1 Port. 298 | Ala. | 1835
This is an action of detinue, which was brought by the present defendant, against Tatum, the plaintiff in error, for a negro slave named Jacob, in the Circuit Court of Autauga.
The bill of exceptions also shows, there was proof, that in 1816, Thomas Tatum made a deed of gift of this slave to his children ; that this was done in Georgia, and the deed was recorded in that state, in the county in which the donor and plaintiff resided at the time; that some time afterwards, the ■donor came to this state, and remained here one or two years, while the slave and children remained in Georgia ; that in 1818 or 1819, the slave came here with the donor and donees, who lived together, and the slave with them, the donees being minors; that after the removal to this state, the plaintiff resided within a half or three quarters of a mile of the donor •and donees, and the existence of the deed was generally known in their neighborhood in Georgia, and in this state; also, that it was spoken of by the wife of the plaintiff, and as the witness believed, in his presence, prior to the purchase.of the slave by him. But. the deed had not been recorded in this state.
Upon this evidence, the defendant below requested the court to instruct the jury, that recording the deed in Georgia, was notice to the plaintiff; also, that from the certificate
It is now assigned for error—
3. That the challenge of the juror ought not to have been sustained. ,
2. That the instructions to the jury were erroneous, in respect to' the effect of recording the deed in Georgia, and the necessity of producing the law of that state.
It is doubtless true, as contended for the plaintiff in error, that if che court overrule a valid objection to the competency of a juror, the circumstance of the party having gone on to 0n mer’ts> i® not a waiver of the exception; but he may still take advantage of it in error.
I readily concede, that the jury must consistí of persons omni exceptions majares. Yet the law recognises a variety of objections founded alone on supposed bias or partiality. The authority to which the counsel for the plaintiff in error refers, admits, as principal cause of challenge to the polls propter ' affectum, not only remote kindred, and the slightest interest, direct or collateral, but also the circumstances — that the juror has before given a verdict in the same cause, or upon the same-
It is not contended that either member of the jury who tried this cause was incompetent, or in any degree exceptionable ; nor does it appear (if that could be material) that all were not of the regular venire. The person rejected from the jury may have been preferred by the party for whom he had been employed to procure the slave, in consequence alone, of his presumed bias or partiality, from having participated in the wrong complained of in the action. Whether this person’s participation in the act did not subject him to an undue influence or partiality, equal to those referred to as c’auses of challenge, maybe well questioned. We are not to consider the causes particularly enumerated in the books, as the only legal grounds of challenge ; these are causes which have already occurred, and been held sufficient; any other causes which would equally affect the judgment or impartiality of of the juror, would be equally available. But it is unnecessary to press this inquiry further, unless the rejection, if considered unauthorised, can furnish a ground for reversing the jndgment.
It- is a general rule, that neither party can claim any advantage from any decision, or other matter, having no tendency to prejudice him. Where a cause has been tried by an unexceptionable jury, the law presumes no injury to either party, for the want of any other person, in lieu of any of those composing that jury. Should it happen, as supposed in argument, that the Judge, from political, or other unworthy motives, might at sometime reject jurors to effect some sinister
On this point it may suffice to refer to the one case only, which was cited in argument. In United States vs. Cornell,
2. On the second point of exceptions, former decisions of this court are perhaps conclusive. Unless the registration of such deed was authorised by the law of Georgia, and it has. been recorded as directed by that law, the registration can imply notice thereof to no one The principle was recognised in Duffy vs. Frenage, (January, 1834,) — in Mitchell et al. vs. Mitchell, (June, 1832,) the paper in question was a deed of gift, as in this case. ' We there held the following language ■ !“ To authorise the introduction of a copy of a deed, the plain"' .tiff should show, that by the authorities of Georgia, such conveyances are required to be recorded ; and as a consequence .thereof, that the clerk recording them, or keeping the record, had authority to certify copies. * If the recording was an ex-pa official act, the clerk had no authority to certify the copy as evidence. The legality .of the procedure, is not to be presumed, because it is not the .course of the common law.”
The act of Congress relied upon in argument, is supposed tp be that “ Supplementary to the act entitled “ An act to
It will be observed, that to bring this deéd within the re- 1 quisition of the statute, the farther certificate of the clerk or prothonotary was necessary ; and that this, at most, could only make it evidence, entitled to such faith and credit in the courts or offices of this state 'as it would have in Georgia by the law or usage of that state. Such records or exemplifications were never intended to be made evidence of the law of property in a different state ; but the mode of proving such laws is otherwise prescribed.
The j udgment below must be affirmed.
2 Mason, 91.
lug. I). 299.