Tatum v. Young

By Mr. Chief Justice Saffold : 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. — 307 — The questions presented for revision, arise out of a bill of exceptions taken on the trial. It appears that the counsel for Young, the plaintiff below, challenged J. H. Gorman of the jury, for cause; that he being examined on oath, deposed that he had been employed by the defendant, Tatum, to go after the slave in question, to the town of Selma, for which ■said defendant paid him fifty dollars; that he, with one James ‘Tatum, went to Selina, and found the slave in a grog shop. ■He further stated, that his instructions were, to get the negro at Young’s, or elsewhere, as he could ; that he did not know in whose possession the negro then was ; found him without a pass, and had brought and delivered him to the defendant. He also said he had no interest in the suit, nor did he feel any. The counsel for Tatum objected to the rejection of the juror ; but the court sustained the challenge. 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 — 308 — of the clerk, that the deed had been duly recorded, and the presiding Judge’s certificate, they had a right to presume, that the recording was according to the laws of Georgia, though the same were not produced. The court held, that if the defendant relied on the recording of the deed in Georgia, he should have produced the laws of that state in evidence ; therefore, refused the instructions requested. 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.a Nor do Idoubt, that the overruling a challenge to a juror, founded on a legal objection, would be error. The effect would be to compel a party to abide the decision of an illegal jury, the consequences of which might be greatly injurious. It does not, however', follow, that either the effect or consequences would be the same, from the rejection of a competent juror. But this point will be further considered aft er a slight notice of the validity of the objection to the juror m question, and of the authority relied up on to support it. 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 same309 title or matter, though between other parties — that he was chosen arbitrator by one of the parties, and has entered upon the examination of it — that he has declared his opinion of the case beforehand — that since he has been returned, he has eaten or drunk at the expense of one of the parties — that an action implying malice or displeasure is pending between the juror .and one of the parties, &c.—See Pringle vs. Huse—1 Cowen, 432—6, note 1, and authorities there cited. 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 — 310 — or criminal design, and the circumstances disclose a probable injury to either party, the question on error, might be essentially different; and at any rate, the Judge would be responsible to the state by impeachment, or such other mode of redress as the constitution has provided, I think it may be safely assumed that his powers in this respect would not be more dangerous than in many others, for .the exercise of which, it is clear there can be no relief in error. On this point it may suffice to refer to the one case only, which was cited in argument. In United States vs. Cornell,a Judge Story says : “ Even if a juror has been set aside by the court for an insufficient cause, I do not know that it is matter of error, if the trial has been by a jury duly sworn and im panelled, and above all exceptions. Neither the prisoner'nor the government in such case, can have suffered any injury.” We are of opinion, that this rejection of the juror, under the circumstances of the case, is not a matter available in error. 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 — 311 — prescribe the mode in which the public acts, records,” he. shall be authenticated, passed in 1804.a This act directs, that “all records and exemplifications of office booh s which are or may be kept in any public office, of any state, not appertaining to a court, shall be proved or admitted in any other' court, or office, in any other state, by the attestation of the keeper of the said records, or books, and the seal of his office thereto annexed, if there be a séal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept; or of the governor, the secretary of state, the chancellor, or the keéper of the great seal of the state, that said attestation is in due form, and by the proper officer ; and the said certificate, if given by the presiding justice of the court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or if the said certificate be given by the governor, the secretary of state, the chancellor, or keeper of the great seal, it shall be under the great seal of the state in which the said certificate is made : and the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same are or shall be taken.” 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. — 312 — The rule which regards registration of deeds, as construe^ tive notice to all concerned, is in itself, a rigid principle ; and it would be unsafe, first to presume, from the certificates of the clerk and Judge, " that the law of Georgia authorised the registration of this deed, and then make this presumption constructive notice to Young of its existence. No questionis presented to this court respecting the sufficiency of any other proof of notice. The j udgment below must be affirmed. Footnotes [a] 1 Johns. 315, 8 Johns. 347. [a] 2 Mason, 91. [a] lug. I). 299.