49 N.H. 213 | N.H. | 1870
The first position of the defendant, taken at the trial, was undoubtedly correct, that the construction of the written contract ivas for the court and not for the jury. But as neither the court nor the jury were called upon to construe it, there being no dispute or doubt about its construction anywhere, that position seems to have no bearing upon the decision of this case.
Defendants second position assumes the whole case, — assumes all the facts to be found by the jury as he would desire to have them, viz., that this merely was obtained by defendant for the town under the written contract. This was a fact which the court could not assume, but which must be found by the jury, and the defendant’s misfortune is, that the jury have found this fact the other way, that this money was obtained by defendant as agent of the town, and not for himself to be bound to the town under the contract, that in obtaining this money of the Great Falls Bank, neither the plaintiff nor defendant understood that he was acting under the special contract in writing, but under some new arrangement made at the time.
The jury having settled that fact in that way, renders the third position of defendant entirely inapplicable to the case.
We see no reason why the instructions given were not entirely correct. It is admitted in argument that the same instructions substantially were correct on the former trial, but it is said that this was because there was no proof of any written contract on the former trial, and that such proof having been introduced on the last trial, the rulings should have been different. But the jury have found here that this money was not furnished under the written contract, and it is difficult to see why it was not proper to leave it to the jury to say, under what contract ft was furnished the same as was done upon the former trial, and the jury have found that this . money was while in the hands of the defendant, the money of the town and not the defendant’s money, as they did on the former trial.
Had the defendant the right to file his demui’rer in this case, as he claims, or was it a matter entirely within the discretion of the court?
As judgment was rendered on the verdict returned at the first trial, this must of course be a review of that action, and such we have ascertained to be the fact; though it is not disclosed in the case or in the arguments. This being the fact, the authorities cited by defendant, tending to show the rights of parties in that regard, in ordinary cases and in original actions, have little to do with the question, because we find that after verdict and judgment, the rights
By the Compiled Statutes p. 494, sec. 8, it is provided that the party bringing a review shall produce in court copies of the writ, pleadings, judgment and all papers used on the former trial. Sec. 9 provides that the review shall be tried just as though no judgment had been rendered, while sec. 7 provides that actions-of review shall be tried upon the pleadings, filed in the original action if any, unless the court upon such terms as they think reasonable shall permit amendments to be made.
The General Statutes have similar provisions, except, instead of the party reviewing being required to furnish copies as before, no copies are now required, as both trials are now to be had in the same court; the review may now be tried upon the original papers already on file, without the necessity of copies, and in the General Statutes sjoeeial provision is made that upon such review or new trial amendments of the writ, pleadings, or other process, may be allowed on such terms as the court deems just. ■
The law was formerly different. In the statute of 1791, regulating trials in civil causes, there was a provision for a review ; but it was expressly enacted in N. H. Laws (1815) 103, that “ such action (of review) shall be tried on the pleas rnáde upon the former trial upon record.”
In the act of June 24, 1813, constituting the supreme judicial court, N. H. Laws (1815) 76, there was a similar provision.
But in the act of June 2, 1829, regulating process and trials in civil causes, after providing generally for a review, there are several special provisions, one of which is, “that in any action of review pending in any court in this state, the justices thereof shall have power to order any amendment of the original writ, record or proceedings in any part thereof, upon such terms and conditions as they may consider just and reasonable.”
And since that time, some similar provision has been retained in all the statutes providing for reviews.
The right of review is granted and regulated by the statute, and the subject of amendments and the admission of new pleas, since any have been allowed at all, is left entirely in the discretion of the court. Burleigh v. Burleigh, 6 N. H. 204; Avery v. Holmes, 10 N. H. 574; Knox v. Knox, 12 N. H. 357 ; Otis v. Currier, 17 N. H. 463 ; Johnson v. Railroad, 43 N. H. 410.
In this case, the court exercised its discretion in disallowing the demurrer of the defendant. It was a discretion clearly vested in the court, and the court having exercised it, has reserved no question here, as to its proper exercise.
But we think it was a very proper exercise of discretion under the circumstances of this case.
In the former opinion, the court simply settled, that if the description of the money was not quite sufficient, still that defect was cured by the verdict. The soundness of that position cannot be
Judgment on the verdict.