Townsend v. Jeffries' Executors , 17 Ala. 276 ( 1850 )

CHILTON, J,

This was'an action of trespass* instituted by the executors of Jeffries against the plaintiffs in error, for beating and wounding a slave, per quod, &c. The defendants pleaded separately. “1. Not guilty: 2. That they only punished said negro slave reasonably and moderately for having killed and used, and for injuring their hogs, or the hogs of some-of the defendants: 3d. That the punishment mentioned was authorised by said plaintiffs, or by their agent in that behalf.” The record then recites — “ 1. Replication and issue as to first plea: 2d. General demurrer as to second and third pleas, all in short by consent,” which pleas and replication, &c. were signed by the respective counsel. The judgment entry is as follows: “ Came the parties by their attornies,and thereupon came a jury of good and lawful men, to-wit, John W. Scruggs and eleven others, who being duly elected, empanelled, tried, sworn and charged well and truly to ascertain and assess the said plaintiffs’ damages-, upon their oaths do say, we the jury find for the plaintiffs and assess their damages at the sum of three hundred and seventy-five dollars. It is therefore considered by the court that said plaintiffs recover of the said defendants,” &c. 1. It is insisted by the counsel for the plaintiffs in error, that the record shows the jury were improperly sworn to ascertain and assess the damages, instead of to try the issues between the parties; and 2d, that the court wholly disregarded the defendants’ pleas by not requiring the jury to try them.

T have looked through our own decisions with a desire to see if the point here raised is concluded by them, but have been unable to find any case precisely in point. There are many decisions to the effect that all reasonable intendments will be made in favor of the regularity of the proceedings of courts of general jurisdiction. In the language of the lamented Judge, in Abercrombie v. Mosely, 9 Por. Rep. 14S, this court “ has always been actuated by the most earnest desire to divest the practice of the courts oí those technicalities which so often tend, when carried to extremes, to the prostration of justice.” On the other band, however, I may.be allowed to add, that the most punctilious adherence to the strictest legal technicalities would be far less injurious in its consequences than the uncertainty and confusion which never fail to result from a disregard of established forms and precedents, sometimes superinduced by a desire to attain the supposed justice and merits of the cause. But to the case before us. However well satisfied we may be from our knowledge of the hasty and imperfect manner in which the minute entries of the courts are sometimes made, often by inexperienced deputies, that the irregularity here complained of was an omission of the clerk in failing to insert that the jury were empanelled and sworn to try the issues joined, still we cannot judicially know that it is a clerical misprision; for the record informs us how they were sworn and for what purpose they were empaneled — namely, “ to ascertain and assess the damages.” The question as to the guilt of the defendants, which was directly in issue, was not submitted to them, but the ascertainment of the damages merely. Did the record recite, as in the case of McRea v. Tilman, 6 Ala. 486-’8, that the jury were duly sworn, we should then be entirely justified in presuming that they were sworn according to law. But to indulge such presumption in the case before us, would be to presume against the explicit averment in the record in order to uphold the judgment. No case, we apprehend, has gone this far: certainly none in this court. The recital in the judgment entry that the jury found for the plaintiffs, &c. does not cure the defect. If they did find for the plaintiffs the issues in the cause, the most that can be affirmed of their verdict is, that they found what they were not sworn to try, and what the record affirmatively shows was not submitted to them. None of the cases cited by the counsel for the defendants in error oppose the view we have taken. The record does not show a waiver on the part of the defendants below, of the objection here insisted upon. They appeared in court by their attorney, and by their pleading put the plaintiffs on their proof of the' tortious act complained of in the declaration as constituting the ground of damage. This, the issue in the cause, has not been tried, but assuming it as found for the plaintiffs, the jury are empaneled and sworn to ascertain and assess their damages. This is clearly erroneous, and the judgment must be reversed and the cause remanded.