Cox v. Wells , 3 Mart. (N.S.) 158 ( 1824 )

Porter, J.

delivered the opinion of the court. This action was commenced on a promissory note, executed by the defendants, in favor of one John Botts, by whom it was regularly endorsed to the plaintiff.

The defendants pleaded in abatement, that a copy of the petition was not served on them in the French language; and this plea being over-ruled, they put in an answer to the merits.

It appears to us the court did not err in the decision made by it on the plea in abatement. The return of the sheriff shews that he served the petition and citation on the defendants. It was unnecessary he should state this service was made in both languages, since that fact was implied by the words used in the return; for unless served in that manner, there was no service, i. e. no legal service. This case cannot be distinguished from that of Fleming vs. Conrad, 11 Martin, 301.

West'n District, Sept. 1824.

The defendants in their answer prayed for a jury, and on the cause being called for trial, they challenged the array, on the ground that only 45 persons had been summoned for the term. The district judge refused to sustain this exception, because it appeared the regular number of 48 had been drawn, and that the failure in summoning three of them, arose from one being dead, and the other two absent from the parish. In this opinion we also concur. The law imperatively requires that forty-eight persons at least, should be drawn and put on the venire, and this injunction must be strictly pursued; for such is the direction of the statute—and there is no impossibility of yielding an obedience to it, nor indeed any difficulty in carrying it into execution. So, too, the forty-eight individuals thus selected, ought and must be summoned, if they can be found within the county; but if they cannot there is no fault in the officers, and the venire is not vitiated. The construction contended for, would enable any of the persons put on the pannel, who chose to

Baldwin for the plaintiff, Oakley for the defendants.

abscond or conceal himself, to stop the administration of justice. Lex neminem cogit ad vana, seu impossibilia. The legislature, by providing a means for supplying the deficiency thus created, have most clearly intimated, that those of the original venire, who do attend at the term of the court to which they are summoned, are good and lawful jurors. “Where from challenges or otherwise, there shall not be a jury to determine any civil or criminal cause, the sheriff or his deputy shall, by order of the court, when such defect of jurors shall happen, return others, de talibus circumstantibus, sufficient to complete the pannel.

2 Martin’s Dig. 200.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.