19 Johns. 115 | N.Y. Sup. Ct. | 1821
delivered the opinion of the Court.
1. At the trial, in the Court below, Chester Bulkley was called as a juror, and challenged to the favour; he was sworn, on his voir dire, as a witness before the triors. A question was then put, whether he was the drawer or endorser of any note in the defendants’ bank; the question was objected to, but the Court decided it was not improper, and the witness answered, that he was an endorser in the bank, but had no interest in the same, other than as endorser. An exception was taken by the defendants’ counsel.
The truth of the matter alleged, as cause of challenge, must be made out by witnesses, to the satisfaction of the triors. A juror challenged, may, on his voir dire, be asked such questions as do not tend to his infamy or disgrace. (3 Bacon, 266. Jury, E.) The general rule is, that jurors must be omni exceptione majores. The application of this rule to each particular case, where the partiality is not apparent, must be left to the sound discretion of the triors. (3 Bac. Abr. 765.) The opinion of the Court was on the admissibility, not on the sufficiency, of .the evidence. They expressed no opinion to the triors. Although I am not prepared to say, that the single circumstance of being an endorser of a note in a bank, would, of itself, support a challenge to the favour, yet it is easy to imagine that an endorser may have a strong bias on his mind. The paper may have been discounted for his benefit, he may have received particular favour from the bank, or the maker may have failed,.and the endorser, without indulgence, may be injured, if not ruined. May not circumstances like these, make an impression on the mind of a juror, and justify his exclusion ? If an inquiry of this nature is contemplated, the first question would be, whether the witness was a drawer or endorser. That must lay the foundation for any subser
The objection to the question cannot be sustained.
2. The second exception is, that the Court overruled the motion fora nonsuit, after the plaintiff rested his cause.
If there is any, evidence before the jury to support the issue, although it may, in the opinion of the judge, be insufficient to establish the fact in controversy, the Court will not arrest the cause, but submit the evidence to the jury, as the proper tribunal to decide, under the advice of the Court. In this case, the evidence of Moore was, prima facie, sufficient to establish the plaintiff’s right to recover. The entry in the plaintiff’s book was the act of one party. The witness had no agency in counting the money, or making the entry, and although he answered from the label, 123 dollars 18 cents, not recollecting, at the moment, that the label was wrong, the error immediately after occurred to him. He then asked the teller, if it was right, who an
3. The third exception is to the question put to Elliot: whether he was in the constant habit of making mistakes ?
An answer to this in the affirmative, neither impeached his integrity, or his general correctness as teller; mistakes in other cases might well be considered by the jury who were to decide on the accuracy of the witness. If he had made mistakes frequently before, the probability of mistake, in this case, would be stronger than if it appeared that his entries had always been accurate ; and as this cause turned on the relative credibility and accuracy of the witnesses, the testimony was proper to be considered by the jury, and ought not to be rejected by the Court.
4. The fourth exception rests substantially on the same ground; the plaintiff had a right to prove the facts given in evidence by Walker ; they were connected with the issue then on trial, and not collateral; they were calculated, in some degree, to draw in question the accuracy of Elliot, and to contradict a part of his statement, as well as to support the previous testimony given by the plaintiff.
5. The fifth exception, is to the charge given to the jury. The Court stated, that the only question before them was a question of fact; that the bank was liable, if the money was paid to the teller on the counter, in the usual course of business, for the purpose of having the money deposited.
On the whole, we are of opinion, that none of the exceptions are well taken, and. that the judgment of the Court below ought lo be affirmed.
Judgment affirmed.