We do not find any provision in the British statute 3 Geo. 2, c. 25, (vide sect. 15. 6 Ruff. stat. 28,) authorizing the award of tales men, and yet a tales may be awarded by the courts at Westminster, even in the case of a special jury. 2 Wils. 366. 5 Term Rep. 453. Under our old act of 19th March 1785, 3 Dali. St. Laws, 265, the 12th section provides for the return of bye-standers without reference to the 17th section which directs how special juries shall be struck, and yet the uniform practice of the court has been in such instances to direct tales on the defect of the special jurors, at the prayer of either party. The same principle would govern for the sake of *justice, under the jury act of 26th March 1805, 7 St. Laws, 183 ; but the words are much stronger therein as *■ to this point, as it relates to the city and county of Philadelphia. The 2d section directs, that an additional wheel to be numbered No. 3, shall be provided for that city and county, for which a sufficient number of names shall be selected and deposited therein for special jurors, &c. The 10th section directs, that if a sufficient number of persons so summoned and returned as aforesaid, shall not appear, &c., the court shall order the jury to be filled up from qualified bye-standers; so that this section clearly refers to struck jurors, as well as to the general panel. The court therefore feel themselves bound to grant the motion.
The sheriff accordingly returned the tales men, and the plaintiff obtained a verdict, without opposition.