
    
      Muire &c. v. Smith.
    November, 1843,
    Richmond.
    (Absent Cabell, P.)
    Ferry — Inquisition—Evidence—Construction of Statute.— Construction of the act in 2 R. C. 1819, p. 261,. ch. 238, which provides for the impanelling' of a. jury to say whether, in their opinion, public convenience will result from the establishment of a. proposed ferry, and for the return "of this opinion to the county'court, “who-thereupon, as well as. upon any other evidence that may'be offered,, shall have full power to establish such ferry." The finding of the jury in such a case is merely evidence, and the' weight of it, under all the circumstances, a matter for the discretion of the court.
    Same — Jurors—Preconceived Opinion — Quashing inquisition. — Upon the return of the certificate of a jury, that, in their opinion, public convenience would result from the establishment of a proposed ferry, evidence is introduced, 1. Of one of the jurors, who proved, that before he was sworn, he had made up an opinion that the ferry would be a. public convenience; that he thought it probable he might have expressed his opinion, though he did not recollect to have done so; that he had, before he was sworn, signed a petition for the said ferry; and that, at the time he was sworn, he was uninfluenced by the said opinion, and prepared to render an impartial verdict. 2. Of another juror, who proved’the like facts with regard to himself, and also that he had expressed his opinion. 3. Of another juror, who proved the same facts with regard to himself, that the second had proved with regard to himself, and also that he had circulated a petition for the ferry. Upon this evidence the county court quashed the finding of the jury, and the circuit court reversed the judgment of the county court. Held, the judgment of the circuit court is right.
    Case at Bar Distinguished. — This case distinguished by Judges Baldwin and Allen from Hunter v. Matthews, to be reported in 12' Leigh, where the proceeding was under the act concerning mills, 'in 2 R. C. 1819, p. 225, ch. 235.
    On the 14th of March 1837, an order was . made by the court of King & Queen county, for the justices to be summoned to appear on the first day of the succeeding term, to act on an application of Lewis Smith 459 for the ^establishment of a ferry from his lands in King & Queen county to his lands in King William county. At May term 1837, Francis Row, Thacker Muiré and William Newman moved the court for leave to enter themselves defendants to the application, which motion the court overruled, and the defendants excepted. Thereupon, “it appearing to the satisfaction of the court that the said Smith is the owner of the lands on both sides of the Mattapony river at the place proposed for the said ferry, and that public roads have been established through the same, and it also appearing to the court that the magistrates have been duly summoned, and that notice of this application has been given by advertisement set up at the door of the courthouse for two successive court days,” the court made an order directing the sheriff to impanel a jury of twelve disinherited freeholders, to view the place proposed for the establishment of the ferry, and say whether, in their opinion, public convenience would result from its establishment. The opinion of the jury impanelled under this order not being certified, but on the contrary it appearing by the return of the sheriff that they could not agree, and it further appearing that one of the jurors impanelled was not a freeholder, the court, at July term 1837, quashed the said return of the sheriff, and directed him to impanel another jury. On the same day that this order was made, Row, Muiré and Newman were permitted to enter themselves defendants. The jury impanelled under this order certified, that after being first sworn, they viewed the place proposed for the ferry, and on their oaths they believed that public convenience would result from the establishment of the ferry. This opinion being returned by the sheriff to the court, the case was continued from term to term until the 14th of November 1837, when Row, Muiré and Newman moved the court to quash the proceedings, (among other reasons) because some of the 460 jurors were ^interested, and had made up and expressed an opinion upon the question of the convenience of the ferry, before they were sworn upon the jury. Thereupon three of the jurors were introduced as witnesses, and this question was propounded to them: Had you made up and expressed an opinion upon the question of the public convenience of the ferry proposed to be established by the applicant in this case, before you were sworn upon the said jury? The applicant objected to the question being answered, but the court overruled the objection, being of opinion that the evidence was admissible, and the same was admitted accordingly: to which opinion the applicant excepted. The court, on hearing the case, quashed the proceedings, and gave judgment in favour of the defendants against the applicant for their costs. To which judgment the applicant also excepted. This