The jury, in rendering its verdict, failed to respond separately
to the distinct issues it was sworn to try. The defendant had
pleaded three pleas: 1. covenants performed; 2. payment; 3. setoff
greater in amount than the claim of the plaintiff. On these three
pleas, the jury gave a general verdict of damages in favor of the
plaintiff, on which judgment was entered. In the circuit court, no
exception was taken to the verdict. The counsel for the plaintiff
contended that this was error in the circuit court which was
properly to be corrected in the supreme court. By the court.
Objections of this character that are neither taken at the usual
stage of the proceedings nor prominently presented on the face of
the record, but which may be sprung upon a party after an apparent
waiver of them by his adversary, and still more after a trial on
the merits, can have no claim to the favor of the Court, but should
be entertained in obedience only to the strict requirements of the
law. The three issues were joined on affirmative allegations by the
defendant, and the verdict was for the plaintiff on these issues.
Admitting that this verdict is not affirmatively responsive to
these issues, it virtually answers and negatives them all, for if
all or either of them had been untrue, the verdict was untrue.
Should the judgment, then, be arrested, this would be done neither
from a necessity to guard the merits of the controversy nor from
the principles of sound inductive reasoning, but solely in
obedience to an artificial and technical rule, which, however it
may be founded in wisdom and promotive of good in general, yet,
like all other rules, is capable of producing evil when made to
operate beyond the objects of its creation.
The third section of the Act of Congress of 1789 to establish
the judicial courts of the United States, which provides that no
summary writ, return of process, judgment, or other proceedings in
civil cases in the courts of the United States shall be abated,
arrested, or quashed for any defect or want of form &c.,
although it does not include verdicts
eo nomine, but
judgments are, and the language of the provision "writ,
declaration, judgment, or other proceedings in civil causes," and
further, "such writ, declaration, pleading, process, judgment, or
other proceeding whatsoever," is sufficiently comprehensive to
embrace every conceivable step to be taken in a cause, from the
emanation of the writ down to the judgment. Both the verdict and
the judgment in this case are within the terms and intent of the
statute, and ought to be protected thereby.
In trials at law, while it is invariably true that decisions on
the weight of the evidence belongs exclusively to the jury, it is
equally true that whenever instructions upon evidence are asked
from the court to the jury, it is the right and duty of the former
to judge of the relevancy, and, by necessary implication to some
extent, upon the certainty and definiteness of the evidence
proposed. Irrelevant, impertinent, or immaterial statements a court
cannot be called upon to admit as the groundwork of instructions;
it is bound to take care that the evidence on which it shall be
called upon to act is legal, and that it conduces to the issue on
behalf of either the plaintiff or the defendant.
Page 41 U. S. 320
The defendant in error instituted an action of covenant, in the
Circuit Court of the County of Washington, against Philip Roach,
upon certain articles of covenant. Before the trial of the cause,
the defendant died, and his administrator became the defendant in
the suit, a verdict and judgment were rendered for the plaintiff,
and the defendant prosecuted this writ of error.
The case is fully stated in the opinion of the court.
DANIEL, JUSTICE, delivered the opinion of the Court.
It appears from the record that Philip Roach, the plaintiff's
intestate, having contracted, by agreement in writing, on 3 April
1829, with one Samuel Davidson for the workmanship to be performed
in the construction of a lock described as the outlet lock at a
place called Lewistown, did, on 27 April, in the same year, enter
into a covenant with Hulings, the defendant in error, in which it
was agreed, that the defendant should supply all the timber, plank
and boards, required in building this lock, at prices stipulated in
the said covenant, to be paid by the plaintiff's intestate.
On 13 March 1837, an action of covenant was instituted by
Hulings in the circuit Court of Washington County, against Philip
Roach to recover the value of the timber, plank, &c., alleged
to have been furnished by the former in performance of the
contract. The covenant is by profert made a part of the record. An
account, exhibit B, is filed showing the amount and value of the
materials for which compensation is claimed, also the deposition of
a witness, Samuel Davidson, to prove the justice of this account.
