Williams, Ch J.
1. The first ground on which a new trial is claimed, is, that a tenant to the person who gave bonds for prosecution, was permitted to sit as a juror.
[205]*205It is not claimed, that this is a statute disqualification. It must then be shown to be such by the common law. By the - common law, when a-person was counsellor, servant or tenant of the party on record, this was a disqualification; and perhaps the spirit of the rule might extend it to the tenant of the real party in interest, though his name did not appear on the record. But to say that it should be extended to the relations or tenants of those who might have a contingent interest in the event of the cause, would be to introduce a practice entirely new, and which would tend to impede, rather than advance, the cause of justice.
2. It was also claimed, that after an assault hat! been committed, by one of the defendants, the other defendant came to the house of the plaintiff, two hours after, and made another assault on her. The defendants claimed, that an assault having been proved, as the plaintiff contended, by one of the defendants, no other evidence could be given of a second assault, by the other defendant; and this general principle was not denied, there being but one count in the declaration. But the plaintiff claimed, and offered evidence to prove, that all the assaults complained of took place in one day, between the hours of six o’clock and ten o’clock in the morning, and that all that was done, was done by the defendants in pursuance of a common object and design. The court therefore admitted the testimony, — directing the jury, that the plaintiff could, under the allegations in this declaration, prove but one assault, and that only which she had first elected to prove. But that if they found, that these transactions were all parts of a plan concerted by these defendants, to get the plaintiff out of the house, and conducted in the manner claimed by the plaintiff, then the testimony was proper. And unless we are to suppose, that by one assault is meant the first blow given, and nothing more, we do not see what other course could have been taken, than was taken upon the trial. If the assault which first took place in the morning, was part of a series of acts concerted by these defendants, to free the house of this woman, then each was accountable for that and all other acts then done in pursuance of that object. To say they were distinct assaults, because a short interval of time elapsed between the blows, would be to give to the rule an operation which was never intended, and would tend to [206]*206encourage litigation, by dividing up a cause of action. It might, as well have been objected, that the suit would not lie against both defendants, because both were not there at the same moment, as to say that all the acts which took place in this short interval did not constitute one assault. Whether the injuries constituted one transaction, was a question, which, under the claim of the parties, was a proper subject for the consideration of the jury; and as such, it was submitted to the jury, who in effect have found it was one continued assault. The rule of law was admitted to be as the defendants claimed. The finding of the jury shows, that it did not apply to this case.
3. Again, the plaintiff offered the testimony of Nelson Brown, a grand-juror of the town, who testified, that he was called to this house, that morning, by Jedediah Brown, who complained of an assault upon him, by one of the defendants in the same house, the morning that he issued a complaint as grand-juror for the assault upon said Jedediah.; that he was there between nine and ten o’clock, and saw no assaults ; and that the plaintiff claimed no assault after eleven o’clock. Thereupon the defendants offered the complaint of said grand-juror and the proceedings under it, to rebut and explain the testimony of said Brown and the other witnesses. This was objected to ; and ruled out by the court, as irrelevant. As tending to affect the testimony of other witnesses, it was manifestly improper. The declarations of this witness, even if under oath, out of court, in another case, could not be admitted in this case, even if this man had not been a witness, and could not have been obtained — much less, when he was on the stand, and could have been examined in court upon these very subjects. Were it otherwise, we see nothing in these proceedings tending to contradict any evidence detailed of an assault upon the plaintiff. And as it respects the testimony of Nelson Brown, we know not how the complaint which he admits he made, tends to contradict his testimony in court. If it is claimed, that the inference is, that there was no asault upon the plaintiff, because there was one against Jedediah Brown, we do not admit any such inference. If it is claimed to be inferred from the fact that he complained of the assault upon Jedediah, and not upon Esther, that may have been because one complained to him, and the other did not; or because he thought some other grand-juror should attend to one, [207]*207while he attended to the other. Or if it was admitted that he neglected his duty as grand-iuror, we see nothing m f. , . , , ,. ,. . . complaint, which was evidence to discredit his testimony on the trial; and therefore, it was properly ruled out.
4 Again, the defendants complain of the charge, because the jury were not told, that if they found one defendant not guilty, they must so find.
The declaration charges a joint assault, and no other, upon the defendants; and the defendants plead jointly not guilty. The judge, noticing this fact, and not knowing whether it was intentional or through inadvertence, enquired of the counsel what the plea was; and was informed, that it was intended to meet the declaration exactly. The defendants then claimed, that if the jury found one defendant guilty, and the other not guilty, they should render a verdict accordingly; which was not controverted on the part of the plaintiff. The court however chose to treat the case as the defendants had insisted their plea treated it, and told the jury, that if they found the facts to be proved, as stated in the plaintiff’s declaration, they must return a verdict against the defendants. If the jury had been told, that if they found only one of the defendants guilty, yet as they had pleaded jointly, they might find a verdict against both, as was the case in Hayden v. Nott, 9 Conn. R. 367. they might have had reason to complain. But when we look at the declaration, and see that the assault charged was a joint assault only ; that the plea of the defendants was expressly intended to meet that allegation ; and when there was no claim that one could be subjected for an assault by the other, unless they acted in concert, we see no cause of complaint on the part of the defendants.
