
    Clark and Another v. Davis.
    Where the evidence was conflicting and the question was purely one of fact, the Supreme Court will not disturb the verdict. (Note 78.)
    The statute prescribes that the jury shall be sworn, once for all, for the trial of such civil cases a3 shall be submitted to them during the term. The presumption therefore is, in a civil case, that the jury were sworn, and it is not necessary that the record should show the fact.
    It is not necessary for the names of the jurors in civil cases to be set out in the record of,each case.
    
      Appeal from Liberty. This suit was brought by the appellee to recover •of the appellants the value of a slave alleged to have been hired to the defendants for a given period, and not returned by them. The defense was, that the slave had disappeared, being lost, stolen, or dead; by reason of which, and without any negligence or fault on the part of the defendants, they were unable to restore him to the plaintiff.
    There was evidence tending to show that the slave had been drowned while In the service of the defendants. But in respect to the cause, whether in consequence of the want of proper care and diligence on the part of the defendants, the. evidence was conflicting.
    The record of the judgment stated that the parties appeared, &e., “ and then ■came a jury of twelve good and lawful men of said county, to wit, B. Danzey, foreman, and eleven others, who, having heard the testimony, the argument of counsel, and being charged by the court, retired, and after consultation, brought in the following verdict,” &c.
    There was a'verdict for the plaintiff; amotion for a new trial, which the court overruled, and gave judgment for the plaintiff; and the defendants ■appealed.
    The grounds of error relied on were—
    1st. The refusal of a new trial.
    2d. That it does not appear of record that the jury who tried the case were ■sworn.
    3d. That the names of all the jurors are not set out in the record.
    
      II. N. 31. 31. Potter, for appellants.
    I. The same strict rules do not apply to carriers and bailees of slaves as in ■cases for the loss of other property. (Boyce v. Anderson, 2 Pet. IÍ., 150; Wil-liams & Hitchcock v. Taylor, 4 Port. B., 234.)
    Davis hired the negro to Clark and Kilgore, to do all kinds of work necessary 'to be done in connection with their mill business, and he knew the dangers .and risks to which the negro was subject in such employment; and Clark and Kilgore, look such care of the negro under the circumstances as they were re--qui'red to do. (Williams & Hitchcock v. Taylor, above cited ; Mims v. Mitchell, 1 Tex. 11., 453.)
    It. The jury were not sworn, and the error is apparent ou the face of the record. (Crook & Adriance v. McGreal, 3 Tex. B., 487.) The finding of a .jury not under oath cannot constitute a legal verdict upon which the court can proceed to give judgment. (Arthur v. The State, 3 Tex. B., 403; Hart. Dig., art. 1G5G ; Beall «.'Campbell, 1 How. Miss. B.. 25; Wolfe & George v. Martin, Id., 30; Judah «. McNamee, 3 Blackf. B., 269; Mels v. The State, 2 Tex. B., 280.)
    III. The record states, that “thereupon came A. B., foreman, and eleven ■ others.” This does not show that there was a legal jury. The record should show this affirmatively. (Wolfe & George v. Martin, 1 How. Miss. B., 30.)
    
      II. P. Perkins, for appellee.
    I. It is sufficient answer to the first point made by the appellants that the .jury found the preponderance of testimony to be in favor of the appellee.
    II. It is considered that, the statute pointing out the method of impaneling petit juries, and they being retained to serve during the term, the presumption is in favor of the legality of a verdict, and that the jury that tried this cause were sworn. (Hart. Dig., art. 1G5G.)
    It is considered to be no more necessary under our statute to show that the .jurors that tried this case were sworn than it is that the court itself was legally •organized; that the grand jury wore sworn, or that the judge, sheriff, and ■clerk were in attendance; for the statute points out the way in which these ■things shall be done, and if the legality of the court’s proceedings is presumed .in tlie one case, why should it not be in the other?
    In the case of Neis v. The State, (2 Tex. B., 280,) it is held that iu criminal cases this error would be a fatal defect, and a civil case there referred to is intimated to be an extreme ease.
    In 1 Howard’s Miss. Bops., p. 31, it is held to he “an acknowledged principle that nothing can be presumed for or against a record except what appeal’s upon its face.’’ Our honorable court have held the very reverse of this principle, and .«ay, “ We are bound to indulge every presumption in favor-of the judgment.’.’ (3 Tex. R., 300.) Hence it will appear that the introduction of this doctrine would conflict with our own, and that the principles of their practice are dissimilar to ours.
    Under our statute there is a manifest difference between civil and criminal eases, for in the one the statute contemplates but one swearing of the jury for the whole term. (Hart. Dig., art. 1056.) In the other it contemplates that the-jury shall be sworn in each case.
    H. In relation to this error, reference is made to 1 Tex. R., 038. It is there-held to be a fair inference, if the record discloses twelve men (o be on the jury,, ■though all be not named, that such is the case, and such omission by the clerk, when the parties make no objection to the jury, will not be noticed in the appellate court.
   Wheblek, J.

