and general good character may be fairly invoked to rebut suspicious circumstances. Many considerations concur in rejecting such evidence in civil cases. Evidence of this character has but a remote bearing as proof to show that wrongful acts have or have not been committed, and the mind resorts to it for aid only when the other evidence is doubtful and nicely balanced. It may then perhaps serve to turn the wavering scales. Very rarely can it be of substantial use in getting at the truth. It is uncertain in its nature, both because the true character of a large portion of mankind is ascertained with difficuty, and because those who are called to testify are reluctant to disparage their neignbors, especially if they are wealthy, influential, popular or only pleasant and obliging. It is mere matter of opinion, and in matters of opinion men are apt to be greatly influenced by prejudice, partizanship or other bias of which they are unconscious. And ia cases which are not quite clear, they are apt to agree with the one who first speaks to them on the subject, or to form their opinions upon the opinions of others. The introduction of such evidence in civil cases, wherever character is assailed, would make trials intolerably long and tedious, and greatly increase the expense and delay of litigation. It is a kind of evidence that might easily be manufactured, is liable to abuse, and if in common use in the courts, as likely to mislead as to guide aright. The authorities are quite unanimous in excluding such testimony. It is the settled rule of the common law." In Connecticut, in Humphrey v. Humphrey, 7 Conn. 116, and in Norton v. Warner, 9 Conn. 172; in Maine, in Potter v. Webb, 6 Greenleaf, 14, and in Thayer v. Boyle, 30 Me. 475; in Pennsylvania, in Anderson v. Long, 10 Serg. & R. 55, and in Porter v. Seiler, 23 Pa. St. 421; in Indiana, in George v. Drummond, 7 Ind. 19, and in Gibhort v. Burkett, 57 Ind. 378; in Kentucky, in Morriss v. Hazlewood, 1 Bush, 208; in Missouri, in Gutzwilier v. Lackman, 23 Mo. 168; in Iowa, in Barton v. Thompson, 65 Ia. -; in Mississippi, in Lowell v. McDonald, 58 Miss. 251; and in South Carolina, in Smets v. Plunket, supra, the same doctrine is recognized. See, also, Attorney-General v. Bowman, 2 Bos. & Pul. 532, note; 1 Phil. Ev. 467, and Cowan & Hill's notes thereto; 1 Starkie's Ev. 366.

From an examination and consideration of the authorities, our deduction in the premises is that the decision of Ruan v. Perry has been overthrown; that the rule in Greenleaf in regard to the admission in civil actions of evidence of good character in favor of a party charged with fraud is incorrect, and that in actions like the one at bar, such evidence is irrelevant and incompetent. As an excuse for the admission of the evidence concerning the good character of Westenberger, it is urged that the counsel representing the defendants below opened his case to the jury with the statement that Westenberger and Lowenihal were brothers-in-law; that they had been leagued together for twenty years or more for the purpose

of swindling their creditors, and that such counsel upon the trial went back to the years of 1864, 1865, 1866, 1867 and 1868, to show by evidence that Westenberger and Lowenthal had been partners; that they had failed; that they had made an assignment which was afterwards set aside; that Westenberger afterwards went through bankruptcy and was discharged. In the first place, the remarks of counsel to the jury do not appear in the case, and we must decide the questions at issue upon the record. But if counsel had made any improper or irrelevant remarks in the opening of his case, such conduct would not authorize the opposing sides to introduce, against objection, irrelevant and incompetent testimony. And if any irrelevant testimony was offered upon the trial by defendants below, this would not sanction against objection the introduction of opposing testimony of like kind on the other side. But the evidence of Westenberger's transactions referred to may have all been relevant and competent as tending to show whether he was the owner of $28,473.84 of assets in the partnership of S. Lowenthal & Co. at the time of the alleged dissolution on the 10th of January, 1881, and therefore as tending to show whether the chattel mortgage assailed, secured an actual indebtedness of the amount named therein. Wallach v. Wylie, 28 Kan. 138, s. c., 15 Cent. L. J. 230.

