Moseley v. Washburn

Field, C. J.

These two actions were tried together, and the same questions of law arise in each case. Without considering whether, when two actions are tried together and exceptions are taken in each case, there should not be a bill of exceptions filed in each case, we proceed to consider the exceptions contained in the present bill.

It is undoubtedly true that “no communication whatever” affecting the decision of a cause “ ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court.” Sargent v. Roberts, 1 Pick. 337 . Commonwealth v. Heden, 162 Mass. 521 . But it is also true that “ it is not every irregularity which will render the verdict void and warrant setting it aside. This depends upon another and additional consideration, namely, whether the irregularity is of such a nature as to affect the impartiality, purity, and regularity of the verdict itself.” Commonwealth v. Roby, 12 Pick. 496 , 516. See Merrill v. Nary, 10 Allen, 416 ; *419 Bead v. Cambridge, 124 Mass. 567 ; Kullberg v, O'Donnell, 158 Mass. 405 .

The practice shown in the present cases is not to be commended; but we do not think that, as matter of law, it is necessary to set aside these verdicts. There was no dispute as to the time from which interest was to be reckoned, if the jury found for the plaintiffs. That time was shown by certain dates on executions which were in evidence, and which the jury had with them in the jury room. These dates had been pointed out to the jury by the presiding justice, in his charge in open court, and he had instructed the jury, if they found for the plaintiffs, that the amounts of the verdicts respectively should be certain sums appearing on the executions, with interest from the dates pointed out. The interest was therefore a mere matter of mathematical computation, which the court could order the jury to make, if the jury found for the plaintiffs. It appears that the jury actually computed the interest according to the directions of the court. Under these circumstances it is certain that the instructions sent to the jury by the officer had no tendency to influence the decision of the jury upon the merits of the causes, and the irregularity does not seem to us of sufficient importance to require the verdicts to be set aside on the ground that there is or should be an absolute rule of law in such a case. See Mason v. Massa, 122 Mass. 477 . Exceptions overruled.