last bill of exceptions set forth, that Row, Muiré and Newman moved the court to quash the proceedings, 1st, because no public roads had been established through the lands of the applicant, from and to which the ferry was proposed to be established; 2dly, because no notice of the application had been given according to the requisitions of the statute; and 3dly, because some of the jurors had made up and expressed an opinion before they were sworn, and were interested. Tc sustain this third objection, the defendants' introduced, 1. William Todd, one of the jurors, who proved, that before he was sworn, he had made up an opinion that the-ferry would be a public convenience; that he thought it probable he might have expressed this opinion, though he did not recollect to have done so; that he had, before he was sworn, signed a petition for the said ferry; and that, at the time he was so sworn, he was uninfluenced by the said opinion, and prepared to render an impartial verdict. 2. William B. Todd, another of the said jurors, who proved the same facts with regard to himself that 461 William Todd ^proved with regard to himself, and also that he had expressed his opinion. And 3. Elias Watling-ton, another of the said jurors, who proved the same things with regard to himself that William Todd had proved with regard to himself, with the additional facts that he had expressed his opinion and had circulated a petition for the ferry. Upon this evidence the court sustained the motion of the defendants, and quashed the proceedings.
    A supersedeas being awarded to this judgment, the circuit court reversed the same with costs, and sent back the cause to the county court, to be in the same plight and condition it was in on the 14th of November 1837, for further proceedings to be had therein.
    On the petition of Muiré and Newman (Row having died) a supersedeas was awarded to the judgment of the circuit court.
    Daniel for defendant in error.
    The bill of exceptions to the opinion of the court overruling the motion of Row, Muiré and Newman for leave to enter themselves defendants, not shewing any ground for the motion, or that these parties had any interest in the case, this court must intend that the judgment of the county court was right. Besides, these same parties were afterwards admitted to contest the application for the ferry, and actually succeeded in the county court. The last bill of exceptions sets forth three grounds for the motion to quash the proceedings; but as the evidence introduced relates only to the third, that alone need be noticed. It is, that some of the jurors who found the inquest had previously made up and expressed opinions respecting the public convenience of the proposed ferry. If those jurors had been examined on the voir dire in a case of life and death, and had given the same testimony which they here gave as to their own impartiality, that testimony would have been sufficient to admit them on the jury.
    462 *There being no counsel for the plaintiffs in error, Leigh, as amicus curias, suggested that the case of Hunter v. Matthews, decided not long since by this court and to be reported in 12 Leigh, involved a question a[s to the impartiality of jurors in a mill case, and the decision there might have an important bearing upon this case. »
    Daniel. There is a material difference between the statutes relating to the establishment of mills and of ferries. The functions of the jurors, and the effect of their finding, are very different in the two cases. On an application for leave to build a mill, the inquisition in favour of the applicant is conclusive until evidence is adduced to impugn it; and if the application be not contested, the court has no discretion to refuse leave to erect the mill and dam. But in regard to the application for leave to establish a ferry, the statute directs that the jury shall enquire whether the proposed ferry will be a convenience to the.public; and if they find that it will, the court, upon their opinion to that effect certified under their hands, and upon such other evidence as may be offered, shall have full power to establish such ferry. The jury in this case find no verdict affecting any right of property in third persons; they assess no damages; their certificate is merely of their opinion on the question of convenience to the public, and that opinion may be aided and supported by other evidence to be examined at the discretion of the court. The opinion is conclusive under no circumstances. In a mill case, other evidence cannot be resorted to in aid of the inquest, but only to contradict it. Tate’s Dig. 2d ed-i,, p. 695, note k. and opinions there cited. The question, then, whether a juror who has concurred in the opinion that a proposed ferry will be a public convenience, is strictly disinterested and impartial, is of very inferior importance to a similar question in relation 463 *to a juror in a mill case, and the evidence of unfitness ought to be much stronger, and indeed irresistible, to require that the finding in the former case should be set aside on that ground.
    