Philip Roach having died after appearance to the suit, process was
directed against his representative, and the defendant having
subsequently appeared, as administrator of the deceased, filed,
first, the pleas of covenants performed and payment by his
intestate, and next the plea of setoff of an
Page 41 U. S. 321
alleged debt of $3,000 due to the intestate in his lifetime, and
greater in amount than the damages claimed by the plaintiff. On
these three pleas, issues were joined, and the jury rendered a
general verdict in damages for the plaintiff. The questions of law
decided by the court below and now presented for review here arise
upon two bills of exception sealed by the judges of the circuit
court and made parts of the record.
But before going into an examination of these questions, it is
proper to advert to a point which was neither suggested nor decided
in the circuit court, but which has been urged for the first time
by the counsel for the plaintiff in error before this Court. The
point thus raised and pressed by counsel is the following: that the
jury, in rendering their verdict, failed to respond separately to
the distinct issues they were sworn to try, and that this failure
by the jury constitutes an error for which the judgment of the
circuit court should be arrested. Objections of this character that
are neither taken at the usual stage of the proceedings nor
prominently presented upon the face of the record, but which may be
sprung upon a party after an apparent waiver of them by his
adversary, and still more, after a trial upon the merits, can have
no claim to the favor of the court, but should be entertained in
obedience only to the strictest requirements of the law. Let us see
how far, in the present instance, the Court is controlled by any
such absolute and inflexible authority.
The three issues were joined upon affirmative allegations by the
defendant: lst, that his intestate had performed his covenant, 2d,
that he had paid whatever was due the plaintiff, and 3d, that the
defendant possessed, in right of his intestate, a claim against the
plaintiff greater in amount than the plaintiff's demand against
him. Upon these affirmative averments the jury found a verdict for
the plaintiff. Admitting that this verdict is not technically
responsive to the several pleas, it virtually answers and negatives
them all, for if all or either of the pleas had been true, the
verdict was untrue. Should the judgment then be arrested, this
would be done neither from a necessity to guard the merits of the
controversy nor from the principles of sound inductive reasoning,
but solely in obedience to an artificial and technical rule, which,
however it may be founded in wisdom, and be promotive of good, in
general, yet, like all other rules, is capable of producing evil,
when
Page 41 U. S. 322
made to operate beyond the objects of its creation. It was to
prevent the mischiefs ensuing from a misapplied rigor that statutes
of jeofails have been enacted, and their salutary influence is
invoked whenever the intrinsic merits of parties litigant would,
without that influence, be sacrificed to mere modes and forms of
practice.
By the 32d section of the act to establish the judicial courts
of the United States it is provided
"That no summons, writ, return, process, judgment or other
proceedings in civil causes in any of the courts of the United
States shall be abated, arrested, quashed or reversed for any
defect or want of form, but the said courts, respectively, shall
proceed and give judgment according as the right of the cause and
matter in law shall appear to them, without regarding any
imperfections, defects or wants of form in such writ, declaration,
or other pleading, return, process, judgment or course of
proceeding whatsoever, except those only in cases of demurrer,
which the party demurring shall specially set down and express,
together with his demurrer, as the cause thereof."
It is true that a verdict,
eo nomine, is not comprised
within this provision of the statute, but judgments are, and the
language of the provision, "writ, declaration, judgment, or other
proceedings in civil causes," and further, "such writ, declaration,
pleading, process, judgment or other proceeding whatsoever" is
sufficiently comprehensive to embrace every conceivable step to be
taken in a cause, from the emanation of the writ down to the
judgment. The Court has shown that the proceedings in this cause
were according to the right of the case, that they brought into
view the real merits of the parties litigant before the jury; they
therefore consider both the verdict and judgment are within the
terms and intent of the statute, and ought to be protected
thereby.
