Hunt v. Scobie

• Decision Date: 10 June 1846
• Citation: 45 Ky. 469
• Parties: Hunt v. Scobie.
• Court: Kentucky Court of Appeals

45 Ky. 469

Hunt v. Scobie.

Court of Appeals of Kentucky.

June 10, 1846

Juries. Injunction bond.

ERROR TO THE BATH CIRCUIT.

Apperson for plaintiff.

Peters and French for defendant.

OPINION

MARSHALL JUDGE:

The case stated

IT seems that this action of debt having, as heretofore required by law, been placed upon the docket for the first day of the term, was passed over on that day, upon an intimation that it was to be defended; and that although several times called up, the issues were not completed until after the regular or standing jury for the term had been discharged. The fourth plea of the defendant was in fact filed on the day after the jury was discharged, and the plaintiff having afterwards on the same day filed his replication tendering issue, the Sheriff was then ordered to summon a jury. The defendant objected to this order. But his objection was overruled, a jury summoned, and a trial had which resulted in a verdict for the plaintiff. The propriety of this proceeding is the principal question now presented. And as it does not appear in what manner the jury was summoned or made up, and there was no objection on this score, the question is whether upon the issue being made up, after the discharge of the regular jury, the Court has any authority to try the case, o whether a continuance must be the necessary consequence. This question depends upon the construction of the system of laws adopted in 1836, and subsequently modified, by which the mode of summoning jurors is regulated. Upon looking into these laws, we are satisfied that there is nothing in them which authorizes the conclusion, that by the procrastination of the issue in any particular case until a late day of the term either party should entitle himself to a continuance. But if the Court has no authority to summon a jury after the regular jury is discharged, it would follow, that if when the jury cases were disposed of, one remained in which the issue was not made up, the jury must be detained or adjourned indefinitely until the issue should be formed, or until it should be seen whether it would be formed at that term, or whether for any cause, the case would be continued; or else the mere failure to make up the issue until after the other jury cases were disposed of, would itself render a continuance necessary. It is, however, the evident policy of the law that the jurors who are to be paid for their daily attendance shall be retained no longer than is required by the business of the term, and it is the object of the law and the duty of the Court so to regulate the business as that the jury may be dispensed with as soon as is consistent with the due administration of justice. It would, therefore, be a defect in the system, if it did not provide for, or at least permit the summoning of a jury, whenever under special circumstances, it might be necessary for the trial of a case which should come up, or be made ready, after the general business requiring juries had been...