Clark v. Whitaker

Ellsworth, J. We are all of opinion that the motion in arrest is well founded. The judge found, that the paper complained of was before the jury, during all their deliberations, and was calculated to affect the verdict. It certainly was; and nothing short of proof that the paper was not opened and read, could save the verdict. Otherwise, we must disregard first principles, and establish a precedent which may lead to disastrous consequences. The mistake and absence of evil design, on the part of the counsel of the prevailing party, can avail nothing. That which is found to be true, in this case, may be doubtful in the next case; and certainly a door will be opened for evil practices. The jury room cannot be guarded with too much vigilance and jealousy. Courts must reject all evidence not received on the trial, and must repel every foreign influence, which may affect the minds of the jury. If we need authorities to so plain a point, those cited on the argument are conclusive. Hix v. Drury, 5 Pick. 298. Whitney v. Whitman, 5 Mass. R. 405. Benson v. Fish, 6 Greenl. R. 141. 1 Sw. Dig. 775. So, we are all of opinion, that the superior court should have charged the jury, as requested by the defendants, in relation to the mortgages to Whitaker, By those mortgages, Whitaker, and all who acted under him, had a right to take possession of the articles enumerated in them; and by one of them he is authorized to sell those articles, and pay his debts with the avails. How then can he be sued in trover 1 At law, the goods and the avails of them belong to him. It was through some inadvertence this error had intervened. There is another point on which we are not agreed ; and therefore, we place our decision on the grounds already stated. We all think, that the appointment of A. G. Frink as overseer, on the 24th July 1844, is legal; and that this proceeding might be followed up and perfected, by the appointment of an overseer in the second stage, notwithstanding the objection that the plaintiff' was not an inhabitant of Norwich during the latter part of said proceeding. We do not think [550] the party had changed his domicil or residence ; nor, if he had, that he could interrupt the proceeding. We express no opinion upon the question of notice. We are inclined to think, that Perkins complied with the statute in leaving a true and perfect inventory of the estate of the plaintiff in the office of the town-clerk. We advise a new trial. , In the opinion thus expressed the other Judges concurred. New trial to be granted.