
    The Inhabitants of Amherst versus The Inhabitants of Hadley.
    It appeared upon the face of a venire and officer's return, that a juror was drawn more than twenty days before the sitting of the court, contrary to St 1807, c. 140, § 4, but the fact did not come to the knowledge of a party until after a verdict against him. Held, that this was no cause for setting aside the verdict upon motion, and that it would not sustain a writ of error.
    Judgment will not be arrested in a capital case because a juror belonged to another county, or because the foreman for the trial of civil actions served as foreman in the capital case without being specially appointed.
    It is irregular for a talesman to sit in any cause, except the one for which he is returned 3 but the objection must be made before verdict.
    In this action, which was assumpsit, a verdict having been found for the plaintiffs, the defendants moved for a new trial, because one of the jurors was chosen and drawn at a meeting of the inhabitants of Enfield holden more than twenty days before the sitting of the court at which the venire facias was returnable, contrary to St. 1807, c. 140, § 4 ; which fact did not come to the knowledge of the defendants, or of their counsel* until after the verdict.
    The error was apparent upon the face of the venire and officer’s return.
    
      Davis, (Solicitor-General,) G. Bliss and Strong, in suppoit of the motion.
    This defect is not cured by the statutes of jeofails. Rowland's case, 5 Co. 42; Blackamore's case, 8 Co. 324; Wray v. Thorn, Willes, 488; Arundel's case, 6 Co. 14; Baynham's case, 5 Co. 37; Fines v. Norton, Cro. Car. 278; Calthorp v. Newton, Cro. Jac. 647; Morgan v. Wye, Cro. Eliz. 574; Pawlet v. Christmas, ibid. 586; Corn v. Paslow, ibid, 894; Woeden v. Saunders, Barnes, (3d. ed.) 460; Cooper v. Bissell, 16 Johns. Rep. 147; Sellon’s Pr. 490. In Jeffries v. Randall, 14 Mass. Rep. 206, a new trial was refused, because the party neglected to make the requisite inquiry on the voir dire, by which he might have ascertained the fact that would have disqualified the juror. But in the present case the juror’s answers to the usual questions on the voir dire would not have shown that he was illegally drawn. He, as well as the party, might have been ignorant of the fact. The juror could not have been challenged. Challenges to the array hardly exist in this Commonwealth ; and in the present case there was no cause for such a challenge. The People v. M'Kay, 18 Johns. Rep. 212; Norman v. Beaumont, Willes, 484; Greene v. Cole, 2 Saund. 258. Neither could there be a challenge to the poll, for there was no objection to the person returned. In most cases, a party would have an opportunity of ascertaining any objection to a juryman ; but the processes for summoning a jury are not subject to the inspection of a party. He is not privy to them, and as they issue from, and are returned to the court, he has a right to presume that they are correct. But supposing there might have been a challenge, yet if the party was ignorant of the cause for challenge, or can be shown not to have waived his right, he shall not be prejudiced ; and where this is shown, the principle should be the same in civil cases as in criminal, where the party is never presumed to waive any right. Baylis v. Lucas, Cowp. 112; Parker v. Thornton, 1 Str. 640 S. C. 2 Ld. Raym. 1410; Hungate v. Hammond, Cro. Ehz. 188; State of Connecticut v. Babcock, 1 Conn. Rep. 401; The People v. M’Kay, ubi supra; Russell v. Ball, Barnes, (3d ed.) 455; Norman v. Beaumont, ubi supra. In Jordan v. Meredith, 1 Binn. 27, the party was aware of the objection to the juror before the trial, and in Hill v. Yates, 12 East, 229, it does not appear that the party was ignorant of it. No other rule can be adopted than the one in Lady Herbert v. Shaw, 11 Mod. 119, that “if a party have cause of challenge, and know of it time enough before the trial, if he do not challenge, he shall not have a new trial; contra if he has not timely notice of it.” And this rule is recognized in Bac. Abr. Trial, Q. 4 and 6; 3 Wooddes. 352; Shane v. Clarke & al. 3 Har. & M’Hen. 101.
    The defect here will sustain a writ of error ; and in all such cases, if complete justice has not been done, the Court will grant a new trial.
    
