Wood v. Wood , 52 N.H. 422 ( 1872 )

Ladd, J.

No specific legal objection to the pleas of the claimants has been pointed out to us, and we see none. The demurrer must, therefore, be overruled ; and it becomes unnecessary to inquire whether, by replying to the third plea, the plaintiff waived his demurrer to the fourth or not.

As to the main question, it is far within the rule established in Janvrin v. Fogg, 49 N. H. 340, and Lisbon v. Lyman, 49 N. H. 553, to say that if there had been a finding of all the issues necessary to a judgment in this case, one way or the other, and there were error in the trial of any one or more of those issues, the verdict might be set aside only as to the issues affected by the error, and permitted to stand as to the others. The practical result certainly is, that part of the facts necessary to form the basis of a judgment may be found by one jury, and the remainder by another on another trial, provided those facts be distinct and no way interdependent the one upon the other.

To hold this, when part of the findings are set aside for error in the trial, and at the same time to hold that, when the first jury agree upon one and fail to agree upon the other of two separate and independent facts or issues raised in the case, the issue so decided must, as matter of law, be sent back to be retried with the other by the second jury, would be manifestly absurd. No imaginable reason occurs to us why the whole case should be tried over again in one case any more than in the other. We are all agreed that the authority of the cases referred to should not be disturbed at this time. The result is, that the exception to the proceedings of the judge at the trial, in receiving and recording the verdict on the first and second issues, must be overruled.

The relationship of one of the jurors to one of the plaintiffs’ counsel, as shown by the case, does not furnish a legal ground for setting aside the verdict. Case discharged.