The instruction as to adverse possession was properly refused, there being no evidence to which it applied. "A judge is not bound to instruct the jury upon an abstract proposition; and before he can be required to give particular instructions, there must be evidence, relevant and pertinent, on which to found them." Woodman v. Northwood, 67 N.H. 307, 309.
The plaintiff's argument as to the inference to be drawn from the defendant's failure to call accessible witnesses was not objectionable. Mitchell v. Railroad, 68 N.H. 96, 117.
The argument that the plaintiff, having small means, could not be to so great an expense as the defendant had been to in procuring plans, stated no fact that was not in evidence. It was proper to suggest to the jury that the rudeness of her plans was not due to a purpose of withholding information from them, but to her want of means to procure more elaborate ones. This view was properly urged upon the jury as an answer to the defendant's comments upon the comparison of his plans with hers. The conduct of the parties in preparing for trial is always a fair matter for argument. State v. Staples, 47 N.H. 113; Murray v. Chase, 134 Mass. 92. The instruction that the case was not to be decided upon the fact as to the comparative wealth or poverty of the parties was correct; but the direction to the jury to entirely disregard the remark of counsel, took from the plaintiff her right to have the circumstance of her limited means considered upon the question of why she did not furnish more or better plans. Whatever error there was in these rulings was favorable to the defendant, and he cannot now complain of it. *Page 132
The motion to set aside the verdict because a juror was related to the plaintiff's husband in the sixth degree, must be denied. It does not appear that either of the parties or their counsel knew of the relationship when the jury were impaneled. In such case, the burden of showing both a want of knowledge and due diligence in efforts to discover the objectionable fact is placed upon the party moving for a new trial. Harrington v. Railroad,62 N.H. 77. There is nothing in the case to show that the defendant used any diligence to discover the relationship, and the motion fails for lack of proof of an essential fact. It is therefore unnecessary to decide whether the relationship would be a disqualification.
Exceptions overruled.
WALLACE, J., did not sit: the others concurred.