Error is also alleged in the direction of the court to the jury. As plaintiffs in error did not ask for additional instructions, nor indeed for any instruction, and as it seems to be admitted that the instructions given were good law when reduced to abstract propositions, the objection to the charge of the court, under the circumstances, is not sufficient to set aside the verdict and the judgment. On account, however, of the admission of the irrelevant and incompetent evidence touching the character and reputation of Westenberger for honesty and fair dealing, the judgment of the district court must be reversed and the cause remanded for a new trial.

JURY TRIAL-COMPETENCY - INABILITY TO SPEAK ENGLISH.

SUTTON v. FOX.

Supreme Court of Wisconsin, October 10, 1882.

Held, that reasons sufficient for the challenge and exclusion of persons drawn as jurors, may be found outside of the statute; that inability to speak or understand the English language is a sufficient reason; and that such exclusion is so largely in the discretion of the trial court that its action will not be made the subject of revision unless some violation of law is involved, or the exercise of a gross or injurious dis cretion is shown.

Held, that a law which simply removes the disa bility of a witness does not impair the right of trial by jury or divest the course of the State of any judi

cial power vested in them by the Constitution. That it was within the power of the legislature to provide for the admission of evidence of witnesses who are conviets in the State prison.

Appeal from Circuit Court, Green Lake County. J. C. McKenny and W. G. Vilas, for respondent; G. W. Hazelton and I. C. Sloan, for appellant.

TAYLOR, J., delivered the opinion of the court: The appellant assigns but two causes for reversing the judgment rendered against him in this case. First. That four jurors, whose names were drawn from the jury box during the process of impanelling the jury, were set aside by the court on the motion of the plaintiff, for reasons stated in the bill of exceptions; and, second, because the testimony of two witnesses was received on the part of plaintiff, against the objection of the defendant, such witnesses being, at the time their testimony was given, convicts in the State prison, serving out a sentence upon conviction of the crime of arson.

The objection made to the jurors who were excluded, so far as the record discloses, was undoubtedly made upon the ground that their knowledge of the English language was so limited and imperfect as to make it highly probable that they could not intelligently comprehend the proceeding in the course of the trial.

It will be seen from the record that there is no exception taken to the justice of the verdict rendered in the action, nor that any error was committed by the judge in his instructions to the jury, or in his rulings upon the trial as to the admission or rejection of evidence, except as to the evidence of the two witnesses above referred to, nor that the jury which was finally impanelled and sworn. and tried the cause, was not an impartial and fair jury; but the learned counsel for the appellant claims that it was error not to permit the four persons whose names were drawn from the jury box to be sworn and serve as jurors in the case.

The only statutory provisions regulating the selection and impanelling of jurors are the following: Sec. 2524 R. S., "All persons who are citizens of the United States, and qualified electors of the State, shall be liable to be drawn as jurors, except as provided in these statutes." The exceptions are found in sec. 2525. The only part of this section which can have any bearing upon the question before the court reads as follows: "and all persons of unsound mind or subject to any bodily infirmity amounting to a disability" are exempted from serving as jurors. Sec. 2527 R. S., provides for selecting the lists of persons from which the juries to try actions at the circuit court shall be drawn, and sec. 2530 provides that “In preparing such jury list, the several supervisors, trustees, aldermen, and county boards shall select such persons only as they know or have good reason to believe are possessed of the qualifications required by law, and are of approved integrity, fair character, of sound judgment and well informed." Sec. 2510 R. S. directs how the names of the per