The first bill of exceptions states that, the plaintiff having
introduced his proofs, the defendant then gave evidence that in the
spring of 1831, the plaintiff stated to the witness that he had
just settled with Philip Roach (the defendant's intestate) all his
private accounts, as well as an account of one Davidson against
said Roach, and had been paid the same, except $500 for which he
had Roach's due bill or note, payable on demand, but the witness
was uncertain whether the plaintiff said it was a due bill or note,
and further stated that he and Roach were going to
Page 41 U. S. 323
Washington, where Roach had provided to pay said due bill or
note. And the defendant further proved that about the time of this
statement by plaintiff, Roach drew out of a partnership, a
considerable sum of money, for his own use, whereupon the defendant
moved the court to instruct the jury
"That if they believed the account in suit was settled by a due
bill or note given by defendant's intestate to the plaintiff, then
the presumption is that the said due bill or note had been
paid,"
and afterwards further prayed the court to instruct the
jury,
"That if the jury believe from the evidence, that the
defendant's intestate, in the spring of 1831, closed the account in
suit, by giving to the plaintiff his due bill or note, payable on
demand, and that immediately afterwards the plaintiff, with Philip
Roach, came to Washington for the purpose of receiving the money
for the said due bill or note; that about the time of said visit to
Washington, a considerable sum of money was withdrawn by said
Roach, from a partnership in which said Roach was engaged with
Patrick Donelly, in consequence of which Donelly abandoned the
partnership; then the jury may presume from the above facts, and
from the nonproduction of the due bill or note by the plaintiff, no
account being given by the plaintiff of said bill or note, that the
same was paid and delivered to the said Philip Roach, and by him
destroyed,"
but the court refused, &c.
In trials at law, whilst it is invariably true that the decision
of questions upon the weight of the evidence belongs exclusively to
the jury, it is equally true that wherever instructions upon
evidence are asked from the court to the jury, it is the right and
duty of the former to judge of the relevancy, and, by necessary
implication, to some extent upon the certainty or definiteness, of
the evidence proposed. Irrelevant, impertinent or immaterial
statements a court cannot be called upon to admit as the groundwork
of instructions; it is bound to take care that the evidence on
which it shall be called to act is legal, and that it conduces to
the issue on behalf either of the plaintiff or of the defendant. To
apply these principles to the case under review, the purpose of the
defendant below was to show that the demand of the plaintiff, if
originally well founded, had been paid by the execution of a note
by the testator of the defendant, which note had been subsequently
satisfied, surrendered to the maker, and by him destroyed.
Page 41 U. S. 324
And what was the evidence introduced to establish these
conclusions? The statement by a witness of a conversation between
himself and the plaintiff in 1831 wherein it was stated, among
other things, by the former that he had settled all his private
accounts, as well as on account of one Davidson, against said
Roach, and had been paid the same, except $500, for which he had
Roach's due bill or note, payable on demand, but the witness was
uncertain, whether the plaintiff said it was a due bill or note,
and further said that he and Roach were going to Washington, where
Roach had promised to pay said due bill or note, and further that
about this time Roach, drew out of a partnership a considerable sum
of money for his own uses.
Now the first thing which strikes the attention with respect to
the testimony of the witness is that he does not prove with
certainty, if at all, the existence of any instrument whatsoever;
he saw none, and cannot give a clear and certain description of it,
as reported to him by the plaintiff; he does not know whether it
was a due bill or a note. In the next place, the witness does not
disclose whether this note or due bill, or whatever it may have
been, was given for the benefit of Davidson or for that of the
plaintiff, for we are told that the plaintiff professed to have
settled with Roach his own private accounts as well as on account
of one Davidson. Now although there was a contract between Roach
and one Davidson for the building of the outlet lock, yet there is
nothing in the plaintiff's contract with Roach, nor any proof in
the record, which connects the plaintiff, or his undertaking, or
the obligations of Roach to him, with any transaction between
Davidson and Roach. Then, when the plaintiff is represented as
speaking of a settlement with Roach, on account of Davidson,
distinguishing it, at the same time, from a settlement of his own
private account, and as speaking of a note or due bill taken upon
these settlements, it would be as regular to presume that such note
or due bill (if it were practicable to conjecture which it was)
belonged as much to the one settlement as the other.
