Ferriday v. Selser

| Miss. | Jan 15, 1840

Mr. Justice Trotter

delivered the opinion of the court.

The defendant in error obtained a judgment in the circuit court of Yazoo county, against one George R. Carradine and others, upon which an execution was issued, and was levied upon the slaves in controversy. The plaintiff in error filed his claim to the slaves, in pursuance of' the provisions of the statute, and an issue was afterwards made and tried in the same court, on the title to that property. There was a verdict for the plaintiff in the execution, and judgment rendered by the court accordingly.

The first error assigned, is the decision of the court below, that Valentine Subblett was a competent juror. It appears from the bill of exceptions, that when Subblett was tendered to the court as a juror, he was asked on his voir dire, if George R. Carradine, the defendant in the execution, was not indebted to him, and if Carradine was not also insolvent, to which he replied, that if Carradine was indebted to him, it was in a small amount, that he was notoriously insolvent. That he, Subblett, felt himself to be unfit to sit upon the trial. That he, the juror, was contingently - liable for the amount of a judgment on a forthcoming bond, against Carradine. The counsel for the plaintiff in error thereupon challenged Subblett for this cause, but the court directed him to be sworn in chief. He was then challenged peremptorily, and another juror put in his place. It is an old and cherished maxim of the law, that jurors should be omni exceptions majores. They should be entirely exempt from every influence calculated to produce the slightest bias towards either party. They should, in the emphatic language of the books, stand indifferent as they stand unsworn, and go into their box with no motive to- find a verdict for the one litigant or the other, save a conscientious sense of duty and the paramount claims of justice. Thus protected against the dangers of temptation, which man, in his imperfect condition in this life, can scarce hope to resist with success, juries may continue to command the confidence and inspire the respect which they are so well entitled to, in view of their purity and intelligence. And the institution of trial by jury, thus shielded, may still boldly advance its unqualified claims to our homage as the most powerful and effectual bulwark of human rights. It may-justly be regarded as one of the most sacred of the duties of a court of justice to uphold this institution in its purity, and to guard it with vigilance against an exposure to the operation of causes, which must lessen its demands upon the public confidence, impair its usefulness, and doom it to degeneracy. This great duty can only be discharged by a strict application of those salutary rules which the wisdom and experience of enlightened jurists ■have prescribed. The cardinal maxim upon this subject is the one which has been already noticed, that jurors must be superior to every just exception. If the influence of this rule be extended to the juror who was excepted in this case, it is difficult to conceive his right to a seat in the box to which by the decision of the court, he was admitted. He thought himself to be unfit, and gave as a reason the circumstances which might be supposed to exert a persuasive control over his judgment. His interests placed him in an attitude of hostility to the deed under which Ferriday claimed title to the slaves in dispute. In a case similar to this in principle, the juror was excluded. The Bank v. Smith, 19 J. R. 121. The juror was excluded because he was the endorser merely of a note which the Bank held, and might by possibility need indulgence. In another case it was deemed good ground of objection to a juror, that he was an underwriter on policies which might involve the same questions, that had arisen on the one under trial. The court say underwriters can hardly be proper jurors in cases where persons pursuing the same business are parties, 2 Caine, 133. Hence we take it that the juror in this case was evidently incompetent, and the court-should have so decided.

It appears from the record, however, that when the juror was decided to be competent, Ferriday set him aside by a peremptory challenge. He did not therefore try the cause, and there is no exception to any one of the twelve jurors who found the verdict. We are therefore inclined to the opinion, that as the error complained of is not shown to have prejudiced the right of Ferriday in any way, that it is not a good reason for reversing the judgment. It is a general rule, that an appellate court will not set aside a judgment otherwise regular and proper, on account of a mistaken opinion of the inferior court, which is not shown to have influenced the.final result. Thus the supreme court of Tennessee in the case of McGowan v. The State, 9 Yerger, 184, refused to set aside the verdict, where it appeared that the juror was set aside by a peremptory challenge, who should have been refused for cause which was shown. That case is in all respects like the one at bar, and a conclusive authority in support of the verdict and judgment in the court below.

It is assigned as a second ground for setting aside the judgment, that the court permitted Yandall, a witness for the defendant in error, to prove the declaration of George R. Carradine, made at any time, as to his intention in making the deed in trust to Ferriday and Corwin. The foundation of this objection appears to be the license granted by the court to prove statements made by Carradine to impeach the deed after its execution. It is well settled that a party shall not be heard to impeach his own title after he has made a conveyance of it to a third person. It would be against every principle of sound policy, to suffer after declarations of a vendor to unsettle the title of his vendee, which has been acquired in good faith. It would be to sanction a fraud upon the vendee, by the turpitude of the vendor. 3 Cowen, 612; 1 Hay. 396. If then the record furnished any evidence that declarations of Carradine made after the deed, and affecting its validity were placed before the jury, it would clearly be error. But it is not shown what the witness who was introduced did prove. How then can this court determine the question?

A third assignment of error is the rejection of Richard M. Cowin, who was offered as a witness by Ferriday. Corwin was a co-trustee with Ferriday in the deed of trust. It recites that it Avas executed to secure a debt Avhich Carradine owned Corwin, and also to indemnify him against losses on account of his liability, as surety for debts due from Carradine to other persons. Previous to his coming forward as a witness, Corwin released to Ferriday, the co-trustee, all his poAvers and rights as trustee, and his interest in the trust fund. This release could not render Cor-win a competent witness. He Avas still a trustee, for he had no power to renounce the trust without the assent of the cestui que trust, or the permission of a court of equity. 3 Yerger, 257; 4 J. Ch. Rep. 138. He had an undoubted right to release his own debt, or his benefit on the collateral security furnished by the deed, but he could not relinquish the lien of the other creditors, or exonerate himself from the execution of the trust in their favor. Ib. We think this witness was properly rejected.

The fourth assignment of error is the rejection by the court of the record of certain judgments in favor of Eskridge and certain other persons against Carradine, with the executions which issued upon them, and the return of the sheriff showing a seizure and sale of the slaves in controversy. We are wholly at a loss to perceive the materiality of this evidence under the issue in the cause. The only question before the jury was whether the title to the slaves had passed to Ferriday who claimed them. It is not intimated that he became the purchaser at the alleged sale under these executions. Nor is there any testimony in the record with which the proof rejected can claim any connexion.

The last error assigned, is that the court refused to permit the plaintiff in error to read to the jury the bonds for writs of error, and the forthcoming bonds recited in the deed of trust. That it was competent for the plaintiff to prove the consideration of the deed under which he claimed title, is evident, if the bona Jides of the transfer was questioned by the plaintiff in the execution. The deed imports a good consideration on its face, and was certainly evidence of Ferriday’s title, unless it was impeached by proof. But here again the ojection is met by the palpable fact, that none of the testimony in the cause offered by Selser, is stated, so that it is impossible for this court to decide whether the opinion of the court in rejecting these bonds was, or was not proper. The necessity or propriety of this proof is not perceived by any thing in the bill of exceptions. We are therefore not at liberty to decide that the court erred, upon the mere conjecture that there may have been proof on the other side, to which these bonds might have been applicable. We can indulge in no presumptions against the regularity of the proceedings below. The party who challenges the legality of the opinion of the inferior tribunals, must prove the error by the record.

Let the judgment be affirmed.