Farrington v. Morgan

20 Wend. 207 | N.Y. Sup. Ct. | 1838

By the Court, Cowen, J.

The proceedings must be reversed. The statute, 2 R. S. 423, § 35, 2d ed. directs that the magistrate shall, in order to form the jury, "nominate eighteen respectable persons qualified to serve as jurors in courts of record,” who are to be summoned; and by ^ 36, twelve are to be ballotted for as the jury of trial.

In this case, twenty were summoned, and the jury formed from that number. This being a summary proceeding in derogation of the common law, the statute should be strictly pursued ; and that must appear affirmatively on the return. The summoning of twenty persons was an excess of jurisdiction. It Is said omne majus in se continet minus, but that might equally be said of an hundred or a thousand. The error would be fatal in any court, an objection being taken as it was here. It would be good cause of challenge to the array. But above all, in this summary proceeding it should appear expressly that the eighteen nominees of the magistrate formed the jury of ballot; and that twelve of the same eighteen, they being all summoned, formed the jury of. trial. In Rex. v. The Commissioners of Sewers of Somerset, 7 East, 71, the jury having been improperly summoned, the proceedings were quashed, although the defendants appeared and interposed no objection. In that case the sheriff’s return was informal, being of the foremen of the juries ; not the juries themselves as required by the act. Lord Ellenborough, C. J. went so far as to say there was a want of jurisdiction, which might be taken advantage of as well, after as before verdict; and even consent of parties could not give jurisdiction. And in Birket v. Crozier, Mood. & Malk. 119, the venire being too narrow, as not directing the sheriff to summon from the county at large, but from those of the county resident at the Tower Hamlets} the collector acting under a consequent warrant of distress was holden to be a trespasser. Summary proceedings are, in general, open to objection for technical omissions, imperfections or defects in the return, and proceedings under the landlord and tenant’s act are not an exception. They are not like proceedings in a justice’s court, expressly required by statute, vid. 2 R. S. 185, § 181, 2d ed., to be liberally construed so far as form is concerned; but the magistrate must shew a strict compliance with the statute at every step. He can not order twenty jurors, simply because the statute requires him to nominate but eighteen. Much is sought to be inferred by the counsel for the defendant in error from general words: as directed by the statute, &c. That will not do. The return should show particulars. It is quite too general in more respects than one. Why does the justice say he did not know but the jurors were properly qualified 1 What sort of compliance with the statute is this, which commands him to know and nominate proper persons?

Proceedings reversed.