delivered the opinion of the Court.
We can not regard a judgment which is regular upon its face and would afford ample protection to a sheriff or other officer acting thereunder, as a nullity, whatever fraud may have been practiced in the obtaining of the same, or whatever falsehood the record may actually speak as to the methods pursued in obtaining, or the persons by whom the verdict and judgment were rendered. A void thing, or that which is a nullity, is no thing, and will afford protection to no one acting thereunder. The question with which we have to deal is, not what the force and effect of this judgment was as it once stood, fair and unimpeached upon the *283record, but how it is to be regarded, now that it has been made clear that there entered into the rendering of the same, fraudulent and criminal practices of the most flagrant nature.
The constitution of this State guarantees to each person the right of trial by jury, and this, with the exceptions named in that instrument, means a trial by a jury of twelve men. Thompson on Trials, Sec. 3; Bibel v. The People, 67 Ill. 172.
A mere informality or mistake of an officer in drawing a jury, or a mere irregularity or misconduct in the jurors themselves, is not sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court is satisfied that the party complaining could not have sustained any injury from it, or where the irregularity is one of which the party was aware, and failed to object to, or could, had he attempted, have prevented.
Only such person as has been and is duly qualified to sit as judge, can so act and sit in a judicial trial; even though the parties to the litigation stipulate, and have entered of record, their agreement that another person may so act. If the record show that a person' not a judge has, by agreement of all the parties to a cause, tried the same and claimed to enter judgment therein, which has been placed upon the records of the court, yet it appearing upon the face of the proceedings, the judgment record or roll, that the trial and so-called judgment were by a person not a judge, the proceeding is a nullity, and the so-called judgment a vain and void thing. Hoagland v. Creed, 81 Ill. 506.
A jury is selected in accordance with methods pointed out by law, the parties litigant aiding in such selection, and having various rights as to the making up of the panel.
As in the case of the person by whom, as judge, the trial was had and the judgment entered, so in the case of the jury, to whom the questions of fact appear, by the record, to have been submitted; if the record show upon its face that ■the cause was not submitted to, tried by, and a verdict rendered by the persons designated and selected as before men*284tioned, but by others, who by means of fraudulent and criminal practices obtained seats in the jury box, heard the evidence and rendered a verdict, having no right or authority to do so, the judgment, to say the least, is a thing which a court having power over the same, will not, as against the protest of a party innocent of the iniquity, allow to stand. Dayton v. Church, 7 Abb. N. C. 367; People v. Ransom, 7 Wend. 416; Norman v. Beaumont, Willis, 484; King v. Tremain, 7 Dowl. & Ryl. 684; Dovey v. Hobson, 6 Taunt. 460; Stripling v. The State, 3 S. E. Rep. 277; Windett v. Hamilton, 52 Ill. 180; Steele v. People, 40 Ill. 59; Black on Judgments, Sec. 310; People v. Gary, 105 Ill. 264.
A party has not only a right to a trial by jury, he has a right to a trial by, and a verdict from the jury selected to try the cause; the men by whom, sitting as jurors, he has every reason to, and does, believe, are actually passing upon his case.
Whether the verdict or judgment under consideration is, as between the parties, just or not, is a question which we are not now called upon to determine. It is sufficient to say that neither verdict nor judgment was rendered under such circumstances as the law contemplates; that the parties have not, in the view of the law, had their day in court; that the facts in controversy have not been determined in accordance with the law, or by such a jury as the parties have a right to be heard by.
If a verdict or a judgment is to be permitted to stand when one person has, by fraudulent and criminal means, succeeded in placing himself upon the jury, and participated in the verdict rendered, upon principle and logic a verdict and judgment where the entire panel was composed of persons there obtaining place by such methods, might be sustained. What the influence of the criminal who did sit and act with the jury was, we can not tell. The other eleven, or the eleven jurors (for Farrell was not a juror) were apparently bound to hear and consider what he had to say; he took part in their deliberations and exerted his influence in bringing about a verdict which, but for his participation therein, could not have been rendered.
*285It is some satisfaction to know what the character of the man guilty of this criminal conduct was; that he had before been -three times in prison; once in the penitentiary for highway robbery; but, had he been the most irreproachable man in the community, the effect of his misconduct in the present case would have been the same.
A verdict has not been rendered in this case by a jury of twelve men. Unknown to the parties, and with oh t their consent, eleven jurors, alone, sat at the trial and joined in the verdict. By the fraudulent conduct of Michael Farrell, the parties were deprived, upon that occasion, of their right to a trial by jury. Such right, the constitution of this State guarantees to them, and in accordance with such right, and for the purpose of maintaining the same, the order of the Superior Court refusing to set aside the judgment and award a new trial in this cause, is reversed, and the cause remanded, with directions to the court to set aside its judgment and give the parties a new trial.
I do not wish to add to what Judge Waterman has written as to the effect of personating a juror, where there is nothing to put the party on his guard against it. Had it been made a question, while the jurors were being selected, whether one of them was the person he professed to be, I take it the result could not be overhauled except by direct proceedings reviewing some decision of the court upon exception duly taken. But as this case presents the matter, the question is, whether the objection could have been reached by writ of error coram nobis at common law, for which writ the statute has substituted a motion. Sec. 67 (bb), Ch. 110, Practice.
If it could not have been so reached, the court had no authority to grant the motion, as, in general, a court can not vacate a judgment after the term. That writ would lie whenever some fact not shown by the record, nor in issue, that is, not the subject of inquiry during the suit, which if known to the court, would have prevented the judgment, was made to appear by the error assigned upon that writ. *286If the record shows the fact, or, in our practice, if the papers in the cause show the fact, then the error in disregarding the fact is not error in fact, but in law, and can be corrected by the same court only during the term. Graham’s Practice, 942; 1 Tomlin’s Law Diet., 652; 2 Tidd’s Practice, 1136; 6 Am. & Eng. Ency. of Law, 810.
Though the personating a juror is not found among the instances where such writ has been the remedy, it seems to stand upon the same footing as an extrinsic fact, not shown by the record nor in issue, and therefore may be, under the statute, reached by motion.