The defendants have been expressly found guilty of a joint assault. Why then shall they complain, that they ought not to have been found guilty, as if there was no joint assault?
Had there been a verdict for the defendants, perhaps the plaintiff might have complained, had she claimed to have proved one guilty alone. But we see no ground of complaint that the defendants have. It is enough that they have been found jointly guilty.
5. After verdict, a motion in arrest of judgment was made, which, either from the want of attention on the part of the mover, or from the usual course of business in court, was [208]
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Williams, Ch J.
1. The first ground on which a new trial is claimed, is, that a tenant to the person who gave bonds for prosecution, was permitted to sit as a juror.
[205]*205It is not claimed, that this is a statute disqualification. It must then be shown to be such by the common law. By the - common law, when a-person was counsellor, servant or tenant of the party on record, this was a disqualification; and perhaps the spirit of the rule might extend it to the tenant of the real party in interest, though his name did not appear on the record. But to say that it should be extended to the relations or tenants of those who might have a contingent interest in the event of the cause, would be to introduce a practice entirely new, and which would tend to impede, rather than advance, the cause of justice.
2. It was also claimed, that after an assault hat! been committed, by one of the defendants, the other defendant came to the house of the plaintiff, two hours after, and made another assault on her. The defendants claimed, that an assault having been proved, as the plaintiff contended, by one of the defendants, no other evidence could be given of a second assault, by the other defendant; and this general principle was not denied, there being but one count in the declaration. But the plaintiff claimed, and offered evidence to prove, that all the assaults complained of took place in one day, between the hours of six o’clock and ten o’clock in the morning, and that all that was done, was done by the defendants in pursuance of a common object and design. The court therefore admitted the testimony, — directing the jury, that the plaintiff could, under the allegations in this declaration, prove but one assault, and that only which she had first elected to prove. But that if they found, that these transactions were all parts of a plan concerted by these defendants, to get the plaintiff out of the house, and conducted in the manner claimed by the plaintiff, then the testimony was proper. And unless we are to suppose, that by one assault is meant the first blow given, and nothing more, we do not see what other course could have been taken, than was taken upon the trial. If the assault which first took place in the morning, was part of a series of acts concerted by these defendants, to free the house of this woman, then each was accountable for that and all other acts then done in pursuance of that object. To say they were distinct assaults, because a short interval of time elapsed between the blows, would be to give to the rule an operation which was never intended, and would tend to [206]*206encourage litigation, by dividing up a cause of action. It might, as well have been objected, that the suit would not lie against both defendants, because both were not there at the same moment, as to say that all the acts which took place in this short interval did not constitute one assault. Whether the injuries constituted one transaction, was a question, which, under the claim of the parties, was a proper subject for the consideration of the jury; and as such, it was submitted to the jury, who in effect have found it was one continued assault. The rule of law was admitted to be as the defendants claimed. The finding of the jury shows, that it did not apply to this case.
3. Again, the plaintiff offered the testimony of Nelson Brown, a grand-juror of the town, who testified, that he was called to this house, that morning, by Jedediah Brown, who complained of an assault upon him, by one of the defendants in the same house, the morning that he issued a complaint as grand-juror for the assault upon said Jedediah.; that he was there between nine and ten o’clock, and saw no assaults ; and that the plaintiff claimed no assault after eleven o’clock. Thereupon the defendants offered the complaint of said grand-juror and the proceedings under it, to rebut and explain the testimony of said Brown and the other witnesses. This was objected to ; and ruled out by the court, as irrelevant. As tending to affect the testimony of other witnesses, it was manifestly improper. The declarations of this witness, even if under oath, out of court, in another case, could not be admitted in this case, even if this man had not been a witness, and could not have been obtained — much less, when he was on the stand, and could have been examined in court upon these very subjects. Were it otherwise, we see nothing in these proceedings tending to contradict any evidence detailed of an assault upon the plaintiff. And as it respects the testimony of Nelson Brown, we know not how the complaint which he admits he made, tends to contradict his testimony in court. If it is claimed, that the inference is, that there was no asault upon the plaintiff, because there was one against Jedediah Brown, we do not admit any such inference. If it is claimed to be inferred from the fact that he complained of the assault upon Jedediah, and not upon Esther, that may have been because one complained to him, and the other did not; or because he thought some other grand-juror should attend to one, [207]*207while he attended to the other. Or if it was admitted that he neglected his duty as grand-iuror, we see nothing m f. , . , , ,. ,. . . complaint, which was evidence to discredit his testimony on the trial; and therefore, it was properly ruled out.
4 Again, the defendants complain of the charge, because the jury were not told, that if they found one defendant not guilty, they must so find.
