The exceptions to the charge of the court are not, in my judgment, well taken. We may lay aside the doubtful question of the precise probative value of the record of the proceedings of the United States court in Arkansas in its relation to the issue of a want of probable cause in this suit. All agree that it maybe used to prove —and that fact must be always so proven — that the attachment suit resulted in favor of the plaintiff here. Whether it can have any further effect, and be considered as tending to prove that there was no probable cause for the attachment, it is now immaterial to inquire,
In ordinary prosecutions for crime, or in ordinary process for civil suits, what is a probable cause of action or prosecution has, perhaps, a much wider scope of inquiry than in suits where the grounds of action by extraordinary process are defined by statutory law. The inquiry here is whether defendants had probable cause to believe that they had good statutory ground of attachment, and this depended wholly on that mortgage and on nothing else, since no other ground was pretended to exist or be set up in the proof. There could be no probable cause of action in a case like this, unless there was a probable ground for attachment under the statute prescribing that remedy.
The only question, then, for the jury was that submitted to them— whether the attachment was sued out maliciously. No exception was taken to the definition of malice which was given to the jury, but great complaint was made that the question of probable cause, as based upon the advice of counsel that an attachment would lie, was not submitted to them. In (¡fleet, this exception is that the court refused to adopt the theory of defendants, to support which there is no doubt some authority, that the advice of counsel furnishes probable cause for proceeding by attachment, and that, when given under the
Here the contention is that in all cases where there is no concealment or omission of material facts, the advice of counsel furnishes probable cause for the suit. It may furnish a reasonable belief in the existence of a cause or ground of attachment which would show a state of mind in the attachment plaintiff that would altogether negative the existence of that condition of his mind which the law denominates malice. But how can the ill-considered, erroneous, ignorant, or, it may be, sound advice of a lawyer strengthen or add anything to the cause or ground of attachment ? That depends on the facts, and wholly on them. Generally, it depends wholly on the situation and conduct of the defendants. If that situation and conduct be well and accurately known or defined, and susceptible of satisfactory proof of facts sufficient to maintain the plaintiff’s suit, there would be a good cause of action; while if they be doubtful and equivocal, or proof of them difficult and uncertain, there would be a probable or possible cause of action. It is in this direction we must look for a solution of the issue of probable cause, and the advice of lawyers can neither add to nor take from the other facts of the case their force in the process of reasoning necessary to determine it. The cause of action is neither better nor worse after advice of counsel is taken. The client may not understand the bearing of the facts on his legal rights, nor whether he has a cause of action at all, and being advised that he has, by counsel of repute, may reasonably believe that it is so, and safely bring his suit if the facts plausibly support it. But this surely can neither enlarge nor diminish his legal right as found in the facts, nor so affect, let us say, the statute by which his cause of action is precisely defined, as in this case. If the facts do not fall .within it, the statute gives no ground of attachment, and a reasonable belief that his lawyer will properly construe the statute, or wisely determine the application of the facts to it, can give the client no other ground of attachment than he had before, — neither one that is probable nor of any other degree.
In the very nature of the ease, it seems to me, the advice of counsel is properly referred to its influence on the plaintiff’s state of
Nor does the rule that the advice must bo that of a reputable lawyer furnish, any guaranty against this result. Theoretically it might, but practically it is of little value, for reasons that are plain to all who are acquainted with the looseness with which access to the ranks of the legal profession is guarded, and the difficulty of disrating any' lawyer from the character of being reputable as to his intellectual and professional acquirements. The effort of any party to prove that the lawyer giving the advice was not, in fact, nor reputed to be, one of sufficient knowledge and skill to give reasonable counsel, would be so utterly hopeless that, in effect, the theory fails to furnish any security whatever against incompetent advice.
Criticism may pronounce this a humiliating statement, but that kind of criticism deals, like the theory under consideration, with presumptions and assumptions not altogether founded in fact, A plaintiff in the action for malicious prosecution, who should challenge the reputation of the lawyer giving the defendant the advice, would find himself trying another case than his own, which would at once attract attention by the desperate character of the enterprise, and with a success much more rare than that attending similar attacks on the character of witnesses with respectable surroundings and many friends. The courts have recognized this difficulty, and shrink from the doctrine that advice of counsel is an absolute protection, which accounts for the serious difficulty of determining, in suits like this, precisely what effect the advice of counsel shall have to protect the
On the other hand, if we refer the advice of counsel to the issue of malice, it becomes a fact to be considered by the court or jury along with other facts in the case in determining that issue. It may oiunay not conclude the issue in favor of the attaching plaintiff, but in all cases, in the absence of countervailing facts, it affords as absolute protection to him as when referred to the issue of probable cause. The charge presented the case to the jury in this view of the law with the most scrupulous care to give the defendants the fullest possible benefit of the fact that they consulted reputable counsel, but the court refused to charge that this fact of itself and by itself afforded absolute protection. There were other facts which no doubt led the jury to believe that there was malice in the legal sense, if not in a larger sense, and the objection to the charge really is that it did not end the case in favor of the defendants by exaggerating the importance of the advice of counsel into a complete protection.
