Inhabitants of Mt. Desert v. Inhabitants of Cranberry Isles , 46 Me. 411 ( 1859 )

The opinion of the Court was drawn up by

Tenney, C. J.

After the verdict for the plaintiffs was returned, the defendants filed a motion to set it aside, on the ground that a juror, who sat in the trial, was an inhabitant of the town of Greenfield, which had, prior to the trial, been taken from the county of Hancock and annexed to the county of Penobscot, the agent of defendants, and their counsel, being ignorant of the fact, that the juror resided out of the county of Hancock.

The cause for the motion is technical in its character. The juror was personally competent after the change of the county lines, as before. But if he had been challenged when called to sit, the objection must have prevailed. The case falls within the principle of the authorities cited by the plaintiffs. The case of Walker v. Green, 3 Greenl., 215, is in point. There a juror was returned as a talisman, by the sheriff, who was a deputy of the latter. A motion after verdict, to set it aside for this cause, was overruled. The Court say, “the fact on which the motion is founded appears on record; and, of course, the plaintiff must be presumed to have waived it.” The venires were open to the inspection of the parties, before the jury was empanelled, and they were constructively notified of the objection to the juror in question, and they must be presumed to have waived it.

Exceptions overruled.

Appleton, Cutting, Mat, and Davis, J. J., concurred.