Obrázky stránek

(Irregularities will not vitiate the poll.)

is well settled in this state, and has been for half a century, that the plaintiff may be compelled to be nonsuited, against his consent. Clements v. Benjamin, 12 Johns. 299; Pratt v. Hull, 13 Ibid. 334. And it is laid down as a general rule, that if the evidence would not authorize the jury to find a verdict for the plaintiff, or, if the court would set it aside, if so found, as contrary to evidence, in such case, it is the duty of the court to nonsuit. Stuart v. Simpson, 1 Wend. 376; Demeyer v. Souzer, 6 Ibid. 436-8; Wilson v. Williams, 14 Ibid. 146; Fort v. Collins, 21 Ibid. 109; Jansen v. Acker, 23 Ibid. 480; Rudd v. Davis, 3 Hill 287; McMartin v. Taylor, 2 Barb. 356, 361. This rule was sanctioned by the unanimous opinion of the court of errors, in Rudd v. Davis, 7 Hill 529. The English practice on this subject is different, as they never nonsuit the plaintiff, against his consent. 2 T. R. 281; 1 B. & Ald. 252. Hence, with them, one of several defendants is never discharged, if there is the slightest evidence against him. There are dicta to the same effect, by judges in this state, when their attention has not been called to the difference between our practice and that of the English courts. See 4 N. Y. 548, per Mullett, J. The true rule is, that a defendant sued in tort with others is entitled to be discharged, if the evidence against him be such that, if he were sued alone, he would be entitled to a nonsuit. McMartin v. Taylor, 2 Barb. 356. The power to nonsuit results from the principle that the court is the judge of the law, when there is no dispute about facts, Pratt v. Hull, 13 Johns. 334, approved by Mullett, J., in Labar v. Koplin, 4 N. Y. 548. The practice in relation to nonsuits,

in present phraseology, dismissing the complaint, is, that it may be granted at the close of the evidence on both sides, or at any other time, when the plaintiff admits he has no further evidence.

3. On a failure of proof on the part of the defendant. At the close of the cause, if a primâ facie case be established on the part of the plaintiff, and it be undisputed by

(Irregularities will not vitiate the poll.)

the defendant, it has always been usual to direct a verdict for the plaintiff. See Nichols v. Goldsmith, 7 Wend. 160; Crawford v. Wilson, 4 Barb. 504, 518; Rich v. Rich, 16 Wend. 676. This rests upon the same principle as the power to nonsuit, that the court is the judge of the law, when there is no dispute about facts. Verdicts to an immense amount are daily taken under the direction of the presiding judge, in cases where the defence has wholly failed; the jury assent to the direction, by giving their verdict. The fact thus found is as conclusive upon the parties as if it had been the result of a long deliberation. Nor is there anything in this practice, that impairs the rights of the jurors, or the efficiency of trial by jury; it does not conflict with the maxim, ad questionem facti non respondent judices, ad questionem juris non respondent juratores. Co. Lit. 295 b. To bring a case in hostility to the maxim, it must be shown that a controverted question of fact was decided by the judge, without the intervention of the jury.

Here was no fact in dispute, and the jury actually gave a verdict. In the case of People v. Croswell, 3 Johns. Cas. 337, the rights of jurors were most elaborately discussed; in his 13th proposition (Ibid. 361), General Hamilton remarks, "that in the general distribution of powers, in any system of jurisprudence, the cognisance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive; that in civil cases, it is always so, and may rightfully be so exerted." And it was expressly asserted by Kent, J., in delivering his opinion in the same case (Ibid. 376); the opinion of the judges in criminal cases, he observes, "will generally receive its due weight and effect, and in civil cases it can, and always ought, to be ultimately enforced, by the power of setting aside the verdict." These principles were quoted with approbation by the supreme court, in Snyder v. Andrews, 6 Barb. 48, and have been approved in many other cases. The judge

(Irregularities will not vitiate the poll.)

did not, in the present case, decide the question of fact; he withdrew nothing from the jury; his decision amounted only to a charge to find those issues for the plaintiff. The jury might have refused to do so, or have found the other way, without being liable to punishment; the only remedy for such a verdict would have been, to set it aside; but the jury acquiesced in the direction, and found for the plaintiff. The cases which show that it is not competent for the court to direct a verdict for the plaintiff, subject to the opinion of the court, against the consent of the parties, are not applicable to the question we are considering. Ely v. Adams, 19 Johns. 313; Hyde v. Stone, 9 Cow. 230. The principle decided in Nichols v. Goldsmith, 7 Wend. 163, and Rudd v. Davis, 3 Hill 287, affirmed in error 7 Hill 529, Crawford v. Wilson, and Rich v. Rich, supra, sustain the ruling of the court below.

