51 Ind. 119 | Ind. | 1875
The appellants, Mary L. and Silas H. Hearn, brought suit against the appellee, a municipal corporation, alleging that said city unskilfully constructed a certain sidewalk, and negligently allowed the same to remain out of repair, whereby the said Mary, the wife of said Silas, while rightfully travelling along the same, fell and broke her arm, and was otherwise seriously injured.
The appellants challenged three of the jurors, showing for cause that they were citizens and tax-payers of the city of Greensburgh; but the court overruled the challenge, and empanelled the jurors. Exceptions.
The only question before us is the competency of these jurors to try the cause.
The trial by jury is as old as the common law. Sir William Jones, indeed, assures us that it was known in Athens, but the history of Greece scarcely sustains his views. At all events, it is found in our system of jurisprudence at its very earliest source; and, with the exception of a short time under William the Norman, who introduced trial by battle, during which trial by jury was somewhat impaired and shaken, it has always remained, with English-speaking people and all who
In Regina v. The County of Wilts, 6 Mod. 307, where the question was whether the county was bound to repair a certain bridge, it was held that an inhabitant of the county was not a good juror.
In Wood v. Stoddard, 2 Johns. 194, the court say : “ The relaxation of the rule, as to questions of interest, has never been extended to jurors. They must be omni exceptione mayores; free from every objection, and wholly disinterested.” “ The interest of a justice of the peace in a penalty, though ever so minute, takes away his jurisdiction of the offence.” Pearce v. Atwood, 13 Mass. 324. See, also, Commonwealth v. McLane, 4 Gray, 427. “The books are full, that challenges are allowed, where the issue concerns a city or corporation, and they are to make the panel, or where any of their body be to go on the jury, or any of kin unto them, though the body corporate be not directly party to this suit.” Day v. Savadge, Hobart, 85.
' Our code, in its tendency and spirit, is with these decisions.
By section 207, 2 G. & H. 154, when the county is a party to the suit, it is good ground for a change of venue.
Section 311 enacts, that “it shall be sufficient cause for challenge to a juror, that he is interested in another suit, begun or contemplated, involving the same or a similar matter.” And, while it does not declare the juror incompetent in a ease like the one we are considering, yet it nowhere declares that he shall be competent in such case.
The decision, therefore, must be left to the common law, and, according to that, as we have seen,-the judgment below is erroneous.
In the present case, we think, both in principle and upon authority, that the court erred in overruling the challenges.
The judgment is reversed, with costs; cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings.