Trafton v. Pitts

Walton, J.

The contention in this case is in relation to the ownership of two sheep. The plaintiff claims that he owns them, and the defendant claims that they belong to him. The action is trover, and was originally commenced and tried before a magistrate. The magistrate decided in favor of the plaintiff, and the defendant appealed. At the trial in the superior court, the defendant brought to court (or rather into the neighborhood of the court) two sheep, which he claimed were the identical sheep in controversy ; and, at his request, the jury were allowed to go to the stable where they were and view them. But notwithstanding this, and much other evidence, the jury decided, as the magistrate had decided, that the defendant was guilty of converting to his use two of the plaintiff’s sheep. He moves for a new trial because some of the jurors, after the first view, went and took a second look at the sheep, without his knowledge or consent, and without the leave of the court. He claims that this was such misconduct on the part of these jurors as entitles him to a new trial. We think not. If it be conceded that the second view was improper, it seems to us that it was a very harmless proceeding. As the jurors had been allowed to view the sheep once, we fail to see how a second look at them could do any harm. It would not bring before them any new evidence ; it would only be a second look at evidence already before them. If the first examination of the sheep' was beneficial to the defendant, as he seems to have believed it would b<9, we fail to see how a second look át them could do him any harm. And we again remind counsel, as we have often done before, that it is useless to attempt to support a motion for a new trial by evidence of *410 what is said by jurors while deliberating upon a ease. Such evidence is illegal and will not be considered by the court.

Motion overruled.

Judgment on the verdict.

Appleton, C. J., Barrows, Daneorth, Virgin and Symonds, JJ., concurred.