Mayor of Columbus v. Goetchius

By the Court — Warner, J. delivering the opinion. The first ground of error assigned to the judgment of the Court below is, in sustaining the plaintiff’s objection to the citizens of Columbus being competent Jurors for the trial of the. cause, inasmuch as they were liable to be taxed for the payment [142] •of the verdict which might be recovered against the defendants in the Court below. [1.] The Court did not err in its judgment in sustaining the objection to the Jurors who resided within the corporate limits of the City. Jurors may he challenged, propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favor. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor, as that a Juror is of kin to either party within the ninth degree ; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a Juror in .the same cause ; that ho is the party’s master, servant, counsellor, steward or attorney, or of the same society or corporation with him — all these are principal causes of challenge which, if true, cannot be overruled, for Jurors must be omni exceptiona majares. 3 Bl. Com. 363. Where a qui tarn action for usury was brought under a Statute, which provided one moiety of the sum recovered should go to the party prosecuting the action, and the other moiety to the jaoor of the town where the offence of usury was committed, it was held, that the Jurors who were inhabitants of the town where the usurious sum of money was received, were not competent Jurox's to sit on the trial of the cause. Wood vs. Stoddard, 2 John. Rep. 194. In that case, the inhabitants of the town wore interested for the plaintiff to recovex-, for the benefit of the poor ot the town, whom they were compelled to support by taxation, and’ the effect of the recovery for the benefit of the poor of the town would relieve the inhabitants from the payment of taxes to the extent of such recovery. In this case, the citizens of the City of Columbus would be liable to be taxed for the payment of the verdict which might be recovered from the defendants, and, therefore, were not wholly disinterested. Hesketh vs. Braddock, 3 Burrow's Rep. 1847. The plaintiff below did not challenge all the Jurors who were citizens of Columbus; whereupon, the defendants insisted the plaintiff should challenge all the citizens of ■ Columbus who were oír the Grand Jury list, which the plaintiff declined doing. The Court announced to the defendants, that they might challenge the Jurors for the same cause as the plaintiff had done, which the defendants declined doing; and, as neither [143] party challenged the remaining Jurors who were inhabitants of the City, the Court refused to discharge them; whereupon the defendants excepted. There is no foundation for this objection.. It was the privilege of the plaintiff to challenge the Jurors who were inhabitants of the City, or not, and if he thought proper to waive his right of challenge, the defendants had no right to complain — certainly not after the Court gave to them the right to challenge the remaining Jurors for the same cause as the plaintiff' had done, and they declined to exorcise it. The testimony of Moses, the former Mayor of the City, was offered by the plaintiff for the purpose of showing that the negro Crawford, was confined by the order of the defendants. The witness stated that “ in regard to the plaintiff’s calls upon him relative to Crawford, he recollects distinctly, that nothing on the-subject would have been listened to, except through the action of the defendants.” To the admission of this part of the testimony of the witness, the defendants excepted. To enable the plaintiff to recover, it was necessary for him to show that the slave, Crawford, was confined by the orders of the defendants, and the testimony of Moses, who was Mayor of the City at that time, and which is excepted tw, when taken in connexion with the other part of his answers, as appear on the record, manifestly conduces to prove the fact of the detention of the negro by the defendants,, and was properly admitted by the Court below. [2.] With regard, to the preliminary remark's of the Court to' the Jury, as contained in the record, we cannot say there existed any necessity for the Court to have made them, so far as concerned the merits of the controversy between the parties ; yet, we find no error in law, in the charge of the Court, which would authorize the interference of this Court. After the-' Jury found a verdict for the plaintiff, the defendants moved the Court below for a new trial, which being refused, the defendants excepted. [3.] The motion for a new trial was based on the grounds which have already been considered, as well as the additional ground, that Cook, one óf the Jurymen, had formed and expressed an opinion in favor of the plaintiff previous to the trial, which was unknown to the defendants or their attorneys. This motion is supported by the affidavit of Jones, which does not establish any settled opinion entertained or expressed by the Juror against the defendants, but all improper inferences [144] wbich might possibly be drawn against the verdict from the statement of Jones, are fully rebutted and explained by the affidavit of the Juror himself in support of the verdict. Ramadge vs. Ryam, 23 Eng. Com. Law Rep. 296.* We find no error in this rrcord. Let the judgment of the Court below be affirmed. Footnotes [*] See Monroe vs. The State, 5 Ga. Rep. 85. — [Rep.]