Walker v. Sawyer

Parker, C. J. The case before us does not show the time of the conversion, nor does it appear to be material. If Nichols had sold his interest in all the timber, as he testified, he had no interest in the suit, whether the sale was before or after the time when the defendant took the tree. If the conversion were before the sale of his interest, he at the time had cause of action, and perhaps should have been joined in the action, although the recovery after the sale would be for the benefit of the plaintiff. But the objection is not that he ought to have been joined, but that he is interested in the recovery. The direction to the jury, to lay his testimony out of the case if, upon the whole evidence, they believed him to be interested, was correct. Greenl. Evid. 472. Notwithstanding his evidence had been heard upon his own statement, showing that he had no interest, still, if in the course of the trial it had been clearly made to appear that he had an interest, the court must have directed the jury to lay his evidence aside, as incompetent. 6 N. H. Rep. 333, Hamblett vs. Hamblett. If this matter was not made to appear clearly to the satisfaction of the court, but was left in doubt, the jury must find whether he had an interest or not, and receive or reject his evidence accordingly. We are inclined to think that by the statute of December 28, 1805, (N. H. Laws, Ed. 1815, 397; and see 2 N. if. Laws, November session, 1832, page 86,) no lumber is to be regarded as forfeited except where the damage has been appraised. According to the provisions of that act, if the lumber come upon improved land, and is not taken away on or before the first day of May annually, it shall be lawful for the owner of the land to detain it in his possession, until the owner pays all damage sustained by reason of its lying upon the land. If the parties do not agree, provision is made for the assessment of the damages, by the selectmen or by justices of the peace. [196] Provision is then made, that if it shall not be removed on or before the first day of November, annually, the owner of the land may take and convert it to his own use. But if the damage and cost have been paid, the owner of the lumber shall have liberty to remove it any time between the first of November and the first of May, then next. It could hardly have been intended that where the lumber should come upon the land on the 31st of October, it should be forfeited within two days after, without any appraisal. If this construction of the statute be correct, the defendant had no right to claim the tree as forfeited; for the damage had. not been appraised, and it is immaterial on what day it came upon the land, or whether the land was improved or unimproved. But the fact that the lumber came upon the unimproved land of the defendant is well ascertained in this case, and it is, therefore, not necessary to settle the construction of the statute, at this time. It is a common course to submit questions to the jury, by consent, for the purpose of having particular facts found; and in McMasters vs. The Westchester Mat. Ins. Co., 25 Wend. 379, it is held that this may be done, even against the objection of one -of the parties. We are not disposed to doubt that the court may enquire of the jury touching their verdict, and the grounds upon which they proceeded, for the purpose of ascertaining whether the case has been properly tried. 5 Pick. R. 296, Hix vs. Drury; 6 Pick. R. 206, Peirce vs. Woodward; 9 Pick. R. 426, Parrott vs. Thatcher; 12 Pick. 521, Dorr vs. Fenno; 6 Shepley 87, Smith vs. Putney. But in The Mayor of Devizes vs. Clark, 3 Adolph. & Ellis 506, it is held that the jury have a right to find a general verdict, (the case being tried upon the general issue,) and cannot be required to find a particular fact. And we are of opinion that where the case is tried upon ■the general issue, the court cannot submit a particular ques [197] tion of fact to the jury, to be found and returned by their verdict, except by consent of the parties. If either party insists upon that course, the court must direct the jury upon the whole case, and the jury may then return a general verdict. The issue framed between the parties, which is the matter to be tried, clearly indicates this. But the jury may, at their pleasure, return a special verdict, if they find facts sufficient for the decision of the case. In this case, however, there was the consent of the defendant to the course which was pursued, and he cannot now object to the direction which was given to the jury, or to the enquiry which was afterwards made of the jury at his own suggestion. The enquiry was made to ascertain a fact, and the answer must be regarded as settling the fact stated by the foreman, for the purposes of that trial. The answer of the foreman in such cases must be taken as the answer of the jury, no objection being'made by any other juror. Judgment on the verdict.