
    Kerby v. Commonwealth.
    December. 1836.
    Grand Jurors — Qualification-Freeholder.—A party in possession ol' land under a contract of purchase, having refused to accept a conveyance tendered to him, and instituted a chancery suit in which the question as to the sufficiency of the title is yet undetermined, he is not a freeholder qualified to serve as a grand juror.
    Writ of error to a judgment of the circuit superionr court of law and chancery for Albemarle county.
    x'The plaintiff in error was indicted at October term 1834, for selling by retail ardent spirits without license. He pleaded in abatement, that Boswell P. Yates, one of the grand jurors by whom the indictment was found, was not, at the time he so acted, and at the time the indictment was found, duly and legally qualified to act as such grand juror, in this, that he was not then and there a freeholder of the county of Albemarle. This plea was sworn to ; and an issue was made up upon it.
    The facts relating to this issue were stated and agreed by the attorney for the commonwealth and the defendant, who likewise agreed to submit the decision thereon to the court. By this agreed case it appeared, — That the said Boswell P. Yates and William Garland, one of the executors of Rice Garland deceased, had made a parol contract in 1828, the said Garland as executor to sell, and the said Yates to purchase, a tract of land containing 207 acres, formerly the property of the said decedent, lying and being in the county of Albemarle, and which land he had devised to be sold by his executors. That the said William Garland and a certain James Garland alone qualified as execuiors of the said Rice Garland deceased. That under the said contract the said Yates had been in possession of the said land from the date aforesaid to the present lime. That the said William Garland had executed a deed in fee simple to the said Yates for the said land, which deed the said Yates had refused to accept, as not conveying to him a sufficient title to the land so purchased. That the said Yates had paid all the purchase money except the last instalment, the payment of which he had resisted upon the ground that the said William Garland was indebted to him in a private account, and that he had received no sufficient title to the said land. That Yates had obtained an injunction in the circuit superiour court of law and chancery for Albemarle county, against a judgment at law recovered by the said William Garland *upon a bond executed for the said last in-stalment, as well on account of the defect of title as on account of the set-off arising out of the said private transactions, in which suit the sale and purchase was admitted by the contesting parties. That since the commencement of the said suit in chancery, the said William Garland and his co-executor James Garland, acting as executors of the said Rice Garland deceased, had jointly executed and filed in the said cause a deed conveying the said tract of land to the said Yates. And that the said suit in chancery, involving the title to the land, was still pending and undetermined.
    On the foregoing facts, the court decided that Yates was a freeholder duly qualified to serve upon the grand jury.
    The defendant thereupon pleaded not guilty to the indictment, and a jury being impaneled to try the issue joined thereon, returned a verdict of guilty; on which the court gave judgment for the commonwealth against the defendant for a fine of 30 dollars and the costs of prosecution.
    At a subsequent day of the term, the defendant moved the court to set aside the verdict and judgment, and grant him a new trial; which motion the court overruled.
    The cause was argued in the general court by Eeigh for the plaintiff in error, and the attorney general for the commonwealth.
    
      
      Grand Jurors — Qualification—Freeholders.—On this question the principal case is cited in Com. v. Burcher, 3 Rob. 829, 836, and note; foot-note to Com. v. Carter, 3 Va. Cas. 319; Com. v. Helmondollor, 4 Gratt. 540; Booth v. Com.. 16 Gratt. 523.
      The principal case holds that where a party In possession of land under a contract of purchase, having refused to accept a conveyance tendered to him, and Instituted a chancery suit in which the question as to the sufficiency of the title is yet undetermined, he is not a freeholder q ualilied to serve as a. grand inror.
      The principal caséis cited in Eastham v. Holt, 43 W. Va. 619. 27 S. E. Rep. 890, to the point that, want of | qualification or other objections are to be taken by plea in abatement, and writ of error in case of adverse decision on it. To the same point, see the principal case cited In foot-note to Com. v. Cherry, 2 Va. Cas. 20. See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   DUNCAN, J.,

delivered the opinion of the court. This was an indictment for retailing ardent spirits without a license. The defendant pleaded in abatement that one of the grand jurors was not qualified, because he was not a freeholder of the county of Albemarle; on which plea an issue was made up, and the parties agreed the facts, and submitted the law arising upon them to the '*court, which thereupon pronounced judgment against the sufficiency of the plea. The defendant then pleaded not guilty, and a verdict for the commonwealth was rendered, and judgment was given upon the verdict. The defendant applied for and obtained a writ of error from this court, on the ground that the circuit court erred in not sustaining the plea in abatement, on the agreement of facts which is made part of the record, and is as follows: [Here the judge stated the facts agreed.] The court having decided against the plea in abatement, this court is now called upon to examine the correctness of that decision.

The statute prescribing the qualification of grand jurors directs (among other things) that a juror should be a freeholder. It becomes unnecessary to state the requisites constituting a freehold estate, since we find that as early as Co. Lit. 272, b. the english courts, in giving a practical exposition of the statute of 2 Hen. 5, ch. 3, stat. 2, prescribing the freehold qualification of jurors, decided that a cestui que use, “who took the whole profits, and in equity and conscience the land was his,” was a competent juror: and in this court, in the case of Commonwealth v. Carter, 2 Va. Cas. 319, the qualification was extended to embrace a juror who had executed a deed of trust upon his lands for the payment of debts, the juror remaining in possession although the day of payment had passed. Whether the qualification ought to be extended to embrace a mere vendee in possession, who had paid the purchase money and had a complete right in equity to call for the legal title, remains to be considered. A majority of the court are of opinion that this question does not arise in this case: that the juror in the present case having declined to accept the title tendered to him by his vendor, and having instituted a suit questioning the title, cannot be considered as a freeholder within the equity of the statute: and in the opinion of a majority of this court, it would *be inconvenient in practice to impose upon the courts the necessity of deciding, in criminal causes, in a collateral way, the qualification of jurors resting upon a mere equitable title, when the juror himself was not satisfied to accept the legal title tendered to him. A majority are therefore of opinion that the judgment of the circuit superiour court of law and chancery, overruling the plea in abatement, is erroneous.

DANIEL and THOMPSON, J., dissented.

Judgment reversed, verdict set aside, and indictment quashed.  