School Dist. No. 1. v. Bragdon

23 N.H. 507

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Eastman, J.

The evidence introduced to show the due organization of the district was unnecessary. Pleading to the merits admitted the competency of the plaintiffs to sue in the capacity in which the suit was brought. If in a suit by a corporation the defendant pleads the general issue, it is an admission of the corporate existence of the plaintiffs and they need not prove it. If a defendant wishes to contest the existence of the corporation, he should plead that there is no such corpora^ tion in existence. School District v. Aldrich, 13 N. H. Rep., 139; School District v. Blaisdell, 6 N. H. Rep., 198. We are aware that a different rule exists in New-York, and that, notwithstanding a plea of the general issue, the plaintiffs, suing as a corporation, must show their corporate existence. But the precise question raised in this case, was decided in School District v. Blaisdell, 6 N. H. Rep., 197 ; and the principle there adopted, again sanctioned in Concord v. McIntire et al, 6 N. H. Rep., 527, and we see no good reason for departing from the doctrine of those cases. If the legal character of the plaintiffs is in controversy, there would seem to be a peculiar fitness in having that question settled upon a proper issue made, before proceeding to an investigation of the general merits of the case. A uniform rule in this respect, applicable alike to corporations and individuals, appears to us by far the most preferable.

The doctrine of our reports upon this point is sustained by many authorities in other States. Savage Man. Co. v. Armstrong, 5 Shepl. Rep., 34 ; Proprietors of Monumoi Great Beach v. Rogers, 1 Mass. Rep., 159; Phenix Bank v. Curtis, 14 Conn. Rep., 437; Zion Church v. St. Peter’s Church, 5 Watts & Serg. Rep., 215 ; Methodist Episcopal Church v. City of Cincinnati, 5 Ham. Rep., 286; Whittington v. Farmer’s Bank, 5 Har. & J. Rep., 489; Taylor v. Bank of Illinois, 7 Monroe’s Rep., 584.

But even if the plaintiffs were bound to show a corporate existence and the boundaries of a district legally established, we are not prepared to say that the evidence introduced was not competent to prove the fact. It is true, that the return, stating that the notification had been posted up fifteen days prior to the meeting, according to law, was insufficient. But after action by the town under the warrant and the lapse of more than twenty years thereafter, the court will not presume that the notice wag not in fact legally posted up. From analogy to the statute of limitations, meetings of proprietaries and corporations are in many instances presumed to have been duly notified and held, after the lapse of twenty years. Copp v. Lamb, 3 Fairfield’s Rep., 312 ; Soc. for prop. the Gospel v. Young, 2 N. H. Rep., 311. Had any objection arisen at the time the meeting was held, the form of the return could have been changed.

Upon the same principle, the court will not presume, after the lapse of twenty years, that all the members of the committee were not present and did not attend to their duties in the division of the town into districts.- Seven out of the nine composing the committee signed the report, and upon general principles that would be abundantly sufficient. Besides it was the vote of the town upon the report of the committee that established the district.

The description of the district was territorial, and unless the boundaries are void for uncertainty, it is well enough. • Several of the boundaries are rather indefinite but we think they would answer in the absence of any contradictory evidence. “ Sixty-six acres off the easterly end of sixty-five,” and similar expressions, must be understood to mean sixty-six acres taken off by a line parallel to the easterly end. “ One. half of twenty-seven” would probably be fatal, were it not that it is matter of general history and notoriety that the town of Milton was set off from the town of Rochester, and the court will not presume that the ether half of twenty-seven is not in the latter town. If so, one half of twenty-seven would be all that is within the limits of Milton.

Inasmuch however as the defendants have pleaded to the merits, they are estopped from excepting to the legal character of the plaintiffs; and it is therefore unnecessary to examine these questions any further. The plaintiffs were in possession of the school-house and have a primé f acié right to maintain an action against all who illegally trespassed upon them. The evidence of the doings of the district after the commencement of the action, was incompetent. As a general principle, evidence arising post litem motam is inadmissible, and the right of a party to recover must be tried by its validity at the time the action was commenced. Ford v. Philips, 1 Pick. Rep., 203. But we do not see how this evidence could have any effect with the jury. It was not pertinent to the issue. It showed merely, what is always presumed, that the plaintiffs were in earnest in prosecuting the suit. The evidence must be considered immaterial, and for the introduction of immaterial evidence a verdict will not be set aside. Hamblett v. Hamblett, 6 N. H. Rep., 333 ; Clement v. Brooks, 13 N. H. Rep., 92.

On reading the instructions of the court to the jury, our first impression was, that they were erroneous; but upon a more careful examination, we are satisfied that they were correct. Some of the remarks, when considered independently, might perhaps be exceptionable; but when the whole instructions are taken together, it is quite apparent that the plaintiffs’ right of recovery was placed upon the ground of fraud by the father, in sending his children to reside in the district with the intent of evading the statute. The statute provides that no person shall have a right to send to, or receive any benefit from any school in a district in which he is not a resident, without the consent of such district. Rev. Stat., chap. 73, § 7. And if the jury were satisfied, — as we think they must have been, under the instructions given, — that the indentures were made for the purpose of giving the boys an ostensible and not a substantial residence in the district, and for the purpose of evading the statute, the residence could give them no right to attend the school. This view of the matter does not in any way conflict with the right of the father to bind out in good faith, his minor child; nor does it impair the rights of the master or servant, where the indentures are honestly made.

