been committed in another county of the district. U. S. v. Mays, 1 Idaho, 763. Authorities upon this proposition might be multiplied indefinitely if it were deemed necessary.

Moreover, as stated in State v. Kemp, supra, there seems to be no case squarely adjudicating the unconstitutionality of a law or practice in accordance with which a jury for a court possessing county jurisdiction is selected from one or more parts of the county to the exclusion of the rest. Shaffer v. State, 1 How. (Miss.) 238, is cited, as we understand, in support of the proposition. But it does not seem to have been so regarded by the supreme court of that state; for in a later case it was objected that the drawing of a special venire from a box containing 350 names selected and furnished by the board of supervisors, under a statute giving them that power, abridged the constitutional right of the prisoner to "be allowed his chance with all the qualified persons in the county." The court say this assignment of error is without merit; that the constitution of that state entitles the accused to a trial by an impartial jury of the county, but it is left to the legislature to prescribe the qualifications of jurors and to regulate the mode of obtaining a jury of the county; and that the mode provided by the Code is free from, constitutional objection. No reference is made to the case in 1 How. Cooper v. State, 59 Miss. 267. Zanone v. State, 97 Tenn. 101, 36 S. W. Rep. 711, 35 L. R. A. 556, is also relied upon, as we understand, as supporting the proposition that a statute providing for procuring a jury from a designated portion of the county, to the exclusion of another portion, is in violation of the constitution. But, while there is some reference in the opinion to the constitutional guaranty of the right to a trial by a jury from the body of the county, we think nothing more was decided than that the method adopted for securing a jury in that case was in violation of the law of the state upon the subject. And the court say that the decision in Ellis v. State, 92 Tenn. 85, 20 S. W. Rep. 500, where it is held that "if the jury is made up of citizens of any part of the county who are otherwise qualified the requirement of the constitution is complied with," has no application to the case. And we think none of the cases cited go further than to decide that a jury obtained in violation of the method prescribed by law is not a legal jury. They are not authority upon the matters under investigation in this inquiry.

Upon the other hand, the cases other than those already referred to are quite numerous which sustain the views we have expressed, among them the following: Gardiner v. People, 6 Park. Cir. R. 191; U. S. v. Wan Lee (D. C.), 44 Fed. Rep. 707; State v. Arthur, 39 Iowa, 631: U. S. v. Chaires, (C. C.) 40 Fed. Rep. 820; State v. Slover, 134 Mo. 607, 36 S. W. Rep. 50; Copp V. Henniker, 55 N. H. 179, 20 Am. Rep. 194; Trimble v. State, 2 G. Greene, 404; Colt v. Eves, 12 Conn. 243.

It is also to be observed that a number of states

have provisions similar to what is known as the five-mile jury box under our system; as, for instance, Montana, from which our act was taken; New York, whlch provides that jurors in certain cases shall be taken from the city or town in which the court is held; and South Carolina, which has a provision that under certain circumstances the panel shall be filled from jurors residing within seven miles of the town where the court is held, Indeed, the provision in numerous jurisdictions for filling panels from the bystanders by no means meet the requirement that the jury shall come from the body of the county, if such requiremeut is to be construed as insisted upon by the prosecuting attorney in this case. Yet such provisions have never been successfully attacked, so far as we have been able to ascertain.

It is also to be observed that the provisions of the present statute, in the particulars to which objection is made, are not new in the legislation of this state and territory. By the laws in force at the Revision of 1887 it was made the duty of the board of county commissioners to select 200 persons for jury duty, and they were forbidden to choose any who served as jurors at the preceding term of the district court, and any who appeared from the assessment books or were otherwise known to be disqualified; and, furthermore, when, by reason of there being no panel, or the panel being incomplete, it became necessary to draw names from the list, and any person drawn resided at such a great distance from where the court was held that it was deemed impracticable or inconsistent with the public interest to summon him, the court was authorized to direct that he be not summoned, and its finding upon that subject was made conclusive. The purpose of the latter provision was evidently the same as that sought to be accomplished by the "five-mile jury box" of the present law, and its effect was the same in depriving the accused of a trial by a jury drawn from the body of the county in the sense insisted upon by the prosecuting attorney.

