Briggs v. Town of Georgia, 15 Vt. 61

Briggs v. Town of Georgia

15 Vt. 61 | Vt. | 1843

Lead Opinion

The opinion of the court was delivered by

Hebard, J.

The first point made in the case is the decision of the county court, in excluding the pocket docket of the plaintiff from going to the jury as evidence. And, in this decision, we discover no such error as would justify us in sending the case back for a new trial. It cannot reasonably be supposed that the jury would have come to any different result, if this docket had been before them. The question was not whether the plaintiff had rendered the services for which he claimed pay, but whether, at the time he was rendering those services, he expected to be paid for them, and whether the agent of the town had reason to suppose the plaintiff so understood it. It was not proposed *71to accompany the docket with any proof that it was the custom and practice of the plaintiff to make charges for his services in such docket, or that any were made: but the . . offer was, “ to show that the suits, Austin v. Georgia, were entered thereon.” That fact could have no legitimate tendency to establish the point in controversy in this part of the case. The plaintiff had the benefit of his day book, in which his charges were, in fact, made.

In the next place, we think there was no error in the instructions which the court gave the jury. The parties were evidently requiring of the court a particular charge, in relation to defendant’s liability to pay the plaintiff for his services; and we think the charge correct. The court told the jury that they must find the fact from all the testimony in the case. The plaintiff’s objection to this is, that the conversation of the plaintiff and Mr. Allen, and the conversation of Mr. Allen and the agent of the town, were not proper to be considered in reference to the plaintiff’s understanding in regard to the services which he had .already rendered. But we think it was not improper for that purpose. The conversation was in the nature of an admission of an existing fact. The proposition of Mr. Allen that he would have the agent engage the plaintiff, in that suit, and the answer, or reply of the plaintiff to that proposition, might well be considered by the jury, while determining whether the plaintiff rendered the services, expecting to be paid for them.

The objection to the witness, Mr. Allen, on account of interest, is not well taken. It does not necessarily follow that Mr. Allen, in any event, would be liable to the plaintiff; but, were it so, it would be for his interest to fix the liability upon the town, and therefore he has no interest in the event of this suit, to which the plaintiff can with propriety except.

But the important question in this case, and the only one, in which this court have had any difficulty, is in relation to the want of a freehold qualification in one of the jurors. And upon this, the authorities are not entirely harmonious. The only disagreement is in relation to the time, and manner, of taking advantage of this want of qualification, In other words, must it be taken advantage of upon the chai*72lenge of the juror, at the time of empannelling the jury ? or may it be insisted on as a cause of setting aside the verdict? Our statute which was in force at the time of this trial, required jurors to be freeholders. But it has been said argument that this is merely directory; and the case of The People v. Jewett, 6 Wend. 386, is cited as authority to that point; and also that the only advantage that can be taken of it, is upon a challenge to the juror. I am not very well satisfied with the summary mode of getting rid of a statutory provision, by calling it directory. If one positive requirement and provision of a statute may be avoided in that way, we see no reason why another may not. But the case above cited, is not very direct authority to this point. That case was a demurrer to a plea to an indictment, alleging that one of the grand jurors who found the indictment, was not a freeholder. By a reference to the statute of N. Y. it will be seen that there was no specific requirement that grand jurors should be freeholders. In relation to petit jurors, it is otherwise. Our statute requires both grand and petit jurors to be freeholders. The want of that qualification, is a disqualification, and applies to the juror in one capacity as well as the other. The cause for which a juror is challenged, js supposed to apply to some disqualification of the juror to sit in that particular case, such as prejudice, expressed opinion, interest, or relationship to one of the parties ; but these are no general disqualifications, affecting his capacity or legal right to be a juror in other cases. This being a qualification required by law, and the jurors being selected and returned by the officers of the law, without any interference of the suitor, he has a right to presume that none are returned, but such as possess the legal qualifications, and is not therefore bound to rely upon his challenge. All the remarks in the above case from Wendell, that are in point, and applicable to this case, are the mere expressions and opinions of the judge who delivered the opinion of the court, and had little or nothing to do with the question he was deciding. And the authority in the case from Kirby’s Reports, 184, is of the same character — the obiter'dictum, of the judge.

The case in I Conn. 401, is better authority in this case, than the one from Wendell, or the case from Kirby. It *73raises and discusses the same question that is involved in this case. In that case the court say, that £i although this ‘ defect does not affect the capacity or moral qualification of £ the juror, and is strictly technical, yet the law is too positive to be dispensed with.”