This view which the court took of the matter is supported by the thoroughly convincing commentary of Professor Tiedeman in his note to Sharpe v. Johnstone, 21 Amer. Law Reg. (N. S.) 576, 582. He cites the authorities extensively, and it is not necessary to enumerate them here. It is not to be understood that the facts and circumstances relied on to show probable cause must be found always to exist in such a state of certainty as to establish the defendant’s probable guilt of the offense or liablity to the cause of action; nor that the element of belief, on the part of the prosecuting plaintiff or his lawyer, is eliminated from the inquiry as to probable cause. It may be that the defendant is not guilty, or that there is no ground of attachment, and that more careful and intelligent minds would readily detect the weakness of the case and groundless character of the accusation, or that better information would have developed such weakness. But still the proper inquiry is — Would a reasonable man have brought this suit? This involves necessarily a judicial inspection of the conduct of the prosecuting plaintiff as to his diligence in ascertaining facts, his intelligent comprehension of them, his fairness in dealing with them,
If the facts and circumstances as proven, including the advice of counsel, would excite belief in a reasonable mind of the existence of a ground of attachment, Ilion there is probable cause for his conduct in bringing the suit, though there be no good ground of attachment, and tiis question is for the court or jury, or both, according to well-understood circumstances. This (loos not moan, however, that un-rensona.ble belief can be converted into that which is reasonable simply by advice of counsel, regardless of all bearing of the other facts on the question. As it was put to counsel at the argument, no amount of reputation on the part of the lawyer would excuse the client if he brought an attachment upon a ground wholly outside of the statute; as if, for example, he should be advised that all conveyances ol' property while a man was in debt were fraudulent, or that all men who wore blue shirts might be attached. It is not reasonableness to the plaintiff’s mind which is a test of tbo quality, but reasonableness as a matter of law, to be determined, not by the strength of that particular mind, nor yet by the nature and character of the advice given to it, but by the legal test in all such inquiries, here as elsewhere. And this is that belief which would be generally entertained by prudent and cautious minds acting with ordinary or average intelligence in such matters on the facts within the knowledge of the prosecuting plaintiff.
The supreme court, in Wheeler v. Nesbit, 24 How. 544, has defined probable cause to be “the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. ” Or, negatively, in another place in the opinion, “that he had no sufficient reason to believe him to be guilty.” A reasonable mind is a sensible one, fairly judicious in its action, and at least somewhat cautious in reaching its conclusions. Assuming, then, as was done in charging the jury, that the defendants believed that they had a probable cause of action by attachment, or, to present it specifically, that they believed that Brewer was, in the language oí their affidavit, “about fraudulently to convey his property, ” does that belief protect them ? Mere belief will not do. It is agreed it must be honest and sincere, but under the above definition it is more important that it should be reasonable. However honest or sincere, and whether produced by advice of counsel or otherwise, surely sincerity is not synonymous with reasonableness. The belief may be never so sincero and yet unreasonable. As we cannot substituto sincerity for reasonableness in the definition, the real question is — Does advice of counsel of itself, under the given con
There was no dispute whatever about the facts bearing on the grounds of thie attachment. The question of reasonable belief depended wholly on undisputed facts, and was properly determined as a question of law. There was nothing the matter with or suspicious about the Eiehardson & May mortgage. It was the same as that of the year before. Defendants knew it had been given, and both sides believed it had been properly executed and registered when the agreement about which the controversy arose was made. The accidental circumstance that it had not been properly executed did not invalidate it, nor make its proposed completion a ground to excite reasonable belief that it was fraudulent, or, in the language of the attachment affidavit, that Brewer “was about to fraudulently convey his property.” The defendants knew as well as anybody that this mortgage was not fraudulent. They take such mortgages in their own business, and wanted one just like it from Brewer on a part of the same place, and his refusal to give it waB their chief cause of complaint. It was unreasonable, then, to believe it a good ground of attachment that Brewer was about to complete the Eiehardson & May mortgage, and no advice of counsel on the facts of this case could make it more reasonable to entertain such a belief. The alleged misrepresentations, deceit, and bad faith in refusing to carry out his agreement with defendants, did not subject Brewer .to attachment, and no reasonable man, with or without the advice of counsel, could say that the alleged deceit furnished any support for the affidavit that Brewer was “about to fraudulently convey his property,” which was an entirely different thing, and had no connection with the deceit. The court having determined that this was unreasonable belief, as a matter of law, it had no occasion to submit the question of probable cause to the jury, there being no disputed fact bearing on that question.