      Mills, for the plaintiffs.
    The defect is cured by the verdict. The defendants knew, or might have known of it, before the trial. At any rate, the plaintiffs are not to suffer from the defendant’s want of vigilance. It required but ordinary diligence to discover the defect, as it was apparent on the face of the record itself. In March, 81, pi. 132, where a juror answered to a name which did not belong to him, the court said the party might have ascertained the fact at the time. The defendants have once admitted that the proper judices facti were returned, and they are precluded from objecting afterwards. Bac. Abr. Juries, I.; Andrews v. Linton, 1 Salk. 265; S. C. 2 Ld. Raym. 884; Lamb v. Wiseman, Cro. Jac. 383; S. C. Hob. 70; Aylet v. Stellam, Sty. 100; Loveday’s case, ibid. 129. In Commonwealth v. Smith, 9 Mass. Rep. 107, it was held, that after an indictment has been received and filed by the Court, no objection of an irregularity in empanelling the grand jury can be offered ; a fortiori, none can be offered in a civil action after verdict, and in respect to a petit juror ; for the person indicted by a grand jury cannot be presumed to be present in court. This case is stronger than Jeffries v. Randall, because here the defect is on the face of the record. In a trial upon an information for a libel, in the case of The King 
      v. Hunt, 4 B. & A. 430, two of the special jurymen were not summoned, and two talesmen were sworn, but the court refused to set aside'the verdict, although the fact was unknown to the party until after the verdict. In Bellows v. Williams & al., Kirby, 166, it was moved in arrest of judgment, that the same person had been on the jury in the court below and in the court of appeal, but the motion was overruled. In Shane v. Clarke, where a juryman was disqualified by being a non. juror, the party could not be presumed to have known that he was a non-juror. On the grounds, both of precedent, and of sound reason, the defendants are not entitled to a new trial. The Court might be easily imposed upon if such an objection were to prevail, as the party might know of the defect and keep it secret till he found the verdict was given against him. It was observed by the court m Hill v. Yates, that extreme mischief might result from setting aside the verdict, inasmuch as the objection made in that case might lie against every verdict at the assizes ; so here, the verdict might be set aside in all the cases in which this juryman sat at the last term.
    
      G. Bliss and Strong, in reply.
    Our objection would in England be conclusive upon a writ of error, and we should be willing to rest the case upon the point, how far the Court could go out of the record upon a writ of error. It appears by the record that the meeting was not held according to law.' In the case of The King v. Hunt, the record was right. This Court has in fact, in Jeffries v. Randall, adopted the principle of the case of Lady Herbert v. Shaw. In some of the cases cited on the other side it appears, or is to be inferred, that the party was not ignorant of the objection before the trial. It is most reasonable to consider the case of Commonwealth v. Smith as turning upon the point, that a Quaker may be a grand juror, or upon the fact, that without him there were eighteen upon the grand jury ; but no argument can be drawn from that case in regard to a petit jury. In a case like that in March, this Court would at once grant a new trial. The verdict was set aside in Commonwealth v. Hussey, 13 Mass. Rep. 22 , because one of the jurymen who tried the cause had been on the grand jury which found the bill. [Jackson J. I recollect a capital trial in the county of Middlesex, where one of the jury was returned as of Medford in the county of Middlesex. After ver diet, exception was taken that the juror was of Boston in the county of Suffolk, which was the fact; but the Court said, that as there was no objection to his personal qualifications, and as the exception was not taken at the trial, it was too late then to take advantage of it. And in a case of rape in Hampshire, the foreman for the trial of civil actions happened to serve as foreman in the capital cause, no foreman having been regularly appointed for that cause. An exception was taken to the ver diet on this ground, but it was disallowed.] The record was right in the case in Middlesex.
    
