An exemption from taxation of the property of a religious or charitable body does not extend to property which that body is not entitled to hold under its charter or under the statutes relating to such institutions. Evangelical Baptist Benev. & Missionary Soc. v. Boston (1909) 204 Mass. 28, 94 N. E. 572; Central Methodist Church v. Meridian (1921) 126 Miss. 780, 89 So. 650. See also Children's Seashore House v. Atlantic City (1902) 68 N. J. L. 385, 59 L.R.A. 947, 53 Atl. 399, affirming (1900) 65 N. J. L. 488, 48 Atl. 242. And see the reported case (GUNTER V. JACKSON, ante, 1043).

In Evangelical Baptist Benev. & Missionary Soc. v. Boston (Mass.) supra, it appeared that the plaintiff, a religious corporation, was, by the special act under which it was incorporated, authorized to hold property to the amount of $350,000, and this property was by that act exempted from taxation. The corporation, having acquired property in excess of the sum named, sought to have the excess declared to be exempt under a general statute exempting "houses of religious worship owned by or held in trust for the use of any religious organization." The court, after recognizing that the corporation's ownership of the excess was invalid only as against the state, said: "The question at once arises whether, under a system that provides for the taxation of all property, unless an exemption is created by statute and is plainly established, the general law invoked by this petitioner can be held applicable to create an exemption in favor of a party whose holding is ultra vires, and in excess of the authority given by its charter. This exemption is claimed against an assessment for city, county, and state taxes. The claim is made against the public authorities representing the state. We are of opinion that a party, asking an exemption of his property

under this general statute, must come as an owner who has a title which the state is bound to recognize. A corporation which, as against the state, has no right to hold such property, is not in a position to claim a statutory exemption which is intended only for a holding fully authorized by law."

Central Methodist Church v. Meridian (1921) 126 Miss. 780, 89 So. 650, supra, involved a statute (Miss. Code 1906, § 934) providing that "any religious society or congregation or ecclesiastical body may hold and own at any one place, the following real property, but no other, viz.,"-specifically enumerating the edifices permitted to be owned. The court held that property not used for any of the enumerated purposes, but, on the contrary, held for sale, was subject to taxation. That decision is followed in the reported case (GUNTER v. JACKSON).

Children's Seashore House v. Atlantic City (1902) 68 N. J. L. 385, 59 L.R.A. 947, 53 Atl. 399, affirming (1900) 65 N. J. L. 488, 48 Atl. 242, bears only collaterally on the question under discussion. In that case it appeared that a charitable corporation was chartered under a special act limiting the amount of property it was entitled to hold. Thereafter it acquired property in excess of that amount. A later act, relative to charitable corporations, generally increased the property limit so as to cover the amount so held, but provided that "nothing herein contained shall be construed to exempt the property of said corporation from. taxation." It was held that the clause quoted did not prevent an exemption under a general statute exempting all buildings used exclusively for charitable purposes, the court saying: "The Act of 1890 does not say that such corporations whose capacity to hold property is thereby increased shall not

(Tex. -> and that he was thereby deprived of a fair and impartial trial of his case. The court overruled said motion, and such action was assigned as error by the plaintiff in the court of civil appeals. That court overruled said assignment, and its action in doing so is presented by proper specification of error in plaintiff's application for the writ. Plaintiff's bill of exceptions shows that at the time the jury was impaneled, each juror on the panel was asked by plaintiff's counsel if there was in his mind or heart any reason why, if chosen as a juror, he could not and would not give the plaintiff a fair and impartial trial, and that each juror on the panel answered that there was not; that each juror on the panel was asked if, in event he was chosen as a juror in the case, he would give the plaintiff such fair and impartial trial after hearing the evidence, receiving the charge of the court, and hearing the argument of counsel, and that each juror on the panel answered in the affirmative; that the plaintiff relied on said answers in selecting from the panel the jurors who tried the case, and did not believe that any of them had any bias or prejudice against him or his case.

One of the special issues submitted was, "What amount has plaintiff been damaged?" To this question the jury answered, "$1,000." Plaintiff attached to his motion an affidavit, signed and sworn to by two of the jurors, which affidavit stated in substance that the deliberation and discussion in the jury room lasted six or eight hours; that a difference of opinion existed as to the answer which should be returned to said special issue, some of the jurors insisting on as high as "$10,000" as an answer thereto; that during the discussion Mr. Staggs, one of the jurors, stated to other jurors "that lawyers had a way, when they heard of an injury, to go and take the case on a contingent fee for one half of what was recovered, and would not settle with the claim agent of the company, but would

file suit in the courts; that if they allowed plaintiff anything in this case the lawyers would get half of it, and that he did not want them to have anything; that he wanted to stop that sort of business."

Said affidavit showed that said Staggs, during the discussion in the jury room, also stated to other jurors "that this case was worked up by the lawyers in the case."

Said affidavit further showed that during the discussion in the jury room Mr. Aten, one of the jurors, stated to other jurors "that one of the attorneys in this case brought a suit in the Federal court at Amarillo against a citizen of Adrian, where said juror lived, and recovered $10,500, and that the lawyer got most or all of the judgment."

Eleven members of the jury who tried the case testified on the hearing of said motion. The substance of the affidavit was supported by the testimony of the signers thereto, and one or more other members of the jury. At least one of the jurors stated that he was influenced by said statements and did not reach a verdict solely on the testimony in the case, and that this applied to the answers to several of the issues submitted. The juror Staggs testified on the hearing, and admitted part of the statements attributed to him. tributed to him. He did not deny any of said statements, except that he claimed he did not specify any particular lawyer, or say that such things were done in this case. denied having any personal ill will against the plaintiff, but did not deny that he was opposed to parties prosecuting damage suits on contingent fees, and desired to stop the practice, or that he was actuated by such purpose in saying what he did in the jury room in the consideration of this case.

He

The juror Aten was examined as a witness on said hearing, and admitted that other suits were discussed in the jury room. He did not admit the language attributed to him, neither did he deny the same, but claimed a lapse of mem

ory. He also testified that he had no ill will toward either the plaintiff or his attorney.

The court of civil appeals refused to pass upon the issue raised by said assignment. While holding that the evidence above set out tended strongly to show that the jurors Staggs and Aten were prejudiced against plaintiff's case, there being no statement of facts brought up in the record, that court further held that they were unable to say that plaintiff suffered any injury as a result of such prejudice.

The Bill of Rights embraced in our state Constitution declares that the right of trial by jury shall remain inviolate, and it further provides that the legislature shall pass such laws as may be needed to regulate the same and maintain its purity and efficiency. Const. art. 1, § 15.

The legislature of this state, in the performance of the duty so enjoined upon it, has enacted certain laws concerning the qualifications of jurors with reference to their service as such in any case, and with reference to their service in particular cases, and prescribing the procedure when a jury has been guilty of improper conduct while serving as such, which, in the opinion of the court, materially affected their verdict. Rev. Stat. arts. 5115, 5117, 2021.

Our courts have held that the mere fact that a juror who served in a case and joined in returning a verdict therein did not possess all the qualifications prescribed for jurors generally by article 5115 will not be considered sufficient cause for new trial, in the absence of a showing that probable injury resulted to the party complaining, by reason of the fact, that such juror served in the case. Schuster v. La Londe, 57 Tex. 28, 30; Leeper v. State, 29 Tex. App. 63, 14 S. W. 398, 399.

Among the reasons which disqualify a juror in a particular case under the provisions of article 5117 is the fact that such juror has a

bias or prejudice in favor of or against either of the parties to the suit. In such cases it is not necessary that the disqualifying bias or prejudice shall relate solely to the party personally, but it may also relate to such party's case as presented for trial before the jury. Couts v. Neer, 70 Tex. 468, 473, 9 S. W. 40.

