NESMITH v. THE ATLANTIC INSURANCE COMPANY

NESMITH a. THE ATLANTIC INSURANCE COMPANY. New York Superior Court; Special Term, March, 1859. Special Jubt.- Reasons why a special jury should not he ordered in the city of New York. Motion for a special jury. This action was one of thirteen suits brought by the plaintiff, as assignor of one Achorn, upon as many insurance policies, issued by various companies, upon the ship Achorn. The vessel was destroyed by fire. The defence was, that the fire was set by the procurement of Achorn. After a very protracted trial, the plaintiff had a verdict, which was afterwards set aside on the'ground of misbehavior of the jury, and a new trial ordered. Upon the second trial the jury disagreed. The plaintiff now moved for a special jury. (2 Rev. Stats., 514.) F. B. Cutting and Gilbert Dean, for the plaintiff. E. W. Stoughton, for the defendant. [MAJORITY — Pierrepont, J.] Pierrepont, J. The statute provides for a special jury, to be ordered by the court when it shall appear “ that a fair and impartial trial will be more likely to be obtained by having a struck jury, or that the importance or intricacy of the cause requires such a jury.” The statute then provides the mode of selecting such jury. A careful reading of the statute, and some considerations of its operations will, I think, convince any one familiar with this city that a fair and impartial trial will be less likely to be obtained by a struck jury. Only twenty-four jurors can be summoned ; how many can be found, how many can attend, how many will have good excuse, is uncertain. But from past experience it is not likely that more than fifteen out of the twenty-four would be able to attend. There is no means of ascertaining their views beforehand, and the range would be so exceedingly limited that, in my judgment, an impartial trial would be much less likely than in the ordinary way. The court will allow every juror to be tried on oath before he takes his seat; there is the entire panel from which to select, and each juror’s partialities, if he has them, can be fairly discovered, and the juror, if unfit, will be excluded from the sitting. The motion must be denied, without costs.