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negligence on his part, will authorize a court of equity to
interfere." Id., § 887.

In Jeffery v. Fitch^ 46 Conn., 601, the court entertained a
bill in equity for a relief i^ainst a judgment although the
three years had elapsed in which t}^ petition could have
been brought by the petitioner at law for a new trial on
account of not having notice, on the ground that he had no
knowledge of the judgment until after the three years had
passed. The same principle should govern in this case, that
is, if the party had no knowledge of the fraud until too
late to file a motion in arrest, then he should be granted
relief on petition. If not, and the Superior Court has no
jurisdiction of the subject matter stated in the petition as
held by the court below, then there is no remedy for a party
thus defrauded.

A. 0. Lippitt and J, Hahey^ for the defendant.

This case was tried at the March term, 1879, and at the
September term, 1880, a year and a half after, with a view
to a new trial, the parties seek to set aside the verdict for
misconduct, as it is claimed, on the part of a juror. It is
not pretended that the opposing party had any connection
whatever with the misconduct, if any such occurred.

1. For such a case the statute first enacted in 1821, pro-
vides a specific remedy. It is by motion to set aside the
verdict. Gen. Statutes, p. 448, sec. 7. Such a motion is
not, it is true, strictly speaking, a motion in arrest ; for that
is a motion based on matters appearing upon the record.
Being a motion to set aside the verdict for matters dehors
the record, it is said to be of an intermediate character ;
but in our practice it is known as a motion in arrest. Ham-
ilton V. Pease, 38 Conn., 120 ; t Swift Dig., 802. The case

Vol. l.— 20



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806 NEW LONDON COUNTY.

before the court, therefortt, tbo«gh ib fonn a fft^ion^ is, w
fact, a motion in arrests

2. A motion in arrest, Qndftr otir statute amd rales of
practice, will not be entertained unless made wvibin twenty^
four hours after verdict rendered, Qen. Statirtes, p* 448,
sec. 5 ; id., p. 449, sec. 6 ; Rules- of Frae., eh. 17, see. 1, in
18 Conn., 576 ; Rules under Prac. Act, p, 261.

3. Though the statute passed in 1821 in terms gives to tbfSf
court power to set aside verdicts for mi»conduet of jurors,
yet it established no new principle, Ther power had beea
exercised before as a dpmmon law right ; and not only e:ieiv
cised, but a time had been established within which the
motion should be made. Beach v. HalTa Admra.j Kirl^,
235; Sheldon v. Woodhridge^ 2 Root, 478; Stone y. Steifen$f
12 Conn., 232; Hamilton v. Pease, 88 id., 115; Tomlineon r^
Town of Derby, 41 id., 268. And although it is said m the
last case that the court could exercise a diseretiom a» t^
time, yet the court said (p. 271) " a party making a naMisi^
of this kind has but twenty-four hours in which to obCsiAK
his information and file his motion according to the rule,'^
When the legislature embodied in a statute what had before
been the common law, the practice of the court allowing no
more than twenty-four hours within which to make tiie
motion was not changed. This practice was known to the
legislature, and the conclusion is irresistible that the power
was affirmed to be exercised as it had been.

4. Notwithstanding these decisions and rules, the plain-
tiffs in this case claim that if the time has passed to make
a motion to set aside the verdict it will be done if they ask
for it in the form of a petition. That it may be done at any
time within three years, they rely on the statute passed itt
1762. Since the passage of that act, a period of nearly one
hundred and twenty years, no one has ever before made the
claim. All the cases to set aside a verdict have gone up on
motion within. forty-eight hours under the statute. The
ibct that no such claim has ever been made before, is a judg-
ment of the whole profession, for more than a hundred-
years, that the right does not exist. If the principle is now



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OCTOBER TERM, 1882. 807

Browu 9. Congdon.

adopted the flood-gates of litigation will be thrown open*
No case tried to the jury can be considered settled till three
years have gone by ; not only on the ground of misconduct
of a juror, but for any and all matters dehors the record.

