
    CHARLES SHIELDS, Respondent, v. THE NIAGARA SAVINGS BANK, Appellant.
    
      2 B. 8., chap. 7, art. 4, §54—Jurors — summoning of talesmen — chap. 210 of 1861 —chap. 409 of im — chap. 16 <1871.
    The provision's of the Revised Statutes (§54, art. 4, chap. 7 of 2 R. S.), only authorize the summoning of the talesmen for a single cause, ready and moved for trial. They do not authorize the summoning of jurors to serve for the whole term, and this statute is so far modified by chapter 210 of the Laws of 1861, that the summoning of talesmen from the bystanders can only be done by consent of the parties; otherwise the panel of jurors must he filled by drawing from the box of jurors of the city or town where the court is held. The act of 1861 is not affected by chapter 409 of 1870, or chapter 16 of 1871.
    This is an appeal from an order at the Special Term denying a new trial, and from the judgment there rendered.
    This action was brought upon two certificates of deposits, which the plaintiff alleged were made by one Morgan Van Waggoner, in the defendant’s bank, a corporation duly chartered by the legislature of the State, and doing business at Lockport.
    The certificates of deposit were as follows :
    “ $100.
    “No. 1909. Banking House of D. Morse & Co.,
    “ Lockport, N. V., October 26, 1867.
    “Morgan Van Waggoner has deposited in this bank one hundred dollars to the credit of himself, and payable to his order only on the return of this certificate, in current bank notes.
    “ $100.
    “(Signed) DANIEL MORSE & CO.”
    
      The other certificate was in the same form, except it was for $150, and was dated September third, and was No. 1893. These certificates, before the commencement of the action, were duly indorsed, and sold and delivered by said Waggoner to the plaintiff.
    On the trial it was proved that Gr. W. Jermain was president of said bank at the date of the said certificates, and Daniel Morse was its secretary and acting financial officer. That at the same place, the said Morse also carried on a private or individual insurance, brokerage and banking business, under the name of Daniel Morse & Co. That over the door and window of said bank was "a sign, in large letters: Niagara County Savings Bank; and that on the window curtain, on the inside of the window, was a sign indicating the private or personal business thefe done by said Morse. It appeared on the trial that said Morse had failed and gone into bankruptcy before the transfer of said certificates to the plaintiff, and that said Waggoner had duly proved his debt for the amount of said certificates in such proceedings, and had received a dividend of $38.34 from the assignee in bankruptcy of said Morse.
    Upon the impanneling of the jury, on the trial, it appears that ten of the jurymen were talesmen, summoned by the sheriff under an order of the conrt, made on the first day of the court, which, it appears from the minutes, commenced on the first day of September, and this trial took place on the sixth of the same month; that these ten jurymen were summoned and sworn as talesmen, and the name of not one of them was drawn from the box containing the names of jurors for said county. The counsel for the defendant challenged these ten jurors, for the reason that they were not drawn from the box from which the names of petit jurors are drawn on the regular panel. The challenge was overruled, and the defendant’s counsel duly excepted.
    The defendant’s counsel, at the close of the plaintiff’s case, and also at the close of the trial, moved for a nonsuit, on the grounds: 1st. That there was no sufficient evidence of any deposit "by Wag-goner with the defendant as claimed; 2d. That Waggoner having proved his claim against Morse in bankruptcy, the demand was extinguished as against the defendant, if it ever existed; and 3d, that the plaintiff had proved no demand of the defendant before the suit was brought. These motions were respectively denied, and the defendant’s counsel duly excepted.
    The jury found a verdict for the plaintiff for $301.57, upon which judgment was entered up, from which the defendant duly appealed to this court.
    
      L. F. & 6r. W. Bowen, for the appellant.
    
      B. J. Ehmting, for the respondent.
   E. Darwin Smith, J.:

The first exception for our consideration, relates to the impanneling of the jury.

Ten of the jurors drawn for the trial of the cause were talesmen, not drawn from the box containing the names of petit jurors for said county, but summoned by the sheriff, by the order of the court, to serve for said circuit. They were drawn on the first day of the court, and their names placed in the box to serve for the term, and not for the trial of this particular cause. The court began on the first day of September, and this cause was tried on the sixth.