If the refusal of the learned judge to submit the foregoing questions to the jury, be deemed a refusal to permit the defendant's counsel to address the jury thereupon, it was not the subject of an exception. Whether counsel shall be permitted to address the jury, is a matter resting in the sound discretion of the court; this has always been so treated. Under the former constitution, there was a time when all causes originating in justices' courts were required to be submitted in the supreme court, without an oral argument. The courts in this state have for a long time limited the number of counsel to address the jury, when a cause is to be summed up, and to examine and cross-examine witnesses. The convention of judges held in August last, under § 470 of the code of 1852, embracing the judges of the supreme court, superior court of New York, and court of common pleas of that city and county, by a general rule, restricted the number of counsel to be heard on each side, at general and special terms, to one, and the time beyond which they should not be heard, to two hours each. See Rules 13 and 14. A similar rule exists in the supreme court of the United States; and this

(Irregularities will not vitiate the poll.)

court limits the number to be heard on a side. All these restrictions imply that the right to address the jury or the court, is not an absolute unqualified right, to be exercised by as many counsel as may be employed.

The courts, on the same principle, limit the number of witnesses to be examined on a side, on all collateral issues; Nolton v. Moses, 3 Barb. 36; Spear v. Myers, 6 Ibid. 445; and doubtless may do so on the main issue. On the same principle, too, it rests in the discretion of the court, whether a witness, once examined, may be recalled and examined further on the same or other subjects. Law v. Merrills, 6 Wend. 276, per Walworth, Ch.; People v. Mather, 4 Wend. 246; Cow. & Hill's Notes 711, 788; Dunckle v. Kocker, 11 Barb. 387. If the judge, at the trial, err in the exercise of this discretion, the remedy is by motion for a new trial on a case; it is well settled that a bill of exceptions cannot be taken, to review the exercise of discretionary power. Cow. & Hill's Notes 711, 788, where many of the cases are collected. In this aspect of the case, then, an appeal will not lie for the refusal of the judge to permit the counsel to address the jury on the questions now under discussion, there being no question of damages to be passed upon. In point of form, therefore, on the facts assumed by the learned judge, there was no error in directing a verdict for the plaintiff, instead of submitting the matter, as an open question, to the jury. The manner of stating the question on the record is not according to the usual practice, but it is, nevertheless, intelligible.

I have hitherto treated the case as if the facts in relation to those points were all on one side, as stated by the judge; if so, there was no fact in dispute. Whether the judge was right in that assumption or not, could more properly be reviewed in the court below, on a case containing the whole evidence; the exception does not point to the fact that the judge was wrong in his assumption of what was established by the evidence, but to the legal conclusion which he deduced from it. The learned judges in the

(Irregularities will not vitiate the poll.)

court below have, moreover, discussed these questions of fact in an able and elaborate manner, and shown to my satisfaction, that the judge, at the trial, was right in his assumption; it would be a waste of time to travel over the same ground. It is well settled, also, that when, on the trial of a cause, a fact is assumed by the court and counsel to exist, and the case is disposed of, at the trial, upon such assumption, the non-existence of the fact, in the case presented to the court, on a motion for a new trial, cannot be urged in opposition to the application for a new trial. Beekman v. Bond, 19 Wend. 444. This must be so likewise on a bill of exceptions, when the non-existence of the fact is not made a point in the court below. The range of the discussion, however, on this appeal, has made it necessary, or at least expedient, that a few words should be added to this branch of the subject.

1. Of the question of fraud in the New York case. Fraud can never, in judicial proceedings, be predicated of a mere emotion of the mind, disconnected from an act occasioning an injury to some one; a fraudulent transaction implies a wrong done, as well as a person wronged. The term "fraud," when applied to inspectors of an election, implies, ex vi termini, that some legal voter has been, designedly and wrongfully, deprived of his vote; or that an illegal vote has been, purposely and unjustly, received by these officers; or that a false estimate has been imposed upon the public as a genuine canvass. In the present case, however, the judge was asked to submit to the jury to find fraud in the inspectors of the second district of the Fourteenth ward in the city of New York, from certain actual or supposed irregularities, in a case where it appears from the record, that it was not shown or alleged on the trial, that any illegal votes were received, or legal votes rejected, and in face of the testimony of all the inspectors, embracing both political parties, and which was not contradicted, that the votes of the district were fairly and honestly received, and accurately canvassed and returned. With respect

« PředchozíPokračovat »