Thomas v. Leonard

Citations

• 5 Scam. 556

Syllabus

<p>Appeal from Si. Clair.</p> <p>1. Juror — discharge by court. A court has a discretion, whenever it comes to its knowledge that a juror has inadvertently been sworn, who cannot render a legal verdict, to discharge him.</p> <p>2. Same — same. The supreme court will presume, where the bill of exceptions states that a juror was discharged upon his being objected to because he was related to one of the parties, that evidence of that fact was produced in the court below.</p> <p>3. Evidence. Upon the trial of a suit brought to recover the amount of a store account, the plaintiff asked a witness called by him, the following question : “Are the articles in this account (holding up the account) charged upon the books of the plaintiff? ” To the asking and answering of which question the defendant objected, as being illegal and irrelevant; but the court overruled the objection, and the witness answered that said article-, were charged upon the books, and the account was r correct copy therefrom. The plaintiff, after proving that some of the articles were purchased by the daughters of the defendant, asked the witness, “ What did the daughleis say, when they purchased said goods ?” The defendant objected to this question, jut the objection was overruled, and the witness answered that the daughiers stated, when they got some of the articles, that they were to be charged to the defendant: Held, that as it was apparent from the bill of exceptions, that the former question was not ailced for the purpose of proving the account, but a fact that might be important to rebut any presumption that the articles sold were not regularly charged on the books of the plaintiff, the court could not determine that it was illegal or irrelevant; and that what the daughters said when they purchased the goods was a part of the res gestee, and evidence of it was competent to show what took place when the goods were purchased, (a) </p>