Beardsley v. Town of WashIngton

Butler, O. J. The trial of applications of this character cannot be guarded with the same strictness as those which are had in court, but every precaution which can reasonably be [268] taken, to guard against even the possibility of improper influence, and to ensure a perfectly fair trial, should be observed. Primd facie the entertainment of the triers by one of the parties, for all or any part of the time occupied by the trial, is irregular and improper, for though all may say that no undue influence has been observed or attempted, there may be an influence felt and operative, which is not seen or heard or even intended. If then the facts set up in this remonstrance, and found by the court, were unqualified by any agreement or waiver, we should deem it our duty to set aside the report. But it is found that there was no public house in the village, and, impliedly, that it was necessary that the committee should be accommodated at some private house. As this was an application by a portion of the inhabitants of the town to compel the lay-out and • construction of a new highway by the town, and all the inhabitants were therefore parties interested for or against the application, it was perfectly fair as well as necessary that the place of their accommodation should be a matter of agreement between the parties or those who represented them. That agreement appears to have been carried out in good faith, and all improper influence, so far as ascertainable, is negatived by the finding. It was an element, too, of the agreement that the counsel on both sides should be accommodated together with the committee and be present with them, and that arrangement was carried out during the hearing. As then the agreement was necessary under the circumstances, was fair upon its face and rendered still more so by the provision for the superintendence of counsel, we can see nothing irregular or improper in it. The fact that the entertainment was handsome and liberal without cost to either party, as it embraced counsel on both sides, cannot give a character of impropriety or irregularity to the transaction. The law wisely permits the tax-paying inhabitants of a town to come in as individuals to be heard as the remonstrants have done, but they are subject of course to the same rules of waiver and estoppel to which .parties litigant are in other eases. If it should be admitted that they were not represented by the selectmen in making the agreement, so as to be con269 eluded, and have a right to go behind that agreement, we still think they are concluded. They have not averred and it is not found that any fairer arrangement could have been made, or that the .selectmen were not faithful to their trust as the representatives of the town. The trial occupied four days, and presumptively, as parties to the case, they had knowledge of the arrangement in question. Their remonstrance is in the nature of a motion in arrest, and it is not averred and does not appear that either of them was ignorant of the facts at the time or that any one made any objection to the arrangement until after the report of the committee was made. The established rule that parties having knowledge of the misconduct of triers, and making no objection to them until after the trial, shall not be permitted to take advantage of the objection afterward, but shall be holden to have waived it, is applicable to the remonstrants, and if they were not concluded by the action of the selectmen as their representatives, would prevent them from taking anything by their remonstrance. For these reasons a new trial should be denied. In this opinion the other judges concurred; except Foster, J., who having tried the case in the court below did not sit.