In Fines v. Norton, Cro. Car. 278, one Lambert was sworn upon the jury, but it turned out that his name was not in the venire facias, and for this it was held, that error would lie. We think there was much less reason for it than exists in this case. There was no pretence but what Lambert possessed every requisite qualification for a good and lawful juror, only that his name was not in the-venire, and that if his name had been in the venire, he would have been unexceptionable. But the verdict, for that cause, was set aside. But, in this case, the juror lacked a positive qualification to be a juror in any case. In the case Rex v. Tremaine, 16 Com. L. R. the court say, " to support a judgment, it must be founded on a verdict delivered by twelve competent jurors.” The verdict in this case was not rendered by twelve competent jurors, and the qualification which the juror lacked, was one that the wisdom of all civilized countries has deemed of importance ; and one with which the statute law of this state, up to the time of this trial, had not dispensed; and, we regard the trial by jury, of such paramount importance, that too much care cannot be exercised in preserving all the safeguards which the law has. placed around it.

New trial granted.

Dissenting Opinion

Bennett, J.

dissenting.

I cannot concur in the opinion of the court just pronounced, granting a new trial. Where the objection to a juror is such that it affects the fairness and impartiality of the trial, it should not be out of season, though advantage of it is not taken until after verdict. But should a verdict be set aside, simply upon the ground that one of the jurors was not a freeholder ? The possession of a freehold estate is not such a qualification as goes to the character of the juror. It gives him neither mental capacity, unbiassed feelings, nor a virtuous purpose, The want of it, to a moral certainty, cannot prejudice the fairness of the trial. If a *74, new trial is to be granted in such a case as this, it should be, I conceive, because “so are the authorities.” I think reason, and the weight of authority are against it In the case of the State v. Babcock, 1 Conn. R. 401, it is true the court granted a new trial, because one of the jurors was not a freeholder. But this was in a capital case; and though the rule should probably be the same in civil and criminal trials, yet this, evidently, had great influence upon the court. Until this decision, I understand, in Connecticut, the whole course of decisions had been to regard such objection only as matter of challenge. The court in Gilbert v. Rider, Kirb. R. 184, speaks of its having been, in point of fact, repeatedly adjudged, that the want of a freehold estate, though a ground of challenge, yet was insufficient after verdict. In Sellock v. Turnpike Company, Id Conn. R., the case of the State, v. Babcock, is evidently disapproved of, and if the court had found it necessary in the decision of that cause, it would, I think, judging from what is said, have been overruled. We have, in argument, been referred to a case in the Maryland Reports, in which the want of a freehold qualification in a juror was made the ground of a new trial. The opinion of the court is indeed laconic, consisting in saying, “ a non juror is as no juror.” This is about as satisfactory as it would be to say, “ a juror is a juror.” In the case of the People v. Jewett, 6 Wend. R. 386, it was held not to be a good plea to an indictment, that one of the grand jurors, who found the bill, was not a freeholder. In that case, the court seem to think, that the authorities leave it somewhat doubtful whether a freehold qualification was necessary for a grand juror at common law. By the statute of New York, passed in 1827,(see 2 Vol. Revised Statutes, p. 720) it is made the duty of the supervisors, to select and place in the list for grand jurors, such men only, “ as they know, or have good reason to believe, are possessed of the qualijica-tions, by lazo inquired of persons to serve as petit jurors, and are of approved integrity,” &c. The court consider this statute merely directory to the supervisors. The judge who delivered the opinion of the court, seems to suppose the law settled in New York, that though the statute requires a property qualification for a petit juror, yet a verdict will not be set aside simply for the want of it, though it was not *75known to the party at the time of the trial; and much less, . he says, ought it to prevail against an indictment.

In Jeffries v. Randall, 14 Mass. R. 206, a new trial was refused, where the party neglected to make the necessary inquiry of the juror, by which he might have ascertained the fact which would have disqualified him. This I think should be the rule, in all cases where the disqualification does not affect the fairness of the trial. Though alienage is a general disqualification at the common law, Coke Litt. 154 — 6, and is good matter for a challenge to a juror, yet in Hollingsworth v. Duane, 4 Dall. 353, and in King v. Sutton, 15 C. L. R. 252, new trials were refused for such cause. In the latter case, Lord Chief Justice Tenderton says, “ he ‘ is not aware that a new trial has ever been granted on the ‘ ground that a juror was liable to be challenged, if the ‘ party had an opportunity of making the challenge.” In neither of these cases did the party have notice of the ground of challenge. The disqualification, arising from alienage, does not affect the fairness of the trial. In Gilbert v. Rider, Kirb. R. 184, a new trial was moved for upon the ground that a juror had not taken the oath of fidelity to the state. The court held, however, that, if to serve as a juror, was “ to execute an office,” within the meaning of the statute, which it expressly prohibits any one from doing, until he has taken the oaih of fidelity to the state, yet, as the juror was not challenged, the exception was waived, and came too late after verdict.