sons to form a trial jury shall be drawn from the jury box. Sec. 2541 reads as follows: "The first twelve persons who appear as their names are drawn and called, and who are not lawfully challenged, and are approved as indifferent between the parties, and not discharged or excused, must be sworn and constitute the jury to try the issue." Sec. 2849 R. S. "The court shall on request of either party, 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 ΟΙ prejudice therein, and the party objecting to the juror may introduce any otner competent evidence in support of the objection, and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be called and placed in his stead for trial of that cause." Sec. 2851, R. S., provides that each party to a civil action shall be entitled to three peremptory challenges, and no more; and prescribes how and when the challenges shall be made. Sec. 2538 R. S., provides that "When by reason of challenge or otherwise, a sufficient number of jurors, duly drawn and summoned, can not be obtained for the trial of any cause, civil or criminal, the court shall cause jurors, duly qualified, to be returned from the bystanders or from the country at large, to complete the panel for such trial, and the court may in its discretion order a special venire to issue for that purpose,or such jurors may be returned by the sheriff or his deputy, the coroner, or any disinterested person appointed by the court without writ." Sec. 2578, E. S., provides that "all writs, processes, proceedings and records in any court within this State shall be in the English language.,

It will be seen that these statutory provisions do not expressiy confer upon the trial judge power to exclude from the jury any person whose name is found in the jury box and is drawn therefrom in the way prescribed, except as provided by sec. 2849. The causes for exclusion mentioned in that section are restricted to the relationship of the juror to either of the parties, to the fact that he has formed or expressed an opinion as to the merits of the case, or has some bias or prejudice therein. Clearly this section does not cover the case of a person whose name is placed upon the jury list who is unable to speak or understand the English language, who is not a citizen and an elector, who is exempted from service as a juror for any cause, who is deaf or so sick or infirm as to be unable to sit in the case, who is an idiot or insane, who is afflicted with a contagious or loathsome disease which would make it improper for him to associate with other men; and is drawn as a juror to try a cause in court. Still, it can not be denied that the trial court must have the power to exclude such person from the jury. A construction of the law which would deprive the court of the power to purge the jury of such unfit persons would be monstrous.

It has been frequently held that the causes of challenge enumerated in a statute are not exclusive of all others. It has been well said "that the grounds of challenge for cause are so various that any attempt to collate them in a statutory provision must necessarily be only partially successful. Causes of a most positive character are liable to arise out of the facts of specific cases, which must result in a failure of justice, if the statutory causes only are to be recognized." Thompson & Merriam ou Juries, sec. 175, and cases cited.

Nor do we understand the learned counsel for the appellant to contend for any such construction. Their contention is that it was not made to appear that the persons excluded by the judge were so ignorant of the English language as to justify their exclusion on that ground. That a juror may be excluded for that cause when it exists, is not denied. To hold otherwise in a court when the law requires that the proceedings shall be in the English language, would be to render the trial by jury a mockery. That such want of knowledge of the English language is a good ground for excluding a juror, has been determined by every court in which the question has been raised, when the law required that the proceedings of the court should be in the English language, unless the statute of the State, either in express terms or by clear implication, provided that such want of knowledge of the English language shall not be a ground of exclusion. Thompson & Merriam on Juries, secs. 175, 259; Atlas Mining Co. v. Johnston, 23 Mich. 36; People v. Arceo, 32 Cal. 40; State v. Rousseau, 28 La. Ann. 579; State v. Giadry, Id. 630; State v. Push, 23 La. Ann. 14; State v. Gay, 25 La. Ann. 472; State v. Marshall, 10 Smith's Condensed Reports (Ala), 240; Plank Road Co. v. Railroad Co., 13 Ind. 90. For reasons peculiar to the people in certain counties in Colorado, it was held by the Supreme Court of that State, that want of knowledge of the English language was not a good reason for setting aside a juror. Trinidad v. Simpson, 22 Alb. L. J. 409; 10 Cent L. J. 149. It would seem unnecessary to add authorities to sanction a practice so just and necessary to the proper administration of justice, and which has been recognized and acted upon by all the courts of this State, without objection, from its first organization. As said above, the learned counsel for the appellant do not question the propriety of the exercise of the power in a proper case, but deny that the record discloses any cause for its exercise in this case.

