33 N.H. 131 | N.H. | 1856
The evidence submitted to this court for the purpose of showing what were the proceedings of the judge who tried the cause in empanneling the jury, cannot be considered in the determination of the case. The provision of the case, that testimony may be taken and laid before the court in relation to his proceedings, for such purposes as the court may think legitimate, must be understood to mean that if it shall be deemed competent by this court for the parties to go into proof of what was done by the judge in this respect, then such proof may be adduced.
The facts undertaken to be shown by the depositions are what was said and done by the judge in organizing a jury for the trial
The statements contained in the case upon those matters cannot be modified by proof taken to contradict or vary them, nor can they be supplied by such proof, where he has omitted to state them. If material facts in relation to such proceedings are omitted, or not fully stated, an amendment of the case is the only mode of supplying the omission.
In England, prior to the statute of 8 Geo. II., chap. 25,
By statutory enactments in New-York, New-Jersey, and many other States, the same mode is adopted in organizing the jury ; a new jury in fact being called for every cause, though from a panel returned for the term and for all causes then to be tried. The mode thus prescribed by the statute for organizing the jury must be strictly followed. No discretion is allowed to the judge. The party has the right to a trial by the jury so drawn, and consequently no juror can be set aside by the court upon its own motion, nor upon the motion of a party, except upon being challenged for a cause which the law recognizes as sufficient.
Our statute is silent upon the subject of the mode in which jurors shall be empanneled for the trial of causes in ordinary cases. The statute directs that venires shall be issued for such number of jurors as the court may require ; and when they are in attendance, in obedience to the summons, all subsequent proceedings in relation to forming a jury for the cause are left to the discretion of the coust.
The practice has generally been to have in attendance a sufficient number of jurors to constitute two juries, with a few supernumeraries, to supply vacancies happening from sickness or the incompetency of a juror to sit in a particular cause, and to arrange them at once into two juries. In calling off the jurors for this purpose, they may be called by any rule which the court pleases to prescribe. Sometimes it is done by calling them in the alphabetical order of their names, or of the names of the towns from which they are drawn; sometimes in the order in
The practice has also generally been to maintain this organization of the juries substantially as first arranged, until they are finally discharged, and to try the causes in the order in which they come up for trial before the two juries alternately.
In neither of these particulars, however, has the practice been entirely uniform. In alternating between the two juries, some judges have acted upon the rule that every cause in which the jury have retired to consult upon their verdict, or in which a verdict is taken, even if it be by order of the court, in a cause opened before them, was to be accounted a trial, and the next cause in order was to be given to the other jury; while other judges have confined the practice of alternating to cases in which the jury have been sent out to consult. Probably all judges have departed from the rule by which they have ordinarily been governed, whatever the rule may have been, in cases where it has happened that one of the juries has been subjected to a greatly disproportionate share of duty, or may have been detained out of the court room in consultation upon their verdict, or in taking a view, beyond the time required for the trial of the next cause in order by the other jury. Nor has the practice been uniform to maintain the organization of the juries substantially unchanged. Instances have occurred of breaking up the arrangement first made, in order to make a new distribution of the jurors ; sometimes for reasons arising out of the case to be tried, and sometimes for reasons connected with the jurors themselves. In one instance this was done because it was found that one of the juries, as arranged, was composed of such discordant elements in the peculiar characters of certain of the jurors, that, after several disagreements, there was reason to apprehend they would return no verdict in any case. There is no rule of law and we can perceive no sound principle which forbids that the juries may be rearranged whenever and as often as the court
The party in this State has no right to claim that his cause shall be tried by any particular jury, or to insist that any particular juror shall be retained upon the jury before which the cause is about to be opened, merely because there is no legal ground for challenging him. The statute relating to juries, Rev. Stat., chap. 176, sec. 21, gives him the right to inquire of the juror, upon his oath, as to his disqualification, and prescribes the interrogatories to be propounded to him when the inquiry is moved; but the provision is not to be understood as limiting the power of the court. When, as in this case, the judge discovers that one of the parties has a strong preference for one of the juries, as they happen at the time to be organized, and the other party has a like preference for the other jury, and that it is understood that a trial before either may give to one party or the other a supposed advantage, this may furnish just ground for a rearrangement, in making which the most judicious course would clearly seem to be, to set aside such of the jurors upon both panels as were particularly objectionable to either party, although the objection might not amount to a legal cause of challenge, and to form a new jury, composed of those from either panel against whom no such objection existed.
