
    G. M. Cannon v. W. J. Whitthorne, Clerk.
    Jtooe. Talesman. Compensation. Section 4033, Code, provides: “Tales jurors receive no compensation unless they serve more than one day, in which case they receive the same pay for each day’s service as the regular jurors.” Where a talesman remained undischarged for ten days, but did not sit at any time for two days consecutively; held, that he was entitled to compensation for ten days.
    FROM MAURY.
    From the Circuit Court, September Term, 1871. William P. Martin, J.
    W. C. Whitthorne for the juror.
    No brief on file contra.
    
   Freeman, J.,

delivered the opinion of the Court.

The question presented in this case is, whether a party summoned by the Sheriff, under an order of the Court, as a juror, to be present in court, and remain until discharged, and who obeyed the summons, and was not discharged for ten days, and who was elected as a juror four several times, and served on juries four different days, but not for two consecutive days together, can be allowed pay as a juror, for such service, for ten days. The Clerk refused to give him a certificate of service, which action was sustained by the Circuit Judge, from which the party has appealed to this Court.

The sections of the Code upon this subject are as follows: Sec. 3993, “ If the County Court fail to nominate, or the persons nominated fail to attend, the court shall designate other good and lawful men, and direct the Sheriff to summon them as jurors, and the persons so summoned shall act as such.”

Sec. 3994, provides: Persons summoned in this way may be discharged from day to day and others daily summoned if necessary, or may be retained for the term, at the discretion of the court.”

By .the next section it is provided: Every person so summoned, who fails to appear and serve, may be fined at the discretion of the court, not exceeding twenty-five dollars, &c.”

By s. 4033, it is provided: “Tales jixrors receive no compensation unless they serve more than one day, in which case they receive the same pay for each day’s service, as the regular jurors.”

We think that, taking these sections together, they mean, that when a talesman is summoned, and serves but one day, and is detained but one day, and not over night, as provided for in the next section, he gets no pay. In other words, he gets none, if discharged the same day summoned, after that day’s service. But if he is summoned and remains under that summons as a juror more than one day undischarged, he is entitled to be paid for the time he is in attendance on the court under its order, and this whether he has sat in the jury-box continuously for more than one day or not.

His attendance is compelled, and he should receive compensation till discharged, provided he is thus compelled for more than one day.

This judgment will be reversed, and the case remanded with directions for Clerk to answer the alleged facts 'presented in the petition, and if they are shown to be true, the Clerk will be ordered to issue the certificate as prayed for.  