McCormick v. Taylor

5 Ind. 436

• Court: Indiana Supreme Court
• Decided: December 4, 1854
• Status: Published

Opinion

Perkins, J.

Application for dower. Dower assigned.

The commissioners first appointed to make the assignment failed and refused to act, and the Court appointed others in their stead. This was right. The statute expressly authorized the act. R. S. 1843, p. 805, sec. 79. And if it had not, the necessity of the case justified it.

Z. Baird, for the appellants. J. Pettit and S. A. Huff, for the appellee.

On the coming in of the report of the assignment made by the second set of commissioners, the defendant resisted its confirmation, and proposed to impeach its fairness by one of the commissioners who made it. The Court refused to permit the commissioner to testify, on the ground that he could not be heard to impeach the assignment made by commissioners of whom he was one.

Affidavits of jurors are not allowed in impeachment of their verdicts. On the other hand, arbitrators are constantly heard touching their awards.

"We have looked into the reasons given by lord Mansfield, being all that have been assigned, in Owen v. Warburton, 1 B. and P. (N. R.) 326, and in Vaise v. Delaval, 1 T. R. 11, for the exclusion of the affidavits of jurors; and however weighty they may have been in his day in England, or may be now, in the case of jurors, who sit in secret, must be unanimous, and are by law, to a considerable extent, and for solid reasons, an independent, irresponsible body, we think they are not such as apply with sufficient force to commissioners for the "assignment of dower, to cause their testimony to be excluded.

Per Curiam. — The decree is reversed with costs. Cause remanded, &c.