
    The Commonwealth v. William Carter.
    Grand Jurors — Qualification—Freeholder—Statute.— If a person has executed a Deed of Trust of all his land to secure the payment of a debt to his creditor; and the day of payment is past; hut the land is not sold hy the trustee, and the grantor continues in possession of the land, (although in strictness of Law, the freehold may he vested in the trustee, yet, by the equitable construction of the Act concerning juries.) he is not disqualified from being a Grand Juror.
    The Defendant was presented before the Superior Court of Caroline, for unlawful Gaming'. He pleaded in abatement, that Hay Battaile, one of the Grand Jury by whom the Presentment was made, was not a freeholder qualified to serve asa Grand Juror. Issue being joined on this plea, the following facts were agreed by the Attorney for the Commonwealth, and the Defendant: “That Hay Battaile had, previously to his being sworn as a Grand Juror, executed a deed of trust of all his land lying in the said county, for the purpose of paying a debt due to one of *his creditors; that the day of payment, (in default of which the land was authorized to be sold,) had passed ; that the land had not been sold by the trustee, and that the said Battaile continued in possession of the said land, and was in possession thereof when he was qualified and acted as a Grand Juror as aforesaid.” The Superior Court adjourned to this Court the following question: “Was the said Hay Battaile, under the circumstances admitted, disqualified from serving as a Grand Juror ?”
    
      
      Grand Jurors — Qualification — Freeholders. — The principal case is approved in Com. v. Burcher, 2 Rob. 828, 829, 835, upon the question that a person is a freeholder who is in possession under the purchase, though the deed to him is in the hands of another, in escrow to be delivered on the payment of the purchase money. And in Com. v. Helmondollor, 4 Gratt. 540, upon the authority of the principal case and Com. v. Moore, 9 Leigh 639, it is held that a person having an equitable interest in land, and entitled the call for the legal title, is a freeholder qualified to serve as a grand juror. The principal case is cited and approved in the dissenting opinion of Bkannon, J., in State v. McAllister, 38 W. Va. 509, 18 S. E. Rep. 779. And in Cunningham’s Case, 6 Gratt. 695, one who had purchased by an oral contract, and who is in possession and had paid for the land was held to be a freeholder. The principal case is approved in Kerby v. Com., 7 Leigh 750, which case holds that a party in possession of land under a contract of purchase, having refused to accept the conveyance tendered to him,-and instituted a chancery suit in which the question as to the sufficiency of the title is yet undetermined, is not a freeholder qualified to serve as a grand juror.
      Same — Same—How Objected to. — See foot-note to Com. v. Long, 2 Va. Cas. 318. See also, citing the principal case, Com., v. Adkinson, 2 Va. Cas. 315; Hunter v. Matthews, 12 Leigh 251 (246).
    
   WHITE, J;

The Court, having maturely considered the question adjourned, is of opinion, that, in conformity with the doctrine laid down in Coke Eittleton, 272, b. although in strictness of Eaw the freehold in the aforesaid land may be vested in the trustee of the said Battaile, yet, under an equitable construction of the first section of the 75th chapter of the first volume of the Revised Code, he, the said Hay Battaile, is not thereby disqualified from serving on a Grand Jury.  