Waddell v. Magee ( 1876 )

Campbell, J.,

delivered the opinion of the court.

It is assigned for error that the record does not show that the jury which tried the issue were sworn. The entry is, “. . . came a jury of good and lawful men, to wit (naming them), who, being elected and empanelled a true verdict to render,” &c. It has been several times decided in this State that the record must show that the jury were sworn to try the issue; but these decisions will not be followed by this court, as they are not supported by reason. The statute (Code of 1871, § 744), which is a copy of that in the Code of 1857, which followed the former statute, requires petit jurors to be sworn to try all issues that may be submitted to them during the term, and they are never specially sworn in any particular civil ease. Tales jurors are required to be sworn in the same form for the day. This swearing is for all issues which may be submitted to the jury for the time for which the jurors are sworn. If the swearing of the jury constituted a part of the proceedings in each case, it would be necessary for the record to show it; but under our statute it is no part of the history of the' proceedings in the case. It is not true as matter of fact that the jury are sworn specially to try that particular issue, and it cannot be that it is necessary for the record of the trial to show what did not take place. The forms of entries usually employed were adopted when it was the practice to swear the jury in each case, and the former decisions in this State were made without attention to the change wrought in practice by the statute.

The law provides for the empanelling of petit juries, and requires them to be sworn for the term, and tales jurors for the day. As swearing the jury does not constitute any part of the proceedings of a particular case, but is a duty devolved on the court, it is not necessary that the record of the entry of a verdict should show that the jury were sworn ; but, in the absence of evidence to the contrary, the presumption will be indulged that the court performed its duty in having the petit jurors sworn for the term, and that the issue was tried by a jury thus lawfully empanelled and sworn, as the law directs. Clark v. Davis, 7 Texas, 556.

The fourth instruction asked by the plaintiffs below was properly given. The property had been taken from the possession of the plaintiffs by the defendant, who as sheriff seized it by virtue of a writ of attachment against Elisha Magee, and the defendant’s justification for taking and detaining the property was its liability to the writ of attachment. If it was not liable to it, the plaintiffs, from whom it had been taken, were entitled to recover it from the sheriff; and this is the meaning of the fourth instruction, which was the only one given for the plaintiffs.

The defendant obtained seven instructions, and seems to have had every advantage before the jury; and while wé might have found a different verdict, do not feel authorized to disturb that of the jury. Judgment affirmed.