
    Cruger against The Hudson River Railroad Co.
    The act amending the charter of the Hudson River Railroad Company (chapter 31 of the Laws of 1847) does not require that all the persons composing the jury of appraisers thereby authorized shall concur in the assessment and appraisal of the damages; an assessment and appraisal, made by a majority upon a meeting of all, is in accordance with the act. Per Johnson, J.
    Such appraisers are a jury within the meaning of that term, as used in section 7 of article I of the constitution. Per Johnson, J.
    Where the act authorizing a railroad company to take land for its use prescribed that reasonable notice, of not less than ten days, should be given to the owner, of the time when the jury to appraise the damages would be drawn; and a plea setting up title by virtue of proceedings under the act alleged that reasonable notice of such time was given; Held, on demurrer to the plea, that a previous notice of not less than ton days was necessary to give the officer jurisdiction, and that the plea was bad; and further Held, that averments in the plea, that the owner appeared before the officer at the time 1 appointed for drawing the jury and objected to the regularity of the proceedings, without averring upon what ground, and that on the day when the jury met to appraise the damages he again appeared and objected to the competency of one of them who was set aside, did not cure the defect as to notice and render the proceedings valid.
    
      The action was trespass, for breaking and entering the plaintiffs close, situate in Westchester county. The defendants’ third plea averred that before the trespasses complained of, to wit, on the 21st of September, 1847, they, pursuant to the provisions of chapter 31 of the Laws of 1847, presented to the county judge of the county of Westchester a petition, stating that it was necessary to take certain lands owned by the defendant, which were particularly described, for the purpose of making and maintaining their road, and in which the other facts required-by the act above mentioned to be stated in such petitions were set forth, and wherein the defendants prayed that a jury of appraisers sliould be appointed. The plea proceeded as follows : “ and the defendants further in fact say, that they did thereupon, to wit, on the day and year heretofore, and pursuant to the said act and the directions of the said judge, then and there for that purpose made, give to the plaintiff reasonable notice that such jury would be drawn at the office of the clerk of the county of Westchester, in White Plains, on the 4th of October, 1847, at ten o’clock A. M.” It was further averred that, at the time and place named in the notice, the plaintiff and the defendants appeared before the judge, “ and upon due proof, by affidavit on that behalf, then and there made to the said judge of such notice, and after hearing the plaintiff, who then and there objected to the regularity of the said proceedings on the part of the defendants, the judge, with the clerk of-the county, did then and there draw from the grand jury box of the county the names of twelve competent and disinterested jurors,” who were named, and who, as it was averred, by an order then and there made by the judge and entered in the common rule book of the county court, were appointed appraisers of the damages to be sustained by the plaintiff by reason of the taking of his land. The plea further averred that, at the time and place last mentioned, the county judge appointed the 20th of October, at ten o’clock A. M., at the house of .one Dykeman, for the appraisers to meet, and caused “at least ten days’ notice, in writing, to be given to the plaintiff personally, setting forth the time and place of such meeting of the appraisers, for the purpose of completing the appraisement that at the time and place appointed for the appraisers to meet, the plaintiff and the defendants appeared before the county judge; that three of the appraisers appointed did not attend, and a fourth “ was objected to by the plaintiff as incompetent to serve, and was decided to be incompetent by the judge,” and that, thereupon, the judge nominated four persons competent to serve as jurors in place of the three who omitted to attend and the one rejected, who, with the eight originally selected, after taking the oath prescribed by law, did then and there assess the value of the land to be taken and the damages of the plaintiff at a sum named; the plea then stated that in the said appraisement eleven of the appraisers concurred and one dissented ;” and tha¿ afterwards, to wit, on the 20th of November, 1847, the eleven appraisers who concurred “ did make and sign an inquisition, in writing, of their said appraisement, specifying the items appraised, and containing a minute and accurate description of the land appraised,” which was the same described in the declaration. The plea averred the subsequent proceedings prescribed by the act to vest in the defendants the land appraised, and that thereupon, in constructing and maintaining their road, they entered upon and did the acts complained of.
    To this plea the plaintiff demurred, specifying as causes of demurrer: 1. That the matters in the plea set forth were hot a justification of the trespasses complained of; 2. , That the plea did not show that reasonable notice of not less than ten days was given to the plaintiff of the time and place of drawing the jury, and that it did not show that the county judge acquired jurisdiction to draw the jury; 3. That it appeared by the plea that only eleven of the jurors agreed to the appraisal and that one dissented from it; 4. That the proceedings stated in the plea were not in conformity with the act, and that the defendants, did not, by means thereof, acquire title to the land or a right to enter thereon. The plaintiff joined in demurrer, and the supreme court, sitting in the second district, gave judgment thereon in favor of the defendants. The plaintiff appealed to this court.
    
      John Van Buren, for the appellant.
    I. The plea does not show that the judge caused a written or printed notice of at least ten days to be given the appellant of the drawing of the jury, or that any proof of such notice was furnished the county judge. This proceeding being one in rem, and not personal, the judge failed to acquire jurisdiction, and the subsequent proceedings- were void. (Denning v. Corwin, 11 Wend., 647; Bloom v. Burdick, 1 Hill, 140; Graves v. Otis, 2 Hill, 468, and note (a); Sharp v. Speir, 4 Hill, 76; Sharp v. Johnson, 4 Hill, 96; Striker v. Kelly, 7 Hill, 21; Corwin v. Merritt, 3 Barb. S. C., 341.)
    II. The constitution of 1846 having gone into effect prior to any proceedings for the taking of appellant’s land, he was entitled to the benefit of its provisions, and to have the compensation to be made for the land ascertained by a jury, or by not less than three commissioners, to be appointed by a court of record in a manner to be prescribed by law. As neither the act of 1846 nor its amendment in 1847 provided for the appointment of commissioners by any court of record, the persons drawn as jurymen, though named appraisers, could only act as a jury. 1. The act of 1847 (Laws 1847, p. 23), although it allows the certificate or inquisition of the appraisement to be signed by a majority of the appraisers, does not necessarily contemplate that the jury who are required to “ assess the value of the lands taken” should act in making such assessment other» wise than as a common law jury, or that the decision of but seven (a majority) should be final. 2. If the act admits of the construction, that the decision of a majority of the twelve .jurymen should decide the question of value of the land taken and damages sustained by the owners, it is unconstitutional. The provision in the constitution of 1846, for the trial or determination by a jury of the question of compensation "to be made the owner of the land taken, was intended to supply a defect or omission which existed in the previous constitution. (Livingston v. Mayor, &c., of New-York, 8 Wend., 85; Beekman v. Saratoga R. R. Co., 3 Paige, 45.) The provision for the trial of this question “ by a jury,” in the 7th section of the 1st article of the constitution of 1846, contemplates no other jury than a common law jury, with its incidents of trial and verdict, which is secured to the citizen by the 2d,. 8th and 17th sections of the 1st article. (Debates in Convention (Atlas ed.), pp. 118, 125, 544-547.) The legislature, in cases where it has prescribed by law that this question of compensation shall be ascertained “by a jury,” has no more right to reduce the number below twelve, or to give effect to a decision or verdict which was not unanimous, than to designate a jury of three and give effect to a decision of but two of them. (De Lolme on Cons., 121, 124, 250; 3 Bl. Com., 358, 365, 375, 376; 2 Hale's His. Com. L., 137, 141, 149, 150; 1 Reeve's Hist. Eng. L., 83-85.) Although our statutes prescribe the manner of drawing and selecting jurors in cases where a trial by jury is a matter of .constitutional right, they act merely in aid of the common law, and would undoubtedly be void if they deprived a party of the right to the number of twelve, known to the common law, o.r to the benefit of their unanimous verdict; (2 R. S., 423, § 61; 2 R. S., 735, § 14; 1 R. L., 331; Laws 1847, p 25; Douling v. The State, 5 Smedes & M., 664.)
    
