8 Watts 304 | Pa. | 1839
The first error assigned, is an exception to the opinion of the court below, sustaining the challenge of the defendant to Josiah Jones, being sworn or affirmed as a juror to try the issue, on account of his being the tenant of Thomas Elder, Esq., a stockholder in the bank, and therefore one of the plaintiffs. Challenges to the polls, in capita, being exceptions to particular jurors, are reducible to four heads, according to Sir Edward Coke, 1 Inst. 156; propter honoris respeclum; propter defectum; propter affectum, and propter delictum. With the first we have little, if any thing, to do here: of the remaining three heads, the exception taken to the juror, called in this case, if it be a good cause of challenge, must be regarded as falling under the second, propter affectum; that is, for suspicion of bias or partiality. “This,” says Sir William Blackstone, 3 Comm. 363, “may be either a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour; as that a juror is of kin to either party within the ninth degree, &c., &c.; that he is the party’s master, servant, counsellor, steward, or attorney, or of some society or corporation with him; all these are principal causes of challenge, which, if true, cannot be overruled; for jurors must be omni exceptions majares.” Sir William Blackstone does not profess to enumerate all the causes of challenge under this head; he only mentions some of them, by way of example and illustration; and they are very sufficient to show, that the juror ought not to stand in any relation to the party, arising either from contract or otherwise, that would carry with it prima facie evident marks of suspicion of favour, such as steward, which is one of the relations mentioned. But can it be doubted that the relation of tenant is not still much more intimate, and likely to produce a disposition upon his part to favour his landlord, than that of steward, or some of the other relations mentioned. Every man feels that it would be expecting too much of a tenant, that he should be perfectly indifferent to the interest of his landlord, which he may readily conceive is in some degree connected with his own; and that he would be capable, notwithstanding, of judging impartially between his landlord and another person. We therefore think that this exception cannot be sustained, and the court were right in setting the juror aside.
The second error is also an exception to the opinion of the court in admitting the deposition of John Forster, in evidence, on behalf of the defendant. There was no objection to the manner and form of taking it, nor to its being read, on account of the absence of the witness himself, nor to the want of any requisite diligence to procure his attendance; the only objections raised were, first, as to his competency, generally, on the ground of his being liable also to pay to the bank, the plaintiffs, as indorser of the note, the amount
The court below therefore erred in admitting the testimony of General Forster to be read to the jury.
The third error is an exception to the opinion of the court in admitting the check of the defendant, upon the plaintiffs, for the amount of the note in suit, to be read in evidence. If the defendant had had the amount of the check at the time, the 11th of December 1834, deposited with the plaintiffs in their bank, he would unquestionably have had a right to draw such check, appropriating his money on deposit with the plaintiffs to the payment of his note, which they then held. If, however, he-had no money on deposit with them at that time, he could have no claim to check for any; and without having given some evidence, at least, previously, going to show that he had money to the amount of the check, passed to his credit in the bank, he would not have been entitled to give it in evidence; but having, previously to offering the check in evidence, shown by the testimony of Mr Wier, a clerk or teller in the bank, that six thousand dollars had been passed to his credit on the 13th of December 1833, and it not appearing but what that sum still stood there to his credit, without having been drawn out or appropriated in any way by him, until after the check was offered and admitted in evidence, we cannot say that the court erred in permitting it to be read to the jury.
The fourth error is also an exception to the opinion of the court; in overruling a question put by the plaintiffs to Mr. Wier, a witness called by the defendant, in their cross-examination of him,
The fifth and last error is an exception to the charge delivered by the court to the jury. Because the court left it as a question of fact to be decided by them, whether the note was not paid out of the proceeds of the Lyon & Shorb notes, and erred in telling the jury that the question was, “ what was the agreement between the parties in relation to the appropriation of the proceeds of Shorb & Lyon’s notes, If those proceeds were to be applied to the dis
Judgment reversed, and a venire de novo awarded.