The State v. Brooks. been selected in the manner directed by the several sections of this chapter. Upon such an issue, the certificate of the officers, as provided by the eighth paragraph of the ninth section is conclusive. This is the effect of the decisions in the cases of The State v. Allen, 1 Ala. Rep. N. S. 442, and The State v. Clarkson, 3 Ib. 370. 4. As one of the pleas seems to call in question the fact of this certificate, it is proper to refer to the paragraph. It provides, that a list of the names of the persons so drawn, with their places of residence, shall be made out, certified by the attending officers, and the Clerk of the County Court, who shall deliver the same to the Clerk of the Circuit Court. The direction to insert the places of the residence of the several jurors, is a mere direction for the convenience of the sheriff in making the summons, and like a similar direction in the 10th section, for carrying it into the venire, is a matter which does not affect the essence of the certificate, as is evident from the 6th and 7th sections, when this is directed only in the event the residence is known. It is also said, the certificate shall be signed by the attending officers and the Clerk of the County Court. We are inclined to think this should be construed as or, for by the second section a majority of the officers named are competent to act, and therefore the Clerk of the County Court may not be present—a fact which certainly would not vitiate the proceeding, and which would render his certificate impossible. It is evidently a clerical misprision, and the object of the statute is fully answered by the certificate of the attending officers, or that of the Clerk of the County Court. 5. When the matter of the plea in abatement is the disqualification of a juror, we think that matters of exemption do not produce the same effect. Laying entirely out of view the inquiry, whether the direction in the first section, for the sheriff to prepare lists of the householders and freeholders, is to be considered as implying the disqualification of all who are not thus circumstanced-as to which we give no opinion -there is a class of persons who come within the purview of the 51st section. Such are persons convicted of bribery, forgery, larceny, &c. &c. who, by the act of 1827, (Dig. 169, 2,) are disqualified from serving on juries in any suit. This The State v. Brooks. act having been passed to conform with the constitutional requisition, extends to exclusion from grand juries; but independent of it, the common law most probably excluded them, as not being within the terms good and legal men, who alone could serve as jurors. 6. The provision of the 36th section, that the time prescribed for the drawing and summoning of the grand and petit juries, shall be considered as directory merely, refers itself to the previous sections, which ascertain the time when the sheriff shall return the list of freeholders and householders, the time when the board shall meet to select the jury, and the time within which it shall be summoned; and was intended to indicate to the board, that their powers were not confined to the precise periods previously mentioned, but might be exercised at other periods if necessary. In this connexion the expression affords no warrant to the argument based on it, that the legislative intention was to allow the proceedings of the beard selecting the jurors to be inquired into upon a collateral issue, i. e. upon a plea in abatement of the indictment. If such was the intention, the indictment might be abated, because the names of the jurors were not drawn out in a fair hand, the ballots with the names not rolled or folded, the box not shaken as well as it might have been, or the names of the jurors not written at length. Such a construction we consider unreasonable, and the statement of its effect seems fully to refute it. One or more of the pleas asserts that a deficiency of selected jurors happened in consequence of the non-attendance of those summoned in the first instance, and that a juror was sworn without any order by the Court for the completion of the jury, as is required by the 16th and 17th sections. These sections direct what shall be done by the Court, when there is a deficiency of jurors previously selected to constitute a grand jury; the 16th directs, in that event, that the Court may, by an order to be entered upon its minutes, direct twice the deficient number to be summoned, from which the jury shall be completed. This, in our opinion, is a matter for the direction of the Court, as to the manner in which it shall proceed; but does not invest an accused person with the right to inquire whether the form has been pursued or other The State v. Brooks. wise. This will be perfectly apparent when it is considered, that the Court at any time during the term, may amend its minutes and have the order entered. But independent of this, the previous decisions of this Court go no further than the allowance of a plea to the array of the grand jury, for imperfections in the mode of constituting it, when the mode is under the direction of distinct officers; when it is done by the Court itself, under this chapter, we consider that all collateral inquiry is precluded and the accused is thrown upoħ his plea, or challenge to the array, or selection of the jurors or the individual disqualification of the jurors. 