Maxfield v. Town of Pittsfield

• Decision Date: 11 March 1892
• Citation: 67 N.H. 104,36 A. 609
• Parties: MAXFIELD et al. v. TOWN OF PITTSFIELD.
• Court: New Hampshire Supreme Court

36 A. 609

67 N.H. 104

MAXFIELD et al.

v. TOWN OF PITTSFIELD.

Supreme Court of New Hampshire. Merrimack.

March 11, 1892.

Exceptions from Merrimack county.

Petition by Truman J. Maxfield and others against the town of Pittsfield for a highway, which was referred to the county commissioners. There was a judgment denying a motion by plaintiffs to set aside the commissioners' report, and they except. Exceptions overruled.

Petition for a highway, referred to the county commissioners. The plaintiffs moved that the report be set aside for the reason that the commissioners were not impartial. It appeared that, before the trial, one S., a resident of the defendant town of Loudon, saw B., one of the commissioners, and talked to him in a general way about taxation, and the embarrassed financial condition of Loudon and of other towns in the state. As soon as B. understood S.'s purpose in talking to him, he told him it was not proper to con tinue the conversation, and no further talk was had between them. B. testified that he was not influenced by this conversation, and the court found he was not. To this testimony of B. the plaintiffs excepted. None of the parties to the suit knew of this conversation until after the trial, nor was it prompted by the suggestion of any of them. After the close of the hearing, but before the decision, one of the selectmen of Pittsfield accidentally met two of the commissioners and another resident of Pittsfield, and began to talk about trying to influence the commissioners to decide the case in favor of the town. But the witnesses did not agree as to the exact language used. The motion was denied, and the plaintiffs excepted.

Albin & Martin, for plaintiffs.

Streeter, Walker & Chase and William L. Foster, for defendant.

PER CURIAM.¹ The plaintiffs claim that the trial before the commissioners was not fair. By denying their motion to set aside the report, the court found that their claim was not supported; and the only question of law presented is whether, on the evidence, that finding can be sustained. It is insisted that the remarks made by S. to B. some time before the hearing were calculated to prejudice the latter against the plaintiffs, and that it was not competent for B. to testify that he was not influenced thereby. Assuming that the first position is tenable, it does not follow that the second is correct. Jurors are not allowed to testify that they were not influenced by incompetent material evidence which was admitted subject to the exception of the losing party, because such evidence would tend to impeach their verdict, and to show that they had violated their oath, in not trying the case upon the evidence presented. Mason v. Knox, 66 N. H. 545, 27 Atl. 305. "The authorities are substantially agreed that affidavits of jurors are not admissible to impeach their verdict. * * * The rule rests upon grounds of public policy." Knight v. Epsom, 62 N. H. 356, 360. Information obtained by a juror before the trial is not evidence, and he is bound to disregard it. His testimony that he did not consider it, or that it did not influence him, would tend to show, not that he had neglected his duty as a juryman, but that he had carefully observed it. It would tend to support, and not to impeach, the verdict The distinction is between evidence introduced at a trial, subject to exception, and the unsworn statements of strangers. The former, if material, the juror is bound to consider, in the discharge of his duty. The latter he ought to disregard. When the verdict it attacked on the ground that a juror may have been...