Dole v. Erskine

37 N.H. 316 | N.H. | 1858

Sawyer, J.

When an action is referred to a commissioner, under the statute of 1850, chap. 1210, each party is required to file a statement of the facts which constitute his case; and it is made the duty of the commissioner to try the questions of fact so raised, and to report to the court such of them as he may find to be proved upon the hearing before him. On the return of his report, the court is to render such judgment as is warranted by the facts reported, unless either party shall elect to try the case by a jury; in which ease, such party is to file a statement, in writing, of the particulars in which he expects to change the result, and the verdict is required to be specifically upon the facts put in issue by the statement. The court is then to render such judgment as may be warranted by the facts so found.

It is obvious that the statute contemplates the finding, by the commissioner, of the facts in the case, and the rendering of judgment upon them as upon a special verdict, unless an issue be raised for the jury upon some of the facts reported. The mode in which the issue is to be raised, is by the statement of particulars in which the party expects to change the report, by a finding of the jury at variance with the report in the particulars embraced in the statement. If the jury sustain the report, by finding the facts put in issue by the statement of particulars in accordance with the report, the report stands unaffected by tbe trial before tbe jury. But if tbe finding/'of tbe jury is at variance with the facts as reported by tbe commissioner, in tbe particulars embraced in tbe statement, then tbe facts found by tbe jury are, to be considered as modifying or correcting tbe report.; Tbe facts, so found by tbe jury, being considered as inc orporated into tbe report, in place of those found by tbe commissioner in reference to tbe matters put in issue by tbe statement of particulars, sucb judgment is to be rendered upon tbe report so modified as tbe facts will warrant.

Tbe report, in tbis case, found Cbase not guilty. As to bim tbe plaintiff made an issue to tbe jury, by filing bis statement of the particulars in which be expected to change tbe result, setting out that tbis defendant was guilty as alleged in tbe writ, and that tbe plaintiff sustained greater damages than those alleged in tbe writ. Tbis form of statement is not, perhaps, technically accurate, but it may be considered as substantially all that is required. It is, in effect, a statement that tbe plaintiff” expected to change tbe result upon tbe trial by tbe jury, by proving to them, and by their finding, that Cbase was guilty as alleged, and that tbe plaintiff was entitled to damages, as against him, equal to those claimed in tbe writ. If tbe form of tbe statement was objectionable, tbe objection should have been made before proceeding to trial. It was substantially sucb as to make an issue upon the finding of tbe commissioner, that Cbase was not guilty, and necessarily upon tbe question of damages to be assessed against bim, if be should be found guilty. It is too late to raise tbis objection to tbe form of tbe statement, after verdict.

So, also, in reference to tbe other defendant, Erskine, tbe report finds that be is guilty, and finds tbe damages, as against bim, to be $15. Tbis defendant made an issue to tbe jury, upon these findings, by filing bis statement of tbe particulars in which be expected to change tbe result: namely, by showing that he was not guilty, and that, as to him, the plaintiff was not entitled to damages'to th,e amount found by the commissioner. ■

The second point set forth in the plaintiff’s statement of particulars, to wit, that he sustained greater damages than those alleged in his writ, may also properly be considered, as in substance, a statement by him of the particular in which he expected to change the result, as to this defendant. The jury have assessed the damages against both defendants at $175. It must be understood that the damages alleged in the writ are equal, at least, to this sum. The statement of the plaintiff is, therefore, in effect, as to Erskine, a statement that he expected to change the result as to him, by proving to the jury, and by their finding, greater damages than those found by the commissioner.

The question of damages, as to both defendants, was thus made an issue to the jury.

The testimony of Sperry was properly rejected. The familiar rule governing in the production of evidence, is that it must be confined to the point in issue, thus excluding all evidence of collateral facts, or those which, are incapable of affording any reasonable presumption or inference as to the principal matter in dispute. Here, the matter in issue between the plaintiff and Chase, the defendant offering the testimony, was an alleged assault in 1854. The testimony offered was of a conversation between the plaintiff and witness, held from one to three years before the alleged assault, in reference to another distinct transaction between the plaintiff and the other defendant, Erskine, of a date anterior to the conversation, and in no way connected with the alleged assault, or with any of the circumstances in which .it originated, or by which it was attended. If an assault were committed by the plaintiff upon Erskine, prior to the assault in question, having no connection with it or with any of its circumstances; or if a state of enmity between them resulted from the first assault, which continued down to the time of the last, these facts could furnish no just ground for the inference that the defendant, Chase, did not assault the plaintiff", as alleged, nor that the plaintiff committed the first assault, upon the occasion in question, upon Erskine, nor that Chase interfered between them to prevent a breach of the peace. They were collateral matters, having no relevancy to the issue.

It is also clear, that there is no ground on which the testimony could have been received in mitigation of damages, unless the principle be recognized that Chase should be held to pay less for his assault upon the plaintiff, because the plaintiff1 had formerly been guilty of an assault upon a third person.

