The opinion of the court was delivered by
Hebard, J.The first point made in the case is the decision of the county court, in excluding the pocket docket of the plaintiff from going to the jury as evidence. And, in this decision, we discover no such error as would justify us in sending the case back for a new trial. It cannot reasonably be supposed that the jury would have come to any different result, if this docket had been before them. The question was not whether the plaintiff had rendered the services for which he claimed pay, but whether, at the time he was rendering those services, he expected to be paid for them, and whether the agent of the town had reason to suppose the plaintiff so understood it. It was not proposed *71to accompany the docket with any proof that it was the custom and practice of the plaintiff to make charges for his services in such docket, or that any were made: but the . . offer was, “ to show that the suits, Austin v. Georgia, were entered thereon.” That fact could have no legitimate tendency to establish the point in controversy in this part of the case. The plaintiff had the benefit of his day book, in which his charges were, in fact, made.
In the next place, we think there was no error in the instructions which the court gave the jury. The parties were evidently requiring of the court a particular charge, in relation to defendant’s liability to pay the plaintiff for his services; and we think the charge correct. The court told the jury that they must find the fact from all the testimony in the case. The plaintiff’s objection to this is, that the conversation of the plaintiff and Mr. Allen, and the conversation of Mr. Allen and the agent of the town, were not proper to be considered in reference to the plaintiff’s understanding in regard to the services which he had .already rendered. But we think it was not improper for that purpose. The conversation was in the nature of an admission of an existing fact. The proposition of Mr. Allen that he would have the agent engage the plaintiff, in that suit, and the answer, or reply of the plaintiff to that proposition, might well be considered by the jury, while determining whether the plaintiff rendered the services, expecting to be paid for them.
The objection to the witness, Mr. Allen, on account of interest, is not well taken. It does not necessarily follow that Mr. Allen, in any event, would be liable to the plaintiff; but, were it so, it would be for his interest to fix the liability upon the town, and therefore he has no interest in the event of this suit, to which the plaintiff can with propriety except.
But the important question in this case, and the only one, in which this court have had any difficulty, is in relation to the want of a freehold qualification in one of the jurors. And upon this, the authorities are not entirely harmonious. The only disagreement is in relation to the time, and manner, of taking advantage of this want of qualification, In other words, must it be taken advantage of upon the chai*72lenge of the juror, at the time of empannelling the jury ? or may it be insisted on as a cause of setting aside the verdict? Our statute which was in force at the time of this trial, required jurors to be freeholders. But it has been said argument that this is merely directory; and the case of The People v. Jewett, 6 Wend. 386, is cited as authority to that point; and also that the only advantage that can be taken of it, is upon a challenge to the juror. I am not very well satisfied with the summary mode of getting rid of a statutory provision, by calling it directory. If one positive requirement and provision of a statute may be avoided in that way, we see no reason why another may not. But the case above cited, is not very direct authority to this point. That case was a demurrer to a plea to an indictment, alleging that one of the grand jurors who found the indictment, was not a freeholder. By a reference to the statute of N. Y. it will be seen that there was no specific requirement that grand jurors should be freeholders. In relation to petit jurors, it is otherwise. Our statute requires both grand and petit jurors to be freeholders. The want of that qualification, is a disqualification, and applies to the juror in one capacity as well as the other. The cause for which a juror is challenged, js supposed to apply to some disqualification of the juror to sit in that particular case, such as prejudice, expressed opinion, interest, or relationship to one of the parties ; but these are no general disqualifications, affecting his capacity or legal right to be a juror in other cases. This being a qualification required by law, and the jurors being selected and returned by the officers of the law, without any interference of the suitor, he has a right to presume that none are returned, but such as possess the legal qualifications, and is not therefore bound to rely upon his challenge. All the remarks in the above case from Wendell, that are in point, and applicable to this case, are the mere expressions and opinions of the judge who delivered the opinion of the court, and had little or nothing to do with the question he was deciding. And the authority in the case from Kirby’s Reports, 184, is of the same character — the obiter'dictum, of the judge.
The case in I Conn. 401, is better authority in this case, than the one from Wendell, or the case from Kirby. It *73raises and discusses the same question that is involved in this case. In that case the court say, that £i although this ‘ defect does not affect the capacity or moral qualification of £ the juror, and is strictly technical, yet the law is too positive to be dispensed with.”
In Fines v. Norton, Cro. Car. 278, one Lambert was sworn upon the jury, but it turned out that his name was not in the venire facias, and for this it was held, that error would lie. We think there was much less reason for it than exists in this case. There was no pretence but what Lambert possessed every requisite qualification for a good and lawful juror, only that his name was not in the-venire, and that if his name had been in the venire, he would have been unexceptionable. But the verdict, for that cause, was set aside. But, in this case, the juror lacked a positive qualification to be a juror in any case. In the case Rex v. Tremaine, 16 Com. L. R. the court say, " to support a judgment, it must be founded on a verdict delivered by twelve competent jurors.” The verdict in this case was not rendered by twelve competent jurors, and the qualification which the juror lacked, was one that the wisdom of all civilized countries has deemed of importance ; and one with which the statute law of this state, up to the time of this trial, had not dispensed; and, we regard the trial by jury, of such paramount importance, that too much care cannot be exercised in preserving all the safeguards which the law has. placed around it.
New trial granted.