The declaration charges a joint assault, and no other, upon the defendants; and the defendants plead jointly not guilty. The judge, noticing this fact, and not knowing whether it was intentional or through inadvertence, enquired of the counsel what the plea was; and was informed, that it was intended to meet the declaration exactly. The defendants then claimed, that if the jury found one defendant guilty, and the other not guilty, they should render a verdict accordingly; which was not controverted on the part of the plaintiff. The court however chose to treat the case as the defendants had insisted their plea treated it, and told the jury, that if they found the facts to be proved, as stated in the plaintiff’s declaration, they must return a verdict against the defendants. If the jury had been told, that if they found only one of the defendants guilty, yet as they had pleaded jointly, they might find a verdict against both, as was the case in Hayden v. Nott, 9 Conn. R. 367. they might have had reason to complain. But when we look at the declaration, and see that the assault charged was a joint assault only ; that the plea of the defendants was expressly intended to meet that allegation ; and when there was no claim that one could be subjected for an assault by the other, unless they acted in concert, we see no cause of complaint on the part of the defendants.
The defendants have been expressly found guilty of a joint assault. Why then shall they complain, that they ought not to have been found guilty, as if there was no joint assault?
Had there been a verdict for the defendants, perhaps the plaintiff might have complained, had she claimed to have proved one guilty alone. But we see no ground of complaint that the defendants have. It is enough that they have been found jointly guilty.
5. After verdict, a motion in arrest of judgment was made, which, either from the want of attention on the part of the mover, or from the usual course of business in court, was [208]*208pending from the 6th day of the term until after the 15th day; on which day the plaintiff died. The counsel then claimed, that the suit abated, and that no judgment could be entered up for the plaintiff upon the verdict. But the court ruled, that judgment might be entered.
An objection of this kind is so entirely technical in its nature, so contrary to the general principles of justice, that it is entitled to no peculiar favour; and in a case like this, where the party dies during the term, it seems that if it was necessary, the court, for the purposes of justice, might consider the term as if it was but one day ; and formerly, it seems to have been holden, that in such cases the judgment might, at the discretion of the court, be considered as relating back at least to the day of the verdict. Isley’s case, 1 Leon. 187. Now in this case, had it not been for the delay interposed by the motion of the defendant, judgment would have been rendered as of the day of the verdict. Shall then the plaintiff’s case be prejudiced, either by the act of the defendants, or the delay of the court ? We suppose the rule to be clearly settled, even in cases where a continuance had taken place, that if either party, after verdict, had died, in vacation, judgment might have been entered that vacation as of the preceding term ; and it would have been a good judgment at common law, as of the preceding term. 2 Tidd's Pr. 846. And in a recent case of replevin, where after a verdict, a special case was made, and stood over more than two terms, and the avowant died before the special case could be argued, Tin dal, Cb. J. said the delay was rather the act of the court, which is never allowed to prejudice the parties. Green v. Cobden, 4 Scott, 486. (36 E. C. L. 392.)
But it is needless to multiply authorities; for it is conceded, that this is law with respect to all cales which survive, and in which the executor may enter. But it is contended, that the practice does not extend to cases of tort, which do not survive. We find no such distinction made in the books. On the contrary, the general principle is laid down without such a limitation ; and certainly we should not feel disposed to introduce such a limitation, as we do not think it founded in reason. On the contrary, we find that in cases which were of a character that they would not survive, this practice has been adopted ; as in case of conspiracy; (Griffith v. Ogle & [209]*209al. 1 Binn. 172.) in trespass quare clausum fregit; (Perry v. Wilson, 7 Mass. R. 393-5.) See also Goddard v. Bolster, 6 Greenl. 427. Craven v. Hanley, Barnes’ Notes, 255. Collins v. Prentice, 15 Conn. R. 423. 428.
So far, therefore, we see no ground for a new trial.
6. But there is another ground of complaint, that the plaintiff offered evidence, for the purpose of showing her legal title to the house in which the assault was made. The defendant made an objection to the admission of this testimony: and it was admitted, without much consideration, as tending to give character to the transaction. In actions of this kind, time, place and provocation are all to be considered ; and therefore, it was proper to prove, that the assault took place in the house occupied by the plaintiff. If the plaintiff was in peaceable occupation of this house, that gave a character to this transaction, whether she was the owner of the house or not; and there was no denial of that fact on the part of the defendants. Why then should she be permitted to give proof of ownership? Is there not danger that the attention of the triers would be drawn away from the real case to a question which was of no importance ? In addition to which, as no such facts were stated in the declaration, it might operate as a surprise upon the defendants, who may be wholly unprepared to meet it; and thus an undue influence may have operated upon the verdict.
Besides, if the plaintiff might give her title in evidence, to aggravate damages, it would seem to follow, that the defendants might, if they wished, give in evidence their own title to diminish damages. But this, we believe, has never been allowed. Sampson v. Henry, 11 Pick. 379.
On this ground, therefore, we advise a new trial.
In this opinion the other Judges concurred.
New trial to be granted.