Mechanics & Farmers' Bank v. Smith

Woodworth, J. 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 [122] quent inquiry. It is proving one fact, which is either, per s6) sufficient, or if not, must be proved, in order to connect it with others intended to be relied on, w'hich, together, present a well-founded objection : if the party fails in connecting the fact of being drawer or endorser, with other Circumstances, and the party objecting thinks the evidence insufficient, he may call on the Court to express an opinion to the triors as to its weight; but, in this case, the Court were hot called on to express an opinion to the triors, whether the evidence was sufficient, but to exclude the question. This was premature ; for in that stage of the inquiry, it did not appear that the question was improper and unnecessary. Very slight grounds of interest have been held sufficient, on a challenge to a juror; as in Wood v. Stoddard, (2 Johns. Rep. 194.) where, in a qui lam suit under the act for preventing usury, which gives a moiety of the sum recovered to the poor of the town, where the offence is committed, it is a good cause of challenge against the jury that they are inhabitants of the town; and in Steinbach v. The Columbian Insurance Co. (2 Caines, 133.) although it was unnecessary to decide on the challenge, which was, that one of the jurors was an underwriter; yet the Court say, “ underwriters can hardly be properjurors in cases in which persons pursuing the same business, are parties.” 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 [123] swered that it was. He did not contradict the teller, owing, as he says, to his diffidence; but he stated the mistake when he returned, to the plaintiff, who, without delay, endeavoured to have it corrected. An entry made under such circumstances, cannot be considered the deliberate act of both parties, and, therefore, conclusive. The correctness of the entry was questioned very shortly thereafter, on the same day, and as soon as the plaintiff was apprised of the mistake. Neither was the testimony of Moore objectionable on the ground that the plaintiff had higher evidence. Moore had counted the money before he left the store; he testified that he. delivered it on the counter, to Elliot. I consider Moore and Elliott as equally entitled to credit, and possessing the same means of ascertaining the amount of money deposited. The Court decided correctly in refusing to nonsuit the plaintiff. 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. [124] íherfe is no principle of law involved in this cause, that exon®rate the defendants. Their liability is established, if the money was received by the bank, notwithstand*nS the rulé of by-law which is relied on. The act of incbrpórátioti allows the president and directors, by rules or by-laws, to direct and prescribe the management and disposition of the stock, moneys, property, and estate of the corporation, and to prescribe the duties of its officers; but tio authority is granted, or intended to be granted, whereby the interest of third persons can be affected, and their just claims defeated by the operation of a by-law. The power of making rules and regulations, is necessarily incident to a corporation; and it is generally inserted in the act of incorporation, to define its nature and limit its extent. I have never heard of an instance where' a mistake was ascertained, that the bank have refused to correct it. In this case the jury have pronounced on the evidence, that the money was received by the defendants. The rule, or by-law, of the hank, does not discharge them; but leaves the question to be decided on its intrinsic merits. 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.