Munde v. Lambie

• Decision Date: 18 September 1878
• Citation: 125 Mass. 367
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Patrick Munde v. Jasper E. Lambie & another

125 Mass. 367

Patrick Munde v. Jasper E. Lambie & another

Supreme Court of Massachusetts

September 18, 1878

Hampshire. Contract. After the decision reported 122 Mass 336, a second trial was had in the Superior Court, resulting in a verdict for the plaintiff, which the defendants moved to set aside, because the jury carried out with them, into the jury room, and kept there during their deliberations, the bill of exceptions, drafted by the plaintiff's counsel and allowed by the court after the first trial and verdict for the defendants, which was read by the jury or in their hearing during such deliberations. The motion was overruled by Allen J., who allowed a bill of exceptions, stating the facts that appeared upon the hearing of the motion as follows:

One of the jury was permitted to testify, against the plaintiff's objection, that the bill of exceptions, (by which it appeared that a verdict was returned at the former trial for the defendants, and that the plaintiff alleged exceptions to certain rulings of the judge,) was handed to the jury by the officer in charge of them, with the other papers in the case; that some of the jurors read the same and that, at the request of some of the jury, he read it aloud two or three times. It appeared that the jury were out from four o'clock in the afternoon until ten o'clock the next forenoon, and the witness, on cross-examination testified that the jury did not agree until about three minutes before they came in with their verdict. There was no other evidence.

The defendants asked the judge to rule that, if he was satisfied that the bill of exceptions was in the jury room, and was read by the jury or any of them during their deliberations, then a new trial should be granted; but the judge declined so to rule, and, finding that there was no misconduct, overruled the motion. The defendants alleged exceptions.

Exceptions sustained.

W. G. Bassett, for the defendants.

A. J. Fargo, for the plaintiff.

Gray, C. J. Endicott & Soule, JJ., absent.

OPINION

Gray, C. J.

The bill of exceptions tendered by the plaintiff and allowed by the judge at the first trial was not competent evidence to be laid before the jury at the second trial. As the statements therein were material to the issue and may have prejudiced the defendants, it was not necessary to show misconduct on the part of the plaintiff in bringing the paper before the jury. The refusal of the...