The opinion of the court was delivered by
Ross, J.
I. The petition by the defendant for a new trial is dismissed with costs. The attaching creditors, in whose rights the officer, Halbert, defends, knew of the existence of the claimed newly-discovered testimony. They sent to the United States District Court to obtain it, and not finding it there, without having Lawrence, the register- in bankruptcy, before whom they knew it had been used, make a thorough examination for it, went to trial without it. They thereby showed a want of diligence in endeavoring to procure it, and knowing of its existence took the chances of the result of the trial without it. They must abide that result. To allow a new trial on the facts shown, would be a plain violation of the rule which- requires that the evidence relied upon to change the verdict must have been newly discovered, or, if not, must have been absent from the trial without the fault of the party invoking its aid. He must have used due diligence to obtain it, [363]*363and, ordinarily, must have applied for a continuance, making the absence of the testimony and his inability to avail himself of it on the trial, the ground of his application. If, rather than make such application, he prefers to hazard the result of a trial without the testimony, he must abide the consequences of his choice.
II. The exception to the refusal of the court to admit the report of Lawrence, the register in bankruptcy, is not well taken-The plaintiff was neither a party nor privy to the proceedings in bankruptcy, and hence not bound nor estopped by them. The report did not impeach Doran, nor contradict his testimony given on the trial, by showing that he testified differently on the hearing before Lawrence. The report was only the opinion of Mr; Lawrence in regard to the weight of the testimony produced before him, in which he found that the testimony of Doran was overborne by the other testimony.
III. The County Court correctly refused to admit the invoice in evidence. There was no controversy in regard to what goods were attached and replevied. The defendant did not ask to have it admitted for that purpose. The witness Twigg wrote only a part of the invoice. The greater part of.it was made by another person while Twigg was engaged in examining, appraising, and calling off the goods. It was not a memorandum made by the witness at the time of the transaction and used by him to refresh his memory when testifying, within the principle announced in Lapham v. Kelly, 35 Vt. 195, and Gross v. Bartholomew, 42 Vt. 206. The only use claimed for it was, that, in connection with Twigg’s testimony, it would enable the jury better to select from the goods invoiced such as were purchased subsequently to the purchase of the bankrupt stock. But an examination of Twigg’s testimony shows that the invoice did not enable him to select therefrom' the after-purchased goods. The most he could do was in connection with the bills to select from the goods invoiced such goods as came from the same lots as the after-purchased goods, — the witness at the same time testifying that the goods so selected might have been a part of the bankrupt stock, and not from the after-purchased goods.
[364]*364IY. The charge apparently brought the evidence of the plaintiff more prominently to the attention of the jury than that of the defendant. It doubtless was inadvertently done, and arose perhaps from the fact that the defendant adduced but little direct testimony. Most of his testimony was circumstantial, and bore indirectly and somewhat remotely upon the main issues involved in the trial. The court withdrew none of the defendant’s testimony from the consideration of the jury, and hence legal error is not predicable of the charge, even if open to the criticism claimed by the defendant. There was no error in the refusal of the court to order a verdict for the defendant on the concession of the plaintiff. That, with other evidence in the case, was consistent with an agency coupled with an interest, as well as a conditional sale of the goods from the plaintiff to Doran. Nor do we think there was error in the remark made by the court in reference to the jury’s being able to select out the after-acquired goods. The court in the commencement of the charge had plainly instructed the jury that the burden was on the plaintiff to establish his title to the goods ; and what was said about being able to select the after-acquired goods was not intended by the court to change the burden of proof in this respect, and, we think, would not be so understood by the jury. The instructions of the court in reference to the distinction between the plaintiff’s having placed the goods in the possession of Doran to sell as his agent, giving to Doran an interest therein to the extent of what he could realize for them above what they cost the plaintiff, in payment for Do-ran’s services in making the sale, and a conditional sale of the goods by the plaintiff to Doran, the plaintiff retaining a lien on the goods until paid for, was given pretty much wholly by way of supposed cases, as illustrations. This method of instructing the jury some members of the court regard erroneous, inasmuch as it casts upon the jury the burden of extracting the law from the illustrations, and then, of applying it to the facts of the case on trial. They think there is a liability of the jury thereby being misled, in not obtaining definite and precise ideas of the law. We are unanimous in the opinion that the inferences of law properly drawn from the supposed cases or illustrations, are correct, and [365]*365that, if Doran’s possession of and relation to the goods was that of an agency coupled with an interest, the plaintiff was entitled to recover, but if it was that of a conditional purchaser, then the goods were attachable and the defendant could lawfully hold them. I am not prepared to hold that legal error is involved in this method of instructing the jury, so long as the principles to be drawn from the illustrations are correct and applicable to the case. Often apt illustrations convey to the common mind most forcibly and clearly the exact legal principles governing the case on trial. It is, however, better that a precise and definite statement of the legal principles governing the case on trial be given to the jury, either before or following the illustrations. The main distinguishing feature in the case at bar between a conditional sale and an agency coupled with an interest, is easy of expression and comprehension. If the former was Doran’s relation to the goods, he was bound to pay the agreed price, whether he realized it or not from their sale ; if the latter was his relation, he would not be liable beyond what he should receive from the sale of the goods, made in good faith, in the exercise of ordinary care and prudence ; and, if the amount thus realized was less than the sum fixed by the plaintiff, he would receive nothing for his services in making the sale, but, if more, he would have an interest therein for his services to the extent of the excess. What has been said in regard to the charge of the County Court is not deemed especially important, except so far as it may aid in another trial of the case. On another branch of the case we have found it necessary to reverse the judgment of the County Court.