Upon these loose statements, the court was asked to instruct the
jury that if it believed the account in suit was settled by a due
bill or note given by the defendant's intestate to the plaintiff,
then the presumption is that the said due bill or note has been
paid. And further, that if it believed from the
Page 41 U. S. 325
same evidence that the defendant's intestate, in 1831, closed
the account in suit by giving to the plaintiff his due bill or
note, payable on demand, and that immediately afterwards, the
plaintiff, with Philip Roach, came to Washington for the purpose of
receiving from Philip Roach the money for the said due bill or
note, and that money was drawn by said Roach from a partnership in
which he was engaged; then the jury may presume from the above
facts, and the nonproduction of the due bill or note by the
plaintiff (no account being given by the plaintiff of the said due
bill or note), that the same was paid, and delivered to the said
Philip Roach, and by him destroyed &c. The propositions which
the Court was here required to affirm, so far from following as
regular or allowable inferences from the evidence, appear to be in
nowise dependent upon it. No witness had proved so much as the
existence of any particular writing whatsoever, much less that of
an obligation payable to the plaintiff and in his own interest and
behalf. How then could the jury, with any propriety, be directed to
presume not only the existence of such an obligation, but also its
discharge, and in addition to these facts, its actual surrender to
and destruction by the defendant's intestate, thereby relieving him
from all the presumptions naturally arising against a party from
the nonproduction of a document whenever the custody thereof is
brought home to him either by direct or circumstantial proofs.
Almost any other propositions which can be imagined could with as
much regularity have been required from the court as instructions
to the jury as those which the Court was requested to affirm.
The cases of
Swift v. Stevens, 8 Conn. 431, and of
Freeman v. Boynton, 7 Mass. 483, have been relied on in
argument for the plaintiff in error. Any influence of these cases
in favor of the plaintiff the Court is unable to perceive. The
former was an action upon a lost promissory note; the latter was
also an action upon a note, in which the question of diligence was
chiefly involved. In these cases the only points ruled which seem
to have any affinity with this case were that in the first, the
existence at one period and the subsequent loss or destruction of
the note was required to be clearly shown, and in the second it was
decided that as a general rule, the demand for payment of a note
must be accompanied with the possession
Page 41 U. S. 326
of the note. Accordingly, in the case from 8 Pick., the
existence and subsequent loss of the note were established by a
disinterested depositary with whom it had been lodged. These cases
were ruled, and most properly so, upon the principle that a debtor,
when he makes payment, shall receive the best allowable protection
against a repetition of the same demand upon him,
viz.,
his bond or his note, when either has been given. The cases of
Clark v. Young,
1 Cranch 181, of
Harris v.
Johnston, 3 Cranch 311, and of
Morgan v.
Reintzell, 7 Cranch 273, all turn upon the same
principle. In the plaintiff's first bill of exceptions, the
evidence tendered is vague and confused; it establishes nothing
pertinent to the point raised, and does not warrant, as a
legitimate conclusion from it, the instruction asked for. The court
therefore properly denied that instruction.
In the second bill of exceptions, the court is asked to instruct
the jury that should they be of opinion from the said evidence that
Philip Roach made and delivered his negotiable note, payable on
demand, to the plaintiff for the balance due him on a final
settlement of all accounts, that the plaintiff cannot recover
unless he has produced the said note or proved that the same was
lost or that the same was cancelled &c. This bill of exceptions
may be disposed of in very few words. The instruction it prays for
purports to be founded upon the evidence contained in the former
bill, and it asks that if the jury shall believe upon the evidence
that Philip Roach did execute and deliver to the plaintiff his
negotiable note, payable on demand, then, &c. Now in the
evidence referred to there is not one word contained relative to a
negotiable note made and delivered by Philip Roach to the plaintiff
or to any other person. It would have been improper for the jury to
have embraced in their contemplation or belief anything concerning
a negotiable note, and improper for the court to have given them
any instruction concerning a document which was not in the cause,
and about which not a title of evidence was adduced from any
quarter. In refusing the instructions asked for, as set forth in
this second bill, the circuit court have also decided correctly,
and this Court, approving its decision upon both the points
adjudged by it, doth affirm the judgment of the circuit court.
Judgment affirmed.