Conkey v. Northern Bank

By the Court, Smith, J. The mistake in the notice of trial in this case could hardly have occasioned surprise. But if it did so, as the attorney of the defendant below was in attendance when the cause was called, he could have made his affidavit of surprise, which would have doubtless been considered by the court. As he did not do so, it is reasonable to sup [449] pose he could not conscientiously;_ especially as the notice/was entitled of the “ Outagamie circuit court,” and of the proper term. The county seat of that county is fixed by law, and every one is supposed to know it; as also that the terms of the circuit court are held at tire county seat. "We think therefore that the mistake was wholly immaterial, and the court did right in disregarding it, especially us no affidavit of surprise was made. Nor was the challenge to the array of jurors sufficient either in form or substance. It is no cause of challenge to a juror that he served at a previous term of the court, or that he was not summoned fifteen days before term. - The challenge to the array must be certain and specific. 3 Burr. R., 140; and is an objection to all the jurors returned by the sheriff, collectively. 3 Bl. Com. 358; Coke Litt., 156, 158; and is founded on some partiality or default in the sheriff, or his under officer, or the clerk who arrayed the panel. 3 Black., 359; 1 Archb. Pr., 204; 9 J. R., 260; 1 Cow., 432. There is no intimation of partiality or unfairness, or of kindred, or any improper conduct whatever on the part of the clerk or sheriff; but the only reason assigned is, “a part of said jurors having been drawn at the April Term.” Iiow many, whether one, or two, or more, is uncertain. This is no cause of objection to the other jurors. It is no cause of challenge to the array. It is quite probable that the court would not have compelled the service of a juror who had served at a previous, term, if he had asked to be excused for that reason. It was the privilege of the juror, however, who might avail himself of it or not. There is no error in the record, and the judgment of the court below is affirmed with costs.