
    William Richardson Atlee against Mary Shaw and Thomas Shaw, executors of Samuel Shaw.
    The court may award a tales de circumsiantibus, on a defect of special jurors under the act of 29 March 1805.
    A special jury had been struck for the trial of this cause. Upon the panel being called, a sufficient number of jurors did not appear, and the plaintiff’s counsel applied for a tales de cir-mmstantibus.
    
    Mr. Ingersoll for the defendants
    submitted to the court whether this could be done in the case of a struck jury, under the late act passed 29th March 1805. It had been much doubted at the bar, the provision for the awarding a tales from the bye-standers, in the 10th section, having no reference to the section immediately following, wherein the proceedings in case of struck juries were ascertained. It now became necessary to fix the practice of the court in such cases.
    Messrs. T. Ross and Morgan, pro quer.
    
   By the Court.

We do not find any provision in the British statute 3 Geo. 2, c. 25, (vide sect. 15. 6 Ruff. stat. 28,) authorizing the award of tales men, and yet a tales may be awarded by the courts at Westminster, even in the case of a special jury. 2 Wils. 366. 5 Term Rep. 453. Under our old act of 19th March 1785, 3 Dali. St. Laws, 265, the 12th section provides for the return of bye-standers without reference to the 17th section which directs how special juries shall be struck, and yet the uniform practice of the court has been in such instances to direct tales on the defect of the special jurors, at the prayer of either party. The same principle would govern for the sake of *justice, under the jury act of 26th March 1805, 7 St. Laws, 183 ; but the words are much stronger therein as *■ to this point, as it relates to the city and county of Philadelphia. The 2d section directs, that an additional wheel to be numbered No. 3, shall be provided for that city and county, for which a sufficient number of names shall be selected and deposited therein for special jurors, &c. The 10th section directs, that if a sufficient number of persons so summoned and returned as aforesaid, shall not appear, &c., the court shall order the jury to be filled up from qualified bye-standers; so that this section clearly refers to struck jurors, as well as to the general panel. The court therefore feel themselves bound to grant the motion.

The sheriff accordingly returned the tales men, and the plaintiff obtained a verdict, without opposition.  