4 Ky. 398 | Ky. Ct. App. | 1809
OPINION of the Court, by
— Two ob* jections are made to the proceedings in this case ; the one diat the declaration has not avered the steers and cows killed and shot by the appellant below, to have f,een Df ⅛6 proper goods and chattels of the plaintiff %. the other that the court erred in overruling the motion for anew trial. It appears that this motion was founded, 1st, on a suggestion that the jury had been guilty of misconduct in the manner of finding their ver-diet ; 2dly, that the defendant had been surprised by (⅛ introduction of material testimony, which it was impossible for him to foresee, but the effect of which the defendant could now do away.
To SUpp0rt the first ground the defexidant below of-r , 1 1 . , r r i • ^ to prove by two witnesses, that lour ot the jurors had declared that the verdict was for a greater sum they thought ought to have been given; and that the verdict was found by adding together the several sums which each juror was inclined to find, and dividing the amount by twelve : which testimony the court re- . * * ⅝ . jseted for very good reasons. The said defendant then moved the court for process to bring in the jurors, or a majority of them, to testify as to their “ misconduct’*
The objection to the declaration is too nice and technical, especially after verdict. The cattle are stated by the plaintiff to have been “ his” ; this use of the pronoun in the possessive case, conveys a clear idea of property in the plaintiff to the steers and cows, and the plaintiff ought not to have had a verdict, unless he had proved property in them»
The exceptions to the opinions delivered by the court on the subject of the misconductcharged upon the jury embrace three considerations ; 1st. the manner of making up the verdict; 2dly. the after opinions of some of the jurors ; Sdly. the mode proposed of coming at the two former points. Upon these subjects little need be said after the full discussion which they underwent in the case of Taylor vs. Giger,
The statement of surprise to which the defendant below “ offered?” to swear, is totally insufficient; the affidavit should have set forth distinctly the testimony with which he was surprised, and the means by which he could counteract it on another trial, that the court themselves might have judged not only of the probability of a surprise, but of the efficiency and fairness of the evidence proposed to be used by way of re-action in another trial. But we cannot forbear to disapprove of the mode in which this motion seems to have been conducted ; the defendant “ offered to make affidavit,” — Surely the court ought never to set such a snare for the conscience, as to adjudicate upon the “ offer,” and if they
Har. 586
In Phillips vs. Baxter, the court Below overruled a motion for a new trial, grounded upon the affidavits of three of the jurors, that the verdict was made up by dividing by twelve, wheteby the refult was 79 dollars, inftead of a much ("mailer sum which they had contended for : that they were at the tíme and yet are dissatisfied whh the verdict — 'the decifion of that court was affirmed in this, on the 30th of this month — -upon the authority of Taylor vs. Giger and Heath vs. Conway.