41 Vt. 205 | Vt. | 1868
The opinion of the court was delivered by
On the argument of these exceptions three questions only ape insisted upon by the counsel of the defendants, the exception as to the correctness of the charge to the jury, being abandoned.
I. It is insisted that the county court had not jurisdiction of .the cause, but should have dismissed it on the defendants’ motion.
In the present case, the matter in demand and in controversy was, as indicated by the principle of the cases referred to, the amount of the plaintiffs’ claim, as unaffected by unintentional errors not known or discovered when the action was commenced. In such cases the jurisdiction of the court would be no more af-febted by such error in this form of action upon the facts, than it would be by the disallowance on trial of a portion of a claim which in the aggregate was within the apparent jurisdiction of the court, for any other cause or reason. The criterion is the amount of the matter in demand, as distinguished from the amount recovered. The court were, therefore, correct in refusing to dis-nliss the action.
II. The defendants also insist that the verdict of the jury should have been set aside, for the reason that one of the jurors, was not sworn before it was given in court. On- the trial the defendants had the aid of several counselors, and the motion is supported by the affidavit of only one of them, who testifies that he was ignorant of the fact that the juror was not sworn, until after the trial closed.
The fact that the juror was not sworn, was an irregularity the party might waive, as necessarily it could not affect the fairness of the trial. The juror may have acted as conscientiously and as impartially in the discharge of his duty as a juror, as he would have done under oath. It is not shown that he did not. This being a matter, then, that a party may waive, having a knowledge of the fact, we are not disposed to be more strict or to apply a different rule than applies to a case of known cause of challenge to & juror, which a party waives, or neglects to bring to the attention of the court. A new trial will not be granted for that. Jeffries et al. v. Randall, 14 Mass., 205. But without making any question as to the sufficiency of the cause alleged in point of law, making it
III. The application to the court to receive additional affida-¡ vits after the decision was announced, was addressed to their dis¿ cretion. The refusal to receive them, is a point that is not. subject to exception.
The judgment of the county court is affirmed.