Cowles v. Merchants

W. Allen, J. The only question relating to the motion for a new trial is, whether the judge properly ruled that he was not required, as matter of law, to set aside the verdict on account of the remarks made to, or in the presence of, the juror Searle. The remarks were made by a person not in any way connected with the case, who did not know that he was speaking in the presence of a juror, and who was well known as a person whose faculties were much impaired by his advanced age. There was no improper intermeddling with the juror, and no misconduct on the part of the juror; it was hardly more than a casual remark accidentally overheard by a juror in the street, and not [381] calculated to influence his mind. The ruling of the judge was right. Johnson v. Witt, 138 Mass. 79. The question put to Mrs. Dickinson, a witness to the deed, if she had not said anything about making the deed to .any one except her husband, was immaterial, and could not be contradicted. The fact, that, two days after the deed was executed, she ■ conversed about it with the insurance agent, and requested him to say nothing about it, was immaterial, and evidence of it was properly excluded. The tenant could not be affected by these mere declarations of the witness. The question put to the witness Graves was excluded in accordance with the well settled law in this Commonwealth recently reaffirmed in Commonwealth v. Brayman, 136 Mass. 438. See May v. Bradlee, 127 Mass. 414 ; Hastings v. Rider, 99 Mass. 622, and cases cited. Exceptions overruled.