20 Tex. 320 | Tex. | 1857
Agreements of counsel respecting the conduct of causes in Court are not to be viewed in the light of contracts, which the Court is bound to enforce. They are rather to be treated as affording the rule of practice, in so far, in the parti
It is insisted that the setting aside of the agreement operated a surprise upon the defendant, and that on that ground a continuance should have been granted. But the continuance was asked to obtain time to make up the pleadings and prepare the defence. This was answered by the offer of the plaintiff’s attorney to proceed to trial upon the answer, which, it seems, had been intended to apply to this case, to be prepared for the case afterwards. This the Court might well deem reasonably to have answered the purpose for which the continuance was sought; and that having been done, there was no error in refusing a continuance.
It cannot be doubted that the verdict'was fully warranted by the evidence, under the charge of the Court—which was not unfavorable to the defendant—if the plaintiff’s witnesses were to be believed. And that was a question exclusively for the jury. They were the judges of the credibility of the witnesses, and the weight of evidence. There is no case in which this Court has undertaken to control the verdict of a jury upon such a question.
The remaining objection to the judgment, which relates to the
Admitting the right in general, the question here is whether, where the parties have consented that the jury, when they shall have agreed upon their verdict, may return it sealed to the Clerk in the recess of the Court, and disperse, and they afterwards come into Court to have their verdict published, it is the right of a party to have them polled to ascertain, not whether it was their verdict when sealed and returned to the Clerk, but whether they are still of the same mind. This, it is conceived, is a very different question from that of the right to poll the jury where their verdict is returned by them into Court without their having been permitted to disperse.
The practice of returning a sealed verdict is comparatively modern. Formerly the jury were not permitted to separate until their verdict was returned into Court, and in order to enforce unanimity they were deprived, for the time, of the necessaries of life. But this severity has been relaxed, and has given place, in modern times, to a more enlightened reason; and the relaxation
The sealed verdicts treated of by the authorities generally, are not in .cases like the present, where, by authority of the Court and. consent of parties, the jury have-returned their verdict sealed to the Clerk.of the Court. They are where the jury having sealed their verdict in their room, afterwards come into Court and vary its terms; and then, it is said, the latter is the true verdict;, (10 Bac. Ab. Tit. “Verdict” (F);) or where, after having thus -sealed their verdict, without the permission of the Court or. consent of .parties, they disperse, and afterwards reassemble and change it.; and then, it is said, as we have seen, that such altered verdict will not be received. (8 Ohio, 408.) But where .the parties have consented that the jury might return their verdict. sealed to the Clerk, we think -they must be deemed impliedly to have consented that.the verdict so returned, if in truth agreed to by all the jurors at the time, should be received without further question, or, the reservation to the jury of the right to change it after having dispersed- with their consent, and heard the out-ohdoors opinions of the parties and their friends. Such a practice would manifestly lead to abuses; and the consequence would be that there would be no safety in permitting or consenting to such verdicts, and though a very convenient practice, it would become too dangerous to be tolerated. Indeed it would be better not to allow the practice, at.all, than to permit it with the reservation of the right claimed in this case. In Nichols v. The S. Man. Co. (4 Foster, 439) it was said “ The permission to the jury to seal up their verdict and separate before their verdict is returned into Court, is given here only by consent of parties. Such consent operates as a waiver of any right which would be practically inconsistent with such permission. It would be most unreasonable' to permit a verdict to be rejected because of a change of opinion, by a juror who had deliberately agreed to it, after he had been exposed to the solicitations of the parties, or other improper influences.” So we think in the present case. And we conclude that by consenting to the return of the verdict in this manner and the separation of the jury, the parties must be held to have waived the right to have the jury polled, unless it be for the purpose of ascertaining whether they were all agreed
Judgment affirmed.