The charge is also supported by the case of White v. Nicholls, 3 How. 266. It is true that was not a case of malicious prosecution, but of libel, iu which tbe defense was a privileged communication. But tbe principle seems the same, and the method of submitting the question of malice to the jury strikingly analogous, if we place the advice of counsel on the same footing asa privileged communication in the law of libel was there placed. The analogy appeared to me so complete that the charge under review is somewhat- a paraphrase of the opinion of the supreme court in the libel case. At all events, the result of the application of the principle of that case to this question was so entirely satisfactory that the case gave me the most thorough confidence in the correctness of the charge, and determined its adoption in a perplexing state of mind as to tbe conflict and confusion of authority. White v. Nicholls, 3 How. 266, as reported in the original edition; S. C. as reported in Law Pub. Co. Ed.
This treatment of advice of counsel, in suits for malicious prosecution, removes the great injustice of permitting it to become an impregnable fortress behind which willful injury finds perfect immunity from redress. The ordinary remedies of the law afford abundant means for the collection of debts or breaches of contract, and those which are extraordinary, while they are not to be illiberally treated, should be confined to cases wherein they are applicable, and not extended by greed to those not included by them. They are harsh at best; irreparable injury may often result from their abuse, and tbe temptation to resort to them in unauthorized cases can only be restrained by the courts holding parties to their legal responsibility, however willing their lawyers may be to shield them by the “advice of counsel,” and share with them the product of claims that are saved by being “secured” by such illegal methods.
The next ground of the motion for a new trial relates to the juror Gray. It having been pressed with groat zeal in exhaustive and able arguments, and being a matter of serious importance in its chai-
It is brought to the attention of the court-by an affidavit signed his
“James X Gray, Sr.,” in which affiant swears “that James Gray, mark.
Jr., who served upon the jury in the above cause, * * * is a son of his,” and less than 21 years of age, and neither a householder' nor freeholder, “and has lived with and been a member of affiant’s family ever since he was born, on March 21, 1863.” Another affidavit is also filed, showing that said juror has not the property qualification necessary for a juror in Tennessee. Defendants and their counsel severally make affidavits, which are on file, that until the time of trial they did not know this juror, and “had no knowledge that he was a minor under 21 years of age, and that he was no householder or freeholder, until after the jury had returned their verdict.” The defendant Booker also swears that he verily believes a fair trial was not had because Gray “was not a good and lawful juror, and did not possess the qualifications required by law; r * * that he was informed and believed that, under the federal court practice in selecting jurprs, the members of the jury which were offered in open court to try said cause had been selected as prescribed by the acts of congress; and that the qualification of all said jurors had been declared and ascertained by the court.”
The records of the court show that on November 2, 1883, there personally appeared in open court the clerk and jury commissioner, who were severally sworn to the faithful discharge of their duties, “and thereupon the said clerk and the said commissioner did then in open court each place one name in a box alternately of persons possessing the qualifications prescribed for jurors in the courts of the United States by section 800 of the Revised Statutes, until 365 such names were placed in said box. Whereupon the said box so containing the said names having been presented to the court, it is hereby ordered by the court that 30 such names be drawn from said box,” and thereupon 30 such names were drawn from said box, as follows: —that of James Gray being one; upon which the court orders the issuance by the clerk of the writ of venire facias, returnable to the first day of the November term. Mr. Gray’s acknowledgment of service upon him of the venire is signed “Jas. M. Gray.” On November 26, 1883, the first day of the term, the record recites that “the venire facias for jurors was this day called, under the direction of the court,
The act of congress prescribing the manner of drawing jurors in courts of the United States provides “that all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing at the time of each drawing the names of not less than three hundred persons possessing the qualifications prescribed in section 800 of the Devised Statutes, which names shall have been placed therein by the clerk of such court, and a commissioner to be appointed by the judge thereof,” etc. Act June 30, 1879, (21 St. at Large, 43,) Snpp. to Rev. St. 497, 498. Section 800 of the Devised Statutes so referred to enacts that “jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest court of law in such state may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned; and they shall be designated by ballot,lot, or otherwise, according to the mode of forming such juries then practiced in such court, so far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may, by rule or order, conform the designation and impaneling of jurors, in substance, to the laws and usages relating to jurors in the state courts from time to time in force in such state. ”
Among other rules promulgated by this court in October, 1871, was the following:
“It is ordered that grand and petit jurors bo selected by the court in conformity with the laws of Tennessee. :I: * * It is further ordered that*234 the laws of the highest courts of the state of Tennessee in reference to the selection and impaneling of jurors and challenging of jurors shall constitute the rule of action and practice in this court.”
Under the Tennessee Code, "every male citizen who is a freeholder or householder, and twenty-one years of age, is legally qualified to act as a grand or petit juror, if not otherwise incompetent under the Code.” T. & B. Code, Tenn. § 4002. In addition to the provisions of the statute contained in said section 800 of the Eevised Statutes, particularly applicable to juries, section 914 enacts that “the practice, pleadings, forms, and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, forms, and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit and district courts are held, any rule of the court to the contrary, notwithstanding.” Rev. St. § 914.
