apprizing the defendants of the causes intended to be tried. The plaintiff had held the defendants to the strictest practice, by giving notice at the latest possible moment, and he should have seen that the notice thus given was perfect as to the end for which notice is given."

3. But upon a motion for a new trial, on account of the insufficiency of the notice, the court will inquire whether the defendant could reasonably be misled, and will grant or refuse the motion in their discretion.

Thus in Batten v. Harrison, a rule nisi had been obtained, calling upon the plaintiff to show cause why a writ of inquiry executed in this cause should not be set aside for irregularity. The irregularity complained of was for "Tuesday, the 14th day of January instant," whereas the 14th of January fell on a Thursday, and on which day the writ of inquiry was in fact executed. It appeared, that on the morning of Thursday, the 14th, the plaintiff's attorney met the defendant, who told him that his notice was irregular, and he should not attend the inquiry, but did not point out to the attorney what the irregularity was. In showing cause, the counsel cited Doe v. Kightly,(1) where the court of king's bench held a notice to quit at "Lady-day, which will be in the year 1795," the same being delivered at Michaelmas, 1795, to be sufficient to support an ejectment, the year 1795 being rejected as impossible. Lord Alvanley, Ch. J.-"It is clear that the defendant was not misled by this error in the notice, but that, relying on the irregularity, he neglected to attend the execution of this writ of inquiry. But though Tuesday was, by a clerical mistake, introduced instead of Thursday, yet the notice being for Tuesday, the 14th of January instant,' a given day does seem to be thereby pointed out.

(1) 7 Term. Rep. 59.

The case of the notice to quit, appears to me a very strong authority in favour of our rejection of the word " Tuesday," and thus making it a regular notice of a writ of inquiry to be executed on the 14th of January. Therefore, as the defendant is not stated to have sustained any injury by his non-attendance, at the execution of the writ of inquiry, I think it ought not to be set aside."(1)

So in Wolfe v. Horton.(2) On certiorari to the mayor's court, after issue joined, the plaintiff, without declaring de novo, served a notice of trial for Tuesday, the 18th of April, and took an inquest. The defendant moved to set aside the inquest, and urged, among other things, that the notice of trial being for Tuesday instead of Monday, the 18th, was insufficient, and therefore, on this ground, as well as the others, the application ought to be granted. Per Curiam "The last objection is a captious attempt to take advantage. The period at which the sittings were held was a matter of general notoriety. The day of the month was right; and though that of the week was wrong, it could not, as the plaintiff's counsel have remarked, mislead, and must, therefore, be rejected as surplussage, for it was not necessary to state it."

In Bander v. Covill, (3) the plaintiff's attorney noticed this cause for trial and inquest by a notice dated November 3, 1824, that it would be tried at the next circuit court to be held in and for the county of Rensselaer, at, &c., on the third Monday of November instant, whereas the circuit was appointed for, and commenced on the next day, the third Tuesday of that month; but it appeared, by various, conversations between the counsel of the parties, which took place in the course of the circuit, that the defendant's counsel or attorney was not misled by the mistake. The plaintiff's counsel took an inquest by default, which the defend

(1) 3 Bos. & Pul. 1.

(2) 3 Caines, 86.

(3) 4 Cowen, 60.

ant moved to set aside, for the defect in the notice.

Sed

per Cur." In determining the sufficiency of this and the like notices, it is a general rule, that we will inquire whether the attorney or party was misled by the defect. Now though these circuits are not appointed by law, yet notice is required to be published, and the attorneys, especially where, as here, they live directly in the neighbourhood of the circuit, must look to it. But we will also examine the question whether the party, his attorney, or counsel, have, in fact, been misled and it appears clearly, in this case, that they have not. The motion must be denied."

4. Should injustice be done, however, by retaining the verdict, the inquest will be set aside, and a new trial granted.

As in Yate v. Swaine.(1) A rule was obtained to show cause why the writ of inquiry of damages and inquisition thereon should not be set aside. Two objections were made; one that the notice was served upon the defendant himself, and not his attorney; and the other, that the time appointed by the notice for executing the writs of inquiry was between the hours of ten and five. It was admitted for plaintiff that both objections were good; but it was insisted that both of them were cured, by one Russel, an attorney's clerk attending at the execution of the writs of inquiry on the part of the defendant, cross examining plaintiff's witnesses, and producing a witness for defendant. The damages were £250. No special damages being laid, and it appearing that plaintiff was confined for no longer time than twenty-six days, and plaintiff himself making no affidavit about the damages or imprisonment, the court thought the damages excessive, and ordered the inquiry to be set aside upon payment of costs, and a new

(1) Barnes, 233.

writ of inquiry to be executed before a judge at next assizes.

So in Love v. Jarret.(1) Defendant had time to plead by a judge's order rejoining gratis. Plaintiff delivered a paper book containing a bad replication, and an issue joined by defendant. Defendant's agent's clerk received and paid for the paper book: but his master perceiving the replication to be bad, returned the book to plaintiff's agent, and gave notice of the mistake, notwithstanding which, plaintiff went on to trial and had a verdict without defence, and rule absolute to set aside the verdict without costs.

(1) Barnes, 457.

CHAPTER II.

FOR IRREGULARITY IN EMPANNELLING THE JURY.

By the laws of this state, it is provided that "No member of this state can be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers."(1) These peers consist of twelve good and lawful men (probi et legales homines) possessing such quailfications, and convened and empannelled by such formalities as the law prescribes.(2) It is a provision derived from Magna Charta, and introduced into the several constitutions of the different states and of the United States.(3) If, therefore, these forms be disregarded, and the case tried by incompetent persons, irregularly summoned and empannelled, or one man personate another, the verdict will or will not be set aside, according as the party complaining may or may not have sustained injury by the irregular proceeding.(4)

The former practice was strict in this respect. The competency of jurymen was rigidly scanned, and even inquests set aside for what would now be disregarded as slight irregularities unless actual injury ensued.

1. The verdict has been set aside where some of the jurors have been notoriously deficient in property, or the personal qualifications required by law, or when personated by others.

(1) 1 R. S. 93. § 7.

(2) Vide 2 R. S. 413, 414, and Gra. Prac. 245.

(3) Vide 3 Peters, 446.

(4) As to the qualifications of jurors, see 2 R, S, 411, § 13,