V. The motion to have the verdict set aside and a new trial granted should have been sustained. Hibbard, one of the jurors, at the time of the trial was an unnaturalized alien, and for that reason not a legal juryman. The statute provides, Gen. Sts. c. 15, s.
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The opinion of the court was delivered by
Ross, J.
I. The petition by the defendant for a new trial is dismissed with costs. The attaching creditors, in whose rights the officer, Halbert, defends, knew of the existence of the claimed newly-discovered testimony. They sent to the United States District Court to obtain it, and not finding it there, without having Lawrence, the register- in bankruptcy, before whom they knew it had been used, make a thorough examination for it, went to trial without it. They thereby showed a want of diligence in endeavoring to procure it, and knowing of its existence took the chances of the result of the trial without it. They must abide that result. To allow a new trial on the facts shown, would be a plain violation of the rule which- requires that the evidence relied upon to change the verdict must have been newly discovered, or, if not, must have been absent from the trial without the fault of the party invoking its aid. He must have used due diligence to obtain it, [363]*363and, ordinarily, must have applied for a continuance, making the absence of the testimony and his inability to avail himself of it on the trial, the ground of his application. If, rather than make such application, he prefers to hazard the result of a trial without the testimony, he must abide the consequences of his choice.
II. The exception to the refusal of the court to admit the report of Lawrence, the register in bankruptcy, is not well taken-The plaintiff was neither a party nor privy to the proceedings in bankruptcy, and hence not bound nor estopped by them. The report did not impeach Doran, nor contradict his testimony given on the trial, by showing that he testified differently on the hearing before Lawrence. The report was only the opinion of Mr; Lawrence in regard to the weight of the testimony produced before him, in which he found that the testimony of Doran was overborne by the other testimony.
III. The County Court correctly refused to admit the invoice in evidence. There was no controversy in regard to what goods were attached and replevied. The defendant did not ask to have it admitted for that purpose. The witness Twigg wrote only a part of the invoice. The greater part of.it was made by another person while Twigg was engaged in examining, appraising, and calling off the goods. It was not a memorandum made by the witness at the time of the transaction and used by him to refresh his memory when testifying, within the principle announced in Lapham v. Kelly, 35 Vt. 195, and Gross v. Bartholomew, 42 Vt. 206. The only use claimed for it was, that, in connection with Twigg’s testimony, it would enable the jury better to select from the goods invoiced such as were purchased subsequently to the purchase of the bankrupt stock. But an examination of Twigg’s testimony shows that the invoice did not enable him to select therefrom' the after-purchased goods. The most he could do was in connection with the bills to select from the goods invoiced such goods as came from the same lots as the after-purchased goods, — the witness at the same time testifying that the goods so selected might have been a part of the bankrupt stock, and not from the after-purchased goods.
[364]*364IY. The charge apparently brought the evidence of the plaintiff more prominently to the attention of the jury than that of the defendant. It doubtless was inadvertently done, and arose perhaps from the fact that the defendant adduced but little direct testimony. Most of his testimony was circumstantial, and bore indirectly and somewhat remotely upon the main issues involved in the trial. The court withdrew none of the defendant’s testimony from the consideration of the jury, and hence legal error is not predicable of the charge, even if open to the criticism claimed by the defendant. There was no error in the refusal of the court to order a verdict for the defendant on the concession of the plaintiff. That, with other evidence in the case, was consistent with an agency coupled with an interest, as well as a conditional sale of the goods from the plaintiff to Doran. Nor do we think there was error in the remark made by the court in reference to the jury’s being able to select out the after-acquired goods. The court in the commencement of the charge had plainly instructed the jury that the burden was on the plaintiff to establish his title to the goods ; and what was said about being able to select the after-acquired goods was not intended by the court to change the burden of proof in this respect, and, we think, would not be so understood by the jury. The instructions of the court in reference to the distinction between the plaintiff’s having placed the goods in the possession of Doran to sell as his agent, giving to Doran an interest therein to the extent of what he could realize for them above what they cost the plaintiff, in payment for Do-ran’s services in making the sale, and a conditional sale of the goods by the plaintiff to Doran, the plaintiff retaining a lien on the goods until paid for, was given pretty much wholly by way of supposed cases, as illustrations. This method of instructing the jury some members of the court regard erroneous, inasmuch as it casts upon the jury the burden of extracting the law from the illustrations, and then, of applying it to the facts of the case on trial. They think there is a liability of the jury thereby being misled, in not obtaining definite and precise ideas of the law. We are unanimous in the opinion that the inferences of law properly drawn from the supposed cases or illustrations, are correct, and [365]*365that, if Doran’s possession of and relation to the goods was that of an agency coupled with an interest, the plaintiff was entitled to recover, but if it was that of a conditional purchaser, then the goods were attachable and the defendant could lawfully hold them. I am not prepared to hold that legal error is involved in this method of instructing the jury, so long as the principles to be drawn from the illustrations are correct and applicable to the case. Often apt illustrations convey to the common mind most forcibly and clearly the exact legal principles governing the case on trial. It is, however, better that a precise and definite statement of the legal principles governing the case on trial be given to the jury, either before or following the illustrations. The main distinguishing feature in the case at bar between a conditional sale and an agency coupled with an interest, is easy of expression and comprehension. If the former was Doran’s relation to the goods, he was bound to pay the agreed price, whether he realized it or not from their sale ; if the latter was his relation, he would not be liable beyond what he should receive from the sale of the goods, made in good faith, in the exercise of ordinary care and prudence ; and, if the amount thus realized was less than the sum fixed by the plaintiff, he would receive nothing for his services in making the sale, but, if more, he would have an interest therein for his services to the extent of the excess. What has been said in regard to the charge of the County Court is not deemed especially important, except so far as it may aid in another trial of the case. On another branch of the case we have found it necessary to reverse the judgment of the County Court.