The rule of court cited above embraces the challenging- oí juries, as well as their designation and impaneling, although the former word is not found in section 800 referred to; but the case of U. S. v. Shackelford, 18 How. 588, decides that this provision, originally enacted July 20, 1840, empowers the federal courts to make rules regulating the challenges of jurors, though some doubts had been expressed previously on the subject by the circuit courts. In U. S. v. Douglass, 2 Blatchf. 207, it was held that the section applies both to the “mode and manner of obtaining the general panel of jurors in court,” as well as to the “method of impaneling them in a specific case on triál.” Silsby v. Foote, 14 How. 219; U. S. v. Reed, 2 Blatchf. 435; U. S. v. Tallman, 10 Blatchf. 21; U. S. v. Woodruff, 4 McLean, 105; U. S. v. Collins, 1 Woods, 499; Huntress v. Epsom, 15 Fed. Rep. 732.
It is unnecessary to decide, however, whether the question of a new trial for the alleged incompetency of the juror shall be wholly determined by the law of this state or by the common law, as by either test it is believed the motion should be denied. Motions for a new trial in Tennessee, even in criminal cases, have been always regarded with disfavor by courts when the motions are grounded on such disqualifications of a juror as a challenge propter defectum upon the trial would disclose. The want of these purely statutory qualifications, such as citizenship, age, property, sex, etc., which do not go to make up the really (not purely legal) necessary and essential qualities to enable the juror to do his duty intelligently and impartially in the case, have never in this state, or elsewhere, been treated with the same strictness as objections to the juror for bias, partiality, criminality, and the like causes reached by challenge propter affectum and propter delictum as designated in the common law. Indeed, the courts are swift to lay hold of an argument or fact in the record on which to ground a denial of these motions when based upon the propter de-fectum class of juror disqualifications, especially where they can see
“It follows that the proper time for challenging is between the appearing and the swearing of the jurors. * * * These authorities show that this exception comes too late after the juror was sworn, the matter existing before. To this is answered that the defendant did not know it till afterwards. * * Be that as it may, it is .not a good ground for a new trial.”
And per Catron, J.:
“The objection comes too lato. If the juror is not a good and lawful man, can he be challenged after he is sworn? The ancient and well-settled English authorities are that you cannot challenge the juror after he has been sworn unless it be for causo arising afterwards. * * * It would be most dangerous to pursue a different practice.”
The motion for a new trial in Gillespie v. State, 8 Yerg. 507, (1835,) was based on the fact that two of the jurors were members of the grand jury who found the indictment, supported by the defendant’s affidavits that they did not know this till after the court had charged the jury. In sustaining the action of tlie court below, overruling the motion, Catron, J., speaking for the court, says:
“Is or is want of knowledge an exception to the general rule. ® * * If the juror he not challenged lie is competent to try the issue, nor can it bo permitted to lot the defendant annul the verdict against him on his affidavit of want of knowledge, — always to bo had in cases of convicted felons, and which are not subject to be disproved.”
In Ward v. State, 1 Humph. 253, (1839,) after the jury were sworn, on motion of the district attorney 10 jurors wore allowed to be challenged because not freeholders. In a judgment overruling the action of the circuit court in this regard it is said:
“It is too well settled, both by the authorities of the courts of Great Britain and of the state of Tennessee, that it is too late, after a jury has been sworn, to challenge any of its members propter defectum, to he now a debatable point.”
And in the case of Calhoun v. State, 4 Humph. 477, (1844,) a new trial was denied on a conviction of murder, with death sentence, on defendant’s affidavit of want of knowledge, till after verdict, that one of the jurors was not a freeholder, the court using this language:
“This has been so repeatedly held in this state to be no cause for a new trial, and the reasoning therefor has been so repeatedly gone into in various eases heretofore examined and reported, that we deem it wholly unnecessary to add a word further thereto.”
The somewhat novel case of Hines v. State, 8 Humph. 598, (1848,) shows that a juror sworn on his voir dire as to opinion, property,
“We think that, until the jury shall be sworn in the case, the court may, for any good cause, discharge a juror that lias been selected, and select another in liis place.”
In the case of Bloodworth v. State, 6 Baxt. 614, one of the errors raised by the bill of exceptions was that two of the grand jurors had served in the court within 12 months, which was held to be no error, the court, in its opinion, saying, inter alia :
“As to a petit jury, it is the right of either party to the ease to get clear of the incompetent juror by challenge, and, if he fails from proper cause to exercise this right at the proper time, it would be a conclusive waiver of it and the verdict of the jury be valid.”
The late case of Draper v. State, 4 Baxt. 253, (1874,) shows that the motion for a new trial was made because a juror was neither a freeholder nor householder, and that the defendant was ignorant of this at the trial. It does not appear from the record what answers the juror made on his preliminary examination, but the court, in disallowing a new trial, assume that the juror, supposing himself competent, answered accordingly.
