for favor, which the law always requires to be made before the jury is sworn, and here it is not made till after he has sworn and acted. If taken at the proper time, it will only remove the juror and allow of another in his place; but, if allowed in this shape, it will invalidate the proceedings of all the other good and unexceptionable men on the jury. If taken at the proper time, the question whether the juror was indifferent or not would have been tried by the triers, but if taken in the form of a plea in abatement, the established mode of trial will be changed for that of a jury of twelve men. It is the most expensive form in which the matter can be presented, and the policy of the law requires it to be done in a summary way. It may be used as an engine of great delay, so that a new indictment may be impracticable on account of the statute of limitations, before the old one comes to be quashed, and guilty offenders will, if they are able, seek impunity under it for their crimes, and make it a refuge against public justice, turning it to ridicule and contempt. Finally, there is no such plea as this to be found among the records and monuments of the law; it is sui generis, not alone without precedent (whereof the books have been filed, if past ages had deemed such matter pleadable), but contrary to all precedents which are the other way. Such are the reasons as they occur to me at present for adopting the general conclusion that this plea is inadmissible in all its parts."

In Doyle v. State, 17 Ohio, 222, it was specially plead to the indictment that one of the grand jury had not the qualifications of an elector, and this was held to be a good plea in bar.

This plea, it will be observed, challenges the competency of the juror to sit at all, in any case, and therein differs from the case at bar, which is simply a challenge to the favor in the particular case. Of Doyle's case, however, we are disposed to speak, as did the court. in 5 Halstead, the doctrine may lead to inconvenient results if carried a single inch beyond the precise circumstances of the very

case.

It will be observed that the authorities are not entirely uniform. on this subject, but we confine our ruling in the present case to the simple proposition that the objection cannot be made upon a plea to an indictment whatever might be properly urged at an earlier stage of the trial.

It is claimed by counsel for Easter that the qualifications of a grand and petit juror are the same. The position is not tenable.

State v. Easter.

Both must have certain things. Both must be good and judicious persons; both must be electors. But there are other requisites for the petit juror not necessary for the other. The various laws on the subject lay down quite a number of causes for which the petit juror may be challenged. They are too numerous to repeat, but may be found in 1 S. & C. 754; 66 Ohio L. 307; 68 id. 4; 69 id. 11. A brief examination of some of these causes of challenge show that they cannot apply to the members of the grand jury. The first is 69 Ohio L. 11, that the party called as a juror was a member of the grand jury who found the indictment. It is obvious that this must apply to the petit jury who tries the case, and no other. The second is, that he has formed or expressed an opinion as to the guilt or innocence of the accused. How can this apply to the grand jury, when they do not know who the accused will be?

Or, again, that he is related within the fifth degree, to the persons injured. This also presupposes a knowledge on the part of the grand jury who the person injured is.

Or, again, if these causes apply to the grand jury, when are the challenges for such cause to be made? Who is to make them? As each case is presented to the grand jury, are the members to be catechised as to their qualifications? Suffice it to say, that these causes of challenge lie specifically to the jurors called to try the indictment. Such is the language of the statute.

The oath taken by the members of the grand jury throws some light upon this question (1 S. & C. 753):

"Saving yourself and fellow-jurors, you shall diligently inquire and true presentment make, of all such matters and things as shall be given you in charge, or otherwise come to your knowledge, touching the present service. * * * You shall present no person through malice, hatred, or ill-will; nor shall you leave any person unpresented through fear, favor or affection, or for any reward or hope thereof."

This language seems to indicate that the grand juror may be called upon to act in cases both of enemies and friends. If the first, his oath is that neither malice, hatred, nor ill-will shall influence his deliberate and impartial judgment. If the last, no considerations of passion or friendship shall disturb the just discharge of his duties.

First National Bank of Barnesville v. Telegraph Co.

The grand jury only presents the charge against an accused person; it does not try that charge. This is for the petit jury, and it is well enough that they are subject to the variety of challenge above specified; but as to the grand juror, his qualifications are simply those the statute has specified.

Exceptions sustained.

FIRST NATIONAL Bank OF BARNESVILLE V. TELEGRAPH Co.

(30 Chio St. 555.)

Negligence-telegraph — damages — intervening cause.

In case of a breach of contract, actual damages not being proved, nominal damages may be recovered.

In case of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties, at the time the contract was made. *

If the telegraph company is in default, but their default is made mischievous to a plaintiff only by the operation of some other intervening cause, such as the dishonesty of a third person, the rule "causa proxima non remota spectatur applies, and the company cannot be made responsible for the loss occasioned by the act of such third person.

CTION of damages for failure to transmit and deliver a telemessage. The opinion states the facts.

