Newton v. Booth

13 Vt. 320 | Vt. | 1841

The opinion of the court was delivered by

Bennett, J.

This case comes before the court on a bill of exceptions, and also on a petition for a new trial.

It seerps the defendant pleaded in offset several notes of hand which he had against the plaintiff. In 1834, Geo. Newton and Davenport gave to the defendant their covenant to pay the notes, and, in this situation, George Newton was offered as a witness on the part of the plaintiff, and was excluded by the court below. Is he not interested in the event of the suit, and, therefore, incompetent ? If the plaintiff could establish a sum due from the defendant, equal to the sum due on the notes which have been pleaded in offset, the notes would, by this proceeding, be satisfied. If less, then there would be a satisfaction of the notes, pro tanto. The witness was directly interested in the establishment of the plaintiff’s claim. If established, it in effect went to release him from liability on his covenant. When the notes had been once satisfied, the covenant of the witness to pay thenutv'came valueless. It is said that the record, in this case, could not be used in a suit on the covenant against the witness, on the ground that it is inter alios. But the record would be admissible to show a judgment rendered, as between the parties to it; and if the defendant was found not to be in arrear, it would show a satisfaction of the notes pleaded in offset, and would be con-elusive upon Booth. It is said that the plaintiff in this case had acquired an interest in the testimony of this witness pri- or to his having executed the covenant in 1834, and that he cannot be defeated of that right by the witness’s becoming subsequently interested. But it is to be remarked that the plaintiff was a witness to the covenant of George Newton, and, it being a contract in which the plaintiff had^an interest, it must be taken that he was privy to the contents of that instrument and consenting to its execution. Here, then, is no wanton act of the witness to deprive the plaintiff of his testimony, and if he became interested in the suit in consequence of having performed some act, by the consent or procurement of the plaintiff, he is still incompetent, and was properly rejected by the county court.

It is apparent that the releases, executed on the trial, could not restore the competency of the witness, and, indeed, they are not relied upon by the plaintiff’s counsel. The plaintiff has no legal rights in the covenant to Booth, upon which the release to plaintiff could operate, and, besides, the effect of these proceedings is a direct application of one demand in satisfaction of the other. The release to Booth is inoperative. The ‘covenanter cannot well release himself.

The plaintiff claims a new trial for the reasons set forth in the affidavits of several of the jurors. The object of this testimony is to show that the verdict was assented to, by the jurors, who have given their affidavits, in consequence of some errors having occurred during the deliberations of the jury, as they think, upon subsequent reflection.

There has been considerable conflict in the English authorities upon the question, whether the voluntary affidavits of the jurors who tried the cause, can be received to impeach their verdict, on the ground of misbehavior in the panel.

