Palmer v. Russell , 43 N.H. 625 ( 1862 )

Bartlett, J.

From the case we understand that the former judgment and the parol evidence in relation to it, was offered to show that the marked line was the southern boundary of range 6, and lot 32. No question arises whether the judgment was admissible to show the defendant’s possession of the locus of the cutting in controversy in that suit, for nothing is stated to show that inquiry material in the present suit. If then the evidence was admissible, it was upon the ground that the line in question had been established by the former judgment, as the south line of range 6 and lot 32. King v. Chase, 15 N. H. 14; Haywood v. Bath, 38 N. H. 185. As no plea was filed in the former suit, it must have been tried upon the general issue uuder the eighth rule of court. Rules of Court, page 6. The pleadings in that suit then raised no such question, and we do not think it was “ the matter in issue” within the meaning of our decided cases. The issue in that action involved two questions, Russell’s possession of the locus, and Palmer’s trespass upon it. 2 Greenl. Ev., sec. 613. If Russell proved that, while he was in possession-of any part of the “Ten Thousand Acre Tract,” Palmer wrongfully entered upon such part, his cause of action was made out and it was quite immaterial in point of law what precise line was the southern boundary of range 6, and lot 32, although such inquiry may in fact have furnished most material evidence. 2 Greenl. Ev., sec. 626; Wheeler v. Rowell, 7 N. H. 517; Peaslee v. Wadleigh, 5 N. H. 321; Palmer v. Tuttle, 39 N. H. 488. The locality of the south line of range 6 and lot 32 was therefore, not a matter in issue, although it may have been a fact in controversy. King v. Chase; Potter v. Baker, 19 N. H. 167; Towns v. Nims, 5 N. H. 263; Outram v. Morewood, 3 East 357; 2 C. & H.’s Phill. Ev. 299; Wendell v. Libbey, 15 N. H. 481; Dame v. Wingate, 12 N. H. 294, 2 Smith L. C. 443. Regarding our own decisions as conclusive upon the question, we deem it unnecessaiy to examine the numerous and somewhat conflicting cases to be found elsewhere.

The evidence furnished fails to sustain the charge of misconduct on the part of one of the jurymen.

There must be judgment on the verdict.