Nor is the testimony any the less incompetent, because similar testimony, from other witnesses, had been introduced, whether by Chase or Erskine, without objection from the plaintiff. A party is at liberty, if he please, to waive objection to irrelevant testimony, when offered by his adversary, from the mouth of one witness, and to object to evidence of the same facts, when offered from another source. If irrelevant, it is to be excluded by the court when seasonably objected to, although like testimony may have been received because not objected to. Under the provisions of the Revised Statutes, chapter 188, depositions, to be used in the trial of civil causes, are admissible only when some one of the causes exist for the taldng which are specified in section 13 of that chapter ; namely, when the witness is sick, is old and infirm, lives out of the State, or more than ten miles from the place of trial, and when he is about to leave the State, and not to return before trial. One of the particular cases so specified, and which renders the taking necessary, must exist at the time of taking. Section 20 requires it to be set forth, among other things, by the magistrate, in his certificate, as the cause of caption. All of the cases specified in section 13 are such as may exist at the time of taking, and one of them — being about to leave the State, and not to return before trial, cannot be predicated of the time of trial, but must, from the nature of the ease, be referred to the time of taking. Under the Eevised Statutes and under the preceding acts of December 31, 1828, and of February 9, 1791, of which the Eevised Statutes are substantially a reenactment, it has always been held that the cause must exist at the time of caption, and need not at the time of trial. But by the enactment of December 26, 1848, chapter 704, a material change of the law was made in this respect. Section 1, of this act, provides that the deposition of any witness, in a civil cause, may be taken, and may be used on the trial, if, at the time of trial, the witness has deceased, is insane, old and infirm, sick or unable to attend court, or lives out of the State, or more than ten miles from the place of trial. The cases thus enumerated, in which depositions may be used, are all such that they may exist at the time of trial, and two of them — the death and insanity of the witness — can arise only at that time, and not at the taking. This act omits all reference to the case of the witness being about to leave the State, and not return before trial, leaving that case, as it stood before, under the operation of the Eevised Statutes. It is obvious, therefore, that by this act, it was intended either to provide that depositions, taken under the provisions of the Eevised Statutes, for some cause therein specified, might be used on the trial, if some one of the cases enumerated in this act then existed, although the cause of caption, certified by the magistrate, had ceased to exist, or that it was intended to give it a wider application, by authorizing depositions to be taken, de bene esse, without the existence of any of the causes of caption enumerated in the Eevised Statutes, and to be used on the trial if either of the grounds for admitting them should then exist, which are enumerated in this act. The object of the act is undoubtedly to enable parties to reduce the testimony of their witnesses to writing, in the form of depositions, and thus guard against the hazard of its loss, by reason of the subsequent death or insanity of the witnesses, and to avoid the expense and embarrassment of procuring it, when they have become old and infirm, sick, and unable to attend court, or have removed out of the State, or to some place remote from the place of trial. An act of this remedial character is to be construed liberally ; and in order to give full effect to its provisions, it must be held that it was intended to authorize the taking of depositions at the pleasure of the party, without the existence of any of the causes of caption enumerated in the Revised Statutes; their admissibility on the trial depending upon the existence, then, of a state of facts, such as are specified in the act, as the ground for using them. Upon this view, section 20 of this chapter of the Revised Statutes remains unaffected by the act of 1848, as to depositions taken for the cause that the witness is about to leave the State, and not return before trial. Whether the provision of that section which requires the cause of taking to be certified by the magistrate in the caption, is to be considered as still in force in reference to depositions taken da bene esse, under the act of 1848, or whether, as to such depositions, the provision is to be considered as repealed, on the ground that the provisions of this act are repugnant to that, is unnecessary to be decided in this case. If it is in force, the cause of taking is here certified in the only mode in which it could be done conformably to the facts. In such case, the cause of caption can be nothing more than the object and purpose which the party has in view in taking, namely, that he may use the deposition on the trial, if the contingency shall then arise upon which its admissibility depends.

It is moved to set aside the verdict, for the alleged misconduct of a juror. The evidence in support of this motion consists of the testimony of Nathan H. Gould, a nephew of the defendant, Erskine, who says that the juror in question spoke to him afeput the affray soon after its occurrence ; that the witness asked him which of the parties was most to blame, to which he replied that, according to what Hurd stated, he thought Erskine was. The juror denies that he had such conversation, or that any person of the name of Hurd communicated any thing to him about the affray. It is not clear, upon the evidence, that _ the juror made the statement imputed to him ; but if he did, it furnishes no ground for disturbing the verdict. The juror was interrogated, at the time he was impanneled, and admitted that he had heard the subject talked about, but stated that he had formed no opinion upon the merits of the case. If the statement was made, as testified to by Gould, it can hardly be said to amount to the • expression of an opinion, or to indicate any bias. A remark of that kind might have been made three years before the trial, as was this, if made at all; and the occasion of making it, the information on which it was founded, and all impressions on his mind, in relation to the subject, have disappeared. Upon the evidence, such was the fact in this instance, if the conversation ever occurred as stated.

Upon all the grounds of exception taken, the plaintiff is entitled to judgment upon the report, as modified by the verdict, against both defendants for the amount of damages assessed'by the jury.