The cases of Howerton v. State, Meigs, 262; Troxdale v. State, 9 Humph. 411; and Brakefield v. State, 1 Sneed, 215, relied upon by the defendants here, were all cases where the objections to the juror were made because of bias or partiality or- prejudice, evidenced by the formation and expression of opinion by the juror. Such objections, which give a party the right to challenge propter affectum, go to the purity of the verdict, and its fairness and correctness, and are governed by a different principle than those presented in this case.
The rule thus shown to be the law of Tennessee is, unquestionably, the well-settled English doctrine, and the result of more than two centuries’ growth. A few of the earlier common-law cases wall be referred to, illustrating the principle: Aylett v. Stellam, Style, 100, was decided in 24 Car. I., as follows: ,- -
“Twisden, upon a rule to show cause why there should not be a new trial, said that two things were alleged on the other side that there ought to be a new trial: (1) That two of the jurors were kin to the plaintiff. * * * To the first of which he answered that the jurors were not of kin, and produced an affidavit for proof. Rolla, J., interrupted him, and said: ‘It is not now material whether they be of kin or no, for the defendant would have taken advantage of that upon his challenge at the trial.’ ”
So, also, in Loveday's Case, Id. 129:
*237 “The court was moved upon an affidavit that one of! the jurors that gave the verdict against the plaintiff had a suit in law depending at that time with the plaintiff, and therefore that the trial was not indifferent; and therefore it was prayed there might be a new trial. But the court said it could not be, and asked the party why he did not challenge the juror for this cause at the trial, for want of which ho had now lost that advantage.”
In an old case decided in 1681, (Cotton v. Daintry, Vent. 29,) the issue tried by the jury was whether Sir A. B. was a bankrupt. The motion for a new trial was based on two grounds, — one being that the foreman of the jury was brother-in-law to one of the creditors of Sir A. B., but “Moretón and Baiuesford held neither of these reasons sufficient; for the first, it was tlieir own laches that they did not challenge upon it. * * Twisden, for the last reason, held a new trial was to be granted. * * *' Kellynge held both reasons sufficient for a new trial, which could not bo, in regard the court was divided; whereupon, judgment was entered for the plaintiff, and execution taken out.”
Upon an exhaustive review of all the authorities, the authors of a late work on juries conclude that “the rule is very well settled that, after a verdict, those formalities will not be permitted to affect the result, although they did not sooner come to the knowledge of the party complaining, unless positive injury can be shown to have accrued therefrom.” Thomp. & M. Jur. § 295, and cases cited in nota.
But even if the juror Gray, who sat in the trial of this suit, was not, in fact, summoned by the marshal, nor drawn from the box, but appeared instead of his father, who was so drawn and summoned, and this fact had been sufficiently proved upon the motion for a new trial by the defendants, it is doubtful if the motion should, for that reason, prevail, and the court suspects, from what passed between counsel at fclie hearing of this motion, though it is not in the record, that such was the fact, and so accounts for this juror’s presence in the panel; for it is a common practice in the state courts for jurors summoned to send substitutes whom the court accepts.- The English cases present a curious line of decisions peculiarly applicable to such a state of facts.
In Hill v. Yates, 12 East, 229, (1810,) the motion for new trial was made “because the son of one of the jurymen returned upon the panel had answered to his father's name when called, and had served upon the jury,” as appeared by affidavits. “The court, however, considering the extreme mischief which might result to the public from setting aside, upon a motion for a new trial on such ground, inasmuch as the same objection might happen to lie against every verdict on the civil and criminal sides at the assizes, and recollecting that the same objection had been taken and overruled since the case in Willes, refused to entertain the motion.” .Afterwards, upon consulting all the judges, Lord ElleNRoeough said they would not interfere in this mode; “that if they were to listen to such an objection they
In 1816, in the case of Dovey v. Hobson, 6 Taunt. 460, Hill v. Yates was in terms expressly affirmed, but a new trial was granted under these facts: A summons had been left at the house for B., who had recently moved out; M. at the time occupying it. M. appeared, answered to the name of B., was sworn and impaneled in the cause. After the case had been gone through, but before verdict, the fact was discovered.
But in the case of Rex v. Tremaine, 16 E. C. L. 318, the facts, perhaps, bear a closer resemblance to the case at bar than any other to be found. It was a motion for a new trial on a conviction for perjury. The name of John Williams appeared in the tales panel, and, when called, a person appeared, answered thereto, went into the box, and joined in the verdict. After verdict it was discovered that the one who served was Bichard Henry Williams, a son of John, and who was but 20 years and 6 months old, had no freehold or copyhold estate, and had not been summoned. It appeared from the young man’s affidavit that his father had been served, but, being ill, had requested the boy to attend in his place, and that affiant knew no harm in so doing. All collusion was denied. In granting a new trial, Abbott, C. J., said the mischiefs enumerated in Hill v. Yates ought not to control in support of “a verdict pronounced by a jury on which a person incompetent, both by reason of nonage and want of qualification, has served, * * * particularly in a case so highly penal.”