With reference to the specific objection that the statute, when it requires the commissioners to make a list of the names of all persons whom they "believe" to be competent, is unconstitutional because the selection is left to the discretion of those officers, and is therefore not from the body of the county, not much need be said. The constitution does not point out the method by which jurors shall be selected, and, as a matter of necessity, it must be provided for by the legislature if the common-law method is to be abandoned. It cannot be claimed that a person accused of crime has any constitutional right to any particular method of selecting a jury. He is entitled only to an impartial jury of the county, and, within those constitutional limitations, the legislature may define the qualifications of jurors, make such regulations as it may deem wise to determine who are qualified, and provide for their selection and attendance. It is conceded in

the argument that if the officers were required to select from the assessment roll the persons possessing the qualifications of jurors there could be no objection to the statute upon this ground. No distinction is possible between the two propositions. Some officer or body of officers must, of necessity, determine the preliminary question who are proper persons to be enrolled upon the list of jurymen, and they can only perform that duty by enrolling those whom they "believe" to possess the qualifications prescribed by law. At the common law the duty was imposed upon the sheriff, and under any system some officer or body of officers must be charged with it.

It may be said, in conclusion, that one evident and prominent purpose of the statute is to avoid the evils which experience has shown to attend, in many cases. the issuance of an open venire. Under the method prescribed, an open venire to complete a trial jury can never issue until not only the panel for the term, but also jury box No. 3, is entirely exhausted. And it would seem that for completing the panel for the term an open venire can never issue under any circumstances; for the first four boxes are intended to contain the names of all the qualified jurors of the county. From those boxes the regular panel, when incomplete, is at all times to be filled, and the open venire is thus eliminated from the system.

It is believed that all the questions properly before us for decision have been sufficiently answered. An answer to questions 8 and 9 becomes unnecessary, for the reason that we hold the sections designated to be valid, and not in violation of the constitution.

POTTER, C. J., and KNIGHT, J., concur.

NOTE.- Validity of Statute Providing for the Selection of Juries, of Certain Qualifications or from Certain Parts of the County.-Under all our state constitutions the defendant is guaranteed the right of trial by a fair and impartial jury selected from the county where the crime was committed. At the early common law the jury came from the visne or neighborhood or hundred in which the offense occurred, because such a jury were supposed to be more intimately acquainted with the merits of the controversy, and therefore, were better qualified to do justice in the premises, than were strangers; but by statute, in England, it was subsequently provided that the jurors should be taken from the body of the county-de corpore comitatus. This is the general principle for the selection of juries both in this country and in England.

Many states, however, have in various ways endeavored to change the rule existing at common law by providing for the selection of jurors of special competency, or of special color or nationality, or from a special part of the county. Such juries are called "special juries."

One of the most important and peculiar cases on this subject is that of Zanone v. State, 97 Tenn. 101, 36 S. W. Rep. 711, 35 L. R. A. 556. This was a trial for murder. Upon conviction the defendant appealed and the first error assigned is as follows: "The court committed error in ordering the sheriff to summon the special venire to try defendant, entirely from the county, and not to summon any of them from the city of Memphis, and the sheriff accordingly summoned

the venire entirely from the county districts, and every citizen of Memphis, where the majority of the population of Shelby county resided, was excluded from it." The appellate court co-incided with the argument of the appellant and held that under the provision of the state constitution guarantying to the accused a trial by "an impartial jury of the county." The court said: "The sheriff should have been left free and independent to summon an impartial jury from the county of Shelby, without reference to any particular class of men, and without reference to any particular part of the county. The trial judge would have as much right to have instructed the sheriff to summon the venire of 300 Italians, and not to summon men of German or Irish descent, or to summon on the venire only men from one particular district of the county, or from a particular ward in the city of Memphis, or to summon all white men, or half of them white and the other half colored men, which would have been unlawful. When a panel is thus selected, and there is a plain departure from, and violation of, the legal modes of summoning the panel, it is unnecessary to show injury to the defendant. The court will presume injury to him, to the extent that he has been deprived of his legal rights in the manner of selecting jurors; and the conviction will be void, and a new trial will be granted him." The case of Ellis v. State, 92 Tenn. 85, which has sometimes been cited as sustaining a rule contrary to the one just announced was distinguished by the court, in another part of the opinion, as follows: "In that case an act of the legislature created a court with jurisdiction over certain districts in Roane county providing that the jurors should be selected from those districts within its jurisdiction. The act was claimed to be unconstitutional because these jurors were not summoned from the body of the county.' This court held that a jury summoned from that portion of the county within the jurisdiction of the court was lawful." Other cases similar to the one discussed in this paragraph are not numerous. In Hartshorn v. Patton, 2 Dall. (Pa.) 252, the court held that a jury could not be selected, by order of the court, from the county, to the exclusion of the city. In Gibbons v. Van Alstyne, 29 N. Y. S. R. 461, it was held to be error for a justice to instruct the constable to summon all farmers on the jury in order to get a farmers' jury. See, also, as upholding a similar doctrine: Shaffer v. State, 1 How. (Miss.), 243; Wash v. Com. 16 Gratt. (Va.) 531; People v. Hall, 48 Mich. 482: People v. Coughlin, 67 Mich. 466: State v. Nash, 46 La. Ann. 194; Hewitt v. Gage, 71 Mich. 291; Babcock v. People, 13 Colo. 515; Jackson v. Pool, 91 Tenn. 453.

