ON (JEETIOBABI.
It is in the discretion of a magistrate, whether to admit a witness under *48814 years of age. Ifc is not necessary to ask an affirming petit juror, if he be conscientiously scrupulous of taking an oath.
Griffith, for the plaintiff in certiorari,
moved the reversal of this judgment.
1st. The action was in trover. The state of demand set out that the plaintiff below had lost a steer, and that the defendant had found him, and converted him to his own use.
Mr. Griffith contended, that although the allegation of these facts would be sufficient to ground an action on, in the courts of common law, yet it was not sufficient in justices’ courts. That the loss and finding was a fiction, and that the justice could not take cognizance of fictitious actions.
[*] 2d. The justice rejected a witness on the trial; as to which it appeared by his return, that the party offering the witness, acknowledged that he was but 13 years of age; the justice questioned him in order to discover his capacity and understanding, after which, he rejected him as incompetent. The justice, in his return, stated some circumstances which induced him to decide against the capacity of the witness, which Mr. Griffith contended were insufficient.
3d. The justice, in his original return to the certiorari, had not stated whether he had asked the jurors who were affirmed' in the cause, whether or not they were conscientiously scrupulous of taking an oath, before they were affirmed.
Mr. Griffith, at the last term, took a rule on the justice to return the fact. To this rule, the justice had returned, that he did not ask the jurors who were affirmed in the cause, at the time they were affirmed, [678] whether or not they were conscientiously scrupulous of taking an oath; but that he knew them to be so, having frequently affirmed them before; that at a former time, they had declared to him, that they were conscientiously scrupulous of taking an oath. Mr. Griffith contended, with great earnestness, that the jurors *489liad not been legally qualified. That at common law, all jurors must be sworn, and although this had been dispensed with by the statute, yet it was only in cases where the jurors were conscientiously scrupulous of taking an oath, and that this fact ought to be made out and appear on the record.
Pwing,
on the other side, was stopped by the court.
We are all of opinion, that this judgment be affirmed. As to the rejection of the witness, it was a matter of discretion in the court below, which cannot be reviewed by a court of error.
I am perfectly satisfied with the proceedings below. As to the witness, he was under [*] 14 years of age, and prima fade, incompetent. The justice examined him as to his mental capacity, and was not satisfied. How can wc say that he did wrong ? It is not a subject of review in error.
Judgment affirmed.
3 N.J.L. 931
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