Church v. The Inhabitants of the Town of Norwich, 1 Kirby 140

By the Court. (Judge Dyer aud Judge Pitkin giving no opinion.) 1. It does not appear, on inquiry, tbat the jury ■ ever made tbe agreement stated in tbe first exception. 2.

Tbougb there is no averment in tbe declaration, tbat tbe defendants bad' notice of tbe payment alleged; yet it is averred, tbey were indebted, and tbat being so -indebted, tbey promised; and tbe jury having found tbe promise, must have found also tbe indebtedness, and must have bad proof of facts necessary to create tbe debt: And as to tbe interest; tbougb tbe jury have given interest, by way of damages, for detention of tbe debt, it is not apparent to tbe court tbat it is wrong.

Tbe jury may have bad evidence of an agreement to allow interest, or tbat tbe money was so applied by tbe plaintiff as to stop interest for tbe defendants, or of other special circumstances, to justify them in allowing interest. 3. As to tbe equity of tbe case, tbat it was too doubtful to support an action of this kind: This does not appear from tbe verdict, or tbe declaration; and tbe court are not now to go into tbe evidence. 4.

As to tbe supposed interest of Judge Dyer, it was' too inconsiderable and remote for him to have excused himself; and if tbe defendants would object, on account of bis kindred to one of them, tbey should have done it when tbe cause came on: Having waived it then, it is unreasonable tbey should take advantage of it, after hearing bis opinion to accept tbe verdict against them.