Hix v. Drury

Oct 15, 1827

Versions:22 Mass. 296

Per Curiam.

It appears that the two depositions went to

the jury by accident. It likewise appears by the answers of eleven of the jurоrs, who were questioned in court, that the depositions were not read by them, and the remaining juror has made affidavit that they were not read by him, nor by any otner juror in his presence. We think it is sufficiently proved that they were not read, and that although the eleven jurors were not sworn to testify, yet that by their oath to give a true verdict they were as much bound to make true answers in court touching their verdiсt, as if they had been sworn specifically for that purpose.1

These papers then having gone to the jury by accident, and not having been read by them, the question is whether there shall be a new trial. We are all of opinion, that if a paper not in evidence is delivered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the jury by design, by the party in whose fаvor the verdict is returned, the verdict shall be set aside, even if the paper is immaterial and this as a proper punishment for the party’s misconduct.2 *302But that is nоt the present case. So where a paper which is capable of influencing the jury on the side of the prevailing party, goes to the jury by acсident, and is read by them, the verdict will be set aside, although the jury may think that they were not influenced by such paper, for it is impossible for them to say what effect it mаy have had on their minds.3 But where a paper which might influence the jury is not read, it is the same tiling as if it had ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not been delivered to them. The verdict therefore is not liаble to objection on th's ground.

In regard to the direction of the judge, the statute of 182.6 was not adverted to at the trial, but the question stood on the common law ; and it is clear upon the authority of Alderman v. French and other cases which have been cited, that the jury should not have been instructed otherwise than they were. As to thе statute, we think it doubtful whether it was intended to be applied to a case аlready pending ; we do not however decide on that ground ; for we are of opinion that the case before us does not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍come within the statute. The second section provides, that in an action for slander, wherever the defendant “ may plead the general issue, and also in justification that the words spoken were true, such plea in justification shall not be held or taken аs evidence that the defendant spoke such words. Nor shall such plea of justification, if the dеfendant fail to establish it, be of itself proof of the malice of such words, but thе jury shall decide upon the whole case, whether such special plеa was or was not made with malicious intent.” This is a great departure from the common law of England and of this commonwealth.* 1 There appears to hаve been a change in public sentiment in regard to actions of slander; but wе are not to go further ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍than the legislature have gone. We are to determine what they have enacted as law. In the passage above recited, such plea of justification evidently means a special plea which is pleaded together with the general issue. The statute was made *303undoubtedly with reference to the decision of this Court, "n a case where the two pleas were pleaded together; as is manifest from the words in the first part of the second section ; аnd ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to say that the provision was intended for a case where there is no general issue, but only a plea in justification, would be to apply it to a case clearly not embraced by the statute.2

Judgment according to verdict

Notes

See Pierce v. Woodward, 6 Pick. 206; Parrott v. Thatcher, 9 Pick 426 Dorr v. Fenno, 12 Pick. 526 ; State v. Hascall, 6 N. Hamp. R. 361; Hackley v. Hastie, 3 Johns. R. 252; Taylor v. Greeley, 3 Greenl. 204; Haskell v. Becket, id. 92.

See Benson v. Fish, 6 Greenl. 141.

See State v. Hascall, 6 N. Hamp. R. 360; 1 Chitty on Crim. Law, (Amer. ed.) 633, 634, and notеs; Rex v. Burdett, 1 Ld. Raym. 148.

This subject has again been reviewed by the legislature, and it has been enacted, that “ if the defendant in any action for slander or for publishing a libel, shall plead in his justification, that the words spoken or published were true, such plea, though not maintained by the evidence, shall not in any case be of itself proоf of the malice alleged in the declaration.” Revised Stat. c. 100, § 19. A still later statute has abolished special pleading entirely, and all matters in defence may now be given in evidence under the general issue See St. 1836, c. 273.

But see Gould on Pl. 432, 433; Cilley v. Jenness 2 N. Hamp. R. 89; Whitaker v. Freeman. 1 Devereux. 280: Jackson v. Stetson, 15 Mass. R. Rand’s ed.) 52, n. (a), 58, n. (a). See Wilson v. Nations, 5 Yerger, 211.