Leary v. N. Jersey St. Ry. Co.

• Decision Date: 09 March 1903
• Citation: 54 A. 527,69 N.J.L. 67
• Parties: LEARY et al. v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

54 A. 527

69 N.J.L. 67

LEARY et al.

v. NORTH JERSEY ST. RY. CO.

Supreme Court of New Jersey.

March 9, 1903.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by Annie Leary and Richard Leary, her husband, against the North Jersey Street Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, PORT, and PITNEY, JJ.

Chauncy H. Beasley, for plaintiff in error.

Samuel Kalisch, for defendants in error.

PITNEY, J. It appears from the bill of exceptions that upon the trial of this action, while the clerk was administering the oath to the jury, defendant's counsel inter rupted for the purpose of challenging one of the jurymen. The trial judge refused to permit the administration of the oath to be interrupted for that purpose, giving as a reason that the defendant had already interposed three challenges. As the request for leave to challenge was not accompanied by the suggestion of any cause for the proposed challenge, it will be presumed that a peremptory challenge was intended, and it is upon this basis that the cause has been argued in this court; the insistment being that under the act concerning jurors, approved April 9, 1902 (Laws 1902, p. 640), the defendant was entitled to six peremptory challenges. That act was approved shortly before the trial of this action, and took effect immediately.

The plaintiff in error further insists that in view of the supplement of 1887 to the revised act concerning juries, approved March 27, 1874 (Laws 1887, p. 132; Gen. St. p. 1855, § 54), which provides that "all challenges to jurors for any cause whatever in any kind of a suit, civil or criminal, may be made at any time before the jury is actually sworn," the right of challenge was seasonably asserted in the present case. In our opinion, this contention must be overruled, for two reasons, viz.:

1. By the act of 1902 the right of peremptory challenge in civil actions is conditioned upon its being exercised as the names of the jurors are drawn from the box. At common-law there was no right of peremptory challenge in civil actions. Thomp. & Mer. on Juries, §§ 152, 154; 1 Thomp. on Trials, § 42; Creed v. Fisher, 9 Exch. 472; 23 L. J. Exch. 143; 18 Jur. 228; 2 W. R. 196; 15 Eng. R. C. 54; Pearse v. Rogers, 2 Fost. & Fin. 137; Marsh v. Coppock, 9 Car. & P. 480. What Sir William Blackstone says in the third book of his Commentaries, pp. 359-363, concerning the procedure in civil actions, relates wholly to challenges for cause. But in his fourth book, p. 353, in discussing the criminal procedure, he draws the distinction between a challenge for cause and a challenge "without showing any cause at all, which is called a 'peremptory challenge.'" See, also, 1 Bouv. L. D. tit. "Challenge." In this state the practice of returning a general panel of Jurors at each trial term, and of placing their several names, written on separate pieces of paper, into a box, and drawing therefrom a jury of 12 for the trial of a civil action, was given a statutory basis by "An act relative to Juries," passed March 9, 1836 (Laws 1836, p. 323). This act was repealed, and a somewhat different procedure established on the same general lines, by a supplement passed November 9, 1836, to the act of 1797 relative to juries and verdicts (Laws 1836-37, p. 17). The right of peremptory challenge in civil causes originated in a supplement passed March 13, 1844 (Laws 1844, p. 236), by which it was enacted that upon the trial of any issue in any civil action in any court except the courts for the trial of small causes, and other cases before justices of the peace, each party should be entitled to challenge peremptorily, as their names were drawn from the box, six of the general panel of jurors summoned and returned by the sheriff or other officer. In the revised act of 1846, relative to juries and verdicts, similar provisions were embodied in sections 19, 23, and 24, except that the number of peremptory challenges in civil actions was reduced to three (Rev. St. 965). When the right of peremptory challenge was extended to civil causes before justices of the peace, in whose courts there was no general panel, the form of the enactment was "that the right of each party in any civil suit to challenge peremptorily three jurors as their names are called, be and the same is hereby extended to trials in the courts for the trial of small causes and other actions before justices of the peace." Laws 1869, p. 619. In the revised act concerning juries, approved March 27, 1874 (Gen. St. p. 1847), the above provisions of the act of 1846 with respect to the summoning of a general panel, and the drawing of a jury therefrom, are substantially reproduced. Section 23 appears in the new revision as section 27. The provisions of the former section 24 and of the supplement of 1869 were made a part of the new section 40, and with them was combined a provision for peremptory challenges upon the trial of indictments for the less serious crimes. Again the privilege of peremptory challenge was required to be exercised "as their names are drawn from the box." By the revised criminal procedure act of 1874, approved on the same day with the jury act just mentioned (Gen. St. p. 1119), the matter of defendant's right to peremptory challenges upon trial of an indictment for crime of a high grade was taken care of in section 71. Twenty such challenges were allowed, and there was no language requiring them to be interposed as the names of the jurymen were drawn from the box. Therefore they might, of course, be taken, as at common law, at any time before the swearing of the juror. By an act approved April 4, 1878, and doubtless intended as a supplement to the revised act concerning juries, approved March 27, 1874—this, however, is left in doubt by a defect in the title (Laws 1878, p. 284)—it was enacted that upon the trial of any indictment, where twenty peremptory challenges are not allowed, the defendant shall be entitled to challenge peremptorily, at any time before the jury is sworn, six of the general panel, and that upon the trial of any indictment the attorney general or prosecutor of the pleas shall be entitled to challenge peremptorily, at any...