Cross against Moulton.
di?nti.s s,ued ¡» by warrant, he an enadjournment, on givinge good sewithout oath of the want of
A Justice has no right, on his own mere motion, without any exception beim* taken by eithe'r party, to challenge the panel of jurors, and issue a new venire.
IN ERROR, on certiorari to a Justice’s Court.
The defendant in error commenced an action, by warrant, in the court below, against the plaintiff in error, on a promissory note. The defendant below relied on a set-off; *470and he requested an adjournment, and said, that he had g°°d bail present. The justice refused the adjournment, unless the defendant below would not only give bail, but swear that he could not proceed to trial for want of a material witness. The defendant refused to make the oath, and demanded a trial by jury. A venire was accordingly issued, and after the constable had returned a panel of jurors, the Justice, without any motion by either of the parties, objected to the panel, on the ground that the jurors were not suitable, as only three of them were freeholders, and two of the number near akin to the plaintiff below; and he adjourned the court until the next morning, when he issued a new venire to the same constable, directing him to summon only freeholders. The defendant below refused to attend or make any defence; and the cause was heard ex parle before the secondjury. A verdict and judgment were given for the plaintiff below.
Per Curiam.
The Justice erred in refusing an adjournment. The statute, (1 N. R. L. 389.) allows a defendant sued by warrant an adjournment, on. giving security “ to appear and stand trial, &c.” and the Justice had no right to require an affidavit of the want of a material witness. (Sebring v. Wheedon, 8 Johns. Rep. 458.)
The Justice also committed a gross irregularity in chai-, .lenging the jurors, on the return of the first venire, and in issuing a second venire, merely on the ground of his own extra-judicial exceptions.
Judgment reversed»