      
      
        Queen v. Hepburn, 7 Cranch 290.
    
   Per Curiam.

The Court are of opinion, that the motion to set aside the verdict cannot be sustained. No objection is made to the personal qualifications of the juror. It is admitted, or not denied, that his name was regularly in the jury-box of the town of Enfield, and that he was what the law terms liber et legalis homo. This is a sufficient answer to the cases in which the juryman was from a wrong vicinage, or was a non-juror. Had any fraud been proved, or had the defendants suffered any real prejudice, without their fault, no doubt the verdict should be set aside. Had it been shown that the jury were tampered with, which it was the object of the- statute to prevent, in requiring the jurors to be drawn not more than twenty days before the sitting of the court, this would be a good reason for granting a new trial. But here is a mere question of law, whether the defect appearing on the record would be sufficient to sustain a writ of error. The case comes before us, indeed, on a motion for a new trial, which is a summary proceeding, and does not preclude the party from bringing his writ of error if decided against him, but if the Court were of opinion that error will lie, they would grant the motion, in order to save trouble and expense.

The ancient cases are more strict in regard to irregularities of this sort; and there is some conflicting among the authorities ; which is a thing that often happens in matters of practice, as practice is susceptible of continual improvement. One of the strongest cases on the part of the defendants is that cited from Barnes, where a son answered to the name of his father; for which cause the verdict was set aside. But in 12 East, 230, that case was overruled ; and a still later and stronger case has been cited from Barnewell & Alderson.

In the present case, a person who served as a juror was not regularly returned ; but the verdict is not therefore void. The officer may be punishable for not performing his duty, or the juryman may be dismissed immediately, if the objection made in season, or the verdict may be set aside, if the party has sustained any damage ; but the plaintiffs are not to lose all their expenses and trouble, for an irregularity by which the defendants have not been injured, and which was occasioned by an officer over whom the plaintiffs had no control. Though the present defendants may be perfectly fair, yet, if a new trial should be granted, in future cases a party may know of an irregularity, and keep it secret until after the verdict. He ought not to be suffered, in this manner, to take two chances of ob-a verdict in his favor.

Judgment according to the verdict. 
      
      
        Fellow’s case, 5 Greenl. 333. The act (1 R. L. 328, § 11) of New York provides, that the jurors shall be drawn fourteen days before the session of the court at which they are to serve; but it is not a cause of challenge to the array, that the jurors were drawn more than fourteen days before the sitting of the court. Crane v. Dygert, 4 Wendell, 675. Or that the sheriff and cominis sioners took up between two and three weeks in making the selection ana putting the names into the wheels, the law having prescribed no limitation of time. Commonwealth v. Lippard, 6 Serg. & Rawle, 395.
     
      
       A similar question came before the Court at October term, 1822, at Taun ton. At the previous March term of the Court of Common Pleas for the county of Bristol, two jurymen de talibus circumstantibus were returned to complete the panel for the trial of a cause then before the court, and were sworn to give a true verdict in all causes between party and party that should be committed to them. The same jurymen afterwards sat in the cause of Howland v. Gifford, without being again returned, or again sworn. After the verdict, the defendant moved for a new trial on this ground, but the judge overruled the motion, and the defendant filed his exceptions. After argument by Coffin, in support of the exceptions, and L. Williams, on the other side, this Court said, that it was no doubt irregular for the talesmen to serve in any cause, except that for which they were returned; but the objection should have been made before the verdict. The judgment of the court below was therefore affirmed. — Reporter?
        
      
     
      
       If the sheriff return a talesman, in a cause in which his deputy is a party, it ia a good ground of challenge to the juror, but will not support a motion to set aside the rerdict. Walker v. Green. 3 Greenl. 215.
     