
    
      J. H. Dogan v. S. J. Ashby.
    
    Where it Is Intended to examine a juror as a witness, and especially on the question of the credibility of witnesses, notice in fairness should be given to the opposite side, and thus enable him to know to what extent the juror’s verdict will be influenced by his own evidence.
    
      Before O’Neall, J. at Union, Fall Term, 1848.
    This was an action of debt on a note, under seal, for $1,603 47-100, dated 24th March, 1837, executed by Daniel Thomas and the defendant, due and payable one day after date.
    The defence was usury and payment. The defendant contended, according to the testimony of Col. Thomas, that this note was given for $400, paid to sheriff Johnson, and several small debts,' and 18 per cent interest. The plaintiff contended that the note was given in satisfaction of the cases, Lewis N. Shelton v. Thomas and Ashby ; Wm. Rice v. Daniel Thomas; John McClure v. Daniel Thomas. The date of the note corresponded with the receipts given in satisfaction of those cases. The aggregate of those cases was $1,741 47; the note, being for $1,603 47-100, was $148 less than the same. It appeared from the examination of sheriff Johnson, that he did let the plaintiff have a note of about $400 on Col. Thomas.
    Thomas proved that in addition to the two first credits on the note, viz: $250, 28th April, 1839; $188 50,28th August,1 1841 j he had delivered to the plaintiff a note of L. B. Jeter for $1,250, of which $700 was to be applied to the note now in suit: this was in 1837, after the note in suit was given.— He proved that, 13th September, 1842, he let the plaintiff have a note on Stevenson for $700, due in 1844, which was to be applied in payment of this note; afterwards, he said, the plaintiff applied it to a note of $400, and the balance, after reducing it to cash, was credited on this note, 13th September, 1842, $101 49.
    It appeared, by the testimony of L. B. Jeter, that Colonel Thomas had his note for $1,100, with interest from the date, February, 1837; and that he traded it to the plaintiff, as Thomas told him, in payment of money which he owed the plaintiff, and a little execution. The witness paid his note to plaintiff in June, 1838.
    If Col. Thomas’s testimony was entitled to credit, it was clear, beyond all doubt, that the note was usurious ; and that it had been paid. The plaintiff swore sheriff Johnson, ex-sheriff McBeth, (who was one of the jurors trying the case,) the Clerk, Mr. Keenan, and Gen. Gadbury : they all concurred in saying that Col. Thomas was a man of bad character, and unworthy of belief.
    The defendant offered to prove that it was the usage of the plaintiff to charge usurious interest. The Circuit Judge thought such proof was no more admissible, than would be an offer on the trial of an indictment for larceny, to prove that it was the habit of the prisoner to steal: or, on the trial of an action of slander, that it was the usage of the defendant to speak ill of all of whom he had occasion to speak.
    The case was submitted to the jury, with very favorable instructions for the defendant. For his Honor told the jury that, from his knowledge of Col. Thomas, and his early associations with him in public life, he should be slow to believe that he would swear falsely. Still he told them that they knew him as well as he did, and so did the respectable gentlemen who had testified against him, and that they had the right to disbelieve him if they chose. He thought it probable that, after the lapse of so many years, he had forgotten how the debt arose, and that he had, by mistake, stated it wrong. He thought that it was most likely that the note was given in satisfaction of the judgments, herein before spoken of. Taking that to be the case, he thought the jury might very well conclude, that the forbearance was on an usurious consideration. If that were the case, and they should be satisfied that the credits on the note were the only payments, the verdict ought to be for $1,063 56, the balance of the principal sum, without interest and costs. If, however, they disbelieved Thomas, then they ought to find for the plaintiff, the balance of his debt and interest; which they did.
    The defendant appealed, and moved the Court of Appeals for a hew trial, on the grounds :
    1. Because the plaintiff, well knowing he intended to impeach or attack the character of the defendant’s principal witness, which was not done on the former trial, permitted his principal witness to impeach the defendant’s witness, to remain on the jury ; which gave the plaintiff an unfair and illegal advantage.
    2. Because the pleas of payment and usury, were fully sustained by the evidence offered.
    3. Because the Court rejected the evidence offered, by the defendant, to prove the usage, habits and custom of the plaintiff, as to the rate of interest at which he lent money.
    4. Because the witnesses called to impeach the character of defendant’s witness, did not speak from general character of the witness impeached, but only spoke of and from their individual opinions, when they said they would not believe that witness.
    5. Because the verdict is for more than is due.
    6. Because, under all the circumstances of the case, there should be a new trial, as the verdict is contrary to law and evidence.
    
      A. W. Thomson, for the motion.
   Evans, J.

delivered the opinion of the Court.

In this case the defence was usury, and that was clearly proved by the witness, Daniel Thomas : so that the only disputed point of the case, was whether the jury would believe him. The verdict, giving the whole debt, answers the question ; and as it is one which belongs exclusively tp the jury, the case would be dismissed without further observation, but for the fact stated in the first ground of the notice of appeal. The fact to which this ground alludes, is that Mr. McBeth, one of the witnesses by whom Thomas’s credit was attacked, was one of the jurors who tried the case. All the authorities, from Lord Coke down, say that a juror should “ stand indifferent as he stands unsworn.” This he cannot be said to be, if he has already made up his mind on the question upon which his verdict depends. If a juror has already made up his mind, before he hears the evidence, founded on his own knowledge, or what he has heard from others, he is not indifferent between the parties. His assent to the verdict is not “ according to the evidence” which he has heard on the trial, but a foregone conclusion to which his mind had attained before the trial commenced. Such an objection to a juror would, I have little doubt, be a good ground of challenge.— If the juror had made up his mind, on the main fact, on which either the plaintiff’s right or the defendant’s defence finally depended, the reason of the objection applies with equal force, though it might not be a ground of challenge, as its importance to the issue could not be very well known before the trial commenced; (See on the right of challenge, Thomas’s Coke, 380; and the American cases collected in the American Digest, 2d vol. 686.) It certainly is contrary to the first principles of jury trial, that one who had already decided the case in his own mind, should sit in the jury box. To him the examination of witnesses, the argument of counsel, and the charge of the Judge, is an unmeaning ceremonial. But the objection applies with greater force when the juror is converted into a witness, and has added the solemnity of an oath for the truth of his opinion. How can any man be expected to surrender an opinion, thus expressed, or assent to any verdict in opposition to those facts or opinions which he has stated under oath? His pride, his self-respect, and his oath, all forbid it. So entirely is this Court satisfied that such a witness is an improper juror, that where the verdict depended on his evidence alone, a case might arise in which the Court would feel bound to order a new trial; but this is not such a case; there was abundant evidence besides. But we have availed ourselves of the occasion- — being the first that has been presented, to express our opinion, that where it is intended to examine a juror as a witness, and especially on the question of the credibility of witnesses, notice in fairness should be given to the opposite side, and thus enable him to know to what extent the juror’s verdict will be influenced by his own evidence.

The motion is dismissed.

The whole Court concurred.

Motion refused.  