Page v. Wheeler

XliciiARDsou, C. J. delivered the opinion of the court. If it appeared in this case, that the papers, which were delivered to the jury without being read upon the trial, were designedly so delivered by the party, who obtained the verdict, we should not stop to enquire, whether the [93] papers were material or not, but should at once eel aside the verdict as a proper punishment for the misconduct of the party. 5 Pick. 298, Hix v. Drury; 3 B. & B. 272, Coster v. Merest. But we see nothing, that affords any reasonable ground to suspect, that the papers were handed to the jury with any improper views. It is highly probable, that they went to the jury inadvertantly and by mistake among other papers. If a paper goes by mistake to the jury, but they never examine it, the verdict is not to be set aside on that account. 3 Mass. Rep. 252, Hackley v. Hastie. In this case, as there is no evidence to the contrary, we must presume that the jury examined all the papers which were delivered to them. The rule seems to be, that, if material papers not read in evidence are banded to the jury by mistake, this is a sufficient cause for granting a new trial. And it is not competent to the party who has obtained the verdict, to prove by the jurors that they were not influenced by the papers in finding their verdict; but the court must be governed by the tendency of the papers apparent from the face of them. 5 Mass. Rep. 405, Whitney v. Whitman. The question then is, were the papers which went to the jury by mistake in this cause so wholly immaterial, that they cannot be presumed to have had any influence upon the verdict ? We are of opinion, that those papers were wholly immaterial. It was not pretended on the part of the plaintiff that there was any partnership between Jonathan and Stephen, Wheeler, or that they were in any way connected in business except in relation to the goods purchased just before Jonathan absconded. The bills of parcels then could have no tendency to shew any thing but what was conceded — that Stephen had been making purchases in his own name up to the time when the goods, mentioned in the plaintifPs declaration, were purchased. Judgment on the verdict.