In Regina v. Mellor, cited in Thomp. & M. Jur. 334, there was in 1858 a conviction and sentence to death for murder. The panel contained the names of Thorn and Thornilly, both of whom were summoned and qualified. When Thorn’s name was called, Thornilly by mistake answered and was sworn, without challenge or objection, and the mistake was not discovered until after verdict. Of the 14 English judges who sat in review upon this case 6 were of the opinion that a new trial should be granted, 6 that it should not, and 2 gave no opinion. And in Wells v. Cooper, Id. 335, the name of Fox being called as a juror, one Cox answered and served by mistake. A new trial was refused because “the court will not in its discretion grant a new trial in a case where a person not of the panel served upon the jury, unless substantial injustice has been done by a wrong juror having served.” Norman v. Beamon, Willes, 484; Parker v. Thornton, 2 Ld. Raym. 1410.
But one of the earliest and perhaps the leading American case on the subject of new trials for want of proper qualifications for a juror is Hollingsworth v. Duane, Wall. C. C. 147, (1801,) the opinion by Judge Griffith being an able review of all the early English authorities, and an exhaustive exposition of the whole subject. The suit was an action for damages for libel contained in a newspaper
“I admit that it is a good cause of challenge that a juror is an alien. * * * Put, it is ono thing- to set aside a juror on a challenge made to him and substantiated by proof before he is sworn, at the proper time and placo, and by the proper mode of trial, and another to allow tho juror to be sworn without objection, and then set aside the verdict of the whole jury for a defect of qual-ilication which, had it been suggested in time, would have been attended with no consequence but that of calling 03i the next juror named in the panel. It is easy to see to what injurious consequences this practice would lead, or allowing a challenge after verdict. The causes of challenge are in Unite, and perlians not one jury in ton are sworn that, if the situations, connections, in-te,rests, and qualifications of eacli juror wore critically inquired into after verdict, some one or more would not be found, in some capacity, the subject of challenge. * * * But as to the ordinary and legal disqualifications of jurors, such as citizen, freeholder, relation, servant, and every relation of a general nature, and capable of ascertainment by ordinary care and inquiry, these cannot be permitted upon the plea of ignorance after verdict. * * * If.simply swearing to ignorance of a fact were to put a party on the same ground in regard to challenge after as before verdict, it is easy to see that tho rule of invoicing challenges at tine trial would he good for nothing; the whole law would l)o changed; the mode of trying tlie challenges, the time, the opportunity for the juror and the party to he heard, and verdicts would many times be overset alter a fair trial merely on the plea of a culpable ignorance. No; if a party comea to set aside a verdict on the ground of a disqualified juror, ho must make a very special case indeed, lie mast show from the nature of it that ordinary diligence could not have effected the discovery; that lie was surprised; or that, after due inquiry and pains, he had missed or been misled as to the fact.”
In Orme v. Pratt, 4 Cranch, C. C. 124, (1830,) the motion for a new trial, because ono of the jurors was brother-in-law of the plaintiff, a fact not known to defendant nor bis counsel, was overruled. In the criminal case of U. S. v. Baker, 3 Ben. 68, Judge Blatohford denied the motion for a new trial because one of the jurors was deaf and did not and could not hear the evidence, although the defendant was ignorant of this when the jury was sworn and impaneled. The court in this case held that “the non-possession of any natural faculty stands, in respect to a juror duly summoned, in the same category with alienage or infancy or sex.1’ But see the case of Turnpike Co. v. Railroad Co. 13 Ind. 90, where a contrary doctrine was held as to a juror who could not read or write English.
The early case of Gilbert v. Ryder, Kirby, (Conn.) 180, (1786,) presented a motion in arrest of judgment because one of the jurors bad not taken the statutory oath of fidelity to the state, which fact was unknown to the defendant at the time of trial. The motion was denied by the whole court. “The exception does not go to the partiality of tho juror, nor affect the obligation lie was under to find a verdict
In James v. State, 53 Ala. 380, (1875,) a new trial was refused under these circumstances: The State Code, § 4063, prescribed certain qualifications for jurors, and a subsequent act made it the duty of the court, “before administering the oath prescribed by law” to any juror, to ascertain that he possessed the qualifications prescribed by the Code, “and the duty required by the court by this act shall be considered imperative.” In selecting the panel, the court caused eight questions to be put to each person. None of these questions inquired of the j urors in respect of their qualifications under said section, nor did the defendant ask nor request the court to ask any such questions, neither objecting nor accepting.
