| Conn. | Jul 15, 1849
The question here arises upon a motion in arrest of judgment, which alleges, that one of the jurors in the cause, was the father of one of the stockholders in the Quinebaug Bank, the prevailing party in the action; of which fact the opposite party was ignorant, when the jury was impanneled.
Motions in arrest of judgment, in this state, for causes not apparent of record, are, in truth, only applications for new trials, and are so called and so treated elsewhere. And when such motions prevail, a venire facias de novo is awarded. We see no occasion, therefore, to apply different principles to these different modes of applying for new trials.
The rule is well known, that a petition for a new trial for extrinsic causes, will not be sustained, if the ground of it existed at the time of trial, and was either known to the petitioner, at the time of trial, or might have been known by him, by using due diligence. 1 Sw. Dig. 816. (Dutton's ed.) The rule is a salutary one, and is as applicable to motions in arrest of judgment filed in court, as to petitions for new trials under our statute, duly served and returned into court.
There is no doubt but the cause of objection to the juror, alleged in this motion, furnished a legal ground of principal challenge, if it had been made in due time; but it was of such a nature that parties might well waive it. 3 Co. Litt. 519. (Day’s ed.) Mellor v. Spateman, 1 Saund. R. 344. 11 Petersdorf’s Abr. 74. But it does not appear, by any averment in this motion, that the defendants used any diligence, or made even the ordinary enquiries of the jurors themselves, or otherwise, as to their qualifications; although from the fact that a banking corporation was the plaintiff, consisting of numerous stockholders, they might well suspect, either that some stockholder, or one or more of their many relatives, might be found upon the jury. This could have been ascertained, by a moment’s enquiry. Instead of making this enquiry, when called upon by the court for objections to jurors, as is usual in our practice, or at any time before; the defendants, as we may presume, preferred to take the risk of a verdict, and if it should be against them, then to look about for objections. There can be but little difference, in legal effect, between the actual knowledge of this relationship, by the defendants, at the time of the trial, and their gross negligence in not ascertaining it. And it would be unjust to subject the plaintiffs to the expense of a new trial, by reason of such negligence; especially, as they might well have believed, from the trivial nature of the objection, that the defendants intended to waive it. If an enquiry had been made of the jurors, and this relationship had not been disclosed, or other reasonable pains had been taken, our opinion would have been otherwise.
In the case of King v. Sutton & al., 8 B. & Cress. 417. (15 E. C. L. 252.) Lord Tenterden, Ch. J., said, “ that he was not aware, that a new trial had ever been granted, on the ground that a juror was liable to be challenged, if the party had an opportunity of making the challenge.” And this was said in a case where the ground of challenge was not known to the party until after the trial. And we under
It is said, that the early case of Tweedy v. Brush, Kirby, 13., is opposed to this opinion; but the question here made was not suggested in that case.
For the reasons now stated, the court will advise, that the motion in arrest of judgment be overruled.
Motion in arrest overruled.