I cannot see how the regularity of the proceedings, in impanneling the jury, can be upheld. A talesman is a juror summoned to fill up a panel, for the trial of a particular cause. The court, under the Revised Statutes, could supply the deficiency in the panel by order made at the time. It could, whenever a sufficient number of jurors duly drawn and summoned did not appear, and could not be obtained to form a jury, direct the sheriff to summon from the bystanders, or from the county at large, so many persons qualified to serve as jurors, as should be sufficient.

This provision only authorized the summoning of talesmen for the single cause ready and moved for trial. It did not authorize the summoning of jurors too fill the panel, to act or serve” for the whole circuit. And this provision, in respect to talesman, is clearly repealed or modified by the act of 1861, entitled “An act to amend the Revised Statutes in relation to trials by jury,” so far that the summoning of talesmen, by order of the sheriff, from the bystanders or from the county at large, can only he done by the consent of the parties to the action. Otherwise, the, panel in such a case can only be filled by drawing from the box of jurors of the city or town where the court is held, kept and produced for that purpose, pursuant to the provisions of said act. This act of 1861 expressly repeals all acts and parts of acts inconsistent therewith.

This provision has, and can have, no other operation or effect than to repeal said section 54 of the Revised Statutes, so far as it provides or allows the summoning of jurors from the bystanders, or from the county at large, by the sheriff, to serve as jurors in any court except as above stated. The object of this statute, and the mischief it was intended to remedy, was-to prevent sheriffs from filling up the panel of jurors, when there was a deficiency in the regular panel, from a class of professional jurors, or from persons standing by in the court rooms, ready to he summoned and called for such purpose.

This statute has no application to criminal trials. In the case of The People v. Mallon, it was held that section 3, of title 5, chapter 11, part 4 of the Revised Statutes, page 733, providing for the filling of the panels for the criminal trials when twenty-four names of jurors duly drawn did not appear, was not repealed, and was not affected by the statute of 1870.

This act and the act of 1871 provide for procuring additional jurors for the Circuit Courts and Courts of Oyer and Terminer, by order directing the drawing of the names of such required jurors from the county box containing the names of petit jurors for said county. These acts do not affect the act of 1861, which still remains in full force.

The challenge of the ten jurors at the circuit was valid, and the exception to the decision overruling such exception, well taken.

But upon the merits I think the plaintiff ought to have been nonsuited. The plaintiff showed no tight of action. The certificates upon their face, in form and legal effect, were contracts between Yan Waggoner and Morse. If by reason of any fraud of Morse or the bank, the certificates were put in their present shape, and the name of Daniel Morse & Co., signed thereto was substituted for that of the proper officer of the defendant’s bank, to bind said bank upon the face of the certificates, Yan Waggoner was bound to act promptly in disaffirming said contract, and demanding his money or a certificate proper in form to bind the bank. The certificates were given and dated, one September 3, and one October 26, 1867. Yan Waggoner could read and write, and was bound to look at and read the certificates taken, and must be presumed to have done so at the time.

On the 7th of October, 1868 Yan Waggoner proved his demand on said certificates against said Morse, in bankruptcy, making affidavit that said Morse was justly indebted to him in the amount of said certificates; and on the 28th of April, 1873, received a dividend upon such demand, in the sum of $38.34.

After this delay in seeking to disaffirm the contract, and after distinctly affirming it by proving the certificate in bankruptcy as a debt of Morse, and receiving a dividend thereon from the assets of said Morse from his assignee in bankruptcy, it seems to me it is too late to seek to disaffirm the contract made by and in said certificate between said Yan Waggoner and Morse, and seek to charge the bank as the real debtor; and that all claim upon said certificates, as against said bank, is waived and relinquished.

The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide event. 
      
       Section 54, art. 4, chap. 7, p. 437 of 2 Revised Statutes,
     
      
       Chap. 210, Session Laws, p, 528.
     
      
       3 Lans., 224.
     
      
       Chapter 409, page 952.
     
      
      
         Chapter 16.
     