The opinion of .the court was delivered by
Ross, J.
I. The motion to quash was properly overruled. It is based upon matters not appearing upon the record. It rests wholly on extrinsic facts, which could only be proved by parol evidence. No plea can be made to, and no issue joined upon, such a motion. It is an inappropriate mode of bringing such facts before the court. It should be founded upon facts appearing of record, or admitted and shown by the plaintiff’s own proofs. State v. Haynes, 35 Vt. 565" court="Vt." date_filed="1863-02-15" href="https://app.midpage.ai/document/state-v-haynes-6577493?utm_source=webapp" opinion_id="6577493">35 Vt. 565; State v. Intoxicating Liquor, 44 Vt. 216; Waterford v. Brookfield, 2 Vt. 200" court="Vt." date_filed="1829-03-15" href="https://app.midpage.ai/document/overseers-of-the-poor-of-waterford-v-overseers-of-the-poor-of-brookfield-6571132?utm_source=webapp" opinion_id="6571132">2 Vt. 200; Culver v. Balch, 23 Vt. 618" court="Vt." date_filed="1851-06-15" href="https://app.midpage.ai/document/culver-v-balch-6574629?utm_source=webapp" opinion_id="6574629">23 Vt. 618; Barrows v. McGowan, 39 Vt. 238" court="Vt." date_filed="1867-01-15" href="https://app.midpage.ai/document/barrows-v-mcgowan-6578219?utm_source=webapp" opinion_id="6578219">39 Vt. 238; Landgrove v. Plymouth, 52 Vt. 503" court="Vt." date_filed="1879-02-15" href="https://app.midpage.ai/document/town-of-landgrove-v-town-of-plymouth-6581276?utm_source=webapp" opinion_id="6581276">52 Vt. 503.
II. The plea in abatement was clearly insufficient. It is lacking in the certainty required in such a plea. It is also defective in presenting several issuable facts, disjunctively, by the use of ‘ ‘ or ” as pointed out in the brief for the prosecution. Such pleading would multiply indefinitely the issues involved in a case, and lead to confusion and perplexity, instead of eliminating all extraneous matter, and narrowing the pleadings to a single determinative issue, which is the crowning merit of common-law pleading. The counsel for the respondent do not seriously contend that the plea is technically' sufficient when judged by the rules of the common law, but contend, that strict technical accuracy should not be required; that it should be sufficient if the plea states the objection in plain, unambiguous language, and cite authorities in support' of such rule. But the common-law rules have never been relaxed in this State, except by force of statute ; and we have no statute relative to this class of pleading. The authorities cited are mostly from states in which the common-law practice does not prevail, and are not authority in this State. But it is unnecessary to give much attention to the technical form or *154substance of the plea. The counsel on both sides desire the opinion of the court upon the facts in substance, set forth in the plea and affidavits. The question thus presented is of practical importance, and has been considered carefully, although the case might be disposed of on the views already expressed. On the facts embodied in the plea and affidavits, the question is raised, whether in organizing and directing the proceedings of the grand jury, the County Court has any discretionary power to excuse jurors for causes not especially provided for in the statute, and to fill their places by ordering the sheriff to call talesmen. This was in effect what was done and is complained of by the respondent. This assumes that Hoffman was not disqualified by the Act of 1884. The prohibition of service by that Act is for two years from the time the juror was first drawn. A little more than two years had elapsed since the juror was before drawn, but not since he before served. There was a reasonable question whether the statute did not mean that two years should intervene between the terms of service. When this statute was called to my attention, I thought it was safer to excuse the juror, than to incur the risk of his being held disqualified under that Act, and so excused him and caused his place to be filled by a talesman (called by the sheriff), who was qualified to act as grand juror, if properly returned as such. I then thought as we now hold, that the statute, in terms, did not disqualify Mr. Hoffman from serving. Hence, if the court had no discretionary power in excusing him and ordering the sheriff to call a talesman, the action was erroneous. The prosecution contend that the objection to the discharge of Hoffman, and to the substitution of Ellis, relates only to the technical method of selecting the latter, and not to his competency. Such is the objection. It is nowhere alleged in the plea, nor stated in the affidavits which are referred to, and made a part of the plea, that Ellis was incompetent to act in the capacity of a grand juror, if properly selected and returned to the court. The prosecution has cited a number of authorities which hold that such an *155objection, by one bound up to the County Court to answer to such things as may be presented against him