majority">Mr. Justice Breese

delivered the opinion of the court:

This was an action of replevin in the Marshall Circuit Court, and a trial and verdict for the defendants.

The first objection made is, that when the jury was about to be empanneled, four jurors having been chosen and sworn, two more were called and accepted by the plaintiffs and tendered to the defendants to pass upon. To this they objected, and insisted upon a panel of four being tendered. The court thereupon called two additional jurors, and required the defendants to pass upon the four, to which they objected until the two last called should be chosen by the plaintiffs, but the court required the defendants to challenge or accept the four, whereupon the defendants challenged peremptorily one, and accepted the other three, and excepted.

We are not aware of any statute requiring four, or any other number of jurors, to be called at any one time, to be sworn on a jury. It is the practice to call four, and to call upon the plaintiff in the first instance to pass upon them, but there is no requirement of law on the subject. The only statute we have, is chapter 58, title “Jurors,” by the eighth section of which, the- clerk of the Circuit Court, at the commencement of each term, is required to write the name of each petit juror on a separate ticket, and put the whole into a box, or other place for safe keeping; and as often as it shall be necessary to empannel a jury, he, or the sheriff or coroner must, in the presence of the court, draw by chance, twelve names out of such box or other place, which shall designate the twelve to be sworn on the jury, and in the same manner for the second jury in their turn, as the court may from time to time order and direct. Scates’ Comp., 680. From this, it would seem, the whole number is to be drawn at one time, and sworn, but the practice usually has been, to call four at a time, but there is nothing in the law to prevent a less or greater number being called, and the parties required to pass upon them. There is nothing in this objection.

As to the other point, it is complained by the plaintiffs in error, that 'they had a right to examine Sloover as to his interest, and the execution of the release to him, after a witness had been examined touching that interest. The general rule on this subject, as laid down in Diversey v. Will, 28 Ill., 216, is, that a witness who is objected to, because of interest in the event of the suit, may be examined on his voir dire, or his interest may be shown by witnesses, but resort cannot be had to both modes. A case is cited by the plaintiffs in error, from 5 Conn., 258, Stebbins v. Sackett, where it was held, that though the above be the rule, yet a resort to one mode to prove the interest of the witness on one ground, does not preclude recourse to the other to prove his interest on a distinct ground. Admitting the force of this decision, we do not discover its bearing on this case, as no other ground than a general interest of the witness, Sloover, was suggested on the trial. It is now said here, that plaintiff in error had a right to examine Sloover, after having examined Hosier, as to the delivery of the release, that it might be merely fraudulent, and also to examine him as to other interest he might have in the suit not covered by the release. We see no force in this, for if the release was fraudulent, it was valid and binding between the parties to it, and no special interest in. the suit which Sloover might have had, was specified, which was not covered by the release. The court below was not informed of any such interest, nor is this court.

As to the instructions, taken as a series, they are correct, and fairly present the law of the ease. Those refused were .fully supplied by those given, and plaintiffs in error have no reason to complain that the law of their case was not fully presented. Elam v. Badger, 23 Ill., 498 ; Schwartz v. Schwartz, 26 Ib., 81; Warren v. Dixon, 27 Ib., 115.

The evidence sustains the verdict, and the judgment must be affirmed.

Judgment affirmed.

Citation profile

How this case has been treated — in progress