Costigan v. Cuyler.

COSTIGAN v. CUYLER et al.

Where a judge acts as trior upon the challenge of a juror to the favor, his rejection, as immaterial, of evidence offered in support of the challenge cannot be reviewed.

APPEAL from the Supreme Court. Action for libel. On the trial the first juror called 'was challenged by the plaintiff to the favor. It was agreed that the challenge should be tried by the judge in the same manner as if triors were duly appointed for that purpose. The juror being sworn, testified that he was not acquainted with either of the parties. The plaintiff's counsel then offered to prove that the juror challenged was a member of a society called Know Nothings; that the defendants were members of the same society; that the plaintiff was a Catholic, and by birth an Irishman; and that the rules and regulations of the society called Know Nothings inculcated hostility to all Irish Catholics. The judge decided that the evidence was immaterial, and excluded it. The plaintiff took an exception. The juror was sworn. A verdict was rendered for the defendants. The exception was ordered to be heard in the first instance, at general term in the third district, where a new trial was refused and judgment was rendered for the defendants. The plaintiff appealed to this court.

Lyman Tremain, for the appellant.

John K. Porter, for the respondents.

COMSTOCK, Ch. J. The juror being challenged for favor, was asked, as a witness on the trial of that challenge, whether he was a member of the society of "Know Nothings." The question, considered by itself, of course amounted to nothing. To show its pertinency the plaintiff offered to prove the other facts mentioned in the bill of exceptions, to wit: that the,

Costigan v. Cuyler.

plaintiff was a Catholic and an Irishman; that the defendants were members of the same society of "Know Nothings" with the juror; and that the rules of that society inculcated hostility to all Irish Catholics. It had been agreed that the challenge should be tried by the judge without other triors. If triors had been appointed in the usual way, their decision in favor of the juror's impartiality, if the evidence offered had been submitted to them, would have been final. This is admitted. If the judge himself, after receiving the same evidence, had passed upon it in the same manner, his decision also would have been final. This is in substance precisely what was done. The judge assumed the facts to be as they were offered in evidence. He held they were immaterial, and rejected the offer; thus determining that those facts did not make out a case of favor which disqualified the juror. It manifestly was of no importance to the plaintiff whether this determination should be made after receiving the testimony, or at the threshold when it was offered. The insufficiency of the testimony to disqualify the juror was the point adjudged. The plaintiff has no right to complain that the judge refused to consume the time of his court in hearing the proof of facts, which, as soon as proved, he would decide were of no avail.

It is quite manifest, from what took place at the trial, that the facts stated, offered in connection with the particular question objected to, constituted the plaintiff's whole case upon the trial of the challenge. There is no room, therefore, for the argument, which has been pressed, that those facts were pertinent and should have been received in connection with others that were not mentioned in the offer. The plaintiff asked a question, and on objection being made, he stated all the connected facts which he proposed to prove. The truth of the whole of them was assumed, and on that assumption a decision was in substance made that the juror was impartial. If this be the correct version of the case, and we think it is, then it is conceded that the determination cannot be reviewed. It becomes unnecessary, therefore, to consider whether the evidence offered had a tendency to make out a case of partiality

Bangs. Skidmore.

in the juror, so that the judge would have been bound to receive and submit it to the triors, if a jury of triors had been

sworn.

CLERKE, J., dissented; all the other judges concurring,

Judgment affirmed.

BANGS, Receiver, &c., v. SKIDMORE.

The words "term of insurance," in section 6 of the act to incorporate the Jefferson County Mutual Insurance Company (ch. 41, of 1836), mean the term of time for which by the policy the insurance was to continue. One insured in a company subject to the provisions of that act, continues liable to assessment upon his premium note for any losses incurred during the term specified in his policy, although his property insured be destroyed long previous to its expiration.