      Ch. O'Conor, for the respondents.
    
      I. After appearing and contesting the case before the judge, the plaintiff must be deemed to have waived all objections to the want of formal notice. (Mohawk R. R. Co. v. Artcher, 6 Paige, 84; 4th ib., 519.)
    II. The appraisement was regular, although one of the jury of appraisers dissented. (Constitution of N. Y., 1846, art. 1, § 7; Laws of 1847, p. 25, § 4.) 1. The number of twelve has never been considered to be fixed by the constitution. Six men formed the jury in justices’ courts under the $25 acts. (1 R. L. of 1813, p. 391, § 9.) When the jurisdiction was' extended to $50, the same number was allowed. (2 R. S., 225, § 1 (1st ed.); ib., p. 242, §§ 94, 100.) When the jurisdiction was raised to $100, the same number was allowed. (Laws of 1840, p. 265, § 2.) 2. If the legislature may reduce the number of the jury, they must have the power to dispense with the assent of a minority. 3. Juries have consisted of various numbers. The grand jury is of an indefinite number. (2 R. S., 723, § 23.) The grand assize was of an indefinite number. (1 Roscoe on Real Actions, 299, and notes; 1 R. L. of 1813, p. 51, § 4.) The jury .of attaint consisted of twenty-four men. (1 Com. Dig., Attaint, ch. 1.)
    II. The jury of appraisers of real estate was known in legislation before the constitution of ’47, and the word jury in that instrument should therefore be construed according to the subject matter. Three different juries are referred to, art. 1, §§ 2, 6, 7, 8.
    III. The provision allowing as valid an appraisement signed by a majority of the appraisers, admits of no other rational interpretation than that a majority might make the appraisement. (Laws of 1847, p. 25, § 4; 3 R. S. of 1830, p. 555, §§ 27, 28; Downing v. Rugar, 21 Wend., 182, 218.)
    IV. The constitutional objection is altogether fanciful. No substantial difference exists between the jury and the commissioners named in the constitution; nor is there any substantial difference between the judge of the county court and the county court itself.
    Judge Lockwood held a court of record when he appointed the jury of appraisers. There never was in this state any such thing as a court not of record, according to the general common law import of that phrase.
   Johnson, J.

The appraisement of the plaintiff’s damages was made under the 4th section of ch. 31 of the Laws of 1847, which amended the 10th section of ch. 216 of the Laws of 1846. That section provides for a petition praying for the appointment of a jury of appraisers, for the drawing from the grand.jury box of the county the names of twelve competent and disinterested jurors, who, by an order to be entered in the court of common pleas or county court, are to be appointed appraisers of the damages to be sustained by the owners of the property which is the subject of the appraisement. They are to take the official oath prescribed by the constitution. If, at the time of their meeting to make the appraisement, “ the whole of said appraisers” shall not appear, or any of them shall refuse to serve or be objected to and such objection be allowed, the judge is to nominate and appoint “ other competent persons to serve on juries in the county,’’sufficient to make up the number of twelve, and the said jury” may adjourn from time to time. The section further gives to them the power to examine witnesses on oath, which oath any of “ said appraisers” is authorized to administer, and it is declared that they “ shall, without fear, favor or partiality, assess the value of the land taken and the damages which the owners may sustain.” They are to make a certificate or inquisition of their appraisement, specifying the items appraised, which shall be signed by a majority of the appraisers and shall contain a minute and accurate description of the land appraised, with a map thereof,” and are to present the same, with the testimony taken, to the county clerk, who is to file them in his office, In the subsequent part of the section, the appraisement is spoken of as “ the inquisition of the jury,” ami their finding of the value and damages is called “the verdict of the appraisers,” while they, themselves, are spoken of only as appraisers.

