Opinion
Decided January 5, 1909.
CASE, for flowage. Trial by jury and verdict for the defendant. The evidence tended to show that the plaintiff employed a deputy sheriff to prepare the case for trial; that the officer employed engineers who looked to him for their pay, gave them directions as to making their surveys, and took the writ in the action to another deputy to serve. Against the plaintiff's objection and after warning from the court that he must take his chances, the defendant's counsel argued that the plaintiff's claim was a dishonest one, "jobbed out" to the deputy sheriff.
On a motion to set aside the verdict for misconduct of counsel, the presiding justice found that the argument was intended to and probably did influence the jury. The question whether the inference could properly be drawn from the evidence was transferred without ruling by Pike, J., from the May term, 1908, of the superior court.
James F. Brennan, for the plaintiff.
Hamblett Spring and Doyle Lucier, for the defendant.
There was no evidence from which the inference that the suit was a champertous one could properly be drawn. The presumption that the error of counsel was corrected by the court (Mitchell v. Railroad, 68 N.H. 96, 117) cannot be applied here, for it not only appears in the case that the error was not corrected, but it is stated in terms that the verdict is to be set aside unless the argument was justifiable.
Exception sustained: verdict set aside.
All concurred.