In Hill v. Yates, 12 East, R. 229, the father had been summoned as a juror, and the son by personating the father, served; yet, a new trial was refused. It is true, in the case of the King v. Tremaine, 16 C. L. R. 318, where an infant, under the age of 24 years, and who had not the property qualification, and had not been in fact summoned, persona-ted his father, and joined in a verdict of guilty against a person indicted for perjury, the court held it was a mis'-trial, and opened the case after verdict. The juror, in this case, had not attained the age at which the law considers him of sufficient capacity to judge on matters of this kind; and, consequently, in effect, it was the verdict but of eleven. Besides, the young man was not returned on the panel, nor was he summoned, and must be regarded as no juror at all. *76Some of the judges say he could not have been challenged. It was clearly a mis-trial. The case of Fermor v. Dorrington, Cro. Eliz. 222, and Hasset v. Payne, Ib. 256, in which it was held to be error, if one man be returned in the venire facias, and a different man in the distringas, who serves as juror, cab have but little analogy to the question before the court. The venire facias, is directed to the sheriff, commanding him that he cause at least twelve free and lawful men to come, &c. Upon this writ it is not the practice for the sheriff to summon the jurors, but he returns the names of those he selects to serve as jurors, in a “panel” annexed to the writ, and they of course unavoidably make default in their appearance. Thereupon a compulsive process issues to constrain them to appear, called in the King’s bench, a distringas, and in the common pleas, a haebas corpora juratorum. As the sheriff in England selects the jurors upon the venire facias, (a very responsible duty) we at once see the importance, that the process which compels their appearance, should return the same men. Fines v. Norton, Cro. Car. 278, is a case of the same description, which seems to have been pressed into the argument. If a person, not returned by the sheriff upon the venire, is brought in upon the distringas, he might have been added upon the suggestion of the plaintiff himself. In such cases I readily grant, there has been a mis-trial; and the judgments have been reversed upon error. We have no statute in this state, enacting that none but freeholders shall serve as grand or petit jurors, but it it simply directs the authority of the town to agree upon their proportion of judicious and discreet freeholders to serve as grand and petit jurors, who are to be nominated by the authority, and chosen by the town. The clerk, is to issue his venire, commanding the sheriff to summon such number of petit jurors as the court shall direct, being freeholders. The statute is silent as to what shall be the effect, provided one who serves as a juror is not a freeholder. This must depend upon reason, and the common law authorities. There is a well known distinction between what may be regarded as the essence of a thing required to be done by a statute, and that part of a statute which is merely directory. If our statute had expressly provided that a property qualification, should be indispensable for a *77juror, it might, I think, with more plausibility be contended that such qualification was in the nature of a condition precedent, and that, without it, a person serving de facto, as a juror, should be regarded de lege, as no juror. In Orcutt v. Carpenter, 1 Tyler’s R. 250, a new trial was moved for upon the ground, that one of the jurors was not a freeholder at the time of the trial, but it was refused. It is true, in that case it appeared the juror was a freeholder when put into the box, though not when summoned, or at the time of the trial.

The fact that he was a freeholder when put into the box could not alter the case. We should look to the qualifications of the juror at the time of trial. If he is then to be regarded as no juror, it is a mis-trial. All that the case now before the court finds, is, that the juror was not a freeholder at the time of trial. I had supposed this question, had been practically settled. While in the practice of law, I never knew such objection to a juror listened to as a ground of new trial, but uniformly treated as only matter of challenge. The objection does not affect the fairness and impartiality of the trial. It is the interest of the community and of suitors, that there should be an end of litigation ; and to listen to this application is, in my opinion, fraught with evil, and, from inadvertance, and perhaps, in some cases, from design, it may prove a fruitful source of prolonging litigation. The legislature, however, at their last session, by abolishing the freehold qualification for a juror, have provided an antidote for all the evils, which I might fear, would otherwise flow from the decision now made. Admitting then, that the refusing a new trial for this objection, in the court below, did not rest in the discretion of that court, but may be reviewed in this court, upon exceptions, still I think the party can only avail himself of the objection, by way of challenge.