Green v. Bliss

Balcom, Justice. The law is too well settled to admit of argument, that the affidavits of jurors are not receivable to impeach their verdict, for mistake or error in respect to the merits [431] of a case; or for their own misconduct, or that of their fellows. (Clum agt. Smith, 5 Hill, 560.) Were the law otherwise, the affidavit of a juror, who swears he assented to a verdict as a ruse, for the purpose of separating, would not be entitled to much weight, except for the purpose of showing the cause of a party had been tried by a juror who was unfit to be in the panel. The affidavit of the constable who had charge of the jury, to the effect that the jury did not agree upon the verdict that was signed and sealed by their foreman, before he allowed them to separate, is felo de se of his credibility. He violated his sworn duty, to keep the jury together until they agreed on a verdict; or his affidavit is untrue. His affidavit cannot overturn the verdict in this action, when it is contradicted by two jurors whose statements are consistent with their integrity as jurors. The plaintiff’s counsel insists that the verdict should be set aside, because, without his consent, the judge directed the sheriff to instruct the jury to seal their verdict, and bring it into court the next morning. In most of the reported cases in this state, where sealed verdicts have been rendered, the direction of the judge to the jury to seal their verdict, was given by the consent of the parties. (See Root agt. Sherwood, 6 Johns. 68; Fox agt. Smith, 3 Cow. 23; Douglass agt. Toucey, 2 Wend. 352; Bunn agt. Hoyt, 3 Johns. Rep. 255; Jackson agt. Hawks, 2 Wend. 619.) Graham, in his Practice, says, “ Where the jury are likely to be absent for some time, and the business of the day is through, it is usual to direct them when they shall have agreed upon their verdict, to seal it, and bring it into court the next morning. Whether the judge may do this without the consent of the parties, has never been expressly decided.” (Gra. Prac. 2d ed., 316.) I am of the opinion the judge may direct the jury to seal their verdict without the consent of the parties. It has been customary to do so: a party loses no right thereby. The jury may be polled when they bring in a sealed verdict; and they may dissent therefrom. If it is informal they may be sent out [432] again to correct it, but they cannot change it after they have sealed it. (8 Ohio Rep. 405.) And the jury may be sent out again, where there is any dissent from their verdict as sealed. It has been decided in Ohio, in both civil and criminal causes, that the court may, in its discretion, direct the jury to seal their verdict, without the consent of the parties. (Sutliff agt. Gilbert, 8 Ohio Rep. 405; Sargent agt. The State, 11 Ohio Rep. 472; The State agt. Engle, 13 id. 490.) The old rigid rules, in regard to keeping juries “ without meat or drink, fire or candle,” and that authorized the judge to have them carried from circuit to circuit, until they were all agreed, have been greatly relaxed. Judge Hitchcock, in Sutliff agt. Gilbert j says, the most common practice of the courts of Ohio wras to direct the'jury, if the court should not be in session, when they have agreed, to put their verdict under seal, and bring it in at the opening of the court. He further says, ££In thus far relaxing ancient rules, we have experienced no inconvenience, and I have no doubt we might go further without any danger 5 for I believe the more confidence is placed in jurors, the more they are treated like reasonable men, the more will right and justice, through their instrumentality, be done.” In this case it is further insisted, that the judge could not direct the sheriff to convey his instruction to the jury 5 but that he should have had the jury come back into court, and should there have given them the direction in person to seal their verdict. The strict rule laid down in Sargent agt. Roberts, (1 Pick. Rep. 337,) perhaps, required the judge to call the jury back into the court-room, and there personally direct them to seal their verdict. That case differed from this. The judge, in that case, had adjourned the court, and he then wrote a letter to the jury respecting the cause that had been committed to them; and for that cause the verdict was' set aside, although there wras nothing exceptionable in the letter itself. There is no pretence in this case that the sheriff said anything more to the jury than that the judge had directed that they might seal their verdict when they agreed on one. If [433] this was technically irregular, it is not a sufficient cause for disturbing the verdict. It is not every trifling irregularity that will warrant the court in setting aside verdicts. (2 Cow. 589 ; 1 Hill, 207.) It is also claimed that each juror should have signed the verdict before they separated. This they should have done; but it was merely a technical irregularity, which was cured, as well as the supposed one committed by the judge in giving the direction to the jury, to seal their verdict, through the sheriff, by the plaintiff’s counsel not objecting to the reception of the verdict, when it was delivered in his presence, at the opening of the court the morning after it was agreed upon by the jury. (Douglass agt. Toucey, 2 Wend. 352; Bunn agt. Hoyt, 3 Johns. 255; Gra. Pr., 2d ed., 316.) It is also argued, that two of the jurors did not agree to the verdict delivered by their foreman, because, when they were polled, one only said, c( I consented to it,” and the other, “ I agreed to it.” This allegation is contradicted by two of the jury, which is enough to balance the recollection of the clerk, whose duty it was to ascertain and declare, if all of the jury agreed to the verdict as rendered. (4 Com. 549 and 550.) If the two jurors made answer in the precise language the clerk swears they did, it raises a strong presumption that they then assented to the verdict as the clerk had recorded it. Had they then desired to dissent therefrom they would probably have so stated; at least it is reasonable to infer they would have done so If they did not then agree to the verdict as delivered to the court by their foreman, such fact should have been ascertained on the spot; and the jury should have been sent out again, to further deliberate. The non-attention of the plaintiff’s counsel, who was present, to what was being done, is no excuse for his not then ascertaining whether the verdict, as recorded by the clerk, was agreed to by all of the jury. His inattention was the plaintiff’s misfortune, if the plaintiff sustained any injury thereby. The fact that the verdict was delivered, and that the jury was polled at the request, and in the presence of the counsel [434] for the unsuccessful party, and that the verdict was entered without his objection, and without any intimation from the clerk that the jury did not all agree to it, is such strong and controlling evidence of it being the verdict of each of the twelve jurors, that nothing short of proof that an actual fraud was practiced on the court and the counsel for the unsuccessful party, by the opposing party, or some one in his interest, or by the clerk, in procuring the verdict to be delivered and entered when it was not agreed to by the entire jury, should be allowed to disturb it. To allow verdicts to be set aside upon the mere recollection of the clerk, inconsistent with his duties, or upon that of other persons, which show him at least guilty of negligence in his official trust, that some of the jurors, when asked if the verdict delivered by their foreman was their verdict, answered, “ I consented to it,” or, £< I agreed to it,” would open a door for abuses more intolerable than for parties to submit to verdicts that are only agreed to by a majority of the jury. Such a practice would tend to substitute the uncertain memories of individuals for the unchanging records of the courts. It had better be discountenanced. The motion to set aside the verdict in this action is denied, with $10 costs.