ADAMS v. BUSHEY

Norris Rand, for the plaintiff. The policy of the law clearly is, that all which goes to make up the trial of a cause shall be in open court, or in the presence of all the parties. It is made a statute law of this state, that "No judge, justice, magistrate, county commissioner or commissioners, in whose court, or before whom any suit at law or equity, petition, or other proceeding is pending, or to be heard or tried, shall listen to any statements in regard thereto, except in open court, or in the presence of all parties thereto." "Any person who shall make any statements in regard to the merits of any such cause, suit, or proceeding, to any judge, justice, magistrate, or county commissioner, except in open court, or in the presence of all parties, shall be deemed guilty of contempt, and fined not less than fifty dollars." G. L., c. 211, ss. 9, 10. The language use by the defendant to the referee, after the trial of the cause had been completed, without the knowledge and in the absence of the plaintiff, upon the occasion of his visit at her house to make an examination of the work done by the plaintiff upon the house, and while the arbitrator had the case under consideration, that "she felt anxious about the case," as well as the examination of the work and materials by the referee, in the absence and without the consent of the plaintiff, were calculated to influence his decision, and invalidated the award. And, although the court below found "As a matter of fact, the fairness of the trial was not affected by the second view, and the plaintiff suffered no injustice therefrom," and overruled the motion to set aside the award, it was an erroneous ruling in matter of law, and a subject of exception. Munde v. Lambie, 125 Mass. 367; Alger v. Thompson, 1 Allen 453; Johnson v. Holyoke Water-Power Co., 107 Mass. 472: Oleson v. Meader, 40 Iowa 662; Brown v. Pippin, 12 Heisk. (Tenn.) 657; Bradbury v. Cony, 62 Me. 223; Bowler v. Washington, 62 Me. 302; Vanmeter v. Kitzmiller, 5 W. Va. 380; Woods v. State, 43 Miss. 364; Johnson v. Root, 2 Clif. 108; McIntire v. Hussey, 57 Me. 493; Allen v. Aldrich, 29 N.H. 63; State v. Hascall, 6 N.H. 352; McIlvaine v. Wilkins, 12 N.H. 474; Hilton v. Southwick, 17 Me. 303; Hix v. Drury, 5 Pick. 296; Knight v. Freeport, 13 Mass. 218; Tate v. Vance, 27 Gratt. (Va.) 571; Whitney v. Whitman, 5 Mass. 405.

Whether the fairness of the trial was in fact affected by the irregularity or not, or whether the defendant suffered injustice therefrom, was wholly immaterial. We do not charge any intentional misconduct upon the referee.

Gould and Mugridge, for the defendant. I. The house became part of the evidence, which the referee was bound to consider in determining the cause. His second examination developed no new evidence. It was merely a proper method of considering and weighing what was already properly before him; and we respectfully submit, that under the circumstances of this case he had the same right to examine the house in connection with the other evidence, as he would have had to examine a plan or model had they been properly before him, or the testimony of the witnesses as shown by his minutes or recalled by his memory.

II. Counsel for the defendant especially requested the referee to make the second-examination. The plaintiff and his counsel heard the request, made no objection, and did not refer to the matter either in final argument, or at any other time.

III. The remark made by the defendant was in no way calculated or intended to influence the mind of the referee. It is within the common knowledge of mankind that parties to suits are anxious about their cases. The remark gave no information to the referee which he did not already have, it aroused no thought in his mind of which he had not always been conscious, it was made by a person unacquainted with the requirements and proprieties of legal trials, and it bore no fruits either for good or for evil. The authorities cited in the plaintiff's brief are based upon the ground either that the complaining party was injured by the act complained of, or that the court could not say that he was not. That is not this case. The fact that the referee acted in good faith, that he was guilty of no misconduct, that he did not talk to hear the defendant talk in regard to the case, that his examination of the house, and all the circumstances connected with the same, including the remark of the defendant, were harmless, that no injustice was done, that the fairness of the trial was not affected, are determined by the court below. The question of law, if there be any, which is submitted to this court, is, whether a solemn award, made upon a fair and impartial trial, shall be set aside because of some act on the part of the referee or a party, which, as a matter of fact, injured no one's cause and affected no one's rights.

We submit that before an award or a verdict will be set aside, the conduct complained of must be such that at least the court can presume some injustice resulted therefrom. In the case at bar, the finding of the court below precludes such presumption even. A party who has received no injury should not be heard to complain. Prof. Jur., ss. 392, 405, Morris v. Howe, 38 Iowa 490; United States v. Reid, 12 How. 361; State v. Knapp, 45 N.H. 148; Peacham v. Carter, 21 Vt. 515; Wright v. Rogers, 2 Penn. (N. J.) 547; Price v. Lambert, 2 Penn. (N. J.) 533; Reins v. The People, 30 Ill. 257; Whelchell v. The State, 23 Ind. 89.