Leach v. Wilbur
91 Mass. 212
Mass.
1864
Check Treatment
Dewey, J.

1. The plaintiff having put into the case his discharge in insolvency, for the purpose of showing want of proba- ¡ ble cause in the suit instituted by the defendant, it seems quite clear that, any evidence tending to invalidate the discharge was relevant and proper.

2. The evidence of the witnesses as to statements made by the plaintiff was competent.

3. The instruction to the jury upon the subject of damages was sufficient, in the absence of any request for more specific directions.

4 No sufficient ground is shown for sustaining the exception to the ruling of the court overruling the motion of the plaintiff for a new trial on account of the alleged misconduct and irregularity on the part of the jury and the officer having charge oí *214them. To sustain the exception, the plaintiff must show that the court was, by the rules of law, required to set aside this verdict. But in our opinion the facts present no such case. That an irregularity occurred must be conceded, as the more proper course for the officer would have been to decline giving any answer to the inquiry of the juror. But there was no officious intermeddling on the part of the officer, nor any attempt or previous purpose on his part to hasten the jury to an agreement as to their verdict. His answer to the inquiry of the juror affirmed nothing but his want of knowledge how long the jury would be required to remain together. The defendant may properly object to the motion to set aside this verdict, there being no evidence of any design on the part of the officer to favor either party, or that any such effect was produced by this reply. If the conduct of the officer was irregular, he might properly be punished therefor; but the facts as stated well authorized the presiding judge to refuse to grant the motion of the plaintiff to set aside the verdict for this cause. Commonwealth v. Roby, 12 Pick. 520. Exceptions overruled.