by the grand jury, is waived, if not taken advantage of in the organization of the grand jury; that the respondent should have challenged the grand juror or the array, when Hoffman had been discharged and Ellis substituted in his place. The decisions cited were controlled by statute, in some cases, and some cases are claimed to rest on the common law. But such a practice has never prevailed in this State, and has never been generally understood to exist. We think the better opinion is, that it did not exist at the common law. Thompson & Merriam on Juries, s. 507, et sequens. A passage in Hawkins’ Pleas of the Crown seems to support the existence of the right (2 Hawk. P. C. 25, s. 16), but the correctness of this passage and the right were denied by the Court of King’s Bench in Ireland on full discussionin 1811. 31 How. St. Tr. 543. Such has been the holding of the Supreme Court of Connecticut in a late case. State v. Hamlin, 47 Conn. 95" court="Conn." date_filed="1879-05-15" href="https://app.midpage.ai/document/state-v-hamlin-6580925?utm_source=webapp" opinion_id="6580925">47 Conn. 95. The early leading jurists in this State came from, and were educated in Connecticut, and gave to our State early laws and practice largely like those which existed in that State. The exercise of such right is attended with many inconveniences, if not inconsistences. The proceedings of the grand jury are' secret, and many indictments are found against persons against whom no antecedent proceedings have been taken. It cannot well be held that a person who did not know that any proceedings were likely to be had against him before the grand jury, by failure to object at the organization, waives any irregularity in the method of the selection, return, or organization of the grand jury. Neither is it quite consistent to hold that a person bound up to answer to such indictment as the grand jury might find against him, should before, or at the organization, object for irregularities in the method of selecting, returning and organizing the grand jury, or be held to waive the objection, when he has no right to be heard before that body in the proceedings there to be taken against him. We think that it *156is the better, and more consistent practice wliicb has heretofore, universally, so far as we are aware, prevailed, that such objections are not waived by one, bound up, by a failure to insist upon them at the organization of the grand jury, but that they may and must be taken advantage of by a plea in abatement before, or at the time, the accused first pleads to the indictment. As to irregularities in drawing, and disqualifications of petit jurors, which are somewhat analogous, see Briggs v. Georgia, 15 Vt. 61" court="Vt." date_filed="1843-01-15" href="https://app.midpage.ai/document/briggs-v-town-of-georgia-6572671?utm_source=webapp" opinion_id="6572671">15 Vt. 61; Mann v. Fairlee, 44 Vt. 672; Quinn v. Halbert, 52 Vt. 353. A general plea to the indictment upon its merits would be inconsistent with, and a waiver of such dilatory pica. Hence, the question remains, had the County Court the right, in the exercise of its sound discretion, to discharge Hoffman under the circumstances, and cause Ellis to be substituted in his place? The objection to the exercise of this right, by the respondent, seems to rest somewhat on the ground that he had the right to have Hoffman act in that capacity. It was early, and recently, held by this court, that a party in a civil suit had no right to have one competent juror, first called, sit in his case, rather than another, and that he could not affirm that he had been legally injured by the substitution of one competent juror for another, in the reasonable discretion of the court. Phelps v. Hale, 2 Tyl., 401" court="Vt." date_filed="1803-02-15" href="https://app.midpage.ai/document/same-v-same-6571000?utm_source=webapp" opinion_id="6571000">2 Tyler, 401; Quinn v. Holbert, 57 Vt. 178" court="Vt." date_filed="1884-10-15" href="https://app.midpage.ai/document/quinns-admrs-v-halbert-6582451?utm_source=webapp" opinion_id="6582451">57 Vt. 178. The action of the petit jury is much more binding and important in both civil and criminal cases, than is the action of the grand jury. The action of the former is in many respects final, while that of the latter is only initiatory. It would seem that the court should be more restricted in the exercise of the discretionary right to excuse a competent petit juror, and substitute another, than in the exercise of that right in relation to the grand jury. It has been the uniform practice of courts in this State to exercise this discretionary right and power in impanelling'the petit jury in the trial of both civil and criminal cases. It is a discretionary right and power, like all other kindred rights and powers, to be exercised in good faith, with good judgment, in the furtherance of justice,-but never capri*157ciously; or arbitrarily, or for the furtherance of injustice. So far as informed the same discretionary