On the trial of this issue of devisamt vel non, it became necessary for the sheriff to summons tales jurors, which he did by the order of the Court. The caveators, after having challenged three jurors, peremptorily challenged for cause, a tales juror, being a colored man named Anson Bailey, who was examined on his voir dire. He was asked'by the counsel for the caveators if he had formed or expressed an opinion about this cause. He answered no. The counsel asked him if he had *143paid bis taxes. He answered yes. He was then asked if bis name was on tbe jury list for tbe county. He answered no.
Upon tbis response tbe connsel for tbe caveators insisted that Anson Bailey was incompetent to serve as a tales juror, as the county commissioners had not seen fit to place bis name on the jury list; that ex vi termini “ tales jurors ” meant just such jurors only whose names were on tbe regular jury list. His Honor ruled that no proper ground of objection had been shown to the competency of tbe juror. To tbis ruling the caveators excepted, and peremptorily challenged the juror, and another was sworn in his place.
It will be observed that according to our present legislation, the qualification of tales jurors are not the same as those required of the regular panel. All on the regular panel must have paid tax the preceding year ; and are required to be of “ good moral character, and of sufficient intelligence ” to act as jurors. (Bat. Rev., ch. 17, sec. 229a.) “And that there may not be a defeat of jurors, the sheriff shall by order of Court summon, from day to day, of the bystanders, other jurors being freeholders within the county where the Court is held, to serve on the petit jury,” &c. Addenda to Code, sec. 229, p. —. Bat. Rev., page 860.
So, either by accident or design, tales jurors are required to be freeholders within the county where the Court is held, while 'the regular panel need not be freeholders. The act prescribes the mode in which the jury list is to be made, revised and corrected from time to time. From ought that appears to us, Anson Bailey was an intelligent, moral man, and a freeholder in Harnett county, who had paid his taxes the preceding year. It is true he answered that his name was not on the j ury list, and he doubtless supposed that it was not there, and it may or may not have been there. But how could he know how the fact was ? How many men in a county could tell, when suddenly called upon, whether their names are in the jury box or not ? A name may have been there last year, and yet may not be there now, or vice versa, depending upon *144snob additions or subtractions as tbe commissioners may make in tbe jury list. This mode of testing the qualifications of jurors is utterly impracticable. To carry it out effectually, would require the constant attendance of the county commissioners in Court with the j ury list, to ascertain whether the names of talesmen were on their jury list or not.
The statute is directory to the sheriff to summons of the bystanders, moral and intelligent men, who have paid their taxes the preceding year, and who are freeholders within the county where the Court is held.
And it is of the utmost importance, in fact essential to the administration of justice, that none but good men be called to serve upon juries.
If a talesman be summoned who is deficient in any one of these qualifications, he may be challenged for cause; and then the challenging party should assign and show cause, as in other challenges for cause; but we do not concede that the mere fact' that the name of an intelligent, moral man, who is a freeholder, and has paid his tax,-cannot be found on the jury list, is agood cause of challenge.
His Honor instructed the jury “that there is no presumption of fraud in law growing out of the relation existing between the supposed testator and the legatees, as described in the evidence; that in this case fraud is matter of proof, an open question of fact to be determined by the evidence.”
The caveators except to this charge, and insist that his Honor should have instructed the j ury “ that there was evidence of a general agency of Calvin Lee for Pharoah Lee, the supposed testator, which would raise the presumption of fraud, as a matter of law.”
The authority relied upon to support this position is Lee v. Pearce, 68 N. C., 76, where it is said, “ as ancillary to the jurisdiction, to avoid deeds obtained by fraud, undue influence or moral duress, Courts of equity established the doctrine that, in certain fiduciary relations, if there be dealings between the parties on the complaint of the party in the power of the other, *145the relation of itself and without other evidence, raises a presumption of fraud, as a matter of law, which annuls the act unless such presumption be rebutted by proof that no fraud was committed and no undue influence or moral duress exerted.”
But this doctrine has never been understood as applying to wills. To so apply it would raise a presumption against every will in favor of a child, a wife, a father or other relative, and would defeat probably one-half of the wills propounded for probate.
Let it be remembered that this presumption of fraud in transactions between persons occupying certain fiduciary and confidential relations, is an emination from the Courts of equity -and not from the Courts of law; and as an issue of devisa/oit ml non, always had to be tried at law, this presumption never applied to wills.
Mr. Adams says,, at page 176, “ the avoidance of transactions on the ground of fraud is a copious source of jurisdiction in equity. With respect to fraud used in obtaining a will, this jurisdiction does not exist.”
We think that the other exceptions of the caveators do not require comment.
Let it be certified that there is no error, &e.
Per Cubiam. Judgment affirmed.