5. Prior to the passage of the law of 1762 petitions for
new trials were brought to and heard by the legislature,
and motions to set aside verdicts, which in effect gave a
new trial, were made to the Superior Court. The statute
referred to in terms gave the Superior Court power, on the
special grounds named, to grant new trials on petition, a
power which it never exercised before. But the statute
said nothing about new trials through a motion to set aside
the verdict ; for the power had been assumed and exercised
by the court. That it might not be claimed that such power
had been taken away by implication, the language was
used — ** other reasonable cause according to the usual rules
in sucii cases." The right by petition is, therefore, excluded
by statute and by practice. Andersen v. The State^ 48
Conn., 616.

Cakpenter, J. The plaintiff in error brought a petition
to the Superior Court for a new trial for the misconduct of
a juror. The original cause was tried at the September
term, 1879. The petition was brought in June following,
returnable to the September term, 1880. The petition was
demurred to, the Superior Court sustained the demurrer^
and the petitioner has brought a writ of error to this court.
The statute authorizing the Superior Court to grant new
trials, and under which the petition in this case was brought,
is as follows :—" The Superior Court, Court of Coinmon
Pleas, District Court, and any City Court, may grant new
trials of causes that may come before them respectively, for
liiispleacding, the discovery of new evidence, want of actual
notice of the suit to any defendant or of a reasonable oppor-
tunity to appear and defend when a just defence in whole
or in part existed, or other reasonable cause, according to
the usual rules in such cases." Gen. Statutes, p. 447, sec. 1,
The question is whether the cause alleged is within the
statute.



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808 NEW LONDON COUNTY.

Brown 9. Congdon.

The statute has been in force since 1762. Our reports
show no precedent for a case like this, and, so far as we
know, this is the first attempt to set aside a verdict on a
petition brought for that purpose under that statute. That
of itself is an argument of no inconsiderable force against
this proceeding, especially as during all that time there
was another well-established mode of setting aside verdicts
for such causes.

We are told in Stone v. Stevens^ 12 Conn., 219, that the
practice of setting aside verdicts for that cause existed prior
to the statute of 1821. In 1808 a case is reported in which
a motion in arrest was filed for the misconduct of a juror
and the verdict was set aside. Bennett v. Howard^ 8 Day,
219. In Stone v. Stevens, on page 282, Judge Huntington
says that the statute of 1821, providing that a verdict may
be set aside for the misconduct of jurors, was ** in affirmance
of our common law " — that " it introduced no new rule."
That such a practice did prevail cannot be doubted ; that it
grew up independently of and not under the statute of 1762
is equidly clear.

The statute relating to jurors was first passed in 1821 and
is now in force. It reads as follows : — " K any juror shall
converse with any person concerning the cause, except his
fellows, while it is under consideration, or shall voluntarily
suffer any other person to converse with him, such verdict,
on motion, may be set aside," &c. Here the statute expressly
gives a remedy on motion, and not by an independent peti-
tion brought afterwards. It clearly contemplates a proceed-
ing in the cause before final judgment. A remedy being
given, other remedies are excluded.

. Under this statute the practice is believed to have been
uniform — ^to take advantage of such misconduct by a motion
in error. It is sometimes called a motion to set aside the
verdict, but in Stone v. Stevene, supra, it is considered as
governed by the same rules and principles as motions in
arrest of judgment, being essentially a motion in arrest for
matters dehors the record. See also Hamilton v. Pease, 88
C<win., 115 ; Tomlinson v. Derby, 41 id., 268.



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OCTOBER TERM, 1882. 809

Btown V. Oongdon.

In view of these facts — ^that this is the first attempt to
apply the statute of 1762 to a case like this, that for nearlj
sixty years after that statute went into operation the courtB
adopted and enforced a common law remedy outside and
independent of the statute, that in 1821 the legislature saw
fit to sanction and affirm that practice, and that since that
time the profession has regarded the practice as founded in
law and reason — we ought certainly to hesitate to disturb
it by introducing a new rule of practice. Such a practical
construction of the two statutes, continued for so long a
time, ought to be regarded as very high evidence of what
the law actually is. Indeed such a state of things ought
not to be disturbed except by the legislature.

We regard the practical construction of the statute of 176S
as the correct one. New trials may be granted for misplead-
ing, newly discovered evidence, want of notice, or a reason-
able opportunity to appear and defend when a good defence
exists, '^or other reasonable cause." Several causes are
enumerated, and then follows the general clause, which,
according to a familiar rule of construction, was intended
to embrace other causes only of the same general character.
The causes enumerated result from mistakes or accidents,
and show that the party has been deprived of some right or
privilege that the law intended he should have. They
relate to the merits of the case and indicate a probable fail-
ure of justice.