If a juror, when tested on his voir dire concerning his qualifications to sit on the jury in a particular case, denies the existence of any bias or prejudice in his mind in favor of or against either party to the suit, and is accepted as a juror on such statement, according to the great weight of authority, when such bias or prejudice does exist, the New, trial-effect party against whom

of bias of juror.

the same exists can complain of the same as a ground for setting aside the verdict. the verdict. He is not required to show that such bias or prejudice caused or contributed to cause the return of an unjust verdict in his case. It is sufficient that he, without his fault, has been deprived of the constitutional and statutory guaranty of a trial of his case before a fair and impartial jury. It is immaterial in such cases whether a regular statement of facts is found in the record or not. Henrie v. State, 41 Tex. 573, 579, 580; Couts v. Neer, supra; Makey v. Dryden, -Tex. Civ. App., 128 S. W. 633, 635, 636 (writ refused); Kansas City L. Ins. Co. v. Elmore, Tex. Civ. App., 226 S. W. 709, 714, 715; Gulf, C. & S. F. R. Co. v. Dickens, 54 Tex. Civ. App. 637, 118 S. W. 612, 614, 615; Texas & P. R. Co. v. Elliott, 22 Tex. Civ. App. 31, 54 S. W. 410; Hanks v. State, 21 Tex. 526; Long v. State, 32 Tex. Crim. Rep. 140, 22 S. W. 409; Hughes v. State, -Tex. Crim. Rep., 60 S. W. 562, 563, 566; Heasley v. Nichols, 38 Wash. 485, 80 Pac. 769; Gibney v. St. Louis Transit Co. 204 Mo. 704. 103 S. W. 43; West Chicago Street R. Co. v. Huhnke, 82 Ill. App. 404; French v. Smith, 4 Vt. 363, 24 Am. Dec. 616, 619; Birmingham R.

-power of supreme court to grant.

on the hearing of a motion for new trial, based on such ground, leaves it reasonably doubtful whether statements of fact improperly made before the jury affected the verdict, the supreme court has authority to set such verdict and the judgment rendered thereon aside. Houston & T. C. R. Co. v. Gray, 105 Tex. 42, 43, 143 S. W. 606; Hines v. Parry, Tex. -, 238 S. W. 886.

There is no contention that any. of the jurors in this case were not qualified generally to sit upon a jury. The record shows affirmatively that they were examined on their voir dire before they were accepted as jurors in this case, and that each of them denied the existence of any bias or prejudice, and that plaintiff relied on such denial. The evidence shows, we think, without dispute, that the juror Staggs, and possibly the juror Aten, had such bias or prejudice against the

Jury-qualifications-prejudice against contingent fee.

plaintiff, or against his cause, as to disqualify him or them to sit as jurors in this case, and that on account there

of the plaintiff has not had a trial of his cause before a fair and impartial jury, as guaranteed by the Constitution and laws of this state. The evidence also shows without dispute that the improper statements made by said jurors in the jury room influenced at least one other juror in agreeing to the answers returned by the jury to one or more of the issues submitted. Since one or more of the jurors trying this case had such bias or prejudice as to disqualify, it is immaterial that such bias or prejudice was manifested in the discussion of the amount of damages to be allowed. It is true the amount of damages allowed plaintiff was wholly immaterial, because he was precluded from a recovery by reason of the findings. of the jury on other issues submitted. But the fact remains that bias or prejudice existed, and it did not devolve on plaintiff to show affirmatively that he suffered injury as a result thereof. Our recommendation in this case is predicated on the existence of such disqualification. This being the case, it is not necessary to decide whether the misconduct of the jury in this particular case can be reviewed in the absence of a statement of facts, or whether the trial court abused his discretion in refusing a new trial on that ground.

We recommend that the judgments of the District Court and Court of Civil Appeals be reversed, and the cause be remanded to the District Court for another trial.

Cureton, Ch. J., delivered the opinion of the court:

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.

We approve the holding of the Commission of Appeals on the question discussed in its opinion.