The cases of Orcutt v. Carpenter, 1 Tyler, (Vt.) 250, (1801;) Guykowski v. People, 1 Scam. (Ill.) 476; and Watts v. Ruth, 30 Ohio St. 32, (1876,) are cited and relied upon by the defendants here. In the Vermont case a juror was a freeholder when his name was put into the box, but not when he was drawn, summoned, and served as a juror in the case. The new trial was refused on this ground, because “the juror being legally qualified when put into the box, his subsequent disqualification by divesting himself of his freehold, and thus not being a freeholder when drawn, summoned, and sworn, should have been taken advantage of in challenge, and cannot prevail after verdict.” The Illinois case is a direct authority for granting a new trial, because one of the jurors was an alien when sworn, of which fact the defendant was ignorant at the time; but in Greenup v. Stoker, 3 Gilman, (Ill.) 202, the decision is by the same court, criticised and confined strictly to capital cases, while in Chase v. People, 40 Ill. 356, the doctrine is wholly repudiated and overruled.
In the Ohio case, read in the argument, the juror was cited as a talesman, and was not 21 years old, but was accepted without inquiry as to his competency, though personally known to the party and his counsel. No objection was made nor question asked of him, because he was thought to be 21 years of age. In denying the motion for a new trial on this ground the court says:
“If a person, not having this qualification, is retained upon the panel without the knowledge of the party or his counsel, after due diligence and inquiry has been made to ascertain the juror’s qualification at the time of impaneling the jury, a new trial should be granted. If, however, no inquiry was made of the juror, and thereby arose a want of reasonable diligence in ascertaining the 'qualification-of the juror at “the time of impaneling the jury, the party will be held to have waived all objection to the juror. This rule extends to each and every element that goes to constitute a qualified juror, save such as the statute requires the court sua sponte to ascertain. ' * * * It is not a sufficient showing, on a motion for a new trial, that the party, at the time the jury was impaneled, was ignorant of the fact of the incompeteney of such person for a juror, and that he believed him to be competent. He must, at-the proper time, have examined the juror touching his qualifications. Noth*241 ing short of such an investigation will furnish a showing of reasonable diligence.”
Here wo have no statute requiring the court to ascertain the qualifications of its jurors,
But the defendants here in argument insist that, conceding the doctrine to be as announced in this opinion, they do not fall within it because Gray, being “duly sworn, elected, and impaneled as a j uror” on the first day of the term when the venire was returned, they had a right to rely upon this without anything further, and that, therefore, they have waived nothing; or, in other words, have been guilty of no laches or negligence, or want of proper diligence. But the 'answer to this argument, in the light of the foregoing cases, is obvious; and the solution of the question depends upon the time when the right of challenge accrues to a party, and what is meant by the impaneling of a jury and an examination of a juror upon his voir dire. Nothing is better settled than that a party cannot, either with knowledge of a juror’s disqualification or from supineness and culpable negligence in ascertaining whether he is qualified or not, speculate upon the result of a trial, holding in reserve whatever he may know or can afterwards ascertain to vitiate the verdict, if against him. Our statute requires the names of jurors to be “publicly drawn from a box,” and under our and the Tennessee practice the venire facias must issue a certain number of days before the commencement of the term. The evident object and purpose of these and various other somewhat similar provisions is io publish to litigants and others interested the jurors selected by law to try the issues presented for determination in the court, thereby giving ample opportunity for investigation and inquiry as to their qualifications, characters, connections, relations, etc., “that so they may be challenged upon just cause.” 3 Bl. Comm. 355.
Besides, the proper time for challenge is after issue joined in a cause, especially in a civil suit, and when the cause is called for trial. Thomp. & M. Jur. § 286, and cases cited. Mr. Chitty, in his work on Criminal Law, on this precise subject says:
“The time, for the trial having arrived, the dork calls the petit jury on their panel by saying: ‘ You good men that are impaneled to try the issue between our sovereign lord, the king, and the prisoner at the bar answer to your names upon pain and peril that shall fall thereon.’ ‘When this is done, and a full jury appears, the clerk of the arraigns calls the prisoner at bar and says to him: ‘These good men and true, that you shall now hear called, are those which are to pass between our sovereign lord, the king, and you; if, therefore, you, or any of yon, will challenge them, or any of them, you must challenge them as they come to the book to bo sworn, before they are sworn, and yon shall be heard.’ * * * From the words of the clerk’s address to the prisoner, it is evident that this is the proper time to exercise the right of challenge.” 1 Chit. Crim. Law, 532, 533.
And an examination of all the cases cited in tin’s opinion shows that the objections were always taken “on the trial,” or “when the
Originally, at common law, all questions arising by challenge were tried by triers, composed of two indifferent persons appointed by the court, until one juror was obtained, when he took the place of one of. the triers, and, when another was accepted, these two jurors so first obtained were the triers before whom witnesses were sworn, and whose decision was final. Challenges in the federal courts are now tried by the court without the aid of triers. Rev. St. 819. So, strictly speaking, and at common law, a jury is impaneled only when they have been elected and are ready to be sworn, though the more modern use of the’ term often indicates the jury as sworn in a particular case. Thomp. & M. Jur. § 257; 2 Bac. Abr. 742, tit. “Juries,” B, 8; Co. Litt. 158b; State v. Potter, 18 Conn. 169, 175; 1 Abb. Law Dict. 200, “Challenge;” 2 Bouv. Law Dict. 271, “Panel.”
