Kell v. Brillinger

• Decision Date: 28 May 1877
• Citation: 84 Pa. 276
• Parties: Kell <I>et al. versus</I> Brillinger.
• Court: Pennsylvania Supreme Court

84 Pa. 276

Kell et al. versus Brillinger.

Supreme Court of Pennsylvania.

May 11, 1877.

May 28, 1877.

May 11th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, PAXSON, WOODWARD and STERRETT, JJ. GORDON, J., absent

Error to the Court of Common Pleas of York county: Of May Term 1877, No. 109.

William Hay and W. C. Chapman, for plaintiffs in error.

James W. Latimer, for defendant in error.

Mr. Justice PAXSON delivered the opinion of the court, May 28th 1877.

The Act of 18th of March 1874, Pamph. L. 46, makes it the duty of the respective courts of Common Pleas, whenever a challenge to the array of jurors shall be sustained for any of the causes enumerated in said act, or that the array of jurors returned at any court shall be quashed by reason of any fault or irregularity in the selection of persons, or on the depositing of their names in the wheel, to order a new selection of persons to be made of such number as said court shall designate, and that their names be deposited in the wheel for that purpose for the remainder of the current year. The second section of said act then provides "that thereupon it shall be the duty of the jury commissioners, president judge or additional law judge of the respective district, or a majority of them, to meet at the seat of justice of the respective county, at least thirty days before the court at which such jurors shall be summoned to serve, and take out of the wheel all names therein deposited, or if a new wheel, clean out the same and make a new selection of persons, and deposit the names so selected in such wheel, or in the new wheel for the remainder of the current year, in the same manner as is now directed by law for the selection of such persons and the depositing of their names in the wheel at the beginning of the year." Have the foregoing directions of the Act of Assembly been complied with in this case? It appears that at the May Term 1876 the array was quashed by reason of neglect of official duty by the sheriff and jury commissioners, and their disregard of the law in relation to the selection of jurors and custody of the wheel for the year 1876. Thereupon the court made an order, as required by the Act of 1874, directing a new selection of three hundred persons to serve as jurors, to be made by the president or additional law judge and jury commissioners on the sixth day of June 1876. On the day designated one of the law judges and the jury commissioners met at the court-house and proceeded to take...