Crane v. Dygert

By the Court, Sutherland, J. The challenge to the array was properly overruled. The act, (1 R. L. 328, sec. 11,) does not limit the drawing of the jury to any particular number of days before the sitting of the court at which they are to serve. They must be drawn at least 14 days before the court; but it need not be precisely 14 days. The matter seems to be left in some degree to the discretion of the clerk. In some counties a longer time than this may be highly expedient, if not necessary. The panel in this case was drawn on the 16th January for the 9th March. If the clerk had a discretion upon the subject, we cannot say, upon this record, that it has been abused. The fact that the jury for the court of common pleas and general sessions were drawn at the same time, forms no ground of objection to this panel. They were kept entirely distinct, as much so as though the drawing had been on different days, and a panel of each was given to the sheriff. In Gardner v. Turner, (9 Johns. R. 260,) the clerk drew out 72 names and put them in a list, and then arbitrarily designated 36 names as a panel for the circuit, and the other 36 as a panel for the court of common pleas, and directed the sheriff to summon them accordingly. The clerk in fact selected the jurors in that case. Not so here. The motion in arrest must therefore be denied. As to the bill of exceptions, the variance between the execution, produced in evidence, and that stated in the declara [678] tion was not material. The endorsement, as far as it is set forth, is accurate, and the variance is merely in the omission to aver that the sheriff was directed to levy interest as well as the damages and costs. It could raise no doubt as to the identity of the writ. The description is perfect in every other respect. In Stiles v. Rawlins and others, (5 Esp. R. 133,) cited by the defendant’s counsel, the declaration stated that, the writ was endorsed to levy £600, together with poundage, officer’s fees, and other legal charges and incidental expenses. The writ produced did not contain the concluding direction. It was not an omission to state what was upon the writ, but it was an affirmative allegation that it contained an endorsement which in point of fact it did not; that, too, was an action for a false return, in which the plaintiff would be held to strict proof. The evidence of the receipt of the money by the defendant upon the execution, before the commencement of this suit, was prima facie sufficient. The suit was commenced as of October term, 1826. The execution was tested the 13th of May, and returnable the 1st Monday of August, 1826. It was received and levied by the sheriff on the 29th of May, as appears by his own endorsement. The sheriff’s return upon the writ contains the evidence of the receipt of the monkey by him. The sheriff admits that he has received the money, but does not state when he received it. The execution having been actually levied by him, upon personal property sufficient to satisfy it, on the 29th May, 1826, he had abundant time to sell and convert that property into money before the return day, and it was his duty so to have done; and as between' him and the plaintiff, he is in that respect to be presumed to have done his duty. Whether it Would have been competent for him to have shewn that the money was not in fact received by him until after the commencement of this suit, or whether the time of its actual receipt was material or not, it is unnecessary to consider. The motion for a nonsuit on this ground was properly refused. It has already been decided in this cause, when it was formerly before us upon demurrer, (1 Wendell, 534,) that a demand of the money before suit brought was not necessary, and that the payment of the money by the sheriff to the clerk [679] of the court, after the commencement of the suit, was no defence to the action. Interest was properly allowed from the time when the money was paid into court by the sheriff. That was seven months after the return day of the execution, when he is presumed to have received the money. If the payment into court was no defence to the sheriff, as we have held, then the money is to be considered as having remained in his hands, in violation of the plaintiff’s rights and of his own duty, and on every principle he ought to be charged with interest. An ordinary agent or attorney is not chrageable with interest on money received for his principle, if he duly advises his principal of its having been received, until payment is demanded from him, (Williams v. Storrs, 6 Johns. Ch. R. 350,) unless he has received special instructions to remit as fast as received. The sheriff is directed by the execution not only to receive the money, but to bring it into court on the return day. If he complies with this mandate, he is safe. If he does not, but retains the money in his own hands, he violates his duty, and has no claims, upon any principle, to an exemption from the payment of interest. It is money had and received to the plaintiff’s use. Motion for new trial denied.