In the evidence embraced in the statement of facts we see no-cause for disturbing the verdict. The question whether the loss of the negro-was in consequence of the want of proper care and diligence on the part of the-defendants appears to have, been fairly submitted to the jury. The evidence on this point was conflicting. The. question as presented was one of fact, and' therefore properly and exclusively for the decision of the jury. The overruling of tlie motion for a new trial, therefore, cannot afford a ground for reversing the judgment.

On the question of the sufficiency of the record of the judgment, it not appearing that the jury were sworn, we have felt some hesitancy. The precedents and authorities doubtless require that it affirmatively appear of record that the jury were sworn. We have heretofore held that, in a criminal case, if it (lo not so appear the judgment will be reversed. (Neis v. The State, 2 Tex. R., 280.) Counsel for the appellants have referred us to decisions of the courts-in Mississippi and Indiana, in which it has been so held in civil cases. (1 How. Miss. B., 24, 30; Id., 497; 3 Blaokf. R., 269.) In the last-cited case the court said : “The books all say that if it do not so appear it will be a material! and fatal defect.” (Id., 272.)

The forms of entries which wo now follow were adopted when it was the-practice to swear the jury in each case. This is still our practice in criminal trials. When this practice obtained, the Swearing of the jury necessarily constituted a part of the proceedings in the case, and must appear in the record. And in those courts where that practice still prevails, if it do not so appear, t here is a reason for holding the omission in the record fatal. But incur practice, as regulated by statute, (Hart. Dig., art. 1656,) the jurors are not sworn in each ease, but they are impaneled and sworn at the commencement of the term ; and this swearing- is for the trial of all cases which shall be committed to them during the term. The question is, whether, under our practice, thus .differing from that which formerly prevailed, it be still necessary that the record of the judgment in each case should show the swearing of the jury. It constitutes, in fact, no part of the history of the proceedings in the case; and can it be that the record must contain more than what actually takes place?’ Wo think not. We can perceive no reason for requiring it. We might feel constrained to yield to the authority of precedents and adjudications under circumstances in all respects similar to those in which they were founded. But the present- we think a proper occasion for the application of the maxim, that where the reason of the law ceases the law itself should cease. The provisions-of the statute to which we have referred take the case, it being a civil case, out of the reason of the law, and, it is conceived, out of the operation of the principle of the adjudications on this subject.

Note 78. — Mitchell v. Matson, ante, 3.

It is true that the Mississippi statutes, in force when the decisions referred to ware made, are similar to our own; but the attention of the court does not seem to have been drawn to the change in practice made by their statute. The-statute is not adverted to in tile decisions, which appear to have proceeded' on the general principle applicable to the former practice. The court does not seem to have considered and adjudged the question in reference to the statute ; and to whatever weight the decisions may bo entitled, they cannot, we think, bo held to have concluded this question, as presented in the present case.

If the record of all the proceedings had during the term were before us, it doubtless would appear that the jury were duly sworn. But we have before us only the record of the proceedings and judgment in this case. Tire swearing-of the jury did not constitute any part of these proceedings, and we cannot conceive of any reason why it should constitute a part of the history of them, in the record. To require it would be to withhold justice for the sake of an adhcrance to what, at most, is but mere form.

We conclude, that, in our practice, under the statute, it is not necessary in a civil case that the record of the judgment should show that the jury were sworn, and, consequently, that the objection is not well taken.

There was no necessity that the names of all the jurors should he set out in tiie record.

We are of opinion that there is no error in the judgment, and that it he affirmed.

Judgment affirmed.  