The case before us is of a different character. The cause
does not necessarily have any reference to the real merits ;
it is simply the misconduct of one of the triers. It may or
may not implicate the successful party ; and if it does, the
merits of the case, notwithstanding, may be with him. If
he is not implicated, then the misconduct is entirely
divorced from the merits. But a more important distinc-
tion is, that the enumerated causes embrace a class of cases
not covered by any other statute, and the design manifestly
was to provide a remedy where none previously existed
except by legislative action. We think that the general
clause should be limited to that class of cases, and not



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ftlO NEW LONDON COUNTY.

Brown v. Congdon.

C^natrued as embracing cases provided for b^ other stati^tes;
%nd that the attempt to bring cases provided for bj one
ii^tute within the operation of another, under general
^ords of this description, ought not to succeed.

In principle, so f ^ as the remedy is concemed> there is a
ftrong analogy between the misconduct of jurors and the
errors of the court in ruling upon questions of evidence and
in charging the jury. The remedy which the statute pro-
vides in the one case is a motion in arrest ; in the other it is
f motion for a new trial, or, under the present practice, ^n
appeal. In Andersen v. The State^ 43 Conn., 514, we held
j^at the Superior Court has no power, upon a petition for a
new trial, to grant a new trial for error in the charge of the
oonrt. That case establishes the principle that the special
sijtatutory remedy must be resorted to, and seems to be an
authority for this case but for the circumstance alleged that
the plaintiff did not know of the misconduct in season to
take advantage of it by a motion in arrest. But that circum-
^nce can have little or no weight in construing the statute.
If the terms of the act are broad enough to apply to
unknown misconduct, they must be equally applicable to
misconduct which is known.

Ignorance of the fact might address itself to the discretion
of the court if the court had jurisdiction, but is hardly a
sufiBcient reason for conferring jurisdiction in a case where
the court would not otherwise have it. At first sight it
seems plausible that a party should not be deprived of his
remedy in a case where the facts come to his knowledge too
late to avail himself of the ordinary remedy when he is
without fault, and if no one was to be affected by allowing
the remedy but the immediate parties to the suit the case
would present a somewhat different aspect. But this case,
like all others, must be governed by general rules and
principles. Those rules and principles have for their ulti-
mate object the public good. It is far better that occasional
hardships should be endured than that general rules should
l^e dispensed with.

The rule that a motion in arrest must be filed withiu



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OCTOBER TERM, 1882. 811

Br^wn 9. Oongdon.

imen%y4oxiT hours after verdict is in its aftture like %}m
statute of limitations. All ftuch statutes occasion now and
then hardsfaiim to individuals, but they are nevertheless of
great importanee to the public and probably prevent mote
iiaardship and injustice tiian they occasion.

The fact that a party is ignorant of facts touching his
tights until after his daim is barred by the statute does not
exempt him from its operation.

So here the limitation, although the time is short, is found
faj experience to be on the whole for the interest of tlM
|>ublic. We no more feel at liberty to disregard it ott
account of the hardship of a particular case than we do to
disregard an ordinary statute of limitations for a similar
^ason.

It is possible under most legal rules for parties in some
iBstanees to suffer injustice. It is believed however that
Hie rule under consideration has very rarely produced that
fesult. Hitherto the oases do not seem to have been suffi-
ciently numerous to attract the attention of the legislature,
tmd it is doubtful whether any different rule can be devised
which will be more satisfactory than the present one.

There is no error in the judgment complained of.

In this Ofnnion Pabk, C. J., and Fabi^x, J., concurred.

LoOMis, J., (dissenting.) While conceding that there is
great force in the reasoning that supports the majority
•pinioB, I feel nevertheless constrained to dissent. It seems
to me a reproach to the law if it affords no remedy for the
flagrant injustice which the case discloses. The demurrer
to the petition for a new trial admits all the facts alleged as
fully for the purposes of the present inquiry as if found by
thd court after hearing all the evidence.

