Joel Raymond vs. David Nye & another, 5 Met. 151

Dewey, J.

We understand the instructions to the jury to have been, that the account books "of the defendants, though introduced as evidence in the case by the plaintiff, were to be considered prima, facie evidence only, of all charges therein appearing to have been made against the plaintiff, and that it was open to him to control this evidence by other testimony; and if upon the whole evidence the jury were satisfied that the charges on the books were not properly made, and did not constitute a valid demand against the plaintiff,. they might be re jected. .This we think was the correct rule, and has given to the evidence resulting from the books all the effect it was entitled to.

Treating the evidence as admissions by the plaintiff, it was open to explanation, and liable to be controlled by other evidence. Considering it in the nature of an account stated by the parties, it would still be competent for either party to show errors or mistakes. Taking it in any proper view, it could only bq prima, facie evidence, and not such as should estop the other party from explaining and controlling it.

The same rule applies, and the same answer is to be given, to the objection to the ruling of the court upon the conclusiveness of the charges against the plaintiff, upon the books of the defendants, for money paid to other persons for part of the work upon the ship which the defendants were building, and upon which the plaintiff had labored. It was competent for the plaintiff to show that these charges were wholly unauthorized and illegal, although made upon the books which he introduced.

The counsel for the defendants suggested a strong belief that the jury misunderstood the charge of the presiding judge, and were misled through their misapprehension of it.

The only possible ground for supposing the instructions liable to misapprehension arises from the use of these words : “It was open to the defendant to contend, upon the whole evidence, that the items on the debit side of the account were not proved, or were not proper subjects of charge.” It is said that the jury might have understood that this ruling required the defendants to prove the correctness of the charges on their books against the plaintiff, and not that the burden was shifted upon the plaintiff to disprove them, after he had made a prima, facie case against himself, as to those charges, by introducing the books as evidence.

But it is to be borne in mind that this ruling was preceded by the declaration that the plaintiff, by calling for the books and introducing them, had made them prima, facie evidence, though not conclusive. The position assumed by the defendants at the trial before the jury was, that the charges against the plaintiff, contained in the books, must be allowed by the jury ; and the only point in dispute seems to have been, whether greater weight should be attached to this evidence than to consider it prima facie evidence.

If treated as evidence of this character, it still would avail the defendant, and required no further evidence from him, until it was disproved by the plaintiff. Objections of this nature are to be received with great caution.

The theory of trial by jury presupposes that those who are called to act as jurors will possess sufficient intelligence to understand, so far as is necessary for the proper performance of their duty, the exposition of the rules of law as given by the court: And if the proper legal instructions are given, express- ed in appropriate language, it must be assumed that the jury were legally instructed and that they understood those instructions.

Hence all attempts to introduce the testimony of jurors, after the verdict has been returned and recorded, to show that they misunderstood the charge of the judge, have, I believe, been unsuccessful, and have received no sanction from the court. The appropriate remedy, when the counsel seriously apprehend that the charge may be misunderstood, or is not sufficiently direct and explicit in matter of law, is to suggest the same before the case is committed to the jury. Lathrop v. Inhabitants of Sharon, 12 Pick. 172.

A further remedy for cases where it is obvious to the presiding judge, from the verdict returned, that the jury must have misunderstood or misapplied the rules of law as stated from the bench, may also be found in an application to the court for a new trial on the ground that the verdict is against the evidence, under the instructions given to the jury. We do not perceive, in the present case, any sufficient rea son for granting a new trial. Judgment on the verdict.