A graphic of damage for fanion state it an

J. H. Collins, for plaintiff in error.

J. W. Okey, with whom was A. J. Swaney, for defendant in error.

WRIGHT, J. The First National Bank of Barnesville brought an action in the court below, against the telegraph company, to recover damages, for failure to transmit and deliver a telegraphic message. The bank was located in Barnesville, Ohio. It had done business with one Aaron Lowshe, and had frequently cashed drafts for him, in a small way, prior to February, 1869. In that month,

* See Rittenhouse v. Independent Line of Telegraph, 44 N Y. 263; 4 Am. Rep. 673; Western Union Telegraph Co. v. Graham, 1 Col. 230; 9 Am. Rep. 136 and note, 149, Tyler v. Western Union Telegraph Co., 60 Ill. 421; 14 Am. Rep. 38; Hubbard v. Western Union Tel. Co., 33 Wis. 558; 14 Am. Kep. 775; Manville v. Western Union Tel. Co., 37 Iowa, 214; 18 Am. Rep. 8; Turner v. Hawkeye Tel. Co., 41 Iowa, 458; 20 Am. Rep. 605,

First National Bank of Barnesville v. Telegraph Co.

Lowshe wanted two more drafts cashed, one on Bellis & Milligan, New York, for $1,600; one on Ege & Otis, same place, for $1,400. The amounts being large, and the bank cautious, the cashier wrote to a correspondent in New York, George F. Baker, cashier First National Bank, New York, as follows:

"Would like information in respect to Messrs. Ege & Otis, No. 168 W. W. Market; also, Messrs. West, Titus & Co., No. 129 West street. Are they responsible parties? If not too much trouble, would be pleased to have you inquire of each, if dft., at sight, drawn by A. Lowshe for $1,400 to $1,600 would be paid. If the firms, or either of them, are not reliable for that amt., or if they should be unwilling to accept, please answer by telegram. If all right, need not dispatch. If not right, would like to hear by Saturday evening (13th)."

This letter was dated at Barnesville, February 11th, which appears to have been Thursday. No mention is made, it will be observed, of Bellis & Milligan, on whom the $1,600 draft was drawn.

The letter was received in New York, by Baker, to whom it was addressed, on February 15. It is stated in evidence that the ordinary time of mail communication, between Barnesville and New York, is two days. This advice to Baker probably reached its destination after close of bank hours, on Saturday, and was taken up in the ordinary course of business on Monday morning. On. that day Baker made inquiries of Ege & Otis, on whom the $1,400 draft was drawn, and at 4:55 of that day telegraphed as follows, to the bank at Barnesville :

"February 15, 1869.

"To J. F. DAVIS, Cash., Barnesville, O. "Parties will accept if bill lading accompanies the draft. Parties stand fair. GEO. F. BAKER, C."

This message never was received at Barnesville. There is testimony tending to show that it started to and perhaps reached Buffalo. But it is not traced beyond that point, and the telegraph company give no satisfactory account of what became of it. The one certain fact about it is, that the Barnesville bank never received it. New York not being heard from, the Barnesville bank cashed the drafts, on Monday the 15th, before three o'clock, the hour at which business closed. Lowshe, the drawer, had no money

First National Bank of Barnesville v. Telegraph Co.

in New York at all, either in the hands of Bellis & Milligan, or Ege & Otis, and having accomplished his financial transaction at Barnesville, left the same day for Zanesville, and from thence to other places more remote. The Barnesville bank now claims that the $3,000 was a total loss; and that this loss is chargeable upon the telegraph company, in not sending and delivering the dispatch. They therefore claim to recover this amount in this action.

In the first petition of the bank it is stated that the drafts were discounted between two and three o'clock on the 15th, which would not have been done had the dispatch been reasonably delivered. The answer of defendant, however, showed that the dispatch was not delivered in New York until 4.55; it is therefore entirely obvious that no omission or neglect on the part of the telegraph company could have prevented the cashing of the drafts.

In the last petition of the bank it is said:

"The said drafts were a total loss to said plaintiff, no part thereof having been paid, which said loss would have been prevented if said defendant had forwarded and delivered said dispatch to said plaintiff within a reasonable time after it was received by said defendant at its said office in New York city, as aforesaid.

"If said dispatch had been delivered to said plaintiff before said drafts were discounted the same would not have been discounted, and if it had been delivered to said plaintiff within a reasonable time after the same were discounted, the said sum of $3,000 could have been recovered back by said plaintiff from said Lowshe."

In the view we take of the case the sole question that need be decided is the one of damages. As has been said, had the dispatch been duly sent and received it could not have prevented the bank from giving Lowshe the money; that had already been done. Had it been delivered, however, within any reasonable time, after receipt at New York, then what would have happened? Plaintiffs below say they could have recovered back the amount from Lowshe, and therefore they lost their $3,000 by the negligence of the defendant. The petition does not state how or in what manner they could have recovered the money, but merely asserts the fact to be so. The only facts in evidence showing any intention to take steps to recover the money, or intimating how it was to be done, is the following from the cashier, Davis:

"Q. Would there have been any trouble in the bank giving security in Zanesville in any proceeding to recover the money ?