Baker v. Harris

• Decision Date: 30 June 1864
• Citation: Baker v. Harris, 1 Win. 277, 60 N.C. 271 (N.C. 1864)
• Court: North Carolina Supreme Court
• Parties: JOHN BAKER, EX'R., v. RICHARD HARRIS.

1 Win. 277

60 N.C. 271

JOHN BAKER, EX'R.,

v.RICHARD HARRIS.

Supreme Court of North Carolina.

June Term, 1864.

An action on the case brought by A against B for fraudulently removing a debtor is tried, and a verdict found for defendant.The same jury are tendered in a cause of C against B for the same act of removing, and are challenged by the plaintiff.This is a challenge to the polls and not to the array.

It is a principal cause of challenge, involving matter of law, and therefore the judgment of the Court below upon it, may be reviewed in this Court.

The jurors challenged, were under a legal bias by reason of having decided the case of Goodman vs. Harris, and the challenge ought to have been allowed.

Jurors ought not to be asked either on oath or otherwise, whether their minds are in such a state that they can try a case fairly and impartially.Their answers can have no influence on the question of their competency, but it is an improper practice to ask them.

The case of Sehorn vs. Williams,6 Jones, 575, cited and approved.

This was an action on the case against the defendant for fraudulently removing a debtor to the plaintiff, from the county, tried before BAILEY, Judge, at Fall Term of Rowan Superior Court, 1863.

The counsel for the plaintiff challenged the jury, (being the original pannel,) and assigned for cause of challenge, that the jury had tried the case of Goodman vs. Harris, the same defendant as in this case, for the same act of removing the debtor, and had given a verdict for the defendant.The Court enquired of the plaintiff's counsel, whether they expected to offer any evidence in addition to that offered in the case of Goodman vs. Harris; they answered that they should offer the same witnesses they had examined in the case of Goodman vs. Harris, with additional evidence by other witnesses.

The Judge then proceeded to try the cause of challenge, no objection being made thereto by the plaintiff.Each juror was sworn, and each severally asked, whether, if additional testimony was offered, he believed he could give the plaintiff a fair and impartial trial.Each juror answered, that in case no additional testimony was offered in the cause, that he would find in the same way he found in the case of Goodman, but if additional testimony was offered, he believed he could give the plaintiff a fair and impartial trial.

The Court thereupon ordered the jury to be impanneled.

In the course of the trial, several exceptions were taken by the plaintiff, to the decision of the Judge on questions of evidence, but it is unnecessary to state them, as this Court gives no opinion on them.

There was a verdict for defendant and the plaintiff appealed.

Wilson for the plaintiff .

Boyden and Winston, Sr., for the defendant.

MANLY, J.

There is no cause assigned upon the record for a challenge to the array, and we consider the case, therefore, as a challenge to the polls.It was so treated in the Court below.

Challenges of this sort lie under three principal divisions, 1. propter honorem; 2. propter defectum; 3. propter affectum.Of the last, under which lies our case, there are two sorts: the one working a principal challenge, the other, to the favor.And the first question that presents itself for our consideration is, whether the cause assigned be one for principal challenge, or cause for challenge, to the favor only.For if it be of the latter class, whether it be tried through consent of parties by the Judge, or decided by triors appointed for the purpose, it is a subject of discretion and cannot be reviewed in this Court.

Many cases of the one class approach those of the other so nearly as to be hardly distinguishable.

The one before us, however, does not seem to be incumbered with much of this difficulty, and we are of opinion that it falls under the class of principal challenges.According to the explanation in Joy's treatise on the subject a principal challenge under the head propter effectum is where there is express malice or express favour, and is a judgment of law, either without act on the part of the proffered juror, or a judgment of law upon his act.Upon the cause assigned in the record before us viz: the act of trying as a juror the former case, (the facts being conceded) the law draws a conclusion as to his fitness or unfitness.Hence the cause is one for principal...