The question, however, has been long settled in the English courts, and, as I think, upon sound principles, against their admissibility. There has been as little uniformity in the opinions of American judges in the different states, upon this point, and it is not uncommon that there has been a conflict of opinion between the different judges of the same state. In the case of Smith v. Cheetham, 3 Caines’ R. 56, two of the judges maintained that the affidavits of the jurors should be received to impeach their verdict, while Kent, Ch. J. was of tpe contrary opinion. It was subsequently, in the case of Dana v. Tucker, 4 Johns. R. 488, held, that Kent’s 7 7 7, opinion was the better one, and was adopted in that case j3y t|le court. In Connecticut, it had been the practice to admit such affidavits ; but in the case of the State v. Freeman, 5 Conn. R. 350, the rule was changed by a unanimous opinion of the court. In this state, at an early day, in the case of Robbins v. Windover et al., 2 Tyler’s R. 11, it was held that the affidavit of one of the jurors who tried the cause, could not to be admitted to show misbehavior in one of his fellows. The court seemed ready to adopt, as a general rule, that the affidavits- of jurors, respecting the deliberations which led to the verdict,should in no civil action be admitted. In Harris v. Huntington et al., 2 Tyler’s R. 147, the same question was again before the court; and the court say, “ the oftener it is argued, they are the more confirmed in the correctness of former decisions on this point.” In Cheney v. Holgate, Bray. R. 171, the same doctrine is adhered to, and I am not aware that a different rule, to any extent, has been acted upon in this state. In the case in 5 Conn. R., Hosmer, Ch. J., uses this strong language; “ The opinion of almost the whole legal world is adverse to the reception of the testimony in question, and, in his opinion, on invincible foundation.” It may indeed seem strange, as is said in the case of Owen v. Warburton, 1 N. R. 329, by Sir James Mansfield, Ch. J., “ that almost the only evidence of which the case admits should be shut out; ” but he proceeds to say, “ considering the arts that might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence.” The reason given for the rule, in some of the cases, is, that such evidence would expose the jury to be proceeded against criminally for sucii misbehavior. This cannot be entitled to much consideration. If this were the reason, of the rule, it should not extend to exclude voluntary affidavits, nor to cases where the affidavits simply disclosed misbehavior in some of the! other fellow jurors. The rule, I conceive, is founded upon Other and weightier reasons. To admit them would be open the door to the most dangerous practices, and would be most mischievous in its consequnces. The jury would be exposed to have their sympathy wrought upon bv a designing and losing party, and subjected to the ex- . .. m • , . erase of the most pernicious arts. Tampering and intrigue would become the order of the day, and an alarming source of litigation would be opened. If we are to penetrate the re- ° , , r , , . ,. r cesses of the jury room, through the medium oí the jurors themselves, and take cognizance of all that passes in their secret deliberations, it would indeed be difficult to say when a suit had been terminated.

In the case from 5 Conn. Rep. a juror was not permitted to testify that one of his fellows disclosed matters to the jury within his own knowledge, not given in evidence on trial. The case in 2 Tyler, 11, and many others, are to the same effect. In the case of Rex v. Woodfall, 5 Burr, 2667, it is said that, upon a motion for a new trial, the affidavit of a juror cannot be read, as to what he thought or intended upon the bringing in of the verdict, and in Rex v. Thirkell, 3 Burr. 1696, the prisoner had been convicted, and before sentence had been passed, eight of the jurors had signed a paper in the prisoner’s favor, disapproving of the verdict which they had given. Lord Mansfield is reported to have expressed great dislike of such representations, made by the jurors after verdict, saying, that “ to listen to them would be of very bad consequence,” and Wilmot, J. added he thought they should be totally disregarded. In Jackson v. Williamson et al., 2 Term R. 281, the court refused to receive the affidavit of the jurors, made after the trial, showing what their intention was in rendering their verdict, on the ground of its introducing a dangerous practice, and ope which would be productive of infinite mischief. The affidavits of the jurors, relied upon in this case, as furnishing ground for a new trial, are evidently made upon an after-thought. To admit jurors, after having been exposed to the inquisition of the losing party, and upon after-reflection, which may have led them to doubt as to the correctness of their verdict, or even to dissent from it, to detail the proceedings in the jury room, and to testify to matters frequently complex, and, perhaps, not accurately comprehended at the time, or imperfectly recollected, and thus make it a ground of impeaching their verdict, would, in my opinion, form a bad precedent, and of dangerous tendency.

It is not, however, necessary for the court to decide the question in regard to the admissibility of these affidavits of - - - J - the jurors ; and whatever my private opinion, as a member of the court, may be, it is possible there may be some disagree* ment upon this point. As we are all well agreed in the result, that, if the affidavits are received, they furnish no sufficient cause for disturbing the verdict, the decision of the court proceeds upon that ground, and, especially, as in this case there is some disagreement- in the statements of the jurors as to the grounds upon which they proceeded in coming to a result.

The fact testified to by the officer, who attended the jury, can have no effect. The jurors are not judges of the legal effect of their verdict; nor as to its finality, if they misapprehend in either particular, it cannot be assigned as cause for a new trial. 1 Swift’s D. 775. If the misapprehensions of a jury, in regard to a cause being reviewable, were made the ground of a new trial, it would indeed be fruitful of litigation.

The judgment of the county court is affirmed ; and the petition for a new trial must be dismissed, with costs.