Page v. Inhabitants of Danvers , 48 Mass. 326 ( 1843 )

Shaw, C. J.

1. The mode of selecting jurors in Topsfield is not to be commended ; the form of the votes being somewhat objectionable. But it is quite manifest that the town had ful power to do all that they did. Rev. Sts. c. 95, §§ 4, 5. The list was reported by the selectmen, and thereupon the town had full power to adopt it in whole or in part; and the effect of what was done was to adopt part of the list, to reject part, and to substitute others; all which they had power to do. The effect of their votes, after all, was only not to accept the list in full, as it was reported.

2. But upon another point, the court are of opinion, that if there was any irregularity in the manner of selecting the jury, and if this would have been good ground of exception, if seasonably taken, still it came too late, after proceeding to trial. The ground is, not that the jurors were interested or prejudiced, or otherwise personally improper, but that there was a mere irregularity not apparently affecting the merits. Such an objection, if available at all, must be seasonably taken. This results from strong considerations of policy and expediency, rendering it an imperative rule of practice. In the trial of every civil action, in a large county, the jurors are usually drawn from various towns. If any irregularity, found in selecting jurors in any of thése towns, not affecting the capacity or fitness of the jurors returned, would enable a losing party to set aside a verdict otherwise free from any exception on the merits, it would be a dangerous temptation to such party to send through the various towns for the means of getting rid of an honest verdict, upon technical objections

The reasons for establishing a contrary rule, we think, are very strong, founded in good sense, and will much subserve the purposes of justice. Hill v. Yates, 12 East, 229. The King v Hunt, 4 Barn. & Ald. 430. Queen v. Hepburn, 7 Cranch, 290 Amherst v. Hadley, 1 Pick. 38. Howland v. Gifford, 1 Pick. 43, note. Commonwealth v. Parker, 2 Pick. 550. Munroe v. Brigham, 19 Pick. 368. The same rule is within the spirit, if not prescribed by the terms, of the Rev. Sts. c. 95, § 30.

Judgment of the court of common pleas affirmed.