How the authorities have applied, explained and twisted the provision of the constitution for an impartial jury of the county, will be made clear by a glance at the authorities which we will now set forth in abbreviated form. Thus, it has been held that a direction to summon a jury from a certain part of the district is valid under the sixth amendment to the United States constitution. United States v. Ayres, 46 Fed. Rep. 651. A provision in a city charter that a jury shall be selected from the freemen of the city and not from the body of the county is valid. Colt v. Eves, 12 Conn. 243; State v. Kemp, 34 Minn. 61, 24 N. W. Rep. 349. Where two district courts are created for the same county their jurisdiction may be divided and jurors selected from that part of the county where either court has jurisdiction. Trimble v. State, 2 G Greene, (Iowa), 404; Ellis v. State, 92 Tenn. 85. So, also vice versa, where a court has jurisdiction of several counties a jury may be selected from the county where

the court is sitting, though the crime was committed in another county in the same district. United States v. May, 1 Idaho (Terr.), 763. In Olive v. State, 11 Neb. 1, 7 N. W. Rep. 444, it was held that a law of this kind to be effective must be accompanied by one under which jurors can be called from the whole body, and not from a portion merely, of such district. In other words, the trial district and the jury district must be the same. It has also been held that a statute exempting all the citizens of a certain district of a county from jury duty was not invalid. State v. Jones, 8 Rob. (La.) 573; Contra: Com. v. Baranowski, 6 Pa. Co. Ct. 157. A statute permitting a district attorney to take a change of venue has been held contrary to the constitutional provision guarantying an "impartial jury of the county," is held void in California. People v. Powell, 87 Cal. 348, 25 Pac. Rep. 481, 11 L. R. A. 75. But, otherwise, in Louisiana and Rhode Island: State v. McCoy, 29 La. Ann. 593: Taylor v. Gardiner, 11 R. I. 182. Where the name of jurors were kept and classified by precincts it was held error for the court to order a venire to be selected from eleven specified precincts out of the twenty-five. People v. Hall, 48 Mich. 482, 12 N. W. Rep. 665, 42 Am. Rep. 477; Hewitt v. Circuit Judge, 71 Mich. 287, 39 N, W. Rep. 56. It is also error to instruct a sheriff in a special venire to summon a jury "residing as near as may be to the place where the murder was committed." Shaffer v. State, 2 Miss. (1 How.) 238. It has been held that the constitutional provision we are discussing does not apply to the method of selecting jurymen in cases of deficiency in the panel. The legislature may in such cases provide for summoning jurors from any place in the county, as well as from by-standers. Gardiner v. People, Parker, Cr. R. (N. Y.) 155.

