11 Me. 495 | Me. | 1834
at a subsequent term, delivered the opinion of the Court.
In this case numerous questions have been presented by the defendant and his counsel, and our attention has, in the course of the argument, been directed to each. Before wo enter upon the examination of those arising on the report of the Judge, and connected with his decisions and instructions to the jury, or the motion for a new trial, as being contrary to evidence or the weight of evidence, or the motion in arrest of judgment, we will dispose of the motion which has been made to set aside the verdict, on the ground, that during the trial, one of the jury was improperly approached by one of the plaintiff’s witnesses, with intent to produce an unduo influence on his opinion as a juror. On this point the facts were these. Silas Warren, one of the jury, testified that during the trial, and, he thought, after the arguments were closed, and before the evidence was summed up by the presiding Judge, Daniel Howard, one of the witnesses for the plaintiff, happened to see the juror as he was on his way to the Courthouse, but without appearing to seek an interview, observed that Simpson, who was a witness for the defendant, had contradicted him upon a certain point, which he named: hut that he himself was right, for he had a memorandum to prove he was correct. The juror said he presumed Howard did not know that he was a juror: that it was all said in a moment. There was no proof that he did know he was a juror, or that the plaintiff was assenting to the above facts or knew of them. If Howard knew that Warren was a juryman, perhaps it was improper for him to make the above remarks; but in order that a verdict should be impeached by improper approaches to a juryman to influence him, It would seem that such an act should be the act of one of the parties, or liis agent, or by his consent and arrangement. I Inst. 227; 2 Roll. Abr. 714; Cro.Eliz. 411; 1 Ventr. 125; Knight v. Freeport, 13 Mass. 218. In this case, Briggs, who tampered with one of the jurors, was son-in-law of Knight, and assisted him in carrying on the cause: and he stated to the juror that the
One other objection to the verdict, of the same general character as the others, is, that the jury misunderstood the instructions of the Judge on the question of damages: in support of which, the case of Sargent v. Black, 5 Cowan, 106, was cited. It appeared that he gave no instructions, properly speaking, but merely stated what seemed to him to be the proper rule; but distinctly informed them that they might adopt that rule or not, as it commended itself to their own judgment. The jury found a verdict conformable to the rule intimated by the Judge; and some of the jury testified that they should not have agreed to such a verdict, had they not, through mistake, supposed themselves bound so to do. If the rule intimated by the Court was a correct one, then the mistake is of no importance. At present we add nothing further on this point; nor until we consider the correctness of the rule, in another part of our opinion.
We now proceed to the consideration of those objections which are founded upon the record and the report of the Judge; and as far as we can, we shall proceed in the order of time in examining them. The first of these objections relates to the amendment of
The next objection, in the order of proceeding, is to the instruction of the Judge, as to the question of damages, and the plaintiffs right to sell tickets after the lottery was drawn. With respect to this last point, little need be said. We think the instruction was correct: if the purchaser of the ticket acted fairly, and the plaintiff, at the time of the sale, was ignorant of the result of the drawing, why should not the transaction be valid ? If an owner of a ship causes her to be insured after she is lost, the policy will be void on the ground of fraud, if he knew of the loss at the time the policy was effected; but if he was ignorant of the loss and acted fairly, the policy will bo valid. We do not see any difference in principle between the two cases. As to the instruction on the subject of damages, it is contended that they were incorrect: that the damages allowed under the influence of the instruction were too remote and not to be considered either as necessary or immediate. It does not appear that the plaintiff sold on the 27th of April, any other tickets or parts of tickets, except the quarter he sold to Lane, or that he had any applications to purchase or any prospect of selling any. This circumstance should be taken into consideration when examining the correctness of the instruction and the question whether the damages were immediate or remote : if there was no prospect or probability that he would have sold the quarter, if the letter containing the prize list had been delivered to the plaintiff when demanded, then it would seem to follow that the damage w'as the immediate consequence of the non-delivery of it: Now what can be higher proof that there was no such probability and prospect, than the
The defendant has further contended that it was the folly of the plaintiff to pay' the prize: that he should have retained the money in his own hands, and contested the claim of the person who drew the prize, or have sought to recover the money back from him. These, and one or two other observations of a similar character, must be considered as mere arguments: whether they are in themselves important or not, we need not now inquire : because no instruction on any of these points was requested, and no principle of law in relation to them is reserved. We therefore forbear an examination of the numerous cases cited by the defendant in support of his objections and reasoning as to this part of the cause ; merely observing that the facts before us do not show that the purchaser of the quarter knew any circumstances, rendering him a fraudulent purchaser; or if he did, that the plaintiff was apprised of his possessing such knowledge. He had an unquestioned right to claim damages of the defendant.
The next question is, whether the verdict is against evidence or the weight of evidence. According to the decision in Dunlap v. Munroe, the evidence reported to us, clearly does not support either the first or second countfor, as we have before stated, both those counts charge the defendant personally, as having himself done the wrongful act or been guilty of the official negligence
The next question presented for consideration is a motion in arrest of judgment, so far as it respects the third, fourth and fifth counts. The verdict against the defendant is a general one ; and at common law, in such a case, if any one of the counts is bad, judgment must be arrested ; at least, this is the. general rale. But this principle of the common law has been abolished by the act of March 11, 1830, ch. 463, which provides “that, when a general verdict is or may be rendered for the plaintiff in a suit in which some of the counts are bad, and any one is good — the judgment shall not, for such reason, be arrested or stayed, or be subject to reversal on writ of error.”
We have already quoted a part of the opinion of the Supreme Court of the United Stales in the case of Dunlap v. Munroe, concluding with these words: “ If it is intended to charge a postmaster for the negligence of his assistants, the pleadings must be made up according to the case : and his liability will then only re-
. Does not this count contain an explicit and direct charge of neglect on the part of the defendant, in not properly superintend
The result is that there must be judgment for the plaintiff.
The motions for a new trial and in arrest of Judgment are both overruled; and there must be
Judgment on the verdict.