Browne v. Browne

Decision Date18 October 1864
Citation22 Md. 103
CourtMaryland Court of Appeals

APPEAL from the Superior Court of Baltimore City.

This is an appeal by the caveator, the plaintiff below, on the trial of issues from the Orphans' Court, from the decision of the Superior Court of Baltimore City, refusing to set aside the verdict of the jury in favor of the defendants and to grant a new trial.

The case is thus stated by BARTOL, J., delivering the opinion of this Court.

This appeal brings before us for review, the ruling of the Superior Court of Baltimore City upon certain motions made by the appellant after trial and verdict. A paper having been exhibited in the Orphans' Court of Baltimore City, as the last will of Martha T. Browne, deceased, Charles C. Browne the appellant, filed a caveat thereto, upon which issues were framed, and sent to the Superior Court for trial. These issues were as follows:

1st. Whether the will of 23rd of May 1862, was executed by said Martha T. Browne when she was of sound and disposing mind and capable of executing a valid deed or contract.

2nd. Whether it was executed by her under the influence of suggestions or importunities, which her mind from its diseased or enfeebled state, was at the time unable to resist.

3rd. Whether the said supposed will was her free, voluntary act to which she was induced, with a knowledge of its contents and without the exercise of a dominion or influence over her by some person or persons, which prevented the exercise of a sound discretion on her part.

4th. Whether the supposed will was procured by undue influence, fraudulent devices, importunities, misrepresentations or deceits practiced on her.

5th. Whether at any time subsequent to the execution of said supposed will, the said Martha T. Browne was desirous of cancelling or altering the same, and was she prevented therefrom by management, fraud or undue influence or importunities.

By the order of the Orphans' Court, it was directed " that in the trial of the above issues in the Superior Court, the above named Charles C. Browne be plaintiff, and Mary E. Browne and Dr. Thomas S. Wilson, and Ellen E. M. Wilson, his wife, and Charles J. B. Mitchell be defendants." That is, in the trial before the jury, the caveator was plaintiff, and the caveatees, or parties maintaining the will were defendants. The jury returned their verdict: " " " For the defendants. " Whereupon the plaintiff filed a motion to set aside the verdict, and for a new trial, assigning the following reasons: 1st. Because one of the jurors was compelled to consent to a verdict by sickness and physicial disability. 2nd. Because of misconduct in the jury in the method of forming the verdict. 3rd. Because the verdict was against the evidence. To these was subsequently added the objection: " That the verdict was insufficient and imperfect, informal, defective and not responsive to the issues."

The Court below (MARTIN, J.) overruled said motion and refused to set aside the verdict and grant a new trial; and judgment having been entered upon the verdict, for the defendants for costs, the plaintiff appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J. Wm. S. Bryan and Robt. J. Brent, for the appellant, argued:

1st. (a.) That the circumstances occurring in the jury room, render the verdict bad in law. Hogshead vs. State, 6 Humph. Tenn. R., 59. Cochran vs. State, 7 Id., 544. La Fayette P. R. Co. vs. New Albany, & c., 13 Ind. S. R. People vs. Douglas, 4 Cow., 26. Brant vs. Fowler, 7 Id., 562. Commonwealth vs. Roby, 12 Pick., 519. Gregg vs. McDaniel, 4 Harring., 367.

(b.) It being not matter of discretion, but matter of law, that the jury should be discharged where one of their number becomes disabled by sickness, the verdict is a nullity, and would not authorize a judgment. State vs. Ephraim, 2 Dev. & Bat., 162, 174. Ned vs. State, 7 Porter, 187. Commonwealth vs. Cook, 6 Serg. & Rawle, 587.

(c.) The fact that the jury did not pass on the issues separately, was a fatal error. Biggs vs. Barry, Curtis' C. C. R., 259.

2nd. That the verdict itself is not a sufficient response to the issues, which the jury were to try. In case of special inquiries, the jury ought to respond in the words of the inquiry or in equivalent terms. 1 Collinson on Insanity, 148. Stearnes vs. Barrett, 1 Mason R., 172. Coffin vs. Jones, 11 Pick., 48. Gerrish vs. Train, 3 Pickering, 124. Holman vs. Kingsbury, 4 New Hampshire, 106. Jewett vs. Davis, 6 New Hampshire, 520. Patterson vs. U. States, 2 Wheat., 224. Fairfax vs. Fairfax, 5 Cranch, 19. Shelley vs. Alsop, Yelverton, 77; cited in 1 Graham & Waterman on New Trials, 157. Hampton vs. Watterston, 14 La. An. R., 239. Toles vs. Cole, 11 Illinois, 562. Middleton vs. Quigley, 7 Halstead, (N. J., ) 352. Booth's Exc'rs vs. Armstrong, 2 Wash. ( Va. ) R., 384. State vs. Carleton, 1 Gill, 249. King vs. Cockerell, Andrew's R., 260.

