The opinion of the court was delivered by
Poland, J.
1. The first question in this case is as to the admissibility of the selectman of Peacham, offered as a witness. We see no reason, why he was not properly admitted. His interest as an inhabitant and tax payer of the town is removed by statute; and the mere fact, that he was an officer of the town, and, as such, assisted in the commencing and prosecuting of this suit, could not make him any more legally interested ; — it was an objection to his credibility merely, and not to his competency. The suit must be taken, of course, in the absence of any thing appearing to the contrary, to have been properly commenced, and duly authorized by the town, or its proper agents; and the court would not presume it to be otherwise.
2. The highway surveyor of the district, where the defendant claimed to have sustained the injury, was introduced as a witness *518for the plaintiffs, though objected to by the defendant. It has been decided, that, in a suit against the town for an injury sustained by want of repair of a road, or bridge, the highway surveyor of the district, where the injury was received, is not a competent witness for the town. This is upon the ground, that the recovery would be evidence, to some extent, in any subsequent suit in favor of the town against such surveyor, upon the statute, for not repairing the road. Yuran v. Randolph, 6 Vt. 369" court="Vt." date_filed="1834-03-15" href="https://app.midpage.ai/document/yuran-v-inhabitants-of-randolph-6571648?utm_source=webapp" opinion_id="6571648">6 Vt. 369. In such a case the question, whether the road is out of repair, is always necessarily involved, and must of course be determined. The present action, so far as appears from the record, involves no such inquiry. This money is sought to be recovered back on the ground, that it was obtained from them by the fraud of the defendant; and a recovery might be had either way in entire consistency with the road being out of repair, or otherwise. Neither do we discover, how this recovery could, by any possibility, be used as evidence, either for or against the surveyor, in any subsequent suit, between himself and the town, in relation to his liability for not repairing the highway. If the town recovered in this suit against the defendant, the effect would be to annul the settlement and remit the defendant to his former right of action against the town for the injury he sustained, if any; and the surveyor is in no way relieved from any liability he might be under to the town. We think, therefore, that there was no error in admitting him to testify.
■3. The defendant, after verdict for the plaintiffs, moved to set ¡aside the verdict and for a new trial, upon the ground, that a letter, written by Mr. Mattocks, his attorney, to one of the selectmen of Peacham went to the jury, among other papers in the case, without having been read on the trial. On inspection of this letter it-seems to be a mere “ dunning letter,’’ written to the selectmen, .threatening a suit, if the defendant were not settled with. It is difficult to .see what influence this could have had upon the case, even if the letter had been new to the jury; but the exceptions state the fact of such a letter having been written by Mr. Mattocks and received by the selectmen, and the contents of the letter had been proved at the trial before the jury. It does not seem possible, that a mere inspection of the letter, after this full knowledge of its existence and of all it contained, could have had any influence upon the *519minds of the jury. We think, that, in order to grant a new trial for such a cause, the paper should have conveyed some information to the jury, which might, by some reasonable intendment, have had an influence upon their verdict; and such would seem to be the doctrine in Massachusetts and New Hampshire, as quoted by the defendant. This motion was addressed rather to the discretion of the county court, and we see no reason, why their discretion was not properly exercised in denying the defendant's motion.
Judgment of county court affirmed.