majority">Daniels, J.

The only question presented for consideration in this cause is, whether the justice could properly proceed with the drawing of the jury, while less than six of the persons summoned as jurors appeared before the court. If he could not, then the jury was improperly constituted, and on that account, was without authority to hear the cause.

The proceedings by which a jury is to be obtained in a justice’s court are purely statutory, and should be strictly complied with ; otherwise the judgment rendered cannot be sustained. The principle is a general one in its application to these courts, that the justice is limited by the statute, to a certain course of proceedings; and unless those proceedings are adhered to, or waived by the party who has a right to insist on them, the judgment is irregular and void. (1 Cowen’s Treat. 451, 3d ed.)

The provisions of the statute providing for the manner in which a jury shall be procured in a justice’s court,- make it the duty of the constable -to whom the venire is delivered to summon twelve good and lawful men to appear before the court at the .time and place specified in the process. And he is to make a list of them an cl return the ■ same with the process to the justice. (3 R. S. 441, §§ 84, *37789, 5th ed.) The names of the persons summoned and returned, and who shall appear, are then required to be written, on several and distinct pieces of paper, and in the presence of the justice, folded or rolled up, and put together in a box, or some convenient thing, by the constable. (Id. § 90.) By the express language of this section, only the names of such, of the jurors as appear before the justice, are to be placed in the box, and the placing of the names there is in no manner made dependent upon the number who may appear. If this section stood alone, without any further provision upon the subject, it would' clearly warrant the course of proceeding taken in this case by the justice. But it must be construed together with the three following sections, which relate to the same subject matter. And the general language used must be so far restrained as to render it harmonious with that which follows it. The section following that already referred to, declares that unless the parties shall have agreed to try the cause by a less number, the justice shall draw from the box six of the papers placed in it, with jurors’ names upon them, and such further number as will make up the number required, after all legal causes of challenge allowed by the justice. And the persons so drawn, appearing, and approved as indifferent, shall compose the jury to try the cause. The language of this section is such that it would be impossible to comply with its direction, with a less number than six jurors in the box. The justice is required to draw six names from the box, which it is obvious he could not do, if there were but five placed in it, as was the case in this cause. This requirement of the statute is so plain and peremptory that there can be no ground for mistaking the intention of the legislature in its enactment. And this, together with the preceding section, confers the power on the justice, of drawing the jury, only when a sufficient number of those summoned have appeared, and whose names are placed in the box, to enáble him .to draw *378six jurors from it. Before such a number appears he has no authority whatever to draw the jury.

The succeeding section of the statute does not in any manner cure the defect in the-proceedings; for while that confers the authority upon the justice of directing the deficiency in the jury to be supplied by the constable summoning bystanders, or others, who may appear to be competent, the right to resort to it only arises where a sufficient number of competent jurors shall not be drawn. If the justice has no power to draw the jury on account of the failure of the requisite number of jurors summoned to appear, he certainly has no power to direct the deficiency to be supplied under this section; for in that case, the deficiency cannot arise on account of a sufficient numcient number of competent jurors not being drawn, but on account of a sufficient number not appearing to authorize any to be drawn.

The next section of the statute is the one under which the justice should have proceeded. That provides that if a full jury shall not be obtained in the manner declared in the preceding sections, the justice shall issue a new venire.

These sections of the statute provide for two different modes of proceeding for the purpose of forming a jury, and only two. By the first, when a sufficient number of the persons summoned appear, to enable the justice to draw six jurors from them, he is authorized to place their names in a box, or some other convenient thing, and to draw the jury from such names. If the.number drawn- shall be reduced by challenges, or by jurors absenting themselves, or otherwise, so that six jurors cannot be obtained from the number in the box, then the deficiency may be supplied by the constable summoning, under the direction of the justice, from the bystanders or others, legally competent, a sufficient number for that purpose. The second mode of proceeding is provided to meet the case of the attendance of go small a number of jurors as will not allow the justice *379to proceed to draw at all. There the justice should require by the new venire a sufficient number of additional jurors to be summoned to enable him, according to the requirements of the statute, to proceed with the drawing of the jury. (2 Cowen's Treat. 341, 342, 3d ed. 3 R. S., §§ 90-93, 5th ed.)

[Erie General Term,November 20, 1865.

In procuring the jury for the trial of this cause, the justice failed to pursue the course provided by the statute. "When it appeared that but five jurors were in attendance under the venire, he should not have placed their names in the box and attempted to have done what every person could see was an impossibility, the drawing of a jury of six from them; but he should have issued another venire, and in that manner secured the attendance of a sufficient number to render it at least possible that a jury could be formed by drawing the names from the box.

This, it is true, did not probably occasion the defendant any, not even the slightest, injustice. But still he had a right to insist that the trial, and all the proceedings before it, should be conducted in the manner provided by the statute. He did insist uppn that, and was overruled by the decision of the justice. And this court has no discretion upon the subject, where it finds that the proceedings have failed to conform to the requirements of the law, and there has been no waiver of his rights by the party affected by them. The path of duty is well and clearly defined; it is to reverse the judgment irregularly procured, leaving the parties at liberty to litigate and settle the legal controversy between them in another action.

The judgment of the county court and of the justice should be reversed.

Marvin, J., concurred.

Grover, P. J., dissented.

Judgment reversed.

Grover, Marvin and Daniels, justices.]

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