APPEAL from the Supreme Court. Action to recover the amount of a promissory note made by the defendant. Upon the trial before Mr. Justice THERON R. STRONG, a jury having been waived, these facts appeared:

The Genesee Mutual Insurance Company, which the plaintiff represented as receiver, was incorporated in 1836 by an act of the Legislature, which conferred upon it the powers and subjected it to the provisions of the charter of the Jefferson County Mutual Insurance Company, incorporated at the same session. (Laws 1836, chs. 41 and 241.) The defendant became a member of the company by procuring a policy of insurance on his saw mill for the period of five years, and giving his premium note for $420, payable "in such portions and at such time or times as the directors of said company may, agreeably to their act of incorporation, require." About five months after the date of the policy, the saw mill was totally destroyed by fire, upon which the company paid him the amount insured, deducting his proportion of all losses and incidental expenses

Bangs v. Skidmore.

which had accrued or been incurred up to that time. After this, losses by fire occurred upon property insured by the company, on account of which assessments were made on the premium notes, including the one which the defendant had given; he being charged with $139.78 as his proportion of those losses. Having neglected to pay the assessment, this action was brought on the premium note. The defendant insisted that his membership in the company, and his liability for any losses incurred, ceased when his saw mill was burnt, and payment was made to him upon his policy; but the judge held, under exception by the defendant, that he continued liable to contribute to the losses happening after the burning of his own property and the payment of the insurance money mentioned in his policy, and judgment was rendered against him for the balance of the note. The judgment having been affirmed at general term in the seventh district, the defendant appealed to this court. The cause was submitted on printed arguments.

Henry R. Selden, for the appellant.

H. F. Hatch, for the respondent.

WELLES, J. By section 3, of the act of 1836 (ch. 241) incorporating the Genesee Mutual Insurance Company, it was declared that the corporation thereby created should possess all the powers and privileges, and be subject to all the restric tions and limitations which were granted to and imposed upon "The Jefferson County Mutual Insurance Company," by the act incorporating that company, passed March 8th, 1836. (Id., ch. 41.) By the 2d section of the last mentioned act, all persons who should thereafter insure with the corporation should thereby become members thereof during the period they should remain so insured, and no longer.

The 8th section of the same act provides that every member of the company shall be bound to pay for losses, &c., in proportion to the deposit note. The section then declares that the buildings insured, and the right, title and interest of the assured SMITH.-VOL. VII.

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Bangs v. Skidmore.

to the land on which they stand, shall be pledged to the com- . pany; which shall have a lien thereon in the nature of a mortgage to the amount of the deposit note, which shall continue during his policy; such lien to take effect whenever the company shall file, and shall have entered, &c., a memorandum of the name of the individual insured, a description of the property, the amount of the deposit note, and the term for which the policy shall continue.

The position taken by the appellant, is, that upon the destruction of the insured property, and the payment by the company of the insurance, he no longer remained a member of the company, or liable to contribute to any losses, &c., that might thereafter occur, although the time for which the policy issued had not expired.

The substance of the argument is, that when the property was destroyed the risk was at an end, and with it the relation of assurers and assured between the parties; and that upon the termination of such relation, the defendant, by force of the 2d section of the act, ceased to be a member of the corporation; and as by the 8th section, none but members of corporations are liable to pay for losses, the appellant is not liable for losses arising after he so ceased to be a member of the company.

Upon a careful examination and consideration, however, of the foregoing, with other sections of the act, I am satisfied that such was not the intention of the Legislature.

In the first place, it should be remembered that by the express terms of this contract of insurance, the liability of the parties was continuous, running through five years; that of the plaintiff was onerous upon them, in proportion to the time during which the policy by its terms was to continue. Upon the general principles of insurance, they could afford to take the risk for one year only at just one-fifth of the premium that they could afford to take it for five years, and in the same proportion for a longer or shorter period. There may be consid erations which would justify taking risks for long periods at premiums less in proportion than for short periods; such, for example, as getting a larger amount of capital pledged in depo