Admitting the power of the court to exclude a juror because of his want of knowledge of the English language, it follows that the power must be exercised in the discretion of the presiding judge, and it would require a clear case of the abuse of the power to call for the intervention of this court. Thompson & Merriam, in their work above cited, sec. 258, say: "The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be omposed of fit persons. Large discretion must

be confided to the trial court in the performance of this duty; nor will the action of the court in this behalf be made the subject of revision unless some violation of law is invoked or the exercise of a gross or injurious discretion is shown." A large number of cases are cited by the learned author to sustain this position, and there can be no doubt as to the soundness of the rule stated. The trial judge occupies a place of advantage in determining questions of this kind, which renders it highly improper for this court to overrule the decision of such judge in setting aside a juror, except where it clearly appears, as is said above, that there is some violation of law or the exercise of a gross or injurious discretion is shown. See Thompson & Merriam on Juries, sec. 252, and cases cited in notes. That there is no violation of law in setting aside a juror whose name is drawn for the trial of a cause, for other reasons than those set out in sec. 2849, is not disputed. Sec. 2541 Rev. Stat. clearly implies that the court may excuse or discharge persons who are so drawn, notwithstanding they may be approved as indifferent between the parties. We are not prepared to say that it appears from the record that the trial judge in this case exercised any injurious or gross indiscretion in setting aside the four jurors named in the record. But if the record disclosed a state of facts which clearly demonstrated that these persons did sufficiently understand the English language to render them competent and proper jurors in the case, there would still be very grave doubts whether the verdict should be set aside for that cause. From the record it appears that the appellant has been tried by a fair and impartial jury. He has no reason, therefore, to complain, and does not complain of the injustice of their verdict. He simply alleges that he was entitled to be tried by persons whose names are first drawn from the jury box, and who are approved as indifferent between the parties, and who are not excused or discharged for good cause by the trial court. The words "for good cause" are not in the statute, but it is claimed that such must be the interpretation which should be given to it. The causes for excusing jurors, even after their names are drawn for the trial of a case, are so numerous and involve so many considerations which must be addressed to the discretion of the trial judge, that it can not well be interfered with by an appellate court without great danger of embarrassing the action of the trial court and doing more injury than good. We think there are very substantial reasons for holding that the excusing or setting aside even a competent and indifferent person should not be ground for the reversal of a judgment, when the record shows that an impartial jury has been impanelled for the trial of the case. It has been well said "if a new trial be granted for such cause, there is no probability that the persons set aside will be again drawn upon the jury and all the party complaining can have is a new trial by an impartial jury, and that he has already had on the first trial." In the case

of State v. Marshall, supra, Justice Ormund says: "Of all the discretionary powers of a court this would seem to be the least liable to abuse, as it is altogether conservative. Its exercise is confined to the exclusion of improper or unfit persons as jurors, and how this could prejudice the accused it is difficult to perceive. If in its exercise the court should reject a person qualified to sit as a juror, how does that prejudice the accused? If a juror disqualified by law is put upon the prisoner, the case would be different; but if he is tried by an impartial jury he has sustained no injury." Tatum v. Young, 1 Porter (Ala.) 298; United States v. Cornell, 2 Mason, 91; Com. v. Livermore, 4 Gray, 18; Atlas Mining Co. v. Johnson, 23 Mich. 37; Ware v. Ware, 8 Me. 42; Hurley v. State, 29 Ark. 17; State v. Ward, 39 Vt. 225; Mauer v. State, 8 Tex. App. 361; O'Brien v. Vulcan Iron Works, 7 Mo. App. 257; Watson v. State, 63 Iowa, 548; State v. Dickinson, 6 Kan. 209; Stout v. Hyall, 13 Kan. 232; R. Co. v. Franklin, 23 Kan. 74; Ayers v. Metcalf, 39 Ill. 307; John v. State, 16 Fla. 564; Dodge v. People, 4 Neb. 220, 230; Booming Co. v. Jarvis, 30 Mich. 308; Head v. State, 44 Met. 730-750; Pierce v. State, 13 N. H. 536.

