Mason v. Knox

• Decision Date: 31 July 1891
• Parties: MASON v. KNOX et al.
• Court: New Hampshire Supreme Court

27 A. 305

66 N.H. 545

MASON

v. KNOX et al.

Supreme Court of New Hampshire. Belknap.

July 31, 1891.

Trespass quare clausum by Joseph Mason against James E. Knox and Willard B. Cawley. Facts found for plaintiff by referees appointed under Gen. Laws, c. 231. Report set aside.

Daniel Barnard, for plaintiff.

F. N. Parsons and Sanborn & Hardy, for defendants.

CHASE, J. The northeast corner of the plaintiff's land is the southeast corner of the defendants.' It is near, and on the southeasterly side of, an old ash stump; and the question of fact is whether it is 10 feet distant from the stump, as the plaintiff claims, or 3 rods distant, as the defendants claim. At the trial before the referees the plaintiff testified, subject to exception, that Taylor C. Prescott, who was a former owner of the defendants' land, and who was living at the time of the trial, had told the plaintiff, since Prescott parted with his title, where the corner was, and had pointed it out to him. The bound thus pointed out is the one claimed by the plaintiff as the corner. At a former term it was held that the evidence was material, and that its admission was error. Since that decision the referees' report has been recommitted at the trial term, on the plaintiff's motion, with instructions to report whether the finding for the plaintiff was occasioned by the incompetent evidence; and the referees have answered that it was not. The referees have also been examined in court as witnesses on this point by both parties, and the fact has been found that their report for the plaintiff was not influenced by that evidence. The question of law is whether the error can be cured in this way. Referees appointed under chapter 231, Gen. Laws, in an action triable by jury take the places of both the presiding judge and the jury for the purposes of the trial, and should proceed "according to the rules of law * * * and the practice" which govern in jury trials. An error which would be cause for setting aside the verdict if the action had been tried by jury will have the same effect upon their report. Free v. Buckingham, 59 N. H. 219, 224. In a jury trial, if incompetent evidence is withdrawn or stricken out before the case is submitted, and the jury are unequivocally instructed to disregard it, (Davis v. Manchester, 02 N. H. 422,) its admission is not cause for a new trial, unless there is reason to believe the evidence improperly affected the verdict Hamblett v. Hamblett, 6 N. H. 333; Deerfield v. Northwood, 10 N. H. 269; Zollar v. Janvrin, 47 N. H. 324, 320; Burnham v. Butler, 58 N. H. 568. This rule is based on the belief that jurymen can, with proper effort, ignore certain facts within their knowledge, and form their judgment by a consideration of other facts. The more the incompetent evidence is urged upon their attention the more difficult it will be for them to disregard it, and so it is held that "ordinarily such evidence should be ruled out before the closing arguments." Judge of Probate v. Stone, 44 N. H. 593, 607. If the evidence is seasonably and properly withdrawn, and it is not found that it had a prejudicial effect upon the verdict, the error occasioned by its introduction is regarded as harmless. The same rule applies in trials by referees. Goodwin v. Scott, 61 N. H. 112. In that case the referees reported that the testimony which was objected to "had no influence upon them in their assessment of damages." This was understood to mean that it "was ruled out and disregarded by the referees," and the foregoing authorities were cited in support of the conclusion that its admission furnished no ground for a new trial. If incompetent material evidence is introduced, and not withdrawn or excluded before the case is submitted to the jury, it is cause for a new trial, and the testimony of jurors is not received to show that the jury were not influenced by such evidence. Page v. Wheeler, 5 N. H. 91, 93; State v. Hascall, 6 N. H. 352, 361; Folsom v. Brawn, 25 N. H. 114, 123; Landaff's Petition, 34 N. H. 163, 178, 179; Whitney v. Whitman, 5 Mass. 405; Hix v. Drury, 5 Pick. 296, 302; Woodward v. Leavitt, 107 Mass. 453, 460; Munde v. Lambie, 125 Mass. 367; Johnson v. Witt, 138 Mass. 79, 80; Com. v. Keenan, 152 Mass. 9, 11, 25 N. E. Rep. 32; Haight v. Turner, 21 Conn. 593; Sheldon v. Perkins, 37 Vt 550; Tarbell v. Tarbell, 60 Vt. 486, 494, 15 Atl. Rep. 104; Steph. Dig. Ev. art. 114; Best, Ev. 561, note lb, 566, 567. If the evidence is in writing, and has not been read in the presence of the jury, and was not placed in their possession through fault of the winning party or negligence of the losing party, (Maynard v. Fellows, 43 N. H. 255, 259; Gardner v. Kimball, 58 N. H. 202; Tabor v. Judd, 62 N. H. 288, 292,) it may be shown by the testimony of jurors that they did not read it, or have knowledge of its contents. State v. Hascall, supra; Hix v. Drury, supra. In the absence of such...