The writ of venire facias at common law was merely the sheriff’s “warrant to warn the'jury,” and the names were in fact selected by him, and he returned them in a panel — “a little pane or oblong piece of parchment” — attached to the writ. But these jurors were not in fact summoned by the sheriff under the writ of venire, but a subsequent compulsory process of distringas or habeas corpora juratorum, as the ease might be, issued to bring them in; and until the English statute of Geo. II. c. 25, these writs issued as, of course, in every separate cause; hence the old form of granting a new trial was the award of a venire de novo. This act of Geo. II. “appoints that the sheriff or officer shall not return a separate panel for each separate cause, as formerly, but one and the same panel for every cause to be tried at the same assizes, containing not less than 48 nor more than 72 names, and that their names being written on tickets shall be put into a box or glass, and when each cause is called 12 of these persons whose names shall be first drawn out of the box shall be sworn upon the jury, unless absent, challenged, or excused.” 3 Bl. Comm. 357, 358.
It is the practice of the judge presiding in the courts of this district, as the return of the venire is called by the marshal in open
Nor do I think any advantage whatever can result or accrue to a party having a case in court from this customary action of the judge. The venire is issued out of the court to a public officer for service, and contains names for jurors publicly drawn from a box by the crier in open court. The venire is returned into the court, and is called by the marshal in open court, when and where the jurors appear and answer. Why any one of these various steps to secure a lawful jury can be relied upon by a party, more than another, as an excuse for want of diligence in ascertaining a particular juror’s statutory quali-cations, is neither obvious to me, nor suggested by the argument nor in the briefs of the defendants. As well might it be insisted that the action of the clerk and jmy commissioner in our practice, or of the county court, the nisi prim court, or sheriff, as the case may be, in our state practice, would excuse a party from challenging a juror for any statutory cause on the theory that no juror other than those qualified would ever by those means bo presented to a party. It is true, every juror is prima facie competent and qualified. The duty of ascertaining to the contrary devolves on liim who would take advantage of a want of qualification.
There has been much discussion in the books whether, in denying a new trial for such cause, the action of the court should be based on the party’s waiver, as in this state is the rule, or on his want of diligence, as the supreme court of Michigan holds. Of course, it makes practically but little difference, since the result, in a case like this, would be the same on either ground, and -would result in a new trial being denied.
But even if ignorance were an excuse to a party, in all cases, for not challenging a juror for a cause propter delictum or propter affectum, which is by no means clear in Tennessee, there must be shown, in addition, that the party has been injured by reason of that particular juror taking part in the verdict. That he was not qualified is not
Here, therefore, had the juror been examined in court upon his voir dire strictly, on the impaneling of the jury in this cause, and had qualified himself as to age and property, when in fact this was untrue, that alone would not, under the facts set out in the affidavits filed in support of this motion, warrant the court in granting it, in the absence of any showing whatever of any injustice thereby accruing to the defendants, and of improper motives on the part oFthe juror.
• The next ground of the motion is based on the action of the court in allowing the plaintiff to amend his declaration, as to which the court is satisfied that it committed an error for which a new trial should be granted. The application was allowed with great reluctance, and solely to prevent, if possible, an abortive trial. Technically, if the amendment had been disallowed the result would have been barely nominal damages to a plaintiff entitled, perhaps, to substantial recompense for an injury to his property at a critical time in his affairs, if the jury should find the issues in his favor; and since the defendants had examined numbers of witnesses and were before the jury with abundant testimony, it seemed important that the plaintiff should be allowed to put his defective declaration in shape to support whatever case he had made by his proof. The amount of the verdict was larger than the court had supposed it would be, and affords no hope that the parties, notwithstanding this error, might adjust this litigation. The well-known practice of the court not to disturb verdicts fairly rendered makes it incumbent on the court to scrutinize its own conduct with care on these, motions for a new trial, partieiilarly where there is no review by writ of error open to the parties, and, whatever the verdict may be, to set it aside if there be substantial error.
The plaintiff chose to go to trial on the declaration as he had made it, after its defects had been called to his attention, and when, under the inconvenience of a continuance, it might have been amended as he wished. When, after the case was nearly ended, the conclusion was reached that it was fatally defective, it was the defendants’ right to hold him to the pleadings, unless he should take a nonsuit, suffer costs, and begin again; and it was putting the defendants to a disadvantage to deprive them of this benefit of the situation by allowing the amendment.
Besides, the affidavits show that there is other proof they might have had, if they could have had another trial by forcing the plaintiff to a nonsuit, though they show no reason for not having presented that proof on this trial. They argue that they, need .show no .other
Motion granted.