It

Juries selected for their superior mental qualifications were known in England at an early date. In preparing this list, the officer was empowered to use his judgment so as to procure an intelligent class of men, which was generally done by taking merchants from the city of London. Rex v. Edmonds, 4 B. & Ald. 476; Rex v. Wooler, 1 B. & Ald. 1931. Special juries, were, therefore, well known to the common law. Thus in Rex v. Edmonds, supra, the court said: is the very object of a special jury to obtain the return of persons of a somewhat higher station in society, than those who are ordinarily summoned to attend as jurymen at nisi prius. And a similar practice has long prevailed, even in the execution of writs of inquiry of damages, before the sheriff; wherein a party obtains, on application, a rule of the court, in obedience to which the sheriff summons persons of a somewhat higher class than those by whom he is ordinarily attended." It is therefore very evident that since this practice of calling special juries was a part of the common law, it is not within the condemnation of a constitutional provision declaring that "the right of trial by jury, as heretofore enjoyed, shall remain inviolate," as a statute making provision for such juries merely follows the common law. State v. Withrow, 133 Mo. 500; Lommen v. Gaslight Co., 65 Minn. 196, 60 Am. St. Rep. 450; Fowler v. State, 59 N. J. L. 585; Brown v. State, 62 N. J. L. 666. In Lommen v. Gaslight Co., the court holds that legislation making provision for the drawing of special juries is not class legislation. This case, together with that of State v. Withrow, supra, practically exhausts the question as to the validity of "special or struck" juries under our different state constitutions.

JETSAM AND FLOTSAM.

APPEALS IN FORMA PAUPERIS.

At common law no bail was required of a party prosecuting a writ of error. It has remained for the codes and statutes of the several states in America to provide for an appeal bond. This has given rise to many technical but interesting questions, of which not the least interesting is the question of appealing in forma pauperis. It cannot be said that the courts in the United States are yet agreed upon the procedure on appeal for poor persons, but in as far as our courts are at one it would seem that the pauper is dealt but lefthanded justice. Thus though the decisions establish that a pauper may have his case tried without giving bonds to secure the costs in the first instance, yet in recent cases, such as Butler v. Jarvis, 117 N. Y. 115, and Bodkien v. State, 14 Wash. 104, and in Shaner v. Southern Railway Company, 103 Tenn. 259, and in many others, the poor man is denied the right to prosecute his appeal without giving bonds to secure the costs, unless such right is guaranteed to him by the statute. This is undoubtedly the consensus of opinion, and it is equally undoubtedly open to the criticism that poverty is entitled to justice from a part of the judiciary in this country, but is denied by the legislators the privilege of a closer and more minute scrutiny of its cause in our appellate courts. Some of the reasons given for this procedure will attract those who care for the wherefore of the conclusion reached by our courts.

In the case of Shaner v. Southern Railway Company, 103 Tenn. 259, the appellant made a pauper's oath twelve months after the writ of error was issued entitling him to appeal. The learned court held that "neither this court nor its clerk will be justified in presuming that petitioner's condition had not so improved in time that he could not now execute a cost bond," and for this reason dismissed the writ. It might or might not have been a reasonable presumption that the appellant Shaner had so prospered in a year that he could furnish the requisite bond on appeal, but the record fails to disclose that there was anything to show that he had improved either in mind, body,

*

or estate.

amendments of pleadings in that jurisdiction, but one fails to see at first glance why a bond for costs is amendable, and an affidavit which is intended to take the place of such a bond cannot be changed.

In the case of Ball v. Mapp, 114 Ga. 349, continuing this line of strict construction and minute inspection of the pauper's affidavit, the court held that the appeal should be dismissed because the affidavit alleged that affiant was unable to pay the costs of court "or" costs of appeal, when it should have stated, in the opinion of the court, that he was unable to furnish the costs of court "and" costs of appeal. This same thing was held in the case of Abernathy v. Mitchell, 113 Ga. 127, and in many other cases which we have no space to cite. Suffice it to say that this represents the weight of authority in the several jurisdictions in which it has been held.

One poor man, embarrassed by a tender conscience, refused to make the affidavit in the conjunctive form, and argued on appeal that he was able to pay the costs on the trial, but unable to pay the costs of appeal, and his conscience would not allow him to make the affidavit in the conjunctive form. The court disagreed with him on a matter of ethics, holding: "A man may conscientiously depose that he cannot do both of two things, although he may be able to do either of them. To illustrate: A man who can easily walk fifty yards, but who cannot leap over a fence twenty feet high, may conscientiously swear that he is unable to walk the fifty yards and leap over the fence. So a man, if able to pay the costs of suit but unable to give the bond for the eventual condemnation money, can truthfully depose that he cannot do both of them." This is quoted from the opinion of the court in the case of Cheshire v. Williams, 101 Ga. 814. With all due deference to this court, this is refinement refined, and seems to point the moral that a poor man must be equally learned in moral philosophy and in law in order to have his case heard on appeal.