Several questions are raised by the case upon the exceptions taken by the plaintiffs to evidence introduced by the defendants, which, however, would seem to have become immaterial by the finding of the jury in favor of the plaintiffs upon the second and third issues. These are the questions in relation to the introduction of the entire letter from Mclntire to Austin of the 7th of January, 1845, in relation to refreshing the recollection of the witness Reynolds, by means of the letter from Mclntire to him of the 6th of January, 1845, and in relation to the evidence of the comparative amount of work which could be done upon the Walker loom, and the common hand-loom in use in England.
The testimony upon these points was not of a character to have any bearing upon the fourth and fifth issues, which alone were found for the defendants ; and it cannot be perceived how the rulings in relation to this testimony could have occasioned any prejudice to the plaintiffs, however erroneous they may have been. We do not, however, discover any error in them. They would seem to be correct in principle. As to the letter of the 7th January, it is obvious that it could not be determined by the court, from an inspection of the letter, whether the second paragraph did or did not refer to the same patent right which was the subject of the agreement between the parties. Whether it did or not, was a question for the jury. If it did, then it related to the same subject as the first clause, for that
The attempt to aid the memory of Reynolds by means of the letter of the 6th of January, was properly overruled. To prompt his memory by repeating over to him what Mclntire might have said in his hearing, of precisely the same tenor as the contents of the letter, would probably be conceded to be inadmissible ; and it can make no difference in this respect that the statement was contained in a letter instead of being made orally.
The evidence, showing the amount of work which could be done on a loom of the kind patented, as compared with the hand-loom, would be competent upon the question of the value of the patent; and the plaintiffs, having made that a point, cannot object to the evidence, although the point may he an immaterial one in the case. If irrelevant on that ground, then it would seem to be immaterial in any view, and the verdict is not to be disturbed on that account.
If the testimony of Charles Paul as to the statements of Reynolds was introduced to contradict Reynolds, it was competent for that purpose. The testimony of Reynolds that he had made no sales, and had left no negotiations open in respect to the patent, being material upon the question whether the efforts to sell had proved unavailing, and had been abandoned, and if so, then it was competent to contradict him by proof of his having given a different account of that matter, and the testimony of Paul was of that character. The case does not find that it was introduced for that purpose, but it would seem to be implied from the connection.
But in the instructions given to the jury in relation to the contract entered into between Reynolds and Brettle & Co., we think the court erred. The instructions were that this contract was not warranted by the agreement entered into between the parties, which is the subject of this suit, and that consequently nothing which Reynolds did under it can .be deemed to have been done in the execution of his agency, so far as the defendants are concerned, unless the Brettle contract was made known to the defendants, and they assented that Reynolds might go on under it, and try to make the alterations required by it. The agreement which is the foundation of this suit provides that the plaintiffs, as soon as practicable and convenient, shall send an agent to Europe, for the purpose of exhibiting the invention and of selling the looms and the right of making, using, and vending them, and that the plaintiffs and their agent shall make all suitable and proper efforts to do this to the best advantage. The agreement further provides, that if, in case of their using all proper and reasonable exertions to sell the right in Europe, they shall be unable to sell to the amount of one thousand dollars and all the expenses of the agency, then the defendants agree to repay to the plaintiffs the sum of one thousand dollars, and all the reasonable expenses of the agency, or to convey to them one half of the patent within the United States.
When this cause was before the court upon a former occasion, 3 Foster 471, it was decided that the plaintiffs were not entitled to recover the one thousand dollars, and the expenses of the agency, under this stipulation in the contract, unless notice of the failure to make sales and of the abandonment of efforts to sell, was communicated to the defendants within a reasonable time after the execution of the covenant. It was material, then, in this case to show when those efforts to sell were abandoned, because the determination by the jury of the question whether notice was given within a reasonable time after the execution of the covenant, might depend upon the other question, when were
The views which have been suggested upon this question dispose of the other question arising upon the motion of the plaintiffs for judgment, notwithstanding the verdict upon the fourth issue.
The issue, in the form in which it is presented by the averments of the plea, is the same in substance as if the plea had alleged that the plaintiffs did not, within a reasonable time after making efforts to sell, give notice to the defendants of their failure. The plea alleges that the notice was not given within a reasonable time after the covenant was executed, and in this reasonable time is included such time after the execution of the covenant as would be requisite for making the efforts to sell, and such further time as would be covered by the plea in the other form. The issue would be substantially the same in either form, and such must have been the view of the court in the decision upon the general demurrer to this plea, as reported in 8 Foster 471. The issue, therefore, is not an immaterial one.
Verdicts set■ aside and a new trial granted.