Sheepshanks & Co. v. Jones, 9 N.C. 211, 2 Hawks 211 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 211, 2 Hawks 211

Sheepshanks & Co. v. Jones.

From Hertford.

Freeholders of another State, owning1 no freehold in North-Caroiina, are not qualified to serve on a Jury in this State.

This was a scire facias under the act of 1806, to secure creditors against fraudulent and secret conveyances of property by insolvent debtors. On the trial of the issues below, there was a deficiency of Jurors of the original panel, and the Sheriff summoned of the bystanders, as talesmen, two who were freeholders of Virginia, but not of North-Caroiina. They were challenged by the Defendant as incompetent jurors, being citizens of Virginia, and owning no freehold in North-Caroiina, but the Court disallowed the challenge, and they were sworn and impanelled on the trial of the issues. The Jury found the issues in favor of the Plaintiffs, and judgment was rendered, that the Sheriff expose to publick sale the houses and lots in Murfreesborough, which were bid off by the Defendant upon a secret trust for the benefit of the debtor, one Howell Jones. From this judgment the Defendant appealed to this Court. There were various other points, which it is deemed unnecessary to report, as, in the opening of the case, the Court directed the counsel of the appellant to confine themselves to the point stated above.

Gaston and Seawell for appellant, Hogg for appellee.

It was contended for the appellant, that by the law previous to legislative interference, it was required that in North-Caroiina juries should be composed of freeholders of the county; for this was cited, 3 Bl. Com. 362, Martin’s Rev. 333, the statute of 1748, Swan’s Revisal, 263, and the act of 1749, Swan’s Rev. The only alteration which had been ever made by our statutes subsequent to the revolution, dispensed with the necessity of freehold in the County in which the Juror served, but required a freehold in the State, and the acts of 1779 and 1806 were referred to.

For the appellee it was answered, that on the removal of the settlers to the American Colonies, the rights and privileges which as citizens of Great-Britain they enjoyed, were secured to them and their descendants. In 1773, (Bay. Rev. 548,) the Legislature of this State enacted that the County Courts- should appoint 24 freeholders in each county to be grand jurors, and 24 freeholders to be petit jurors in the District Court, and in the absence of those appointed, directs that the Court may order the Sheriff to summon other freeholders of the bystanders to serve as Jurors. Under this act a resident Virginian was not incapacitated, for by his birth-right as an Englishman he was entitled. In 1779, when this State had become independent of Great-Britain, the Legislature passed an act in the same words with the former ,• this could only apply to the citizens of North-Carolina, not from any thing in the enactment, but because every person but a citizen was an alien ; but by the Federal Constitution adopted in 1787, the citizen of Virginia became entitled to all the privileges of a citizen in this State, and is bound by the act of 1779 to serve as a Juror, on being summoned as a bystander. The act of 1779 must receive the same construction that it would do if passed since its adoption, and the citizen of Virginia under the Federal Constitution, is, by his chartered rights, in precisely the same situation to the act of 1779, as he was to the act of 1773 By his birth-right as a Briton. An act was passed in Virginia in 1792 of stronger words than our act of 1779, which has been construed to extend to the citizens of other States. This act of Virginia has received a Legislative exposition in 1793, by which a citizen of North-Caroiina must at this moment serve as a petit juror in Virginia, if summoned as a bystander — ( Virginia Revised Code, eJuep. 73, 158.) There is no good reason why our act should not receive the same construction.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The. several acts of Assembly on the qualification of Jurors, as far back as they can be traced, seem to warrant the position that talesmen shall be freeholders of the same description with the original panel; and in practice it has always been considered that a freeholder in another State only, is not qualified. If our own laws do not permit our own citizens who are not freeholders in this State to serve on a Jury, it cannot he considered as the denial of a right or privilege to the citizens of another State, who are not freeholders here, to consider them disqualified. For, upon the supposition that the right to serve on a jury here was claimed by the citizen of another State, as a privilege or immunity, he must shew that it is enjoyed by our own citizens not otherwise qualified than himself; otherwise it would be a claim, not of privileges equal to, but greater than those of our own citizens. As the exception was taken by the .Defendant and overruled, there must be a new trial.