The second ground of error alleged by the counsel for the appellant, is that the two convict witnesses were not competent witnesses for the plaintiff, and that their testimony should have been rejected by the court. To sustain this objection, the learned counsel for the appellant have made a vigorous attack upon the constitutionality of sec. 4073 R. S. of 1878, which reads as follows: "A person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer."

The learned counsel for the appellant contend with great earnestness that this section is a violation of the provision of the Constitution which secures a party to a civil action a trial by jury, and the other provision which vests in certain courts the judicial power of the State. Notwithstanding the ingenuity and earnestness of the argument, we are unable to comprehend how a statute which simply removes a statutory or common law disability of a witness, can by any possibility violate either of these provisions of the Constitution. It is no more a violation of the constitutional privilege of a trial by jury than any other law, which removes a disability which excluded a person as a witness at the time the Constitution was adopted, and we are not aware that any law removing such disability has ever been held by any court to violate that provision; nor do we find that any writer on constitutional law has ever suggested that such legislation was a violation of the right of trial by jury. On the contrary all such laws tend to give force to that pro

vision by enlarging the means of presenting to the jury all the evidence which tends to sustain either the plaintiff's cause of action or the defendant's defense. They give efficiency to that provision rather than defeat it. Nor are we able to understand how the appearance of a convict in court as a witness tends to destroy or lessen the judicial power which the Constitution has vested in it. The witness may be obstinate, or insolent and abusive, and it may be difficult for the court to preserve its dignity or to adequately punish the offender, but such possible inconvenience ean not be said to divest the court of any judicial power vested in it by the Constitution. The moral character of a witness was never a test of his competency, although in England and in some of the States of the United States his religious belief was made a test. The thief, the robber, the ravisher and murderer, though convicted of the crimes with which they were charged, if not sentenced, as well as the felon who admitted his guilt, were, at common law, permitted to go upon the witness stand and give their testimony, whilst the man who was deficient in his religious beliefs, or who was interested in the action, was rejeeted as incompetent. It would seem therefore that a law which, abolished the test or religious belief or want of interest as a qualification of a witness, would be a much greater innovation upon the orderly proceedings of a jury trial as the same were conducted in England and those States which had adopted the English rules governing the same, than the law now in question, which simply does away with a disqualification which depended upon a mere technicality. The removal of the disability of religious belief or the disability of interest in the subject matter of the action, has never been held by any court to be a violation of the constitutional right of trial by jury, and no writer upon constitutional law has ever suggested that it was a violation of such right. The man who is confessedly guilty of a felony, or who has been convicted thereof after a fair trial, by the verdict of a jury, is no less corrupt, degraded or unworthy of belief before sentence than he is after; nor is the purity or dignity of the court more offended by his appearance on the stand, after he is sentenced, than before. The convicted felon, who is undergoing the just punishment of his crime,is not a less trustworthy witness than the admitted felon who is put upon the stand by the State with an implied understanding that if, with the aid of his testimony, his associates are convicted, he will escape punishment. The moral influences are certainly in favor of the witness who is under sentence. The earnest and impassioned argument made by the learned counsel for the appellant against the admission of the evidence of witnesses undergoing sentence, would have great force if addressed to the legislature, upon the propriety of the passage of a law making them competent witnesses, but we are unable to discover its force as an argument to prove the want of constitutional power in

the legislature to pass the act. A law which simply removes the disability of a witness does not impair the right of trial by jury or divest the courts of the State of any judicial power vested in them by the Constitution.