In Utah there is a system by which a man can try his case on credit. In the case of Hoagland v. Hoagland, 18 Utah 304, the court says: "The statute did not protect a poor person from the judgment for costs in case he was unsuccessful; on the contrary, if the poor person fails in his action or appeal, such advance costs shall be assessed against him and may be collected from him personally. * Reading and construing the several sections together, we are constrained to find that the object and purpose of requiring the affidavit under section 1017 was to protect the poor person from the payment in advance of fees to certain officers." Thus we see, if the pauper or his attorney, or the jury, did not agree that his case was good, he must pay willy-nilly. This may be explained when we note that the jurisdiction is Utah, and the case is a divorce case. The appellant was a wife of the defendant. It is appalling to think what would happen if a man much married should abuse many wives, and each one should be entitled to a divorce in forma pauperis.

In Tennessee a poor man may be falsely imprisoned, maliciously prosecuted, and slandered, and is debarred by statute, and the constructions of such statutes by the courts, from appealing in forma pauperis. Cox v. Patent, 11 Lea (Tenn.), 545; Hendrickson v. Cartwright, 99 Tenn. 364, are directly in point. This, of course, can be explained as an oddity of legislation, and no reasonable man would impute the wilful denial of appeal in such cases to the state of Tennessee.

In speaking of the oddities of the statutes and decisions of this much-tangled and curious subject, there

is a peculiar statute in Georgia. Section 4056 of the Code of that state provides: "If a party applying for a writ of certiorari will make and file with his petition an affidavit in writing that he is advised and believes that he has good cause for certioraring the proceedings to the superior court, and that, owing to his poverty, he is unable to pay the costs and give security, as required in the preceding section, such affidavit shall, in every respect, answer, instead of the certiticate and bond above mentioned." Whatever may be said of the ingenious use of the word "certioraring," it is difficult to determine whether the power of “certioraring" is still left in the court or in the party desiring it. We have always been under the impression that only a court could issue the writ, but it is not an unfair construction of this sentence to say that a party keenly aggrieved may indulge in the relief of certioraring.

One might think that the foregoing cases and comments sufficiently show that, in seeking justice, poverty, to say the least, is rather inconvenient. It can also be concluded that our courts are making strenuous efforts to demonstrate that there is a great gulf between them and anything that approaches eleemosynary institutions. It is undoubtedly a difficult matter for a pauper or his attorney to frame a satisfactory case on appeal when he is a resident of the state in which he attempts to proceed, but it is impossible for the pauper who is a wayfarer even to attempt to appeal without payment of costs. It is decided squarely in the case of Christian v. Gouge, 58 How. Pr. (N. Y.) 445, that a nonresident plaintiff is not permitted to prosecute an appeal in forma pauperis. This is also undoubtedly the law of Tennessee and other states, though space prevents us from citing more cases. In the same line is the decision in Sharer v. Gill, 74 Tenn. 496, that an appeal of an infant cannot be prosecuted in forma pauperis. In fact, "thou shalt not" is written in large characters over almost every decision wherein a pauper has attempted to appeal without payment of costs.

As has been said, all the cases sustaining the doctrines that have been announced in the causes cited are sustained by many others, and it is a comment which needs no elaboration that out of the sixty or seventy recent cases that have been examined in this matter there have been found but six or eight cases of appeal in forma pauperis which have not been dismissed on account of technical irregularities in the affidavit of the pauper.-Law Notes.

BOOK REVIEWS.

FLETCHER ON EQUITY PLEADING AND PRACTICE. A Treatise on Equity Pleading and Practice with Forms and Precedents. Had the author not been an extensive and successful practitioner, he perhaps would not so aptly have caught on to what the profession require,and, to meet that requirement,combined in one treatise, Pleading, Practice and Forms. These branches of equity are so closely interwoven that an accurate understanding of the procedure in chancery renders essential a consideration of all three branches of the subject. The author has produced a book which will be of great value to the busy practitioner for frequent and ready reference, in his equity cases, as he has taken up and discussed every conceivable topic that can arise in an equity suit, among which we may enumerate, capability of suing and being sued, parties, bills of information, process and appearance, taking bills as confessed, appearance proceedings b