Selleck v. Sugar Hollow Turnpike Co.

13 Conn. 453 | Conn. | 1840

Waite, J.

1. The defendants claim, that the verdict in this case should be set aside, and a new trial granted, because one of the jurors, as they insist, was not an elector, and consequently, not duly qualified to act as a juror. Whether he was destitute of the requisite qualifications, depends upon the effect produced by his removal from this state. Did it destroy ... i - . , , his electoral privileges here ; or merely suspend them, he had his domicile in another state ? If the latter effect only was produced, then the juror possessed the qualifications ; but if he lost these privileges, by his removal from this state, then he would not be qualified to act as a juror, until he had been again admitted an elector.

But further, suppose he was not an elector; can the exception properly be taken after the verdict ? Unquestionably it would have been a valid objection, when the jury were empannelled. But does it furnish a sufficient ground for setting aside the verdict ? In a late case before the King’s Bench in England, one of the defendants, having been convicted upon an indictment for a conspiracy, moved for a new trial, upon an affidavit that a special juror, who served on the trial, was an alien ; and that the fact was not known to him until after the trial; and the court refused to set aside the verdict. Lord Tenterden, C. J., remarked, that he was not aware that a new trial had ever been granted, oh the ground that the juror was liable to be challenged, if the party had an opportunity of making his challenge. The King v. Sutton & al. 8 Barn. & Cres. 417.

But we do not deem it necessary to express an opinion upon either of these questions, because there is another objection to this motion, which must prevail. It is not alleged in the motion, nor does it in any manner appear, that the defendants did not know of this objection, at the trial. If they did, they were bound to make it, at that time : their omission amounts to a waiver. A party cannot be permitted to lie by, after having knowledge of a defect of this kind, and speculate upon the result; and complain only when the verdict becomes unsatisfactory to him.

To entitle him to relief, after verdict against him, he must shew, in his motion, that he had no knowledge of the objection, until after the trial. Orrok v. Commonwealth Ins. Co., 21 Pick. 456. The Queen v. Sullivan & al., 8 Ad. & Ellis, 831. Herbert v. Shaw, 11 Mod. 118.

2. It is also claimed, by the defendants, that the instructions given to the jury, were erroneous, in relation to the application of the payments. If they were, it is difficult to see, from the facts disclosed in the motion, how the defendants have been injured. There was no controversy as to the item of 86 dollars, 50 cents ; nor as to the payments. qqie great question was, whether the plaintiff was entitled to for the services rendered under the special contract. The amount of the verdict shows, that upon that point, the jury found in favour of the plaintiff. Now, whether the jury applied a part of the payments in satisfaction of the small item, and the remainder toward the work done under the contract, or applied all the payments upon the latter account, and included the small item in their verdict, it would seem that the result would be substantially the same, in the one case as in the other. The rule is’perfectly well settled, that a new trial will not be granted for a misdirection, or an omission in the charge to the jury, if the party moving for a new trial has not sustained any injury thereby. Hoyt v. Dimon, 5 Day 479. Williams v. Cheeseborough, 4 Conn. Rep. 356. Johnson v. Blackman, 11 Conn. Rep. 342.

Further, the court instructed the jury, that the defendants, when they made the payments, had a right to direct their application ; and that if they did not make any application, the plaintiff might do it. The instruction, thus far, was unquestionably correct; and no complaint is made against it. Peters v. Anderson, 5 Taun. 594.

But it is said, the court ought to have gone further, and told the jury, in what manner the law would apply the payments, in case no application had been made, by either party. It is difficult to see what more could well have been said upon the subject. At any rate, it does not appear, that anything more was required, at the trial. Had the defendants wished further instructions, it would have been their duty to ask for the instructions ; and having omitted to do it, they cannot now complain of the omission of the court.

In our opinion, the defendants are not entitled to a new trial, upon either ground.

In this opinion the other Judges concurred, except Sherman, J., who gave no opinion, having been of counsel in the cause.

New trial not to be granted.