      
      See monographic note on “Perries” appended to • Patrick v. Ruffners, 2 Rob. 209.
    
   BALDWIN, J.

It cannot be doubted that a court under whose authority an inquest has been taken, with a view to the action of the court upon the subject of the en-quiry, has the power to quash the inquisition for good cause shewn. Its authority to set aside the inquisition and to award a new writ is analogous to the supervision and control which it exercises in regard to the verdict of a jury upon a venire facias or a writ of enquiry. And as a motion for a new trial is addressed to the sound discretion of the court, it is equally so in relation to the motion to quash an inquisition. In either case, the court interposes where manifest injustice has been done by the decision of the jury; or without enquiry into the merits of that decision, where the jury or the successful party has been guilty of gross misconducts in the proceeding, affecting the purity of the administration of justice, or where the jury has been so constituted, without the default of the party complaining, as to render it improbable that a fair and impartial investigation has been had. The same general principles, therefore, must govern an application to set aside a verdict of a jury, whether that verdict has been rendered upon a trial in court, or upon an inquest in pais. And the force of an objection to the verdict, founded merely upon a defect in the constitution of the jury, must depend upon several considerations; the want of an opportunity to make the objection before the decision of the jury; the effect of that decision upon the determination of the cause; and the weight of the objection itself.

When a jury is impanelled in court, the parties have an opportunity to challenge either the array or the polls; and if they do not avail themselves of it, the *court will not listen to objections to jurors after the rendition of their verdict, unless under very peculiar circumstances. But upon an inquest in the country, the right of challenge does not exist; and of course objections, whether to the array or the polls, cannot be made until after the return of the inquisition. On the other hand, a verdict rendered in court is conclusive upon the parties while it stands; whereas an inquisition made in the country may, under the peculiar law by which it is governed, be either conclusive, in the whole or in part, or merely evidence for the information of the court, and liable to be overcome or strengthened by other evidence. If an inquisition be conclusive on any material point, objections to the array or the polls, if sufficiently cogent, may be entertained upon a motion to quash ; though not such as would induce the court to set aside a verdict upon a venire facias, because the proper subjects of previous challenge. It does not follow, however, that the court will quash an inquisition for every objection which would have been a cause of even principal challenge upon a venire facias; for an important distinction arises from the consideration, that a challenge, when well taken, has the effect of preventing a vice in the constitution of the jury, and though it should be improperly sustained, can be productive of but little inconvenience; whereas the quashing an inquisition is necessarily attended with delay and expense, besides the hazards of annulling a decision of the jury correct upon the merits. It would therefore be no sufficient ground for quashing an inquisition, however conclusive in its character, that one of the jurors was a seventh cousin of one of the parties, or his steward or attorney, or of the same corporation with him, or “a witness named in the deed;” though these appear from the books to be I causes of principal challenge, sufficient in ¡ themselves, and not submitted to the determination of triers, as is the case I i with challenges that go only to *the favour. The objection ought, I think, to be such as to raise not merely a strong suspicion, but strong reason to believe the juror acted under an improper bias, or that unfairness had been practised in the constitution of the jury ; either of which might be inferred where one of the jurors was the son or the brother of the successful party, or had a pecuniary interest in the result. The rule, it seems to me, may be safely asserted, that an inquisition will not be quashed for objections to jurors which would not be good cause of principal challenge upon a venire facias; but the converse of the proposition cannot, I think, be true, that whatever is good cause of principal challenge upon a venire facias is a fatal objection to an inquisition. A juror upon an inquest can no more be challenged after verdict than a juror upon a venire facias; and it surely cannot be true that the inquisition found may be challenged, because the party had not an opportunity to challenge the jurors who found it.

In the case before us, though the objections to some of the jurors might have furnished grounds of challenge, inasmuch as the evidence tends to shew decided expressions of opinion before they were sworn, in relation to the matter of enquiry; still I think the court, in the exercise of a sound discretion, ought to have overruled them upon the motion to quash the inquisition. It by no means follows that a juror was partial because he had expressed an opinion ; for his belief may not have been the result of malice or prejudice, but of his own knowledge of the subject. Besides, the only evidence on this point is that of he very jurors themselves, introduced for the purpose of proving that they were not impartial at the time they were sworn. It is obvious that such evidence, if at all admissible, ought to be received with great caution and circumspection, by reason of the difficulty of contradicting it, and the encouragement which it holds out to tampering with jurors *after the rendition of their verdict. Nor ought it to be at all garbled, as it would be in this case, by rejection (what might perhaps be disregarded upon an examination on the voir dire with a view to a challenge) the emphatic declarations of the witnesses, that they stood, when called to be sworn on the jury, uninfluenced by what had occurred, and prepared to render an impartial verdict.

