jurors for said county, but summoned by the sheriff by the order of the court to serve for said circuit. They were drawn on the first day of the court, and their names placed in the box to serve for the term and not for the trial of this particular cause. The court began on the first day of September and this cause was tried on the sixth. I cannot see how the regularity of the proceedings in impaneling the jury can be upheld. A talesman is a juror summoned to fill up a panel for the trial of a particular cause. The court under the Revised Statutes could supply the deficiency in the panel by order made at the time. It could, whenever a sufficient number of jurors duly drawn and summoned did not appear and could not be obtained to form a jury, direct the sheriff to summon from the bystanders or from the county at large so many persons qualified to serve as jurors as should be sufficient. (2 R. S. 437, § 54.) This provision only authorized the summoning of talesmen for the single cause ready and moved for trial. It did not authorize the summoning of jurors to fill the panel to act or serve for the whole circuit. And this provision in respect to talesmen is clearly repealed or modified by the act of 1861, entitled “ an act to amend the Revised Statutes in relation to trials by jury ” (Laws of 1861, chap. 210), so far that the summoning of talesmen by the order of the sheriff from the bystanders or from the county at large can only be done by the consent of the parties to the action. Otherwise the panel in such a case can only be filled by drawing from the box of jurors of the city or town where the court is held, kept and produced for that purpose, pursuant to the provisions of said act. This act of 1861 expressly repeals all acts and parts of acts inconsistent therewith. This provision has and can have no other opera [588] tion. or effect than to repeal said section of the Revised Statutes so far as it provides for or allows the summoning of jurors from the bystanders or from the county at large by the sheriff to serve as jurors in any court except as above stated. The object of this statute and the mischief it was intended to remedy were to prevent sheriffs from filling up the panel of jurors when there was a deficiency in the regular panel, from a class of professional jurors or from persons standing by in the court rooms ready to be summoned and called for such purpose. This statute has no application to criminal trials. In the case of People v. Mallon, 3 Lans. 224, it was held that section 3 of title 5, chap. 11, part 4 of the Revised Statutes (2 R. S. 733), providing'for the filling of the panels for the criminal trials when twenty-four names of jurors duly drawn did not appear, was not repealed, and was not affected by the statute of 1870. Laws 1870, chap. 409. This act and the act of 1871, chap. 16, provides for procuring additional jurors for the Circuit Courts and courts of Oyer and Terminer by order directing the drawing of the names of such required jurors from the county box, containing the names of petit jurors for said county. These acts do not affect the act of 1861, which still remains in full force. The challenge of the ten jurors at the circuit was valid, and the exception to the decision overruling such exception well taken. But upon the merits I think the plaintiff ought to have been non-suited. The plaintiff showed no right of action. The certificates upon their face in form áhd legal effect were contracts between Van Wag-goner and Morse. If by reason of any fraud of Morse or the bank, the certificates were put in their present shape, and the name of Daniel Morse & Co., signed thereto, was substituted for that of the proper officer of the defendant’s bank, to bind said bank upon the face of the certificates, Van Waggoner was bound to act promptly in dis-affirming said contract, and demanding his money or a certificate proper in form to bind the bank. The certificates were given and dated, one September 3, and one October 26, 1867. Van Waggoner could read and write, and was bound to look at and read the certificates taken, and must be presumed to have done so at the time. On the 7th of October, 1868, Van Waggoner proved his demand on said certificates against said Morse in bankruptcy, making affidavit that said Morse was justly indebted to him in the amount of said certificates, and on the 38th of April, 1873, received a dividend [589] upon such demand in the sum of $38.34. After this delay in seeking to disaffirm the contract, and after distinctly affirming it by proving the certificate in bankruptcy as a debt of Morse, and receiving a dividend thereon from the assets of said Morse from his assignee in bankruptcy, it seems to me it is too late to seek to dis-affirm the contract made by and in said certificate between said Van Waggoner and Morse, and seek to charge the bank as the real debtor, and that all claim upon said certificates as against said bank is thereby waived and relinquished. The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event. Judgment reversed and new trial granted.