The point made by the learned counsel for the appellant that the law properly construed does not cover the case of a convict who is still in prison undergoing punishment, we are clearly of the opinion can not be sustained. The language is general. and was clearly intended to apply to all convicts. If there is any propriety in the law, it certainly should apply to all cases equally. The facts and circumstances of the case at bar, are a vindication of the propriety of the enactment of the law in controversy. Had the evidence of the witnesses who were rendered competent witnesses by this law been excluded, it is highly probable that a great wrong would have gone unwhipped of justice.

The judgment of the circuit court is affirmed.

CONTRACT-WAGER-OPTIONS IN GRAIN.

MURRAY v. OCHELTREE.

Supreme Court of Iowa, October 4, 1882.

A contract for the sale of grain for future delivery is not void as a wager, unless it is shown that neither party intended that there should be any actual delivery.

Appeal from Louisa District Court.

Action upon a promissory note executed by defendants to plaintiffs. The cause was tried to the court without a jury, and judgment was rendered for defendants. Plaintiffs appeal.

Gray & Tucker, for appellant; Newman & Blake, for appellee.

BECK, J., delivered the opinion of the court. 1. As a defense to the action, defendants plead "that plaintiffs were commission merchants in Chicago, Illinois, and doing business for the defendants in the sale of grain; and that plaintiffs dealt and traded in what is known as options 'on change,' in Chicago, in grain, by selling and buying in market 'on change' certain grain for future delivery, when in fact no delivery was ever intended or demanded, and no grain was bought or sold, or intended to be; that the whole business was a venture and speculation on 'margins,' depending for profits or losses on the fluctuations of the markets, and purely a fictitious and gambling transaction; that in such trade no consideration was received for money lost and paid, and, when money was received, nothing was paid therefor; and defendants say said note was given for loss in so trading in options, which plaintiffs well knew, and was therefore without consideration, in violation of law, and contrary to public policy." This defense presents the sole issue in the case.

2. A transaction of the character alleged in the answers to be the consideration of the note in suit is illegal, and Is not a sufficient consideration to support a contract. But to invalidate a contract on the ground of the illegality of the transaction, it must be shown by a preponderance of evidence that both parties bought or sold property with the knowledge and purpose that no actual delivery of the property which was the subject of sale should be made; or, in other words, both participated in the intention, which, if executed, renders the transaction illegal. If one of the parties acts in good faith, with the intention and expectation of delivering or receiving the property which is the subject of the sale, the transaction as to him will be valid, and will be a sufficient consideration for a contract in his hands based thereon. Pixley v. Boyenton, 79 Ill. 351.

3. The evidence in this case shows without contradiction, that the transaction for which the note in suit was given was, on the part of plaintiffs, made in good faith, with the purpose of delivering to defendants the grain which was the subject of the sale, and that they made actual purchases thereof with the intention of performing their contract of sale with defendants. Two of the plaintiffs testify positively and directly to this point. The defendants all unite in declaring that it was their purpose to make the transaction an "option deal," but their testimony fails to disclose a like purpose on the part of plaintiffs. One of the defendants uses the following language in his testimony, referring to the transaction: "I know this was an option deal simply, because, so far as I was concerned, I never expected to receive any corn. I do not know whether or not plaintiffs bought the corn or not; I only meant for them to buy an option deal." The testimony of the other defendant is no stronger against plaintiffs upon this point. No witnesses except the parties testified in the case. We may, therefore, declare that

the testimony utterly fails to show that plaintiffs participated in any purpose which would invalidate the note, but, on the contrary, the transaction is affirmatively shown by the evidence to have been on the part of plaintiffs a bona fide sale of grain, to be actually delivered at a future time. The judgment of the district court, being without the support of any evidence, must be reversed.

STATUTE OF FRAUDS-VERBAL PROMISE OF INDEMNITY.

DERMITT v. BICKFORD.

Supreme Court of New Hampshire.

A verbal promise to indemnify another if he will become surety for a third person, in consideration of which the other does become such surety, is not within the statute of frauds.