General
Cole against Perry
6 Cow. 584·New York Supreme Court·1827·NY
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Opinion
Cole against Perry.
ALBANY,
Feb. 1827.
J. L. Viele, for the defendant, moved that the verdict rendered for the plaintiff in this cause at the last Rensse-^aer c*rcu^J se* aside, on the ground of irregularity in drawing the petit jurors. He produced a certificate of the circuit clerk, stating that the names of the jurors summoned an(j empannelled at the circuit, were written on several r ' and distinct pieces of paper, being all, as near as might be, °f equal size; and put into boxes open at,the top by an or-jfjce 0f about five inches in diameter, from which they J were drawn to compose the several juries. That they were not rolled or folded together. The counsel also pr0<jUced an affidavit, showing that the names of the iur-r , . . ° J ors were easily and distinctly visible to the person drawing. That the course was to draw the ballots from one box, and put them into another, till the drawing was through. He cited the statute, (sess. 49, ch. 309, s. 4.)
The statute lotingforjuroi (m 49, ch. merely directs iy; and though it be violated, this is no vlng'íosetasídé the verdict, unless the irregularity be object-time^or^there be some abuse or injury to the party moving,
H. P. Hunt, contra,
read an affidavit of the deputy clerk of.the circuit who drew the jury, denying all abuse, and stating distinctly that he did not see the names till after they were drawn ; and that no objection was made to the manner of drawing. He also read an affidavit of the plaintiff’s attorney, shewing that no objection was made by the defendant to the manner of drawing in this cause. He cited 1 Dunl. Pr. 675; 6 Taunt. Rep. 460; 5 Cowen, 269 ; 1 id. 221; 2 id. 589 ; 3 id. 355; 3 John, Rep. 252.
[MAJORITY — Curia.]
Curia.
The statute relied upon is merely directory to the officer drawing the ballots. We have often holden this in relation to statutes of a similar character. No abuse or injury to the defendant being pretended, and no objection made at the time, the mistake of the officer is not a ground for setting aside the proceedings.
Motion denied.