The first question- presented is, whether this section authorizes a majority to decide upon-the amount of damages or whether unanimity is requisite for a decision, notwithstanding that the signature of a majority only is required to the certificate or inquisition of appraisement. In contemplation of law, the signed inquisition is the appraisement. It has no legal existence until it is so evidenced; and when so evidenced, the law looks to it alone to ascertain whether a determination has been made and what it is. The power to make this certificate being given to a majority, and the statute making no other requirement as to its validity in this respect, we are not at liberty to impose any other terms. This construction is, moreover, in harmony with the general provision of law which governs the action of public officers and other persons to whom any power, authority or duty is confided by law. The Revised Statutes expressly provide (2 R. S., 555, § 27) that a majority, upon a meeting of the whole, may act, unless special provision is otherwise made.

Taking this, then, to be the true construction of the act, the next question is, whether it conflicts with section 7 of article 1 of the constitution of this state. That section, so far as it bears upon this case, is as follows: “When private property shall be taken for anypublic use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” The appraisers, whose appointment is provided for in the act in question, are not commissioners appointed by a court of record, within the meaning of the constitution. The language implies that commissioners are to be selected by the court, and assumes that in such selection the court will, or, at any rate, may exercise discretion and judgment in regard to the fitness of the persons to be appointed to perform the duties which will devolve upon them. Providing for a selection by lot and an appointment thereon, would amount to an evasion of the object of the constitutional provision.

The question then remains, whether these appraisers are a jury within the meaning of the constitution. If that term had not acquired a peculiar meaning when applied to this class of cases by prior legislative usage, and had not been continually in use in that special sense up to the time of the convention by which the constitution was formed, I should, without any doubt resting upon my mind, be of opinion that the peculiar tribunal provided by this act was not a jury. That term, when spoken of in connection with trial by jury in the 2d section of the same article, imports a jury of twelve men whose verdict is to be unanimous. Such must be its acceptation to every one acquainted with the history of the common law, and aware of the high estimation in which that institution, so constituted, has for so long a period been held. But from an examination of the statutes upon this subject of taking private property for public purposes, during a period of 20 years immediately preceding the sitting of the convention, it is apparent that the term, “ a jury,’’had been in frequent use as descriptive of a body of jurymen, drawn in the ordinary mode of drawing juries, to whom was committed the appraisement of damages for private property taken for public uses, and whose decision was to be made by a majority. It seems to have been thus used because' the term was descriptive of the civil condition of the persons composing it, and by way of distinguishing between such a body of jurymen and the commissioners appointed by courts under many other acts to perform the same functions. We have been furnished with references to many of these acts by the counsel for the defendants. Among the number passed in 1846, prior to the convention, are chs. 216, 256, 308 and 313 of the Session Laws of that year. In the first named, which relates to the defendants, the petition is directed to be for the appointment of a jury of appraisers; eighteen are to be drawn from the grand jury box;, twelve at least are to meet and act, and a majority of those acting are to sign the inquisition. They are designated in different parts of the act as jurors, and a jury, and as appraisers, and their inquisition as that of the jury; The two next chapters cited differ from the first only in requiring the drawing of twelve jurors, and that the whole number should act, a majority signing the inquisition. The provisions of ch. 313 are identical with those of ch. 216. Among the laws of 1845, chs. 328 and 350 provide for a jury of appraisers, six in number, a majority of whom are to make the certificate, and they are called indifferently, throughout the acts, jurors and appraisers, and jury of appraisers. Going back to 1838, chs. 224, 225 and 290 contain provisions in substance the same as the last cited acts. In 1836, chs. 260, 261, 262, 269, 349 and 477, all contain similar provisions, twelve being the number, and a majority being authorized to sign the inquisition. In 1834, ch. 249 provides for the drawing of twelve persons to serve as a'jury in the assessment of damages ; from these the judge is to draw six by lot, and the verdict of the majority of the said jury is- to fix the amount of damages.