7. It becomes necessary, from the form and allegations of some of these pleas, to ascertain what certainty in them is necessary, whether with respect to existing facts or the negation of other facts which may be presumed from the state of the record. It is said the greatest accuracy and precision are required in framing pleas of this character, and that they should be certain to every intent. [Chitty's Plead. 445.] Now under the chapter which we are considering, there are two modes by which a grand jury may be lawfully constituted. One is, when the jurors are selected and constituted under the proceedings of the board; the other is, when there has been a neglect of these proceedings, or the jurors thus selected are set aside; under these circumstances the Court is authorized to empannel a jury. As the record shows a jury was empannelled, the presumption is, that it was lawfully so, and a plea in abatement, to be sufficient, must show, that neither mode was pursued. 8. It is also necessary to ascertain what parts of the action of the board, are of a nature to enter into, or are connected with, the administration of criminal justice, as it may sometimes happen that no certificate may appear. Thus it is evident that a mistake of the board in selecting a person who is of fair character, cannot prejudice the proceedings; or the omission to state the occupation of the juror, even if that was known. The essential matters are sufficiently apparent when the object of this legislation is inquired into. That was, as we have said, to select a class of individuals from the citizens at large. To effect this, a list of the freeholders and householders is to be obtained biennially, by the sheriff. Ev The State v. Brooks. ery matter beyond this, seems to be nothing more than a direction to the board as to the manner in which they shall perform their duties. By this we are not to be understood that the board has the discretion to do, or omit at pleasure, what is required. On the contrary, the oath of office of the several members composing the board, is regarded as a pledge for the faithful exercise of the discretion imposed, and it is not unlikely they may be liable to indictment for a neglect to perform the duties. Beyond this, it is their duty to pursue the entire requisitions of the act, in every particular. 9. In all pleas of abatement of criminal proceedings, it is essential that facts should be stated out of which the defence arises, or a negation of that state of facts, which is to be presumed from the existence of a record. In either case, facts must be stated, and not the conclusion of the individual, either of law or of the consequences arising out of facts, or the non-existence of them. What we have said when applied to these several pleas, will enable us to determine whether the demurrers were properly sustained. The 1st, 3d, 4th, 10th, 11th and 12th pleas are defective, in not containing matter sufficient, if true, to abate the indictment. The 2d and 5th are defective, because they assume legal conclusions, without setting out the necessary facts to sustain their conclusions, and do not negative the existence of other facts, which may be assumed, because a jury was empannelled by the Court, and it might lawfully be so, even if the facts asserted by these pleas are true. The 6th plea is bad, because, if true, it cannot be collaterally ascertained. The 7th, 8th and 9th would possibly be sufficient if they contained the negation that the jury was empannelled by the Court, upon the failure of a jury selected by the board of officers. In the absence of averments to this effect, the legal presumption is, that the jury was thus empannelled. On the whole, and after a most careful examination of the statute, we are satisfied the demurrers were properly sustained. Decided at June term, 1845, and omitted by mistake. Pinkston and Wife v. Greene and Wife. PINKSTON AND WIFE v. GREENE AND WIFE. 1. The master or mistress of a slave, when assaulted by another, may command the slave to aid in repelling the threatened injury; but the employment of such an instrument of defence, would of itself aggravate any injury which might result, and enhance the damages, unless the threatened danger was so imminent, as to render a resort to any means justifiable, or at least excusable, to prevent irreparable injury. 2. Before this Court can sustain a judgment of the Court below, when an error has been committed, it must be of such a nature, that it is impossible any injury could have accrued to the party against whom it was committed. Error to the Circuit Court of Montgomery. TRESPASS vi et armis, by the defendants against the plaintiffs in error. The first count of the declaration, charges an assault and battery by the wife of the defendant upon the wife of the plaintiff. The second count, charges the assault and battery to have been committed by a negro man named Bill, the slave of the defendant, by the command of his wife. The defendants pleaded the general issue, and three other pleas, upon which issues of fact were taken; and further pleaded 5. Actio non, &c. &c., at, &c., the said Sarah Elizabeth made an assault upon the said Matilda, and would then and there have beat, bruised, and ill-treated the said Matilda, if she the said Matilda had not immediately then and there commanded and caused the said boy Bill, in said second count mentioned, being the servant and slave of said James K., immediately to defend her the said Matilda against the said Sarah; whereupon, the said boy Bill did then and there, on the command aforesaid, defend her the said Matilda against the said Sarah, as he lawfully might do for the cause aforesaid, and in so doing, did necessarily and unavoidably a little beat, bruise, and ill-treat the said Sarah, doing no unneces |