8 R.I. 364 | R.I. | 1866
This action is brought to recover of a stake-holder a sum of $1,000, alleged to have been money deposited in his hands, upon a bet upon the last presidential election, which the plaintiff withdrew before the election, and demanded the money from the defendant.
A verdict was rendered for the plaintiff.
The defendant moves for a new trial, as stated in the, brief, on three grounds: — First. That the verdict was against the law, inasmuch as the verdict was for $1,000 without interest; whereas, if he recovered at all, he was entitled to the interest on that sum. Were this the only ground of objection to the verdict, it might be amended by consent; or the defendant might pay the additional sum, without a verdict.
But he objects, secondly, that the verdict is against the evidence in the cause, in that there was no evidence that the bet was upon any election. The statement of the evidence, allowed by the justice who tried the cause, shows that it was given by the only witness in the cause. By the rule of the Court, no such cause shall be heard unless accompanied by a statement of the evidence submitted to the Judge who tried the cause, within five days after trial, or within such further time as shall be allowed by him. The object of the rule is, to have the evidence settled before the question of law shall be heard, and not to have the jury trial repeated before the Court.
If the statement made under the rule is to stand, or, in other words, if the rule is to be strictly adhered to and enforced, there is an end of this objection.
The counsel for the defendant claimed that he had a right, notwithstanding the rule, to produce affidavits to show that the Judge was mistaken, and that the witness did not testify as to the subject *369 of the bet, and that his statement of the evidence is incorrect in that particular. He was allowed to submit his brief upon the proof and also the affidavits, which he proposed to use, if permitted to do so in the hearing.
We do not feel disposed, nor do we think it advisable, to waive the rule. It is, in our view, a salutary rule, calculated to bring before the Court a correct statement of the evidence, and to ascertain it with greater certainty than by any other mode. The evil which bears upon the defendant, in this case, may be relieved, with proper diligence, by any party, without abrogating the rule. It is a matter of necessity that it be ascertained, before the hearing, what the evidence before the jury was. When the Judge declines to certify, the party should at once move. He may offer the Judge his affidavit at once.
In this case, however we have examined the affidavit proposed to be offered, with those offered upon the same point by the plaintiff, and they show us the propriety of the rule. These affidavits leave the matter in doubt, if it stood upon them alone.
It appears that the evidence, as it is stated by the defendant, was, that the plaintiff testified that the bet was made just before the presidential election, and on the Saturday preceding that election he called on the defendant to withdraw the bet. The defendant was present at the trial, and he knew if the bet concerned that election. He did not offer himself as a witness to testify it did not, and the counsel argued to the jury, in the presence of the person who knew, that it was not upon that election. What would a jury naturally say to themselves? What more natural than to ask, Why, if it were not so, does not the defendant say so?
Suppose it were the only ground for a new trial, that it was not proved upon what election the bet was made, and that, by some omission of the plaintiff, proof was not, in fact, offered? Is it worth while, — does justice require, — that we should send it back to the jury merely to supply that, the fact itself not being in question? Nobody questioned here, at the hearing, that the bet was upon the presidential election, and, in fact, the verdict is right, and justice is done. New trial denied. *370
