Gayle v. Court of County Commissioners

ANDERSON, J. Conceding that the case of the jur- or Case had been passed to the next week, and that he was not, therefore, subject to challenge for cause under section 5016 of the Code of 1896, the presumption is that the case was tried by an impartial jury. “In a civil case, the permission of a peremptory challenge, though unauthorized, is not available on error, if the cause was tried by an impartial jury.” — Adams v. Olive, 48 Ala. 551; Tatum v. Young, 1 Port 298; Bibb v. Reid, 3 Ala. 88. The statement of the defendant as to the result, had the road been run on the opposite side of his house, was foreign to the issue involved, and the trial court did not err in excluding said statement. Defendant had testified what the land was worth, and the plaintiff had the right to ask him the price at which [206] be assessed tbe land. It is true tbis was not conclusive proof as to value, but was in tbe nature of a declaration against bis interest. There was no objection upon tbe ground that it was secondary evidence of tbe assessment. We cannot put tbe tidal court in error as to tbe assessor’s book being put in evidence, as it was not subject to either of tbe grounds assigned. Tbe judgment of the circuit court is affirmed. Tyson, C. J., and Dowdell and McClellan, JJ., concur.