Baker v. Jacobs

• Decision Date: 21 December 1891
• Citation: 23 A. 588,64 Vt. 197
• Parties: THOMAS J. BAKER, APLT., v. JOSEPH JACOBS
• Court: Vermont Supreme Court

23 A. 588

64 Vt. 197

THOMAS J. BAKER, APLT., v. JOSEPH JACOBS

Supreme Court of Vermont

December 21, 1891

GENERAL TERM, OCTOBER, 1891

Assumpsit. Trial by jury at the December term, 1890, Lamoille county, Ross, J., presiding. Verdict for the plaintiff. After verdict the defendant moved to set aside the same. The court granted the motion as a matter of law and not discretion. The plaintiff excepts. The case appears in the opinion.

Judgment affirmed and cause remanded for a new trial.

P K. Gleed, for the plaintiff.

OPINION

THOMPSON, J.

In the County Court, the jury returned a verdict for the plaintiff. Immediately after the verdict was returned the plaintiff directed the deputy sheriff who had had charge of the jury to get them all together at the American House in Hyde Park saying that he wanted "to pay the cigars." Thereupon the deputy sheriff informed some of the jury that the plaintiff was going to treat, and several of the jury soon after met the plaintiff at the American House and were treated by him with cigars furnished and paid for by him. At the same term the verdict was rendered, the defendant moved to set it aside on account of the plaintiff's having thus furnished several of the jurors with cigars by way of treat. The facts not being contradicted, the County Court held as a matter of law, and not as a matter of discretion that the case was within R. L. s. 997, and set the verdict aside and granted a new trial, to which holding of the court the plaintiff excepted.

By R. L. s. 997 it is provided that "if a party obtaining a verdict in his favor, shall during the term of the court in which such verdict is obtained, give to any of the jurors in the cause, knowing him to be such, any victuals or drink, or procure the same to be done, by way of treat, either before or after such verdict, on proof thereof being made, the verdict shall be set aside and a new trial granted." The determination of this case depends upon the construction to be given to this section. In ascertaining the intent of the legislature in enacting R. L. s. 997, we are aided by the trend of previous legislation on this subject. The first act relating to it was passed Nov. 1, 1791, and was entitled, "an act to prevent undue influencing of jurors," and was as follows:

"Whereas, the very pernicious practice of treating jurors by parties in litigation before the courts of law within this State, has become prevalent by the party recovering, which tends much to the corruption of the manners of the jurors, and is often subversive of justice by giving an undue bias:

Therefore to prevent such evil practices in the future, it is hereby enacted by the general assembly of the State of Vermont, that if any person obtaining a verdict in his favor in any court in this State, shall during the session of the said court in which such verdict is obtained, give to any of the jurors in said cause, knowing him or them to be such, any victuals or drink, or procure the same to be done, by way of treat, whether before or after such verdict, on due proof thereof being made, it shall be sufficient reason for arrest of judgment in said cause."

By an act passed March 2, 1797, the provisions of this act of Nov 1, 1791, were re-enacted in the same words with the exception of the change that such treating, "shall be sufficient reason to set aside the verdict and award a new trial in such cause," (Tolman's Comp. p. 82, s. 71) and this continued to be the law until the enactment of R. L. s. 997, in 1880. We thus see that the constant tendency of our legislation on this subject has been to make the law more stringent against the evil sought to be remedied by the act of Nov. 1, 1791, and more efficient to suppress it. It is contended on the part of the plaintiff that cigars do not come within the meaning of "victuals or drink" as used in R. L. s. 997, and hence the treating of the jury by the plaintiff with cigars is not within the prohibition of the law. We do not deem it necessary to decide whether tobacco falls within the strict meaning of the terms ...