V. The motion to have the verdict set aside and a new trial granted should have been sustained. Hibbard, one of the jurors, at the time of the trial was an unnaturalized alien, and for that reason not a legal juryman. The statute provides, Gen. Sts. c. 15, s. 89 : “ At the annual meeting in each town, such of the board of civil authority as may be present shall agree upon such number of grand and petit jurors as they shall judge will be the proportion of such town to attend the County Court for the year ensuing, which number shall be nominated by said board, and [366]*366chosen by the inhabitants present at such meeting.” The qualifications of those who may act in the capacity of jurors is nowhere prescribed. Formerly they were to be freeholders, but that qualification is not now required. No. 12 of the Acts of 1864 and No. 50 of the Acts of 1869 require the voters in town meetings to be citizens, resident in the town, and a citizen is defined to mean a person born within some one of the United States, or naturalized agreeably to the acts of Congress, or who has become a freeman of this State by virtue of the laws in force before June 26, 1828. • Ordinarily, when voters are authorized to elect certain public officers whose qualifications are not particularly prescribed, such officers are impliedly to be selected from the voters themselves. The statute is silent in regard to the qualifications of many of town and other elective officers. Yet the universal practice and understanding has been that such officers must be citizens. Such has been the practice and understanding in regard to jurors. The duties of jurors are such as to require that they be taken from that class who have the right to participate in the management and administration of the affairs of the State and government. They are jurors for the trial of all kinds of cases both civil and criminal. It would be anomalous for a person who owes no allegiance to the State and government to sit a judge of both the law and fact in the trial of a citizen for treason. By the common law jurors were to be liberos et legales homines. Idber homo was one who had not only freehold land, but freedom of mind, or not more inclined to one party than the other, and legalis was one not outlawed, and against whom no exception could be taken in that behalf. These qualifications were always held to exclude aliens, minors, and villiens. Bac. Ab. Juries. By 28 Edw. III, c. 13, s. 2, in suits between denizens and aliens the jurors were to be half English and half aliens. This was the only instance in which an alien was allowed to act as a juror at common law, and this was by statute. Hence, whether construed in the light of the common law, or of practice and reason, we think an alien is excluded from being a legal juryman. The defendant, by the Constitution, had the right to a trial by jury, which means a legal jury, or a jury of those who could be lawfully [367]*367called to act in that capacity. The defendant, not being made aware of the disqualification until after the trial was closed, did not waive it. If knowledge of the juror’s disqualification had come to him during the trial, it would have been his duty to have called it to the attention of the court and the other party, and if he had failed to do this, and allowed the trial to proceed, he would have waived the disqualification. Briggs v. Georgia, 15 Vt. 61; Mann v. Fairlee, 44 Vt. 672. We are aware there are both English and American authorities which hold that the objection to a juror of alienage must be taken advantage of by challenge, or it is waived. But an examination of the English statutes, vide Bac. Ab. Juries, shows that such in effect were the provisions of the statutes. How it may be in the American States holding this doctrine, we have not been able to determine. But in the early case of Briggs v. Georgia, supra, this court held that such objection was not waived by failure to challenge, and we think correctly. The jurors, being elected in the manner already stated, are presumed to be legal jurors, and under our practice it is rarely, if ever, that a juror has been asked whether he was an alien or a citizen. At the present day, when in some portions of the country it is very difficult, under the laws as administered, to obtain well-qualified, intelligent jurors, we think there should be at least no forced construction of the statute that will lower the standard relative to their selection and qualifications. Nor should a party having the right to a trial by jury be compelled to abide the result of a trial by others than legal jurors, unless he has knowingly submitted to such a trial.
Judgment reversed, motion sustained, verdict set aside, new trial granted, and cause remanded.