Phœnix Mutual Life Insurance v. Clark , 59 N.H. 345 ( 1879 )

The instructions given to the jury were sufficiently favorable to the defendant. They laid down the general doctrine of fraud, so far as it was relevant, with at least as much specific application to the evidence as the defendant had a right to require. The instructions requested, so far as they differ from those given and could have been given without error of law, were calculated to call particular attention to some of the defendant's evidence, and to make such a presentation of it to the jury as counsel could make, and the court was not bound to make. The law of the case was fully, accurately, and clearly stated in the charge; and the defendant does not complain that he had not abundant opportunity, in argument, to apply the law to his view of the testimony. It does not appear that the jury failed to make a correct application of the law; and if such an error of the jury appeared, it could not be corrected on these exceptions, which show no error on the part of the court.

The plaintiff is not responsible for what the officer said to the juror; and what he said was not injurious to the defendant. It had no influence, and did not affect the fairness of the trial. The officer should be cautioned, but there is no cause for a new trial. McIlvaine v. Wilkins,12 N.H. 474; State v. Ayer, 23 N.H. 301, 320; Proffatt Jury Trial, ss. 390, 391, 392.

Judgment on the verdict.

BINGHAM, J., did not sit: the others concurred.