Johnson v. Christian
2 Port. 201
Ala.
1835
Check Treatment
By Mr. Justice Hitchcock :

This was an action of unlawful detainer, brought by the plaintiffs in error against, the defendants, before a Justice of the Peace in and for the county of Tnskalcosa. The case was tried by a jury, and a verdict-was had in favor of the plaintiffs. " It was-taken by certiorari info the Circuit Court for that county-; *203and. was reversed upon an assignmentthat the justice refused to the defendants the right of peremptory. challenge to one of the jurors.” It has been brought into this Court by' writ of error; and the only question is, -whether in such a case, either party is entitled to a peremptory challenge.

By the 11th section of “ an act to alter and enlarge the terms of the Circuit Courts of this State,” passed December, 1820,it is enacted, “that in all juryrtrials either party may and shall have the right to a peremptory challenge to four of the jury.”

The counsel for the plaintiffs in error, contend,, that by the Common Law, the right of peremptory challenge was confined to cases of treason and felony, and that Justices of Nisi Prius could not grant any tales, prior to the statute of 35 Henry VIII, chap. 6 — - that the Court in which this proceeding was had, is a Court of special and limited jurisdiction — -that its proceedings are summary, and in derogation of the. Common Law — that the act of 1805, giving this mode of proceeding, does not give the right of peremptory challenge; nor does it give the right to grant tales— that the act of 1820, is an act relating to the Circuit Court, and that therefore, the right of peremptory challenge given by it, should be confined to that Court — and that the Legislature must have. so intended it; as in the next year they extended the same privilege, by act, to the County Court, which they would not have done, if they had considered the first act as extending to the juries in all the Courts,

• The act of 1820, giving the right of peremptorj: challenge, is general in its terms. It says, “ that in all jury trials, either party shall have the right,” &e-. The act is remedial in its character. It'was intended to confer a right not known to the Common Law. It is, therefore, entitled to a liberal construction — -sa *204as to “suppress the mischief, and advance the remedy.” The jury contemplated by the apt of 1805, comes within the mischief intended to be remedied, as much as any jury in the Circuit Court, if not much more. The power of the sheriff is'much greater ’here, than in the empanneling of 'jurors for the Circuit Court; and there is no reason that can be offered, for extending the right of peremptory challenge in the Circuit Court, which does not.immedi-atefy appfy tó a case of the kind now under consideration.

It is true, the title of the act in which this section is found, relates to the Circuit Court; but the title of an act does not control its provisions.a It may serve to explain a doubtful matter in an act, if its meaning cannot be otherwise ascertained; but it cannot be resorted to, to restrain, limit, or control, a plain and palpable enactment; and by reference to that act, it wall be seen, that there are other matters contained in it, which do not, in the least, relate to the Circuit Court.

Neither does the Court consider the suggestion, that there is no power given by the act of 1805, to summon tales, any reason why the act of 1820 should not be extended to this case. By the Common Law,b if the jury did not attend, whether by reason of death, or other cause ; or if it be reduced by challenge, so that a sufficient number do not remain, the writ of undecem decern or ocio tales, issued to force others into Court to try the issue; and the statute of 35 Henry VIII, was enacted, allowing the plaintiffs to pray a tabs de dreumstantibus, to prevent the delay of the decern tales. The statute of 35 Henry VIII, allowed the sheriff to summons the bystanders; whereas, the Common Law required the jurors to come from the vicinage or neighborhood of the cause of action. At this, day a summons of by-stahders would he *205good, without the statute. The power of filling up the jury is an indispensable incident to the right of trial by jury, and cannot be separated from it without destroying the value of the right itself.

That the Legislature, in the act of 1821, in re-or-ganising the County Court, in one section of which, the right of peremptory challenge of four of the jury is secured to each-party, is to be received as any evidence against the construction given, cannot be ad--xnitted. That act gave jurisdiction to the County Court in some cases, concurrent with the Circuit Court, and it also provided a jury for the Court; and without the clause in that act, giving the right of peremptory challenge, this Court would have had no difficulty in extending the provision of the act of 1820 to it.

Let the judgment of the Circuit Court, be affirmed.

Bacon, title Statutes

Bacon, title Juries C.