The facts then are as follows, (I quote from the record :)
— -♦* During the trial of said cause to the jury, and while the
oaae was under consideration, Jefferson Perkins, one of the
jury who was impanneled in said cause, had a conversation
with James S. Mitchell, of the town of Groton, regarding



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812 NEW LONDON COUNTY.

Brown v. Congdon.

ftaid cause. Said Mitchell made statements to said PerloBS
concerning the merits of the cause, derogatory to the claims
of the plaintiffs made on the trial, and attempted to persuade
him to render a verdict sustaining said will and the decree
of said court of probate, and adverse to the plaintiffs. By
reason of said conversation with said Mitchell, the said
Perkins agreed to, and did, unite with the jury in rendeiing
a verdict for the appellees in said cause ; and except for
said conversation no verdict would have been rendered in
said cause in favor of said appellees. The plaintiffs had no
knowledge of said facts until after the adjournment of said
court."

Now if these facts do not constitute " a reasonable cause **
within the meaning of the statute concerning new trials, it
is difficult to conceive any such cause. But it is said that
these words must be construed as importing some other
cause of a similar general character. Granting this position
for purposes of argument, we think it is brought within the
principle and reason of the causes specified.

The principle is that a party should have his day in
court, with a full and fair opportunity to present his own
side of the case and meet that of his adversary. It is said
the petitioner had his day in court before the jury ; but of
what avail, when a day out of court in behalf of the other
party nullified it all, and rendered the trial utterly useless.

If Mitchell's statements had been permitted in court and
before the entire jury when the petitioner was not present
or notified to be, it would have furnished clear ground for a
new trial. Is the ground less reasonable because the state-
ment was made when there was no court to restrain the
party, no oath to lend its solemn sanction, and no one to
answer it ?

But again, it is said that the cause relied upon for a new
trial is one not affecting the merits. It is difficult to see
what can more vitally affect the merits than that which sub*
verts the very foundations of a fair judicial trial, nullifies
the effect of all legitimate evidence, and rendera the merita
of no account as influencing the result.



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OCTOBER TERM, 1882. 818

Brown v, Congdon.

It is not enough to say that the verdict may have been
right. The same might be said of a verdict obtained by
bribery.

It should be borne in mind that this is not a case of mere
bias or suspicion of bias on the part of a juror, but the
illegitimate influence here was successful ; it actually pro-
duced the verdict. It not only accomplished what the
evidence before the court could not do, but it overcame all
the evidence on the other side and rendered it of no account.
The record is explicit, that by reason of the conversation
the juror united in rendering the verdict, and that except
for the conversation no verdict in favor of the appellees
would have been rendered.

The ground therefore upon which this petition rests is
not merely that there was a mis-trial, but that there was no
trial at all in contemplation of the law. This distinction is
forcibly stated by Pearson, J., in State v. Tighman^ 11
Ired., 513, on page 563. " When there are circumstances
which cast suspicion upon the verdict by showing that there
might have been undue or improper influences exerted on
the jury, it is in the discretion of the presiding judge to
grant a new trial, but if the fact be that undue influence
was brought to bear on the jury, as if they were fed at the
charge of the prosecutor or the prisoner, or if they be
solicited and advised how their verdict should be, or if they
have other evidence than that which was offered on the tri^
in all such cases there has been in contemplation of law no
trial ; and this court will direct a trial to be had." See also
Hilliard on New Trials, 2d ed., p. 211, § 12.

In this view of the case, were there technical diflSculties
in applying the statutory remedy, it would seem that a court
of equity might relieve against a judgment so obtained and
grant a new trial on the ground that it was virtually the
same as having no opportunity in court to defend. 2 Swift's
Dig., 138 ; Jeffery v. Fitch, 46 Conn., 601.

But I think the expression, *^ other reasonable cause,"
ihay well refer to causes which at the time the statute was
passed and long before had been so universally recognized



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8U NEW LONDON COUNTY.

Brown v. Congdon.

1^ good ground tor a new trial. In 2 Tidd's Practice,
p. 817, misconduct of a jury is mentioned among the most
prominent grounds for a new trial. It is so in Hilliard on
New Trials ; see 2d ed., pages 198 to 252. Also in Hicsh
on Juries, § 677 to § 626.