right and power has been exorcised in impanelling the grand jury. I am informed by Judge Barrett that he always exercised it, and in so doing followed the, to him, well-known practice of Judge Collamer and Chief Justice Redeield. Judge Poland, lately deceased, said that the practice had existed unquestioned, during the fifty or more years which ho was conversant with the practice of the courts of the State. No decision is to be found denying the right and power. In many, it is indirectly recognized. State v. Brainerd, 56 Vt. 536; State v.Cox, 52 Vt. 471" court="Vt." date_filed="1880-01-15" href="https://app.midpage.ai/document/state-v-cox-6581268?utm_source=webapp" opinion_id="6581268">52 Vt. 471; State v. Champeau, 52 Vt. 313; State v. Gravelin, unreported Windsor Co. case. In State v. Champeau, it is plainly intimated, if irregularity enters into the drawing, or empan-elling, of the grand jury, it must be shown to work a wrong or injury to be available. In State v. Gravelin, a petition for a new trial was prosecuted, in which it was shown, that a grand juror who acted in finding the indictment and a petit juror who participated in finding the respondent guilty of murder, were irregularly, and without the authority of law, drawn and summoned from the town of Chester, in that the person who drew and summoned them was a mere volunteer, wholly unauthorized to act in that behalf; and, yet the petition was denied, the persons drawn being competent to serve in their respective capacities. In Mann v. Fairlee, 44 Vt. 672" court="Vt." date_filed="1872-03-15" href="https://app.midpage.ai/document/mann-v-town-of-fairlee-6579550?utm_source=webapp" opinion_id="6579550">44 Vt. 672, the same doctrine was held in regard to summoning a petit juror. It is the duty of the court to order the drawing and summoning of both the petit and grand jurors, and to duly impanel them. This duty imposes on the court a responsibility which calls for the exercise of sound judgment and discretion. It has been generally held that the court charged with the duty of impanelling, either the petit or grand jury, was clothed with a discretionary power, in furtherance of justice, to excuse a competent juror regularly drawn, and to order a talesman called to fill his place; and that the exercise of such discretion is not revisable. Many circum*158stances may arise, such as the sickness or infirmity of tbe juror, or of some member of bis family, or of some near friend, or some emergency in bis business or property, wbicb require tbe exercise of this discretionary power, to secure intelligent and careful deliberation and determination of questions involving tbe highest rights of property, of liberty and of life. Its exercise also frequently becomes necessary to accord to persons called to serve as jurors the commonest civilities. It has been generally exercised in favor of both grand and petit jurors. Thompson & Merriam on Juries, ss. 259 and 580, et seq.
There must be the same right to fill the place of the juror so excused as there is to excuse him. The one right involves the other, unless otherwise provided for. Otherwise a legal jury of either kind'could not always be obtained. If such excuses should not reduce the number of the grand jury below a working quorum, they presumably reduce the strength and efficiency of a full panel, which the statute has given for the protection of the accused and of the State; of the accused, if innocent; and of the State, if he is guilty. If the number of the grand jury should be reduced to twelve, and the twelve should find, or fail to find an indictment, it does not follow that the action of the twelve would be the same, if aided by the counsels and deliberations of the other six required by the statute. To secure the full rights of the accused and of the State a full panel of grand jury should be secured when pos-ssible. This discretionary right and power should never be exercised arbitrarily, or without reason. Whether it comes to us, as a part of the common law, from 3 Hen. VIH. Chap. 12 as might appear, and as contended by the attorney for the prosecution (Bac. Abr. Juries A), need not be determined. It has been the recognized right of the court as practiced, so far as revealed by the reported decisions, and so far as the memory of the oldest practitioners can inform us, for nearly a century. In the meantime there has been no substantial change of the provisions of the statute relating to this subject. Tolman’s. Com. p. 79, s. 63; R. L. ss. 895 and 897. Such *159long and well-established practice, unquestioned by any decision of the court, and uninvaded by an act of the legislature should not be disturbed, because the courts of some other states, controlled more or less by code or statute, have held otherwise. If any serious inconvenience were to flow from it, it would have been made manifest long before now, and have been modified by proper legislation.
The result is that the respondent takes nothing from his exceptions, and the cause is remanded.