The jury in the present case did not profess to pass on all the issues, and the omission is fatal. Hatton vs. McClish, 6 Md. Rep., 418. 1 Graham & Waterman on New Trials, 142.

3rd. That the Court erred in giving judgment against the plaintiffs for costs. 1 Code, Art. 93, sec. 250. Van Ness vs. Van Ness, 6 How., 62.

4th. That all these questions are properly presented for the decision of the Court. The motion for a new trial was made in due time, and although it was in the discretion of the Court to refuse it, yet in the language of the Court of Appeals in the case of The Union Bank vs. Ridgley, 1 H. & G., 407, such discretion " is a sound legal discretion, to the proper exercise of which the party claiming it is entitled, and from which he cannot be properly debarred by any rule that is the mere creature of the Court." The Court, by refusing to hear the evidence on which the motion was founded, determined that it would not exercise its discretion, which was error. Slade vs. Burton, 6 Iredell, 208. Freeman vs. Morris, Bus. N. C. R., 287. Stephenson vs. Stephenson, 4 Jones N. C. R., 472.

Although the Court supposed that it was forbidden by some rule of law to hear the evidence, if this opinion of the Court was erroneous a new trial will be granted. Reynolds vs. Boyd, 1 Ired. (N. C. ) R., 106. Warfield vs. Warfield, 6 H. & J., 467. U. S. vs. Chicago, 7 How., 185; (17 Curtis, 82.)

The reason assigned by the Court for refusing to hear the evidence set out in the first exception, is, that the affidavits were made by jurors who tried the case. Upon this question, we rely upon the opinion of Chief Justice TANEY, in U. S. vs. Reid, 12 Howard, 361, in Hogshead vs. State, 6 Humphreys, 59, and Cochran vs. State, 7 Humphreys, 544, the affidavits of jurors were admitted; also, in Cochran vs. Street, 1 Wash. (Va. ) R., 79, a case in some respects strikingly like the present. The affidavits are not offered to shew misconduct in the jury, and are strictly within the rule laid down in 1 Graham & Waterman on New Trials, ch. 4, sec. 12. They support the verdict as given, and shew the casualty to which it owed its existence. Bosley vs. The Chesapeake Ins. Co., 3 G. & J., 473. (By Balto. Co. Court.) Bladen's Lessee vs. Cockey, 1 H. & McH., 230. Tide Water Can. Co. vs. Archer, 9 G. & J., 479.

A party has a right to spread on the record facts which occurred after the jury retired to consider their verdict, and if these facts vitiate the verdict, the Court is bound ex debito justitiæ so to declare. If the law were otherwise, a jury might be bribed after they had retired, and the injured party would have no redress, except an appeal to the discretion of the Court. In such case, evidently, the verdict is void in law, and judgment on it would be reversed on writ of error. But how can a party obtain the revision of a higher tribunal, if he is prohibited from putting the facts on the record. The practice is as ancient as the Common Law. 2 Hale's Pleas of the Crown, 307, 308. Metcalfe vs. Deane, Cro. Eliz., 189. It was observed in Lord St. John vs. Abbott, Barnes, 441, (cited in 1 Graham & Waterman on New Trials, 84.) Earl of Kent's Case, cited in do., 81. Vicary vs. Farthing, Cro. Eliz., 411. Brandin vs. Grannis, 1 Conn. Rep., 401. Bennett vs. Howard, 3 Day (Conn. ) R., 219. Talmadge vs. Northrop, 1 Root (Conn., ) 522. In these last three cases, the facts were made the subject of a motion in arrest of judgment, which could not have been the case if they were not properly on the record. Vide State vs. Tilghman, 11 Iredell (N. C. ) R., 553, where the difference is explained between a new trial which is granted as a matter of discretion, and a venire de novo for a mistrial, which is demandable as a matter of law. Also, State vs. Miller, 1 Dev. & Bat., 500. The practice is sanctioned in Ford vs. State, 12 Md. Rep., 514.

In the fifth exception, the motion was as analogous to a motion in arrest of judgment, as the nature of the proceedings would permit. This undoubtedly presents a naked question of law without any admixture of discretion.

As to the judgment for costs rendered by the Court:--Both the first and third motions are to some extent analogous to a motion in arrest of judgment, and therefore present this question to the Appellate Court. Morgan vs. Briscoe, 4 Md. Rep., 271.

The proceeding in the Superior Court being only interlocutory as shown in Van Ness vs. Van Ness, 6 How., 62, no judgment for costs could be entered, but only the amount certified to Orphans' Court where the judgment is to be entered.

This Court will ascertain the facts from the affidavits in accordance with the motion in the 4th exception. Montgomery vs. Murphy, 19 Md. Rep., 576. Prather vs. Manro, 11 G. & J., 261. Byrne vs. McPherson, 12 G. & J., 157.

T. Parkin Scott, for the appellees argued:


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