These instances are certainly sufficient to establish the position that at the time of the convention there was a known legislative usage in respect to this subject, according to which the term “jury” did not necessarily import a tribunal consisting of twelve men acting only upon a unanimous determination, but on the contrary was used to describe a body of jurors of different numbers and deciding by majorities or otherwise as the legislature in each instance directed. The convention ought therefore to be deemed to have used this" term in the sense in which it was then known to the law, and to have selected, ont of the modes of proceeding theretofore in use in taking private property, those two modes which they thought best calculated to secure both public and private rights—appraisement by commissioners, or by juries,—giving to this latter term not the restricted meaning which belongs to it when used in reference to trials civil or criminal, but the broader sense which it had acquired by legislative use. Had they intended to confine it to the narrower meaning, familiar as they were with the previous practice upon the subject, I think they would have found clear terms to express that intention. Upon this question therefore I am of opinion with the defendants.

Another objection made to the plea is, that it does not show that notice of the drawing of the jury was given not less than ten days prior to the time of its being drawn, nor that such a notice was ordered by the judge to be given.

The averment of the plea is of reasonable notice, while the statute directs the judge to order reasonable notice of not less than ten days to be given. The plea further shows that upon the day fixed for the drawing of the jury, the plaintiff appeared and objected to the regularity of the proceedings, but the ground of the objection is not stated. The judge, notwithstanding the objection, proceeded to draw the jury and fix a day for their meeting. Of this meeting proper notice to the plaintiff is averred. On the day fixed he appeared, and upon his objection one of the jurors was set aside as incompetent. The jury then proceeded to make their appraisement, but the plea does not show that the plaintiff appeared before the jury.

If the plaintiff had entirely disregarded the notice which he received, it is quite clear that he would not have been bound by the proceeding. The authority given by the statute to the judge to whom the petition was presented, was merely to order reasonable notice of not less than ten days to be given of the drawing of the jury. This authority is not shown to have been pursued. The notice was in the nature of the first process in the case. It was the only-means which the law had provided to warn the party that a proceeding for a compulsory sale of his property was pending. (Schneider v. McFarland, 2 Comst., 462.)

The question, then, is, whether the plea discloses anything which we can say amounts to a waiver of the plaintiff’s right to the statutory notice. We are not to assume in favor of the defendants anything which they have not averred, for the law does not presume that a party’s pleadings are less strong than the facts of the case will warrant. The plea shows that the plaintiff appeared and objected to the regularity of the proceedings. Upon this demurrer we must take it that the invalidity of the order was the very ground of the objection, for if the plaintiff had put himself upon some other ground it would have been so averred. So far the plaintiff had done nothing to waive the defect in the first process. Upon the plea there is no room to say that proper notice was proved to the judge to have been given, because the averment of proof of notice contained in the plea is only of due proof of the notice before mentioned, which upon the face of the averment, was insufficient notice; and moreover, the objection lies back of the defect in the actual notice, in the defect of the order of the judge. Nor does the plea disclose any adjudication by the judge, that the order or the notice was sufficient, which might bring the case within the decision in Sheldon v. Wright (1 Seld., 497). It must stand, therefore, upon its sufficiency under the statute, unless the appearance of the plaintiff and his objection to the competency of a juror is a waiver. In Dyckman v. The Mayor, &c. (1 Seld., 434), and in The Mohawk R. R. Co. v. Artcher (6 Paige, 84), an appearance and litigation upon the merits was held to be a waiver of a defect otherwise available. I think nothing short of an actual litigation upon the merits should be regarded as sufficient to conclude the party as an implied waiver of such a defect, for nothing less than this makes out an intention to submit to the jurisdiction after an objection made to the court’s going on upon the ground that the steps taken to get jurisdiction'of the person were not warranted by law. Upon this ground I am of opinion that the plaintiff is right in his demurrer.

The judgment should be reversed, and judgment rendered for the plaintiff upon the demurrer, with leave to the defendants to amend upon the usual terms.

Edwards, Parker, Allen and Selden, Js., concurred in the foregoing opinion. Ruggles, J., was of opinion that the plea was' sufficient and was in favor of affirmance. Gardiner, C. J., and Denio, J., not having heard the argument, took no part in the decision.

Judgment reversed.  