Moseley v. Washburn

• Decision Date: 29 February 1896
• Citation: 165 Mass. 417,43 N.E. 182
• Parties: MOSELEY v. WASHBURN (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 417

43 N.E. 182

MOSELEY v. WASHBURN (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

February 29, 1896

COUNSEL

Henry E. Fales and Stephen H. Tyng, for plaintiffs.

John D Long, for defendant.

OPINION

FIELD C.J.

These two actions were tried together, and the same questions of law arise in each case. Without considering whether, when two actions are tried together, and exceptions are taken in each case, there should not be a bill of exceptions filed in each case, we proceed to consider the exceptions contained in the present bill.

It is undoubtedly true that "no communication whatever" affecting the decision of a cause "ought to take place between the judge and jury after the cause has been committed to them, unless in open court." Sargent v. Roberts 1 Pick. 337; Com. v. Heden, 162 Mass. 521, 39 N.E. 181. But it is also true that "it is not every irregularity which will render the verdict void, and warrant setting it aside. This depends upon another and additional consideration, namely, whether the irregularity is of such a nature as to affect the impartiality, purity, and regularity of the verdict itself." Com. v. Roby, 12 Pick 496, 516. See Merrill v. Nary, 10 Allen, 416; Read v. City of Cambridge, 124 Mass. 567; Kullberg v. O'Donnell, 158 Mass. 405, 33 N.E. 528. The practice shown in the present cases is not to be commended, but we do not think that, as a matter of law, it is necessary to set aside these verdicts. There was no dispute as to the time from which interest was to be reckoned, if the jury found for the plaintiffs. That time was shown by certain dates in executions which were in evidence, and which the jury had with them in the jury room. These dates had been pointed out to the jury by the presiding justice, in his charge in open court, and he had instructed the jury, if they found for the plaintiffs, that the amounts of the verdicts, respectively, should be certain sums appearing on the executions, with interest form the dates pointed out. The interest was therefore a mere matter of mathematical computation, which the court could order the jury to make, if the jury found for the plaintiffs. It appears that the jury actually computed the interest according to the directions of the court. Under these circumstances, it is certain that the instructions sent to the jury by the officer had no tendency to influence the decision of the jury upon the merits of...