If therefore the inquisition were conclusive in its effect, the evidence just noticed would, in my opinion, furnish no good reason for quashing it. But the whole ground of objection is removed when we look to the character of the inquisition, which is in no wise conclusive. The proceeding is under the act concerning ferries, 2 E. C. 261, by which the duty of I ¡ I the jury is confined to the question whether i public convenience will result from the establishment of the ferry applied for, and the merits of the application are to be decided by thp court, upon the inquisition, and any other evidence which may be offered. The finding of the jury, therefore, in such a case is merely evidence, and the weight of it, under all the circumstances, a matter for the discretion of the court. There may be cases of corruption or unfairness in the constitution of the jury, calling upon the court to quash the inquisition as a decisive mark of its reprobation; but minor objections, pointing only to a want of qualification or a liability to prejudice on the part of one or more of the jurors, should be directed, not against the competency, but the credibility of their verdict.

Hunter v. Matthews is not an authority to rule this case. It was there held that an inquisition upon an ad quod damnum, on an application to erect a mill and dam, was properly quashed, on the ground that two of the jurors had been of the jury which had found a former inquisition upon the same matter of controversy. The proceeding there was had under the act concerning *mills &c., 2 R. C. 225, by the provisions of which the inquisition is conclusive as to the value of the acre of lapd located for the abutment of the dam, and the damage to the proprietors above and below; and is also conclusive against the applicant, where it finds that the mansion house &c. of any proprietor will be overflowed, or the health of the neighbours annoyed. And the decision in Hunter v. Matthews was founded upon the conclusive effect of the inquisition.

My opinion is, that the county court erred in quashing the inquisition found by the jury, and also erred in quashing the other proceedings. The objection that notice of the application for the ferry was not given according to the requisition of the statute, and the further objection that no public road had been established through the lands of the applicant, from and to which the ferry was proposed to be established, are wholly unwarranted, if not contradicted, by the record, and would seem to be founded upon the erroneous idea that the evidence of those facts ought to have been spread upon the record, though the case was never heard before the court upon the question whether the ferry ought to be established, which was arrested by the successful motion to quash the proceedings. — The judgment of the circuit court reversing that of the county court seems to me perfectly correct.

ABBEN, J.

In Hunter v. Matthews, two of the jurors had been of the jury which found an inquisition on a former writ of ad quod damnum in the same cause. This, according to the authorities, was a cause of principal challenge ; and for that reason, and because the inquisition in a mill case was in some respects conclusive upon the rights of both parties, I was of opinion that the inquisition there should be quashed. Neither of those reasons applies to the present case. The objection to the jurors did not constitute a cause of principal Challenge: it concluded to favour; case the exercise of a sound legal discretion, must determine upon the validity of the objection. Nven where the juror has given a former verdict, lord Coke says, “that in this or other like cases he that taketh the challenge must shew the record, if he will have it take place as a principal challenge; otherwise he must conclude to the favour. ’ ’ From which it may be inferred that a cause of principal challenge, growing out1 of the act of the juror, depends not so much on the character of the'objection as on the kind of proof. The fact of his having rendered a former verdict in the same cause, and the influence it would be likely to exert in a subsequent trial, could not be affected, whether proved by the record, or otherwise: yet in the' latter case the challenge concludes to the favour, and is addressed to the discretion of the court. See, upon this subject, Co. Litt. 157 b., 3 Thomas’s Co. Litt. 479, and 3 Black. Comm. 363. It is not said in either of these authorities that the expression of an opinion constitutes a cause of principal challenge ; and from the instances put, and more especially from the rqmark of lord Coke cited above, it is clear that the objection concludes to the favour. The same doctrine is to be found in 21 Viner’s Abr. 266, and 2 Rolle’s Abr. 657.

Viewing the objection here as constituting a challenge concluding to the favour, I think the court should have overruled it, after the inquisition had been found. According to the uniform course of decision, the testimony of jurors going to impeach their own verdict, if admissible, should be received with great caution. If such testimony be resorted to, full weight should be given to the whole of it. Here the jurors declare that their opinions previously formed had no influence on their finding.

But there is another reason why, in this peculiar case, there can be no propriety in quashing the inquisition. *It concludes nothing. It is at best but the opinion of twelve men, given under oath, as to the question of public convenience. The court, upon that as well as the other evidence, establishes the ferry or rejects the application. In a mill case, the finding of the inquisition that the health of the neighbourhood will be annoyed is conclusive; and so in respect to the quantum of damages for the land condemned. In these respects it differs widely from an inquisition of the kind under consideration.

I think therefore that the county court erred in quashing the inquisition, and that the judgment of the circuit court reversing that of the county court should be affirmed.

The other judges concurring, judgment of circuit court reversing that of county court affirmed.  