Blackburn v. Hays

• Decision Date: 30 September 1867
• Citation: 44 Tenn. 227
• Parties: William A. Blackburn et als. v. William Hays.
• Court: Tennessee Supreme Court

44 Tenn. 227

William A. Blackburn et als.

v.William Hays.

Supreme Court of Tennessee.

September Term, 1867.

FROM CLAIBORNE.

On the trial of this case, at the May Term, 1867, the plaintiff below was allowed to challenge peremptory two jurors for each defendant, which was excepted to by the defendant. There was a judgment for $1,500, for the plaintiff, and an appeal to this Court by Blackburn and Henderson. Judge JAMES P. SWAN, presiding.JAMES T. SHIELDS, for Plaintiffs in Error.

W. R. EVANS, for Defendant in Error.

SHACKELFORD, J., delivered the opinion of the Court.

This is an action for trespass de bonis asportatis, commenced in the Circuit Court of Claiborne, against the plaintiffs in error, William A. Blackburn, Thomas Henderson, Isaac Walker, Samuel Walker, Hawkins Campbell and William Lankin. Judgment by default, was taken against Isaac Walker and Hawkins Campbell.

The jury rendered a verdict against William A. Blackburn and Thomas Henderson, and assessed the damages against them, and also Isaac Walker and Hawkins Campbell, against whom judgment by default had been taken, to fifteen hundred dollars, and found the issue in favor of Samuel Walker and William Lankin. Blackburn and Henderson moved for a new trial, which motion was overruled. They excepted, and appealed in error to this Court.

Various errors have been assigned in argument. In the view we have taken of this question, the one that is presented at the threshold is decisive of the case. In empaneling the jury the Court permitted the defendants in error to challenge two jurors for each defendant, to which the plaintiffs in error objected; but the objection was overruled, and the defendant in error availed himself of the privilege, to all of which the plaintiffs in error excepted. We are not aware of any decision of this Court upon this question in civil cases. By the provisions of section 4012 of the Code, either party to a civil action tried in the Courts of the State, may challenge two jurors without assigning any cause. It is insisted, for defendant in error, that by this Statute each defendant is entitled to two peremptory challenges in a civil case, and therefore the plaintiff, or plaintiffs in a suit, are entitled to a like number that are allowed each defendant. To this construction we cannot assent. The language of the Act is clear, that each party to a suit--meaning the plaintiff or defendant, without regard to number--shall have two peremptory challenges. The word used is not plaintiff or defendant, but party, which comprises by its terms, the plaintiffs and defendants to the suit. The action is joint; if there be any number of plaintiffs or defendants, they are embraced in the term, party. But a different rule prevails in criminal cases; the language of the Act is different. By section 4014, in criminal cases under the grade of petit larceny, the State and the defendants may each challenge five jurors without assigning cause. Under...