
    „ Dodge v. Cabeoll.
    Motivo may be shown, when material.
    Admission of testimony not rebutting is within the discretion of the judge at the trial term, which will not be revised unless specially reserved.
    
      Testimony of jurors as to what happened in the jury-room is admissible-to sustain a verdict, hut not to impeach it.
    A verdict may be sustained, although the damages were first computed as the average judgment of the jury, if afterwards they fairly agreed! on the amount.
    Case, for damages from defective highway. The plaintiff’s evidence tended to show that the wheel of his wagon struck a stone in the highway, the defect complained of, and he was thrown out and injured. The defendants’ evidence tended to show that he jumped out. It appeared, on cross-examination of Pennock, the defendants’ witness, that, at the request of the plaintiff, he had made a statement somewhat different from his testimony. The plaintiff was permitted to testify, subject to exception, that he-caused the statement to be taken because he had heard that citizens of Carroll said he jumped out. Congdon, the plaintiff’s .witness in rebuttal, was permitted to testify, subject to exception, that the plaintiff was thrown out.
    Having decided for the plaintiff, the jury ascertained the average judgment of the panel as to the amount of damages, and that-amount, slightly changed, they afterwards agreed to. The defendants moved to set aside the verdict. The court ruled that testimony of jurors might be received to sustain the verdict, but not to set it aside, and the defendants excepted.
    
      Ray, Drew 8f Jordan, for the defendants.
    
      Ladd Sf Fletcher, for the plaintiff.
    It might be argued that taking a statement to disprove an anticipated defence showed that the plaintiff knew the defence to be true. It was proper to show his. motive. Congdon’s evidence was rebutting. In putting in his case, the plaintiff was not bound to anticipate defences. As to the conduct of the jury, see Dana v. Tucker, 4 Johns. 487; Grinnell v. Phillips, 1 Mass. 541; Shobe v. Bell, 1 Rand. (Va.) 39; Cowperthwaite v. Jones, 2 Dall. (Pa.) 55; Proff. Jury Trial, s. 407; Thompson v. Com., 8 Gratt. 637; Crabtree v. State, 3 Sneed (Tenn.) 302.
   Bingham, J.

It was competent for the plaintiff to explain why he took Pennoek’s statement. The motive of an act may be shown when it is in question. Carter v. Beals, 44 N. H. 408. The admission of Congdon’s testimony was within the discretion of the judge at the trial term, which will not be revised unless specially reserved. York v. Pease, 2 Gray 282; 1 Gr. Ev., ss. 74, 431.

The affidavits of jurors are admissible to sustain a verdict, but not to impeach it. State v. Ayer, 23 N. H. 301, 321; Tenney v. Evans, 13 N. H. 362, 465; Leighton v. Sargent, 31 N. H. 119. The final agreement of the jury on the question of damages having been apparently fair, the verdict is not invalidated by the preliminary ascertainment of their average judgment. Grinnell v. Phillips, 1 Mass. 530, 542.

Judgment on the verdict.

Stanley, J., did not sit: the others concurred.  