GARY
J.
This
action is upon an alleged promissory note of the
defendants' testator, Tyrrel J. Jones, deceased. The
defense is forgery and consequent want of consideration. They
jury found for the plaintiffs upon the trial on circuit. The
defendants appeal to this court on numerous exceptions.
The
first three exceptions will be discussed together, and are as
follows: "And now come the defendants, and except to the
rulings of his honor, over the objections of defendants,
alleging error in the following particulars: (1) In holding
that the juror J. G. Rice was a competent juror. (2) In
holding that the juror P. P. Hamilton was not a competent
juror. (3) In holding that the juror J. K. Young was not a
competent juror." These jurors were sworn upon their
voir dire. Their examination will be set for the in the
report of this case. Section 2403, Rev. St. 1893, provides:
"The court shall, on motion of either party in suit
examine on oath any person who is called as a juror therein,
to know whether he is related to either party, or has any
interest in the cause, or has expressed or formed any
opinion, or is sensible of any bias or prejudice therein, and
the party objecting to the juror may introduce any other
competent evidence in support of the objection. If it appears
to the court that the juror is not indifferent in the cause
he shall be placed aside as to the trial of that cause and
another shall be called." In the case of State v.
Dodson, 16 S.C. 453, the court uses this language:
"The question is whether the circuit judge erred in
allowing certain jurors to be presented to the prisoners,
who, when examined on their voir dire, stated that they had
formed an opinion in reference to the case from what they had
heard or seen in the newspapers, which, however, would not in
the least influence their minds as jurors; that they were not
sensible of any bias or prejudice whatever, either for or
against the prisoners, and would be governed by the evidence
adduced in the case. The statute, after providing that the
court shall, upon the motion of either party to the cause,
examine any person called as a juror upon his voir dire,
declares that: 'If it appears to the court that the juror
is not indifferent in the cause, he shall be placed aside as
to the trial of that cause, and another shall be called.'
Gen. St. p. 523, c. 111 § 25. This would seem to vest the
power of determining the question of fact, as to whether the
juror was indifferent, in the hands of the court called upon
to try the case, and we do not see how this court could
undertake to review such determination. But even were this
not so, we see no error in the course pursued by the circuit
judge. Any other course would have the effect of excluding
from the jury box, in any case of such magnitude or public
interest as would be likely to attract attention, the very
class of persons who would be best qualified to occupy that
position, for in cases of that character it would be
difficult to find persons of ordinary intelligence who had
not received some impressions in regard to a case from what
they had heard or read in the newspapers." S. P.
State v. Williams, 31 S.C. 257, 9 S.E. 853; State v.
Merriman, 34 S.C. 17, 12 S.E. 619; State v.
Summers, 36 S.C. 479, 15 S.E. 369; State v.
Haines, 36 S.C. 504, 15 S.E. 555; State v.
McIntosh, 39 S.C. 97, 17 S.E. 446. In the case of
State v. Merriman, 34 S. C., on page 34, 12 S.E.
619, the court says: "The objection that the judge erred
in rejecting the juror Fletcher, because of his relationship
to the accused within the degrees stated in the record,
cannot be sustained. We are not aware of any statute fixing
the degrees either of consanguinity or affinity within which
a juror is disqualified; and it must therefore be left to the
circuit judge to determine whether the fact the juror's
father and the grandfather of the accused were brothers was
such a relationship as would be likely to render the juror
not indifferent in this case." These exceptions are
overruled.
The
fourth exception complains of error on the part of the
presiding judge as follows: "In admitting the testimony
of the witness Charles P. Sims that liens were given by
witness' mother to T. J. Jones during the years 1872 to
1879, inclusive." The testimony of the witness was
introduced for the purpose simply of showing that liens, were
given as therein stated, but no attempt was made to prove the
contents of the liens. This comes within the principle laid
down by the court in the case of Lowry v. Pinson, 2
Bailey, 328, as follows: "But where the writing
relates to a collateral circumstances, and an inference
favorable to the party arises out of the fact of its
execution and existence, and not out of its particular
contents, parol evidence is admissible. Of this the case of
Spiers v. Willison, 4 Cranch, 398, is an instance.
There parol evidence of the existence of a deed of gift was
admitted, to show the nature of the possession that
accompanied the deed. The allegation of the plaintiff here is
that Issac J. Pinson conveyed the land in dispute to the
defendant, for the purpose of defrauding her; and the object
of the evidence that he about the same time made a voluntary
bill of sale to the defendant and David Madden of all his
negroes--the bulk of his remaining property--was to show the
fraudulent intention by way of deduction, not from the
particular provisions of the bill of sale, but from the fact
of its execution without consideration. The evidence was
therefore properly admitted." This exception is
overruled.
The
fifth, sixth, seventh, and eighth exceptions complain of
error on the part of the trial judge as follows: "(5) In
ruling that the defendants could not introduce documentary
evidence until after plaintiffs had closed their case in
chief, and in excluding deed of settlement after proof of
same by plaintiff's witness Charles P. Sims on
cross-examination. (6) In ruling that the defendants could
not introduce documentary evidence until after the plaintiffs
had closed their testimony in chief, and in excluding the
mortgage deed of S.W. Sims to T. J. Jones after proof of
same, by plaintiffs' witness Charles P. Sims, on
cross-examination. (7) In refusing to allow the defendants to
introduce documentary evidence after proof of same by
plaintiffs' witness because plaintiffs had not closed
their testimony in chief. (8) In refusing to permit the
defendants to introduce in evidence four letters written by
the witness Charles P. Sims after proof of same because
plaintiffs had not closed their testimony in chief." The
testimony mentioned in these exceptions was offered by the
defendants when they came to their defense, and all admitted
except the mortgage of S.W. Sims to T. J. Jones, mentioned in
the sixth exception, which was refused on account of
irrelevancy, and to which, it seems, no exception has been
taken. The said mortgage is set out at length in the case
but the letters are not. The rule for the introduction of
testimony is thus stated in the case of Willoughby v.
Railroad Co., 32 S.C. 427, 428, 11 S.E. 339, to wit:
"The first exception imputes error to the circuit judge
in refusing to allow the written agreement, which the
plaintiff in her cross-examination admitted to be the
contract under which she leased the rails, to be then read in
evidence. It seems that, while the plaintiff was under
cross-examination, the written agreement was shown to her,
and she admitted 'her signature to the contract set up in
the answer, and that it was the contract under which she
leased the rails.' Now, if this contract had been verbal
instead of written, we do not see how defendant's counsel
could have been prevented from asking the plaintiff what were
the terms of such contract; and it seems to us that asking
the privilege of reading the terms which had been put down in
writing was in effect the same thing as asking what were the
terms of a parol contract which lay at the foundation of the
whole controversy. But as we think this question was
conclusively determined by the recent case of Owens v.
Gentry, 30 S.C. 490, 9 S.E. 525, we need not discuss it
further. There the sheriff was sued for certain property,
which he had seized under a warrant to enforce an
agricultural lien, and he justified his seizure, and asserted
his right to the property under such warrant; and it was
there held that the defendant had the right, in the
cross-examination of one of plaintiff's witnesses, to
prove the warrant, and put the same in evidence at that time,
because, however it may be in the United States courts and in
the courts of some of the other states, the rule here is that
the defendant may, if he can, make out his whole defense in
the cross-examination of plaintiff's witnesses. In the
present case the defendant was sued for a trespass, and
undertook to justify, or to rather deny, any trespass,
because of a license contained in the very agreement under
which plaintiff obtained the property about which the
controversy arose. It is urged, however, that, the agreement
being signed by other parties as well as by plaintiff, it
could...