But it is further objected on the part of the defendants, that being minors, they were not liable to an action. This position' cannot however be sustained. Infants are liable in cases arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive tort or frauds. 2 Kent’s Com., 241; Bullock v. Babcock, 3 Wendell’s Rep., 391; Hawks v. Deal, 3 McCord, 257 ; Fitts v. Hall, 9 N. H. Rep., 441; Lewis v. Littlefield, 3 Shepl., 233 ; Badger v. Phinney, 15 Mass. Rep., 359. And in Humphrey v. Douglass, 10 Vermont Rep., 71, it was held that a minor was answerable for a trespass committed by him, although he acted by command of his father.

The remaining questions presented in the case, relate to the proper practice to be pursued after a cause has been committed to the jury and they have retired to their room. Whatever may be the practice in other jurisdictions, and we are aware that it varies in different States, we consider it too well settled here to undertake to disturb it. The court may communicate with the jury after its adjournment, upon them request, so far as to give them instructions upon matters of law, although the counsel of the parties are not present. The communications are in the nature of new instructions and should be in writing, and returned by the jury, on their coming into court, with the papers of the case. Shapley v. White, 6 N. H. Rep., 172. If there is any error in the new instructions, the parties have their remedy by exception, in the same manner as if they had been given in open court. By this course, cases are often terminated that otherwise would not be, and injustice is done to no one.

The broad rule laid down in Sargent v. Roberts & al., 1 Pick Rep., 342, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them, unless in open court, is not recognized, in this State.

The length of time that a jury shall be kept together and whether they shall be discharged or not without agreeing upon a verdict, must be left to the sound discretion of the court before whom the cause is tried. To say that a jury shall not be discharged until they agree, or that they shall be discharged whenever they state that they cannot agree and desire to be discharged, are propositions that have never been adopted in our practice. While the doctrine of compelling a jury to unanimity by hunger and fatigue may well be characterized as monstrous; that of suffering them to separate upon every representation that they cannot agree, may perhaps, with equal truth, be denominated trifling. A capricious, caveling and obstinate juryman not unfrequently takes the position, at the outset, that the jury cannot agree, that he may accomplish his wishes ; and if any time were fixed beyond which a jury should not be kept together, or if this court should undertake to interfere with the discretion of the court below, in regard to their powers in this respect, unless a flagrant case of injustice was made to appear, we apprehend that in very many cases no verdict would ever be obtained. Our jurors are generally intelligent and honest men, and eases sometimes arise where a conscientious difference of opinion may well exist in regard to the proper verdict to be returned. The evidence may be very evenly balanced, or some parts of it may strike a portion, of the jury with much more force than it does the rest. The court who have heard all the evidence can best judge whether the disagreement proceeds from an honest difference of opinion or from some less worthy cause* At all events, they are „ in a far better position to decide the matter than the court above. In the case of The People v. Olcott, 2 Johns. Cases, 301, it was contended, that the jury ought not to have been dischai’ged. Kent, J., remarking upon the case, observes: “ Every question of this kind must rest with the court, under all the particular or peculiar circumstances of the case. There is no alternative ; either the court must determine when it is requisite to discharge, or the rule must be left inflexible, that after the jury are once sworn and charged, no other jury can in any event be sworn and charged in the same cause.” Aud again: “ The circumstances constituting a case pi’oper for the discharge of a jury, must be more accurately perceived or more justly felt by the court before whom the trial is had than by any other court. It must therefore be a pretty clear case of an abuse of discretion to induce me to say, the court below ought not to have discharged the jury.”

In the case befoi’e us, it is contended that the court ought to have discharged the jury; and it is said that the detention was unjustifiable. But we find nothing in the facts reported that sustains such a position. We discover nothing that looks like an abuse of power, nor anything that indicates a departure from a proper exercise of a sound discretion.

Nor was there anything unprecedented or illegal, according to the practice in this State, in the refusal of the court to have the jury polled. In England, and also in New-York, and perhaps in some other jurisdictions in this countiy, it is the pi’actice in some cases to poll the juiy. But we are not aware that it has ever been adopted in any of the New-England States. The point has beexx distinctly settled in Massachusetts, as appears by the authorities cited by the plaintiffs’ counsel. Ropps v. Barker & al., 4 Pick. Rep., 239; Commonwealth v. Roby, 12 Pick. Rep., 496. We have never adopted the English practice-in this respect, and do not incline to make an innovation at this time, especially as we do not think the ends of justice in this State would be promoted by the change.

The fact that the jury had separated after their agreement, and returned a sealed verdict into court, is certainly no argument in favor of a poll of the jury. By the consent of parties, it is the uniform practice in this State, upon the adjournment of the court, to say to a jury to whom a civil case has been submitted, that as soon as they have agreed, they may reduce their verdict to writing and seal it up, and then separate and come in upon the reassembling of the court. This practice operates well for the convenience and comfort both of the court and jury and is prejudicial to the rights of no one. But were we, after such an agreement and separation and the consequent exposure of the members of the jury to be talked and tampered with, by witnesses, parties and their friends, to allow a poll, it would not unfrequently happen, we apprehend, that some one of the jury might be induced to change his views, and upon a poll disavow his agreement to the verdict; and thus might the whole labor of the trial be lost, and injustice in some instances be done.

The opinion of the court is, that the exceptions must be overruled, and that there must be

Judgment on the Verdict.