I am also of opinion that this verdict should be set aside. It may be conceded that the arbitrators endeavored, to act honestly and impartially, and that they wholly persuaded themselves that they did so. The evidence tends to show that two of them at least had prejudged the case, and had on more than one occasion expressed their opinions. They cannot therefore be deemed impartial. If the plaintiff had been informed of their real position, he never would have consented to their sitting as arbitrators in his case. Next to securing a fair and impartial trial for parties, it is important that they should feel *Page 436 that they have had such a trial; and anything that tends to impair their belief in this respect must seriously diminish their confidence and that of the public generally in the ability of the state to provide impartial tribunals for dispensing justice between its subjects. The views of Mr. Justice BELL, in Wiggin v. Plumer, 31 N.H. 272, upon this subject are eminently sound, and confirmed by general experience.
There is also evidence which tends to show that during the trial one or more of the jurors during the adjournments were present when the merits of the case were discussed, listening to and at times participating in the discussion, so that their minds, although perhaps insensibly, must have been influenced against the plaintiff. But however that may be, no party could be expected to rest satisfied with a verdict returned against him by jurors, some of whom had been subjected to such influences.
I think the parol evidence offered of the contents of the dispatch sent by telegraph should have been received.
In Price v. The Earl of Torrington, 1 Sm. Lead. Cases 139, Am. ed., 1847, are collected a large number of American decisions to the point, that, when entries are made in a shopkeeper's books of account by a clerk who is without the limits of the state at the time of the trial, in an action to recover for the goods so charged, the charges may be read in evidence upon proof of his handwriting, the same as if he were dead; and in Dunbar v. Marden, 31 N.H. 311, it was held, that, where a subscribing witness resides without the limits of the state, he is beyond the reach of the process of the court in the sense in which those words are used, and evidence of his handwriting may be produced in proof of the execution of the instrument; — see, also, 1 Gr. Ev., sec. 572. It appears that Savage wrote the account of this affray as dictated by Barney, and sent it over the wires to the Boston Journal, in which paper it was published. This message was kept by Savage three years in the office at Lancaster, and then, agreeably to his custom, sent to the office of the company in New York. The original memorandum was thus, at the time of the trial, if in existence at all, shown to be in the possession of the company in New York. It was beyond the custody or control of the witness, and beyond the reach of the process of the court. The facts as here presented would seem to fall within that class of exceptions to the rule requiring primary evidence, where the plaintiff was unable, "from physical or legal obstacles," to produce the original paper. The question presented is very similar to that decided in Dunbar v. Marden, supra, and, for the same reasons that governed the decision of that case, the foundation was laid for receiving secondary evidence of the contents of the paper.
I have nothing to add to what the chief justice has said upon the other questions presented in this case.
RAND, J., C. C. I have reached the conclusion, with considerable reluctance, that the verdict ought to be set aside in this case. I think that whenever a person is selected as an arbitrator in a cause in *Page 437 which he has formed and expressed an opinion, he should state that fact to the party to whose prejudice the opinion has been thus formed and expressed; otherwise, the neglect should be regarded as misconduct sufficient to cause the award to be set aside.