Page:United States Reports, Volume 2.djvu/388

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382 Casas ruled and adjudged in the “

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vrvv Anouruous. N a caufe marked for trial by Special ju. , nine jurors only appeared; and the quellion arofe, whether the Court (who wifhed to conlider it with a view to eflablilh a precedent) could award a taler, on the application of the Plaintilli Lag and Ingerfoll fuggellted, that the Supreme Court of Penn- . jjluanin had fo eonflrued the rzrbjéé?. of the AEI: of Ailembly (2 Vol. Dahl Edt?. p. 26 5) as to exereife the powerof ordering a tale: in the cafe of fpecial, as well as of common, juries, whenever the Plaintiff required it; and, al whenever the Defendant required it, if he had a rule for trial by provifo. The fame power is exereifed in England on general principles. stri Pl'. 476. _ Le·wi.•· obferved, that the Supreme Court held, that the Penn- _/jlrumia A6}, and not the Englyb praétice, mufl: regulate the proceedings with refpeét to juries; and the cafe of a tale.: in trials by fpecial jury, though admitlible at common law, might not have been adopted by the Legillature, on account of the in- conveniences, which the praéitice tended to introduce. But whatever may have been the previous law, the Legillative rule mult be purfued; and exprja uuiu: gj? exclryio ultrriur. · Rnwle conceived, that the 12:1: _/éciien of the judicial AE} (r WL S·wy't’.r Edi!. p. 67) fettled the queftion. In the firfl: part of the feétion, the provilion for empannellng juries is general, -0bviou{ly including both fpecial and common juries; and, as there is the fame generality of expreflion in the latter part of the feétion, when provilion is made for returning a ruler, it ought alfc, by a parity of conltruétion, to be extended to both. cafes. Pumas, frylicr. I haveno doubt of the power of the Court, to order a talc: in fpecial jury caufes. It might have been done, I think, under the Act of Affembly; but unquel`- tionably it may be done under the Aét of Congrefs. There ought, however, to be fuch a difcretion in ufing ir, as to pre- vent any injury to either party; and, therefore, a trial lhould not be forced on, without a reafonable delay to bring in the jurors that had been regularly feleéted. lm-:t>r.1.1., jhylitv. '1`he Aél of Congrefs feems to remove every dilliculty. It makes no‘J.ion (and the Court can, rherefore,makc none) between the cafe of a fpeeial and of a com- mon: jury. If this provilion had not exilied, the fubjcét would have occalioned much doubt in my mind. _ SYMl3S’8