And in all the treatises on the subject a distinction is
made between new trials for grounds dehors the record and
fifrre^t of judgment for causes appearing on the record. In
Quinebaug Bank y. LeavenSy 18 Conn., 88, Chubch, C. J.,
i^ giving the opinion, says : — ^^ Motions in arrest of judg-
ment in this state for causes not apparent on the record, are
in truth only applications for new trials, and are so called
and so treated elsewhere ; " and the principles that govern
new trials were applied to a motion in arrest in that case.

But I am reminded that though the ground referred to
might have been appropriate for a new trial, yet in this
sjtate another more simple and speedy remedy by motion in
arrest has been adopted, first by the courts, and then by the
statute of 1821 relative to jurors.

If this remedy must be considered as exclusive it ends
our argument. As to parties having knowledge and oppor-
tunity I concede that it is the only remedy, but I cannot
^hink that it was ever intended to embrace those who had
];io knowledge or means of knowledge of the facts relied
upon. The very brief time prescribed for action, namely,
twenty-four hours, renders this construction most probable.
As to those having knowledge it is a wise policy of the law
to require such speedy (almost inunediate) action, but as to
others, who could by no possibility avail themselves of it, it
i^ extremely unjust, and affords a most reasonable cause for
the other remedy provided by the statute relating to new
trials. This constructiop too accords best with the analo-
gies of the law ; for instance, it is a general rule that an
application for a new trial cannot be made after a motion in
arrest has been overruled, but this rule is applied only where
the party has knowledge of the fact on which he grounds
his motion for a new trial at the time of moving in arrest.
4fawn V. Palmerton^ 2 Carter, 117; McKinney v» SprxTiger^



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OCTpBEB TEJRM, 1»82. 9U

Brown v* Congdon.

e fed., 453. In JSTndfong v. Sendrick$, 2 Gratt., 212, it is
tu^lcl that if a party had no opportunity to move for a neyr
trial in the court where the verdict was rendered, equity
will grant a new trial.

As to the argument founded (m the f^ct that an ind^
pendent application fo^ a new trial fox a cause like this has
never before appeared in our courts, so far as we know, X
jxi^t admit it ha^ ini^ch fcprce. It is however by no means
^jonclusive, for we do not know i;hat there has ever beei^
any occasion for it. True, if this is so, it is quite surprising ;
bRt all persons fan^iliar with the courts know that we are
iQ^equently surprised with questions made for the first time^
which if we consider their nature we should say must have
))|ien often made before. Althoi^ there are no precedents
^m our decisions precisely in point, yet several cases may
be cited where^ in cases for misconduct of jurors, a motion
for a new trial was resorted to instead of a motion in arrest*

In State y. Andrew^i 29 Conn., 100, a motion for a new
trial was made and entertained by the Supreme Court, though
there had been a previous motion in arrest for the same
cause. The cause was that a juror not on the panel made
confidential remarks about the case to a juror on the panel,
which the latter entertained and discussed. A new trial
was advised by this court.

In Smith and others v. Merriman^ heard and determined
by this court for the First Judicial District, May term, 1878,
(not reported, but the opinion by Gbanger, J., was filed
with the clerk of the Superior Court,) a motion for a new
trial was made for the reason that a certain writing not
admitted in evidence was by inadvertence allowed to go to
the jury with the other papers, and a new trial for that
reason was advised.

In Donlin and wife v. City of Bridgeport^ heard by this
court for Fairfield County at the October term, 1881, the
opinion by Park, C. J., being filed with the clerk, a motion
for a new trial was made by the defendant on the ground
that one of the jurors who united in a verdict for the plain-
tiff was interested in the precise question at issue. The



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816 NEW LONIX)lT COUNTY.

Brown v. Congdon.

action was for a personal injury received by the plaintiff
Mrs. Donlin, by reason of a defective highway, while riding
and using the horse, wagon and harness of the juror, which
were also injured at the same time from the same cause.
The majority of the court denied a new trial on the merits
under the peculiar circumstances of the case, but not
because the remedy was mistaken.

Now as to these cases it should be stated that there was
no objection to the remedy and no discussion on that
subject. I think the party making the motion in each of
them had knowledge of the facts, so that he might have
moved in arrest, and in strictness the latter was the true



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 28 of 61)